author:
POPOVICH, Judge.
      BROSKY, J.,

text:
    627 A.2d 763
    Gail HOLMES and Terri Hyden, Co-Administrators of the Estate of Phillip W. Johnson, Deceased, Appellants, v. LANKENAU HOSPITAL; Lankenau Hospital, Dept. of Radiology; Dr. Judith Johnson; Dr. Howard A. Richter; Dr. Nelson M. Oyesiku; Dr. Robert Fine; Dr. Charles Schnall; Dr. Ronald W. Russell; Dr. Shiun-Tin-Kerr; Dr. Robert K. Jones; Dr. Irwin K. Kline; Dr. Hugo Rodriguez; Dr. Michael E. Fischer; Dr. Daniel Erhard; Dr. Benack; Dr. Piazza; and Dr. Gallagher, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 18, 1993.
    Filed July 2, 1993.

      Larry Glass, Philadelphia, for appellants.
    Robin B. Arnold, Philadelphia, for appellee Lankenau.
    Robert B. Mulhern, Jr., Philadelphia, for appellees Fine and Schnall.
    Patrick J. McMenamin, Jr., Norristown, for appellees Richter and Oyesiku.
    Before BECK, POPOVICH, JJ., and BROSKY, JJ.
   POPOVICH, Judge.

This is an appeal from an order granting appellees’ motions for summary judgment. We find that the trial court did not err in granting summary judgment. Accordingly, we affirm.

The facts of the present case are as follows: Appellants, Gail Holmes and Terri Hyden, filed a medical malpractice suit against appellees, Lankenau Hospital, Dr. Johnson, Dr. Russell, Dr. Kerr, Dr. Richter and Dr. Fine. Appellants alleged that appellees negligently treated their father, Phillip Johnson, at Lankenau Hospital.

On February 4, 1984, Phillip Johnson fell in the home of Reuben and Girdell Robinson. Thereafter, he was taken to Lankenau Hospital for emergency treatment of injuries he sustained in the fall. Mr. Johnson was then admitted to Lankenau Hospital for further treatment. Phillip Johnson died at Lankenau Hospital on February 9, 1984.

On March 19, 1985, Gail Holmes, in her capacity as coadministratrix of Johnson’s estate, executed a signed release, witnessed by Terri Hyden, in favor of Reuben and Girdell Robinson, in exchange for the sum of $10,000.00. The release provides, in relevant part:

I do hereby release and forever discharge Reuben Robinson and Girdell Robinson and any other person, firm or corporation charged or chargeable with responsibility or liability, their heirs, representatives and assigns, from any and all claims, demands, damages, costs, expenses, loss of services, actions and causes of action arising from any act or occurrence up to the present time ... in consequence of an accident that occurred on or about the 4th day of February, 1984, at or near [the Robinson’s home] (emphasis added).

After the existence of the release was disclosed to appellees through discovery, appellees filed motions for summary judgment that were granted by the trial court.

On appeal, appellants raise the following issues:

1. [Appellees] failed to plead “release” as an affirmative defense, so that summary judgments based on the release were improperly entered.
2. Summary judgment based on the release, was inappropriate where the signing [appellant] could not, and did not, reasonably understand the release to cover possible medical malpractice.
3. The release, as worded, does not bind the estate so as to prevent claims for future medical malpractice, where only one of the co-administrators executed the release.

An order granting summary judgment will not be reversed unless the trial court has committed an error of law or clearly abused its discretion. Cooperstein v. Liberty Mutual Fire Insurance Company, 416 Pa.Super. 488, 611 A.2d 721 (1992). Summary judgment is to be granted only in those cases that are clear and free from doubt, where the undisputed allegations of the pleadings and the other permissible material filed in support of and in opposition to the motion reveal that there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. Krause v. Great Lakes Holdings, Inc., 387 Pa.Super. 56, 563 A.2d 1182 (1989), appeal denied, 524 Pa. 629, 574 A.2d 70 (1990); Pa.R.C.P. No. 1035, 42 Pa.C.S.A.

Appellants argue that the trial court improperly granted summary judgment. Appellants claim that appellees failed to plead release as an affirmative defense as new matter, and therefore, waived the right to assert the defense in a motion for summary judgment. We disagree.

According to Pa.R.C.P. No. 1030, 42 Pa.C.S.A., release is an affirmative defense that must be pleaded in a responsive pleading under the heading “New Matter.” If the affirmative defense of release is not pleaded according to Rule 1030, the right to assert the defense has been waived. Ruhe v. Kroger Company, 425 Pa. 213, 228 A.2d 750 (1967).

In the instant case, appellees had no knowledge of the release when they filed their answers and new matter. The existence of the release was revealed through discovery sometime after pleadings had been filed. According to the rules of procedure, appellees should have requested leave to amend the new matter portion of their answers to include the affirmative defense of release. Pa.R.C.P. No. 1033, 42 Pa.C.S.A. Motions for summary judgment could then have been filed following the filing of appellees’ amended pleadings. Instead, appellees simply filed a motion for summary judgment based on the release.

Although we find that appellees did not technically follow the rules of civil procedure, appellees’ procedural error does not warrant reversal of the trial court’s order granting summary judgment. The rules of civil procedure must be liberally construed so that actions such as the present one are resolved in a just, speedy, and inexpensive manner consistent with Pa.R.C.P. No. 126.

Appellants have failed to show that they were prejudiced by appellees’ failure to comply strictly with procedural rules. Appellants had the opportunity to respond to appellees’ motion for summary judgment. Therefore, although appellees did not amend their pleadings so as to include the defense of release, appellants were not denied the opportunity to respond to appellees’ arguments regarding the defense.

A panel of this court was recently presented with a similar issue in DiLauro v. One Bala Avenue Associates, 419 Pa.Super. 191, 615 A.2d 90 (1992). The plaintiff in DiLauro, argued that the trial court erred by instructing the jury on the defense of assumption of risk because the defendants failed to assert the defense of assumption of risk in responsive pleadings. Although this court acknowledged that all affirmative defenses must be pleaded in a responsive pleading under the heading “New Matter,” this court ruled that the trial court correctly admitted the defense. This court stated the following in DiLauro:

A trial court may on its own motion, permit or require amendment of a pleading, except where surprise or prejudice to the other party would result. Spain v. Vicente, 315 Pa.Super. 135, 144, 461 A.2d 833 (1983); Sullivan v. Allegheny Ford Truck Sales, 283 Pa.Super. 351, 357, 423 A.2d 1292, 1295 (1980). Contrary to his present assertions, appellant was well aware before trial that the defense of assumption of the risk would be a central issue in this case. Appellees’ trial brief is replete with references to “assumption of the risk.” ... Finding no surprise or prejudice to appellant, it was entirely proper for the lower court to instruct the jury on assumption of risk. By so doing, the court, in effect, permitted amendment of appellees’ answer on its own motion.

615 A.2d at 93 (emphasis added).

Presently, appellants were obviously aware of the release. The appellees’ assertion of the defense of release in motions for summary judgment did not cause either surprise or prejudice to appellants. In their response to appellees’ motions for summary judgment, appellants argued that since appellees had not pleaded the affirmative defense of release, the defense had been waived. By granting the appellees’ motions for summary judgment, the trial court, in effect, permitted amendment of appellees’ answer on its own motion. DiLauro.

Additionally, a decision to reverse the trial court’s grant of summary judgment because of this procedural defect would conflict with our supreme court’s decision not to place form over substance. Specifically, our supreme court stated the following:

It has been our policy to overlook ... procedural errors when a party has substantially complied with the requirements of the rule and no prejudice would result. “Procedural rules are not ends in themselves, but means whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives. McKay v. Beatty, 348 Pa. 286-87, 35 A.2d 264, 265 (1944). See also Chiara Estate, 467 Pa. 586, 593-94, 359 A.2d 756, 760-61 (1976). The Superior Court has succinctly stated the principle: “The niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure.” Godina v. Oswald, 206 Pa.Super. 51, 55, 211 A.2d 91, 93 (1965).

Griffin v. Tedesco, 336 Pa.Super. 586, 593, 486 A.2d 419, 423 (1984), quoting Pomerantz v. Goldstein, 479 Pa. 175, 178, 387 A.2d 1280 (1978). Given the absence of prejudice and surprise to appellants, we find that the trial court properly granted appellees’ motions for summary judgment notwithstanding appellees’ failure to argue the release as an affirmative defense in amended pleadings.

Appellants’ second argument is that the trial court should not have granted summary judgment based on the release because appellant who signed the release did not understand that the release included medical malpractice claims against the appellees. Although appellant claims that she did not intend to release appellees when she signed the release, the effect of a release is determined by the ordinary meaning of its language. Estate of Bodnar, 472 Pa. 383, 386, 372 A.2d 746, 748 (1977). This court interpreted a similar release to the present one in Hasselrode v. Gnagey, 404 Pa. 549, 172 A.2d 764 (1960). This court held that the release, extending to “any and all persons,” was intended to release an individual not named in the release and who paid no consideration for the release. Id. 172 A.2d at 765. Further, a misjudgment by the signor of the release as to the precise nature and extent of injury will not permit recission of a release agreement when the release contains broad language as in the instant case. Leyda v. Norelli, 387 Pa.Super. 411, 413, 564 A.2d 244, 245 (1989), appeal denied 525 Pa. 627, 578 A.2d 414 (1990).

