author: DEL SOLE, Judge.

text:
    671 A.2d 235
    COMMONWEALTH OF PENNSYLVANIA v. Gregory TAYLOR A/K/A Darrell Goodley, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed Jan. 25, 1996.

      Jeffrey P. Shender, Philadelphia, for appellant.
    Julie Dugan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge.

As a result of three separate incidents, a jury found Gregory Taylor guilty of three counts of robbery (18 Pa.C.S.A. 3701), attempted rape (18 Pa.C.S.A. 3121), aggravated assault (18 Pa.C.S.A. 2702), simple assault (18 Pa.C.S.A. 2701), two counts of burglary (18 Pa.C.S.A. 3502), two counts of terroristic threats (18 Pa.C.S.A. 2706), and two counts of possession of an instrument of crime (18 Pa.C.S.A. 907). Appellant was sentenced to three consecutive ten to twenty year terms of imprisonment for the robberies, a consecutive term of five to ten years imprisonment for attempted rape, a consecutive term of five to ten years for aggravated assault, and suspended sentences were imposed for the remaining convictions. No post-sentence motion was filed.

At about 4:00 p.m. on May 11, 1993, victim one, a 42 year old white woman and her seven year old daughter were leaving the school where she teaches in Center City Philadelphia. They passed a black male as they were leaving the school building. They proceeded to the victim’s car across the street from the school and a black male, on a black mountain bike, approached the car on the driver’s side. Before victim one could close the car door, the man positioned the bike against the door, pulled a pointy steak knife and demanded money and jewelry. She gave the man twenty dollars, a watch and a ring. When someone else drove into the parking lot, the man fled on the bike. The victim described the man as a very dark complected black male, five feet ten inches to six feet tall, twenty-five to thirty years old, mustache and small beard, with a muscular build. He was dressed in black biking shorts, a black cap, a dark colored T-shirt and round sunglasses. On June 17, 1993, victim one identified Appellant from a photo array as the man who robbed her. The police recovered a black mountain bike from Appellant’s residence after a search on June 17,1993.

On May 26, 1993, at approximately 3:45 p.m., victim two, a 30 year old white female, was sitting on the couch in the first floor of her home, when a black male, brandishing a knife forcibly entered her home. The man demanded money and jewelry, but the victim denied having anything. While still holding the knife, the man hit victim two on her head with his hands and the butt of the knife. The man put the knife to her throat and they went to the kitchen where she gave him money from her wallet. While in the kitchen, the man took one of victim’s large kitchen knives which he used for the duration of the robbery. The man forced victim two at knife point to go through all three floors of the house, room by room, in search of money and jewelry. As they proceeded through the house, the man repeatedly hit. the victim, knocking her to the ground, picking her up- and smashing her head against the walls, and stomping on her head.

When they reached the third floor, the man pushed victim two on a bed and told her to remove her clothes. She stated that she did not want to and he informed her that he had just finished masturbating before he came into her house. She took off all of her clothing except for her underpants. He also asked her if she had ever had sex with a black man, and she responded that she had not but she stated that she married young and did not have anything against them. The man took off his shorts and laid on top of her, rubbing his penis against her while keeping the knife at her throat. He asked her, “isn’t this great.” He then put his hand inside her underpants and then inside her vagina. Victim two was praying' and stated aloud that she loved God. The man stopped, stated that he respected that, got up, pulled her up and hit her in the head. The man kept the knife at her throat as they were leaving the third floor. At this point, the victim’s husband came home and he walked up the steps and he saw his wife almost totally unclad and the man with the knife to her throat. The victim’s husband pleaded with the man to leave. The man commented that he was going to kill the victim. As they descended the stairs, the man demanded money from victim two’s husband and he gave it to him. The victim and her husband were then ordered into the basement and the man shut the door and placed a chair under the doorknob and fled from the house. Through the basement entrance, the victim’s husband saw the man running and now wearing a biking hat. Victim two suffered bruises and cuts to her face and sustained a temporary hearing loss.

Victim two described the man as being about five feet ten inches tall, short hair, 170 pounds, very dark complected, with a mustache and goatee, pock marks on his face, and very well built. She stated that he was wearing biker shorts, a dark T-shirt, bike gloves, tennis shoes and round sunglasses. Victim two’s husband described the man as five feet eight inches to five feet ten inches tall, short hair, mustache and hair on the chin, very dark skined black male, dressed in black biker shorts, dark blue T-shirt, bike gloves and round sunglasses with a gold frame and wearing a hat when he fled. The victim and her husband also stated that they saw the man approximately one week later near the University of Pennsylvania at about 4:00 p.m. They called the police and the man ran away. On June 30, 1993, victim two and her husband were shown three separate photospreads containing Appellant. They both identified him in the third display as the man who robbed them and they also identified him at trial.

On June 14, 1993, at about 5:30 p.m., victim three, a 26 year old white female, was putting the key into the front door of her home in Center City Philadelphia when she was approached by a black male who asked her for some water for his car. She agreed and he handed her a container. She told him to stay right there and she would be right back. She did not close her door. She went up the stairs to her apartment and filled the container. As she proceeded back down the stairs, she saw the man enter her residence and noticed that he was reading a coupon circular. She walked toward him with the container and he mumbled something, grabbed her by the wrist, and told her not to say anything. Victim three began screaming and struggling with the man and he fled. The police were called.

Victim three described the man as dark complected, approximately five feet eight to five feet ten inches in height, with a low hair cut, facial hair, wearing dark blue shorts, a white T-shirt, sneakers and sunglasses. The police transmitted the description over the radio and the man was almost immediately apprehended after a brief pursuit. During the chase, the man took off his T-shirt and threw it away and it was later recovered. The police took victim three to the man and she identified him as her assailant. Victim three’s neighbor, heard her screaming and looked out her window and saw a man running. The neighbor described the man as wearing a short-sleeved light shirt and dark blue shorts, and she stated that he threw a newspaper from his right hand. Victim three later identified the newspaper as the coupon circular that was in front of her door and in the man’s hand. The neighbor stated that a large kitchen knife, about ten to twelve inches long, fell out of the newspaper when the man threw it. Victim three did not see or feel the knife during the assault. The cases were consolidated for trial, Appellant was convicted and this appeal followed.

Before we address the issues, we shall determine whether Appellant’s claims have been waived for failure to file a concise statement of the matters complained of pursuant to Pa.R.A.P. 1925(b). The trial court ordered the defense to file the 1925(b) statement by October 14, 1994. On October 12, 1994, Attorney Michael C. Schwartz of the Philadelphia Public Defender’s Office, requested a thirty day extension since he did not have the notes of testimony from the consolidation hearing. On February 8, 1995, Judge Anne E. Lazarus filed an Opinion noting that two months elapsed since defense counsel requested an extension to file the 1925(b) statement and no response has been filed. The court concluded that because it was not informed of any issues raised on appeal, all claims were waived.

Upon receiving the Opinion, Assistant Public Defender Jeffrey Shender, wrote Judge Lazarus on February 8, 1995 requesting that she withdraw the opinion. Defense Counsel claimed that the prior attorney on the case was leaving the Public Defender’s Office and he was newly assigned to handle the appeal. He explained that the original attorney informed him that he did not receive the notes of testimony from the consolidation hearing until the end of January 1995. The trial judge, however, did not withdraw her opinion suggesting that the issues were waived and the Commonwealth urges us to find waiver. We decline to do so.

Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure provides:

The lower court forthwith may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal no later than 14 days after entry of such order. A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of. (Emphasis added).

