text:
    464 A.2d 440
    BEECHWOODS FLYING SERVICE INC., a corporation, and Hepburnia Coal Sales Corporation, a corporation, Appellants, v. AL HAMILTON CONTRACTING CORPORATION, a corporation, and Larry Wilsoncroft, an individual.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1982.
    Filed Aug. 5, 1983.
    Petition for Allowance of Appeal Granted Dec. 5, 1983.

      William A. Pietragallo, Pittsburgh, for appellants.
    William C. Kriner, Clearfield, for Hamilton, appellee.
    Richard A. Bell, Clearfield, for Wilsoncroft, appellee.
    Before CAVANAUGH, ROWLEY and MONTGOMERY, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying appellants’ post-trial motions for judgment n.o.v. or a new trial.

On September 28, 1977, a helicopter, owned by Hepburnia Coal Sales Corporation (Hepburnia) and leased to its subsidiary, Beechwoods Flying Service, Inc. (Beechwoods), [hereinafter appellants], and a truck operated by Appellee Larry Wilsoncroft (Wilsoncroft), an employee of A1 Hamilton Contracting Corporation (Hamilton), collided. The helicopter had been leased by Hamilton from Beechwoods. Included in the fallout from the September 28, 1977 collision was the law suit that forms the foundation for this appeal.

In their suit against Hamilton and Wilsoncroft, the appellants sought to recover the cost of repairs, as well as damages for the loss of use and the diminution in market value of the damaged helicopter. The repairs took six months to complete and it was stipulated that their cost was $85,000.00. Trial was held before the court and a jury, which returned a verdict finding Hamilton negligent and awarding appellants damages in the amount of $12,076.00 for “down time,” i.e., loss of use. No damages were awarded for the cost of repairs or for the diminution in market value. Wilsoncroft was adjudged not to be negligent. Appellants’ subsequent motion for a new trial or judgment n.o.v. was denied. This appeal followed. We affirm.

On appeal, the issues, as stated by appellants, are:

1. Is the bailor entitled to a directed verdict or judgment n.o.v. where the evidence has established the existence of a bailment agreement, delivery of the bailed property in good condition, return of the bailed property in a damaged condition and the bailee offered no evidence to show exercise of reasonable care for the bailed property?
2. Are appellants entitled to a new trial because the trial court’s instructions to the jury were inadequate, incorrect and inconsistent with Pennsylvania law on bailment?
3. Are appellants entitled to a new trial because the trial court admitted evidence concerning insurance coverage and payment of the appellants’ damages by its insurer?
4. Are appellants entitled to a new trial because the trial court failed to instruct the jury as to the law of negligence as applied to one appellee and the imputation of negligence from one appellee to another?
5. Are appellants entitled to a new trial where the trial court failed to reinstruct the jury so that the jury might correct its unclear and improper verdict or to set aside the verdict?

We note initially that our scope of review on appeal is limited. A judgment n.o.v. is an extreme remedy and should be entered only in a clear case after the evidence has been evaluated in a light most favorable to the verdict winner. Ditz v. Marshall, 259 Pa.Super. 31, 393 A.2d 701 (1978). Likewise, the decision to grant or deny a motion for a new trial is within the discretion of the trial judge and should be reviewed on appeal only for an abuse of discretion. Myers v. Gold, 211 Pa.Super. 66, 419 A.2d 663 (1980), Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980). It is with these standards in mind, therefore, that appellants’ allegations of error are considered.

I

The principle allegation of error raised by appellants is that the trial court erred in allowing evidence concerning insurance coverage on the damaged helicopter to be introduced at trial, including the fact that the stipulated property damages of $85,000.00 had been paid to Beechwoods by its insurance carrier. The general rule in Pennsylvania is that reference to insurance coverage held by one of the parties to an action will be excluded where such reference would be irrelevant and prejudicial. Price v. Yellow Cab Company, 443 Pa. 56, 278 A.2d 161 (1971); Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 154 A.2d 399 (1959). However, where evidence of insurance coverage is relevant to the issues in the case, it will not be barred even though its introduction might be prejudicial. Moidel, supra; Copozi v. Hearst Publishing Company, Inc., 371 Pa. 503, 92 A.2d 177 (1952); Jury v. New York Central Railroad Company, 167 Pa.Super. 244, 74 A.2d 531 (1950). See also McGowan v. Devonshire Hall Apartments, 278 Pa.Super. 229, 420 A.2d 514 (1980). The question in the case at hand, therefore, is whether the evidence of appellants’ insurance coverage permitted by the trial court was relevant to the issues raised.

It is clear that the relationship between the appellants and Appellee Hamilton was that of bailor-bailee.

A “bailment” in its ordinary legal signification, imports the delivery of personal property by one person to another in trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully executed, and the property returned or duly accounted for when the special purpose is accomplished, or kept until the bailor reclaims it. 8 Am.Jur.2d § 2, Bailments.

Bailments can be structured for the sole benefit of either the bailor or bailee, or for the mutual benefit of both. A cause of action premised on a bailment relationship may be brought in trespass, assumpsit or replevin. In this case, the bailment was asserted to be mutual and the complaint by appellants was filed in both assumpsit and trespass. In the third edition of Brown on Personal Property, the following observations concerning mutual bailments are found:

Where the bailment transaction is mutually beneficial to both parties, it is well settled that the bailee is required to use ordinary diligence in protecting the subject matter of the bailment from damage or loss. Ordinary diligence in this type of bailment has been defined as that care which men of ordinary prudence customarily take of their own goods of a similar kind and under similar circumstances.
The bailee for hire is not, however, an insurer of the goods and will not be held liable for their loss or damage unless he is guilty of some negligent act or omission which is the proximate cause of their loss.
Although the law ordinarily fixes the particular standard of care which the bailee is required to exercise concerning the bailed goods, it is well settled that the parties may agree among themselves, by any contract which is not contrary to public policy, as to the extent of the bailee’s liability. Such contracts may impose either a lesser or a greater responsibility on the depositary than the law ordinarily implies. (Emphasis added.)
R. BROWN, THE LAW OF PERSONAL PROPERTY 258, 259, 270 (3d ed. 1975) (footnotes omitted).

It was Hamilton’s position throughout the proceedings in this case that, as part of the contractual arrangement between the parties, the risk of loss for the damaged helicopter lay with appellants. In its answer and new matter filed in response to appellants’ complaint, Hamilton contended that the helicopter which was damaged on September 28, 1977, was a “loaner” or substitute helicopter which Hamilton had obtained from Beechwoods to temporarily replace a helicopter which Hamilton leased on a monthly basis from Beechwoods pursuant to a written agreement. Hamilton averred that the damaged aircraft, as a “loaner” or substitute helicopter, was subject to the same insurance coverage and protection contained in the written agreement for the original aircraft. Thus, the terms of the written lease agreement for the original helicopter, as they related to insurance coverage on the original helicopter, were made relevant by virtue of the pleadings.

At trial, Hamilton argued that although the original written lease agreement between the parties did not specifically provide for a replacement helicopter, it did so impliedly. Consequently, Hamilton asserted, the damaged replacement helicopter was protected by the same insurance provisions found in the agreement between the parties concerning the original helicopter. The argument continued that, appellants, being in effect appellees’ insurers, were foreclosed from suing Hamilton for the loss. Hamilton also argued, in the alternative, that even if a separate lease agreement was entered into for the replacement helicopter, and even if it was not covered by the insurance coverage found in the written lease agreement on the original helicopter, Hamilton was justified in assuming, based on its past business dealings with appellants, that encompassed in the hourly rental rate for the damaged helicopter was a charge for insurance coverage on the replacement helicopter that would be provided by appellants for appellees, just as it was on the original helicopter. As a result, Hamilton asserted that appellants had assumed the risk of loss, not only on the original helicopter, but on the damaged helicopter as well. Therefore, Hamilton argued, it was not liable for the cost of repairs to the damaged helicopter.

Appellants, on the other hand, contended that the damaged helicopter was leased pursuant to an oral agreement which was separate and distinct from the written lease between the parties, and that Hamilton had no right to expect that appellants would provide insurance coverage for the damaged aircraft. They argued that the risk of loss was not shifted from Hamilton to them, and that Hamilton was, consequently, liable for the cost of repairs. Thus, a clear issue was raised by the parties as to whether or not the agreement of bailment between them for the damaged helicopter contained any provisions limiting or modifying the bailee’s (Hamilton’s) liability for damage to the same. It was within this context, therefore, that the trial court permitted evidence concerning insurance and insurance coverage to be elicited.

In this context such evidence was relevant to the issue raised and no error was occasioned by its admission. Unlike Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963), Lobalzo v. Varoli, 409 Pa. 15, 185 A.2d 557 (1962), and Moidel v. Peoples Natural Gas Company, 397 Pa. 212, 154 A.2d 399 (1959), the three cases cited by appellants in their brief to support their argument that evidence of insurance coverage is inadmissible, the cause of action between the parties did not arise out of a bailment or some other contractual relationship. While we agree that the fact that an injured party has received compensation from a source other than the alleged wrongdoer may very well have no relevancy in an action premised solely on negligence, see Moidel, supra, the same prohibition is not applicable where, as here, a contractual relationship is averred, and provisions modifying the normal bailor-bailee relationship with respect to insurance coverage are asserted to have been included therein.

For these reasons, we find appellants’ argument to be without merit.

