author: CERCONE, Judge: WICKERSHAM, Judge,

text:
    499 A.2d 632
    Riney MITCHELL, Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 16, 1985.
    Filed Oct. 4, 1985.

      Thaddeus J. Bartkowski, II, Philadelphia, for appellant.

      M. Landon Spencer, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   CERCONE, Judge:

The parties are before this court upon the lower court’s denial of appellant’s petition to compel a second arbitration hearing, involving an automobile accident in which appellant was involved, in pursuance of a claim against a party different than the one he brought suit against in the first arbitration proceedings. Appellant was involved in the automobile accident at an intersection with an identified and insured driver whom appellant averred was the cause of the accident. Subsequently an arbitration panel trying the case between appellant and the identified and insured driver rendered an award in favor of the driver and against appellant. Appellant now seeks to pursue a second arbitration hearing claiming compensation under the uninsured motorist clause of his automobile policy with Prudential Property and Casualty Insurance Company (Prudential) on the grounds that a parked truck, obstructing his view of the intersection where the accident happened, caused him to collide with the other car. He alleges the identity of the driver of the parked truck was not possible because he blacked out in the accident. The lower court in an opinion authored by Judge White of the Philadelphia County Court of Common Pleas stated that appellant’s policy, in its uninsured motorist provision, provided for hit-and-run situations and did not contemplate an unidentified parked vehicle and accordingly denied appellant’s petition to compel arbitration a second time. We reverse.

The insurance policy under which appellant was insured provides uninsured motorist coverage under the following conditions:

If you’ve paid for this coverage (see Declarations Page), we’ll pay you the amount you should have collected as damages for bodily injury from the person or organization responsible for the car accident in which you are injured, but only when you could not collect because:
The person or organization responsible for the accident has no liability insurance or had inadequate (less than the amount required by your state’s financial responsibility law) liability insurance coverage at the time of the accident.
The person or organization responsible for the accident has adequate liability insurance coverage at the time of the accident, but, for some reason, the company writing the insurance denies coverage.
Neither the driver nor the owner of the car which caused injury by hitting a person insured under this part (or by hitting a car that person was occupying at the time of the accident) can be identified.

Appellee, Prudential, contends that appellant’s claim falls under the last paragraph, supra, of the uninsured motorist provision and that this paragraph applies only to hit-and-run situations. Appellant argues that the Uninsured Motorist Coverage Act is designed to insure compensation to one who is injured through the fault of any driver who cannot respond in damage for injuries and that furthermore, contact is not necessary so long as the claimant can prove that there was another culpable vehicle involved.

Initially we note that Pennsylvania courts have consistently declared that the Uninsured Motorist Coverage Act be liberally construed in order to achieve the intent of our legislature to provide monetary protection to persons who, while lawfully using the highways, have suffered injury at the hands of an irresponsible driver. See, Estate of Rosato v. Harleysville Mutual Insurance Company, 328 Pa.Super. 278, 476 A.2d 1328 (1984); Pattani v. Keystone Insurance Company, 426 Pa. 332, 231 A.2d 402 (1967). However, because an unscrupulous driver could claim that his injuries are the result of an unidentifiable driver’s negligence when in fact he is at fault, many states incorporate provisions in their uninsured motorist insurance act that limit the coverage to bodily injury that arises out of physical contact between a hit-and-run vehicle and a claimant’s car. Such provisions are intended to prevent fraud. By requiring that there be physical contact when the identity of the offending motorist is unknown legislators sought to foreclose claims arising from accidents allegedly caused by unidentifiable drivers but which in reality had resulted from the the driver’s own acts of negligence. 1. Widiss, Uninsured and Underinsured Motorist Insurance, p. 326 § 92, (2d ed. 1985). Pennsylvania has not adopted this position. In Webb v. United States Automobile Association, 227 Pa.Super. 508, 323 A.2d 737 (1974) this court addressed the issue of whether the “physical contact” requirement was repugnant to the Uninsured Motorist Coverage Act. Our court concluded that:

While it would certainly eliminate the possibility of fraud to hold the physical contact clause valid, it would also eliminate any hope of recovery in cases clearly involving another negligent motorist who has avoided liability by getting away. This latter situation is surely within the contemplation of the Uninsured Motorist Coverage Act, and the possibility of fraud can be mitigated by the burden of proof placed on the claimant. If the injured party can sustain the burden of proof that an accident did occur, he should be entitled to recover, regardless of the actuality of physical contact.