Rule 1925(b), 42 Pa.C.S.A. “[T]he issue of waiver based on a violation of Rule 1925(b) is expressly reserved to the appellate courts, and not to the trial courts. Id.” Commonwealth v. Donahue, 428 Pa.Super. 259, 630 A.2d 1238, appeal denied, 538 Pa. 612, 645 A.2d 1316 (1993). Appellate counsel argues that he was newly assigned to the case when the 1925(b) statement was due and the relevant notes of testimony were not transcribed until right before he was appointed to the case. In Commonwealth v. Johnston, 434 Pa.Super. 451, 644 A.2d 168 (1994), we held that we would not consider issues waived even though they were not included in a 1925(b) statement because the defendant would be unfairly punished, further delay would result from dismissal and collateral appeals raising counsel’s ineffectiveness, and, since counsel did not have sufficient time to review the transcripts and appellate review was not diminished by the failure to submit a 1925(b) statement, we considered the merits of the appeal. In Commonwealth v. Cortes, 442 Pa.Super. 258, 659 A.2d 573 (1995), we held that with the advent of new Criminal Procedure Rule 1410, which eliminated post-verdict motions and made the filing of post-sentencing motions optional, failure to include issues in a 1925(b) statement does not automatically result in waiver of those issues on appeal. This would be a reversion to the “double waiver” doctrine and would violate the spirit of New Rule 1410. Where the lack of a trial court opinion on an issue does not prevent meaningful review, we will review, the issues on appeal. Id. Review of the only issue presented is not hampered by the lack of a trial court opinion; therefore, the failure to file a 1925(b) statement is not fatal to the claim on appeal.

Appellant contends that the trial court erred by consolidating three unrelated cases — an on-the-street robbery, a burglary by ruse, and,a burglary by forcefuVsurreptitious entry — into a single trial where the cases were not so similar as to show a distinctive signature or common perpetrator. “Whether or not separate indictments, should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a. manifest abuse of discretion or prejudice .and clear injustice to the defendant. Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275 (1991).

Pennsylvania Rule of Criminal Procedure 1127 states: A. Standards.
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.

Rule 1127(A)(1)(a), 42 Pa.C.S.A. Furthermore, if it appears to the trial court that the defendant would be prejudiced by offenses or defendants being tried simultaneously, the court may order separate trials of offenses or defendants. Pa.R.Crim.P., Rule 1128, 42 Pa.C.S.A.

The “prejudice” of which Rule 1128 speaks is not simply prejudice in the sense that appellant will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence. The prejudice of which Rule 1128 speaks is, rather, that which would occur if the evidence tended to convict appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.

Commonwealth v. Lark, 518 Pa. 290, 307-308, 543 A.2d 491, 499 (1988).

The Commonwealth argues that although evidence of a defendant’s other crimes is generally inadmissible to show a defendant’s bad character or propensity for committing criminal acts, one of the recognized exceptions to this rule is to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will tend to show that the accused is the person who committed the other crime. Our supreme court in Commonwealth v. Rush, 538 Pa. 104, 111-113, 646 A.2d 557, 560-561 (1994), stated:

As stated in Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336 (1955):

[EJvidence of other crimes is admissible when it tends to prove a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others or to establish the identity of the person charged with the commission of the crime on trial, — in other words where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. (Emphasis added).... Indeed, this Court has often cited McCormick, Evidence, Sect. 190 (1972 2d ed.), wherein evidence of other crimes is said to be admissible:
To prove other like crimes by the accused so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature. (Emphasis added) (Footnotes omitted).

Id., quoting, Commonwealth v. Bryant, 515 Pa. 473, 477-478, 530 A.2d 83, 85-86 (1987). Factors to be considered to establish similarity are the elapsed time between the crimes, the geographical proximity of the crime scenes, and the manner in which the crimes were committed. Rush, supra.

The Commonwealth submits that the consolidation of the robberies in this case was proper because the abundant similarities between the crimes were sufficiently probative of the perpetrator’s identity such that proof as to one perpetrator naturally tends to prove the identity of the other. The Commonwealth also contends that the similarities in the assaults also show a common scheme, plan or design so that proof of one tends to prove the other. The similarities enumerated by the Commonwealth are: (1) the victims were white females between the ages of twenty-six and forty-two; (2) the assaults all occurred in a very small area of Center City Philadelphia — blocks from each other; (3) the crimes occurred within slightly over a month of each other; (4) the crimes occurred in the late afternoon or early evening; (5) the crimes occurred on weekdays; (6) in all cases defendant entered a home or building that he was unauthorized to enter; (7) in all cases defendant used force or threat of force in an attempt to obtain property and did in fact take money and jewelry from three of the victims — victim one, victim two and her husband; (8) in all cases defendant had a knife; (9) all crimes occurred not far from defendant’s residence; (10) defendant wore similar distinctive clothing in the assaults; (11) the victim’s description of the perpetrator was remarkably similar; (12) all victims positively identified defendant at trial; and (13) when defendant was arrested for the June 14th assault of victim three and his house was subsequently searched, items such as the eleven inch knife, sunglasses and bicycle used in the assaults were confiscated.

Appellant contends that the factors specified by the Commonwealth, individually or collectively, did not justify consolidation. He argues that none of the factors are sufficiently distinct as to be the handiwork of one person. Appellant asserts that there is nothing distinctive about the women’s ages, their race, the area of the city in which the crimes occurred, nor in the time of the day that the crimes occurred. Appellant argues further that the clothing of the perpetrator was not unique for a May afternoon. Appellant also differentiates the weapons used in the assaults noting that one knife was described as a kitchen knife and the other a small steak knife. He also makes much of the fact that the knife was used differently in each case. The fact that the perpetrator committed violence against one of the victim’s but not the others is not such a distinguishing factor so that joinder would be inappropriate. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981) (robbery cases consolidated even though the assailant beat one victim, but not the other). The crux of Appellant’s argument is that the similarities are confined to relatively insignificant details, and, therefore, consolidation was improper.

In the case sub judice, the robberies have such a logical connection between them that the proof of one naturally tends to show that the Appellant is the one who committed the others. Although Appellant attempts to distinguish the three crimes by labelling them as a “robbery on the street”, a “forcible entry burglary/robbery/attempted rape”, and an “entry by ruse burglary/attempted robbery”, the offenses contain sufficient cumulative and distinctive similarities to warrant consolidation of the trials. The description of the perpetrator’s physical characteristics given by the victims was strikingly similar. The perpetrator also wore the same type of clothing and sunglasses in all three instances. A knife was also possessed in each robbery even though the perpetrator concealed the knife in one instance. The victims were all white, adult females. The crimes ail occurred within a thirty-four day period, within close proximity to one another, during the afternoon or early evening. The victims here all identified the Appellant as the one who robbed them. A number of items linked to Appellant were identified by the victims. Victim one testified that the sunglasses that were taken from Appellant after he was arrested for the assault on victim three looked similar to the sunglasses that the perpetrator wore when she was robbed. Victim two and her husband testified that the sunglasses identified by victim one and victim three looked like the pair worn by Appellant when they saw him near the University of Pennsylvania a week after they were robbed. Victim three testified that the knife presented at trial looked exactly like the knife recovered by police after she was attacked, and victim two testified that the same knife looked like the one brandished by the perpetrator when he entered her home. Victim one testified that the bicycle retrieved during a search of Appellant’s home looked like the one the perpetrator rode when she was robbed in the parking lot. Furthermore, it is not substantial that one robbery occurred outside since the victim in that case observed the perpetrator in the school building immediately prior to the robbery in the parking lot; therefore, in each case, the perpetrator entered buildings without having authority.

The three cases involved here contain overwhelming similarities and are probative of the identity of the perpetrator and of a common scheme, and each offense would have been admissible in a separate trial for the others. The similar criminal pattern employed and the high correlation between the details of the crimes indicates that all of the robberies are the handiwork of the same person. Additionally, the Commonwealth presented the evidence of each robbery separately to prevent any confusion on the part of the jury and Appellant has failed to demonstrate any prejudice as a result of the consolidation. Thus, we conclude that the trial court’s joinder of the offenses was not an abuse of discretion nor was it an injustice to the Appellant.

