author: CERCONE, Judge. OLSZEWSKI, Judge, CIRILLO, Judge,

text:
    665 A.2d 1275
    COMMONWEALTH of Pennsylvania v. Anthony MULLINS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 8, 1995.
    Filed Oct. 5, 1995.
    Olszewski, J., filed concurring opinion.
    Cirillo, J., filed dissenting opinion.

      John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
    Kathy L. Echternach, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CIRILLO, OLSZEWSKI and CERCONE, JJ.
   CERCONE, Judge.

This is an appeal from a judgment of sentence entered after the lower court, sitting without a jury, found appellant Anthony Mullins guilty of aggravated assault. After thoroughly considering the issues presented, we vacate the judgment of sentence and remand for a new trial.

The lower court set forth the relevant facts:

On May 8, 1994 at approximately four-forty five p.m. (4:45) Philadelphia Police Officer John McGuire responded to a radio call to investigate an alleged criminal matter at 24th and Norris Streets, in Philadelphia, Pennsylvania. When McGuire arrived on the scene he was met by Sergeant Lafayette Caison and Buster Demps, the complainant. The complainant told the officers that he had been robbed at 24th and Norris Streets. Specifically, Demps stated that prior to going to 24th and Norris Streets he had gone to the 23 Center at 23rd Street and Lehigh Avenue to get his foodstamps and his disabled veteran’s check. While at the 23 Center, the complainant was approached by [appellant Anthony Mullins]____ Mullins asked Demps for some money and Demps responded he did not have any money.
After leaving the 23 Center, Demps, accompanied by a lady friend decided to go to the [C]hinese restaurant located at 24th and Norris Streets, when he came in contact with the [appellant] again. The [appellant] approached Demps and said, “Give me some money.” Demps responded to [appellant] he did not have any money.
Again, Mullins asked the complainant for money. Demps, again responded no and then he noticed Mullins picked up a pepsi-cola bottle. As the complainant turned to walk away, the [appellant] swung and hit Demps over the head, and the bottle broke. While Demps stood there bleeding he asked Mullins, “why did you hit me?”. Whereby, the [appellant] responded, “you are not going to let me have no money?” Demps replied, “I told you I didn’t have any money to give you.”
Subsequently, Mullins picked up a broom stick laying down by the curb, and said, “you are not going to give me nothing?” After Mullins picked up the broom stick Demps pulled a pocket knife with a blade about three and a half (3/é ) inches long out of his pocket. The [appellant] swung the stick and it broke as he hit Demps across his left shoulder. The complainant then swung the knife as the defendant turned and cut him across the back with the knife. After being cut the [appellant] ran up on some steps located at 24th and Norris Street. The complainant had seen the [appellant] going in and out of this residence for approximately two years.

Demps ran to 22nd and Crosky Street and called 911____ [P]olice were dispatched to the area. Demps did not notice until after he called the police that his $100.00 was missing.

An investigation ensued based on the complainant’s allegation of being robbed. Caison and McGuire went to a house located at 1948 N. 24th Street. Upon arriving the officers observed on the railing of the house, a gray hooded sweatshirt, marked with “Raiders” on the front, with cuts on the back and left sleeve. The sweatshirt had a blood stain on the left sleeve. Additionally, McGuire observed a white tee shirt, marked with “Real Men Recycle,” ... which was also cut and had blood stains on it.

Trial court opinion dated 1/30/94 at 1-4 (citations to the record omitted).

Appellant was arrested and charged with Robbery, Aggravated Assault, and Possession of an Instrument of Crime (PIC). The trial court, sitting without a jury, found appellant guilty of aggravated assault, not guilty of robbery, and acquitted him of PIC. Appellant filed an unsuccessful post-verdict motion arguing that the trial court had erred by improperly restricting cross-examination of the alleged victim regarding suspected drug use and an outstanding drug charge. In this timely appeal, appellant again challenges the circumscribed cross-examination. According to appellant, cross-examination as to the victim’s possible expectation of leniency with respect to an outstanding drug charge was relevant to establish the victim’s potential bias and possible motive for testifying favorably to the Commonwealth. Further, appellant claims that the preclusion of such examination violated his state and federal right to confront adverse witnesses. We agree.

Preliminarily, we recognize that the scope and limits of cross-examination are within the discretion of the trial court and its rulings will not be reversed absent a clear abuse of that discretion or an error of law. Commonwealth v. Buksa, 440 Pa.Super. 305, 311, 655 A.2d 576, 579 (1995); Commonwealth v. Gentile, 433 Pa.Super. 381, 387, 640 A.2d 1309, 1313 (1994). Nevertheless, a witness may be cross-examined as to any matter tending to show interest or bias. Commonwealth v. Davis, 438 Pa.Super. 425, 430, 652 A.2d 885, 887 (1995).

[When] a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it.
The jury may choose to believe the witness even after it learns of actual promises made or possible promises of leniency which may be made in the future, but the defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise some doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case.

Commonwealth v. Smith, 436 Pa.Super. 277, 289, 647 A.2d 907, 912-13 (1994) (quoting Commonwealth v. Evans, 511 Pa. 214, 224-26, 512 A.2d 626, 631-32 (1986)). Moreover, “[t]he right is not to be denied or abridged because incidentally facts may be developed that are irrelevant to the issue and prejudicial to the other party.” Id., 647 A.2d at 912-13 (relying on Lenahan v. Pittston Coal Min. Co., 221 Pa. 626, 70 A. 884 (1908)).

The opportunity to impeach a witness is particularly important when the determination of a defendant’s guilt or innocence depends on the credibility of the questioned witness. See Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992) (when prosecution and defense witnesses presented conflicting versions of the facts and the credibility of the prosecution’s chief witness was therefore pivotal, the trial court committed reversible error by restricting cross-examination as to that witness’ potential bias). Furthermore, a witness’ status as accuser does not obviate the need for full cross-examination. To the contrary, “the victim, as accuser, must be subject to the utmost scrutiny if his accusations are to fairly form the basis of the criminal prosecution at hand.” Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989). See also Commonwealth v. Simmon, 521 Pa. 218, 224, 555 A.2d 860, 863 (1989) (holding that “a prosecution witness’s juvenile probationary status is relevant to show bias regardless of whether the person appears as the victim/complainant”).

During cross examination, appellant attempted to question the complainant as to his potential bias and possible motive to testify unfavorably to appellant. Specifically, appellant sought to demonstrate that the complainant had testified in a manner helpful to the Commonwealth to curry favorable treatment on his outstanding drug charges. The challenged testimony suggested that Mr. Demps had been in the area of the altercation to purchase drugs and that the police possessed an outstanding warrant for his arrest:

Q: MR. DEMPS, IN FACT YOU WERE NOT IN THE AREA TO BUY CHINESE FOOD, BUT YOU WERE IN THE AREA TO BUY SOME DRUGS, RIGHT?
MR. PHILLIPS: OBJECTION.
THE WITNESS: NO.
THE COURT: OVERRULED. HE COULD ANSWER.
Q: YOU USE DRUGS, DON’T YOU?
MR. PHILLIPS: OBJECTION.
THE COURT: SUSTAINED.
THE WITNESS: IF I DO—
THE COURT: —WAIT A MINUTE SIR.
MR. PHILLIPS: OBJECTION.
THE COURT: WHEN YOU HEAR AN OBJECTION WAIT UNTIL I RULE. I WILL LET YOU KNOW WHETHER YOU COULD ANSWER, OKAY.
Q: HAVE YOU EVER USED DRUGS?
MR. PHILLIPS: OBJECTION.
THE COURT: SUSTAINED.
Q: MR. DEMPS, YOU IN FACT HAVE AN OPEN BENCH WARRANT FOR DRUGS?
MR. PHILLIPS: OBJECTION. THAT IS UNCONSCIONABLE. YOUR HONOR I ASK FOR A SIDEBAR?
THE COURT: YOU DON’T NEED A SIDEBAR. I WILL ADMONISH THIS LADY. JUST HAVE A SEAT. YOU ARE TURNING RED. YOU ARE GETTING EXCITED.
MR. PHILLIPS: YES I AM SORRY.
THE COURT: MISS CLAYTON I AM GOING TO ASK YOU NOT TO PURSUE THIS LINE OF QUESTIONING. YOU KNOW IT IS TOTALLY IRRELEVANT TO THESE PROCEEDINGS. YOU KNOW THAT WHAT YOU ARE DOING IS NOT CORRECT.

N.T. 5/16/94 at 42-44.