Furthermore, insurance companies are insulated from the burden of untrammeled fraudulent claims when the burden of proof to show that an unidentifiable vehicle was the cause of an accident is placed on the proponent of the claim. Gerardi v. Harleysville Insurance Company, 293 Pa.Super. 375, 439 A.2d 160 (1981).

Under Webb, supra, Pennsylvania’s Uninsured Motorist Coverage Act includes accidents which are caused by a driver whose vehicle did not come in contact with a claimant’s car. Here we must decide Prudential’s contention that appellant’s failure to claim in his first arbitration that an unidentifiable parked vehicle obscured his vision so that he collided with another car precludes a second arbitration under the uninsured motorist provision of appellant’s policy.

Thus we must decide whether appellant can receive compensation for his injuries under both the no-fault and the uninsured motorist provisions of his policy. If double recovery is allowed then a further question arises as to whether appellant had to advance his uninsured motorist claim at the first arbitration when the no-fault provisions of his policy were litigated.

In keeping with the legislative mandate of liberal construction of the Uninsured Motorist Coverage Act our courts have demonstrated a propensity for deciding that a party can receive benefits under both the no-fault and uninsured motorist protection of his automobile insurance policy, so long as these benefits are not duplicated. (See infra). In State Farm Mutual Automobile Insurance Company v. Williams, 481 Pa. 130, 392 A.2d 281 (1978) our Supreme Court concluded that

Where there exists a valid contract of insurance which contains uninsured motorist coverage, an insurance carrier is obligated to compensate the insured for damages inflicted upon the insured because of the conduct of the owner and/or operator of an uninsured motor vehicle except for three statutory exclusions. An insurance carrier is not obligated to compensate an insured within the ambit of the uninsured motorist provision for:
1. Property damage.
2. Bodily injury damages when the insured or his representative has without written consent of the insurance carrier settled or prosecuted to judgment any action against any person or persons liable for such injuries.
3. Any damage, the payment of which would be for the direct or indirect benefit of a workmen’s compensation carrier or any person who would qualify as a self-insurer under any workmen’s compensation law.

Relying on Williams as precedent our court in Brader v. Nationwide Mutual Insurance Company, 270 Pa.Super. 258, 411 A.2d 516 (1979), invalidated an exclusionary clause in the insurer’s uninsured motorist policy which allowed setoff of no-fault benefits received by the insured against benefits payable under the insured’s uninsured motorist policy. Our court stated that an insured should be allowed to recover under the uninsured motorist provision of his insurance policy (up to the policy’s limits) those actual damages suffered which exceeded the amount of no-fault insurance benefits received and owing. In Tubner v. State Farm Mutual Automobile Insurance Company, 496 Pa. 215, 436 A.2d 621 (1981), the court held that assigned insurers are obligated precisely as if they had issued basic loss insurance policies and are required to pay not only basic loss benefits but also uninsured motorist benefits for general (non-economic) damages not recoverable under no-fault basic loss protection. Tubner was later cited as the correct statement of Pennsylvania law in Tucci v. State Farm Insurance Company, 503 Pa. 447, 469 A.2d 1025 (1983), wherein the court held that uninsured motorist provisions do not provide double recovery of economic benefits but do allow compensation for actual special damages an insured has suffered.

From this line of cases we can gleen that in addition to basic loss benefits an insured may collect for general damages under the uninsured motorist provision of his policy. Furthermore, appellant herein, if he is able to prove that the unidentifiable truck parked near the corner where his accident occurred was the legal cause of the accident, may recover damages under his uninsured motorist coverage as well as those he recovered under his no-fault insurance.