In the present case, the appellants signed an agreement that released all persons, firms or corporations charged or chargeable with responsibility or liability with respect to Johnson’s accidental fall. According to the plain language of the release, appellees were released from liability although they were not specifically named in the release. Hasselrode, supra.

When our supreme court was faced with the interpretation of a similar release in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), the court ruled that absent a showing of fraud or mutual mistake, the release by its terms discharged all claims and parties pertaining to the accident. Our supreme court stated the following in support of its ruling:

If such a release can be nullified or circumvented, then every written release and every written contract or agreement of any kind no matter how clear and pertinent and all-inclusive, can be set aside whenever one of the parties has a change of mind or whenever there subsequently occurs a change of circumstances which were unforeseen, or there were after-discovered injuries, or the magnitude of a releasor’s injuries were unexpectedly increased, or plaintiff made an inadequate settlement. It would make a mockery of the English language and of the law to permit this release to be circumvented or held to be nugatory.

Id. 561 A.2d at 735, quoting Emery v. Mackiewicz, 429 Pa. 322, 240 A.2d 68 (1968).

A panel of this court was presented with a similar set of facts in Smith v. Thomas Jefferson University Hospital, 424 Pa.Super. 41, 621 A.2d 1030 (1993). In that case, plaintiffs decedent was involved in an automobile accident with another automobile operated by William J. Barben, Jr. Following the accident, decedent received medical treatment at defendant-hospital. Plaintiff subsequently executed a general release in favor of Mr. Barben that was substantially similar to the release in the present case. Plaintiff then filed a medical malpractice action against the hospital and doctors that treated decedent after his accident. This court addressed the question of whether the trial court erred in granting defendants’ motion for judgment on the pleadings based upon the release executed by plaintiff. In its decision, this court rejected plaintiffs argument that plaintiff did not intend to release the hospital and doctors when she signed the release. Specifically, this court held the following:

Mutual mistake will afford a basis for reforming a contract. Gocek v. Gocek, 417 Pa.Super. 406, 612 A.2d 1004 (1992). Mutual mistake exists, however, only where “both parties to a contract [are] mistaken as to existing facts at the time of execution.” Loyal Christian Ben. Ass’n v. Bender, 342 Pa.Super. 614, 618, 493 A.2d 760, 762 (1985); Restatement (Second) Contracts, Section 152 (1981). Moreover, to obtain reformation of a contract because of mutual mistake, the moving party is required to show the existence of the mutual mistake by evidence that is clear, precise and convincing. Bugen v. New York Life Insurance Co., 408 Pa. 472, 475, 184 A.2d 499, 500 (1962).
In the instant case, [plaintiff] has failed to evince a mistake on the part of Barben the other party to the release. [Plaintiff] merely asserts that she never intended to release parties other than Barben and his insurance carrier. It is clear from [plaintiffs] assertions that the only mistake which was made regarding the formation of the contract-release between appellant and Barben was her own. See, e.g., Leyda v. Norelli, 387 Pa.Super. 411, 413, 564 A.2d 244, 245 (1989) (“[Underestimating damages or making a settlement before damages are accurately ascertained is not considered a mutual mistake of fact.”)

A similar release was also at issue in Dublin by Dublin v. Shuster, 410 Pa.Super. 1, 598 A.2d 1296 (1991). Dublin involved a child who was struck by an automobile. The child’s parents executed a general release against the driver of the automobile. This court held in Dublin, that the release barred the parents’ and child’s medical malpractice suit against the doctors and the hospital that treated the injuries the child sustained in the accident. The trial court had denied the doctors’ and hospital’s motion for summary judgment. In reversing the trial court’s holding, this court ruled that general releases are applicable to all tortfeasors regardless of the fact that they are not specifically included in the release. Id. 598 A.2d at 1298.

Here, since the release agreement discharged appellees’ liability to appellants, we find that summary judgment was appropriately granted by the trial court.

Appellants’ final contention is that because only one of the co-administratrices of Johnson’s estate executed the release, the estate is not bound to the release agreement. One administratrix signed the release while the other signed as a witness to the signature. We find appellants’ argument to be meritless.

In support of their argument, appellants cite Buttermore, supra. In Buttermore, our supreme court held that parties may not bargain away the rights of another, not a party to the agreement. Appellants claim that since appellant Terri Hyden signed the release agreement as a witness and not as a party to the agreement, she has a right to bring the medical malpractice action against appellees. Appellants reliance on Buttermore is inappropriate because Terri Hyden is not asserting independently a right to sue appellees for her injuries. Rather, appellants filed the present suit in their capacities as co-administratrices of Johnson’s estate.

This court has stated that co-executors and co-administrators are regarded as one person, and each possesses full power and control over the personal estate of a decedent. Selig v. Selig, 217 Pa.Super. 7, 10, 268 A.2d 215, 218 (1970). The authority of each co-executor or co-administrator is joint and several, and one has the power to bind the estate to an agreement. Id.

Presently, appellant Gail Holmes signed the release in her capacity as co-administratrix of Johnson’s estate. Therefore, despite the fact that only one of the co-administratices signed the release, the estate was bound to the terms of the release agreement. Id. We, therefore, affirm the trial court’s order granting appellees’ motion for summary judgment.

Order affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, J.,

concurring.

I reluctantly concur in the result of the majority’s opinion. I feel constrained to concur in light of various decisions which appear to control the present controversy. However, I cannot agree with the reasoning set forth in those decisions.

In the present case appellants are the administrators of their father’s estate. Their father died several days after sustaining head injuries in an accidental fall at the home of some friends. Acting as administrators of their father’s estate, appellants signed a “release” of liability form ostensibly releasing the homeowners from any additional liability and settling the claim of the estate against them. The consideration paid was a sum of ten thousand dollars, a modest sum in today’s times. The consideration was that modest because it was apparently understood by appellants to be the limits of the homeowners’ property insurance. Be that as it may, appellants did not believe the sole cause of their father’s death was the injuries sustained in the fall. Appellants believed that their father’s death was more proximately caused by negligent treatment received after he sustained the injuries subject to the settlement. In other words, they believed that, although injured in the fall, the decedent never should have died from those injuries. Consequently, they filed suit against the hospital and doctors in question only to find that their signing of the release with the homeowners has worked to prevent recovery from these parties as well. This is true despite the fact that the various appellees were not parties to the release and paid no consideration to appellants for the release from liability.

The supposed goal of judicial interpretation of a contract is to effectuate the intent of the parties, if not the actual shared intent of both parties — should there, indeed, be one — then at least the intent fairly and reasonably implicated by the terms of the agreement and the surrounding circumstances. A sort of intent imputed to the parties and regarded as their actual intent. Ideally then, with respect to the release in question, it should not release third parties to it unless that was the actual contemplated intent of the parties who signed the release. Yet, the premise that the parties actually intended that result is mostly preposterous. I doubt that anyone truly believes that appellants knowingly intended to release their claims against the doctors and hospital by virtue of executing the release with the homeowners and the receipt of ten thousand dollars. Those parties represented the “deep pockets” of the case. Moreover, the parties, at that time, were negotiating only with the homeowners. There was no discussion with the hospital and doctors regarding potential medical malpractice liability. More likely, in settling with the homeowners, appellants were attempting to get the “small case” out of the way before proceeding to the “big case.”

That the homeowners intended to benefit unnamed potential defendants by executing the release is only slightly more plausible. There seems to be little reason that a homeowner would care or even think about the potential liability of another party when defending against a lawsuit or claim for damages. More likely, an average person in the position of the homeowners here would be greatly concerned about the ramifications of the proceedings against them and give no thought at all to other potential defendants. Thus, to suggest that the homeowners, in settling, intended by the execution of the release to also confer that benefit upon unnamed parties is somewhat dubious. The homeowner really has nothing to gain from such an intention or action and it is not something which would naturally come within his or her contemplation. Thus, in situations like the present one, it can be fairly assumed that it is not the actual intent of both parties that unnamed and unrelated parties be “released” from liability by virtue of execution of the release. Nevertheless, this is exactly what the prior decisions of our courts have dictated.

In Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), under a similar factual pattern, our Supreme Court found that the release, by its own wording, released all parties from liability. They commented:

If such a release can be nullified or circumvented, then every written release and every written contract or agreement of any kind no matter how clear and pertinent and all-inclusive, can be set aside whenever one of the parties has a change of mind or whenever there subsequently occurs a change of circumstances which were unforeseen---- It would make a mockery of the English language and of the law to permit this release to be circumvented or held to be nugatory.

I do not dispute the validity of this commentary as to the parties to the release agreement. Should appellants have a change of heart and attempt to extract more money from the homeowners, I would agree that their execution of the release would prevent those efforts. I would support this position even if the appellants argued that they did not understand the implications of the release or had made a mistake in executing it. To do otherwise is to make the agreement impotent and illusory. However, I do not believe that the commentary is particularly persuasive as to its application to strangers to the release. Appellants here are not suggesting that the release can be negated as to the homeowners who signed it, appellants’ only argument is that the release should not work to bestow a benefit to third parties who did not contribute to the consideration, who did not bargain for a release of liability and who did not sign the document. As to such parties the release acts as a windfall benefit under circumstances that clearly penalize the releasor.