II

Appellants also argue that they were entitled to a directed verdict or judgment n.o.v. in the amount of $97,076.00. Appellants make this argument on the ground that once they had established all the elements of a bailment, the court was “compelled” to award them the stipulated repair costs of $85,000.00, as well as the $12,076.00 designated by the jury for “down time.” We do not agree.

The existence of a bailment in this case only affected the burden of proof on the issue of liability. Because bailments are contractual relationships, the amount of damages owed, if any, depends,- as we have seen, upon the terms of the bailment. In this case, while it is true that appellees agreed that it cost $85,000.00 to repair the damaged helicopter, they never agreed that they were responsible for the payment of the repair bill. As noted above, appellees argued instead that, under the terms of the agreement struck between the parties, the risk of loss for physical damage to the helicopter had been assumed by appellants and, therefore, the cost of repair lay with them. The jury in returning its verdict obviously agreed with appellees and awarded appellants damages which encompassed only the loss of use of the helicopter. A directed verdict on the issue of liability would not have guaranteed a greater award. Likewise, the mere fact that the award given is lower than the successful party anticipated is not a ground on which to base a judgment n.o.v.

Appellants next claim of error is that the trial court failed “to instruct the jury on the basic legal principles involved in the case,” particularly with respect to the law of bailment.. Having made that assertion, however, appellants fail to indicate with any specificity in what manner .the trial court failed in its duty to advise the jury on the legal provisions applicable to the case, or in what fashion the trial court’s explanation of the law of bailment could have been clearer. Appellants even concede that all the points for charge on bailment submitted by their counsel were included in the court’s instructions. Consequently, lacking any specific allegations of error to explore, and after carefully reviewing the trial court’s charge, we find appellants’ second argument to be without merit.

Appellants further argue that the trial court failed to charge the jury on the law of imputed negligence. Specifically, appellants contend that the trial court did not instruct the jury as to the potential liability of Hamilton, as a principal, for any negligence attributed to Wilsoncroft, its employee. If the jury had found Wilsoncroft guilty of negligence, but not Hamilton, then an argument could be made that a failure to adequately charge on the law of imputed negligence was harmful. However, here, the jury determined that Hamilton was negligent. Consequently, even if appellant was correct that the trial court could have given a more in-depth instruction on the law of imputed negligence, the error would be harmless.

Appellants’ final argument is that the trial court failed to reinstruct the jury so that it might correct an allegedly unclear and improper verdict. In particular, appellants contend that the jury’s findings regarding the amount of damages and the existence of two contracts were logically inconsistent, and that, if the jury actually believed, the damaged helicopter to be subject to a separate contract, it could not have intended the $85,000.00 stipulated property damages to be excluded from the final award.

The precise verdict rendered by the jury was as follows: And now to wit: April 7, 1981, we, the Jurors empanelled in the above entitled case, find A Verdict in Favor Larry Wilsoncroft—not guilty of negligence
Al Hamilton Co.—is guilty of negligence
down time est. $12,076.00
2—contract (separate) on helicopters

During his charge, the trial judge instructed the jury that there were three possible verdicts they could return if they determined Hamilton was negligent. The first option given the jury was to find that the damaged replacement helicopter was covered by the insurance protection provided for the original helicopter under the contract between the parties. The second option given the jury was to find that, while the damaged helicopter was not covered by the original contract, it was covered by a separate oral contract which included insurance provisions that placed the risk of loss on appellants. The third option given the jury was to find that, while the damaged helicopter was subject to a separate oral contract, it was not one which included any insurance provisions and thus placed the risk of loss on Hamilton. It is obvious from the jury’s verdict that the jury followed the second option.

There is evidence in the record to support such a verdict. Appellants’ agent admitted at trial that a portion of the hourly rental charged for the damaged helicopter included a payment for insurance. Under these circumstances, there is nothing unclear or improper in the verdict thus reached. Appellants’ final issue is likewise without merit.

Judgment affirmed.

CAVANAUGH, J., concurs in the result.

      . It was conceded by all parties that, in reality, this was primarily a subrogation action by appellants’ insurance company. Under Pa.R. C.P. 2002(d), insurance companies can bring suit in the name of their insured where their interest is that of a subrogee. However, under Pa.R.C.P. 2003, any defense which could be raised against the subrogor can also be raised against subrogee.

      . Initially, Hamilton filed preliminary objections to appellants’ complaint alleging lack of capacity to sue and misjoinder of a party on the theory that Hamilton was appellants’ "insured," and, as such, could not be sued by them for subrogation. Hamilton’s preliminary objections were dismissed by the trial court based on the record as it then stood. Hamilton in turn filed an answer to appellants’ complaint denying its responsibility and raising as new matter the question of insurance coverage.

      . Hamilton had returned the original helicopter to Beechwoods for a routine service and maintenance check in compliance with the terms of the written contract between the parties. The rental fee on the damaged helicopter (the "loaner") was one hundred and sixty dollars ($160.00) per hour, fuel included. This rental fee was agreed to orally by authorized agents of the parties. The rental fee for the helicopter subject to the written agreement was three thousand five hundred fifty dollars ($3,550.00) per month, plus seventy dollars ($70.00) per hour of use, no fuel included.

      . In the original lease agreement, it was provided that the responsibility for insurance protection covering the original helicopter lay with Hamilton. However, the evidence disclosed that it was also agreed between the parties that Hamilton would “purchase” the required insurance protection for the original helicopter through Beechwoods; i.e., Beechwoods, for a premium paid to it by Hamilton, would cause Hamilton to be included as a named insured under Beechwood’s blanket insurance policy on its fleet of helicopters.

      . “[Iln the absence of an express provision to the contrary, every contract of hiring contains an implied covenant that the bailee will take reasonable care of the property hired, and, in. the event that the property is injured due to the bailee’s negligence, an action will lie for the breach of such implied covenant, and, regardless of whether such action is in assumpsit or trespass, it is still founded in contract.” 5 P.L.-E. § 28 Bailment.

      . The helicopter was being operated by an agent of Hamilton. The pilot landed it at a construction site where it was struck by the truck operated by Wilsoncroft. Included in appellants’ theory of the case, in addition to a claim of imputed negligence, was the allegation that Hamilton was solely liable either because its pilot landed the aircraft at an unsuitable location, or because Hamilton failed to post signs advising vehicular traffic that a helicopter was in the vicinity. The jury's determination that Hamilton alone was negligent could have been based on either one of these suppositions.

      . This fact is reaffirmed by the jurors’ responses to the question put to them by the trial judge after their verdict was read. That question was as follows:
      THE COURT: Members of the jury, and Mr. Foreman, am I correct in my statement that you are entering a Verdict in favor of the Plaintiffs, Beechwoods and Hepburnia, and against Al Hamilton Contracting Corporation for the sum of twelve thousand and seventy-six dollars, is that the intent of the jury?
      Ten of the twelve jurors so polled answered affirmatively.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    464 A.2d 446
    John FUDULA v. KEYSTONE WIRE & IRON WORKS, INC., and the First Pennsylvania Banking and Trust Company. Appeal of KEYSTONE WIRE AND IRON WORKS, INC.
    Superior Court of Pennsylvania.
    Argued March 17, 1983.
    Filed Aug. 5, 1983.
    See also 283 Pa.Super. 502, 424 A.2d 921.

      Paul Aloysius Logan, Norristown, for appellant.

      George B. Ditter, Ambler, for Fudula, appellee.
    George C. Corson, Jr., Norristown, for First Pa., appellee.
    Before CERCONE, President Judge, and CAVANAUGH and ROWLEY, JJ.
   ROWLEY, Judge:

This is an appeal from a final decree in equity finding in favor of appellee The First Pennsylvania Banking and Trust Company (Bank), and requiring the payment of $23,309.48 in damages to Appellee John Fudula (Fudula) by Appellant Keystone Wire & Iron Works, Inc. (Keystone).

This is the second time this case has been before our Court on appeal. See Fudula v. Keystone Wire & Iron Works, 283 Pa.Super. 502, 424 A.2d 921 (1981) (Fudula I). In Fudula I the question of the Bank’s and Keystone’s liability to account to Fudula was at issue. Keystone contended that the trial court had erred in directing the reinstatement of Fudula as a member of the Keystone Pension and Retirement Plan (Plan) retroactive to 1962, and requiring a recalculation of his vested interest in the Plan together with an accounting of the sums due him. This Court, in Fudula I, affirmed the trial court and the case was returned to the Chancellor for an accounting and further proceedings. After proceeding as directed, the trial court entered a final decree as outlined above. This second appeal by Keystone followed.

The scope of review of an appellate court in the consideration of an appeal from a final decree in an equity action is well established. A Chancellor’s findings of fact, approved by the court en banc, are entitled to the weight of a jury’s verdict and will not be reversed on appeal if supported by adequate evidence. See McDole v. Duquesne Brewing Co. of Pittsburgh, 281 Pa.Super. 78, 83, 421 A.2d 1155, 1158 (1980), and cases cited therein. The Chancellor’s findings are afforded particular weight in cases in which the credibility of witnesses must be evaluated, as the Chancellor has had the opportunity to hear their actual testimony and to observe their demeanor on the witness stand. See Fascione v. Fascione, 272 Pa.Super. 530, 416 A.2d 1023 (1979). We should not reverse on appeal unless it is evident that the lower court abused its discretion, lacked evidentiary support for its findings, or was capricious in its disbelief of evidence submitted. See Davis v. Buckham, 280 Pa.Super. 106, 421 A.2d 427 (1980); Commonwealth ex rel. Powelson v. Powelson, 277 Pa.Super. 220, 222, 419 A.2d 741, 742 (1980). The same principles apply when a single judge, rather than a court en banc, reviews the case. Gilmore v. Northeast Dodge Co., Inc., 278 Pa.Super. 209, 420 A.2d 504 (1980). Therefore, we must examine the evidence of record in the instant case to determine whether any basis exists for a reversal of the lower court’s findings and conclusions. Sorokin v. Krasner, 289 Pa.Super. 324, 327, 433 A.2d 88, 89-90 (1981).

