author: CIRILLO, Judge: OLSZEWSKI, Judge,

text:
    650 A.2d 1090
    Gwendolyn and Fred ANDERSON, Appellants, v. Thomas M. MOORE.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 14, 1994.

      Aaron M. Spiezer, Philadelphia, for appellants.
    D. Louis Nicholson, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County granting Appellee Thomas Moore’s motion for summary judgment. We reverse the order and remand for trial.

On the morning of September 6, 1989, Appellant Gwendolyn Anderson, traveling westbound on Adams Avenue, stopped for a red traffic light at the Tabor Road intersection. Subsequent to the light turning green, Anderson attempted to turn left onto Tabor. She never made it. Moore, traveling eastbound on Adams in his 1988 Ford Taurus, slammed into the passenger side of Anderson’s vehicle, knocking it towards the intersection’s southeastern curb.

Upon impact, Anderson suffered numerous injuries as her body was hurled into the vehicle’s passenger seat. These injuries included forehead abrasions (as her skull shattered the vehicle’s windshield) and a laceration to her right calf (as her leg ripped off the gear shift). Further, Anderson’s attending physician confined her to her home for two weeks of rest.

On March 22, 1991, Anderson commenced the instant action against Moore seeking damages for her personal injuries. Fred, Anderson’s husband, filed a claim for loss of consortium. Moore and Gwendolyn Anderson gave depositions on September 10, 1992. No one witnessed the accident.

On May 3, 1993, Moore filed a motion for summary judgment. In an order entered on June 21, 1993, the motion was granted by the Honorable Steven R. Geroff based upon his determination that the Andersons could prove that the accident occurred but could not make out a claim for negligence. See McElhinny v. Iliff, 436 Pa. 506, 510, 260 A.2d 739, 741 (1970) (“The mere happening of an accident or the mere fact that a moving vehicle collides with ... another vehicle does not establish negligence nor raise an inference or presumption of negligence nor make out a prima facia case of negligence.”)

On appeal, the Andersons raise the following issue for review: Did the trial court properly decide, as a matter of law in a motion for summary judgment rather than a jury, that a defendant approaching an intersection which strikes a vehicle completing a left turn is not negligent?

At the outset, we note that when we review the grant of a motion for summary judgment made under Pa. R.C.P. 1035, our scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

In Pennsylvania, a body of caselaw has established the “assured clear distance ahead rule.” This law was consolidated and clearly explained by this court in Unangst v. Whitehouse, 235 Pa.Super. 458, 344 A.2d 695 (1975):

Originally a common law principle, the “assured clear distance ahead” rule is a part of The Vehicle Code, Act of May 1, 1929, P.L. 905 § 1002, as amended, 75 P.S. § 1002 (1971), which provides, inter alia, that no “person shall drive any vehicle upon a highway ... at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.” The assured clear distance ahead rule has been held to require that a driver operate his vehicle in such a manner that he can always stop within the distance he can clearly see. Otherwise stated, the rule requires that such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.
It is apparent that this distance, the range of a driver’s vision, may vary according to the visibility at the time and other attendant circumstances____
When an obstacle is encountered by a driver which is within his line of travel, the distance to the obstacle becomes the time and distance limitation at the moment that the obstacle comes into view. The driver must carefully watch so that he can see, if this is reasonably possible, any obstacles in his way, and can stop before a collision with it.

Id. at 463-64, 344 A.2d at 698 (citations omitted).

Instantly, Gwendolyn Anderson stated in her deposition that after the light had turned green, she pulled her car up to the intersection and then stopped to wait for a few eastbound cars to pass. At this point she looked down Adams and saw no eastbound cars for a “good half a block.” Immediately upon completion of this visual scan, she proceeded to make the left turn. At the point of impact, Mrs. Anderson had progressed so far into the turn that her headlights were pointing directly south on Tabor. Mrs. Anderson also stated that the accident occurred sometime after 7:30 A.M., the weather conditions were “good,” and that the speed limit on Adams was thirty miles per hour.

Accepting these facts as true, and giving the Andersons the benefit of all reasonable inferences to be drawn therefrom, we find that Judge Geroff erred in determining that the plaintiffs could prove nothing beyond the mere occurrence of an accident.

The fact that the weather conditions were “good” and the fact that the accident occurred sometime after 7:30 A.M. allows us to infer that Moore had clear visibility. Further, Mrs. Anderson was a “good half block” from any eastbound traffic when she initiated her turn and was totally facing south when struck. These facts, compounded with the fact that the speed limit on Adams Avenue is thirty miles per hour, allow us to infer that Moore was provided with ample time and distance to react when Anderson’s car came into his view. Thus, beyond merely establishing that an accident had occurred, Mrs. Anderson’s deposition enables us to find that Moore may have acted negligently by violating the “assured clear distance ahead rule.”

Moore has correctly noted that where a driver is confronted with an object which unexpectedly appears within his assured clear distance, the assured clear distance doctrine is negated by applicability of the sudden emergency doctrine, since the driver has already mentally cleared that distance and no further duty is imposed. McKee by McKee v. Evans, 380 Pa.Super. 120, 551 A.2d 260 (1988). However, a review of the record in the light most favorable to the Andersons establishes that no sudden emergency existed. Mrs. Anderson’s deposition establishes that Moore had at least a half-block to react to Anderson’s vehicle during clear visibility. Accepting this as the truth, we find that there is a genuine issue as to whether Anderson’s vehicle entered Moore’s path beyond the range of his previously assured clear distance.

We find that the trial court abused its discretion in determining that the Andersons had failed to adequately plead a cause of action. At the very least, Moore’s right to summary judgment remains clouded in doubt. At trial, the fact-finder is clearly free to disbelieve the claims Mrs. Anderson set forth in her deposition, and, consequently, the plaintiffs’ tort action may fail. However, such a determination is an issue of material fact and should not have been decided by. the trial court when granting summary judgment. Pa. Gas & Water Co. v. Nenna Frain, Inc., 320 Pa.Super. 291, 299, 467 A.2d 330, 333 (1983) (“In ruling on a motion for summary judgment it is not the court’s function to decide issues of fact but to decide whether there is a genuine issue of fact to be tried.”) When this court accepts Mrs. Anderson’s deposition as the truth, as required under our standard of review, we find that she has clearly set forth a cause of action and should be allowed to proceed to trial.

Reversed and remanded. Jurisdiction relinquished.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in the majority opinion and write separately only to further clarify the applicability of the assured clear distance ahead rule in intersectional accident cases.

As discussed in Judge McEwen’s well-reasoned opinion in Cannon v. Tabor, a number of factors preclude the application of the assured clear distance ahead rule. 434 Pa.Super. 232, 239, 642 A.2d 1108, 1112 (1994). One such factor is whether the object within the approaching motorist’s assured clear distance is static or essentially static. Id.

The law is not clear on whether a vehicle, moving perpendicularly to another vehicle approaching an intersection, is essentially static. In a line of cases culminating in Unangst v. Wkitehouse, this Court has held that a car moving perpendicularly is essentially static, as it is not reducing the distance between it and the oncoming car. 235 Pa.Super. 458, 468, 344 A.2d 695, 700 (1975). See also Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1961); Reifel v. Hershey Estates, 222 Pa.Super. 212, 217-18, 295 A.2d 138, 141 (1972). However, in footnote 4 of Tabor, Judge McEwen indicated his disagreement with that rule stating, “as the rule applies only to static or essentially static objects, it was inapplicable to this situation in which the vehicles were in motion and were perpendicularly positioned.” 434 Pa.Super. at 243, 642 A.2d at 1114 n. 4.

The best approach, hinted at by Judge McEwen in Tabor, seems to be that a perpendicularly moving vehicle may be found essentially static if it entered the intersection outside of an approaching motorist’s assured clear distance. Id. at 246, 642 A.2d at 1115. If the vehicle turns perpendicularly into the intersection within the approaching driver’s assured clear distance, then the driver “has already mentally cleared the distance ahead and the sudden interjection of an instrumentality within the range thereof is not within the specific duty imposed by the [assured clear distance] rule.” Id. at 247, 642 A.2d at 1116 (citing Whitehouse, 235 Pa.Super. at 465-66, 344 A.2d at 699) (emphasis in original). In such a case, the choice of standards of care is between an emergency doctrine standard (if the entry occurred suddenly), or the regular duty of care and control of the road (if the entry occurred at a sufficient distance to allow the driver enough time in which to stop). If the vehicle entered the intersection outside of the approaching motorist’s assured clear distance, however, then the perpendicular vehicle is essentially a static object. It was in the intersection when the intersection came within the approaching driver’s assured clear distance, and it was not moving toward the approaching vehicle so as to reduce the assured clear distance.

In the present case, a factual dispute exists regarding the events leading up to the accident. Summary judgment is inappropriate because appellant might still make out a violation of the assured clear distance rule. Appellant alleges that her car was moving perpendicularly to appellee’s approaching vehicle. Under the above analysis, a characterization of her car as essentially static turns on whether she entered the intersection outside of or within appellee’s assured clear distance. She claims that she did not see appellee approaching when she entered the intersection. If we draw all reasonable inferences in her favor, we could infer that since she could not see him, she turned into the intersection outside of his assured clear distance. Therefore, her vehicle is essentially static and the rule is potentially applicable.

Since appellant could possibly make out a violation of the assured clear distance ahead rule, summary judgment was improper at this stage. Appellant should have the opportunity to make out her prima facie case. If she fails to do so, the trial judge has a number of ways to dispose of the suit after appellant rests her case.

      . A motorist’s assured clear distance is essentially the distance that he or she can see ahead. Tabor, 434 Pa.Super at 238, 642 A.2d at 1111 (the assured clear distance rule requires a driver to be able to stop his or her vehicle "within the distance that he/she can clearly see”).