If it is clear that one did not intend to release other potential defendants when signing a release, as I believe is the case here, then giving the release that effect is at best punishing the releasor for his or her naivete, and at worst, when only the releasee intended such a result, allowing a near fraud to be perpetrated upon the releasor. If neither party intended such a result then arguably there is a “mutual mistake” at work and that interpretation should not follow at all. However, regardless of the scenario, it is very unlikely that that result was truly bargained for. Consequently, it begs the question: why are we so willing to allow a stranger to enforce an agreement to which he is not a party, has paid no consideration for and did not participate in the negotiation of? From a policy standpoint there seems little reason to allow this result other than to elevate form, the verbose and overbroad wording of boilerplate release forms, over substance, the actual intent of the parties in question.

Aside from the above commentary, the standing and position of the third party to assert the release must be questioned. When one asserts a release under circumstances like the present he is essentially asserting a third party benefit. He is not a party to the contract, nor is he in privity to a party. Consequently, he is attempting to be a third party beneficiary under the contract. Yet when the caselaw regarding third party beneficiaries is reviewed you find that these contracts are rather restrictively enforced.

Recently, in Scarpitti v. Weborg, 530 Pa. 366, 609 A.2d 147 (1992), our Supreme Court recited the qualifications for being recognized as a third party beneficiary. They stated that one becomes a third party beneficiary:

only where both parties to the contract express an intention to benefit the third party in the contract itself, ... unless, the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.

Id., 609 A.2d at 150-151. (emphasis in original) Under the above criteria it is difficult to understand why a stranger to the contract is allowed to enforce it against the releasor. It is difficult to conclude that the release agreement expresses an intent to benefit a third party unless one determines that in including the language “and any other person, firm or corporation charged or chargeable with responsibility or liability,” the parties expressly intended to benefit an unknown and indefinite class of persons. More likely, this language is typical overbroad legal phrasing intended to encompass the parties and all their privies. However, even if it were the intention of the parties to release everyone in the world who might also be liable to the releasor, it is questionable that such a broadly defined class of persons or entities would qualify for third party status.

The second prong of the analysis fails also. Recognizing a third party’s right cannot be said to be necessary to effectuate the intent of the parties. The clear and primary intent in signing the release agreement is to settle the dispute finally as between the parties signing the agreement. If the agreement works to offer the same immunity from a lawsuit to an unknown third party, as the court held below, then this would seem to be at best an ancillary or incidental intent of the parties, it is clearly not the primary intent of the parties. Consequently, I believe that a third party’s right to claim third party beneficiary status under the release is suspect. If a third party does not gain benefit of the release as a third party beneficiary, then the only other theory that comes to mind that might allow the third party to rely upon the release is estoppel. However, this also appears dubious.

“A cause of action under detrimental reliance or promissory estoppel arises when a party relies to his detriment on the intentional or negligent representations of another party, so that in order to prevent the relying party from being harmed, the inducing party is estopped from showing that the facts are not as the relying party understood them to be.” Rinehimer v. Luzerne County Community College, 372 Pa.Super. 480, 539 A.2d 1298, 1306 (1988). It is straining the above definition, in my opinion, to assert that in settling with the homeowners, appellants have made a promise to appellees. Secondly, I see no reliance to appellees’ detriment. To the contrary, appellees were in a position of having to defend themselves in a lawsuit of potentially large proportions until such time as they discovered the execution of the release in question. These are not circumstances that invite the application of promissory estoppel.

If the above two theories do not allow a third party to assert a release as a defense, then the propriety of allowing that assertion at all is suspect. Especially when it is considered that the parties probably did not have an explicit intent to release such third parties, and it is clearly inequitable to allow the third party to assert it. Consequently, I believe that the policy behind allowing a stranger to a release to assert it as a defense in a context such as the present one should be reexamined by our Supreme Court and overruled.

      . Pa.RX.P. No. 126, 42 Pa.C.S.A. provides:
      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.

      . Perhaps the only individual or entity which has intended the result our courts are imposing in these situations is the insurer. The insurer may have this intention to protect itself from paying out more money should one or more of the third parties spared liability as a result of the signing of the release happen to be one insured by itself. Should this occur, the payment of $10,000 on behalf of the homeowners might spare the insurer liability in the millions of dollars when a doctor or hospital it has insured escapes liability as a result of the signing of the release. Even if this possibility is remote, it figures that if all, or most, insurance companies draft their releases in similarly broad fashion the industry as a whole will certainly be spared a significant amount of money as a result of potential "deep pocket” defendants being saved from liability when unsuspecting claimants or litigants execute releases like the one found here to settle seemingly unrelated claims. The more insurers who use such releases the more likely that all will benefit in the long run. Consequently, it is not difficult to imagine the insurer possessing this intent.
      However, when representing an insured in a liability context, the insurer is not truly a party in interest, the insured is. Consequently, the insurer’s intent in drafting the release so broadly is not pertinent to interpreting the document as between the parties who signed it.


source: Caselaw Access Project

author: DEL SOLE, Judge.

license: Public Domain

text:
    627 A.2d 771
    Lisa Marie WALKER, Appellant, v. Dalasini G. FENNELL, S.J. McCants, Allstate Insurance Company and Pennsylvania Financial Responsibility Assigned Claims Plan, Appellees.
    Superior Court of Pennsylvania.
    Argued April 13, 1993.
    Filed July 6, 1993.

      S. Allen Needleman, Philadelphia, for appellant.
    Thomas P. Kelly, Philadelphia, for Pennsylvania Financial, appellees.
    Before DEL SOLE, HUDOCK and HOFFMAN, JJ.
   DEL SOLE, Judge.

This is an appeal from an order granting Summary Judgment in favor of Appellee, Pennsylvania Financial Responsibility Assigned Claims Plan (the Plan).

The underlying action was instituted by Appellant, a pedestrian who was struck by a motor vehicle insured by Allstate Insurance Company as she walked across the street in a crosswalk. The Allstate vehicle was stopped at the intersection but lunged forward after being struck from behind by an uninsured vehicle. Appellant sought and received first party benefits from Allstate, but was advised that Allstate’s insured had waived uninsured motorist coverage. See 75 Pa.C.S.A. § 1731. Appellants efforts to collect uninsured motorist coverage culminated in the filing of the underlying action against Allstate and the Plan. The Plan filed a motion for Summary Judgment contending that Appellant did not qualify as an eligible claimant. The trial court concluded that under the provisions of 75 Pa.C.S. § 1752(a)(6), Appellant was not eligible for any benefits from the Plan, and awarded the Plan Summary Judgment. This appeal followed.

The specific statutory provisions governing benefits available under the Assigned Claims Plan are set forth in Subchapter “E”, 75 Pa.C.S.A. § 1751 et seq. Medical benefits are available to an eligible claimant under § 1753, and additional coverage benefits are set forth in § 1754. Both sections allow for specified types of recovery to those who are an “eligible claimant.” The term “eligible claimant” is defined in § 1752 which lists seven requirements which must be met before one will be classified as an eligible claimant. At issue is subsection (a)(6). It provides:

§ 1752. Eligible Claimants
(а) General rule. — A person is eligible to recover benefits from the Assigned Claims Plan if the person meets the following requirements:
(б) Is otherwise not entitled to receive any first party benefits under section 1711 (relating to required benefits) or 1712 (relating to availability of benefits) applicable to the injury arising from the accident.

75 Pa.C.S.A. § 1752(a)(6).

It is undisputed that Appellant was entitled, and in fact received, first party benefits from Allstate Insurance Co. Thus, as found by the trial court, Appellant does not meet one of the requirements for eligibility set forth in § 1752 since she had available first party benefits from another source. Because both sections 1753 and 1754 expressly limit the Plan’s benefits to “an eligible claimant,” a plain reading of the statutory provisions denies Appellant relief.

Appellant, nevertheless, contends that such a result should not be reached because it is not in keeping with the purpose of the plan to afford innocent uninsured accident victims some limited means to recover for their damages. Appellant reasons that the changes brought about by Act No. 6 of 1990, Feb. 7, P.L. 11, No. 6 § 9, effective July 1, 1990, which made uninsured motorist coverage optional so that policyholders could reduce their premiums, has resulted in situations such as that present in this case where the insured driver has opted to not carry such coverage. She asserts that the decision of Allstate’s insured to waive uninsured motorist coverage leaves her, under the plain reading of § 1752, with no available means of collecting uninsured motorist benefits despite the fact that she was an innocent victim.

While we recognize Appellant’s unfortunate position, the statutory provisions of the Assigned Claims Plan are clear. We are not free to disregard the plain, clear meaning of statutory language under the guise of pursuing its spirit. 1 Pa.C.S.A. § 1921(b). We do note, however, that the trial court refused to discuss, because it was unnecessary, whether Allstate’s insured could waive uninsured motorist benefits for a class of claimants such as Appellant; and, we likewise decline to make such ruling. Further, we are unable to determine whether the legislature recognized that the Passage of Act No. 6 of 1990, would potentially lead to the result present in this case. However, unless and until the legislature expressly alters the provisions set forth in the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1701 et seq., to provide for a different result, the clear meaning of § 1752 controls the outcome of this case. Because Appellant is entitled to receive first party benefits from Allstate, as the insurer of a motor vehicle involved in the accident, See 75 Pa.C.S.A. § 1713(a)(4), and because § 1752 states that an eligible claimant under the Assigned Claims Plan must not be entitled to receive any first party benefits, it is clear that Appellant is not entitled to recover from the Plan and that the court’s order must be affirmed.