In Commonwealth v. Cobb, 409 Pa.Super. 168, 597 A.2d 714 (1991), appeal denied, 530 Pa. 664, 610 A.2d 44 (1991), this court considered an analogous scenario. The complainant in Cobb, had driven appellant to Philadelphia for drugs in exchange for a one hundred dollar fee. When the complainant demanded payment, appellant punched her in the face. At trial, appellant unsuccessfully attempted to cross-examine the alleged victim about an arrest warrant issued in a separate matter to demonstrate that she had testified in a manner helpful to the prosecution in anticipation of favorable treatment from the Commonwealth on that matter. Cobb, 409 Pa.Super. at 171, 597 A.2d at 714-15. Appealing his subsequent simple assault conviction, appellant maintained that the trial court’s disallowance of this questioning improperly denied him an opportunity to establish the witness’ potential bias. A panel of this court agreed and remanded the case for a new trial. Similarly, we conclude that the lower court in this case erred by precluding cross-examination of the complainant regarding favorable treatment anticipated or received from the Commonwealth in exchange for his testimony.

We must now assess whether the lower court’s error necessitates the award of a new trial. Not every denial of an accused’s right to cross-examine with respect to an unrelated case requires a new trial. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986). If the error did not control the outcome of the case, it will be deemed harmless. Commonwealth v. Blassingale, 391 Pa.Super. 395, 401, 571 A.2d 426, 429 (1990), appeal denied, 526 Pa. 627, 584 A.2d 311 (1990) (restricted cross-examination of Commonwealth witness regarding charges which had been brought against him but withdrawn prior to his testimony at appellant’s trial did not affect the outcome of the case and was deemed harmless error; those charges had been dropped not because of the Commonwealth’s influence, but because the victims had failed to appear). In making this assessment, we must consider “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. at 1436. When there is a reasonable possibility that an error might have contributed to the conviction, the error is not harmless. In the Interest of Dixon, 440 Pa.Super. 23, 29, 654 A.2d 1179, 1182 (1995) (citing Commonwealth v. Story, 476 Pa. 391, 409, 383 A.2d 155, 164 (1978)).

After careful review, we conclude that the lower court’s error may have contributed to appellant’s conviction. The victim’s testimony in this case was neither cumulative nor corroborated. Compare Commonwealth v. Gentile, 433 Pa.Super. at 389-90, 640 A.2d at 1314 (any error in disallowing cross-examination regarding the witness’ pending criminal charge and possible bias was deemed harmless when that witness’ testimony was confirmed by other witnesses at trial) and Commonwealth v. Culmer, 413 Pa.Super. 203, 213-14, 604 A.2d 1090, 1094-95 (1992) (error in restricting cross-examination of victim on pending criminal charges ruled harmless when the victim’s testimony was corroborated in detail by another eye witness and the inference of bias was extremely tenuous) with Commonwealth v. Smith, 436 Pa.Super. at 292-93, 647 A.2d at 914 (inability of defense to conduct full and fair cross-examination of sole eyewitness regarding his prior record and outstanding criminal charges could not be deemed harmless because that witness’ testimony was pivotal to the prosecution’s case and his credibility was therefore a key issue at trial). To the contrary, the Commonwealth’s case was based almost exclusively on the statements of the complainant, the lone testifying witness to the incident. As such, the determination of guilt hinged on the lower court’s premature yet favorable assessment of that witness’ credibility. When appellant attempted to challenge the complainant’s credibility by showing bias stemming from the outstanding drug charge, the lower court improperly stopped him, finding the question to be “totally irrelevant.” N.T. 5/16/94 at 44. See Commonwealth v. Borders, 522 Pa. at 164-65, 560 A.2d at 759-760 (restricted cross-examination of the complainant regarding criminal charges that had been lodged against him only after he had identified appellant as his assailant constituted reversible error even though the desire for leniency could not have motivated the complainant to implicate appellant: “[t]he presence of the charges ostensibly brought the witness into the influence of the prosecution ... and that happenstance was a relevant area of exploration by Appellant, regardless of its perceived weakness by the Commonwealth”). Based on the foregoing, we are constrained to conclude that the trial court’s error in precluding appellant from challenging the self-interest of the Commonwealth’s pivotal witness renders its credibility determination problematic and necessitates the award of a new trial.

Judgment of sentence is vacated and the case is remanded for a new trial. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

We join in the opinion of the majority. We recognize a certain appeal in the premise of the dissent’s argument — that the victim in a criminal prosecution should be treated differently under cross-examination than other witnesses — but must write separately to explain why we are ultimately unable to lend our support to that position.

In Commonwealth v. Ross, our Supreme Court repeated the long-established rule that evidence of a witness’s conviction on a felony or crimen falsi misdemeanor charge may be used during cross-examination to impeach her credibility. 434 Pa. 167, 169, 252 A.2d 661, 662 (1969). The relevance of such evidence does not depend upon its ability to show a motive for testifying: rather, the evidence is relevant because its existence places the veracity of the witness’s entire testimony into doubt. With regard to the particular question of bias as a motive for testifying, the Ross Court went on to note that an exception exists which would relax the general rule and allow a witness to be cross-examined for bias on a mere indictment, provided that the indictment was for the same crime or one so closely related as to be part of the same occurrence. 434 Pa. at 169-170, 252 A.2d at 662-663. How to properly interpret this bias exception is the question which has split this panel.

Our high court revisited this issue in Commonwealth v. Coades, where it held that the defendant should have been permitted to cross-examine a co-indictee about that indictment. 454 Pa. 448, 311 A.2d 896 (1973). While the Coades Court simply applied, and did not extend, the exception noted in Ross, it did not limit its reasoning to cases where the same crime was involved, either. Instead, the Court stated generally that “[t]he rationale for permitting this type of cross-examination is that the jury should be allowed to evaluate whether the witness testified for the prosecution to gain favorable treatment in his own case.” 454 Pa. at 454, 311 A.2d at 898 (citing J. Wigmore, Evidence § 967).

In Commonwealth v. Warren, a rape defendant sought to convince an en banc panel of this Court that he was wrongfully denied the opportunity to cross-examine his victim about her arrest on the day before trial. 250 Pa.Super. 522, 378 A.2d 1271 (1977). In rejecting this claim, the Warren panel noted that the Ross exception “seems to stand on two legs: necessity of an indictment; and necessity of same crime. The first leg is to ensure that there is some substance to the charge as to which leniency has allegedly been promised---The second leg of the [exception] is to ensure that the prosecutor was able to promise leniency.” 250 Pa.Super. at 529, 378 A.2d at 1274.

Even the most cursory review of these statements will reveal the flaw in the Warren panel’s logic. In order for a prosecutor to be able to promise leniency to an indicted witness, it is obviously unnecessary that the witness’s indictment be for the same crime. In fact, the Warren panel itself noted that it may not even be necessary for the crimes to have been committed against the same sovereign, as a prosecutor might be able to “get cooperation” from a fellow prosecutor in an entirely different jurisdiction. Id. Therefore, when we considered the Ross exception again in Commonwealth v. Joines, we recharacterized its two requirements as “the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness leniency on the charges against him.” 264 Pa.Super. 281, 284, 399 A.2d 776, 778 (1979), appeal dismissed, 498 Pa. 127, 445 A.2d 100 (1982). It is this recharacterization which the dissent would apparent ly reject.

While the dissent correctly notes that we extended the scope of the bias exception in Joines, it goes on to assert that the opinion of our Supreme Court in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), is flawed because it “relies on” that extension. While this argument seems to suggest that the Evans Court blindly followed our mistake, somehow oblivious to the fact that we had altered the law, a review of the Evans opinion reveals that our high court knew exactly what we had done and, furthermore, that the Court knew precisely the direction it was taking:

[The Joines panel’s] interpretation of Coades, thus, broadened the applicability of bias cross-examination to include not only indictments for the same crime, but indictment for any crime within the same jurisdiction.
We believe that the rule of Joines is correct, as far as it goes, and that Joines taken together with [Commonwealth v. Slaughter, 482 Pa. 538, 394 A.2d 453 (1978) ] require that whenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury.

511 Pa. at 223, 512 A.2d at 631. Given the comprehensiveness of the Evans Court’s review of Pennsylvania case law, the agreement between the Court’s reasoning and that of distinguished treatises on the common law of evidence, and the consonance of the Court’s conclusions to those of the United States Supreme Court in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (regarding a similar question under the Sixth Amendment), we find that it cannot plausibly be argued that the Court’s endorsement of the axiom that bias is always relevant represents a thoughtless aberration.