      . If appellant succeeds in making out a prima facie case of negligence based on the assured clear distance ahead rule, and appellee continues to assert that he was driving slowly when appellant turned suddenly in front of him, then this could be one of the rare situations where it would be proper to instruct the jury on both the assured clear distance ahead rule and the sudden emergency doctrine. Tabor, 434 Pa.Super. at 242, 642 A.2d at 1113 n. 4 (finding dual instructions proper only when, due to disputed facts, "the very existence of facts which could support a finding of a sudden emergency was a question for the jury”). "The dual instruction assures that the jury has the applicable law for whatever factual scenario they find occurred.” Papandrea v. Hartman, 352 Pa.Super. 163, 170, 507 A.2d 822, 826 (1986) (citing Ernst v. Ace Motor Sales, 550 F.Supp. 1220, 1226 (E.D.Pa.1982), affirmed without opinion, 720 F.2d 661 (3d Cir.1983)).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    650 A.2d 1094
    The 220 PARTNERSHIP, Appellant, v. PHILADELPHIA ELECTRIC COMPANY and Gregory Golazeski, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Dec. 5, 1994.

      Seth J. Jamison, Philadelphia, for appellant.
    Jeffrey J. Norton, Philadelphia, for appellees.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge:

The 220 Partnership (the partnership) filed a civil action by complaint in which it alleged that Philadelphia Electric Company (PECO) and its agent, Gregory Golazeski, Esquire, had interfered maliciously with certain rental contracts with tenants of the partnership. To the plaintiffs complaint the defendants filed preliminary objections in the nature of a demurrer. The defendants alleged therein that in separate proceedings, held in bankruptcy court, it had been determined factually that the partnership’s interest in the rental property had been divested by judicial sale prior to the alleged acts of interference. The trial court, believing it could take judicial notice of the findings of a federal bankruptcy court, sustained the preliminary objections and dismissed the complaint. The partnership appealed. We reverse.

The allegations of the complaint are that the partnership owns in fee simple a twelve story office building located at 220 South 16th Street, Philadelphia, and leases space therein to various tenants. On or about October 22, 1992, PECO, through its agent, Gregory Golazeski, Esquire, threatened to terminate electric service at the office building. PECO also contacted the building’s tenants and advised them that the partnership had been delinquent in paying its electric bill and that electric service to the office building could be terminated. On July 27, 1993, PECO allegedly contacted the tenants again and advised them that the partnership was still delinquent in paying its bills and warned the tenants not to pay their monthly rent to the partnership or they would risk termination of electric service. The partnership alleged that PECO’s charges of delinquency had been incorrect and asserted that its outstanding bills had been paid in full. PECO’s actions, it was alleged, had left the tenants of the office building with a false impression regarding their ability to receive uninterrupted electric service and had caused several tenants either to terminate their lease agreements prematurely or to default on their rent. This tortious interference with contractual relations, it was alleged, had caused damages to the partnership.

In response to the partnership’s complaint, PECO filed preliminary objections in the nature of a demurrer in which PECO contested the partnership’s claim that it had been the owner of the downtown office building and referred to an order entered in the United States District Court for the Eastern District which had held that the partnership “owned no real estate” because the office building had been sold at Sheriffs Sale on July 6, 1992. Upon these allegations, the trial court granted PECO’s preliminary objections and dismissed the complaint. This appeal followed.

When a defendant files preliminary objections in the nature of a demurrer, he necessarily admits as true all of the well-pleaded facts in the complaint, as well as any reasonable inferences to be drawn therefrom. Preiser v. Rosenzweig, 418 Pa.Super. 341, 346, 614 A.2d 303, 305 (1992), aff'd, 538 Pa. 139, 646 A.2d 1166 (1994); Wojciechowski v. Murray, 345 Pa.Super. 138, 140, 497 A.2d 1342, 1343 (1985). A court should sustain preliminary objections in the nature of a demurrer only where it appears from the face of the complaint that recovery upon the facts alleged is not permitted as a matter of law. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super 497, 500, 450 A.2d 36, 38 (1982). Any doubt as to the legal sufficiency of the complaint should be resolved in favor of overruling the demurrer. Gekas v. Shapp, 469 Pa. 1, 6, 364 A.2d 691, 693 (1976). When considering a demurrer “a court cannot consider matters collateral to the complaint but must limit itself to such matters as appear therein.” Coccia v. Coccia, 285 Pa.Super. 259, 261-262, 427 A.2d 212, 213 (1981).

“Judicial notice is intended to avoid the formal introduction of evidence in limited circumstances where the fact sought to be proved is so well known that evidence in support thereof is unnecessary, but should not be used to deprive an adverse party of the opportunity to disprove the fact.” Insurance Adjustment Bureau v. Insurance Commissioner, 86 Pa.Commw. 491, 495, 485 A.2d 858, 860 (1984) (citations omitted). See also: Wells v. Pittsburgh Board of Public Education, 31 Pa.Commw, 1, 5, 374 A.2d 1009, 1011 (1977). When considering preliminary objections in the nature of a demurrer, a court must severely restrict the principle of judicial notice, as the purpose of a demurrer is to challenge the legal basis for the complaint, not its factual truthfulness. Martin v. Commonwealth, Dept. of Transp., 124 Pa.Commw. 625, 630-631, 556 A.2d 969, 972 (1989). In Clouser v. Shamokin Packing Co., 240 Pa.Super. 268, 361 A.2d 836 (1976), the Superior Court held that the trial court should not have taken judicial notice of facts not alleged in the complaint and said:

Although there does not seem to be any reason entirely to preclude a judge from taking judicial notice at the demurrer stage, the use of the doctrine should be severely limited: “In ruling on a demurrer, the judge must decide whether the complaint itself states a cause of action---- It has been argued, therefore, that judicial notice cannot be applied to the construction of a pleading and that, in ruling upon a demurrer, while the court must take as true every fact well pleaded, it must assume no others. This broad contention has been rejected as a basis for completely prohibiting the use of judicial notice in ruling upon a demurrer____ However, in light of the judge’s limited function in ruling on a demurrer, there appears to be cogent reasons for urging very limited use of judicial notice in this area. A court, in ruling on a demurrer, should refrain from noticing any fact which is not literally indisputable and which the parties could not reasonably raise in further pleadings or on argument at trial.” Comment, The Presently Expanding Concept of Judicial Notice, 13 Vill.L.Rev. 528, 536-537 (1968).

Id. at 275-276, 361 A.2d at 840-841. Therefore, review should be restricted to the facts alleged in the complaint, and a trial court should not take judicial notice of collateral facts. Chorba v. Davlisa Enterprises, Inc., supra 303 Pa.Super. at 500, 450 A.2d at 38.

“[A] court may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own, even though the contents of those records may be known to the court.” Naffah v. City Deposit Bank, 339 Pa. 157, 160, 13 A.2d 63, 64 (1940). See also: Woolard v. Burton, 345 Pa.Super. 366, 372-373, 498 A.2d 445, 448 (1985); Gulentz v. Schanno Transp., Inc., 355 Pa.Super. 302, 307, 513 A.2d 440, 443 (1986), allocatur denied, 515 Pa. 580, 527 A.2d 541 (1987). It follows that unless the facts relied upon to establish it appear from the complaint itself, the defense of collateral estoppel may not be raised by preliminary objections. See: Naffah v. City Deposit Bank, supra; Steel v. Levy, 282 Pa. 338, 342, 127 A. 766, 767 (1925). See also: Cattery v. Municipal Authority of Blythe Township, 432 Pa. 307, 309, 243 A.2d 385, 386 (1968).

The general rule against taking judicial notice when considering preliminary objections in the nature of a demurrer is subject to limited exceptions. It is appropriate for a court to take notice of a fact which the parties have admitted or which is incorporated into the complaint by reference to a prior court action. See: Gulentz v. Schanno Transp., Inc., supra 355 Pa.Super. at 307, 513 A.2d at 443. See also: Kiely v. J.A. Cunningham Equip., Inc., 387 Pa. 598, 602, 128 A.2d 759, 760 (1957). In the instant action, however, appellant did not admit to any change in its ownership interest in its downtown office building, and appellant’s complaint does not detail any facts or issues pleaded before another court or incorporate by reference a prior action.

It was error, therefore, for the trial court to dismiss appellant’s complaint in response to preliminary objections reciting facts found in a federal action to which appellant had been a party. The defense of collateral estoppel should have been raised in an answer on the merits. Cf. Pa.R.C.P. 1030 (res judicata). Thus, if there be any dispute as to the facts supporting such a defense, they can be raised and adjudicated in an appropriate manner in the litigation. The trial court should not, at the preliminary objection stage of this action, have accepted as true facts which were in direct conflict with the well pleaded facts of the complaint. Where material facts are in dispute, judicial notice may not be used to deny a party an opportunity to present contrary evidence. See: Wells v. Pittsburgh Board of Public Education, supra 31 Pa.Commw. at 5, 374 A.2d at 1011.

Reversed and remanded for further proceedings. Jurisdiction is not retained meanwhile.

      . Whether the facts alleged in the complaint state a cause of action for . tortious interference with contractual relations is not before us, and with respect thereto we express no opinion.


author: KELLY, Judge:

text:
    651 A.2d 144
    COMMONWEALTH of Pennsylvania, Appellant, v. J.C.K.
    Superior Court of Pennsylvania.
    Submitted Sept. 27, 1994.
    Filed Nov. 28, 1994.

      Kevin F. McCarty, Asst. Dist: Atty., Pittsburgh, for Com., appellant.
    Joseph E. Vogrin, III, Pittsburgh, for appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   KELLY, Judge:

In this opinion, we are called upon to determine whether a conditional gubernatorial pardon precludes a person from having his entire criminal record expunged. We hold that it does and affirm in part, reverse in part, and remand for further proceedings in accordance with this opinion.

The facts and procedural history of this case are as follows. Appellee was adjudged guilty of various criminal charges, including aggravated assault, simple assault, disorderly conduct, underage drinking and harassment, all of which took place between 1978 and 1985. Appellee was sentenced to two years probation on the aggravated assault conviction in 1979, and three years probation on two counts of simple assault in 1985. Appellee was sentenced to pay fines on all other offenses. Appellee served his sentence and paid the requisite fines.

On April 22, 1993, Governor Robert P. Casey granted appellee pardons on all his convictions. On July 8, 1993, appellee filed a motion to expunge his criminal record. At a hearing on appellee’s motion to expunge on September 9,1993, the trial court granted the motion. The trial court then issued expungement orders to the Honorable Robert E. Colville (District Attorney, Allegheny County), David Brandon (Bail Agency), City Court (District Magistrate), Pittsburgh Police (Arresting Agency), Bureau of Criminal Information, Pennsylvania State Police/F.B.I., Sheriffs Office, and the Clerk of Courts, Allegheny County. The order directed the aforementioned keepers of criminal records to expunge and destroy the official and unofficial arrest and other documents pertaining to the arrest or prosecution of the appellee.