On appeal Keystone raises three (3) issues. It avers that the trial court erred: (I) in finding that Fudula’s interest in the Plan was 100% vested, (II) in awarding pre-judgment interest to Fudula, and (III) in “directing a verdict” in favor of the Bank. Upon review of the record, we have concluded that all three issues have been correctly decided by the trial court and need only be discussed here briefly.

I

With respect to the first issue, Keystone argues that, under the terms of the Plan, Fudula’s interest was not 100% vested because he voluntarily severed his employment with the company for a five-week period during 1965. Both the Chancellor and the court en banc addressed this issue and found that, while Fudula had briefly severed his employment with Keystone during 1965, he returned to his job at the iron works as a result of a conversation with the. president of the corporation, Robert C. Robinson, who told him that, if he came back to Keystone, his five-week absence would be treated as vacation time and that none of his benefits would be affected. The Chancellor and the court en banc concluded that, based on these circumstances, Keystone was “estopped” from claiming that Fudula’s five-week absence in 1965 constituted a break in Fudula’s continuous service under Article III E. and Article VIII D. of the Plan. As a consequence, the Chancellor and the court en banc found that Fudula, as an employee with ten years or more of continuous participation in the Plan, had a 100% vested interest therein. Keystone contends on appeal that the court below erred in holding that Fudula’s interest was 100% vested based on a theory of estoppel which, appellant alleges, was never pleaded or proved by Fudula, but rather, was raised “sua sponte ” by the court after trial. Keystone claims surprise and maintains that it was unaware that estoppel would be an issue, and that, as a consequence, it never had the opportunity to cross-examine the witnesses or present evidence respecting the 1965 conversation between Fudula and Robinson.

Initially, we note that in Pennsylvania we require facts to be pleaded and not theories. Therefore, the issue here is not whether the theory of promissory estoppel was pleaded, but rather, whether sufficient facts were pleaded and proved to permit the trial court to apply the theory of promissory estoppel as a basis for its decision. Our reading of the reproduced record supports the conclusion that sufficient facts were pleaded and proved to give notice to appellant that promissory estoppel was an issue. It was clear at the outset of this litigation, from the facts pleaded in Fudula’s complaint, that he was averring his continuous participation in the Plan from 1959 to 1972, and that he believed his interest in the Plan to be 100% vested. At the hearing on the issue of Keystone’s liability to account, Fudula testified about his 1965 break in employment, as well as his conversation with Robert C. Robinson, claiming that the agreement struck between him and Keystone’s president, particularly with respect to benefits, supported his contention that he had never left the Plan and that he was a continuous participant from 1959 onward. Indeed, prior to eliciting testimony from Fudula about this conversation, Fudula’s counsel indicated to the court, in response' to Keystone’s demand for an offer of proof, that testimony on the subject was being introduced because Fudula believed the events surrounding his leaving and returning in 1965 directly affected his status under the Plan. Keystone’s counsel at the hearing conducted a detailed cross-examination of Fudula, and it is obvious from the exchange which occurred between Fudula and Keystone’s counsel that appellant understood the significance that was attributed to the 1965 conversation. In light of that cross-examination and all the attending circumstances, appellant cannot now claim to have been unaware that estoppel was at issue or to be unaware of the implications the court could place on Fudula’s conversation with Robinson. The trial court did not raise the theory of promissory estoppel “sua sponte ” but rather applied that theory as a basis for relief on the facts pleaded and proved before it.

II

Appellant next contends that the trial court abused its discretion by permitting Fudula to amend his complaint to add a provision for general relief, including thereunder a request for pre-judgment interest. Specifically, Keystone argues (1) that the award of pre-judgment interest given Fudula violated the “rule” of Christian v. Johnstown Police Pension Fund Association, 421 Pa. 240, 218 A.2d 746 (1966), and (2) that, given the equities of the case, Fudula was not entitled to an award for pre-judgment interest. We find neither argument to be persuasive.

Pa.R.C.P. 1528 provides that, in an action for equity, a prayer for relief may be amended as of course at any time. Discretion to award pre-judgment interest in an action for equity rests with the Chancellor, and his final determination will not be disturbed on appeal unless there has been an abuse of discretion. Sack v. Feinman, 495 Pa. 100, 432 A.2d 971 (1981). Our review being thus limited, we cannot say that the Chancellor, as affirmed by the court en banc, abused his discretion either in permitting the prayer for relief to be amended, or in allowing an award for pre-judgment interest.

Ill

Keystone’s third and final contention is that the trial court erred in granting a "directed verdict” on behalf of the Bank since the Bank’s liability had previously been determined by the trial court and that finding was affirmed on appeal by this Court in Fudula 7. We would agree that a trial court lacks the power to direct a verdict once the finder of fact has rendered its determination. Smith v. Ehler, 366 Pa. 111, 76 A.2d 865 (1950); Bethay v. Philadel phia Housing Authority, 271 Pa.Super. 366, 413 A.2d 710 (1979). Where, as in this case, the issue of liability was litigated first, and the judgment entered against both Keystone and the Bank was affirmed on appeal, any attempt to direct a verdict on the issue of liability would be particularly in error. Therefore, to the extent that the court below determined that no liability could be assigned to the Bank it erred. To the extent, however, that the court below determined that the Bank owed nothing further in the way of damages to Fudula, it did not err. Fudula I required that an accounting between the parties be submitted. The parties agree that the accounting, as submitted by the Bank, is accurate. The accounting shows that the Bank has paid Fudula everything it received on his behalf under the Plan from Keystone, plus interest, i.e. $2,733.95. Consequently, having received nothing further from Keystone, it owes nothing further to Fudula under the terms of the Plan. Fudula conceded as much in open court at the hearing on the issue of damages. Since the Bank’s obligation has been satisfied, the court below did not err in assigning to Keystone sole responsibility for the remainder of the damages owed.

Decree affirmed.

      . In its brief, Keystone states that Fudula did not actually request “pre-judgment interest,’.’ but rather, requested instead that he be awarded "delayed compensation for payment of the amount due [him] under the retirement plan.” Keystone implies that by permitting the award of damages to include "pre-judgment interest," rather than "delayed compensation," the trial court has granted Fudula relief which he never specifically requested. We do not agree. Whatever the terminology, i.e. "pre-judgment interest” or "delayed compensation,” the concept is the same, and we find no error on the trial court's part in interchanging the terms. There is also a statement found in Keystone's brief that, while the trial court allowed Fudula leave to amend his complaint, it denied a similar right to both Keystone and the Bank to amend their answers to include cross-claims against each other. While Keystone did raise the trial court’s denial of its motion to amend as error in its written exceptions to the decree nisi, it has not- pursued this particular allegation of error on appeal. Therefore, it has been waived.

      . In Christian, supra, retired city police officers brought an action in equity seeking, as relief, certain service increments in accordance with the Third Class City Police Pension Fund Law, Act of June 23, 1931, P.L. 932, art XLIII, § 4303, as amended January 18, 1952, P.L. 2105, § 1, 53 P.S. § 39303. The Chancellor, as affirmed by the court en banc, granted the requested service increments, adding thereto an additional sum of money representing back pension pay. The Supreme Court held that in equity actions the relief ordered must conform to the relief prayed for, and that, consequently, even though the officers were entitled to the additional pension payments, it was error to award the same where the complaint sought relief solely for increment benefits and contained no prayer for any further relief. In the case at hand, if Fudula had not requested leave to amend his complaint to include a general prayer for relief, and pre-judgment interest had been awarded gratuitously by the Chancellor, we might concede the applicability of Christian, supra. However, here Fudula did request an amendment, and pre-judgment interest was awarded by the Chancellor on the basis of that amendment.

      . Keystone and the Bank were represented by the same legal counsel until two months before the hearing on exceptions to the account.

      . We note that Fudula did not address the issue of the Bank's directed verdict in its brief filed on appeal.


author: McEWEN, Judge:

text:
    464 A.2d 450
    COMMONWEALTH of Pennsylvania v. Raymond SELIG, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1982.
    Filed Aug. 5, 1983.

      William R. Bernhart, Reading, for appellant.
    Charles M. Guthrie, Jr., First Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   McEWEN, Judge:

This appeal is taken from the judgment of sentence imposed after appellant was found guilty by a jury of burglary and theft and sentenced to a term of imprisonment of from one and one-half years to four years. Appellant argues that “the lower court erred in granting the Commonwealth’s petition to extend the time for trial ... under Rule 1100.” We affirm.