As for the dissent’s suggestion that this evidentiary rule should be applied differently when the victim, rather than any other witness, is on the stand, we note that our Supreme Court has definitively laid this notion to rest as well. In a case directly on point on this issue, the Court held that although the witness at issue was also the purported victim, “it is the policy of this court to allow full cross-examination so long as it is relevant to the search for the truth of the matter under trial. This is especially true where the witness sought to be discredited is a major witness against the defendant and whose covert reasons for testifying in the matter must be allowed to be exposed.” Commonwealth v. Hill, 523 Pa. 270, 274, 566 A.2d 252, 253 (1989); see also, Commonwealth v. Simmon, 521 Pa. 218, 224, 555 A.2d 860, 863 (1989) (holding that “a prosecution witness’s juvenile probationary status is relevant to show bias regardless of whether the person appears as the victim/complainant”); Commonwealth v. Borders, 522 Pa. 161, 165, 560 A.2d 758, 760 (1989) (noting that “the victim, as accuser, must be subject to the utmost scrutiny if his accusations are to fairly form the basis of the criminal prosecution at hand”).

Our review of the record in the case at bar supports a conclusion that the complainant’s testimony was essentially the only evidence linking the defendant to the crime. The complainant could have had any number of reasons for blaming the defendant, and both of the Constitutions we uphold mandate that the question of whether the complainant actually was this defendant’s victim was a matter to be decided on the evidence, not a priori. In any case, it is undeniably beyond the power of any panel of this Court to disregard the well-reasoned precedent of our Supreme Court. For these reasons, we cannot concur in the arguments of the dissent.

CIRILLO, Judge,

dissenting:

I respectfully dissent. While I believe that a witness may be cross-examined as to matters tending to show interest or bias, in cases where the witness subject to cross-examination is also the victim, that victim should be treated differently from the ordinary witness. I, therefore, disagree with the majority’s conclusion that the trial court erred in precluding appellant from challenging the self-interest of the victim.

The liberalization of cross-examining witnesses creates a chilling effect on any victim of crime coming forth to testify. Mr. Demps was the victim in this case, and yet the defense was permitted to question him on unrelated matters to present the jury with a theory that he “might” try to obtain leniency in another case. While witnesses may come forth with the idea of gaining from their testimony, victims already have a vested interest in testifying, namely obtaining justice against their attackers. Victims do not look to be attacked in an effort to gain favor with prosecutors in their own cases. This decision reinforces the notion that victims should hesitate about coming forth.

This court, in determining that a defendant has the right to cross-examine a witness about pending charges, continues the progeny of case law established in Commonwealth v. Cobb, 409 Pa.Super. 168, 597 A.2d 714 (1991). I believe that while Cobb is factually analogous to the instant case, the rule of law it sets forth is incorrect. A proper examination of the law necessitates close examination of the court’s rationale.

In Cobb, Kenneth Cobb was charged with assault of Bonnie Rogers. Cobb had agreed to pay Rogers one hundred dollars if she drove him to Philadelphia to purchase drugs. When Rogers demanded her money, Cobb stuck her. This court determined that the trial court had erred in refusing to allow the defendant to question the victim/witness about outstanding charges against her. The court in Cobb relied on the Pennsylvania Supreme Court decision in Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), which held:

[W]henever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final criminal disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury. Even if the prosecutor has made no promises, either on the present case or on any other pending criminal matters, the witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution.

Id. at 224-25, 512 A.2d at 631-32 (emphasis added).

In Evans, the defendant wanted to cross-examine a co-defendant turning state’s evidence to determine whether the co-defendant was testifying to gain leniency in charges still pending against him. The court in Evans acknowledged the general rule barring admission of a witness’s unconvicted bad acts to determine whether a witness might be biased in his current testimony because of the possibility of lenient treatment on the other crimes. “No Pennsylvania case has allowed cross-examination concerning a witness’s ‘unconvicted bad acts’ to establish that a witness might hope for leniency.” Id. at 221, 512 A.2d at 630. The Pennsylvania Supreme Court proceeded to base its decision in Evans on what I perceive to be an incorrect departure by the Superior Court in its decision in Commonwealth v. Joines, 264 Pa.Super. 281, 399 A.2d 776 (1979).

In Joines, Joines wanted to cross-examine Furlong, a prosecution witness, about Furlong’s guilty plea to a charge of insurance fraud. Joines hoped to show that Furlong was allowed to withdraw his guilty plea and enter an ARD program in exchange for his testimony. The trial court refused to allow cross-examination on that topic, with the understanding that, according to Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969) and Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), only a witness under indictment for the same crime involved in the case in which he is testifying is permitted to be cross-examined about that incident. This court, in determining that the trial court had erred, deviated from the exceptions set forth in Ross and Coades, and determined that such exceptions were premised on only two requirements: “the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness leniency on the charges against him.” Joines, 264 Pa.Super. at 284, 399 A.2d at 778. A closer look at Commonwealth v. Warren, 250 Pa.Super. 522, 378 A.2d 1271 (1977), where the Pennsylvania Supreme Court explains its rationale for the exceptions set forth in Ross and Coades, illustrates the rather abrupt departure of the Joines court.

The rule seems to stand on two legs: necessity of an indictment; and necessity of same crime. The first leg is to ensure that there is some substance to the charge as to which leniency has allegedly been promised ... The second leg of the rule is to ensure that the prosecutor was able to promise leniency.

Warren, 250 Pa.Super. at 529, 378 A.2d at 1274 (emphasis added).

The court in Joines recharacterized Warren’s requirements; specifically, the court in Joines did not necessitate the witness be charged with the same crime. In my view, Joines erroneously extended the rule to allow the cross-examination of a prosecution witness who had been indicted on an unrelated charge. In Evans, the Supreme Court followed the Joines opinion, accepting the broadened applicability of bias cross-examination, namely, that a defendant could cross-examine any prosecution witness on any outstanding charge. Because I am of the opinion that this extension was improper, I feel that Cobb, too, (based on Evans) reached an incorrect result. The progeny of the aforesaid cases carrying out this broadened application of cross-examination bias, in my view, cannot be justified; this includes the case at hand. It should also be noted that neither the majority nor the concurrence has made an examination of whether or not the outstanding charge here is within the same jurisdiction, or if the prosecution has the power to promise leniency.

Should the law set forth in these cases continue to be followed by our courts, it will establish a society where a victim is discouraged from asserting a complaint; while a defendant’s past is protected, the victim will be forced to endure the disclosure of his own previous indiscretions, thereby increasing the chance that the victim will be denied justice. Additionally, when a defense attorney is permitted to attack the credibility of a victim/witness based on pending charges in another case, the prejudice of this revealed information far outweighs its probative value.

I would affirm the judgment of sentence. Accordingly, I dissent.

      . 18 Pa.C.S.A. § 3701.

      . Id. § 2702.

      . Id. § 907(a).

      . The foregoing pronouncement represents a thoughtful refinement of the exception permitting cross-examination regarding bias. In Commonwealth v. Coades, 454 Pa. 448, 311 A.2d 896 (1973), our Supreme Court held that a defendant was improperly precluded from cross-examining a co-indictee about that indictment. This questioning would have enabled the jury to evaluate whether the co-indictee was testifying for the Commonwealth to gain favorable treatment in his own case. Id. at 452, 311 A.2d at 898. The Court did not expressly restrict bias cross-examination to indictments for the same crime. A panel of this court thereafter extended the scope of the bias exception, requiring only "the existence of an indictment against the witness; and evidence that the prosecutor was able to promise the witness lenience on the charges against him.” Commonwealth v. Joines, 264 Pa.Super. 281, 284, 399 A.2d 776, 778 (1979), appeal dismissed, 498 Pa. 127, 445 A.2d 100 (1982). In Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986), the Supreme Court explicitly approved this court’s application of the law: "[The] Superior Court's interpretation of Coades, [as set forth in Joines ] thus broadened the applicability of bias cross-examination to include not only indictments for the same crime, but indictments for any crime within the same jurisdiction. We believe that the rule of Joines is correct....” Id. at 224, 512 A.2d at 631 (emphasis in original) (footnote omitted).

      . The remainder of the prosecution’s case was presented by investigating officers who had derived their testimony from the complainant. The officers found a shirt of appellant's that had cuts in the back consistent with the suggestion that complainant was the aggressor. See N.T. 5/16/94 at 45-46, 89-90. Consequently, outstanding criminal charges were relevant to show the victim’s bias and potential motive to lie about appellant’s status as aggressor.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    665 A.2d 1283
    Sarah L. EYERHARDT, Appellee, v. Clayton H. AKERLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1995.
    Filed Oct. 6, 1995.

      Samuel A. Kline, Lebanon, for appellee.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   CAVANAUGH, Judge:

This is an appeal from an Order dismissing appellant, Clayton H. Akerley’s exceptions to a recommended support order. Appellant proffers three arguments on appeal: 1) the late filing of exceptions was caused by his reliance upon erroneous information provided him by the Lebanon County Court of Common Pleas’ Domestic Relations Office; 2) a local rule allowing the court to rule on his exceptions without conducting a hearing violates Pa.R.C.P. 1910.12(g); and 3), the same local rule which permitted the court to dismiss his exceptions for failing to file a timely brief violates Pa.R.C.P. 239(f). After careful review, and for the reasons which follow, we reverse.