The Commonwealth subsequently filed a motion to stay the order of expungement pending the outcome of appeal. The trial court granted the Commonwealth’s motion on October 12, 1993, and this timely appeal followed.

The Commonwealth raises the following issue for our review:

WHETHER THE LOWER COURT ERRED IN GRANTING APPELLEE’S MOTION TO EXPUNGE CRIMINAL RECORDS?

Commonwealth’s Brief at 5.

The instant appeal asks this Court to assess the effect of a conditional gubernatorial pardon on appellee’s petition to expunge his criminal record. Governor Casey granted appellee’s request for pardons of each of his prior convictions. The pertinent language of each pardon was identical and reads as follows:

“THEREFORE, KNOW, YE, That in consideration of the premises and by virtue of the authority vested in me by the Constitution, I have pardoned the said [J.C.K.] of the crimes whereof he was convicted as aforesaid, and he is hereby thereof fully pardoned accordingly. Subsequent to the date I affix my signature below, conviction for a new summary, misdemeanor, or felony offense may, upon a hearing by the Board of Pardons, render my granting of this clemency null and void.”

(Gubernatorial Pardon, Robert P. Casey, Governor, April 22, 1993).

The Pennsylvania Constitution vests in the Governor the sole authority to grant pardons. Pa. Const. Art. IV, § 9(a). We note that the Governor’s pardon in this case is a conditional pardon. Our courts have long recognized the Governor’s authority to grant conditional pardons. See Narcise v. Eastern State Penitentiary, 137 Pa.Super. 394, 399, 9 A.2d 165, 167 (1939) (citing Flavell’s Case, 8 Watts & Serg. 197 (1844) (governor has power to grant pardons with a binding condition subsequent, on breach of which the pardon would become null, and the original sentence be carried into effect)).

The rationale for imposing conditions on gubernatorial pardons was eloquently stated by the Supreme Court of Virginia as follows:

A pardon is granted on the theory that the convict has seen the error of his ways, that society will gain nothing by his further confinement, and that he will conduct himself in the future as an upright, law-abiding citizen. However, it is fitting, under some circumstances, that certain conditions insuring good conduct should be required of the convict for this opportunity to escape the service of the full penalty prescribed for his former crimes. A future violation of the penal law, whether such takes place during the period that the pardoned convict was originally sentenced or thereafter, demonstrates that the time actually served by the convict was not enough to impress upon him the error of his old course of conduct....

Wilborn v. Saunders, 170 Va. 153, 162, 195 S.E. 723, 726 (1938). With these principles in mind, we address the Commonwealth’s argument. The Commonwealth avers that the trial court committed error by ordering the expungement of all of appellee’s criminal records. Specifically, the Commonwealth asserts that in order for the gubernatorial pardon to be revoked and convictions reinstated in the event that appellee breaches the condition, a record of appellee’s convictions must be maintained by an agency having both an interest in seeing that appellee upholds his obligation and the ability to know when appellee has been convicted of another offense. Thus, the Commonwealth concludes, the Office of the District Attorney, Allegheny County, is the proper agency for this responsibility. We agree with the Commonwealth that under these circumstances, appellee’s criminal record must be maintained by a criminal justice agency of the Commonwealth in order to effectuate the condition of the Governor’s pardon. However, based on the foregoing, we conclude that the Pennsylvania State Police is the governmental agency best equipped to carry out the requirements of the Governor’s pardon.

Instantly, the trial court stated that it was bound by our Supreme Court’s decision in Commonwealth ex rel. Banks v. Cain, 345 Pa. 581, 28 A.2d 897 (1942), to order the expungement of appellee’s record. In Commonwealth ex rel. Banks v. Cain, supra, the court was faced with a constitutional chailenge to the act which created the Pennsylvania Board of Probation and Parole. The act was challenged, inter alia, as an infringement on the power of the governor to grant commutations of sentence and pardons. In illustrating the difference between a pardon and parole, the court stated the following:

A pardon is the exercise of the sovereign’s prerogative of mercy. It completely frees the offender from the control of the state. It not only exempts him from further punishment but relieves him from all the legal disabilities resulting from his conviction. It blots out the very existence of his guilt, so that, in the eye of the law, he is thereafter as innocent as if he had never committed the offense: Diehl v. Rodgers, 169 Pa. 316, 319, 32 A. 424, 425 [1895]; Commonwealth v. Quaranta, 295 Pa. 264, 273, 145 A. 89, 93 [1928]; Commonwealth v. House, 10 Pa.Super. 259, 264, 265.

Commonwealth ex rel. Banks v. Cain, supra at 585-86, 28 A.2d at 899 (emphasis omitted). This case, however, involves a conditional pardon. Our research discloses that neither Commonwealth ex rel. Banks v. Cain, supra, nor the cases it cites in support of the aforementioned proposition involved the factual scenario presented here. Thus, because we find Commonwealth ex rel. Banks v. Cain, supra, factually inapplicable to the instant case, we conclude that the trial court erred in finding that Commonwealth ex rel. Banks v. Cain, supra, mandates expungement of appellee’s criminal record.

Moreover, although we recognize that our Supreme Court in Commonwealth v. C.S., 517 Pa. 89, 92-93, 534 A.2d 1053, 1054 (1987), restated the same principle set-out in Commonwealth ex rel. Banks v. Cain, supra, as supportive of its conclusion that “a pardon without expungement is not a pardon,” there exists no evidence that Commonwealth v. C.S., supra, or any of the cases cited by appellee involved a conditional pardon as here. Thus, we are constrained to conclude that Commonwealth v. C.S., supra, is not controlling of the instant appeal.

However, our analysis does not end here. Our review of the pertinent statutes and case law in light of the condition contained in appellee’s pardons reveals that there appears to be no mechanism in place to reinstate the convictions of a pardoned convict who breaches a condition of his pardon. Additionally, our research of the relevant case law fails to shed any light on this issue, because none of the prior decisions of our appellate courts appear to have addressed the propriety of an expungement order following the grant of a conditional pardon. The record reflects the trial court’s concern with this issue as well:

THE COURT: I think that what you should do, after I grant these, which I’m going to do today, is to take an appeal.
I don’t like to be appealed that often, but there is something screwy here, and I think that it is up to the appellate courts to decide this.
If the Governor is going to grant a pardon, he is going to grant temporary pardons or conditional and revocable pardons, or whatever he wants to call it, I don’t know because I never heard of it.

(N.T. 9/9/93 at 7).

In order to give full effect to the condition in appellee’s pardon, the executive branch, headed by the Governor, must have the ability to exercise its right to nullify appellee’s pardon. It necessarily follows then, that appellee’s prior criminal record must continue in existence in order for the Governor to reinstate appellee’s prior criminal record. If appellee’s criminal records were to be expunged in toto, and thus, cease to exist in the eyes of the law, the condition contained in appellee’s pardon would be rendered meaningless. Therefore, we conclude that under the circumstances presented here, some record of appellee’s prior convictions must be kept in order to effectuate the Governor’s conditional pardon.

Instantly, the trial court accepted as credible appellee’s assertion that his pardon was granted to clear his name and enhance his employment prospects. The trial court then ordered numerous governmental agencies to expunge their records of appellee’s convictions.

We agree with the trial court that a pardoned convict should be given the opportunity to pursue employment without the stigma of a prior conviction attached to his name. Moreover, we recognize the obvious negative implications that may arise from a potential employer’s standard criminal background check, that turns up a prior conviction, notwithstanding the existence of a gubernatorial pardon.

The harm associated with a prior criminal conviction like [t]he harm ancillary to an arrest record is obvious: Information denominated a record of arrest, if it becomes known, may subject an individual to serious difficulties. Even if no direct economic loss is involved, the injury to an individual’s reputation may be substantial. Economic losses themselves may be both direct and serious. Opportunities for schooling, employment, or professional licenses may be restricted or nonexistent as a consequence of the mere fact of an arrest, even if followed by acquittal or complete exoneration of the charges involved.

Commonwealth v. Malone, 244 Pa.Super. 62, 68, 366 A.2d 584, 588 (1976) (quoting Menard v. Mitchell, 139 U.S.App.D.C. 113, 430 F.2d 486, 490-91 ([D.C.Cir.] 1970).

We laud appellee for his accomplishments and apparent rehabilitation, and we share his concerns. However, in the interest of justice, and due to the conditional nature of the Governor’s pardon, we conclude that appellee’s criminal record must be kept in existence for the sole limited purpose of reinstating his prior convictions in the event appellee is subsequently convicted of a new summary, misdemeanor, or felony offense.

We are, therefore, of the opinion that the Pennsylvania State Police is the proper agency to maintain appellee’s criminal record for this purpose. However, in keeping with the overarching interests of appellee, we direct that appellee’s criminal record must be extracted from the central repository and its automated system, and be sealed by the trial court and returned to the Pennsylvania State Police. We further direct that the information contained therein shall not be disseminated to any person, or organization, with the sole exception of inquiries from criminal justice agencies as defined in the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq., for the exclusive purpose of instituting proceedings to reinstate appellee’s prior convictions in the event appellee is subsequently convicted of a new summary, misdemeanor, or felony offense, as provided by the condition of his pardon. Finally, we direct the trial court to change the caption of this case to correspond with this court’s caption in order to preserve the confidentiality of appellee.

Thus, we conclude that the trial court erred by ordering the expungement of appellee’s criminal record, as that order relates to the Pennsylvania State Police. Therefore, we affirm the trial court’s expungement orders directed to the District Attorney of Allegheny County, David Brandon (Bail Agency), City Court (District Magistrate), the Pittsburgh Police Department (Arresting Agency), Bureau of Criminal Information, the F.B.I., the Sheriffs Office (Allegheny County) and the Clerk of Courts, Allegheny County. We reverse the trial court’s order directing the Pennsylvania State Police to expunge appellee’s criminal record, and remand for proceedings in accordance with this memorandum.

Jurisdiction relinquished.