Judgment of sentence affirmed.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    671 A.2d 689
    Charlayne CRAWFORD v. Kevin BURRITT, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 10, 1995.
    Filed Dec. 27, 1995.
    Reargument Denied March 5, 1996.

      Anthony V. Clarke, Bradford, for appellant.
    Erik A. Ross, Assistant District Attorney, Mt. Jewett, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and HESTER, JJ.
   HESTER, Judge:

Following a trial on March 24, 1994, the jury returned a verdict for appellant-defendant, Kevin Burritt, and against appellee-plaintiff, Charlayne Crawford, in her suit to establish the paternity of her oldest child, Erin. Appellee filed a motion for post-trial relief on April 4, 1994, and the court heard oral argument on August 30, 1994. The next day, the common pleas court granted appellee-plaintiff a new trial on the basis that it erroneously had permitted testimony about the birth of another child out of wedlock. Appellant-defendant appealed on September 29, 1994. We determine that the trial court properly granted a new trial; we affirm.

Sometime in late August or early September, 1984, the parties, in high school and fifteen years old, went for a ride one evening in appellant’s family car with another couple. They parked in a secluded area, and the other two teenagers left the vehicle and went for a walk. While the other couple was gone, the parties had sexual intercourse.

Appellee bore a child, Erin, on June 1, 1985, the day after her due date. Appellee sought benefits through the Department of Social Services which advised her that she had to cooperate in identifying the father of her child. Initially, appellee named Jeffrey Ransom, her former boyfriend, as Erin’s father in a complaint for support filed August 8, 1985. She testified that she suspected that appellant was the father of the child, but she “was not ready to face that because I knew he did not' care about me.” Notes of Testimony (“N.T.”), 3/24/95, at 34. Appellee explained further:

Jeff and I had dated for a good while, and I had a lot of feelings for Jeff. I feel — I had been with Jeff in June of 1984, and I was — I guess I was hoping that he would be [the father] because Jeff had at one time cared about me, and I knew Kevin did not.
I had really had a lot of feelings for Jeff I was a teenager. I really didn’t understand how things were supposed to happen. I guess I was hoping that someone would marry me, sweep me off my feet, and I’d have my family, and I wouldn’t have people looking down on me____

Id. at 9, 27. On September 17, 1985, appellee wrote to the court requesting that the suit against Jeff Ransom be discontinued. Id. at 31. Subsequent DNA testing excluded Jeff Ransom as a possible father of Erin. Id. at 110.

The present support action naming appellant as Erin’s father was filed May 8, 1986. On November 10, 1987, blood samples were drawn from appellant, appellee, and Erin. Id. at 96. Roche Biomedical Laboratories conducted two categories of tests: the first was red cell antigens, better known as blood typing, and the second was leukocyte antigens, also known as HLA testing. Id. at 97-98. Dr. Clifton Harris, the associate director of the department of parentage testing at Roche, testified at trial that the combined paternity index in this case is 272 to one, which means “that Kevin Burritt is 272 times more likely than a man chosen at random from the North American white population to produce a sperm cell containing those genetic markers that Erin ... must have received.... ” Id. at 100. Dr. Harris testified further that the probability that appellant is the father of Erin is 99.63 percent. Id. at 101.

Both parties testified to the events that transpired on that late August, early September night in 1984. The relevant testimony of appellee-plaintiff is as follows:

THE WITNESS: The whole situation was embarrassing. We had sexual intercourse. And when we were done, we were waiting for them. And we got back in the front, and we sat there and talked.
Q. Did the size of the car render the act itself — give you any problems with the act itself?
A- It was very uncomfortable.
Q. Was it difficult to — that’s okay. That’s fine.
So you were in the back seat of an Opal, and you two had intercourse as you’ve testified. Now, again, I’m not trying to embarrass you, but when you say intercourse, could you be specific. And I’m going to ask you to use certain terms. You understand what penetration means?
A. Yes, I do.
Q. And do you understand what ejaculation means?
A. Yes, I do.
Q. Did Mr. Burritt penetrate your vagina that evening?
A. Yes, he did.
Q. Are you positive of that?
A. I am.
Q. Did he ejaculate that evening?
A. I don’t know. When I was 15 years old, I did not know much about sex. I really didn’t.

Id. at 20-21. In contrast, appellant-defendant testified as follows:

Things got, you know — we started kissing and petting and things like that. Things started to go someplace like we were going to have sex.
She started to remove her pants, but she wouldn’t take them all the way off. It was in a small car in the back seat, and we — I tried, but she wouldn’t take her pants off. So I couldn’t really do anything.
Q. To your knowledge, did you achieve penetration of her vagina?
A. No, I didn’t.
Q. Did you ejaculate?
A. No, I did not.
Q. Are you positive?
A. I’m positive.
Q. I want you to in great detail — and I again apologize for this — explain to the jury what level of contact there actually was.
A. Actually, there was little or no contact. It was a small car. Her pants were down to her knees; therefore, she couldn’t spread her legs. And I got on top of her, and I tried, but she wouldn’t cooperate. And then I just finally figured she wasn’t going to cooperate, and she actually — I don’t know whether she figured that she did want to and then she didn’t or what, but I figured she wasn’t going to cooperate, so I figured what was the use.

Id. at 152-54, 157.

Appellant also presented testimony that appellee had spent the night in a hotel with a construction worker during the relevant time period. Id. at 142. Appellee admitted being in the hotel room but denied any sexual activity. Id. at 47.

As noted supra, the blood test results notwithstanding, the jury returned a verdict in favor of appellant. Appellee argued, inter alia, in her motion for post-trial relief, that the trial court erred in permitting appellant to question appellee concerning the parentage of her other children. She contended that the only purpose of such questioning was to portray her to the jury as a promiscuous person of general bad character. The trial court agreed and granted a new trial on this basis. The propriety of this decision is the focus of this appeal.

As a preliminary matter, we set forth the proper scope and standard of review since appellant’s argument in this regard is erroneous. In Coker v. S.M. Flickinger Company, Inc., 533 Pa. 441, 625 A.2d 1181 (1993), the Pennsylvania Supreme Court reaffirmed the “fundamental and longstanding precept that the decision to order a new trial is one that lies within the discretion of the trial court.” Id., 533 Pa. at 446, 625 A.2d at 1184.

Thus the standard for appellate review of such a decision is always an abuse of discretion standard. In contrast, the scope of the appellate court’s review of the trial court’s decision varies: It is determined by whether the trial court cites a finite set of reasons for its decision, indicating that but for the cited reasons it would not have granted a new trial, or “leaves open the possibility that it would have ordered a new trial for reasons other than those it specified.”

Morrison v. Com., Department of Public Welfare, 538 Pa. 122, 131, 646 A.2d 565, 570 (1994) (emphasis in original), quoting Coker v. S.M. Flickinger Company, Inc., supra, 533 Pa. at 446, 625 A.2d at 1184. As we stated in Picca v. Kriner, 435 Pa.Super. 297, 299, 645 A.2d 868, 869 (1994):

Our scope of review is limited to those reasons upon which the trial court relied. We consider whether any of the trial court’s reasons for granting a new trial have merit; if so, we defer to the trial court’s decision. Because the trial court is uniquely qualified to evaluate factual matters, we will not disturb its decision absent an abuse of discretion or error of law.