In March of 1994, Appellee Sarah L. Everhardt, instituted a modification of support proceeding for the party’s minor child. As a result of hearing held on June 3, 1994, the Domestic Relations Hearing Officer recommended an increase of the Appellant’s support obligation. Appellee was not present at this hearing, and appellant appeared but was not represented by counsel. Both parties were given notices by the Domestic Relations Office indicating that exceptions were to be filed within thirty (30) days of the Hearing Officer’s recommendation. The notice set July 5,1994 as the final day of thirty (30) day filing period.

After retaining counsel Appellant timely filed his exceptions to the recommendations of the Domestic Relations Hearing Officer on July 5,1994. On July 6,1994, the Court’s Domestic Relations section entered a Temporary Support Order and sent the parties a briefing schedule arranged pursuant to Lebanon County Local Rule 7. According to the schedule the appellant’s brief was to be filed no later than July 25,1994, the appellee’s brief was to be filed on August 4, 1994, and pursuant to the forty-five (45) day rule specified in Pa.R.C.P. 1910.12(g) the matter had to be decided before August 22, 1994.

Since appellant’s counsel did not represent him at the support hearing, a transcript request was filed upon the trial court stenographer on July 6, 1994. Instead of filing a brief on July 25,1994, appellant filed a Motion to Postpone Briefing Schedule because a transcript of the support hearing had yet to be filed with the Court. The motion was returned to appellant with a note from the Court advising him to consult Lebanon County Court of Common Pleas Administrative Order No. 1-93. This Administrative Order directs that all waivers of the forty-five (45) day rule must be signed by the parties and attorneys of record to be valid. On August 3,1994 the Court dismissed appellant’s exceptions because of his failure to file a brief by the July 25th deadline required by Local Rule 7.

On August 8, 1994 appellant filed a brief in support of his exceptions, without notice or knowledge that the trial court had already dismissed the exceptions on August 8, 1994. The brief was filed in time for the Court to render a decision before the expiration of the forty-five (45) day rule which ended August 22, 1995. Pa.R.C.P. Rule 1910.12(g). On August 11, 1994 the Court denied the Appellants request to consider his brief. This appeal followed.

Appellant argues that every action taken to file his exceptions was in conformity with the procedure required by the Lebanon County Court of Common Pleas and its Domestic Relations Section. The Appellant further argues that any lateness on his part was caused by his reliance upon erroneous information provided him by the Lebanon County Court of Common Pleas’ Domestic Relations Office. The Domestic Relations Office sent appellant (and appellee), a letter which stated:

If you plan to file exceptions, you must do so ... within thirty (30) days ... Your last date for filing exceptions is July 5,1994.

A postscript added, “Please note the prior letter gave the wrong date by which to file exceptions — the date on this letter is correct.” It is undisputed that appellant adhered to the filing deadline provided for in the letter and did, in fact, file his exceptions to the DRHO’s recommendations on July 5, 1994. The information appellant received in the letter, however, was inaccurate. Pursuant to Pa.R.C.P. 1910.12(e), exceptions must be filed within ten (10) days of the date of the DRHO’s report, not within thirty days thereafter as provided in the letter.

We believe that appellant’s tardiness should be excused since it occurred in reliance on inaccurate information generated by the court’s Domestic Relations Office. Our belief is buttressed by this Court’s reasoning in Fichthorn v. Fichthorn, 368 Pa.Super. 305, 533 A.2d 1388 (1987), where in a factually similar situation this Court stated:

We note that the parties’ exceptions appear to have been untimely filed. Pa.R.C.P. 1910.12(e) states that exceptions to the hearing officer’s report must be filed within ten days after the conclusion of the hearing. Matters not covered by the exceptions are deemed waived unless leave is granted to file exceptions raising those matters. Instantly, the Recommendation was dated December 26, 1986; however, both parties did not file their exceptions until January 7,1987,12 days later. Although normally we would consider the parties’ issues on appeal to have been waived, we are mindful that the notice of the Recommendation which was sent to the parties stated that they had until January 9,1987 to file exceptions. This permitted exceptions to be filed 14 days after the Recommendation. Since the parties obviously relied upon this erroneous representation, we shall excuse the tardiness inasmuch as it was due to the breakdown in the court’s machinery. However, we strongly caution the Domestic Relations Office of Lancaster County that the time constraints promulgated in Rule 1910.12(e) must be strictly complied with in the future.

Id., at 307, n. 1, 533 A.2d at 1388, n. 1.

The “breakdown in the court’s machinery” which occurred in Lancaster County in Fichthorn, has instantly re-emerged in Lebanon County, and is again in need of correction. Appellant’s exceptions, therefore, should not be dismissed. Rather, the Lebanon County Domestic Relations Office should be cautioned to consider the time constraints promulgated in Rule 1910.12(e).

The second issue raised by the appellant is that it was improper for the court to rule on his exceptions without conducting a hearing. Appellant alleges that Lebanon County’s Local Rule 7, which allows exceptions to be decided by the court on briefs only, conflicts with Pa.R.C.P. 1910.12(g), which requires the court to hear argument on exceptions. It is axiomatic that “if a local rule conflicts with a statewide rule of civil procedure, the local rule is invalid.” Rieser v. Glukowsky, 435 Pa.Super. 530, 541, 646 A.2d 1221, 1226 (1994). See also Murphy v. Armstrong, 424 Pa.Super. 424, 429, 622 A.2d 992, 995 (1993); Stock v. Arnott, 415 Pa.Super. 113, 120, 608 A.2d 552, 555 (1992); Nuttall v. Nuttall, 361 Pa.Super. 320, 324, 522 A.2d 603, 604 (1987). In the case sub judice, the lower court, contrary to the statewide rules, dismissed appellant’s exceptions without hearing oral argument on the matter. Therefore, since the rules in question are in facial conflict we believe the statewide rule of civil procedure must govern and the local rule invalidated to the extent that it is in conflict with 1910.12(g).

The third argument appellant raises is that the court’s decision to dismiss his exceptions based on his failure to file a brief violates Pa.R.C.P. 239(f). This rule precludes a trial court from dismissing a proceeding based on a party’s failure to comply with a local rule. Pa.R.C.P. No. 239(f). Again Lebanon County Rule 7 is at issue. In addition to setting the briefing deadlines, Rule 7 permits a judge to dismiss an action if the deadlines are not met.

Lebanon County Rule 7 captioned “Argument Court. Listing and Procedure”, provides in pertinent part:

C. Briefs.
1. In all matters listed for argument, the proponent shall file ... copies of the brief with the Prothonotary or Clerk of Court ... at least fifteen (15) days before the date fixed for argument court.
2. The opponent shall file ... [a] brief at least five days before the date fixed for argument
D. Default.
2. Upon submission of a written demand for oral argument:
(a) If the proponent has not filed a brief pursuant to the proceeding rule of the court, the matter may be dismissed as of course, or the Court may direct other appropriate action.

In contrast Pa.R.Civ.P. 239(f) which controls over any inconsistent local rule provides:

No civil action or proceeding shall be dismissed for failure to comply with a local rule other than one promulgated under Rule of Judicial Administration 1901.

Rule 1901 of the Pennsylvania Rules of Judicial Administration provides in pertinent part:

RULE 1901. PROMPT DISPOSITION OF MATTERS; TERMINATION OF INACTIVE CASES
(a) General Policy. It is the policy of the unified judicial system to bring each pending matter to a final conclusion as promptly as possible consistently with the character of the matter and the resources of the system. Where a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.
(c) Minimum Standards. Before any order terminating a matter on the ground of unreasonably inactivity is entered, the parties shall be given at least 30 days’ written notice of opportunity for hearing on a proposed termination ...

This rule of judicial administration was promulgated to foster the elimination of stale cases from the judicial system. See Pa.R.J.A. 1901 (Note). Since this case was not “inactive for an unreasonable period of time”, the trial courts dismissal cannot be justified on the basis of Pa.R.J.A. No. 1901. The appellant failed to file his brief at least fifteen (15) days prior to the argument date as required under Local Rule 7. Consequently, the court, using its discretion under Local Rule 7, dismissed his exceptions to a recommended support order, and denied consideration of his brief in support thereof. The court’s dismissal pursuant to Local Rule 7 was contrary to Pennsylvania Rule of Civil Procedure 239(f). The language of Rule 239(f) is undeniably clear when it states “No action or proceeding shall be dismissed for failure to comply with a local rule....” Pa.R.C.P. 239(f).

We note that our courts had upheld Local Rules such as Rule 7 which afford to the trial judge discretion in determining whether a case is to be dismissed for failure to file a timely brief. This was specifically addressed by the Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Co., 501 Pa. 234, 460 A.2d 1093 (1983), wherein the court struck down a Montgomery County local rule that mandated an automatic dismissal for failure to file a brief.