Order granting Summary Judgment in favor of Appellee, Pennsylvania Financial Responsibility Assigned Claims Plan, is affirmed.


text:
    627 A.2d 773
    COMMONWEALTH of Pennsylvania v. Robert MULLINS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 19, 1993.
    Filed July 6, 1993.

      Leanne L. Litwin, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CAVANAUGH, WIEAND, MCEWEN, CIRILLO, DEL SOLE, BECK, TAMILIA, JOHNSON and HUDOCK, JJ.
   DEL SOLE, Judge.

This is a direct appeal from a Judgment of Sentence imposed following Appellant’s convictions for possession and possession with intent to deliver.

The single claim presented by Appellant for our review asks us to determine whether trial counsel was ineffective for failing to file and litigate a motion to suppress physical evidence. Appellant contends that the facts show that an undercover police officer made a controlled buy of narcotics through a hole in the door of a private residence. He asserts that ten or fifteen seconds later, the police forced open the door and entered the home without a search or arrest warrant and without knocking and announcing their identity or purpose. Appellant was arrested and confiscated from his person was the marked money used in the controlled buy, other currency, and two vials of suspected cocaine. Seized a few feet away from Appellant was a clear plastic bag which contained an additional 32 vials of suspected cocaine. It is Appellant’s position that the evidence obtained would have been suppressed had his counsel filed an appropriate motion because the officers entered the premises without a warrant and no exigent circumstances existed. Due to the status of the record before us in this matter, we are unable to reach the merits of the claim as presented by Appellant.

The specific issue raised on appeal was first presented to the trial court in post-verdict motions. Counsel argued this motion before the trial court and then testimony was taken. The sole witness offered by Appellant was his former counsel. The witness was questioned concerning his failure to file a motion to suppress on Appellant’s behalf. Counsel responded that the motion was not filed because he did not wish to jeopardize the defense. He testified that the defense in the case sought to prove that Appellant did not reside in the house and was not the drug seller, but merely possessed drugs after arriving at the residence to purchase them for his own use. Thus, Appellant’s former counsel reasoned there was a problem with asserting that Appellant had a reasonable expectation of privacy in the dwelling. The witness also testified that there was a question of whether exigent circumstances existed in the case because of prior criminal activity, including a shooting, which occurred at the subject location.

Absent from the post-verdict motion hearing was any testimony from the police officers involved in this case. This absence is critical to our decision despite the fact that the officers testified at trial to the events leading up to Appellant’s arrest. The testimony elicited from the officers at trial however, was not focused on a resolution of a suppression question, thus, matters relevant to a suppression determination were not thoroughly explored.

The absence of evidence on critical facts is evident in the trial court’s questioning of Appellant’s counsel during argument at the post-verdict hearing. First, the court sought to remind counsel that the trial testimony indicated “there was nothing searched; it was in plain view.” N.T. 8/14/91 at 5. Counsel had a different recollection of the officer’s testimony and responded that “the door was not open, it was not ajar.” Id. Counsel attempted to emphasize this distinction stating that the facts showed that the police had to break the door to get into the home. The court stated “I am interested in finding the evidence that the door was smashed in, as you represent to the Court.” Id. at 7. Counsel responded by citing testimony that the officers “went over and took the door.” Id. The court refused to accept this testimony in support of counsel's interpretation of the events and instead found that the instant case was “on all fours with Lopez.” Id. (Commonwealth v. Lopez, 525 Pa. 185, 579 A.2d 854 (1990), where an equally divided panel of our Supreme Court affirmed and adopted a Superior Court Memorandum decision upholding a warrantless arrest, where one factor critical to the court’s decision was evidence that both the inner and outer doors of a residence were open when the police entered the home.)

Secondly, Appellant’s counsel argued before the court that there was no evidence in the record that there was violent activity at the subject residence in the past, and that the police had ample opportunity to secure a search warrant and knew who lived there. Once again the court disputed counsel’s recollection of the evidence produced at trial. Id. at 15.

Many factors are critical to a resolution of a suppression issue, and the ultimate decision must be based on the application of the law to the facts of the case. Whether the search and seizure is challenged under our federal or state constitution, questions of standing, privacy interests and exigent circumstances will arise and will need to be resolved. See Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Commonwealth v. Sell, 504 Pa. 46, 470 A.2d 457 (1983), and Commonwealth v. Peterson, 408 Pa.Super. 22, 596 A.2d 172 (1991), appeal granted, 530 Pa. 641, 607 A.2d 252. Absent testimony on the record from which the court can make a factual determination about the events which transpired, a ruling of whether a suppression issue would be meritorious cannot be made.

Appellant’s failure to place evidence on the record which would enable the court to determine whether the police acted properly, is fatal to his case. Although Appellant’s counsel argued at the post-verdict motion hearing that the Commonwealth did not “put anything on the record” which would establish that exigent circumstances were present, it was not the Commonwealth’s burden to offer such proof. N.T. 8/14/91 at 15. Commonwealth v. Hutchinson, 521 Pa. 482, 556 A.2d 370 (1989). Appellant was the one attempting to demonstrate to the court at the hearing that his prior counsel was ineffective for failing to file a motion to suppress. To succeed in this quest, Appellant had the burden of proving that the underlying issue (the suppression motion) had merit. Id.; Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). This could only be done by offering evidence to prove specific facts which would have entitled Appellant to relief under the law. Because these facts were not set forth, a discussion of the legal questions presented in seeking to suppress the seized evidence cannot be undertaken. Further, counsel’s strategic decision not to file the suppression motion does not need to be evaluated since Appellant did not demonstrate that the motion would have been successful. Id.; Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 696 (1977).

Judgment of Sentence affirmed.

      . The Commonwealth argues that this case must be analyzed under the Fourth Amendment to the United States Constitution because Appellant has waived any claims under Article I, section 8 of the Pennsylvania Constitution by not raising this specific challenge in his supplemental post-verdict motions. While we recognize that an analysis of the suppression issue would differ under the provisions of the federal and state constitutions because of the historical differences in the two and their interpreted purposes, Commonwealth v. Edmunds, 526 Pa. 374, 394, 586 A.2d 887 (1991), we need not detail those differences in this case, where the factual record is undeveloped.


author: MONTGOMERY, Judge: JOHNSON, Judge,

text:
    627 A.2d 776
    George HARKOVICH, Sr. and Delores Harkovich, His Wife, and George Harkovich, Jr., Appellants, v. Gary PFIRRMANN, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed July 7, 1993.

      Peter M. Suwak, Washington, for appellants.
    Stanley B. Lederman, Pittsburgh, for appellee.

      Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The plaintiff-appellants instituted the instant replevin action seeking the return of two vehicles which had been towed more than six years earlier, at the direction of local police, and stored during that long time period by the defendant-appellee. In response to the replevin complaint, the defendant instituted a counterclaim, seeking the recovery of towing charges as well as the storage charges which had accrued during the many years he held the vehicles. Summary judgment was granted to the defendant on the plaintiffs’ replevin claim. The defendant’s counterclaim proceeded to a jury trial in which a verdict was rendered against the plaintiffs in the amount of $30,-988.00. Following the denial of the plaintiffs’ posttrial motions, a judgment was entered in favor of the defendant on the counterclaim. This appeal followed. We shall reverse.

The instant action follows many other legal proceedings stemming from the plaintiffs’ insistence that their property in Munhall, Allegheny County, included an alleyway between their property and the property of one or more neighbors. The plaintiffs used that alleyway to park two trucks, which caused their neighbors to lose access to their garages. A declaratory judgment action regarding the plaintiffs’ claims to the alley property resulted in an order against the plaintiffs on April 8, 1985. Despite the ruling that the alleyway did not belong to them, the plaintiffs continued to park their vehicles there. They did not appeal from the declaratory judgment. Subsequently, after requests to the plaintiffs were unavailing, the Munhall police directed the defendant to tow the vehicles from the alleyway. There was no dispute that the plaintiffs knew the vehicles were towed and were informed that they could be reclaimed for the payment of a towing fee plus storage charges for each day the cars remained in the defendant’s storage facility. The plaintiffs refused to reclaim their vehicles, and instead instituted a succession of unsuccessful legal actions in the state and federal courts to challenge the ruling in the property action and the towing of their vehicles. The plaintiffs apparently acted pro se in all such proceedings, as well as during the trial in the instant case. They are represented by counsel in this appeal proceeding.

The plaintiffs have raised a number of contentions of trial error on this appeal. Included is the claim that the trial court should not have precluded the jury from considering the issue of whether the defendant should have mitigated the towing and storage charges by selling the vehicles thirty days or more after they had been towed and remained unclaimed by the plaintiffs. We find merit in that argument.