The August 31, 1994 order of the trial court specifies:

At the time of argument the court considered [plaintiffs] alleged points of error and is of the opinion that the Court erred as far as point one is concerned in that the Court permitted testimony as to the birth of another child out of wedlock. Since the appellate courts have ruled that such testimony is not proper, this Court will grant the plaintiff a new trial.

Thus, we are confined to examining the propriety of the trial court’s decision to grant a new trial based on whether that court erred in permitting, over plaintiffs objection, testimony on the parentage of her two, later-born children.

Appellant contends that appellee opened the door to this evidence since testimony elicited on direct examination “raised the inference to the jury that [appellee-plaintiff] was a virtuous person, who, for all intents and purposes, is leading a normal lifestyle, within the meaning that society would place upon it.” Appellant’s brief at 12. The testimony underscored by appellant, which was elicited -within the first questions posed by appellee’s counsel, is as follows:

Q. Would you state your name, please.
A. Charlayne Crawford.
Q. And where do you live?
A. In Columbia, South Carolina.
Q. Keep your voice up, please, so the jury can hear you.
A. Columbia, South Carolina.
Q. Try to speak slowly too because — so that the words all come out and the jury can understand everything you have to say. All right?
Ms. Crawford, do you have any children?
A. Yes, I do.
Q. And what are their names?
A. Erin Crawford, Matthew and Victoria.
Q. And their ages?
A. Eight and a half, five—
Q. That’s Erin?
A. Erin is eight and a half, Matthew is five, and Victoria is two and a half.
Q. Are you married?
A. Yes, I am.
Q. And what’s your husband’s name?
A. Steve Kinlaw.

N.T., 3/24/94, at 3-4. It is this introductory, background information that appellant contends raised the inference that appellee “was a virtuous person.... ” Appellant’s brief at 12.

The testimony elicited on cross-examination of appellee, upon which the trial court apparently relied in granting a new trial, is as follows:

Q. You say that you have two children now, correct?
A. I have three.
Q. Three children. Okay. You have Erin who you’re alleging is Mr. Burritt’s child, correct?
A. That is correct.
Q. And the second child is who now?
A. Matthew.
Q. That’s Matthew Anthony?
A. Um-hum.
Q. He is the child of who?
MR. ROSS: Objection, Your Honor. That’s irrelevant to these proceedings.
THE COURT: What’s your objection?
MR. ROSS: Objection. That is irrelevant.
THE COURT: I don’t think it is. Go ahead.
BY MR. CLARKE:
Q. Matthew Anthony you said?
A. Yes.
Q. And he is the child of who?
A. Matthew Anthony, Sr.
Q. That is another man, not your husband, correct?
A. Correct.
Q. And your third child is?
A. Victoria.
Q. She is who now? What’s her last name?
A. Crawford.
Q. She is the child of who?
A. Of Steve Kinlaw, my husband.
Q. And you’re married to Steve Kinlaw now, correct?
A. Yes.

N.T., 3/24/95, at 25-26. This testimony came directly on the heels of specific questions about the consummation of sexual intercourse between the parties.

Appellant first contends that the above testimony which he elicited on cross-examination was mere background information, and as such, the trial court was not free to. exclude it. We reject such a claim. The information elicited by these questions was not mere background information; it was testimony elicited to suggest to the jury that appellee was a promiscuous woman and thereby prejudice the jury.

Appellant further contends that the testimony he elicited on cross-examination “was properly admissible character evidence.” Appellant’s brief at 13. Again, we disagree. Appellant’s argument is premised on the assumption that the questions posed to appellee by her counsel when she began her testimony “was calculated to portray [appellee-plaintiff] in a positive light in . regards to her family situation.” Appellant’s brief at 14. Thus, appellant asserts that appellee “opened the door,” appellant’s brief at 15, by testifying on direct examination that she has three, children and that she is married. According to appellant, this testimony was calculated to portray appellee to the jury as a “virtuous person” who is leading a “normal lifestyle.” Id. at 8, 12. The door thus having been opened in this manner, appellant argues that he was entitled to negate the inference that appellee is a virtuous person by establishing that she had premarital sexual intercourse on at least one other occasion and gave birth to another child out of wedlock.

The questions posed to appellee when she began her testimony were background questions of the type asked of virtually every party who testifies. She told the jury her name, where she lives, the names and ages of her children, and the name of her husband. Appellant’s suggestion that appellee offered this testimony for the purpose of bolstering her credibility by portraying herself as a virtuous person is groundless, especially in light of her later direct testimony wherein she acknowledged that she had premarital sexual intercourse with appellant when she was fifteen years old, admitted previous sexual intercourse with her prior boyfriend, Jeff Ransom, and told the jury that she initially had filed a support complaint against Ransom.

This court has determined in a paternity action that evidence of a mother’s sexual activity is a “fact extremely important in the inquiry” but only “at or about the time the child was begotten.” Butler v. DeLuca, 329 Pa.Super. 383, 387, 478 A.2d 840, 843 (1984), quoting Commonwealth v. Young, 163 Pa.Super. 279, 283, 60 A.2d 831, 833 (1948). We determined in DeLuca that the trial court erred in failing to instruct the jury regarding the period during which sexual activity of the plaintiff-mother was relevant to the paternity issue after defendant testified that he saw plaintiff-mother nude on a couch with another man at a time that was not within the period of possible conception.

The only other paternity case remotely applicable to this issue is Horton v. Appleby, 333 Pa.Super. 375, 482 A.2d 615 (1984). We determined in Horton that the trial court erred in admitting the marginally relevant and prejudicial evidence that plaintiff-mother was receiving public assistance and that such error was not harmless. Following discussion of the pivotal issue, we discussed at length an additional trial court error concerning the admission of evidence that the plaintiff-mother rented a room in a house in which two men reside. We addressed the issue even though plaintiff had failed to object to the testimony at trial “because we [were] remanding for a new trial ... and the error should not be repeated at the new trial.” Id., 333 Pa.Super. at 378, 482 A.2d at 618.

We determined the testimony that the plaintiff lived with two men during a time which was outside the period of possible conception was not relevant and its admission was improper, stating, “The only inference to be drawn from the testimony was that [the plaintiff] was a bad person because she had lived with two men some time before becoming pregnant.” Id. at 381, 482 A.2d at 619.

Similarly, in the present case, the only purpose served by asking appellee about the paternity of her other children was to portray her to the jury as a promiscuous person of bad character. That she had engaged in premarital sex during a time that is outside the period of possible conception is irrelevant and improper due to its potential prejudicial effect.

Moreover, we cannot say that this error was harmless. As noted, the blood tests resulted in a 99.63 percent likelihood that appellant is the father of Erin and a 272 to one paternity index. Apparently, the jury rejected the HLA test results and found in favor of appellant on the basis of its appraisal of appellee’s credibility. In these circumstances, we cannot say that the admission of the- evidence that appellee had another child out of wedlock was harmless error. Thus, the trial court did not abuse its discretion in awarding appellee a new trial.

Order affirmed.

      . The record offers no revelation, nor do the parties, as to why this matter languished in the court system for eight years before it proceeded to trial.