In Brogan, the Supreme Court implicitly held that a trial court must exercise discretion before dismissing an action based on a failure to comply with a local rule requiring the filing of a brief. Id. at 242, 460 A.2d at 1097. However, since Brogan was decided before Pa.R.C.P. 239(f) was enacted, the Supreme Court only considered whether the.local rule was contrary to the general policy of Pa.R.C.P. No. 126. Id.

Shortly after the Brogan decision, the Supreme Court promulgated Pa.R.Civ.P. No. 239(f) which specifically addressed dismissal of cases pursuant to local rules. This Court interpreted Rule 239(f) to be a stricter standard than Brogan and, in effect precluding dismissal of any case based on a violation of a local rule, regardless of a court’s use of discretion (except inactive cases under Pa.R.J.A. No. 1901). Murphy v. Armstrong, 424 Pa.Super. 424, 432, 622 A.2d 992, 996-97.

In Armstrong, the trial court sustained defendant’s preliminary objections and dismissed plaintiffs complaint because plaintiff failed to file a brief pursuant to a local rule of civil procedure. We held that the Supreme Court’s promulgation of 239(f) went further than Brogan, and made it clear that “[t]he sanction of dismissal for noncompliance with ... [a local rule] ... is unauthorized ... and therefore has no legal effect”. Armstrong at 429, 622 A.2d at 995. We stated:

Although Brogan held that a court must exercise its discretion in determining whether to dismiss an action to the party’s failure to comply with a local rule requiring the filing of a brief, the Supreme Court’s more recent pronouncement, in the form of Rule 239(f), which became effective less than 2 months after the Brogan decision, strictly prohibits the dismissal of cases for noncompliance with local rules. This stricter, later Supreme Court action prevails. Pursuant to Rule 239(f), as opposed to Brogan, a local rule may not provide for dismissal (except for dismissal of inactive cases), even if dismissal is said to be discretionary as opposed to automatic.

Armstrong, at 432, 622 A.2d at 996-997. In the case sub judice, the trial court erred in dismissing appellant’s exceptions and subsequent brief in support thereof, because the dismissal pursuant to Lebanon County Rule 7 contravenes Pennsylvania Rule of Civil Procedure 239(f).

Having reviewed the issues raised, and having found: the exceptions to be timely filed; that the court erred in not holding a hearing; and erred dismissing exceptions because of an untimely brief; we reverse, and remand for disposition of the exceptions nunc pro tunc.

Order reversed. Case remanded. Jurisdiction relinquished.

      . Local Rule 7 provides in pertinent part:
      D. Default.
      1. All cases on the argument list shall be determined to have been submitted to the court for disposition on the briefs unless a party serves upon the prothonotary and opposing counsel, a written demand for oral argument not less than ten (10) days prior to argument court.

        Id. (emphasis added).
      However, Pa.R.C.P. 1910.12(g) provides:
      If exceptions are filed, ... [t]he court shall hear argument on the exceptions ...

        Id. (emphasis added).

      . Although we find Local Rule 7 incompatible with Pa.R.C.P. 1910.12(g), Rule 7 would appear to be acceptable if the presumption was for oral argument, as opposed to disposition merely on the briefs. The rule, if the lower court so chooses, could provide for waiver of argument upon stipulation by the parties.

      . Rule 126. Liberal Construction and Application of Rules
      The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
      Adopted May 1, 1939, effective Nov. 6, 1939. Amended and effective April 18, 1975.


author: SAYLOR, Judge:

text:
    665 A.2d 1288
    Dominique D. SKIPWORTH, a Minor, by Her Legal Guardian, Pandora Williams, and Her Mother and Co-Legal Guardian, Ernestine Richardson, Appellants, v. LEAD INDUSTRIES ASSOC., INC., NL Industries Inc., Atlantic Richfield Company, Sherwin Williams Company, SCM Corporation, The Glidden Company, E.I. Dupont De Nemours & Co., Tin Lion Enterprises Inc., Joseph F. Fillion and Francis Fillion, George W. Keehfus, Jr., City of Philadelphia Department of Health, Appellees.
    Superior Court of Pennsylvania.
    Argued April 24, 1995.
    Filed Oct. 13, 1995.

      Lawrence Cohan, Philadelphia, for appellants.
    Robert C. Heim, Philadelphia, for Atlantic Richfield Company, appellee.
    Before ROWLEY, President Judge, and TAMILIA and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County entering summary judgment in favor of certain lead pigment manufacturers in this action for personal injuries sustained by Appellant, Dominique Skip-worth, after she ingested deteriorated paint which contained lead. We affirm.

Appellant was born on September 18, 1988, and was hospitalized for lead poisoning on three separate occasions between December 10, 1990 and May 8, 1991. She also received outpatient therapy for lead poisoning in August, 1991, and again in June, 1992. During this time, she resided at only one home, located at 2840 West Stiles Street in Philadelphia, which was rented by her guardian, Pandora Williams. This residence was estimated to have been built in or about the year 1870. Testing of Appellant’s residence revealed the presence of lead-based paint at various locations throughout the home.

On March 17, 1992, Appellant sued five former manufacturers of lead pigment or their alleged successors (“the pigment manufacturers”), and a trade association, Lead Industries Association, Inc. (“LIA”). Appellants alleged that Skipworth suffered physical and neuropsychological injuries as a result of lead poisoning. Appellants stipulated that they could not identify the manufacturer of the lead pigment which Skipworth ingested, and admitted that they could not identify when such pigment was made, sold, or applied to her home. However, Appellants alleged that they had identified and joined in this action substantially all of the manufacturers of lead pigment used in residential house paint from 1870 until production of lead pigment ceased in 1977, and proceeded against the pigment manufacturers and the trade association by invoking theories of collective liability, namely, market share liability, alternate liability, conspiracy, and concert of action.

The pigment manufacturers and LIA filed a motion for summary judgment contending, inter alia, that Appellants were unable to identify the manufacturer of the lead pigment which allegedly caused Skipworth’s injuries, and that there was an insufficient basis upon which a jury could be permitted to find that she was poisoned and injured by ingesting lead-based paint. Appellants responded that the issues presented questions of fact to be decided at trial, and should not be decided as a matter of law on a motion for summary judgment. Following a hearing, the trial court granted summary judgment in favor of the pigment manufacturers and LIA. This appeal followed.

On appeal, Appellants contend that the case should have been submitted to a jury using one of the asserted theories of collective liability, and argue that the trial court erred in concluding that: (1) market share liability has not been adopted and is not viable in Pennsylvania; (2) this case does not meet the requirements for market share liability under Pennsylvania law; and (3) Appellants’ claims for alternative liability, conspiracy, and concert of action are not applicable to this case.

In reviewing motions for summary judgment, Pennsylvania courts apply the following standard:

Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. No. 1035(b). “The record must be viewed in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991). Summary judgment may be entered only in those cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989).

Pennsylvania State Univ. v. County of Centre, 532 Pa. 142, 144-145, 615 A.2d 303, 304 (1992); accord, Anderson v. Moore, 437 Pa.Super. 642, 645, 650 A.2d 1090, 1092 (1994).

In their first issue on appeal, Appellants contend that market share liability is a viable theory of recovery in Pennsylvania. In order to maintain a products liability action, a plaintiff must establish a reasonably close causal connection between a particular product manufactured by a defendant and the injuries sustained by that plaintiff. Mellon v. Barre-National Drug Co., 431 Pa.Super. 175, 184, 636 A.2d 187, 191-192 (1993); see also, Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 16, 495 A.2d 963, 967 (1985). With respect to causation, a plaintiff must prove that a particular product of a defendant manufacturer caused his injuries. Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991). Without such identification a plaintiff cannot allege legal causation, and there can be no liability. See, Mellon v. Barrel-National Drug Co., supra, citing Cummins v. Firestone Tire and Rubber Co., supra, 344 Pa.Super. at 18, 495 A.2d at 967-968.

Some jurisdictions have created an exception to this general rule requiring identification of the manufacturer of the harmful product under a theory known as market share liability, which was first developed by the California Supreme Court in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 163 Cal.Rptr. 132, 607 P.2d 924 (1980). The Sindell case involved a plaintiff who developed cancer as a result of her mother’s ingestion during pregnancy of Diethylstilbestrol (“DES”), a drug with an identical formula manufactured by several different companies. Because of the inability to trace the source of the DES due to its fungible nature and the long time lapse between its sale and the development of health problems, the plaintiff was unable to identify, through no fault of her own, the manufacturer of the DES ingested by her mother. The Sindell court concluded that the plaintiff need not identify the manufacturer of the DES which caused her injury, and held that manufacturers of products identical to the one that harmed a plaintiff are liable to that plaintiff in proportion to their respective market share, regardless of actual causation.