      . In all criminal cases except impeachment, the Governor shall have power to remit fines and forfeitures, to grant reprieves, commutation of sentences and pardons; but no pardon shall be granted, nor sentence commuted, except on the recommendation in writing of a majority of the Board of Pardons, after full hearing in open session, upon due public notice. The recommendation, with the reasons therefor at length, shall be delivered to the Governor and a copy thereof shall be kept on file in the office of the Lieutenant Governor in a docket kept for that purpose.
      Pa. Const. Art. IV, § 9(a).

      . A conditional pardon is
      [o]ne to which a condition is annexed, performance of which is necessary to the validity of the pardon. A pardon which does not become operative until the grantee has performed some specific act, or where it becomes void when some specific event transpires. One granted on the condition that it shall only endure until the voluntary doing of some act by the person pardoned, or that it shall be revoked by a subsequent act on his part, as that he shall leave the state and never return.
      Black's Law Dictionary, 5th Ed. at 1003. Compare Absolute or unconditional pardon. One which frees the criminal without any condition whatever. That which reaches both the punishment prescribed for the offense and the guilt of the offender. It obliterates in legal contemplation the offense itself.

        Id.

      . Act of August 6, 1941, P.L. 861, 61 P.S. § 331.1 et seq.

      . We do agree, however, that Commonwealth v. C.S., supra does reverse the line of cases that held that expungement of a criminal record was not permitted where the gubernatorial pardon was for reasons other than the innocence of the former convict, because in Commonwealth v. C.S., supra, the appellant plead guilty, was convicted, served the minimum sentence and completed parole without incident. See e.g., Commonwealth v. Homison, 253 Pa.Super. 486, 385 A.2d 443 (1978) (en banc ) (grant of full pardon for reasons other than innocence does not entitle defendant to expunction of his criminal record); Commonwealth v. Binder, 267 Pa.Super. 558, 407 A.2d 50 (1979) (governor’s grant of full pardon, for reasons other than innocence, does not entitle one who has been convicted of a crime to expunction of his criminal record); Cohen v. Barger, 11 Pa.Cmwlth. 617, 314 A.2d 353 (1974) (full pardon granted to accused did not entitle him to have his criminal record expunged from state police files where pardon had not been granted for innocence). As those cases similarly did not involve a conditional pardon, the Supreme Court’s reversal sub silentio of those cases does not affect our disposition of the instant appeal.

      . We note that our Supreme Court in Commonwealth v. C.S., supra, did not mention whether the pardon granted in that case was a full or conditional pardon. However, our review of the Governor’s pardon in this case reveals that the standard pardon form used by the Governor’s Office concludes with the following scripted phrase: "... [he/she] is hereby thereof fully pardoned accordingly.” The typewritten condition was inserted immediately following the form language. While we cannot be sure that Governor Casey utilized the same form language in granting the pardon referred to in Commonwealth v. C.S., supra, as he did in this case, the fact remains that the court in Commonwealth C.S., supra, did not discuss or mention that anything other than a "standard” gubernatorial pardon was granted. Had the pardon in that case contained any conditions, let alone one identical to the condition in this case, we are of the opinion that the Supreme Court would have mentioned it, for it would have been relevant to the propriety of an expungement order. As the court did not make mention of any condition, much less one identical to the condition at issue here, we are constrained to re-state that the Court’s decision in Commonwealth v. C.S., supra is not controlling.

      . “Expunge” is defined in the Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq. as:
      (1) To remove information so that there is no trace or indication that such information existed;
      (2) to eliminate all identifiers which may be used to trace the identity of an individual, allowing remaining data to be used for statistical purposes; or
      (3) maintenance of certain information required or authorized under the provisions of section 9122(c) (relating to expungement), when an individual has successfully completed the conditions of any pretrial or post-trial diversion or probation program.
      18 Pa.C.S.A. § 9102.

      . The Criminal History Record Information Act, 18 Pa.C.S.A. § 9101 et seq. permits the dissemination of criminal history record information to individuals and non-criminal justice agencies upon request. See 18 Pa.C.S.A. § 9121.

      . We note that the Commonwealth suggests that the Office of the District Attorney for Allegheny County would be the appropriate agency for this task because it has an interest in making sure that appellant complies with the condition and the ability to know when appellee has been convicted of another criminal offense. However, in light of the fact appellee is not bound in any way to remain in Allegheny County, we are of the opinion that the Pennsylvania State Police is in the best position to monitor criminal proceedings and dispositions throughout the entire Commonwealth. Moreover, our decision is consistent with the Pennsylvania State Police's statutory duty to maintain criminal records and information. 18 Pa.C.S.A. § 9101 et seq.; 61 P.S. § 2171.

      . See Criminal History Record Information Act, 18 Pa.C.S.A. § 9102, which defines "central repository" as the central location for the collection, maintenance and dissemination of criminal history record information by the Pennsylvania State Police.


author: OLSZEWSKI, Judge:

text:
    651 A.2d 149
    Leonard BARRACK and Lynne Barrack, Appellees, v. James J. KOLEA, Beverly Kolea, John J. Kolea and Patricia Kolea, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 5, 1994.

      David A. Koss, Wynnewood, for appellants.
    Sheldon L. 'Albert, Philadelphia, for appellees.
    Before OLSZEWSKI, HOFFMAN and HESTER, JJ.
   OLSZEWSKI, Judge:

James, Beverly, John, and Patricia Kolea (appellants) appeal a judgment awarding Leonard and Lynne Barrack (appellees) $109,597 in damages for appellants’ breach of contract. Following a six-day bench trial, appellants moved for a judgment n.o.v., remittitur, or a new trial. Their motion was denied. This appeal followed.

Appellants are builders of fine homes in the Philadelphia area. On January 31, 1990, they entered into a contract with appellees to complete construction of a home in consideration for $1,900,000. Settlement was executed on June 28, 1990. On that date a punch list of items to be completed was furnished to appellees, with the proviso that items within the control of seller would be completed within two weeks of that date. R.R. at 1775a. (This list merged punch lists of incomplete items created prior to settlement.) The home still was not finished when appellees moved into it.in late August. Appellants and their subcontractors nonetheless continued to work on appellees’ home. On October 12, 1990, appellees complained to appellants in writing that significant problems with the house remained unresolved. R.R. at 1778a. On October 25, 1990, the parties agreed to a newly revised punch list. R.R. at 1783a-1784a.

The work on the home continued until January of 1991, when the relationship between the two parties became irrevocably severed. Appellees were becoming more and more frustrated and dissatisfied with appellants’ inability to promptly and effectively make all necessary repairs and finish all of the required work. Earlier in December, 1990 appellants wrote appellees a letter claiming that all punch list items were complete, except for work on the pool, which would be worked on the following spring. R.R. at 1566a. Appellants now admit that their December, 1990 letter was incorrect. Appellants’ brief at 10. Appellees responded to this letter with a new punch list. In early January, one of appellees met with the builders’ representative to further discuss the problems with the house. As a result of that meeting, appellants sent appellees a letter itemizing a new punch list of uncompleted work. Appellees believed this last list seriously under-represented the number of items to be completed, and considered the letter to be an insult. R.R. at 882a. In response, appellees sent a five-page letter listing the work still unfinished by appellants. This letter gave appellants until the 23rd of January, 1991, to make “acceptable arrangements”, or else appellees would initiate legal proceedings. The parties could not resolve their differences, and no further work was completed by appellants on appellees’ home. On February 1, 1991, appellees instituted this present action.

Appellees claimed that the work appellants and their subcontractors did was shoddy and unprofessional. They also claim that at some point in the fall of 1990 appellants became arrogant, uncooperative, and uninterested in hearing their complaints. R.R. at 150a-152a, 872a. Workers were improperly supervised and only gave cursory attention to the problems in the house. R.R. at 151a, 891a. Major items of appellees’ complaint included an improperly installed roof, falling roof tiles, a leaking swimming pool and spa, kitchen counter-tops installed without a bullnose sufficient in width to protect the cabinets, an incomplete bathroom vent system, outside drainage problems, exposed drywall seams, improperly functioning heating and plumbing systems, a noninsulated cupola window, condensation and/or water seepage inside the house, poorly stained wooden floors and improperly matched floor tiles, and a general unfinished quality to the house. The following colloquy between the court and one of appellee’s expert witnesses distills some of the flavor of appellees’ complaints:

THE COURT: I must say, it’s hard for me to believe that every trade, every trade involved in this house screwed up. Not one of them did it right. We got the roofers screwing up, we got the tile setters screwing up, we got the carpenters screwing up, you got your heating and air conditioning guys screwing up. You got the — what do you call the fellows that do the wallboard?
THE WITNESS: Drywallers.
THE COURT: Drywallers. They screwed up. Nobody did anything right? There’s nothing complimentary you can say about one trade, one subcontractor? Not one you — you couldn’t find one nice thing to say? How about the electrician?
THE WITNESS: The electrician had problems within the house as well.
THE COURT: Even the electrician. Even the electrician.
THE WITNESS: Even the electrician.

R.R. at 415a-416a. At one point in the proceedings the court stated that “this is starting to sound like that movie, ‘The Money Pit.’ ” R.R. at 178a. Appellees claimed damages in excess of $200,000. They were awarded $109,597.

Appellants allege the trial court erred by: (1) finding that appellees were entitled to money damages despite an express agreement between the parties that appellants’ obligation if work was incomplete or substandard was limited to the repair and replacement of any defective materials, equipment, or workmanship; (2) failing to recuse itself because it prejudged the issue of the improperly installed roof; (3) assessing damages for the defective roof in light of appellee’s failure to prove specific, sustained damages; (4) allowing hearsay testimony on the matter of the cost to repair and/or replace the pool and roof; and (5) awarding excessive damages in light of the weight of the evidence. We will examine appellants’ issues seriatim.

The scope of review in deciding whether or not a trial court erred in not granting a new trial is broader than when we pass on whether or not a denial of a judgment n.o.v. was an abuse of discretion. Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982). Here we must consider all of the evidence. Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970). Only when the verdict is so contrary to the evidence so as to shock one’s sense of justice should a new trial be granted, however. Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). We will not reverse the decision of the trial court in refusing to grant a new trial unless there has been a clear abuse of discretion or an error in law determinative to the outcome of the case. Spang & Co. v. United States Steel Corp., 519 Pa. 14, 545 A.2d 861 (1988).