The record shows that during opening remarks to the jury, one of the plaintiffs commented that the defendant could have sold the vehicles thirty days after they had been towed, and used the proceeds to pay any accumulated towing and storage charges. When such matters were mentioned, the court stated: “I again remind the jury, they brought an Action in Replevin to get the trucks back. Just so you can see that none of this would have any bearing. Go on. In other words, you didn’t want to be rid of the tracks. You tried to stop them from getting rid of them by bringing an Action in Replevin?” RR 72a. During the course of the trial, the defendant was asked questions about whether or not he could have sold the vehicles when they were unclaimed for thirty or more days after they were towed. He responded that he could not sell the vehicles while there was litigation going on which had been commenced by the plaintiffs. In so responding, he testified that the first such action was instituted by the plaintiffs more than sixty days after the vehicles were towed. He was not more specific in identifying any date. In subsequent testimony by the plaintiffs, they indicated that the first legal action they filed, subsequent to the towing, occurred in June 1986, more than a year after the tracks were towed. The plaintiffs also testified that it was their belief that the defendant had an obligation to sell the vehicles, under applicable law, in order to recover any charges arising from the towing and storage. However, at the conclusion of the case, in its charge to the jury, the trial court did not discuss the issue of “mitigation” or comment on any right or obligation on the part of the defendant to sell the vehicles in order to recover any accrued costs. Rather, the court instructed the jury: “There is no dispute about any matter pertaining to his [the defendant’s] right to receive payment in the case. Of course, I can’t order you to find a verdict in favor of Mr. Pfirrmann, but I cannot see how in justice you could possibly do otherwise.” RR 114a.

Our resolution of this appeal begins with an analysis of the applicable provisions of the Vehicle Code. The authority for the towing of the plaintiffs’ vehicles from the alleyway was provided in 75 Pa.C.S.A. § 3352. Inter alia, it establishes authorization for the police to cause the towing or other removal of an improperly parked vehicle which may be blocking a right-of-way. It requires the police to give prior notice to the owner to afford him or her the opportunity to move the vehicle before it is towed or otherwise removed. It also states that the police must comply with Vehicle Code provisions relating to abandoned vehicles, and that if a vehicle is removed, the owner may reclaim it under procedures provided within the Vehicle Code sections dealing with abandoned vehicles. The Code provisions dealing with abandoned vehicles are set forth in 75 Pa.C.S.A. §§ 7301-7312. Section 7305 provides for notice to the owner that an abandoned vehicle has been taken into the possession of a salvor. Section 7306, which is specifically mentioned in Section 3352, declares that the owner of an abandoned vehicle may reclaim it upon payment of costs, including storage charges. Sections 7307, 7308 and 7309 provide procedures for the salvor to dispose of the vehicle, after the expiration of thirty days from the date of the Section 7305 notice to the owner. A salvor can dispose of the vehicle at auction if it has value (75 Pa.C.S.A. §§ 7307 and 7308), or treat it as junk, and receive a minimal payment from the Motor License Fund (75 Pa.C.S.A. § 7309). Thus, under all of these Vehicle Code provisions, a vehicle which police cause to be removed from a right-of-way is to be treated as abandoned. While the owner has an opportunity to reclaim it within a specified period, by paying applicable costs and charges, if the vehicle remains unclaimed by the owner, the salvor who seeks to recover any applicable towing and/or storage fees must do so by either selling the vehicle at auction or by treating it as junk.

In this case, the defendant was unquestionably a salvor. The Code gives a salvor only those limited rights regarding actions which may be taken to recover unpaid towing and/or storage charges. There is no statutory authorization to permit a salvor to maintain a legal action against the abandoned vehicle’s owner for any recovery of towing and/or storage fees. The defendant certainly had no contract or quasi-contractual relationship with the plaintiffs to support his counterclaim, and the towing and storage charges he sought to recover from them. Further, he had no tort or other civil ground to support his claims. It is evident that any of the rights claimed by the defendant could only arise from statutory provisions in the Vehicle Code. Thus, it was clearly improper for the trial court to advise the jury that the plaintiffs’ arguments that the defendant should have sold the vehicles were irrelevant and should not be considered in evaluating his counterclaim.

On a factual basis,' the record does not support a determination by the trial court that the defendant could not have proceeded to sell the vehicles, under the applicable provisions of the Vehicle Code, because of litigation which had been instituted by the plaintiffs. The defendant testified that the plaintiffs first instituted some type of legal proceeding, more than sixty days after the trucks were towed. The plaintiffs, on the other hand, testified that they first instituted proceedings more than a year after the vehicles were towed. The trial court commented that the plaintiffs indicated an intent to reclaim the vehicles by the filing of their replevin action. However, the record shows that the instant replevin action was not instituted until December 1989, some four and a half years after the two vehicles were towed. In light of this evidence, there was no basis for.the trial court to have ruled, as a matter of law, that evidence regarding the defendant salvor’s legal right or obligation to sell the vehicles, thirty or more days after they were towed, was irrelevant.

While in other circumstances the errors in evidentiary rulings and/or the court’s charge might be the basis for an order for a new trial, such a disposition is inappropriate in this case, as it is evident that the trial court lacked any jurisdiction to issue an award on the defendant’s counterclaim. The Vehicle Code only provides a salvor with in rem rights as to a vehicle held in storage. There is no statutory or other basis for a court to assert in personam jurisdiction over the owner of a towed vehicle in proceedings involving a claim by a salvor for excess towing and/or storage charges. The lack of in personam jurisdiction over the plaintiffs with respect to the relief sought by the defendant in his counterclaim in this case renders the judgment against the plaintiffs absolutely void and a nullity. Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989); Demetriou v. Carlin, 47 Pa.Cmwlth. 478, 408 A.2d 565 (1979). It also precludes an award of a new trial.

The plaintiffs have displayed no common sense and have caused themselves significant harm by their obvious stubbornness and poor attempts at self-representation. While such shortcomings have operated to deny the plaintiffs the replevin rights they sought to exercise in this action, they do not justify imposing a damage verdict against them which is obviously improper. The law simply does not permit a salvor to keep an abandoned vehicle for many years, without respect to value, while building up almost unlimited storage charges against a vehicle owner. Obviously, the significant damage award to the defendant in this case may not be condoned on any legal ground.

The judgment in favor of the defendant is reversed, and his counterclaim is dismissed. Jurisdiction is relinquished.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

I would affirm the order of the trial court, entered following the jury verdict, in favor of Gary Pfirrmann on his counterclaim against the Harkoviches. Therefore, I must respectfully dissent.

This case is the last in a series of lawsuits by the Harkoviches, all of which stem from the Harkoviches’ belief that the boundary of their real property, located in Munhall, Pennsylvania, includes an alleyway bordering between their property and their neighbors’ property. A declaratory judgment was entered against the Harkoviches on April 8, 1985, which held that the disputed alleyway did not belong to the Harkoviches. No appeal was taken from that declaratory judgment. The Harkoviches persisted in their belief that the alleyway was, in fact, part of their parcel of land, and pursuant to this belief, they parked their cars in the alleyway, blocking the sole access to their neighbors’ garage.

The Harkoviches continued to park their cars in the alleyway despite requests from the Munhall police to move the vehicles. The police, therefore, requested Pfirrmann, who is in the business of towing and storing cars, to tow the vehicles from the alleyway. The Harkoviches, who witnessed the towing of their vehicles, were informed that they could be reclaimed for the payment of a $50.00 towing fee per vehicle plus additional storage charges for every day the cars remained in Pfirrmann’s garage. The Harkoviches refused to reclaim their vehicles, choosing instead to proceed with a series of lawsuits contesting the legality of the towing and storage of their vehicles.

The present action was instituted against Pfirrmann in replevin. Pfirrmann counterclaimed for his towing and storage charges which, by the time of the trial, had accumulated to almost $30,000. Pfirrmann moved for summary judgment on the replevin claim, which the trial court granted. Pfirrmann’s counterclaim continued to a jury trial where judgment was entered against the Harkoviches for the amount of the towing and storage fees. The Harkoviches’ post-trial motions were denied and this appeal ensued.

While the Majority finds the Harkoviches’ first issue to be dispositive, four questions have been presented for review. The Harkoviches contend that the trial court erred in:

1. failing to admit evidence regarding an alleged duty on the part of Pfirrmann to mitigate the storage charges by selling the Harkoviches’ vehicles.
2. ruling that the issue of whether the vehicles had been towed illegally was res judicata.
3. requesting that only one of the Harkoviches examine and cross-examine the witnesses at trial.
4. granting summary judgment against the Harkoviches on their replevin claim.

First, the Harkoviches do not contest the fact that Pfirrmann has a common-law possessory lien on their vehicles, created when he towed and stored their vehicles at police direction. See Pittsburgh National Bank v. Schmidt, 41 Pa.D. & C.3d 143 (1985). The Harkoviches also do not contest the fact that they knew about the towing and storage charges on the date that their vehicles were towed, but took no action to reclaim their vehicles, thus, impliedly consenting to their storage by Pfirrmann. See Lewis v. Smith, 2 Pa.D. & C.3d 183 (1976).

The Majority begins its discussion by asserting that the Harkoviches’ vehicles were towed pursuant to the Vehicle Code, 75 Pa.C.S. § 3352. However, the Majority does not indicate which of the four subsections of § 3352 it is applying. Majority op. at 481 — 183. My colleagues do state that § 3352 “establishes authorization for the police to cause the towing or removal of an improperly parked vehicle which may be blocking a right of way.” Id. From this statement, I would assume that the Majority agrees that the Harkoviches’ vehicles were towed pursuant to § 3352(c)(4), which gives the police the authority to direct the towing of any vehicle in violation of 75 Pa.C.S. § 3353. However, my colleagues then state that “[i]t requires the police to give prior notice to the owner to afford him or her the opportunity to move the vehicle before it is towed or otherwise removed.” Id. In this statement, the Majority apparently shifts its analysis from § 3352(c)(4) to § 3352(d).