      . On April 19, 1995, the trial court rescinded its prior order of August 31, 1994, and withdrew its grant of a new trial. As the common pleas court was without jurisdiction to act in that the notice of appeal to this court was filed September 29, 1994, the order of April 19, 1995 is a nullity and merits no further discussion. See 42 Pa.C.S. § 5505.


author: WIEAND, Judge:

text:
    671 A.2d 695
    Dennis L. BOWERS, A Minor, by his Mother and Natural Guardian, Sandy BROWN v. The ESTATE OF Paula S. FEATHERS, Deceased, By Shirley Feathers, Administratrix, the Universal Underwriters Insurance Company, An Insurance Corporation, Allstate Insurance Company, An Insurance Corporation, Keystone Insurance Company, An Insurance Corporation. Appeal of The UNIVERSAL UNDERWRITERS INSURANCE COMPANY, An Insurance Corporation. Charles ODY, Administrator of the Estate of Shannon Paul Ody, Deceased, Appellee, v. Shirley L. FEATHERS, Administratrix of the Estate of Paula S. Feathers, Deceased, Appellant, Dennis L. BOWERS, A Minor, by his Mother and Natural Guardian, Sandy Brown v. The ESTATE OF Paula S. FEATHERS, Deceased, By Shirley Feathers, Administratrix, the Universal Underwriters Insurance Company, An Insurance Corporation, Allstate Insurance Company, An Insurance Corporation, Keystone Insurance Company, An Insurance Corporation. Appeal of UNIVERSAL UNDERWRITERS INSURANCE COMPANY, An Insurance Corporation.
    Superior Court of Pennsylvania.
    Argued May 24, 1995.
    Filed Dec. 28, 1995.
    Reargument Denied March 6, 1996.

      Robert E. Dapper, Jr., Pittsburgh, for Universal Underwriters Insurance Company & Shirley Feathers.
    Patrick J. Demay, Bethel Park, for Dennis L. Bowers, appellee.
    Jack A. Wintner, Pittsburgh, for Charles Ody.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

The primary issue in these consolidated appeals is whether Paula Feathers was an insured and is entitled to coverage under a multiple coverage insurance policy issued by Universal Underwriters Insurance Company while driving a vehicle loaned to her by a dealer. Feathers was an insured and is entitled to coverage under the “garage” portion. However, she was not an insured under the “umbrella” portion, of the policy. Under the garage portion of the policy, moreover, Universal’s liability is limited by a valid “most we will pay” clause.

Paula Feathers’ car was in the Kelly Shuster Enterprises Garage on May 27, 1991, and, because Feathers was also thinking of buying a new car, the dealership allowed her to take for the weekend a 1991 Dodge. During the course of the weekend, an accident occurred in which Dennis Bowers, a passenger in Feathers’ car, sustained injuries causing paraplegia; and Shannon Ody, also a passenger, was killed.

The Dodge vehicle was insured as a Dealer Rent-A-Car (DRAC) vehicle under a policy of insurance issued by Allstate Insurance Company to Chrysler Credit Corporation and the dealership. A personal policy of automobile insurance was also owned by Feathers, having been issued by Keystone Insurance Company. Kelly Shuster was insured under a multiple coverage policy issued by Universal Underwriters. Keystone and Allstate paid policy limits; Universal Underwriters denied liability. In an action for declaratory judgment to determine coverage, which was filed by Dennis Bowers and to which Charles Ody, administrator of the Estate of Shannon Ody, deceased, was joined as an additional plaintiff by consent of all parties, cross-motions for summary judgment were filed. The trial court entered summary judgment against Universal Underwriters and in favor of both Bowers and Ody. Universal appeals from those judgments.

“[T]he interpretation of an insurance policy is a question of law for the court.” State Farm Mut. Auto. Ins. Co. v. Universal Underwriters Ins. Co., 441 Pa.Super. 446, 451, 657 A.2d 1252, 1254 (1995). “Whether a particular loss is within the coverage of an insurance policy is such a question of law and may be decided on a motion for summary judgment in a declaratory judgment action.” Id. at 451, 657 A.2d at 1255. Summary judgment may be entered where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hoffmaster v. Harleysville Ins. Co., 441 Pa.Super. 490, 495, 657 A.2d 1274, 1276 (1995).

“When interpreting a contract of insurance it is necessary to consider the intent of the parties as manifested by the language of the instrument. Where the policy language is clear, the contract will be applied as written.” Insurance Co. of the State of Penn. v. Hampton, 441 Pa.Super. 382, 385, 657 A.2d 976, 977-978 (1995) (citation omitted). See also: Alexander v. CNA Insurance Co., 441 Pa.Super. 507, 510-511, 657 A.2d 1282, 1284 (1995); Britamco Underwriters, Inc. v. Grzeskiewicz, 433 Pa.Super. 55, 59-60, 639 A.2d 1208, 1210 (1994).

Universal argues that the trial court erred in classifying Paula Feathers as an insured under the garage coverage part of the policy issued to Kelly Shuster. We disagree.

Under the garage portion of the Universal Underwriters policy, an insured is defined as follows:

WHO IS AN INSURED— ...
With respect to the AUTO HAZARD: ...
3. Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.

The garage portion defines “auto hazard” and “garage operations” as follows:

“AUTO HAZARD” means the ownership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and:
(1) used for the purpose of GARAGE OPERATIONS or
(3) furnished for the use of any person or organization. “GARAGE OPERATIONS” means the ownership, maintenance or use of that portion of any premises where YOU conduct YOUR AUTO business and all other operations necessary or incidental thereto.

Feathers was the driver of a car required by law to be insured. She was using the vehicle with the dealer’s permission and as a part of the dealer’s garage operation. Therefore, Feathers was an insured and was covered by the garage portion of the Universal Underwriters Policy. See: State Farm Mutual Auto Ins. Co. v. Universal Underwriters Ins. Co., supra 441 Pa.Super. at 453-454, 657 A.2d at 1255-1256.

An endorsement to the garage policy excluded coverage if the vehicle was “leased or rented to others.” Universal argues that Feathers was subject to the exclusion because she was operating the vehicle pursuant to a lease or rental agreement. In support of its position, Universal presented the deposition testimony of William Shuster, owner of the Kelly Shuster dealership, wherein Shuster testified that he had filled out the rental lease agreement paperwork and had given a copy to Feathers. Universal contends that it can be inferred that Feathers agreed to the terms of the rental lease agreement because she allegedly saw the agreement and received a copy of it from Mr. Shuster. There is no dispute that Feathers did not sign the alleged agreement and did not pay any money for use of the vehicle. There was also no evidence that Feathers orally agreed to the terms of the alleged agreement. Under these circumstances, we accept the trial court’s' finding that no legally cognizable, commercial agreement or lease for the vehicle was ever reached between the dealership and Feathers. Thus, Feathers was not subject to the garage policy’s exclusion of coverage.

Feathers argued and the trial court held that Feathers was also entitled to coverage under the “umbrella” part of the multiple coverage policy. Universal contends that this was error.

The umbrella coverage was purchased to provide for excess coverage under the five other features of the policy. By purchasing an umbrella policy, Kelly Shuster obtained, at a comparatively modest cost, $2,000,000 in insurance coverage. “[Umbrella policies give] a financial security, as well as peace of mind, to the individual purchasing such coverage who is hopeful that he [or she] will never be involved in any substantial claim or lawsuit, but, if he [or she] is, is desirous of not losing the security it may have taken a lifetime to acquire.” 8A Appleman, Insurance Law and Practice § 4909.85 (1981). This feature of the policy, however, may contain its own definition of an insured. Bowers and Ody concede that Feathers does not meet the umbrella feature’s definition of an insured, but nevertheless argue that Feathers is entitled to coverage under the umbrella feature because Universal agreed to “pay for loss in excess of ... coverage provided in any UNDERLYING INSURANCE.”

When the language of an insurance policy is clear, the contract should be applied as written. Insurance Co. of the State of Penn. v. Hampton, supra 441 Pa.Super. at 385, 657 A.2d at 977-978. Additionally, an insurance policy must be read in its entirety. Blocker v. Aetna Casualty and Surety Co., 232 Pa.Super. 111, 114, 332 A.2d 476, 478 (1975). Even though the garage part qualifies as an underlying insurance, Feathers did not become an insured under the umbrella feature of the policy merely because she was an insured under the garage policy. To be an insured under the umbrella feature, Feathers was required to meet the policy requirements therefor. This she failed to do. We should not ignore the umbrella’s definition of “who is an insured” in order to effect an extension of liability coverage under the umbrella policy. An auto dealer may well purchase umbrella coverage to protect his or her business; however, he or she will not likely purchase such additional coverage for his or her customers. This is particularly so where, as here, the law does not require it.