It is well settled that arbitration proceedings are informal adversarial hearings in which the arbitrators are not bound by the technical rules of civil procedure. Where the parties submit their controversy to arbitration and make no provision for the mode of conducting the proceedings, the parties thereby dispense with the technical rules. P.L.E. Arbitration § 10 (1984); Rosenbaum et al. v. Drucker et al., 346 Pa. 434, 31 A.2d 117 (1943). Moreover, Rule 2227 Pa.R.C.P. provides for compulsory joinder of parties in very limited situations. It is applicable only where substantive law provides that an interest is joint and so connected with the claims of the litigants that no decree can be granted without impairing the rights of the litigants. Kelly v. Carborundum Company, 307 Pa.Super. 361, 453 A.2d 624 (1982); Shaw v. Westinghouse Electric Corporation, 276 Pa.Super. 220, 419 A.2d 175 (1980). Under Rule 2227 Pa.R.C.P. indispensible parties are inter alia joint tenants, tenants in common, and tenants by the entireties. Moore-head v. Lopatin, 300 Pa.Super. 81, 445 A.2d 1308 (1982) (in a suit for negligent maintenance of real estate owned by the parties as tenants in common, both tenants are indispensible parties); Patwardhan v. Brabant, 294 Pa.Super. 30, 439 A.2d 784 (1982) (in judgment creditor’s action seeking to attack an escrow fund in the name of the judgment debtor and his wife, the wife is an indispensible party to the suit). Thus, due to the informality of an arbitration hearing and Rule 2227 Pa.R.C.P. the unidentifiable truck negligently parked near the intersection of appellant’s accident and which he avers caused him to collide with another car was not an indispensible party in appellant’s first arbitration proceeding between appellant and the driver of the car with which he collided.

Therefore, we conclude that appellant is entitled to a second arbitration hearing, the parties to which are appellant and Prudential, to determine whether the unidentifiable parked truck was in fact the legal cause of his accident. Our decision is in keeping with the legislative mandate of liberal construction of the Uninsured Motorist Coverage Act and the decision of our court in Webb, supra.

Reversed and remanded. Jurisdiction relinquished.

WICKERSHAM, J., files, a dissenting statement.

WICKERSHAM, Judge,

dissenting statement:

I dissent. I believe that the majority opinion opens the door to unlimited fraudulent claimants, who could contend ad infinitum that one unidentifiable vehicle after another caused injury until a responsive arbitration panel was found. Such cannot be the law — it violates common sense to say the very least.

      . Mitchell v. Baratía, Court of Common Pleas, Philadelphia County, June Term 1980 No. 506.

      . Act of August 14, 1963, P.L. 909 § 1 as amended December 19, 1968 P.L. 1254 No. 397 § 140 P.S. § 2000. The pertinent part of the Act reads as follows:
      (a) No motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle registered or principally garaged in this State, unless coverage is provided therein or supplemental thereto in limits for bodily injury or death as fixed from time to time by the General Assembly in section 1421 of article XIV of "The Vehicle Code,” act of April 29, 1959 (P.L.58), under provisions approved by the Insurance Commissioner, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom____

      . Rule 2227. Compulsory Joinder
      (a) Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.
      (b) If a person who must be joined as a plaintiff refuses to join, he shall, in a proper case, be made a defendant or an involuntary plaintiff when the substantive law permits such involuntary joinder.


source: Caselaw Access Project

author: WICKERSHAM, Judge:

license: Public Domain

text:
    499 A.2d 637
    DEAN WITTER REYNOLDS, INC., Appellant, v. Joseph M. GENTEEL and Cheryl L. Genteel. (Two Cases) DEAN WITTER REYNOLDS, INC. v. Joseph M. GENTEEL and Cheryl L. Genteel, Appellant.
    Superior Court of Pennsylvania.
    Argued April 17, 1985.
    Filed Oct. 11, 1985.