Section 3352(d) applies only to vehicles which have been abandoned on the highway and requires the police to notify the last registered owner of the vehicle of its towing. 75 Pa.C.S. § 3352(d)(3). Section 3352(d) clearly has no application in the present case. The Harkoviches’ vehicles were not left unattended to be towed from a highway or other public roadway but were removed from a private driveway with the Harkoviches themselves in attendance.

The Majority also cites to an unnamed statutory section for the proposition: “[i]t also states that the police must comply with Vehicle Code provision relating to abandoned vehicles, and that if a vehicle is removed, the owner may reclaim it under procedures provided with the Vehicle Code section dealing with abandoned vehicles.” Majority op. at 482. If this statement continues to refer to § 3352, then the only provision to which it could be referring is § 3352(c)(5), which provides authority for police officers to tow abandoned vehicles and also requires that police officers comply with the requirements of Chapter 73 of the Vehicle Code, relating to abandoned vehicles, at 75 Pa.C.S. § 7301 et seq. The Majority then assumes that the Harkoviches’ vehicles were abandoned, without analysis or citation to applicable case law or statute, and proceeds to apply relevant sections under Chapter 73 of the Vehicle Code.

I must object to the Majority’s attempted application of § 3352. Section § 3352(c) has five separate subsections each of which describe distinct factual circumstances under which a police officer has authority to order a vehicle to be towed. The Majority does not apply any specific subsection to the facts of this case. My colleagues then, without explanation, abruptly shift their focus to the provisions of the Vehicle Code relating to abandoned vehicles. Contrary to the Majority’s assertions, I would find full authorization for Pfirrmann’s towing of the vehicles under 75 Pa.C.S. §§ 3352 and 3353.

The only subsection of § 3352 which reflects the facts of the present case is § 3352(c)(4), which gives the police authority to tow any vehicle in violation of 75 Pa.C.S. § 3353. Section 3353(b) prohibits the parking of vehicles on private property without the consent of the owner. 75 Pa.C.S. § 3353(c) also gives the private property owner the right to remove the vehicle from his property at the reasonable expense of the owner. In addition, that Section also provides that the person removing the vehicle will have é lien against the vehicle’s owner for the reasonable costs of removing the vehicle. 75 Pa.C.S. § 3353(c); Apartment Owners and Managers Committee of State College Area Chamber of Commerce v. Brown, 487 Pa. 548, 410 A.2d 747 (1980).

In the present case, the police and the private property owner from whose land the Harkoviches refused to remove their vehicle, caused the Harkoviches’ automobiles to be towed by Pfirrmann. Under 75 Pa.C.S. § 3353(c), Pfirrmann thus had a statutory lien for his reasonable costs. There is ample evidence in the record to support the fact that Pfirrmann’s rates were reasonable and were in fact lower than others who were in the business of towing and storing vehicles in other jurisdictions. N.T., December 11,1991, at 34-35. The record also supports the fact that the Harkoviches knew about the towing and storage charges, and did not contest the fact that the charges must be paid in order to reclaim their vehicles. Id. at 36-37.

Moreover, the record clearly supports Pfirrmann’s claim for storage costs for the Harkoviches’ autos. Pfirrmann’s testimony at trial indicated that the Harkoviches’ vehicles took up valuable space in his automobile pound which could have been used to store other vehicles. However, since litigation was ongoing and the Harkoviches had clearly indicated to Pfirrmann that they wanted their vehicles to be returned to them, Pfirrmann had no choice but to retain the vehicles until they were reclaimed. Id. at 37-38.

The Majority, however, proceeding on its unsupported assumption that the Harkoviches’ vehicles had somehow been abandoned, concludes that Pfirrmann had a statutory duty to sell the Harkoviches’ vehicles after sixty days in storage in order to recoup his towing and storage charges accumulated up to that date. The Majority further contends that since Pfirrmann failed to mitigate his damages through the sale of the vehicles, his damage recovery should be limited to only the amount due for the first sixty days of storage. Thus, the Majority finds merit in the Harkoviches’ charge that the trial court should have admitted evidence of Pfirrmann’s duty to mitigate and should have instructed the jury to limit his damage recovery. I find no merit in this argument.

Without explanation, the Majority shifts its discussion from the proper statutory analysis, under § 3352, of the procedure used by the police and Pfirrmann to remove the Harkoviches’ vehicles to an analysis under Chapter 73 of the Vehicle Code, relating to abandoned vehicles. The Majority contends that under 75 Pa.C.S. § 7307, Pfirrmann had a statutory duty to sell the Harkoviches’ vehicles within sixty days of the date on which the vehicles were towed. This statute reads in pertinent part:

§ 7307. Authorization for disposal of unclaimed vehicles
The department shall, after the expiration of 30 days from the date of notice sent by certified mail to the registered owner and all lienholders of record or 30 days after publication of notice, where applicable, and upon receipt of a written statement from the holder of the vehicle that the abandoned vehicle has not been reclaimed by the owner or lienholder within the 30-day period, authorize the disposal of the abandoned vehicle in accordance with the provisions of this chapter.

The Majority applies this statute to the particular facts of this case without citation to authority. I find this statute to be inapplicable as it only applies to vehicles which have been “abandoned.” Pfirrmann did not, and the record reveals that he could not, have considered the Harkoviches’ vehicles to have been abandoned, thus negating any alleged duty to dispose of the vehicles under § 7307.

“Abandoned property is defined as that to which an owner has voluntarily relinquished all right, title, claim and possession with the intention of terminating his ownership, but without vesting it in any other person and with the intention of not reclaiming further possession or resuming ownership, possession or enjoyment.” Commonwealth v. Wetmore, 301 Pa.Super. 370, 447 A.2d 1012 (1982). Abandonment involves an intent to abandon together with an act or omission by which such intention is carried into effect. Quarry Office Associates v. Philadelphia Electric Co., 394 Pa.Super. 426, 576 A.2d 358 (1990); Wetmore at 373, 447 A.2d at 1014. The mere failure to claim a vehicle does not constitute abandonment nor does it divest the vehicle’s owner of title. See Elder v. Nationwide Insurance Co., 410 Pa.Super. 290, 599 A.2d 996 (1991).

The record, in the present case, reveals that there was communication between Pfirrmann and the Harkoviches that contradicted any inference that the Harkoviches intended to abandon their vehicles. See, e.g., N.T., December 11, 1991, at 37, 41. The Harkoviches at no time indicated that they were relinquishing their rights, title or claim to the vehicles, despite the fact that they informed Pfirrmann that they would not pay the towing and storage charges but expected either their neighbors or the borough of Munhall to pay for them. Id. Further, Pfirrmann testified at trial that the Harkoviches instituted legal proceedings within sixty days following the towing of the vehicles. Id. at 37-38. As such, it would be unreasonable to expect Pfirrmann to have sold the vehicles as “abandoned” when he had notice from the Harkoviches personally and from the ongoing litigation that the Harkoviches intended to reclaim the vehicles.

The Majority also contends that the trial court lacked personal jurisdiction over the Harkoviches, and thus Pfirrmann’s counterclaim must be dismissed. I disagree.

The Majority raises this issue sua sponte stating, that the trial court had only in rem jurisdiction over the Harkoviches’ vehicles and no in personam jurisdiction over the Harkoviches, in Pfirrmann’s counterclaim in this replevin action. While not cited by the Majority, I will infer that this argument is based on Pa.R.C.P. 1082(a) which states:

(a) A claim secured by a lien on the property may be set forth as a counterclaim. No other counterclaim may be asserted.

Under 75 Pa.C.S. § 3353, Pfirrmann has a statutory lien on the Harkoviches’ vehicles. See Apartment Owners and Managers Committee of State College Area Chamber of Commerce, supra. Additionally, since the Harkoviches at no time tried to reclaim their vehicles while at the same time continuing to assert their rights to the vehicles, this can be inferred as tacit agreement to Pfirrmann’s storage of the vehicles pending the outcome of the various legal proceedings in which the Harkoviches were involved. See Lewis v. Smith, supra.

In this case, Pfirrmann has asserted a proper counterclaim in the form of a possessory lien on the Harkoviches’ vehicles. I agree, however, that under Rule 1082, even Pfirrmann’s proper claim in quasi-contract or quantum meruit for charges in excess of the value of the vehicles might at first appear improper.

This issue was addressed by this Court in Donegal Mutual Insurance Co. v. Miller, 277 Pa.Super. 186, 419 A.2d 724 (1980). In that case, the Court affirmed the grant of Summary Judgment for the plaintiff where the defendant asserted a counterclaim in quantum meruit in a replevin action. Id. There, we stated that the proper defense to such counterclaim was a motion under Pa.R.C.P. 1032(1) for the failure to state a claim upon which relief can be granted. Id. at 190, 419 A.2d at 726. While, in Donegal Mutual Insurance Co. v. Miller, we stated that a motion under Rule 1032(1) may be raised at any stage in the proceedings and is not waived if not raised at preliminary objections, the clear implication to be drawn from that case is that such a motion must be raised by a party at some point in the proceedings. Id. at 191-192, 419 A.2d at 727. In the case before us, the issue of an improper counterclaim was never raised by the Harkoviches.