Pennsylvania has not, however, adopted the use of market share liability as a theory of recovery. In City of Philadelphia v. Lead Industries Asso., 994 F.2d 112 (3rd Cir.1993), the City of Philadelphia and the Philadelphia Housing Authority sued certain manufacturers of lead pigment and their trade association to recover the costs of abating the hazards of lead-based paint which the plaintiffs had to incur pursuant to federal regulations. The Third Circuit Court of Appeals analyzed Pennsylvania case law and concluded that the use of market share liability, alternative liability, and enterprise liability in lead paint litigation would be a significant departure from the requirement that a plaintiff prove proximate cause:

The Supreme Court of Pennsylvania has never embraced, rejected, or even discussed market share liability. The only Pennsylvania state court that has allowed a plaintiff to utilize market share liability instead of identifying the manufacturer who produced the defective, injury-causing product was a trial court. See: Erlich v. Abbott Lab., 5 Phila. 249 (C.P.1981). Erlich also was a DES case. There, the Court of Common Pleas found that market share liability is appropriate when: (1) all defendants are tortfeasors; (2) the allegedly harmful products are identical and share the same defective qualities; (3) plaintiff is unable to identify which defendant caused her injury through no fault of her own; and (4) the manufacturers of substantially all of the defective products in the relevant area and during the relevant time are named as defendants____ Neither the Superior Court nor the Commonwealth Court, Pennsylvania’s intermediate appellate courts, has permitted a plaintiff to proceed using the theory of market share liability---- After canvassing all relevant Pennsylvania law, we have found only a decade-old, trial court opinion that has permitted a plaintiff to proceed under a theory of market share liability. This lone decision is insufficient to establish market share liability as a recognized exception to the proximate cause requirement under Pennsylvania law. Nor has there been a clear authoritative signal that the Pennsylvania Supreme Court would adopt market share liability. No nationwide consensus that market share liability should be embraced exists, as evidenced by the split of authority among the highest state courts that have addressed this issue.

Id., 994 F.2d at 124-125 (footnotes omitted).

The Third Circuit’s analysis of the status of market share liability in Pennsylvania was quoted most recently by the Superior Court in Mellon v. Barre-National Drug Co., 431 Pa.Super. 175, 636 A.2d 187 (1993), in which the court concluded that the plaintiff could not utilize market share liability in the absence of evidence of the use of a particular manufacturer’s product by the plaintiff. In Melbn, the plaintiff was unable to identify the manufacturers of syrup of ipecac, a drug used to induce vomiting, which was allegedly purchased by the plaintiffs decedent at various locations, and was ingested by her on numerous occasions to lose weight, ultimately resulting in her death. Although the court in Mellon based its conclusion on the failure of the plaintiff to satisfy two of the elements necessary to impose market share liability and thus did not reach the issue of whether market share liability should be adopted in Pennsylvania, it noted that:

“[E]xtensive policy shifts of this magnitude should not be initiated by an intermediate appellate court. The appropriate tribunal to accomplish such drastic changes is either the Supreme Court or the Legislature.”

Mellon v. Barre-National Drug Co., supra, 431 Pa.Super. at 186 n. 3, 636 A.2d at 192 n. 3, quoting Cummins v. Firestone Tire and Rubber Co., 344 Pa.Super. 9, 24 n. 6, 495 A.2d 963, 971 n. 6 (1985).

Accordingly, since neither our Supreme Court or legislature has adopted market share liability as a theory of recovery in products liability actions, and since Appellants stipulated that they are unable to identify the manufacturer of any of the lead pigment found in the paint at Skipworth’s residence which was ingested by her and allegedly caused her injuries, they are unable to satisfy their burden of proof with respect to causation, and summary judgment was properly granted.

Appellants also contend that the trial court erred in declining to apply the theories of alternative liability, conspiracy and concert of action in this case.

The theory of alternative liability holds that where tortfeasors are unable to prove that they have not caused the harm suffered by a plaintiff, they will be held jointly and severally liable for the plaintiff’s injury. Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970); Sommers v. Hessler, 227 Pa.Super. 41, 323 A.2d 17 (1974); see also, Restatement (Second) of Torts § 433B(3) (1965). In Snoparsky, the plaintiff was injured when several individuals threw stones, and one of the stones struck the plaintiff. In Sommers, the plaintiff lost his eyesight during a spitball fight on a school bus, and collected damages from each defendant who participated in the fight and could not prove that they did not cause harm to the plaintiff. In both cases, the plaintiffs could proceed under alternative liability because the tortious conduct of each defendant was simultaneous and identical, and the plaintiffs joined all potential tortfeasors as defendants.

Here, the alleged tortious conduct of the pigment manufacturers did not occur simultaneously with the harm suffered by Skipworth since they made and sold various lead pigment products at different times throughout the 100-year period at issue. Moreover, the application of alternative liability in this case would serve to transform this theory into market share liability, the difference being that a defendant who could not prove that its product was not used in Skipworth’s residence would be unreasonably exposed to joint and several liability. See, City of Philadelphia, supra. Thus, the trial court did not err in declining to apply the concept of alternative liability in this case.

Appellants contend that the theories of conspiracy and concert of action, which impose liability on a defendant who acts as a co-conspirator or accomplice to another wrongdoer, are applicable in this case because the pigment manufacturers ratified decisions to manufacture hazardous products and suppressed information regarding the dangers of their products. However:

[T]he law of this Commonwealth forecloses the assertion of a cause of action for concerted action where the plaintiff is unable to isolate a particular manufacturer as a causative agent of his injuries.

Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 284, 505 A.2d 973, 984 (1985). Here, Appellants are unable to identify the manufacturer of any of the lead pigment found in the paint at Skipworth’s residence that was ingested by her and allegedly caused her injuries. Thus the trial court correctly determined that the theories of conspiracy and concert of action were not applicable in this case.

Because we have concluded that the trial court did not err in foreclosing Appellants’ theories of collective liability, the order granting summary judgment in favor of the pigment manufacturers and LIA is affirmed.

Order affirmed.

      . Dominique Skipworth, a minor child, filed this action through her legal guardian, Pandora Williams, and her co-legal guardian and mother, Ernestine Richardson. For ease of reference, we will hereinafter refer to the plaintiffs in this action collectively, where appropriate, as "Appellants,” and to the minor child, where appropriate, as "Skip-worth.”

      . The manufacturers of lead pigment sued by Appellant included NL Industries, Inc., Atlantic Richfield Company (as the alleged successor-in-interest to International Smelting & Refining Company), The Sherwin-Williams Company, SCM Corporation (as the alleged successor-in-interest to The Glidden Company), and E.I. du Pont de Nemours and Company.

      . In addition. Appellants sued the owners of Skipworth's residence, Tin Lion Enterprises, Joseph F. Fillion, and Francis Fillion, and the manager of the property, George Keehfuss, alleging that they had failed to warn Appellants about the presence of lead paint, failed to remove the lead paint before Skipworth moved in, and thereafter removed it in a dangerous manner. Appellants also sued the City of Philadelphia, Department of Health, which allegedly inspected Skipworth’s home for lead paint.

      . Although concluding that market share liability has not been adopted by Pennsylvania courts, the trial court nevertheless analyzed Appellants’ cause of action by reviewing the elements necessary to recover under a theory of market share liability. The trial court concluded that Appellants were unable to prove that the allegedly harmful products were identical, and that it was not clear whether the manufacturers of substantially all of the defective products during the relevant time were included in the action.


author: BECK, Judge:

text:
    666 A.2d 281
    Meltem Umar DINCER, Appellant, v. Fehmi DINCER, Meltem Umar DINCER, v. Fehmi DINCER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 3, 1995.
    Filed Sept. 5, 1995.
    Reargument Denied Nov. 13, 1995.

      Douglas B. Breidenbach, Jr., Pottstown, for Meitem Umar Dincer.
    Albert C. Oehrle, N orristown, for Fehmi Dincer.
    Before BECK, SAYLOR and HESTER, JJ.
   BECK, Judge:

The issue in this case is whether the trial court properly declined jurisdiction of the parties’ custody dispute based on a finding that Belgium is the “home state” of the children under 23 Pa.C.S. § 5344(a)(1)(i) and that Pennsylvania could not properly assume jurisdiction under any other provision of 23 Pa.C.S. § 5344.

In reaching its conclusion, the trial court did not make findings of fact concerning allegations that the children’s father intended to remove them from Belgium to Turkey if he were given custody, and did not consider whether, in light of those allegations and the tenuous connection of the children to Belgian society despite their residence there, it was in the children’s best interest for custody to be determined by the Belgian courts. We hold that on this record, the trial court erred in concluding that Pennsylvania had no basis for exercising jurisdiction, and in failing to weigh the competing claims for jurisdiction between Pennsylvania and Belgium under the policies underlying the Uniform Child Custody Jurisdiction Act (“UCCJA”), 23 Pa.C.S. §§ 5341-5366.