The record reflects the following chronology:

January 9, 1979—The complaint is filed against the defendant. Therefore, the 180 day period expires Sunday, July 8, so that the rúndate is Monday, July 9, 1979.
April—May, 1979—The Commonwealth alleges the case' was scheduled for trial during the criminal jury trial weeks of these months and further alleges the case was not reached by reason of judicial delay.
June 4, 1979—The three week June criminal term commences and the trial of appellant is scheduled during the first week but is delayed until the second week, namely, June 11, since appellant was injured in a motorcycle accident.
June 11, 1979 through June 20, 1979—Counsel for appellant is engaged in the trial of other criminal cases so that his availability for trial of this case is restricted to the final two days of the June criminal term, namely, Thursday and Friday, June 21 and 22.
June 21, 1979 and June 22, 1969—The assistant administrator for the Berks County Court testified at the August 16, 1979, extension hearing that the trial could not have commenced on these dates since all of the judges were otherwise engaged in court business. As a result, the case was scheduled for the first day of the July term, namely, July 9, 1979, the actual rúndate itself.
July 9, 1979—Counsel for appellant is on vacation and thereby unavailable until July 13, 1979. The Commonwealth files a petition for extension under Rule 1100 upon which the court enters a Rule returnable on July 16, 1979, and schedules a hearing for August 16, 1979.
July 16, 1979—The second week of the July criminal term commences but appellant himself is unavailable by reason of certain injuries, the treatment of which may require his admission to the hospital.
August 16, 1979—The court, after hearing, grants the petition of the Commonwealth for an extension under Rule 1100 and denies the motion of appellant for discharge pursuant to Rule 1100. The court directs that the case be tried during the two week September . criminal term which expires on September 21, 1979.
September 10, 1979—The trial of appellant commences on the first day of September criminal term and is concluded by a jury verdict of guilty on September 11.

Appellant contends that the hearing judge erred by granting an extension of time for the commencement of trial for the reason that the extension hearing record not only fails to demonstrate due diligence by the Commonwealth, but also fails to reflect that either judicial delay or unavailability was the cause of the delay in bringing the case to trial. It is well settled that before a court may grant the Commonwealth an extension of time for the commencement of trial, it must find that the trial cannot be commenced within the prescribed time despite due diligence by the Commonwealth. Commonwealth v. Bright, 303 Pa.Super. 98, 449 A.2d 596 (1982); Commonwealth v. Sharp, 287 Pa.Super. 314, 430 A.2d 302 (1981). Our eminent Pennsylvania Supreme Court Chief Justice Samuel J. Roberts, made clear in Commonwealth v. Mayfield, supra, that judicial delay can serve as a basis for an extension of time within which to commence trial provided that the record shows:

(1) the ‘due diligence’ of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court’s business; provided that if the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

Id., 469 Pa. at 222, 364 A.2d at 1349-50.

The opinion of the learned President Judge W. Richard Eshelman reflects a thorough scrutiny of the petition by the Commonwealth for an extension and the answer of appellant as well as a careful study of the transcript of the extension hearing and the records of the office of the court administrator concerning the criminal trial schedule for April and May. .While it is true that no evidence was presented concerning the criminal trial schedule for April and May, the court specifically mentioned that it took “judicial notice of the fact that the instant action was listed for trial for the week of April 16 and for both the trial weeks of May.” The technique of judicial notice is a permissible method of reaching a conclusion and the use of that method in Rule 1100 hearings has received the clear approval of this court. Commonwealth v. Harris, 315 Pa.Super. 544, 462 A.2d 725 (1983); Commonwealth v. Bright, supra; Commonwealth v. Postell, 280 Pa.Super. 550, 421 A.2d 1069 (1980); Commonwealth v. Jackson, 269 Pa.Super. 249, 409 A.2d 873 (1979); Commonwealth v. Gibson, 248 Pa.Super. 348, 375 A.2d 132 (1977); Commonwealth v. Kollock, 246 Pa.Super. 16, 369 A.2d 787 (1977). Our examination of the record reveals a more than sufficient basis for the conclusions of the court (1) that the Commonwealth had exercised due diligence throughout the entire 180 day period, including the period during April and May, (2) that it was the unavailability of appellant and his counsel that caused the delays in June through June 20, inclusive, (3) that unavoidable judicial delay prevented a trial on June 21 and 22, (4) that the matter was not tried in July due to the unavailability of appellant and his counsel, and (5) the matter could not be tried in August for the reason that there was only one day remaining in the criminal term subsequent to August 16, the date upon which the court conducted the extension hearing. ■

The appellant asserts that the case must, nonetheless, be dismissed for the reason that the record fails to disclose a finding by the court that the trial did not commence in April or May due to unavoidable court delay and that, in fact, the record fails to disclose the presentation by the Commonwealth of any such evidence of that fact. The basis of the assertion of appellant must, however, be examined in light of the pronouncement of the Pennsylvania Supreme Court that Rule 1100 is designed to serve the protection of society every bit as much as it is to serve the right of an accused to a speedy trial. The Supreme Court declared in Commonwealth v. Genovese, 493 Pa. 65, 69-72, 425 A.2d 367, 369-71 (1981):

Rule 1100 ‘serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society,’ Commonwealth v. Brocklehurst, 491 Pa. 151, 153-54, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (1972). In determining whether an accused’s right to a speedy trial has been violated, consideration must be given to society’s right to effective prosecution -of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Commonwealth v. Johnson, 487 Pa. 197 n. 4, 409 A.2d 308 n. 4 (1980).
So long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 must be construed in a manner consistent with society’s right to punish and deter crime. In considering matters such as that now before us, courts must carefully factor into the ultimate equation not only the prerogatives of the individual accused, but the collective right of the community to vigorous law enforcement as well. Strained and illogical judicial construction adds nothing to our search for justice, but only serves to expand the already bloated arsenal of the unscrupulous criminal determined to manipulate the systém.

The Court further stated in Commonwealth v. Polsky, 493 Pa. 402, 407-08, 426 A.2d 610, 613 (1981), that when the accused himself is responsible for the delay in the commencement of the trial, common sense, the public interest, and justice demand that he not be permitted the windfall of an absolute dismissal under Rule 1100.

It is true that the record here fails to disclose that the trial did not commence in April or May due to unavoidable court delay. While the court took judicial notice of the fact that the case had been listed for trial in April and May and thereby concluded the Commonwealth had been duly diligent during that period, the court failed to express the conclusion that the case could not be tried during those weeks by reason of unavoidable court delay. Appellant argues the case must, therefore, be dismissed. We are unwilling, under the facts of this case, to award appellant the windfall of an absolute dismissal under Rule 1100 and see the ends of justice—or for that matter, the purposes of Rule 1100—so facilely thwarted when it was appellant and his counsel who were chiefly responsible for the failure of the trial to commence during the final two terms of the criminal calendar preceding the rúndate.

Appellant relies, of course, upon the Mayfield mandate that provides:

[I]f the delay is due to the court’s inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided.

The requirement that the record reflect the “causes of the court delay and the reasons why the delay cannot be avoided” appears to become applicable only “if the delay is due to the court’s inability to try the defendant within the prescribed period.” We note that the Mayfield mandate does not impose the requirement that the record reflect that each postponement must be demonstrated to have been unavoidable; nor is it reasonable to define the term the delay as the final or the specific postponement that caused the case to have finally become delayed. Rather, the term the delay refers to a state of events or a condition, namely, a case that is (1) untried (2) within the prescribed period. It seems to follow, therefore, that the delay means the 180 day delay. It might be argued that the Mayfield mandate should, therefore, be interpreted to require that the record show that the court delay was unavoidable only in those cases where the entire 180 day delay is due solely to “the court’s inability to try the defendant”. The factual situation of Mayfield was just such a situation. The prosecutor in Mayfield had certified the case was ready for trial 83 days after the complaint was filed, but the court administrator was unable, by reason of the backlog of cases, to schedule the trial until 190 days after the complaint was filed. Thus, the delay of the Mayfield holding referred not to postponements but to a condition that resulted solely from a court backlog.

An interpretation that the Commonwealth need prove that-the court delay was unavoidable only when “the court unavailability” was the sole reason for the fact that the case is untried at the expiration of the prescribed period, is troublesome. Would it then be possible for the Commonwealth to subvert the Rule by securing an extension whenever even a single, brief postponement were secured during the prescribed period by the accused? Or by the Commonwealth? It seems wiser to refrain from an interpretation that would limit application of this requirement to a case where court delay has been the sole reason that the case is untried; and, it would seem considerably more prudent to interpret the-requirement as calling for the record to reflect the unavoidability of any part of the delay for which the court is responsible, whenever such postponements were the principal reason for the fact that the case is untried within the prescribed time. Such an interpretation would: (1) maintain the present need for the district attorney to assemble and present such evidence as is available to support the allegation that such court postponements as have occurred were unavoidable; (2) prevent a single defense postponement from serving to totally relieve the prosecution of the present need to prove the unavoidability of court postponements; (3) preclude a claim by an accused that the prosecution had contrived to secure a single, brief postponement so that court delay would not be the sole reason for the fact that the case was untried within the prescribed time; and (4) enable the hearing judge to determine whether any postponement was actually due to factors other than court delays and, if so, to evaluate such situations as here confront us so as to determine whether unavoidable court delay was the principal factor in the delay. For example, the facts of this case make clear that the court backlog was not the principal factor for the fact that this case was untried within the prescribed time; however, if the postponements through April and May had occurred at the behest of the accused, while the postponements during the final two terms had been due to court backlog, there is a real question as to whether court delay was the principal reason for the delay.