The garage policy contains a “most we will pay” clause as follows:

With respect to persons or organizations required by law to be an INSURED, the most WE will pay is that portion of such limit needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits.

The trial court held that such a clause is an invalid “escape clause.” We disagree.

An escape clause is one which purports to relieve the insurer from any obligation to the insured if other coverage is available. Fryer v. Allstate Ins. Co., 392 Pa.Super. 418, 420, 573 A.2d 225, 226 (1990); Connecticut Indem. Co. v. Cordasco, 369 Pa.Super. 439, 444, 535 A.2d 631, 633 (1987). “[E]scape clauses are generally disfavored in the law.” Fryer v. Allstate Ins. Co., supra 392 Pa.Super. at 421, 573 A.2d at 226-227. Where an invalid escape clause exists, it will be stricken and the policy enforced as if the escape provision did not exist. Connecticut Indem. Co. v. Cordasco, supra 369 Pa.Super. at 444-445, 535 A.2d at 634.

The clause in this case, however, is not an escape clause. The plain language of the provision requires that Universal provide coverage to those persons “required by law to be an insured” in an amount consistent with the minimum limits required in the jurisdiction where the occurrence took place. See: Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. § 1702 (defining motor vehicle financial responsibility). An insurer certainly does not expect to assume the uncertain risk of providing unlimited coverage to unknown persons, i.e., those required by law to be an insured.

Paula Feathers was not a named insured in the garage section. She also was not an employee, officer or director of a named insured. She was an insured under the Universal policy only because she was “required by law to be an insuréd.” Therefore, the amount that Universal is required to pay is that “needed to comply with the minimum limits provision of such law in the jurisdiction where the occurrence took place.” In Pennsylvania, those limits are $15,000/30,000.

There are no policy reasons for holding invalid the “most we will pay” section of the Universal policy. In Paylor v. Hartford Ins. Co., 536 Pa. 583, 640 A.2d 1234 (1994), the Supreme Court said:

“It is only when a given policy is so obviously for or against the public health, safety, morals or welfare, that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in [declaring what is or is not in accord with public policy].” Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941). The phrase “public policy” has been used also when the courts have interpreted statutes broadly to help manifest their legislative intent. Jeffrey v. Erie Insurance Exchange, 423 Pa.Super. 483, 621 A.2d 635 (1993).
The repeal of the No-Fault Act and the enactment of the MVFRL reflected a legislative concern for the spiraling consumer cost of automobile insurance and the resultant increase in the number of uninsured motorists driving on public highways. The legislative concern for the increase in cost of insurance is the public policy that is to be advanced by statutory interpretation of the MVFRL. This reflects the General Assembly’s departure from the principle of “maximum feasible restoration” embodied in the now defunct No-Fault Act.

Id. at 586-587, 640 A.2d at 1235 (emphasis added).

“Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Hall v. Amica Mut. Ins. Co., 538 Pa. 337, 347, 648 A.2d 755, 760 (1994).

As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy---- Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts ... contrary to public policy. The courts must be content to await legislative action.

Muschany v. United States, 324 U.S. 49, 66-67, 65 S.Ct. 442, 451, 89 L.Ed. 744, 756 (1945) (footnotes and citations omitted).

It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interest of the public weal.... Only in the clearest cases, therefore, may a court make an alleged public policy the basis of judicial decision.

Mamlin v. Genoe, 340 Pa. 320, 325, 17 A.2d 407, 409 (1941). Id. at 347-348, 648 A.2d at 760.

The “most we will pay” clause is not an escape clause. It does not void Universal’s obligation under its policy. It limits Universal’s coverage under circumstances where other coverage is in place. Such a clause does not violate public policy.

The trial court also held the clause was unenforceable because it provided for greater insurance coverage for the primary insured than for those required by law to be insured. The court based its ruling upon Home Ins. Co. v. McGovern, 837 F.Supp. 661, 668-669 (E.D.Pa.1993), where the federal court invoked public policy to invalidate a provision purporting to extend minimum motor vehicle financial responsibility statutory limits to an insured’s customer and provide full liability insurance to the insured. The reasoning in Home Insurance is unpersuasive. Because it is not binding authority, we decline to follow it.

Other jurisdictions have allowed two classes of insureds with different levels of liability. coverage. In great part, these jurisdictions have relied on the right to contract freely. Accordingly, “[a]n insurance company cannot be liable for any greater amount of coverage than that provided by operation of law or voluntarily in its policy.” American Tours, Inc. v. Liberty Mut. Ins. Co., 315 N.C. 341, 338 S.E.2d 92, 98 (1986). There is no good “reason why [lessors] cannot insure themselves against liability at higher limits than the limits provided for their lessees ..., so long as the minimum limits of the law are satisfied. If the minimum limits provided by law are inadequate, that is a matter [for] the Legislature.” General Accident Group of Ins. Co. v. Liberty Mutual Ins. Co., 191 N.J.Super. 530, 468 A.2d 430, 433 (1983). Insureds are free to limit coverage, so long as it is in excess of the minimum amount required by law, and thereby obtain a lower premium because of the exclusion of a high risk. State Farm Mut. Auto. Ins. Co. v. Mastbaum, 748 P.2d 1042, 1044 (Utah 1987). See also: Lindsey v. Colonial Lloyd’s Ins. Co., 595 So.2d 606, 613 (La.1992) (neither public policy nor insurance code requires invalidation of two-tier insurance policy); Rogers v. Snappy Car Rental, Inc., 272 N.J.Super. 346, 639 A.2d 1154, 1159 (1993) (step down provisions are valid as long as the statutory minimum is satisfied); Patton v. Lindo’s Rent-A-Car, Inc., 415 So.2d 43, 45 (Fla.App.1982) (once requirements of Florida’s Financial Responsibility Law are satisfied, the parties are free to contract between themselves as to any additional responsibility); Balboa Ins. Co. v. State Farm Mut. Auto. Ins. Co., 17 Ariz.App. 157, 496 P.2d 147, 149 (1972) (enforcing step down provision where lessor’s policy limited lessee’s coverage in a rental vehicle to the amount specified by the state’s Financial Responsibility Act).

Since the underlying accident occurred in Pennsylvania, Universal is responsible to respond in damages in the amounts set forth by section 1702 of the MVFRL. Section 1702 provides that financial responsibility is “[t]he ability to respond in damages for liability on account of [motor vehicle accidents] in the amount of $15,000 because of injury to one person in any one accident, in the amount of $80,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident.” 75 Pa.C.S. § 1702. This holding is consistent with the view that the “courts have no authority to extend the liability of the insurance company beyond the contract made in full compliance with the law.” Kyle v. McCarron, 201 Pa.Super. 403, 411-412, 192 A.2d 253, 258 (1963).

Accordingly, we hold that Feathers is entitled to the coverage available under the garage portion, but not the umbrella feature, of the Universal Underwriters policy. The scope of the policy’s umbrella’s coverage extends only to those who qualify as insureds under that part of the policy, and it is clear that Feathers does not so qualify. Finally, the coverage available under the garage part is the statutory minimum limit, rather than the full policy limits.

The summary judgment entered by the trial court is affirmed in part and reversed in part as set forth in the foregoing Opinion. The summary judgment entered at No. 92 C.P. 865 is vacated.

      . Paula Feathers was also killed as a result of the accident.