The contract executed by the parties in which appellees agreed to buy the house in consideration for $1,900,000 stated, in part, the following:

4. Alteration and Construction of the Property.
(b). Said dwelling unit and appurtenances shall be constructed in a first class, workmanlike manner ...
(e). Seller warrants to Buyer that all materials and equipment incorporated into the alterations and construction of the dwelling unit and appurtenances will be new, good quality, free from liens and defects---- The foregoing warranties shall run to buyer only, shall be exclusive and in lieu of any and all other warranties.... These warranties shall continue for a period of twelve (12) months from the date of the settlement, and any claim made by Buyer pursuant to these warranties must be in writing to Seller and received by Seller within said twelve (12) month period from the date of the settlement. Seller’s obligation under these warranties is limited to the repair or replacement of any defective materials, equipment or workmanship.

R.R. at 1738a-1739a. Appellants argue that their obligation under the contract was limited by the express provision of the warranty. They further claim that the language of section 4(e) of the contract, supra, precluded an award of money damages by strictly limiting their duty following their breach of the contract to the repair or replacement of the defective materials and/or appurtenances by themselves or their agents. Appellees’ only recourse then if appellants breached the contract by not constructing the house in a “first class, workmanlike manner” would be to allow appellees to cure the defect. We believe that this argument is without merit.

We find no precedent for appellants’ proposition. Appellants cite the following to support their theory: Elliott-Lewis Corp. v. York-Shipley, Inc., 372 Pa. 346, 94 A.2d 47 (1953); New York State Electric & Gas Corp. v. Westinghouse Electric Corp., 387 Pa.Super. 537, 564 A.2d 919, 924 (1989); Eimco Corp. v. Joseph Lombardi & Sons, 193 Pa.Super. 1, 162 A.2d 263, 266 (1960); and Magar v. Lifetime, Inc., 187 Pa.Super. 143, 144 A.2d 747 (1958). In these cases it was held that exclusive remedy clauses in contracts are fully enforceable. See Jim Dan, Inc. v. O.M. Scott & Sons Co., 785 F.Supp. 1196 (W.D.Pa.1992); National Cash Register Co. v. Modem Transfer Co., Inc., 224 Pa.Super. 138, 302 A.2d 486 (1973). These clauses are not interpreted to mean, however, that an innocent party’s sole remedy would be to allow the breaching party unlimited attempts to cure the defect, to have unlimited bites at the apple, so to speak. Cf. Elliott-Lewis, supra, 372 Pa. at 348-50, 94 A.2d at 49 (stating that exclusive remedy clauses are to be strictly but reasonably construed). Rather, exclusive remedy clauses such as the one at issue are primarily meant to limit the damage award to actual, or substitutionary, as opposed to consequential and incidental damages. Cfi White, J.J. & Summers R.S., UNIFORM COMMERCIAL CODE § 12-10 (3rd ed. 1988) (suggesting that when an exclusive remedy fails, the innocent party might be entitled to recover consequential and incidental damages as well as some form of difference of money damages).

In Westinghouse, plaintiff alleged defects in the design, manufacture, and supply of a generator, seeking to recover damages for lost profits as well as the cost of replacement power, in addition to the replacement of the defective parts. There we held that the recovery of consequential and incidental damages was precluded under the terms of the contract. Westinghouse, supra, 387 Pa.Super. at 547-50, 564 A.2d at 924-925. Defendant in Westinghouse did, moreover, cure the breach by replacing the defective parts within the time expressed in the purchase order. Id. at 558-60, 564 A.2d at 930. Westinghouse simply reaffirms the proposition that plaintiffs remedy may be limited to the terms of the exclusive remedy clause, and is silent on the question of whether the clause is still enforceable in the face of a repeated failure to cure. Similarly both Elliott-Lewis and Eimco simply hold that courts will enforce a remedy clause that contractually excludes an award of consequential or incidental damages. E.g., Eimco, 193 Pa.Super. at 6-7, 162 A.2d at 266.

In Magar the exclusive remedy clause limiting the builder’s liability stated, “The liability of the Contractor for defective material or installation under this guarantee is hereby limited to the replacement or correction of said defective material and/or installation, and no other claims or demands shall be made upon, or required to be allowed by the Contractor.” Magar, supra, 187 Pa.Super. at 146, 144 A.2d at 748. There we stated that “[t]he limitation of liability for damages thus agreed upon in the contract was valid and enforceable.” Id. We do not now interpret this statement to mean that money damages were precluded, or would necessarily be precluded, by similarly worded exclusive remedy clauses.

At most we interpret the exclusive remedy clause in the contract before us as requiring appellees to give appellants a reasonable time to cure defective materials and workmanship. Cf. 13 Pa.C.S.A. § 2508 (giving a seller a reasonable time to cure a defect in tendered goods when either time of performance of the contract has not yet expired or seller reasonably believed buyer would accept the goods). By analogy to sale of goods contracts, the definition of a reasonable time to cure depends upon the attending circumstances. Id. at Comment 3. Here the parties settled in June. Appellees moved into the house at the end of August. By mid-October they were still experiencing difficulties with the house. They did not see any resolution to their problems in sight by year’s end, nevertheless they gave appellees one final chance to rectify the situation. Appellants had exhausted all reasonable time to cure and still had not made good on their warranty.

We also reference, by analogy, to the Pennsylvania Uniform Commercial Code, to note that appellees could have reasonably believed that the January letter from appellants which they failed to include on their punch list a number of items still uncompleted, acted as a repudiation of appellants’ obligations under the warranty. Cf. 13 Pa.C.S.A. § 2610 (stating in its comment that “[rjepudiation can result from action which reasonably indicates a rejection of the continuing obligation”). Under such circumstances, the remedy available to appellees under the warranty failed in its essential purpose. See Earl Brace & Sons v. Ciba-Geigy Corp., 708 F.Supp. 708 (W.D.Pa.1989).

Appellants’ second argument is that the Honorable Bernard J. Avellino, presiding over the trial, prejudged the issue of the quality of the roof and should have recused himself upon appellants’ motion. This motion was denied. R.R. at 847a. To support their claim appellants assert that the court asked appellees and their witnesses leading questions, in effect supplying for appellees’ case various claims that they themselves might not have introduced at trial. R.R. at 843a-847a. “It is the burden of the party asserting that a judge should be disqualified to make sufficient allegations of bias, prejudice or unfairness necessitating recusal, and a failure to do so will result in denial of the recusal motion.... If a judge rules that he or she can hear and dispose of the case fairly and without prejudice, that decision will not be disturbed on review absent an abuse of discretion.” Commonwealth v. Frank, 395 Pa.Super. 412, 436, 577 A.2d 609, 621, allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990) (quoting Commonwealth v. O’Shea, 523 Pa. 384, 408, 567 A.2d 1023, 1034 (1989) (citations omitted)). A review of the record reveals that the court was merely trying to expeditiously ascertain the allegations of appellees. It should be remembered that this was not a jury trial. The colloquies between appellees and the court were attempts to clarify the record and are not evidence of the court’s pre-judging the testimony. One brief exchange between the court and appellants’ attorney illustrates the difference between attempting to understand testimony and prematurely agreeing with testimony:

THE COURT: Okay. And all of these things are based upon assumptions, on assumptions, i.e., that this needs to be done or it’s causally related to a breach of contract. I understand all that.
MR. KOSS: That’s what I wanted to bring out your Honor.
THE COURT: I understand all of that. Believe me, I understand all of that. If I don’t buy this — if I don’t buy one of the underlying assumptions, we never get to the price.

R.R. at 556a. Appellants have failed to meet their burden to prove that there was an abuse of discretion in the trial court’s refusal to recuse itself.

Appellants’ third claim argues that the evidence was too insubstantial to support an award for damages for the repair and/or replacement of the roof. Evidence is substantial if relevant and adequate to support a reasonable person’s conclusion. Frye v. Schweiker, 587 F.Supp. 455 (D.C.Pa.1984). Inferences of fact which are mere guesses, conjecture, or speculation will not support a verdict, however. Farnese v. Southeastern Pennsylvania Transp. Authority, 338 Pa.Super. 130, 134-36, 487 A.2d 887, 890 (1985). “[T]here must be evidence upon which logically its conclusion may be based.” Id. (citations omitted).

Here appellants admit that the roof was built contrary to' the manufacturer’s specifications. Appellants’ brief at 38. They argue nonetheless that actual damages were not proven. Appellees introduced sufficient evidence to .prove that the roof was defective. Second, the measure of damages in such an instance is not physical damage to appellees or their roof, but their loss of the benefit of the bargain. Appellants’ mistake is in confusing harm with damage. Appellees may not have suffered a harm, but they have been damaged by not receiving what they had contracted to receive: a roof of superior quality.

Courts and lawyers often use the term damages to mean either the harm or loss suffered by the plaintiff or the legal remedy for that loss. Sometimes this usage leads to confusion. The amount of the harm may be either more or less than the amount of the damages. For example, suppose D enters on P’s land and spends the weekend there, but without causing harm: observers could neither see nor measure a loss in value to P. Although P has suffered no harm, she may recover damages.

Dobbs, D.B., LAW OF REMEDIES: DAMAGES, EQUITY, RESTITUTION, § 3.1 (2nd ed. 1993) (emphasis in original) (footnotes omitted).

Appellants’ argument that the roof might never fall down is beside the point. Appellees’ witnesses testified that the roof was inferior because the heavier concrete tiles were used in place of cedar shake tiles. These tiles were not fully supported because appellants failed to install battens. While appellants’ expert did testify that battens were not needed nor recommended (R.R. at 920a), it is not for this Court to resolve such conflicts in evidence. Standard Pipeline Coating Co. Inc. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985) (holding that it is not the role of this Court to act as a trier of fact); Janson v. Hughes, 309 Pa.Super. 399, 455. A.2d 670 (1982) (resolving factual conflicts is an exclusive responsibility of the trier of fact). When the installation of the roof was not done in accordance with the manufacturer’s specifications, the manufacturer’s warranty became void — a legally cognizable damage. R.R. at 579a. That appellees cannot point to a definite future harm does not mean that they do not presently have a legally compensable claim for damages. Appellants fail to distinguish between a substitutionary remedy and a specie remedy. See Dobbs, supra at § 3.1 (stating that specie remedies are akin to specific performance, e.g., where plaintiff recovers the price due on an account). Damages are not speculative when they are certain in fact, even if uncertain as to amount. See Pashak v. Barash, 303 Pa.Super. 559, 450 A.2d 67 (1982).