This court has already held that defense requested continuances may justify an extension under Rule 1100(c). See Commonwealth v. Brant, 272 Pa.Super. 135, 414 A.2d 707 (1979); Commonwealth v. Garnett, 258 Pa.Super. 115, 392 A.2d 711 (1978); Commonwealth v. Mancuso, 247 Pa.Super. 245, 372 A.2d 444 (1977). While that principle was established when this court had under scrutiny the issue of whether the Commonwealth had displayed due diligence, there is no reason why defense requested continuances should effect a different result in situations where judicial delay has been but one factor in the delay.

We have seen the Pennsylvania Supreme Court review the term “due diligence” as it appears in paragraph (d)(1) of Rule 1100 and suggest that the requirement of “due diligence” be interpreted as calling for a reasonable effort by the police to locate an accused. See Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). This court has reviewed that same section and declared:

[W]hen reasonable steps are taken, the requirement of due diligence is met____ The standard of due diligence demands only reasonable efforts. Commonwealth v. Hinton, 269 Pa.Super. 43, 50, 409 A.2d 54, 57 (1977). Thus, when asked to decide whether the police had acted with due diligence, a court must engage in a balancing process, which may become quite awkward. On the one hand the court should approach its decision with sympathy for the police. For as the Supreme Court has said in Commonwealth v. Mitchell, supra, 472 Pa. at 561, 372 A.2d at 830: “The police can be expected to act with due diligence in locating and apprehending an accused in all situations because it is their duty to do so as public officials.” The court should therefore take into account the limited resources available to the police, and should be wary of saying that the police should have done something that they did not do. On the other hand, the police, like other public officials, do not always do their duty. Furthermore, the interest of an accused in receiving a prompt trial is a precious interest, which it is the court’s responsibility to protect. Commonwealth v. Dorsey, 294 Pa.Super. 584, 589-90, 440 A.2d 619, 622 (1982).

A determination of whether court postponements were the principal reason for the delay would likewise enable a hearing judge to use common sense and apply a blend of fairness and reason whenever (1) a case is untried within the prescribed period, (2) the delay results not only from court postponements but also from other causes and (3) the record does not reflect that each of the court postponements was due to unavoidable judicial delay. It is, of course, obvious that if the record shows that each court postponement was unavoidable, there is no need for the hearing judge to determine if the court postponements were the principal cause of the delay; and, it is just as apparent that whenever the delay is composed solely of court postponements, the record must show “the causes of the delay and the reasons why the delay cannot be avoided.”

We hold, therefore, that Rule 1100(c)(3) provides: That whenever postponements by reason of judicial delay have been the sole cause of the delay, the record must show the reasons why such postponements could not be avoided.
That whenever the delay has been caused not only by court postponements but also by other factors, and the hearing judge determines that the court postponements were not the principal cause of the delay, the record need not reflect that such court postponements were unavoidable.

The record here fails to demonstrate that the postponements during April and May were due to unavoidable court delay. However, it does reflect that unavoidable court delay prevented the trial of this case on but two days of the fifteen day June criminal calendar, while the unavailability of appellant or his counsel precluded the commencement of the trial on the other thirteen days. And then, when the trial was scheduled for July 9, the actual rúndate, the trial could not commence by reason of the fact that counsel for appellant was on vacation. As a result the Commonwealth was forced, under pain of ultimate sanction, namely, the discharge of the accused without trial, to proceed that same day to prepare and file a petition for extension, a task the Commonwealth was, assuredly only with considerable diligence, able to accomplish. Appellant would, nonetheless, have us dismiss all of the charges by reason of the failure of the record to formally express that the case was not tried as scheduled in April or May due to unavoidable court delay. Since, however, court postponements were not the principal cause of the delay, we reject the argument of appellant. Accordingly, we conclude the Common Pleas Court did not err when it, under these circumstances, granted the petition of the Commonwealth and extended the time within which the trial could commence.

Judgment of sentence affirmed.

HOFFMAN, J., concurs in the result.

      . Rule 1100(c), then in effect, provided:
      (c) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the date for commencement of trial ____ Such application shall be granted only if the trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth. Any order granting such application shall specify the date or period within which trial shall be commenced.

        This provision had been, of course, the subject of scrutiny and interpretation by the Pennsylvania Supreme Court in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), as we shall hereinafter discuss. The interpretation provided by the Supreme Court in May-field was eventually enacted into a formal provision of the Rule by the amendment of October 22, 1981, effective January 1, 1982.

      . Rule 1100. Prompt Trial
      (d) In determining the period for commencement of trial, there shall be excluded therefrom:

        (1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.


author: CIRILLO, Judge:

text:
    464 A.2d 456
    COMMONWEALTH of Pennsylvania v. Linda Jo EDRINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 22, 1983.
    Filed Aug. 5, 1983.

      James Lee Goldsmith, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CERCONE, President Judge,- and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Linda Jo Edrington, a/k/a Lennie Joe Edrington, appeals from an order of the Court of Common Pleas oftDauphin County dismissing without a hearing his petition under the Post Conviction Hearing Act (PCHA). Edrington had pled guilty to murder in connection with the July 1978 shooting death of Anthony Rankin. The plea was made with the understanding that, should the court determine that the degree of guilt rose above third degree murder, Edrington would be permitted to withdraw his plea. The Honorable John C. Dowling accepted the plea , and found Edrington guilty of third degree murder. Judge Dowling then imposed a sentence of six to fifteen years’ imprisonment. Edrington filed a motion to withdraw his plea on the ground of involuntariness and a motion for reconsideration of sentence on the ground of excessiveness. These motions were denied and Edrington appealed to the Supreme Court of Pennsylvania.

Before the high court Edrington argued only that his sentence was excessive. The Court disagreed and affirmed the judgment of sentence. Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980).

Edrington filed his PCHA petition on April 6, 1981. The court appointed counsel, who filed an amended petition. The Commonwealth filed an answer, and the court denied the petition on the basis of the answer.

Edrington’s claims are that his guilty plea was involuntary because it was induced by promises of counsel amounting to ineffectiveness, and that the PCHA court erred in refusing to afford him a hearing. These claims are utterly meritless.

A challenge to the voluntariness of Edrington’s plea is no longer open to him.

It is well settled that a criminal defendant who deliberately and knowingly chooses to bypass orderly state procedures afforded for challenging his conviction is bound by the consequences of that decision. Commonwealth v. Myers, 427 Pa. 104, 233 A.2d 220 (1967); Commonwealth v. Mika, 277 Pa.Super. 339, 419 A.2d 1172 (1980). In Pennsylvania, our Post Conviction Hearing Act precludes one from obtaining collateral relief where the issues raised either have been waived or finally litigated. Commonwealth v. Jumper, 494 Pa. 451, 431 A.2d 941 (1981).

Commonwealth v. Harper, 292 Pa.Super. 192, 196-97, 436 A.2d 1217, 1219 (1981); 19 P.S. § 1180-3(d). The act provides that an issue is finally litigated if “[i]t has been raised in the trial court, the trial court has ruled on the merits of the issue, and the petitioner has knowingly and understandingly failed to appeal the trial court’s ruling...” 19 P.S. § 1180-4(a)(l). There is a rebuttable presumption that a failure to appeal a ruling is a knowing and understanding failure. Id. § 1180-4(c). In this case the voluntariness of Edrington’s plea was finally litigated when the trial court denied his motion to withdraw the plea and he failed to appeal. Edrington nowhere alleges that his failure to appeal the ruling was without knowledge or understanding of the consequences.

Edrington’s claim that guilty plea counsel was ineffective does not resurrect his allegation that the plea was involuntary. A petitioner is not allowed to relitigate a finally litigated ground for relief every time he advances a new legal theory. As the Supreme Court said in Commonwealth v. Slavik, 449 Pa. 424, 431-32, 297 A.2d 920, 924 (1972),

Here appellee in the collateral proceeding raises the same “ground” for relief he raised in his direct appeal— the constitutional infirmity of his guilty plea. The only difference is that now he advances a “different legal argument” in support of that “ground.” On direct appeal he contended his plea was infirm because coerced by the existence of an illegally obtained confession. Now he challenges the validity of his plea based on the holding of [Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970)]. A defendant is not entitled to relitigate the validity of his plea every time he offers a new theory or argument which he had not previously advanced. To hold otherwise would virtually emasculate Section 4(a) of the PCHA, defeat its very objective, and permit constant and repetitive relitigation of issues already finally decided on their merits. “In the main, post-conviction remedies exist to try fundamental issues that have not been, tried before.” American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Post Conviction Remedies, § 6.1 (Approved Draft, 1968); cf. Commonwealth v. Black, 433 Pa. 150, 249 A.2d 561 (1969).
Appellee’s attack on the validity of the guilty plea was conclusively decided by this Court in 1970. That issue, so determined, reached the procedural and substantive end-of-the-line of the state’s judicial process. Thereafter that same issue could not be subsequently reintroduced for judicial decision and again begin a tour of the state’s judicial system. Indeed, Pennsylvania has a significant and compelling jurisprudential interest in preventing the useless burdening of its judicial machinery with repetitive consideration of issues previously decided. It is evident that the orderly administration of justice requires that a criminal controversy, like any other litigation, some day come to an end. Therefore, since the determination of the guilty plea’s validity was a final decision on the merits of that issue within Section 4 of the PCHA, that issue may not be relitigated in a PCHA proceeding simply because another theory or argument is advanced.