      . Shirley L. Feathers, administratrix of the Estate of Paula S. Feathers, deceased, also appeals from the entry of summary judgment in a separate, underlying tort action filed by Charles Ody, administrator of the Estate of Shannon Paul Ody, deceased, at Court of Common Pleas of Blair County Civil Division No. 92 C.P. 865. It appears that the judgment was entered due to clerical error. In fact, Ody had not moved for summary judgment in that action. The parties agree that it was the trial court’s intent merely to enter summary judgment on the insurance coverage issue at No. 92 C.P. 770 and not the Ody tort action. Accordingly, the summary judgment entered at No. 92 C.P. 865 may be vacated.


author: BECK, Judge:

text:
    671 A.2d 701
    Donna MAIER, Appellant, v. Mary MARETTI and Donald Maretti.
    Superior Court of Pennsylvania.
    Argued Sept. 26, 1995.
    Filed Dec. 28, 1995.
    Reargument Denied March 6, 1996.

      Byron King, Pittsburgh, for appellant.
    Martin Saunders, Pittsburgh, for appellees.
    Before ROWLEY, President Judge, and BECK and HUDOCK, JJ.
   BECK, Judge:

This is an appeal from an order of the Court of Common Pleas of Beaver County granting summary judgment in favor of appellees, Mary and Donald Maretti. Appellant, Donna Maier, filed suit against the Marettis alleging defamation and interference with contract. Appellant claims Mary Maretti intentionally and falsely attributed words to appellant which caused appellant to be terminated from her employment with Sears. We affirm the trial court’s grant of summary judgment in the defamation and interference with contract actions.

Appellant Maier was employed by Sears in its maintenance department. Appellee Mary Maretti was appellant’s immediate supervisor. When Sears began requiring its maintenance employees to work on Sundays, appellant refused to work because of her religious beliefs and was suspended from her job. Appellant subsequently filed a complaint with the United States Equal Employment Opportunity Commission [EEOC], Before the EEOC had published its findings and determinations, appellant placed a call to appellee. Appellant claims the conversation concerned candy appellant had bought from appellee’s sister and questions concerning who handled Sears’ unemployment compensation. Following the conversation, appellee reported to the Branch Manager of Sears, Mr. Page, that appellant stated to appellee: “You better play ball with me, or I’m going to put your f-cking head through the wringer with your extramarital affair.” Branch Manager Page concluded appellant was guilty of gross insubordination and harassment and fired appellant. Appellant denies making this statement and brought suit claiming appellee is guilty of defamation and tortious interference with contract. Appellant claims appellee falsely and intentionally attributed the above quoted words to appellant in her report to the branch manager and the personnel director. Appellee filed a motion for summary judgment alleging (1) the character of the statement was not defamatory and (2) a claim of interference with contract did not exist because there was no interference with a contract by a third person. The trial court granted appellee’s summary judgment which is the subject of this appeal.

Our standard of review in assessing the grant of a motion for summary judgment requires us to view the record in a light most favorable to the non-moving party. Rybas v. Wapner, 311 Pa.Super. 50, 457 A.2d 108 (1983). We must accept as true all well-pleaded facts in the non-moving party’s pleading, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Id. We will uphold a grant of summary judgment only in those cases in which the pleadings, depositions, interrogatories, and admissions on file, together with affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Elia v. Erie Ins. Exchange, 430 Pa.Super. 384, 634 A.2d 657 (1993).

DEFAMATION

In an action for defamation, the plaintiff must prove: (1) the defamatory character of the communication; (2) publication by the defendant; (3) its application to the plaintiff; (4) understanding by the recipient of its defamatory meaning; (5) understanding by the recipient of it as intended to be applied to plaintiff; (6) special harm to the plaintiff; (7) abuse of a conditionally privileged occasion. 42 Pa.C.S. § 8343(a) (Purdons 1982). Initially, it is the function of the court to determine whether the communication complained of is capable of a defamatory meaning. Rybas, supra. A communication is defamatory if it tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. Elia, supra. A communication is also defamatory if it ascribes to another conduct, character or a condition that would adversely affect his fitness for the proper conduct of his proper business, trade or profession. Gordon v. Lancaster Osteopathic Hospital Ass’n, 340 Pa.Super. 253, 489 A.2d 1364 (1985). If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial; however, if there is an innocent interpretation and an alternate defamatory interpretation, the issue must proceed to the jury. Livingston v. Murray, 417 Pa.Super. 202, 612 A.2d 443 (1992).

In determining whether the communication is defamatory, the court must consider the effect the statement would fairly produce, or the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate. Rybas, supra. The words must be given by judges and juries the same significance that other people are likely to attribute to them. Livingston v. Murray, 417 Pa.Super. 202, 612 A.2d 443 (1992). Furthermore, the nature of the audience hearing the remarks is a critical factor in determining whether the communication is defamatory. Id. See Gordon v. Lancaster Osteopathic Hospital Ass’n, 340 Pa.Super. 253, 489 A.2d 1364 (1985) (court must consider the expertise and knowledge of those to whom the publication is circulated and consider the effect it is fairly calculated to produce); Agriss v. Roadway Express Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984). It is also important to note communications which may annoy or embarrass a person are not sufficient as a matter of law to create an action in defamation. Gordon, supra.

Appellant claims appellee’s false attribution of the sentence to appellant tended to lower appellant in the estimation of her employer, implied that appellant is vulgar, crude and grossly insubordinate, and indicated that appellant is intemperate, lacks integrity and self-control. The trial court concluded the statement was not capable of defamatory meaning because nothing in the statement tended to harm appellant’s reputation. (Tr.Ct.Op. at 4). We agree with the trial court’s determination, and affirm the grant of summary judgment with respect to the defamation claim.

Even viewing the evidence in a light most favorable to appellant (that appellee falsely attributed the statement to appellant), the statement was incapable of a defamatory meaning. Attributing the quotation to appellant clearly embarrassed appellant, but it in no way lowered the community’s estimation of appellant. First, alleging someone is crude, vulgar and insubordinate is not as offensive as other statements which have been characterized as incapable of defamatory meaning. See Parano v. O’Connor, 433 Pa.Super. 570, 641 A.2d 607 (1994) (statements that plaintiff was less than helpful, uncooperative and took adversarial position was not capable of defamatory meaning because they are far less offensive than other characterizations); Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 626 A.2d 595 (1993), allocatur denied, 536 Pa. 643, 639 A.2d 29 (1994) (statement that plaintiff was crazy not capable of defamatory meaning); Gordon v. Lancaster Osteopathic Hospital Ass’n, 340 Pa.Super. 253, 489 A.2d 1364 (1985) (statements by appellee that they lacked confidence in appellant’s work and performance, and lacked trust in appellant were not capable of defamatory meaning); Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984) (statement published to employee’s supervisor and co-workers concerning plaintiffs opening of company mail was defamatory because it implied plaintiff had committed a crime); Rybas v. Wapner, supra (characterizing person as anti-Semitic was not defamatory); Goralski v. Pizzimenti, 115 Pa.Commw. 210, 540 A.2d 595 (1988) (statement that appellant was terminated due to misconduct was not capable of defamatory meaning). In Agriss v. Roadway Express, Inc., supra, this court held the statement was capable of defamatory meaning because it implied the employee had committed a crime. However, in the .present litigation there is no implication that appellant committed a crime. Given the above cited case law, an allegation that appellant was vulgar, crude and insubordinate, in no way reached the level capable of defamatory meaning and harm to appellant’s reputation in the community.

Second, attributing the quoted words to appellant implied appellant was vulgar, crude and obscene and alleging someone is crude and vulgar is not capable of defamatory meaning. In Wecht v. PG Publishing Co., 353 Pa.Super. 493, 510 A.2d 769 (1986), this court held cartoon which portrayed appellant as a vile, obscene, abusive insensitive and paranoid individual was not capable of defamatory meaning.