In Luitweiler v. Northchester Corporation, 456 Pa. 530, 319 A.2d 899 (1974), our supreme court discussed whether a court may sua sponte address the issue of whether one party has failed to state a claim upon which relief can be granted, as the Majority does in the case sub judice. There, our supreme court stated that, “[a]lthough our rules do allow certain matters to be raised by the court on its own motion, a failure to state a cause of action is not one of them.” Id. at 533 n. 5, 319 A.2d at 901 n. 5. It would appear from the holding of Luitweiler, that any discussion of the propriety of the Pfirrmann’s counterclaim, absent a motion by the Harkoviches, is entirely improper.

To support its contention that Pfirrmann’s claim must be dismissed, the Majority cites to two cases which articulate the well-recognized procedure by which an individual must support a claim regarding the personal jurisdiction of the court. See Scoggins v. Scoggins, 382 Pa.Super. 507, 555 A.2d 1314 (1989); Demetriou v. Carlin, 47 Pa.Cmwlth. 478, 408 A.2d 565 (1979). In Scoggins we articulated the method of challenging the court’s personal jurisdiction as:

When a defendant wishes to challenge the court’s exercise of in personam jurisdiction, he may do so by filing preliminary objections. As the moving party, the defendant, has the burden of supporting its objections to the court’s jurisdiction.
Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiffs evidence. The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Only when the moving party has properly raised the jurisdictional issue does the burden fall upon the party asserting [jurisdiction].

Scoggins at 513-514, 555 A.2d at 1318 (citations omitted) (emphasis as in original).

The Commonwealth Court, in Demetriou, supra, also addressed the burden upon a party asserting the court’s lack of personal jurisdiction. There, the court stated:

Within traditional concepts of ‘in personam’ jurisdiction and the want for legal efficacy of judgments rendered absent such jurisdiction, a named party to a cause of action may subject himself to the jurisdiction of the court. By doing so he thereby waives any in personam jurisdictional disability.

Demetriou at 483, 408 A.2d at 568 (emphasis added).

The Harkoviches have made no claim regarding the court’s personal jurisdiction over them in the present counterclaim action. In fact, it is the Harkoviches who first claimed the jurisdiction of the court by filing a complaint in replevin. In light of the above standards for asserting a claim for lack of personal jurisdiction, this Court must view such a claim, had it been raised on appeal by the Harkoviches, to have been waived.

Returning to the actual claim made by the Harkoviches, as I find no duty on Pfirrmann’s part to have sold the Harkoviches’ vehicles, I would find no error on the part of the trial court in refusing to admit evidence as to mitigation of damages or to instruct the jury in that regard. I would thus address all of the issues which the Harkoviches bring before this court on appeal.

Second, the Harkoviches contend that the trial court erred in its ruling that the question of the legality of the towing of the vehicles was res judicata. I am unable to agree with that contention.

The Harkoviches claim that the trial court’s ruling that the question of the legality of the towing was res judicata was based on the motion for summary judgment granted in the present litigation. The Harkoviches correctly assert that there must be a disposition on the merits of a claim before that claim can be rendered res judicata, and that the grant of the motion for summary judgment was based not on the merits of the claim but on the running of the statute of limitations. Here, however, the trial court based its ruling not on the grant of the motion for summary judgment in the present litigation but on the ruling of Judge Gerald J. Weber on this issue in the United States District Court for the Western District of Pennsylvania at CA 86-434, which held that Pfirrmann’s towing of the vehicles was legal. This holding was affirmed by the Third Circuit Court of Appeals on August 12, 1987, at 87-3247. The trial court also cited to previous rulings in the Allegheny County Court of Common Pleas, each of which held that this claim had been previously and finally litigated in Federal District Court.

I conclude that there was no error by the trial court in ruling that the Harkoviches could not offer the illegality of the towing of their vehicles as a defense to Pfirrmann’s counterclaim. I would hasten to note, however, that due to the pro se nature of the proceedings by the Harkoviches at trial, these allegations regarding the legality of the towing were nonetheless presented to the jury over the objection of counsel for Pfirrmann, and despite the best efforts on the part of the trial court to control the disruptive nature of the proceedings by the Harkoviches. Therefore, we dismiss these allegations as meritless.

Third, the Harkoviches maintain that the trial court erred in requesting that only one of the members of the Harkovich family be chosen to question witnesses during the trial. I would find no merit in this argument.

In this case, the Harkoviches chose not to be represented by counsel but to proceed pro se. The fact that the parties chose to act as their own counsel did not exempt them from the Pennsylvania Rules of Civil Procedure. Under Pa.R.C.P. 223(a)(2), where there are multiple plaintiffs or defendants, the court is empowered to require that those parties choose one attorney to question witnesses on behalf of all parties on one side of the litigation. Northampton Bucks County Municipal Authority v. Bucks County Water and Sewer Authority, 96 Pa.Cmwlth. 514, 508 A.2d 605 (1986), appeal denied, 514 Pa. 633, 522 A.2d 560 (1987). I find no error in the trial court’s attempt to impose this requirement upon the parties in this case. I would note that due to the disruptive nature of the Harkoviches’ conduct during this jury trial, it was reasonable and appropriate for the trial court to attempt to impose this requirement upon the parties in its attempt to conduct an orderly trial.

Fourth, the Harkoviches contend that the trial court erred in granting summary judgment on their replevin claim against Pfírrmann. I emphatically disagree.

The Harkoviches filed their replevin action on December 13, 1989. Pfírrmann filed his Motion for Summary Judgment on May 21,1990, which Judge Zeleznik granted on June 13, 1990. The Harkoviches never appealed from the grant of summary judgment, which dismissed all aspects of their claim against Pfírrmann. The jury trial was held before Judge Frederick G. Weir only on the issues raised in Pfirrmann’s counterclaim. It is only the judgment rendered on the Pfirrmann’s counterclaim that is before this Court on appeal.

The grant of the motion for summary judgment against the Harkoviches was a final appealable order. See, e.g., French v. United Parcel Service, 377 Pa.Super. 366, 547 A.2d 411 (1988). A final order is defined under the Pennsylvania Rules of Appellate Procedure as:

Rule 341. Final Orders; Generally
(b) Definition of Final Order. A final order is any order that:
(1) disposes of all claims or of all parties; ...

Our supreme court has also defined when an order becomes final and, thus, appealable in Sweener v. First Baptist Church of Emporium, 516 Pa. 534, 539, 533 A.2d 998, 1000 (1987), stating:

A pivotal consideration in determining whether an order is final and appealable is whether the plaintiff aggrieved by it has, for purposes of the particular action, been put “out of court” on all theories of recovery asserted against a given defendant for a given loss.

Here, summary judgment was entered as to all aspects of the Harkoviches’ replevin action on June 12, 1990, thus precluding any further litigation of that claim. The Harkoviches had thirty days in which to appeal the entry of that order. Pa.R.A.P. 903(a). No such appeal was taken. As such, this Court is without jurisdiction to entertain such an appeal at this time, almost three years past the expiration of the appeal period.

Accordingly, as I would find no merit in the Harkoviches’ claims, I would affirm the order of the trial court in its entirety. I must, therefore, respectfully dissent.

      . In his Dissenting Opinion in this case, Judge Johnson maintains that the vehicles should not have been considered to have been abandoned. In support of that position, he relies upon two cases which are clearly inapposite. They deal with abandonment of a weapon and abandonment of real property. The reasoning and holdings in such cases have no application to the issue of whether a motor vehicle is to be treated as abandoned under the removal provisions of the Vehicle Code which are relevant in this case.

      . For the same reason, there is no basis for the position advocated by Judge Johnson, in his Dissenting Opinion, that the defendant was precluded from selling the vehicles because of ongoing litigation. All of the evidence indicated no litigation was commenced by the plaintiffs during the time period when the defendant was entitled under applicable law to sell the plaintiffs' vehicles to recover unpaid towing and storage charges.


author: WIEAND, Judge.

text:
    627 A.2d 785
    COMMONWEALTH of Pennsylvania v. Sidney Brian WATSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1993.
    Filed July 7, 1993.

      Lester G. Nauhaus, Public Defender, Pittsburgh, for appellant.
    Mitchell A. Kaufman, Asst. Public Defender, Pittsburgh, for Com., appellee.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge.

Sidney Brian Watson was tried non-jury and was found guilty of aggravated assault, recklessly endangering another person and endangering the welfare of a child. Post-trial motions were denied, and Watson was sentenced to serve a term of imprisonment for not less than four (4) years nor more than twelve (12) years. On direct appeal from the judgment of sentence, Watson asserts that the trial court erred by admitting into evidence and giving consideration to a hearsay statement made by the three year old, alleged victim. He also contends that, absent this hearsay evidence, there was no evidence to establish that he was responsible for the injuries suffered by his three year old son. Finding no merit in these contentions, we affirm the judgment of sentence.

On April 29, 1991, City of Pittsburgh Police Officer Karen Harris responded to a report that a child had been burned. Upon arrival at the scene, Harris learned that appellant was the father of the three year old victim, Isaiah Pierce. Harris observed appellant arguing with the child’s mother, Ronetta Pierce, who was seeking an explanation of what had happened to her child’s hands. To this appellant reportedly responded that the child had stuck his hand in a bowl of soup. As a part of her investigation, Officer Harris found an empty can of Spaghettios in a trash can; two skillets on the stove, one containing Spaghettios and the other containing Criseo oil; and a bowl of Spaghettios on the table. While the victim was being treated in an ambulance, Officer Harris asked the child how he had hurt his hands. Three year old Isaiah Pierce responded, “My daddy did it.”