(Footnote omitted). Ineffectiveness of counsel is in this case nothing more than a new guise for relitigating the voluntariness of Edrington’s plea. See Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981); see also Commonwealth v. Jones, 488 Pa. 270, 412 A.2d 503 (1980). Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388 (1979), is not to the contrary. There the appellant had argued on direct appeal that his guilty plea counsel rendered incompetent and misleading advice inducing an involuntary plea. On collateral appeal, the Supreme Court permitted the appellant to argue that counsel on direct appeal was ineffective for not asserting that the trial court had conducted an invalid guilty plea colloquy. The Court said that the two appeals raised two separate grounds for relief, ineffectiveness of trial counsel and ineffectiveness of appellate counsel, even though the second ineffectiveness claim triggered review of facts examined earlier for entirely different reasons. Cf. Commonwealth v. Alvarado, 488 Pa. 250, 412 A.2d 492 (1980) (appellant previously had litigated ineffectiveness of counsel as basis for withdrawal of guilty plea; on PCHA appeal the Court remanded for determination whether plea had been unlawfully coerced); but cf. Commonwealth v. Hobson, 286 Pa.Super. 271, 428 A.2d 987 (1981) (followed Alvarado in remanding for appointment of counsel to litigate issues concerning ineffectiveness of prior counsel, but Rule 1100 claim could not be relitigated under ineffectiveness theory because it had been finally litigated on prior appeal). In the appeal at bar appellant has not raised a separate ground for relief. The question originally litigated was the voluntariness of his plea, a ground for relief he cannot now relitigate under the theory of ineffectiveness of counsel. Commonwealth v. Orr, 450 Pa. 632, 301 A.2d 608 (1973).

Moreover, appellant’s factual claim—that he pled guilty because his counsel promised him that he would receive a four to twelve year sentence—is completely unsupported in the record. It is elementary that ineffectiveness of counsel will serve as a basis for relief only where the ineffectiveness caused the defendant to enter an involuntary or unknowing plea. Commonwealth v. Whittaker, 292 Pa.Super. 172, 436 A.2d 1207 (1981). In this case Edrington’s allegation that counsel’s promise induced his plea is belied by the record of the guilty plea proceedings. The district attorney asked him whether any promises of counsel had induced his plea, and he answered in the negative. Appellant was also asked whether he understood that the judge was not bound by any plea agreements unless the judge accepted them, and that the judge could sentence him to the maximum sentence allowable for the crime of which appellant was found guilty; appellant answered that he did understand these things. As we said, with good reason, in Commonwealth v. Brown, 242 Pa.Super. 240, 247, 363 A.2d 1249, 1253 (1976), “A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We can not permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel.” Accord, Commonwealth v. Young, 245 Pa.Super. 298, 369 A.2d 412 (1976).

Where a petitioner seeks to relitigate, under a new legal theory or factual allegation, an issue already decided against him, the PCHA court acts properly in dismissing his petition without a hearing. Commonwealth v. Orr, supra. This is particularly so where the new allegation is patently frivolous and without a trace of support either in the record or from other evidence. See 19 P.S. § 1180-9.

Order affirmed.

      . Act of January 25, 1966, P.L. 1580, §§ 1-14, 19 P.S. §§ 1180-1 to 1180-14 (Supp. 1965-1981), repealed by Act of April 28, 1978, P.L. 202, No. 53, § 2(2)[1397], effective June 27, 1980, as amended by Act of June 26, 1980, P.L. 265, No. 77, § 2, which delayed repeal until June 27, 1981, as further amended by Act of June 26, 1981, P.L. 123, No. 41, § 1, which delayed repeal until June 26, 1982. The current version of the PCHA appears at 42 Pa.C.S. §§ 9541-9551. All subsequent citations to-ithe PCHA will be to the version at Title 19 of Purdon’s Statutes, in force during the prior proceedings in this case.

      . Third degree murder carries a maximum penalty of a $25,000 fine and twenty years in prison, a fact of which appellant was made aware. See 18 Pa.C.S. §§ 2502(c), 1101(1), 1103(1).

      . We are cognizant of the suggestion in a footnote in Commonwealth v. Henderson, 298 Pa.Super. 180, 444 A.2d 720 (1982) (2-1 panel decision with Wieand, J., dissenting), that Brown is no longer persuasive after Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978). Cf. Commonwealth v. McCall, 267 Pa.Super. 351, 406 A.2d 1077 (1979). I strongly disagree. If, as the Henderson majority seems to intimate, Strader holds that a defendant who pleads guilty may not be held to the truthfulness of his answers to the guilty plea judge, the entire purpose of the elaborate guilty plea colloquy required in this state is stultified. See Comment to Pa.R.Crim.P. 319, 42 Pa.C.S.A.; Commonwealth v. Chumley, 482 Pa. 626, 394 A.2d 497 (1978), cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979). Moreover, if the Henderson majority’s analysis is correct, Strader overrules not only Brown, but also well-reasoned unanimous decisions of our Supreme Court, such as Commonwealth v. Orr, supra, and Commonwealth v. Welch, 425 Pa. 591, 229 A.2d 737 (1967); needless to say, the Superior Court cannot overrule Supreme Court decisions. Orr and Welch' hold that where a defendant’s answers at the guilty plea colloquy unequivocally refute his claim that he did not understand what he was doing, he will not be entitled to a hearing on his claim. In each case, the appellant’s claim was that guilty plea counsel had rendered inadequate or misleading advice. However, we need not address this apparent conflict any further. In Henderson, Strader, and McCall, guilty plea counsel had failed to file a motion to withdraw the plea; this Court in each case held that the appellant’s assertions of ineffectiveness of counsel overcame the presumption that the appellant had waived the right to challenge the plea. Appellant Edrington’s motion to withdraw his plea was finally litigated in the trial court, and our ruling is simply that he will not be permitted to relitigate the voluntariness of his plea.


author: SPAETH, Judge: WIEAND, Judge,

text:
    464 A.2d 460
    John FINKLEA, Appellant, v. Habib TONSEY, the Budd Company.
    Superior Court of Pennsylvania.
    Argued April 7, 1983.
    Filed Aug. 12, 1983.

      Richard A. Ash, Philadelphia, for appellant.
    Charles W. Craven, Philadelphia, for appellees.
    Before SPAETH, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is an appeal from a judgment entered in a trespass action. The parties to the action are John Finklea, plaintiff below and appellant here, and The Budd Company and Dr. Habib Tonsey, defendants below and appellees here. Mr. Finklea was an employee of Budd, and Dr. Tonsey was Budd’s medical director. On Dr. Tonsey’s recommendation, Mr. Finklea was discharged from his employment on the ground that his use of drugs impaired his ability to perform his job on the assembly line in a safe manner. Mr. Fink-lea’s claim is that in making this recommendation, Dr. Tonsey acted negligently and in the course of his employment as Budd’s medical director. The trial judge granted Dr. Tonsey’s and Budd’s action for a compulsory nonsuit, and a court en banc denied Mr. Finklea’s motion to remove the nonsuit, and entered judgment in favor of Dr. Tonsey, and Budd. We have concluded that even when viewed in the light most favorable to Mr. Finklea, the evidence was insufficient to support a finding that Dr. Tonsey was negligent. We therefore affirm.

In reviewing the propriety of the order denying appellant’s motion to remove the nonsuit, we must view the evidence in the light most favorable to appellant, which means that we must resolve all conflicts in the evidence in appellant’s favor, and must give him the benefit of all favorable inferences arising from the evidence. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980) (collecting cases). So viewed, appellant’s evidence discloses the following facts.

In July 1975 appellant began to work as a manual laborer for The Budd Company, which “employs a lot of fast-moving big presses and moving machinery R. 2.96; 3.10. Sometime during this first period of employment—the date is not clear from the record—a urinalysis was conducted to determine whether appellant was taking any drugs. R. 2.147. The results of the tests were negative. R. 2.147.

After working some five weeks, appellant was laid off. R. 2.99. Several weeks later, appellant was called back to work, and another urinalysis was conducted. R. 2.100. This time the analysis disclosed the presence of Darvon in appellant’s system. R. 2.151. Dr. Tonsey, as Budd’s medical director, told appellant that the urinalysis test had revealed the presence of a drug in his system, and asked him to get a note from his doctor stating what kind of medication he was taking. R. 2.130; 2.157-58. Appellant conveyed this request to Dr. Edward Tobe, who had been treating him for physical and emotional problems at the Erie Medical Center from November 1974 through July 1975. R. 2.16-2.17; 2.30. Dr. Tobe gave appellant a note, which stated: “John Finklea has been under my care from 1974 [ ] on and is unable to return to work [ ]. Meds. taken: Elavil 50 mg. Valium 10 mg. Darvoset N 100 mg. one prescription of Biphetamine July, 1975.” Dr. Tobe understood that appellant wanted a note stating what kind of medication he was then taking,—i.e., in October 1975. R. 2.16-17; 2.30, 2.99. Nevertheless, appellant argues that the note described medication prescribed in July 1975, and that the record should be read as consistent with appellant’s testimony that he was not then taking the medication described in the note. See R. 2.51; 2.59-61; 2.138. We shall consider this argument in some detail later. Appellant delivered Dr. Tobe’s note to a third party at The Budd Company, who in turn delivered it to Dr. Tonsey. R. 2.152.