The parties are husband and wife. Meitem Umar Dincer (“Mother”) is a United States citizen of Turkish ancestry who was born and raised in Montgomery County, Pennsylvania. Fehmi Dincer (“Father”) is a Turkish citizen. The parties met in the United States while Father was a student at Drexel University. They married in Ankarrah, Turkey in November, 1981. Immediately thereafter the couple moved to Belgium, where Father had a position as a civilian employee of NATO. The family continued to reside in Belgium, first on the NATO base and then in off-base housing nearby, until December, 1994.

The parties have three children: a girl, Cigdem, born in 1985; a boy, Alper, born in 1986; and another girl, Aylin, born in 1991. All three children were born in Belgium and have lived there since their birth. The two older children attended a British school on the NATO base and the youngest child started kindergarten shortly before the initiation of this action.

Each year since the marriage, Mother, accompanied by the children after their birth, would spend a month in Montgomery County with Mother’s parents. The entire family also spent a month in Turkey with Father’s family each year. The family was also visited in Belgium by the maternal grandparents once or twice a year.

On December 8, 1994, Mother and the children left Belgium for a three-week visit with the maternal grandparents in Montgomery County, holding round-trip tickets with the return flight scheduled for December 28. Once in the U.S., however, Mother decided not to return to Belgium or to allow the children to return. She commenced the instant custody action on December 23, 1994 by filing a complaint for custody and a petition for special relief in the Montgomery County Court of Common Pleas. The petition for special relief was granted on an emergency basis ex parte and on December 23, 1994, the Montgomery County court entered an order awarding custody to Mother “on a temporary basis, without prejudice” pending further order of court. Service upon Father of the complaint for custody and the petition for special relief, accompanied by the court’s order, was accomplished on January 16, 1995. A hearing on the question of jurisdiction over the custody complaint was scheduled for March 6, 1995 and notice thereof was served on Father on February 16, 1995.

On February 1, 1995, Father commenced divorce and custody actions in Belgium. The summonses in these actions were served on Mother in the U.S. on February 6. The Belgian court scheduled a hearing in the matter for February 22 and 23, notice of which was also served on Mother prior to the hearing date. However, Mother did not appear, either personally or through counsel. The Belgian court accepted evidence from Father, and on March 1, 1995 issued an order awarding “provisional” custody of all three children to Father.

Prior to the scheduled March 6 hearing in Montgomery County, Father apparently provided the Montgomery County court and Mother’s counsel with copies of a motion to vacate the December 23 order granting custody to Mother. That motion apparently asserted that Montgomery County was an inconvenient forum in which to determine custody, that Belgium was a more appropriate forum, and that the Belgian order of March 1 should be recognized and enforced. The hearing was held as scheduled, and the court received testimony from both Father and Mother.

Following the conclusion of the hearing and argument by counsel on March 7, the court entered an order finding that it had no jurisdiction to determine custody, that such jurisdiction properly lay in Belgium, and that the Belgian order of March 1 was a predetermination of custody which should be given comity because the Belgian court had jurisdiction over both the parties and the subject matter. The court’s order also refused Father’s requests for fees and costs and, sua sponte, granted a supersedeas pending an expedited appeal to this court. Mother thereafter timely appealed the court’s findings regarding jurisdiction, and Father filed a cross-appeal challenging the trial court’s denial of fees and costs and its grant of a supersedeas.

Mother’s appeal at No. 90k Philadelphia 1995

In its opinion, the trial court based its conclusions regarding jurisdiction on a finding that Belgium was the “home state” of the children as defined in 23 Pa.C.S. § 5343 and thus a proper jurisdiction for determination of custody-under 23 Pa.C.S. § 5344(a)(1)(i) (providing for “home state” jurisdiction), while Pennsylvania lacked any basis for assuming jurisdiction under either 23 Pa.C.S. § 5344(a)(2) (providing for “significant connection” jurisdiction) or 23 Pa.C.S. § 5344(a)(3) (providing for “parens patriae” jurisdiction). We agree with the trial court that Belgium meets the UCCJA definition of home state, since the children had lived there for their entire lives prior to December, 1994. However, this court has frequently made it clear that the determination of “home state” does not end the inquiry. This court has found that the “home state” is not always the most appropriate jurisdiction for a determination of custody. See, e.g., Hattoum v. Hattoum, 295 Pa.Super. 169, 441 A.2d 403 (1982) (Pennsylvania properly assumed jurisdiction although Argentina was children’s home state). This is particularly true where the parties have recently left their residence in the “home state” or intend to do so in the near future. See Tettis v. Boyum, 317 Pa.Super. 8, 463 A.2d 1056 (1983) (Pennsylvania court properly assumed jurisdiction although Texas was children’s home state and father listed Texas as intended permanent residence where father had been transferred to military posting in another state and children were physically in Pennsylvania); Gulla v. Fitzpatrick, 408 Pa.Super. 269, 596 A.2d 851 (1991) (in determining whether Rhode Island or Pennsylvania was preferable state to exercise jurisdiction, court considered not only fact that mother and child resided in Rhode Island, but also that record showed no intention to move from that state).

Although technically Belgium qualifies as the “home state” because of the length of time the children have lived there, the court must determine if other considerations trump the technical “home state” qualification. Mother has alleged that Father intends to move from Belgium to Turkey at some time in the near future. In support of this allegation, she testified that Father has purchased a home in Turkey, maintains a bank account there, and has forced the family to associate primarily with other Turks in Belgium and to maintain and promote Turkish culture in the home to the exclusion of American culture. Father did not deny his intention to move to Turkey or his preparations to do so, but testified that he does not intend to move immediately and that the preparations he has made in Turkey were to facilitate the family’s move there if at some time in the next few years he should lose his NATO job due to reductions in force. He also testified that while he encourages his children to learn about Turkish culture, he does not prevent them from speaking English, viewing American videotapes, or having American or English friends. The trial court made no findings regarding the credibility of these conflicting versions of the Dincers’ present family life, nor did it make a finding on a key issue, Father’s intentions regarding his future residence in Turkey. Such findings were necessary in order for the court properly to weigh the importance of Belgium’s status as “home state” against the possible bases for Pennsylvania to assume jurisdiction.

Ordinarily, under the UCCJA, the “home state” is the forum most appropriate to assume jurisdiction. Black v. Black, 441 Pa.Super. 358, 657 A.2d 964 (1995). However, a determination of the “home state” does not necessarily end the inquiry. Hattoum v. Hattoum, supra; Tettis v. Boyum, supra. The trial court therefore acted prematurely in concluding that Pennsylvania had no basis for exercising jurisdiction under the UCCJA. In particular, we find that the trial court erred in concluding there was no basis for the assumption of jurisdiction under the significant connection standard of 23 Pa.C.S. § 5344(a)(2). The trial court found that although Mother has clear ties to this jurisdiction, the children themselves have no significant connection with Pennsylvania. In making this determination, the trial court applied the standards of section 5344(a)(2) too mechanically. It also failed to consider how the children’s ties to Pennsylvania compared with their ties to Belgium, the other forum in which jurisdiction might properly lie. Section 5344(a)(2) of the UCCJA allows a Pennsylvania court to assume jurisdiction if:

it is in the best interest of the child that a court of this Commonwealth assume jurisdiction because:
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this Commonwealth; and
(ii) there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the child.

23 Pa.C.S. § 5344(a)(2).

The UCCJA does not define the term “significant connection.” However, in light of the introductory language of section 5344(a)(2) referring to the best interest of the child, it is clear that the “significant connection” requirement must be applied flexibly, taking into account the unique circumstances of the particular child or children.

In deciding whether the “home state” provision controls jurisdiction, or whether another state significant connections warranting assumption of jurisdiction, the stated purposes of the UCCJA must be considered. 23 Pa.C.S. § 5342(b). These purposes include “cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child,” 23 Pa.C.S. § 5342(a)(2) (emphasis added), and assuring that custody litigation “takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training and personal relationships is most readily available, and that courts of this Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state,” 23 Pa.C.S. § 5342(a)(3) (emphasis added). These policies clearly call for a weighing process rather than a mechanical application of inflexible rules in determining the appropriate jurisdiction for decision of custody issues.

Thus in determining whether Belgium should assume jurisdiction, the court erred in applying the “home state” provision mechanically. In this case with so many competing interests at stake, it was necessary for the court to evaluate the degree to which the children’s contacts with Belgium outweigh their significant connections with Pennsylvania.