Appellants next argue that the damage award for the pool and the roof was based upon hearsay testimony as to the amount of the award. There is nothing in the record to indicate that any of the total damage award was based on the cost of fixing the defective pool. The court awarded a lump sum verdict. See opinion 4/7/94 at 3. In addition, the court indicated that appellants had prevailed on the issue of the pool. R.R. at 731a-732a.

Appellees’ expert, William Tallman, testified to the cost of replacing the roof. Appellants claim that his calculations were nothing more than the re-transmission of figures arrived at by subcontractors who did not themselves testify; as such these were the statements of out-of-court declarants and they should have been excluded as hearsay. “The admission of expert testimony is a matter of discretion of the trial court and will not be remanded, overruled or disturbed unless there was a clear abuse of discretion.” Estate of Pew, 409 Pa.Super. 417, 598 A.2d 65 (1991) (citation omitted), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992). Rule 703 of the Federal Rules of Evidence, adopted by the Commonwealth, states that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.” 28 U.S.C.A. Rule 703; Packel, L. and Poulin, A.B., PENNSYLVANIA EVIDENCE § 703 (1987).

Appellants argue that Tallman simply repeated the data of others without bringing to bear his own analysis, judgment, or expertise. See Rafter v. Raymark Industries, Inc., 429 Pa.Super. 360, 366-68, 632 A.2d 897, 900 (1993). Tallman, a senior project manager for Delran Builders, put together cost figures based upon the estimates of subcontractors. It was Tallman’s job to compile, synthesize, and evaluate these figures. He did not simply pass these figures on to the court. Appellants claim that the figures for the repair of the roof, stucco and repainting were not Tallman’s, but the subcontractors’. R.R. at 560a. Tallman, however, visited the work site three times, and on one of those occasions was accompanied by the stucco contractor and the roofing contractor. Moreover, while the itemized costs may have been generated by the specific subcontractors who were going to do the actual work, these costs were based in part on information provided to the subcontractors by Tallman. R.R. at 545a, 549a-550a. It was Tallman who would readjust the figures by accounting for deleted items and then re-factoring in overhead. R.R. at 547a-548a. We believe that Tallman brought his own expertise to bear in testifying to the cost of replacing the roof, and was not simply rubber-stamping the opinions of out-of-court declarants. That experts rely on the information provided by others is not a novel theory in the law. Charles T. McCormick, EVIDENCE § 14 (3rd ed. 1984); Pittsburgh Outdoor Advertising Corp. Appeal, 440 Pa. 321, 326-28, 272 A.2d 163, 166 (1970) (holding that a valuation expert could base his testimony on a written appraisal that was neither offered into evidence nor supported by the in-court testimony of a member of the engineering firm providing the report). We thus cannot say that as a matter of law there was a clear abuse of discretion in admitting Tail-man’s testimony.

Appellants’ final contention is that the trial court erred in failing to grant its request for remittitur. We disagree.

If a verdict bears a reasonable resemblance to the proven damages, this Court will not substitute its assessment for that of the trier of fact. Reimer v. Tien, 356 Pa.Super. 192, 514 A.2d 566 (1986). Our standard of review is extremely narrow. Taylor v. Celotex, 393 Pa.Super. 566, 593, 574 A.2d 1084, 1098 (1990). An order for remittitur is only justified if the verdict is unsupported by the evidence or was the product of “partiality, prejudice, mistake or corruption.” Raymark, supra, 429 Pa.Super. at 371, 632 A.2d at 902.

There was sufficient evidence that appellees suffered considerable damage to their home due to appellants’ inferior workmanship. Appellants claim that appellees’ expert witnesses’ testimony was the product of factual error and conjecture. We have already addressed this argument. See p. 155, supra. The trial court opined:

[I] heard conflicting evidence regarding numerous items that were allegedly defective. True, the most expensive item was the roof — an enormous structure composed of concrete tiles. Yet the plaintiffs also presented evidence respecting at least 30 other items that were allegedly defective. Typically, the defendants offered contrary evidence .... Occasionally, however, they conceded the existence of a defect, and offered evidence instead that the plaintiffs had paid (or were being charged) too much for repairs. In such instance, it was necessary to determine the fair and reasonable cost of correcting the defect, typically on the basis of conflicting expert testimony.

Opinion at 2.

As we have previously stated, it was for the trial court to resolve conflicts in evidence. Given that there was sufficient evidence establishing appellants’ breach, we will not allow a remittitur of an award based upon the uncertainty of the amount of damage. “It is well established that mere uncertainty as to the amount of damages will not bar recovery where it is clear that damages were the certain result of defendant’s conduct.” See Spang, supra, 519 Pa. at 26, 545 A.2d at 866 (quoting Pugh v. Holmes, 486 Pa. 272, 297, 405 A.2d 897 (1979)).

In summary, we hold that the exclusive remedy clause does not preclude an award of money damages after appellants’ breach of-the contract; appellants have failed to show bias or prejudice on the part of the court regarding a major issue sufficient to warrant recusal; the damage award was supported by the record; expert testimony regarding the cost of repair to the roof was properly allowed in by the court; the verdict was not excessive and against the weight of the evidence.

Accordingly, the order is affirmed.

      . Apparently several different punch lists were in circulation between the time the appellees contracted to buy the house and the time this litigation was initiated. Each list would add items that were not finished, refer to items that were improperly repaired, or call the builders attention to latent defects as they appeared.

      . As in Westinghouse, the manufacturer in Eimco timely cured the breach by replacing the alleged defective parts of a rockershovel machine. Eimco Corp. v. Joseph Lombardi & Sons, 193 Pa.Super. 1, 162 A.2d 263 (1960).

      . In Magar, plaintiff was denied recovery not only because of the exclusive remedy clause, but also because the money damages alleged were not proven. Magar v. Lifetime, Inc., 187 Pa.Super. 143, 146, 144 A.2d 747, 749 (1958).


author: OLSZEWSKI, Judge.

text:
    651 A.2d 157
    Patricia Jane JONES, Appellee, v. Gary Hugh JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 19, 1994.
    Filed Dec. 8, 1994.

      John M. Demcisak, Willow Grove, for appellant.
    Donald A. Semisch, Willow Grove, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   OLSZEWSKI, Judge.

On November 4, 1981, appellant Gary Hugh Jones (“husband”) and appellee Patricia Jane Jones (“wife”) entered into a separation agreement (“agreement”). This agreement settled the parties’ marital rights, as well as custody and support issues surrounding the two children of the marriage. An order, based upon the terms of the agreement, was approved and entered by the Honorable Anita B. Brody on November 17, 1981. On July 12, 1982, a divorce decree was entered.

Pursuant to the agreement, husband commenced making the $1,300 per month payments for the support of the two children. He also kept up the required medical and life insurance and paid for college costs. In 1985, wife filed a petition to increase the amount of support. The proceeding ended with the parties entering into a stipulation leaving the payments at $1,300 per month.

Subsequently, husband remarried and had three children with his second wife. The second of the three children was born with Down’s Syndrome. On May 3,1993, husband filed a petition to modify/vacate order of support and complaint in declaratory judgment. He essentially claimed that his changed circumstances, especially the birth of a new child with Down’s Syndrome, required the court to lower his support obligation. The trial court held a hearing, denied husband’s petition, and entered an order explaining the reasons for denial. This appeal followed.

The trial court correctly found that the agreement was a separate contract and, as such, the court did not have the ability to modify it. If a support agreement survives as an enforceable contract, it is governed by the law of contracts. Flick v. Flick, 408 Pa.Super. 110, 113-15, 596 A.2d 216, 218 (1991); D’Huy v. D’Huy, 390 Pa.Super. 509, 518, 568 A.2d 1289, 1293 (1990) (en banc). If a support agreement merges into a divorce decree, however, the agreement “take[s] on all of the attributes of support Orders for purposes of modification and enforcement.” Sonder v. Sonder, 378 Pa.Super. 474, 512, 549 A.2d 155, 175 (1988) (en banc). The key to analyzing questions of merger and modifiability is to ascertain whether or not a merger was intended by the parties. Ashbaugh v. Ashbaugh, 426 Pa.Super. 589, 596-97, 627 A.2d 1210, 1214 (1993); McGough v. McGough, 361 Pa.Super. 391, 394, 522 A.2d 638, 640 (1987), allocatur denied, 515 Pa. 623, 531 A.2d 431 (1987). The starting point for determining the intent of the parties is the language and terms of the agreement itself. Ashbaugh, 426 Pa.Super. at 596-97, 627 A.2d at 1214. If the language is clear and unambiguous, “this court need only examine the writing itself to give effect to the parties’ understanding.” Id.; McMahon v. McMahon, 417 Pa.Super. 592, 599-600, 612 A.2d 1360, 1364 (1992) (en banc).

The language of the agreement, in the present case, is clear as to the parties’ intent: they intended that the agreement remain a separate and distinct contract. Clause 1 of the agreement states, “[t]his Agreement shall continue in effect and shall survive the granting of any divorce in favor of Wife or Husband ... and the provisions of the Agreement shall be binding whether or not under a part of the court record in divorce.” Clause 16 similarly states, “[tjhis Agreement shall remain in full force and effect regardless of the change in the marital status of the parties.” Additionally, clause 13 reads, “[t]his Agreement shall not be modified or waived by the parties hereto except by written instrument, executed in the same manner as this agreement.” This language clearly indicates an intent that the agreement survive rather than merge with the divorce decree. Since the language of the agreement is clear and the divorce decree does not expressly merge the agreement, we find that the agreement survives as an enforceable contract, and is not subject to modification by the court.