Appellant also asked Dr. Tobe to telephone The Budd Company. Dr. Tobe did, but Dr. Tonsey was not available. When Dr. Tonsey returned Dr. Tobe’s call, R. 2.159-60; 3.8, he was told that Dr. Tobe was not available, R. 3.7. When Dr. Tonsey “asked the clinic to talk to a doctor,” he was transferred to another person whom he couldn’t identify beyond saying that the person had a Spanish name. R. 3.24. The record is unclear as to what this person told Dr. Tonsey. At trial Dr. Tonsey testified that this person “checked [appellant’s] chart [and said] that the patient has been receiving various drugs, Valium, Melaril, Elavil, Biphetamines, Darvoset, and some other tranquilizers.” R. 3.9. But at his deposition Dr. Tonsey said that he was told that appellant was taking Thorazine and Elavil. R. 3.39. The most favorable interpretation of this conflict, from appellant’s point of view, is that Dr. Tonsey was told that he was taking Thorazine. Appellant’s medical chart discloses that no Thorazine had been prescribed for him between December 29, 1973, and October 1975. R. 2.31-63. Thus, if the chart is correct, a statement that appellant was taking Thorazine in October 1975 was incorrect. As will be discussed in a moment, one of appellant’s arguments is that Dr. Tonsey was negligent in “[speaking] to an entirely unknown person at the clinic who purportedly provided the facts relating to [appellant’s] treatment and history.” Brief for Appellant at 18. This argument is stronger if we assume that the entirely unknown person gave Dr. Tonsey incorrect information—that is, said that appellant was taking Thorazine.

In any event, Dr. Tonsey told George R. Pester, who was Assistant Personnel Manager of The Budd Company, that appellant was taking the medications listed on Dr. Tobe’s note and that it would be unsafe to continue his employment. R. 2.85; 2.152. On the strength of this recommendation, appellant was discharged on October 17, 1975. R. 2.85; 3.4.

As we have just indicated, one of appellant’s arguments is that Dr. Tonsey should not have relied upon information from an unidentified source that appellant was taking Thorazine. This argument might have force if the information that appellant was taking Thorazine had been the sole basis of Dr. Tonsey’s recommendation that appellant be discharged. But, even giving appellant the benefit of every favorable inference, Scott v. Purcell, supra, it is clear that this information was not the sole basis of Dr. Tonsey’s recommendation.

If we assume that Dr. Tonsey was told, incorrectly, that appellant was taking Thorazine—and we have discussed the testimony bearing on this assumption—then it is arguable that this information was part of the basis of Dr. Tonsey’s recommendation that appellant be discharged. But it was not an important, or operative, part. For with or without it, the recommendation would have been the same. The urinalysis disclosing Darvon in appellant’s system alerted Dr. Tonsey to the possibility that appellant was taking medication. That possibility was then confirmed in fact, in Dr. Tonsey’s mind, by the note from appellant’s own doctor, Dr. Tobe, stating “Meds. taken: Elavil 50 mg. Valium 10 mg. Darvoset N 100 mg. 1 prescription Biphetamine July, 1975.” Dr. Tonsey testified generally that “any one” of these medications “is too dangerous for anybody working in Budd Company which employs a lot of fast-moving big presses and moving machinery.” R. 3.10. He was specifically asked about the dangers posed by Elavil and Valium, and explained that the most common problem was that they caused “a lack of coordination. Sometimes you get dizzy, you could pass out.” R. 3.10; 3.11-16. This testimony was not only not contradicted but was substantiated by Dr. Tobe’s testimony. R. 2.13-15; 2.31-38; 2.43; 2.53; 2.62; 2.65-67. Thus, even if the unknown person at the Erie Medical Center did tell Dr. Tonsey that appellant was taking Thorazine, that information in no way undermined the information in Dr. Tobe’s note that appellant was also taking other medications, which by themselves rendered appellant unfit for employment on the assembly line.

Appellant next argues, however, that Dr. Tonsey should not have concluded on the basis of Dr. Tobe’s note that appellant was taking the medications listed on the note. According to appellant, the' information on the note was correct as of July 1975 but not as of October 1975, when Dr. Tobe wrote it. In appellant’s view, Dr. Tonsey should have understood from the note that its information was only as of July 1975. This argument lacks merit.

In the first place, it is by no means clear that the information on the note was incorrect. It is true that Dr. Tobe testified that the last time he treated appellant was July 10, 1975, R. 2.11, and that the last line of the note was, “One prescription of Biphetamine July, 1975.” But it does not follow from this evidence that the information on the note was correct only as of July 1975 and incorrect as of any later date. Although there was a limiting qualification as regards Biphetamine (“July, 1975”), there was no such qualification as regards the other medications. Furthermore, Dr. Tobe testified that when appellant asked him for the note, in October 1975, “my understanding of the note was that he needed it, they [The Budd Company] wanted to know what medicines he was taking, period.” R. 2.74 (emphasis added). Thus, when Dr. Tobe wrote the note, he believed that he was describing appellant’s medications not as of July but as of October 1975.

To be sure, appellant testified otherwise. Specifically, when asked, “Were you taking drugs during the time you were employed by the Budd Company?” he replied, “No.” R. 2.138. But this testimony could not, even on the most favorable view, have been accepted by a jury as credible, for it was too thoroughly contradicted by other testimony-all presented by appellant’s own witnesses. Not only was there the urinanalysis, but Dr. Tobe testified, without contradiction, that appellant’s medical chart at the Erie Medical Center showed that on August 1, 1975, appellant was given a prescription for Biphetamine sufficient to last until September 1, 1975, R. 2.61-62; that on November 11, 1975, he was given another; and that on November 21, 1975, there was a notation that appellant apparently had become addicted, R. 2.65.

But even if we assume that appellant was not under at least some medication in October 1975, and that Dr. Tobe’s note was incorrect, still appellant’s argument fails. For appellant offered no evidence suggesting that Dr. Tonsey should have known that Dr. Tobe’s note was incorrect. Alerted by the urinalysis, Dr. Tonsey had asked appellant for a note describing what kind of medication he was taking, and appellant responded by delivering Dr. Tobe’s note. Appellant did not tell Dr. Tonsey that Dr. Tobe’s note was incorrect. R. 2.110. What appellant’s argument comes down to is an assertion that Dr. Tonsey was negligent in not discovering that an impression that appellant himself created was incorrect.

Appellant finally argues that Dr. Tonsey should have inquired whether appellant in fact suffered from the side-effects typically associated with the drugs listed in Dr. Tobe’s note. It is true that Dr. Tobe testified that some people differ in their reaction to Valium, Elavil, and Biphetamine, whether taken alone or in combination, R. 2.62, and that appellant did not suffer the typical adverse side effects of these medications. R. 2.15. But that testimony could not support a finding of negligence.

Dr. Tonsey testified that the policy of The Budd Company was “not to let anybody work in the press area or in the production area with any of the medication he [appellant] has been taking.” R. 3.10. Perhaps the company might have adopted an individualized policy, deciding that a given individual would or would not be permitted to work in the production area depending upon what his doctor said about his reaction to medication. Instead, as shown by Dr. Tonsey’s testimony, the company adopted a general policy without providing for individualized exceptions. Appellant offered no evidence that this policy was in. some way unwarranted, and that in implementing it, Dr. Tonsey was acting improperly.

AFFIRMED.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I join my colleagues in holding that the plaintiff-appellant failed to prove negligence on the part of the physician who, as medical director of appellant’s employer, recommended that appellant be discharged because his ability to perform the duties of his employment had been impaired by the use of drugs. This holding, it will be observed, assumes that a physician who contracts with an employer to examine an employee for purposes of continued employment owes to the employee a duty to exercise due care. However, we have not attempted to define the nature or scope of the duty owed to such an examinee and have not held the duty co-extensive with that which is owed where the doctor-patient relationship does in fact exist. See: Annotation of cases at 10 A.L.R.3d 1871.

      . Appellant has petitioned this court to direct that the record be corrected at 1.29. Since we do not rely upon appellant's opening address to the jury in reaching our decision, we deny the petition.

      . There is a conflict in the testimony regarding whether appellant delivered the note to Dr. Tonsey’s assistant, R. 2.108, or to George R. Pester, who was Assistant Personnel Manager of The Budd Company, R. 2.152, but this conflict makes no difference in light of the fact that Dr. Tonsey received the note. R. 2.152.


author: ROWLEY, Judge: POPOVICH, Judge,

text:
    464 A.2d 465
    COMMONWEALTH of Pennsylvania v. Paul DESABETINO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed Aug. 12, 1983.

      John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   ROWLEY, Judge:

Appellant was convicted, after a jury trial, of burglary and theft. Post-trial motions were filed and denied. ■ Appellant was sentenced to ten to twenty months imprisonment on the burglary count. A suspended sentence was imposed on the theft count.

Four issues are raised on appeal: 1) Was the evidence ' sufficient to support the convictions?; 2) Did the court err in failing to give an alibi instruction?; 3) Was counsel ineffective in failing to object to an erroneous jury instruction?; and 4) Was the sentence imposed illegal?