The Dincer children, since their births, have had regular and ongoing contact with Pennsylvania through their own visits here as well as through their mother and their maternal grandparents. The children spent at least one month of each year in Pennsylvania, and were visited by the maternal grandparents, who are and have for many years been Pennsylvania residents, once or twice each year. Their mother was born in Pennsylvania and resided here until her marriage. Moreover, the children themselves have been physically present in Pennsylvania since December of 1994 and have attended school in Pennsylvania since January, 1994. Evidence regarding their care and schooling for that period, as well as their past and present relationships with their maternal relatives, is thus available in Pennsylvania.

Part of the inquiry to determine if significant connections exist under section 5344(a)(2)(H) requires an evaluation of whether “there is available in this Commonwealth substantial evidence concerning the present or future care, protection, training and personal relationships of the children.” As we have pointed out, such evidence is available in Pennsylvania. It is also available in Belgium. However, if, as Mother alleges, Father intends to leave Belgium in the near future, the significance of the records available in Belgium as a factor in determining jurisdiction is substantially weakened. In that situation, the Belgian records would apply only to the children’s past care, protection, training and personal relationships, and would have little probative value on issues relevant to the children’s welfare in Turkey or some other country where they might reside in the future.

Although extended residence in a jurisdiction is sufficient, standing alone, to meet the technical requirements of “home state” jurisdiction, long-time residence alone is not enough to establish that the jurisdiction of residence is that with the closest connection to the child. As we have discussed, both Pennsylvania and Belgium have some significant connection with the Dincer children. The unique facts of this case require the court to make special inquiry into the extent and quality of the children’s contact with their “home state” jurisdiction before determining that custody should be decided there.

The Dincer children were born in Belgium and resided there until December 1994. However, despite their physical presence in Belgium, they had little or no actual contact with Belgian institutions or Belgian society. The children are not Belgian citizens; instead, they hold dual citizenship in the United States and Turkey. They resided for much of their lives on the NATO base, an international community set apart from the mainstream of Belgian society. The schools that they attended were also affiliated with NATO and were not part of the Belgian school system. The children do not speak French, the primary language of Belgium, and their friendships in Belgium, like those of their parents, were mostly with individuals of Turkish, American or British citizenship. Although the children have lived in Belgium for a long time, the court must question whether length of time should take precedence over other considerations.

If Father intends to move the children from Belgium to Turkey, the weight to be given Belgium’s status as “home state” is substantially weakened and the children’s contacts with Pennsylvania may rise to the level of a “significant connection” in light of their relatively weak connection with Belgium. Moreover, under such circumstances it would clearly be in the children’s best interest for Pennsylvania to exercise jurisdiction as Pennsylvania, the state of Mother’s future residence, will be able to assure that the children have continuing contact with both parents, while the Belgian courts would have great difficulty in doing so once Father left the country. The trial court should have more fully examined the facts and weighed these competing considerations before concluding that jurisdiction over this custody dispute lay in Belgium.

In light of the above discussion, we vacate the trial court’s order and remand this case for further proceedings consistent with this opinion.

Father’s appeal at No. 905 Philadelphia 1995

Father first challenges the trial court’s sua sponte grant of a supersedeas maintaining the status quo while Mother took this expedited appeal. He maintains that under the standards enunciated in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 467 A.2d 805 (1983), the supersedeas was improperly granted.

Process Gas and its progeny provide that a party seeking a stay must show: 1) a likelihood that petitioner will prevail on the merits of the appeal; 2) that without such relief, petitioner would be irreparably harmed; 3) that issuance of a stay would not substantially harm other parties to the proceedings; and 4) that issuance of the stay would be in keeping with the public interest. Under these standards, we have no difficulty in concluding that the trial court properly granted the supersedeas in this case.

As our discussion of Mother’s appeal has demonstrated, the application of the UCCJA to this matter requires careful consideration of the particular facts of this case and a delicate application of the policies and principles of the UCCJA. Under these circumstances, even a trial court confident of its own determination of the jurisdictional issue would have been well aware that its determination would be subject to painstaking appellate review and that such review might change the outcome of the case.

Moreover, in light of Mother’s allegations regarding Father’s intentions to take the children to Turkey, where she would have little recourse in her efforts to gain custody, there was clearly a potential for irreparable harm both to her interests and to those of the children if the stay were not granted. Father’s interests, on the other hand, would be little harmed by the delay in effectuating his rights under the trial court’s order while this appeal went forward, particularly since the trial court directed that Mother take her appeal on an expedited basis.

Finally, the public interest in this case clearly lies with protecting the children’s best interests. The grant of a stay pending appellate review to ensure that the trial court’s jurisdictional determination was correct and that the children’s custody would be adjudicated by the court best able to determine their best interest was thus entirely in keeping with the public interest in this case.

All four of the Process Gas factors thus weigh in favor of the grant of a supersedeas in this case. Therefore, the trial did not err in granting the supersedeas.

Father also argues that the trial court erred in refusing to award him costs and fees incurred in participating in the Pennsylvania action. Section 5348(g) of the UCCJA provides that “[i]f it appears to the court that it is clearly an inappropriate forum, it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this Commonwealth, necessary travel and other expenses, including attorney fees, incurred by other parties or their witnesses.” 23 Pa.C.S. § 5348(g). In light of our discussion both of Mother’s appeal and of the supersedeas issue raised by Father, it is apparent that this case is not one in which Pennsylvania is “clearly an inappropriate forum.” The unusual facts of this case make the determination of jurisdiction a particularly thorny issue. We thus cannot conclude that, despite the trial court’s resolution of the jurisdictional issue in Father’s favor, it was an abuse of discretion for the trial court to find that the resolution of this case was not so clear as to justify an award of costs to Father.

Conclusion

In light of the above discussion, we vacate the portion of the order which determined that jurisdiction of this custody dispute properly lies in Belgium, and we remand for further proceedings consistent with our discussion of Mother’s appeal. We affirm the portions of the trial court order granting the supersedeas and denying Father’s request for costs and fees. Pending a redetermination of jurisdiction on remand, the emergency order granting mother temporary custody, entered by the Montgomery County Court of Common Pleas on December 23,1994, is reinstated.

Order affirmed in part, vacated in part. Case remanded for further proceedings consistent with this opinion. The Order of the Montgomery County Court of Common Pleas dated December 23, 1994 is reinstated pending a decision on remand. Jurisdiction is relinquished.

      . Although this motion is referred to in the transcript of the March 6 hearing and Mother has included a copy of the motion in her supplemental reproduced record, the original record certified by the trial court does not include the motion and the trial court docket entries do not reflect that such a motion was filed. It thus appears that although the motion was served on the trial court and the opposing party, it was never properly filed with the Prothonotary. However, since the trial court granted relief on the basis of the petition, we will overlook this procedural defect and review the trial court's grant of the motion on its merits.

      . In making this determination, the trial court relied in part on this court's decision in Hovav v. Hovav, 312 Pa.Super. 305, 458 A.2d 972 (1983). That reliance was based on too superficial an analysis of the similarities between Hovav and the instant case.
      In Hovav, we held that the trial court properly declined jurisdiction of the parties’ custody dispute where mother, a U.S. citizen who had lived for several years in Israel and had married and borne two children there, brought the children to Pennsylvania on a visit and refused to return them to Israel. Hovav thus appears similar on its facts to the Dincers' case. However, two important factors distinguish the instant case from Hovav.

        First, in Hovav, the mother's institution of divorce and custody proceedings in Montgomery County was a clear violation of a written agreement she had entered into with her husband prior to her departure with the children from Israel. The agreement provided that she would not .begin divorce proceedings in the United States, that she would return the children to Israel, and that custody of the children would be decided by an Israeli court. Mrs. Hovav’s actions in retaining the children and seeking a determination of custody were thus clearly v/rongful. Mrs. Dincer, in contrast, violated no express agreement by remaining in the United States and instituting a custody action in Pennsylvania. Moreover, she testified that she did not leave Belgium with the intention of remaining in Pennsylvania with the children, but rather that she decided that she could not return to the marital home after she arrived here. Her actions, while unexpected and perhaps not commendable, thus were not clearly wrongful.
      Second, in Hovav there was no allegation that Israel's status as the children's "home state” was subject to closer scrutiny because Mr. Hovav intended to leave Israel. Here, as will become clear in the discussion below, the allegations that Mr. Dincer intends to leave Belgium are central to a proper consideration of Pennsylvania's connection with the children and thus to a proper determination of jurisdiction.

      . The trial court's finding that the March 1 Belgian order granting custody to Father was a predetermination of custody which must be given comity is clearly in error. The March 1 order entered by the Belgian court was “provisional” pending further hearings, and was not that court's final determination of custody based upon a full consideration of the children’s best interests. This temporary order of the Belgian court, entered after a similar emergency order by the Montgomery County court, thus need not be given the deference due to a final determination.