Notwithstanding the above analysis, ■ husband argues that a court may refuse to enforce a separation agreement where there has been a change in circumstances due to factors beyond a spouse’s control. In Brown v. Hall, our Supreme Court rejected this assertion in all but two limited situations. 495 Pa. 635, 642-44, 435 A.2d 859, 863 (1981). The Court wrote, “In the absence of an uncounseled, one-sided bargain as in Bria [v. Bria, 95 Dauph. 358 (1973) ], and where no one argues that $90 per week is inadequate to support the children, we must enforce the parties’ intentions as mutually expressed in the separation agreement.” Id. (footnotes omitted). Therefore, a court does not have the power to modify or ignore a separation agreement unless: (1) the agreement was uncounseled and one-sided, or (2) the agreement does not provide adequate support for the children. Id.

The second exception is totally inapplicable in this case. It is true that a court has an inherent power to act in the best interests of the children. Therefore, a court can increase support payments above the level set out in a separation agreement. Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 89, 53 A.2d 887, 888 (1947); Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 281, 212 A.2d 905, 906 (1965). See also Knorr v. Knorr, 527 Pa. 83, 86-88, 588 A.2d 503, 505 (1991) (court can disregard an agreement and raise support level if it is in the best interests of the children because parents “have no power ... to bargain away the rights of their children.”). The reasoning, however, does not extend to instances where the court seeks to lower a support payment below the level set out in the separation agreement. Brown, 495 Pa. at 642-44, 435 A.2d at 863; Millstein v. Millstein, 311 Pa.Super. 495, 498-500, 457 A.2d 1291, 1293 (1983). Therefore, the amount of support in the separation agreement is a floor, not a ceiling. Id. Since husband seeks to reduce his support payments below the level set forth in the agreement, this line of cases is simply inapplicable.

We also find no merit in husband’s claim that the agreement was uncounseled and one-sided. This Court has held that mere allegations that an agreement was one-sided and uncounseled will not suffice in the face of a clear and unambiguous agreement stating otherwise. Borrell v. Borrell, 346 Pa.Super. 1, 9-11, 498 A.2d 1339, 1344 (1985). In Borrell, the trial court looked outside of the terms of the agreement and credited evidence suggesting that the agreement was uncounseled. We held that it was improper to look outside the clear terms of the agreement. Id. We wrote, “[tjhere is no contention nor evidence that she was fraudulently misled into signing the contract or that anyone exerted undue influence upon her. To that extent then, Mrs. Borrell, and the lower court, are bound by that provision of the Separation Agreement which clearly states that she was counselled.” Id. (footnotes omitted).

Similarly, the agreement in the present case clearly states that both parties received the benefit of counsel and that the deal was fair and equitable. The trial court found no evidence of fraud or overreaching. Opinion, 4/20/94 at 9. In light of the clear language of the agreement and the lack of any evidence of fraud or overreaching, we find that husband is bound by the express terms of the agreement he signed. Accordingly, we find that the agreement was not uncounseled or one-sided. Given that husband has failed to establish either exception specified in Brown, the agreement is valid and enforceable.

Husband also asserts that wife has waived her right to rely on the agreement because she filed for an increase of support in 1985. In Knorr, our Supreme Court held that once a spouse chooses not to sue on the separation agreement, but chooses instead to seek redress in the family courts, she forfeits her contractual right to sue and the court is no longer bound by the private agreement. 527 Pa. at 86-88, 588 A.2d at 505. The basis of the decision was that once the court took control of the case, issued an order, and placed its enforcement power behind that order, the court had the power to modify the order as circumstances might require. Id. The present case is distinguishable because the court never took control of the case, issued an order, or put its enforcement power behind the order. Wife did file a petition to increase the support, but she did not succeed and the court never issued an order. The episode ended in a stipulation that mirrored the agreement. The mere act of filing for an increase is not what was at issue in Knorr; rather, the issuance of a court order to be enforced by the court was the issue in Knorr. Therefore, Knorr is inapplicable in the present case and wife has not waived her right to rely on the agreement.

Husband’s final claim is that the agreement is unclear and requires court clarification. In this matter, we agree with the trial court that there is no lack of clarity in the terms of the agreement such as to require clarification or interpretation by the court. Opinion, 4/20/94 at 11.

Order affirmed.


author: CAVANAUGH, Judge:

text:
    651 A.2d 160
    James K. ROLLA, Appellant, v. WESTMORELAND HEALTH SYSTEM, Westmoreland Hospital, Westmoreland Mental Health Center, Dennis Donahue, Mary Jane Grisnik, Dr. Dale B. Fruman, Dr. Margaret Boerio, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1994.
    Filed Dec. 13, 1994.

      James K. Rolla, appellant, pro se.
    John K. Heisey, Pittsburgh, for appellees.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   CAVANAUGH, Judge:

This is a pro se appeal from an order granting appellees’ preliminary objections in the nature of a demurrer, and the resulting dismissal with prejudice of appellant’s suit against appellees. We affirm.

Appellant, James Rolla, was involved in a child custody dispute with his ex-wife. Pursuant to that action (filed at No. 4014 of 1989 in the Court of Common Pleas of Westmoreland County), the court appointed appellees, Westmoreland Mental Health Center, to conduct psychiatric and psychological evaluations of appellant and his minor daughter and to submit reports of its findings to the court. Based on the allegedly false, deceptive and incomplete content of those reports, appellant sued appellees, claiming inter alia, that the reports caused him to suffer humiliation, embarrassment and mental anguish.

Appellees filed preliminary objections to the complaint, asserting that the reports were absolutely privileged and could not give rise to civil liability because they were issued in the regular course of judicial proceedings and were pertinent and material to the issues involved in the custody action. Appellees further asserted that appellant’s claim of emotional distress failed to state a cause of action upon which relief could be granted because appellant had not alleged that his emotional distress had in any way manifested itself in a physical injury or illness.

Argument on the preliminary objections took place on January 28, 1994. Although appellant was present, the court did not allow him oral argument as a sanction for his failure to file a brief in opposition to the preliminary objections as required by local rule. On that same date, the court issued an Opinion and Order granting appellees’ preliminary objections and dismissing the case with prejudice. It is from that order that the present appeal is taken.

Appellant raises three issues for our review. First, appellant maintains that the court erred in determining that the submitted reports were absolutely privileged. Second, appellant maintains it was error to dismiss his emotional distress claim. Third, appellant contends the court erred in not allowing him to present oral argument.

Our standard of review of an order granting preliminary objections in the nature of a demurrer is well settled.

All matérial facts set forth in the pleadings as well as all inferences reasonably deductible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by- its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party’s right to succeed is certain and the case is so free from doubt that further proceedings would be clearly fruitless.

Hart v. O’Malley, 436 Pa.Super. 151, 647 A.2d 542 (1994) (citations omitted). Additionally, on appeal, we will not reverse a trial court’s dismissal of an action with prejudice absent an abuse of discretion. Stock v. Arnott, 415 Pa.Super. 113, 608 A.2d 552 (1992). After careful review of the record, we conclude that on the facts averred, no recovery is possible for appellant and appellees’ right to succeed is certain. We accordingly affirm the court’s grant of the demurrer.

It is well settled that statements made in the pleadings, trial or argument of a ease, when relevant and material to the issues involved, are subject to an absolute privilege:

When alleged libelous or defamatory matters or statements, or allegations or averments in pleadings or in the trial or argument of a case are pertinent, relevant and material to any issue in a civil suit, there is no civil liability for making any of them.

Post v. Mendel, 510 Pa. 213, 220, 507 A.2d 351, 355 (1986) (quoting Greenberg v. Aetna Insurance Co., 427 Pa. 511, 514, 235 A.2d 576, 577 (1967), cert. denied 392 U.S. 907, 88 S.Ct. 2063, 20 L.Ed.2d 1366 (1968)).

One of the justifications for the privilege is to encourage complete and unintimidated testimony:

The reasons for the absolute privilege are well recognized. A judge must be free to administer the law without fear of consequences. This independence would be impaired were he to be in daily apprehension of defamation suits. The privilege also extends to parties to afford freedom of access to the courts, to witnesses to encourage their complete and unintimidated testimony in court, and to counsel to enable him to best represent his client’s interests.

Id. (quoting Binder v. Triangle Publications, Inc., 442 Pa. 319, 323-24, 275 A.2d 53, 56 (1971) (emphasis added)).

In Ganassi v. Buchanon Ingersoll, P.C., 373 Pa.Super. 9, 540 A.2d 272 (1988), this Court held that the privilege applied to a letter submitted to a federal district court, at its request for input from persons having interest in a debtor corporation’s bankruptcy. Instantly, the reports complained of were also submitted to the court at its request. We note that while copies of the reports were not included in the record certified to us, and therefore could not be independently reviewed, nowhere in his complaint did appellant allege that the reports were not pertinent and material to the issues involved in his child custody case. Given that the reports were submitted in the regular course of judicial proceedings and in view of our Supreme Court’s stated desire to encourage complete and unintimidated testimony, we must conclude that the reports complained of were absolutely privileged and could not give rise to any civil liability. Appellant’s first issue is accordingly dismissed.

Appellant’s second issue alleges error in the court’s dismissal of his emotional distress claim. The court dismissed the claim on the grounds that appellant alleged no resulting physical injury. Appellant asserts that emotional harm is just as damaging as physical harm and contends that “in the area of damages, it is believed that recent United States Supreme Court cases in the area of discrimination establish that physical harm is not necessary to have occurred.” Appellant has cited no case law to support this contention, however.

Although “there is much controversy over whether Pennsylvania jurisprudence recognizes the tort of intentional infliction of emotional distress,” Hart v. O’Malley, 436 Pa.Super. at 174, 647 A.2d at 553, “... it is clear that ... in order to state a claim under which relief can be granted for the tort of intentional infliction of emotional distress, the plaintiffs must allege physical injury.” Id. at 647 A.2d at 554 (emphasis added). Pennsylvania case law similarly establishes that, except in limited, compelling circumstances, not applicable here, a claimant may not recover damages for negligently inflicted emotional distress in the absence of attendant physical injury. Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988) alloc. denied, 520 Pa. 575, 549 A.2d 136.

Since appellant did not allege in his complaint that he suffered any physical injury as a result of his “humiliation and embarrassment and mental anguish,” he may not recover for that alleged distress whether it was intentionally or negligently inflicted. The court did not err in dismissing appellant’s claim of emotional distress and we must accordingly dismiss this issue.