In reviewing the sufficiency of the evidence to support a conviction, we must view that evidence in the light most favorable to the Commonwealth. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979). Viewed in that light, the record reveals the following. On July 18, 1981, at approximately 3:35 A.M., Pittsburgh Police Officer Paul Lugalia and his partner were passing an Arco Gas Station at 40th and Butler Streets, in the Lawrenceville Section of the city. He observed:

“a white male with a white shirt, a cast on his arm, dark pants, running not fast, but like a trot in front of the gas station window and he put up his hand to either tap on the window or wave to somebody and he proceeded across the gas station lot”.

Another white male then climbed out of the gas station window and followed the first man across the street. The officers broadcast a burglary in progress and a description of the two suspects. They attempted to follow the suspects but soon lost sight of them near the Fort Wayne Cigar Store. After a brief search, the officers stopped at the cigar store. They were informed by the clerk that a man matching the description of the first suspect had been in the store a few minutes earlier. The officers returned to the gas station and found a number of articles piled against the wall where the first man had been standing. Several minutes later, Officers Jones and Reed, responding to the call for assistance, observed appellant, who met the description of the first suspect, running on Foster Street, a few blocks from the gas station. The officers chased appellant and apprehended him.

Appellant testified that he spent the late evening and early morning hours at a bar called Sharp’s, which is located about five blocks from the Arco Gas Station. Appellant presented Howard Mazzoccoli, who testified that he was with appellant at Sharp’s until about 1:30 A.M. Appellant stated that he left Sharp’s at about 2:45 A.M. and began walking towards the 40th Street Bridge. Before reaching the Bridge, however, he was stopped by police. Appellant stated that he was not in the Fort Wayne Cigar Store that night.

The evidence presented at trial was sufficient for the jury to infer beyond a reasonable doubt that appellant was an accomplice in the burglary of the gas station.

Appellant argues that he was entitled to a jury instruction on the defense of alibi. Clearly, Mr. Mazzoccoli’s testimony does not constitute an alibi, since he left appellant nearly two hours before the burglary. However, appellant claims that his own testimony placed him in a different place at the time of the crime. The Commonwealth argues that a defendant cannot provide his own alibi so as to warrant a jury instruction. This argument is incorrect. The testimony of the accused may, by itself, be sufficient to raise an alibi defense and entitle him to an appropriate jury instruction. Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980). However, although appellant could have raised an alibi defense by his testimony, he failed to do. so in this case. Appellant testified that he left Sharp’s Bar at about 2:45 A.M. and began walking in the direction of the gas station. He stated that it would take him about a half hour to walk that distance. He was arrested at about 3:40 A.M. in that area. Therefore, appellant’s own testimony placed him in the area of the burglary at the time it was being committed. This eliminated the need for the trial judge to charge on alibi. Commonwealth v. Young, 460 Pa. 598, 334 A.2d 252 (1975).

Since we have concluded that the court did not err in failing to give an alibi instruction, trial counsel cannot be found ineffective for not objecting to such failure. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

Appellant’s final argument is that his sentence was illegal. Under 18 Pa.C.S.A. § 3502(d), a defendant may not be “convicted” of both burglary and theft. Appellant interprets this to mean that a jury may not return verdicts of guilty on both burglary and theft charges. However, this provision has been held to prohibit judgments on both burglary and theft, not verdicts of guilty on both charges. Commonwealth v. Black, 267 Pa.Super. 598, 407 A.2d 403 (1979).

Clearly, however, the counts of burglary and theft should have merged for sentencing purposes. Commonwealth v. Harris, 269 Pa.Super. 41, 409 A.2d 53 (1979).

Because of the future prejudice to appellant, the improperly imposed sentence should be vacated even though it was suspended. Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975). We have the option to either remand for resentencing or amend the sentence directly. Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982). Since the suspended sentence did not affect the sentence for burglary, we will not remand but will merely vacate the suspended sentence.

Appellant also alleges that the court failed to state any reasons for the sentence. See Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). There is no indication in the record that this issue was raised either at the time of sentencing or in a Petition for Reconsideration of Sentence. Therefore, ordinarily we would consider the issue to be waived. See Commonwealth v. Morris, 273 Pa.Super. 477, 417 A.2d 748 (1979). However, since appellant has alleged that trial counsel was ineffective, we have, in view of the circumstances of this case and in the interest of judicial economy, reviewed the sentencing transcript and find that this argument is without merit.

Judgment of Sentence for burglary affirmed. Judgment of Sentence for theft vacated.

POPOVICH, J., files a concurring and dissenting statement.

POPOVICH, Judge,

concurring and dissenting:

I concur in the result reached by the Majority. However, I do not join in that portion of the Opinion that treats appellant’s sentencing claim. My review of appellant’s brief reveals that, although he raises an ineffectiveness of counsel argument, he fails to link it with a deficient sentencing proceeding under Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). (Appellant’s Brief at 20) See Commonwealth v. Bolding, 315 Pa.Super. 444, 462 A.2d 278 (1983). Thus, I find that the sentencing question has been waived. Commonwealth v. Bolding, supra.

Moreover, appellate courts render a disservice to judicial economy and the efficient operation of our court system where they freely accept issues that could have and should have been first presented to the courts below for their consideration. Commonwealth v. Mitchell, 464 Pa. 117, 123, 346 A.2d 48, 52 (1975). Instantly, the appellant has failed to raise the issue (of a deficient sentencing proceeding) addressed by the Majority in the court below; therefore, it is waived.


author: WIEAND, Judge:

text:
    464 A.2d 468
    Joseph S. HAMMERSTONE v. Hugh ROSE and C.D.B., Inc. Appeal of C.D.B., INC.
    Superior Court of Pennsylvania.
    Submitted April 28, 1983.
    Filed Aug. 12, 1983.

      Philip D. Lauer, Easton, for appellant.
    Thomas L. Walters, Easton, for appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Joseph S. Hammerstone, appellee, was the owner of a Volkswagen' which, while lawfully parked in the City of Easton, was damaged by a welding trailer which broke loose and fell from a passing truck. Upon the trial of an action to recover damages from C.D.B., Inc., the owner of the truck, appellee showed that the hitch and safety chain holding the welding trailer had broken when the truck traversed a “dip” in the road. The trial court, which heard the case without a jury, found that the owner of the truck had been negligent and entered an adjudication awarding damages to the owner of the Volkswagen. On appeal, after exceptions had been dismissed, C.D.B., Inc. contends that the evidence was insufficient to sustain the trial court’s finding of negligence. We disagree and, accordingly, affirm.

In Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974), the Supreme Court adopted Section 328D of the Restatement (Second) of Torts and made it part of the law of Pennsylvania. Section 328D of the Restatement provides an evidentiary rule which permits a logical and realistic approach to circumstantial proof of negligence. The rule provides, in pertinent part, as follows:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.

Under this rule, the fact finder may infer, “when a runaway horse is found in the street, that its owner has been negligent in looking after it.” Restatement (Second) of Torts, § 328D, Comment b. So also, negligence may be inferred when a heavy coupler breaks loose from a railroad train and rolls down an embankment causing damage to a passing vehicle. Mack v. Reading Co., 377 Pa. 135, 103 A.2d 749 (1954). See also: Kirkland v. Barfield, 45 Ala. App. 384, 231 So.2d 161 (1970) (inference of negligence permissible where trailer laden with peanuts separates from defendant’s truck and strikes plaintiff’s gasoline tanks); Tamiami Trail Tours, Inc. v. Locke, 75 So.2d 586 (Fla. 1954) (inference of negligence permissible where defendant’s truck is coupled to plaintiff’s trailer and the coupling fails, causing damage to the trailer); Wimberley v. Material Service Corp., 12 Ill.App.3d 1051, 299 N.E.2d 425 (1973) (inference of negligence permissible where metal cement chute falls from mixer and injures motorcyclist following truck); McCleese v. Glockner Chevrolet Corp., 6 Ohio App.2d 69, 216 N.E.2d 389 (1966) (inference of negligence permissible where flatbed truck being prepared for towing by wrecker breaks free, crosses center line of highway and strikes car in which plaintiff is riding as a passenger).

Appellant contends on appeal, as it did at trial, that it was traversing the dip in the road which caused the chain to break and not negligence in securing the welding trailer. The conditions of the road were a factor, but only a factor, to be considered by the trier of the facts' The trial court found that the conditions of the road were not extraordinary and should have been foreseen by one engaged in hauling a welding trailer on the public highways. The trial court’s findings, affirmed by the court en banc, have the same force and effect as a verdict of a jury. So long as they are supported by competent evidence, as is the case here, they will not be disturbed on appeal. See: Eddystone Fire Co. No. 1 v. Continental Insurance Co., 284 Pa.Super. 260, 425 A.2d 803 (1981); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 395 A.2d 1373 (1978).

Appellant also complains because the trial court included in its award the sum of $1,202.88 to compensate appellee for the cost of alternate transportation while his vehicle was being repaired. Suffice it to say here that the award of damages in this amount was fully explained by the trial court’s opinion and supported by appellee’s evidence.

Order affirmed.

      . The order of the court en banc, from which the instant appeal was filed, reversed a finding of negligence on the part of the driver of the truck but dismissed the exceptions of C.D.B., Inc., the owner of the truck, and entered judgment against the owner in the sum of $2,751.81. Such an order is appealable. Commonwealth ex rel. Waltman et al. v. Graczyk, et al., 501 Pa. 244, 460 A.2d 1098 (1983).