The victim was taken to the Burn Center at Mercy Hospital where he was treated for severe burns to his left hand and to the index finger of his right hand. The child’s treating physician was Dr. Mary Jeanne Korb, the director of the Burn Center, whose testimony was summarized in the trial court’s post-trial opinion as follows:

Dr. Korb testified that Isaiah suffered full thickness burns over the entire back portion of his left hand as well as on portions of his fingers and palm. She described full thickness burns as “... where the total skin of that area has been destroyed.” Such burns “... do not heal except from the side or from other normal skin from the sides; they almost always require skin grafting; the hair follicles are destroyed; the nerve endings are destroyed and they always heal with scars.”
The doctor noted that the burns on Isaiah’s hands had clear lines of demarcation. These, according to Dr. Korb, are [more] consistent with the hand having been forcibly immersed in a hot substance than with a hand accidently [sic] placed in a hot substance. In the latter case, the line of demarcation between the burned skin and the healthy skin is marked by feathering and flash marks as a result of sudden movement.
The doctor also described the treatment Isaiah received. She said that for several days after the burn Isaiah had to have the wound debrided. Debriding involves the pealing [sic] off of the dead skin from the wound and is an extremely painful procedure. The procedure was so painful in Isaiah’s case that they had to cease such procedures and proceed to surgery. Even after the surgery, Isaiah suffered from decreased grip strength and a limitation on the range of motion of the hand. The doctor ultimately concluded that the nature of the burn, the lack of flash marks and the sharpness of the demarcation, was consistent with the hand having been forcibly immersed in an extremely hot liquid rather than the child accidently [sic] reaching into a bowl or pot of hot soup or “Spaghettios.” (citations to record omitted).

We reject appellant’s request for a limited review of the evidence to determine its sufficiency to support his convictions. “ Tt is well settled ... that in determining the sufficiency of the evidence to support the verdict, we are required to consider all evidence actually received, whether the trial court’s rulings on evidence were correct or incorrect.’ ” Commonwealth v. DiSabatino, 399 Pa.Super. 1, 4, 581 A.2d 645, 646 (1990), quoting Commonwealth v. Pankraz, 382 Pa.Super. 116, 119-120, 554 A.2d 974, 976 (1989). “The question of sufficiency is not assessed upon a diminished record. Where improperly admitted evidence has been allowed to be considered by the [factfinder], its subsequent deletion does not justify a finding of insufficient evidence. The remedy in such a case is the grant of a new trial.” Commonwealth v. Smith, 523 Pa. 577, 582, 568 A.2d 600, 603 (1989) (citations omitted).

In evaluating the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence was sufficient to have permitted the trier of fact to find that each element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Smith, supra at 581, 568 A.2d at 602; Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Moreover, the facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the [factfinder] unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943).

So viewed, the evidence in the instant case was clearly sufficient to permit the trier of fact to conclude, beyond a reasonable doubt, that appellant had forcibly immersed his son’s hand in a hot substance, thereby causing severe burns. Appellant was overheard telling the child’s mother that the child had placed his hand in a hot bowl of soup. However, the victim’s treating physician testified that the child’s injuries were inconsistent with an accidental burn and concluded, because of the pattern of the burn marks, the sharp demarcation and the lack of any feathering, that the child’s injuries were more consistent with having had his hand placed into and forcibly held in a hot substance. Finally, when the victim was asked how his hands had been burned, he responded that “My daddy did it.” From this evidence, the trial court could infer that appellant, the victim’s father, had been responsible for causing the burns to the child’s hands. The evidence, therefore, was sufficient to sustain appellant’s convictions for aggravated assault, recklessly endangering another person and endangering the welfare of a child.

Appellant’s remaining contention is that the trial court erred by receiving into evidence the victim’s hearsay statement, “My daddy did it,” as an excited utterance. Appellant argues that the victim’s statement was not a spontaneous utterance made while under the influence of a startling event, but, rather, an ambiguous response to police questioning. The statement, he suggests, was influenced by the lapse of an undisclosed period of time after the child had been injured, as well as by the argument which had ensued between the child’s parents.

In Commonwealth v. Zukauskas, 501 Pa. 500, 462 A.2d 236 (1983), the Supreme Court explained the excited utterance exception to the hearsay rule in the following terms:

An excited utterance is the event speaking and not the speaker. It is an exception to the hearsay rule, carved from human experience, which teaches that an unreflected, spontaneous utterance made under the impact of a shocking, unexpected emotion, precipitated by a traumatic event, renders the speaker the medium and not the message. Such an utterance is allowed in evidence because it is spontaneous and unreflected, without influence from thought, design and reason. It is not accepted because the statement is or must be true, but because it could be at least as true as any other evidence. Before such evidence is received, it must be carefully weighed. As this Court stated in Commonwealth v. Pronkoskie, 477 Pa. 132, 383 A.2d 858 (1978):
“To come within the excited utterance exception to the hearsay rule, a statement must be:
... ‘a spontaneous declaration by a person whose mind has been suddenly made subject to an overpowering emotion caused by some unexpected and shocking occurrence, which that person had just participated in or closely witnessed, and made in reference to some phase of that occurrence which he perceived, and this declaration must be made so near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective faculties.’ ” (citation omitted)

Id. at 137-138, 383 A.2d at 860. . .

[T]here is no precise rule as to the length of time passing between the event and the alleged excited utterance...., except it must be:

“So near the occurrence both in time and place as to exclude the likelihood of its having emanated in whole or in part from his reflective facilities.”

Id. Length of time is an element that must be weighed along with other considerations. It varies with the circumstances and from case to case. It does not alone decide admissibility. The question is not how long one or when one is seized by an event, but rather was he seized at all. Time itself is not dispositive and is determined, ad hoc, case by case.

Id. at 503-504, 462 A.2d at 237-238. See also: Commonwealth v. Green, 487 Pa. 322, 326-328, 409 A.2d 371, 373-374 (1979); Commonwealth v. McEachin, 371 Pa.Super. 188, 200, 537 A.2d 883, 889 (1988). “ ‘[T]he mere fact that a statement is made in response to a question does not prevent its admission as a res gestae statement.’ ” Commonwealth v. Pronkoskie, 477 Pa. 132, 141, 383 A.2d 858, 862 (1978), quoting Commonwealth v. Cooley, 465 Pa. 35, 42, 348 A.2d 103, 107 (1975). See also: Commonwealth v. Sanford, 397 Pa.Super. 581, 592-593, 580 A.2d 784, 789-790 (1990).

After careful review, we are satisfied that the victim’s statement, “My daddy did it,” was properly received into evidence. The trial court reasoned in its post-trial opinion that:

Having his hand forcibly immersed in a hot liquid was undoubtedly a terrifying and shocking occurrence for Isaiah Pierce. Though the record does not clearly establish how much time elapsed between this occurrence and the utterance, it is clear that this child was still suffering from the emotional shock and trauma of that incident when he made the statement. Officer Harris testified that when she observed Isaiah at the time he made this statement “... he was crying and scared and nervous.” Dr. Korb stated that burns such as those suffered by Isaiah are very painful; that adults who suffer such burns are not able to obtain relief even when administered morphine. The Court is satisfied that at the time Isaiah told this officer that his “Daddy” hurt his hand he was suffering from severe emotional trauma as well as [ ] intense physical pain. Moreover, it is clear to this Court that when this child made the statement implicating his father he was, because of that intense pain and emotional trauma, incapable of reflecting on the question posed by Officer Harris. His response was spontaneous and certainly not the product of reflective thought.
Defendant also claims that because there was no evidence establishing how much time elapsed between the injury and the statement it could not have been an excited utterance. Whether the time lag between the startling event and the utterance is so long that the spontaneity of the utterance is negated is to be determined from the particular circumstance[s] of each case. Commonwealth v. Rhoades, Supra. The doctor testified that this injury occurred no more than twenty four (24) hours from the time she first treated Isaiah. More likely, the injury occurred shortly before the Police and medical personal [sic] arrived. Whenever it occurred, it is clear that this child was still in intense pain. In effect, the traumatic incident was continuing when the statement was made. The uncertainty of when the incident occurred does not obviate the fact that this child was continuing to suffer from the shock and trauma of the injury and that his statement was, therefore, an excited utterance, (citations to record omitted).

We agree fully with the trial court’s analysis of this issue.

In response to appellant’s claim that the child’s statement may have been influenced by the argument between his parents, we observe that this contention is refuted by the record. Officer Harris testified that the victim had not been in the house at the time when appellant and the victim’s mother were arguing about the manner in which the victim had been injured. It would appear that, at the time of the argument between his parents, the child had already been placed into an ambulance. Therefore, it was not likely that he was influenced by the arguments between his parents. In any event, the circumstances surrounding the victim’s statement warranted the trial court’s conclusion that the child’s statement implicating appellant was a spontaneous utterance made in response to a traumatic event and the severe physical pain which accompanied it. The statement, therefore, was properly received as an excited utterance. Whether it was influenced by other events, of course, was relevant to the weight to be placed thereon. Under the circumstances of this case, however, those events did not destroy the admissibility of the child’s statement.

The judgment of sentence is affirmed.