Furthermore, Pennsylvania case law holds that the nature of the audience is a critical factor in determining whether the communication is defamatory. In Rybas v. Wapner, this court stated audience was a critical factor and since the statement was made only to a fellow attorney, the intended publication was extremely limited. 311 Pa.Super. at 56, 457 A.2d at 111. The court further held because the audience was limited it would not harm the reputation of the plaintiff in the community. Id. See Agriss v. Roadway Express, Inc., supra (statement published to employee’s supervisors and co-workers concerning plaintiffs opening of company mail was defamatory because public contempt and ridicule was clear); Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980) (alleged defamation was evaluation of academic performance and since communication intended for only a few members of the community, it did not lead community to ostracize or shun plaintiff). Here the statement was a report by appellee to the branch manager and personnel director of Sears. The statement was not intended for a large audience; therefore, there was no harm to appellant’s reputation in the community.

Appellant argues the fact she was immediately fired after the statement was falsely attributed to her evidences her reputation was harmed, that third persons were deterred from associating with her, and caused injury to her business or profession. In Gordon v. Lancaster Osteopathic Hospital Ass’n, Gordon claimed he was defamed when several colleagues wrote letters to the Hospital’s Board of Directors stating they had no confidence in Gordon and lacked trust in Gordon’s ability. 340 Pa.Super. at 262, 489 A.2d at 1369. Gordon’s contract was not renewed after these letters. Id. The court stated that a communication is defamatory if it ascribes to another conduct, character or condition that would adversely affect his fitness for the proper conduct of his proper business or profession. Id. The court further stated that the imputation must be of such a character as to disparage the other in his business, trade, profession or office or tend to harm him in it. Id. (citing Restatement (Second) of Torts § 573, comment (c) (1977)). The court then held that these statements were incapable of defamatory meaning. Id. In the present litigation, appellant claims attributing the quote to her imputed characteristics which injured her trade/profession. The statement, however, did not concern her abilities to perform her job and did not harm her trade or ability to become employed elsewhere.

Clearly the alleged communication was not defamatory because it did not cause appellant’s reputation to be lowered in the community nor cause third persons from associating with her. However, regardless of whether or not the communication was defamatory, appellee’s report to the branch manager and personnel director was privileged and appellant failed to allege any genuine issue of material fact'regarding the abuse of that privilege.

Communications are privileged when made on a proper occasion, from a proper motive, and in a proper manner. Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). This occurs when circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know. Id. (citing Rankin v. Phillippe, 206 Pa.Super. 27, 211 A.2d 56 (1965)). In the present litigation, appellant was suspended for refusal to work on Sundays and had filed an EEOC complaint; therefore, both appellee as appellant’s supervisor and Sears’ branch manager and personnel director had a common interest in appellant. As a supervisor, appellee correctly believed the branch manager had a right to know about incidents involving appellant. Furthermore, this court in Rutherfoord v. Presbyterian-University concluded that communications among management-level persons concerning employee’s job performance were necessary for the operation of the department and therefore privileged. 417 Pa.Super. 316, 612 A.2d 500 (1992). This court in Daywalt v. Montgomery Hospital held a supervisor’s communication of her suspicions concerning plaintiffs alteration of her time card to personnel director and payroll department was privileged. 393 Pa.Super. 118, 573 A.2d 1116 (1990), The court stated this privilege applied to private communications among employers regarding discharge and discipline. Id. Appellant was suspended from her job; therefore, appellee’s report to the branch manager did not concern appellant’s job performance; however, it did involve discipline and discharge of appellant. In light of appellant’s refusal to work on Sundays and the filing of an EEOC complaint, it is reasonable that appellee would report any conversations with appellant to the branch manager and personnel director.

Appellant argues that since she denied the existence of a conditional privilege in her responsive pleading that a genuine issue of material fact automatically exists. However, to withstand a motion for summary judgment, appellee must do more than allege the non-existence of a privilege in her pleadings. See Kniaz v. Benton Borough, 164 Pa.Commw. 109, 642 A.2d 551 (1994) (when motion for summary judgment is made and supported, adverse party may not rest only on the mere allegations or denials in his pleading, but must set forth in his response by affidavits or as otherwise provided, specific facts in dispute).

Appellant also argues appellee abused the conditional privilege because appellee fabricated the statement and falsely attributed it to appellant out of malice. However, the only evidence of malice set forth by appellant is in her pleading where she alleges the statement was made as revenge for appellant’s filing of the EEOC complaint. Appellant sets forth no other evidence that appellee acted out of malice towards appellant. On the other hand, appellant’s testimony is contrary to her allegation of malice. As a result, there is no genuine issue of material fact regarding the existence of a privilege or appellee’s abuse of that privilege. Appellee was privileged in her communication and did not abuse that privilege; therefore, we agree with the trial court’s grant of summary judgement in appellee’s favor with respect to the defamation claim.

We affirm the grant of summary judgment in appellee’s favor based on our conclusion that (1) the communication was not capable of defamatory meaning and (2) appellee was privileged in her communication.

INTERFERENCE WITH CONTRACT

Appellant argues appellee’s fabrication and attribution of the statement to appellant causing Sears to terminate appellant’s employment interfered with appellant’s employment contract with Sears. The trial court granted summary judgment in favor of appellees with respect to appellant’s claim for interference with contract. The trial court stated that because appellee was an employee of Sears, appellee and Sears were one and the same, and the suit must be dismissed because there was an absence of three parties required to maintain a claim of tortious interference with contract. We affirm the trial court’s grant of summary judgment.

The tort of interference with contract provides that one who intentionally and improperly interferes with the performance of a contract between another and a third person by causing the third person not to perform the contract is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract. Daniel Adams Associates v. Rimbach Publishing, 360 Pa.Super. 72, 519 A.2d 997 (1987) (citing Restatement (Second) of Torts § 766). Essential to recovery on the theory of tortious interference with contract is the existence of three parties; a tortfeasor who intentionally interferes with a contract between the plaintiff and a third person. Id. As a result there must be a contractual relationship between the plaintiff and a party other than the defendant. Appellant argues she is the first party, appellee is the second party who intentionally interfered with the contract and Sears is the third party. Appellant, however, overlooked case law which holds a corporation acts only through its agents and officers, and such agents or officers cannot be regarded as third parties when they are acting in their official capacity. Daniel Adams Associates, supra. See Rutherfoord v. Presbyterian University Hospital, supra (stating when claim for intentional interference is based on contract with employer and relationship is terminated by agent of employer acting within the scope of his agency there is no third party involved and no claim will lie); Nix v. Temple University, 408 Pa.Super. 369, 596 A.2d 1132 (1991) (persons alleged to have interfered with plaintiffs contract with Temple were all administrative officers of Temple who were acting on behalf of Temple when appellant was discharged; therefore, plaintiff failed to meet requirement of three parties).

In the present litigation, appellant as appellee’s supervisor had a duty to supervise the employees below her and report any incidents, misconduct and acts of insubordination to her superior. Therefore, when appellee reported appellant’s telephone conversation to the branch manager she was acting within the scope of her employment. Appellee and Sears are therefore, the same party. Since appellant failed to allege three parties were involved, appellant’s claim of contractual interference fails. We affirm the trial court’s grant of summary judgment in favor of appellee with respect to the claim of interference with contract.

Order of Summary Judgment affirmed.

      . An abuse of a conditional privilege occurs when the publication is actuated by malice or negligence, is made for a purpose other than that for which the privilege is given or to a person not reasonably believed to be necessary for the accomplishment of the purpose of the privilege or includes defamatory matter not necessary for the accomplishment of the purpose. Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980).

      . Appellant testified in her deposition that appellee treated her fairly and that appellee had no apparent personal grudge against appellant.