Appellant’s final issue alleges that the court erred in prohibiting him from presenting oral argument. The court imposed this sanction because appellant failed to file a brief in opposition to appellees’ preliminary objections as required by the local Rules of Court of Westmoreland County.

We have previously held that procedural rules, either at the state or local level, are absolutely essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. Equipment Finance, Inc. v. Toth, 328 Pa.Super. 351, 476 A.2d 1366 (1984). Additionally, “the application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and we will interfere only where the court commits an abuse of discretion.” Id. at 355, 476 A.2d 1366. Moreover, “an abuse of discretion is not merely an error in judgment; rather it occurs when the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.” Pilon v. Bally Engineering Structures, 435 Pa.Super. 227, 645 A.2d 282 (1994) (citations omitted).

In the instant case, we see no abuse of discretion in the court’s prohibiting appellant from presenting an oral argument. Moreover, appellant has cited no facts or law he might have raised at oral argument to refute the court’s proper legal conclusion that the reports submitted by appellees’ were absolutely privileged and that appellant could not sustain a claim for either negligent or intentional infliction of emotional distress without the existence of a concomitant physical injury.

For the foregoing reasons we affirm the court’s grant of appellees’ preliminary objections in the nature of a demurrer and the resulting dismissal with prejudice of appellant’s lawsuit against appellees.

Order affirmed.

      . The court requested submission of the reports in its Order dated January 22, 1993.

      . For examples of compelling circumstances which work to avoid the general rule, see: Speck v. Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (parent allowed recovery for mental distress caused by birth of unplanned, genetically defective child); Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979) (recovery for mental distress permitted for parent who witnessed tortious assault upon her minor'child); and Little v. York County earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194 (1984) (allowing recovery by plaintiff who had been wrongfully imprisoned because of negligent misrepresentation to tax bureau that plaintiff had failed to pay taxes).


author: POPOVICH, Judge: CAVANAUGH, Judge,

text:
    651 A.2d 163
    COMMONWEALTH of Pennsylvania, Appellee, v. Patricia Lynn FOSTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1994.
    Filed Dec. 15, 1994.

      Joseph P. Burt, Erie, for appellant.
    Matthew R. Hayes, Asst. Dist. Atty., Erie, for Com., appellee.
    Before CAVANAUGH, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Erie County, following appellant’s conviction for possession of an instrument of crime. Appellant now contends that the evidence was insufficient to sustain the conviction for possession of an instrument of crime because her acquittal on homicide charges negated the criminal intent necessary for possession of an instrument of crime. After careful review, we agree and vacate the judgment of sentence. u

The test for sufficiency of the evidence is “whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jones, 431 Pa.Super. 475, 636 A.2d 1184 (1994), quoting Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984).

Examination of the record reveals the following facts: Appellant was charged with criminal homicide and possession of an instrument of crime on May 20, 1993, following the stabbing death of her boyfriend. Appellant claimed she acted in self-defense based on the battered woman’s syndrome and requested a jury trial.

At trial, during voir dire, appellant objected to the Commonwealth’s use of its peremptory challenges on juror number 31 and juror number 32. Appellant alleged that the Commonwealth was excluding jurors on the basis of gender. Appellant raised a Batson objection, claiming that Batson prohibits gender-based peremptory challenges. Appellant also based her objection on a pending United States Supreme Court case in which the issue of gender-based peremptory strikes was to be addressed. The trial court stated that it could not speculate on the outcome of the case and denied appellant’s motion for a gender-neutral explanation.

The jury found appellant not guilty of criminal homicide but found her guilty of possession of an instrument of crime. During deliberations, the court, in response to a jury question, stated that the jury was free to bring back a verdict of guilty on the charge of possessing an instrument of crime regardless of their verdict on the murder charge. Appellant made no objection to the court’s answer.

The court sentenced appellant to one year of probation, fifty hours of community service and ordered her to pay the costs of prosecution. At the sentencing hearing, appellant’s counsel inquired about apportionment of costs between the misdemeanor and the felony. The Commonwealth stated that a bill of costs would not be prepared until after sentencing. Appellant’s counsel stated that he would file a motion for apportionment if he had any objections to the costs. Appellant’s counsel never filed such a motion.

Appellant now contends that the court erred in holding that the evidence was sufficient for conviction of possession of an instrument of crime. We agree.

A conviction for possession of an instrument of crime requires the Commonwealth to prove that a defendant possessed an instrument that is commonly used for criminal purposes, under circumstances not manifestly appropriate for lawful use, with the intent to employ it criminally. Commonwealth v. Ngow, 422 Pa.Super. 578, 580, 619 A.2d 1374, 1376 (1993); 18 Pa.C.S.A. § 907. “The Commonwealth must prove every element of the offense, including criminal intent, beyond a reasonable doubt.... Although criminal intent can be inferred beyond a reasonable doubt from the surrounding circumstances, it cannot bé inferred from mere possession.” Commonwealth v. Moore, 476 Pa. 19, 21, 381 A.2d 845 (1978).

Instantly, appellant admittedly possessed a knife which is an instrument commonly used for criminal purposes. However, appellant did not possess the knife with the intent to employ it criminally because she acted in self-defense.

Our supreme court held that evidence was insufficient to support a conviction for possession of instrument of crime in similar circumstances. Commonwealth v. Samuel, 527 Pa. 298, 590 A.2d 1245 (1991). In Samuel, our supreme court reversed a conviction for possession of an instrument of crime where it was found that the defendant had acted in self-defense. Id. 590 A.2d at 1249. The defendant in Samuel shot and killed his sister’s husband. Our supreme court reversed his conviction for voluntary manslaughter after a finding that defendant had acted in self-defense. Id. The supreme court stated that the evidence was insufficient to support the conviction for possession of an instrument of crime. Id. Since defendant “fired the weapon in self-defense, the facts cannot support an inference that appellant possessed the gun with the intent to use it for a criminal purpose.” Id.

Instantly, appellant relied on the justification of self-defense and was acquitted of the homicide charges as a result of this defense. Appellant having acted in self-defense did not commit a crime with the knife. A jury could not infer from the killing that appellant possessed the intent to employ the knife criminally.

The trial court erred in denying appellant’s post-trial motion for relief. Viewing the evidence in the light most favorable to the Commonwealth, we find that the evidence was insufficient to support the conviction for possession of an instrument of crime.

Judgment of sentence is vacated.

CAVANAUGH, J. files a Concurring Statement.

CAVANAUGH, Judge,

concurring:

I concur in the result reached by the majority and supported by established precedent. However, I think the better rationale in approaching a case such as this is contained in the dissent of the late Justice McDermott in the case of Commonwealth v. Gonzalez, 515 Pa. 98, 527 A.2d 106 (1987).

In Gonzalez the Supreme Court reversed a judgment of sentence and discharged a defendant after he had been acquitted of murder and manslaughter but found guilty of possessing an instrument of crime. The majority found insufficient evidence to support the conviction in that the element of criminal intent was not established. The court found that “since the appellant did not commit a crime with the shotgun (appellant had shot to death a gang member ‘out of fear for his own and his family’s safety’) and no other evidence sufficient to support a finding of criminal intent” was presented, the conviction must be reversed. Id. at 103, 527 A.2d at 108.

Justice McDermott (joined by Justice Hutchinson) dissented stating that the crime of possessing an instrument of crime “by its nature does not require the successful completion of an independent criminal act. Merely because the jury found that at the moment appellant fired the gun his actions did not warrant a homicide conviction does not mean that for the period of time up to the final moment appellant could not be guilty of this possessory offense.” Id. at 104, 527 A.2d at 109.

In the case before us, appellant introduced a knife into an already volatile confrontation with her boyfriend, the decedent. The argument ended when he was stabbed to death. Appellant was tried, pled self-defense and was found not guilty of homicide. However, the jury did find' that all of the elements of the crime of possessing an instrument of crime, including, apparently, the element of intent, had been proven beyond a reasonable doubt. Were there not precedent for the decision reached by the majority, I would affirm the judgment of sentence.

      . 18 Pa.C.S.A. § 907.

      . Because we reverse on this issue we need not address the other questions presented by appellant that: 1) the trial court erred in denying a request for a gender-neutral explanation of the Commonwealth’s peremptory strikes; 2) the trial court erred in requiring appellant to pay the costs of her prosecution; 3) the conviction for possession an instrument of crime was against the weight of evidence.

      . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (the Equal Protection Clause of the Fourteenth Amendment prohibits a prosecutor from exercising peremptory challenges based solely upon race).

      . See, J.E.B. v. Alabama,-U.S.-, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). The Supreme Court held that gender-based peremptory challenges violated the Due Process Clause of the Fourteenth Amendment.
        J.E.B. was not decided until April 19, 1994, after the disposition of appellant’s case.

      . The trial court did not address this issue in its opinion. Instead, the trial court stated that appellant waived any objection to the conviction for possession of an instrument of crime because appellant did not object when the court instructed the jury that it could find appellant guilty of possession of an instrument of crime regardless of whether they convicted on the murder charge. (Tr.Ct.Opinion at 2-3). The failure to object to a jury instruction does not result in a party waiving a challenge based on sufficiency of the evidence. Jury instruction objections occur before the conclusion of the trial. A sufficiency of the evidence claim is made after the trial is concluded. An objection based on sufficiency of the evidence would only be waived if it were not raised in post-trial motions or in appellant’s statement of matters complained of on appeal. See, Pa.R.A.P.1925; Pa.R.Crim.P. 1410; Pa.R.Crim.P. 1123; Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816 (1992) (only those issues raised in post-verdict motions and concise statement of matters complained of on appeal are preserved for appellate review). Appellant has complied with all applicable rules of appellate and criminal procedure. Thus, the insufficient evidence question was preserved.

      . See also, Commonwealth v. Gonzalez, 515 Pa. 98, 527 A.2d 106 (1987) (evidence was insufficient to support conviction for possession of an instrument of crime where defendant acted in self-defense. There was no intent to possess the weapon criminally); Commonwealth v. Watson, 494 Pa. 467, 431 A.2d 949 (1981) (battered woman's belief that she was in danger of death or great bodily harm was reasonable and the Commonwealth failed to negate this at trial. Thus, evidence was insufficient to support conviction for possession of a concealed weapon because defendant did not intend to employ the weapon criminally as she acted in self-defense).