      William E. Taylor, III, Philadelphia, for Dean Witter Reynolds, Inc.
    Edward J. McKarski, Easton, for Joseph M. and Cheryl L. Genteel.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

Before us are consolidated cross-appeals from two orders of the Court of Common Pleas of Northampton County. Appellant in Nos. 2466 and 2763 Philadelphia 1984 is Dean Witter Reynolds, Inc. [hereinafter “Dean Witter”]. Appellants in No. 2786 Philadelphia 1984 are Joseph and Cheryl Genteel.

This non-jury case began as a mortgage foreclosure action brought by Dean Witter against the Genteels. The mortgage at issue was given by the Genteels after a check issued to Dean Witter by the Genteels’ corporation, J.C. & C. Coins, Inc., bounced. Subsequently, the Genteels asked the lower court to void the mortgage on the basis of fraud and/or duress, and counterclaimed for damages due to the trading losses suffered by J.C. & C. Coins in the commodities future market.

To understand this case, we must examine the prior relationship between Dean Witter and the Genteels. In the early 1970’s, Joe Genteel became interested in collecting coins. In approximately 1978, he began purchasing and selling scrap gold and silver, and during 1979, he netted substantial profits from the buying and selling of scrap metal. In early 1980, the Genteels did two things of interest herein: they formed a corporation, J.C. & C. Coins, Inc., and they left their home in Roseta, Pennsylvania, for a vacation in Hawaii. While in Hawaii, they became acquainted with Mr. Jack Leslie, a fellow vacationer from Omaha, Nebraska. It so happened that Mr. Leslie was a commodities broker in gold and silver and an employee of Dean Witter. Upon exchanging information about their respective jobs, Mr. Leslie suggested to the Genteels that they set up a “hedging account” with Dean Witter, to protect their silver inventory.

After their return to Roseta, Joe Genteel contacted Mr. Leslie in Omaha and discussed silver prices and opening a hedging account. Ultimately, the Genteels decided to open a hedging account for J.C. & C. Coins, Inc. at Dean Witter, with Mr. Leslie as their account representative. What occurred in the next three months was disputed at trial, but the lower court found that:

7. ... [Sjeveral forms were sent from Mr. Leslie to the Genteels who signed them where X’s appeared, and returned them, in blank, to Mr. Leslie, along with a check for $20,000.00. The account was opened in the name of J.C. & C. Coins, Inc., based on Mr. Genteel’s existing inventory of 2,000 ounces of silver.
8. The forms returned by the Genteels were completed at the Omaha, Nebraska office with inaccurate information. Most particularly, the commodity account information held out J.C. & C. Coins, Inc. as a smelter, refiner and producer of coins, with a net worth of $1,440,000.00 and net income in excess of $200,000.00. [The Genteels] did not receive copies of the forms sent to Omaha. Other forms and disclosure statements sent to the [Genteels] were not read by them.
9. [Dean Witter] allowed trading to commence April 21, 1980, without verification as to the accuracy of the information on the account application. Mr. Genteel continued to call Mr. Leslie on a regular basis following the opening of the account, but stopped opening and reading daily and monthly reports sent to him by [Dean Witter] because he didn’t understand them.
10. Mr. Genteel relied on and trusted the handling of his account by Mr. Leslie, and when asked to send him $10,000.00 on a margin call the end of April, did so. On or about May 14, 1980, [Dean Witter] received a Dunn & Bradstreet report informing it that the information in the commodity account application could not be verified. In spite of this, the account remained open and active.
11. While the account was active, Mr. Genteel’s silver inventory did not exceed 5,000 ounces. Mr. Leslie exercised control over trading in the account except for two contracts each near the end of April and May. The trading in the account was excessive in light of [the Genteels’] investment objectives.
12. Analysis of the trading in the account of J.C. & C. Coins, Inc., reveals the following:
(a) the account was opened April 21, 1980, and closed June 5, 1980;
(b) there was a closing debit balance of Sixty-One Thousand Nine Hundred Nine and 96/100 ($61,909.96) Dollars;
(c) there were profits of Fifty-Three Thousand Six Hundred Two and 20/100 ($53,602.20) Dollars and losses of One Hundred Forty Two Thousand Nine Hundred Twenty ($142,920.00) Dollars;
(d) commissions were paid in the amount of Seven Thousand Eight Hundred Ninety ($7,890.00) Dollars and fees in the amount of Ninety-Two and 75/100 ($92.75) Dollars indicating a total loss of Ninety-Seven Thousand Three Hundred and 55/100 ($97,300.55) Dollars;
(e) there were ninety-three (93) total contracts of which forty-five (45) were purchased on the Mid-American Board and forty-eight (48) on the Chicago Board;
(f) there were eleven (11) day trades;
(g) the average length of position was 1.7 days.
13. On May 21, 1980, [the Genteels] were required to liquidate stock they owned to meet a margin call on their account. The amount credited to the account was $3,375.00. The next day Mr. Leslie was instructed by Mr. Genteel not to do any further trading.
14. However, trading continued, and on May 30, 1980, Mr. Leslie instructed [the Genteels] that a margin call on their account required funds in the amount of $46,000.00 by the end of the day, and requested defendants to deliver a check in that amount to the Allentown office of Dean, Witter. [The Genteels] indicated that there were insufficient funds in their account to cover such a check. Mr. Leslie responded that the check would not be negotiated until it could be covered by Mr. Genteel’s liquidation of his silver inventory.
15. Contrary to [the Genteels’] understanding, the check was immediately deposited and returned to [Dean Witter] on June 5, 1980, marked “NSF.” [Dean Witter] liquidated [the Genteels’] account resulting in a loss of $61,909.96. Thereafter, [Dean Witter] informed [the Genteels] that [it] could pursue various legal actions against them, including criminal action.
16. The Genteels sought counsel and paid $15,000.00 towards the loss in their account. Then they executed the mortgage, which is the subject matter of this proceeding, for $46,909.96 on June 25, 1980. The first payment of $10,000.00 was made during the following month.
17. Thereafter, the [Genteels] repudiated the mortgage, and the instant proceeding ensued.

Lower ct. op., February 10, 1984, at 3-6.

After trial, the lower court granted rescission and voided the mortgage on Dean Witter’s action of mortgage foreclosure. It also entered a verdict in favor of the Genteels on their counterclaim and against Dean Witter in the amount of $58,375.00 in compensatory damages and $175,-125.00 in punitive damages. Dean Witter filed exceptions to the verdict. When argument was taken on the exceptions, the court also heard argument on whether delay damages and/or prejudgment interest should be added to the verdict. On August 16, 1984, the court dismissed Dean Witter’s exceptions, and awarded the Genteels delay damages of $15,272.75, and interest at 12% from March 24, 1981 [the date that the Genteels filed their counterclaim]. Final judgment in the total amount of $272,550.83 was entered on September 25, 1984.

On appeal, Dean Witter raises the following issues:

1. Did the court below err in holding that there was sufficient probative evidence to support the finding that the commodity account in question had been “churned”?
2. Did the court below err in permitting Mr. Genteel to refresh his recollection from notes made after litigation was commenced and at least two years after the events at issue?
3. Did the court below err in not permitting the broker’s supervisor to testify to the absence of prior complaints lodged against the broker?
4. Did the court below err under existing Pennsylvania law or under Section 909 of the Restatement (Second) of Torts, in holding Dean Witter Reynolds, Inc., vicariously liable for punitive damages?
5. Did the court below err in awarding both prejudgment interest and delay damages under Rule 238 Pa.R. C.P.?

Brief for Dan Witter at 3. In addition, the Genteels ask whether the lower court properly calculated the amount of the prejudgment interest awarded them. Brief for Genteels at 1.

After careful consideration of the record, the briefs of the parties, and having had benefit of oral argument, we conclude that the lower court properly found that the account of the Genteels was churned by appellant. The opinion of the Honorable Richard D. Grifo, dated February 10, 1984, adequately addresses this issue and we see no need to address it further.

Appellant argues that the lower court erred in permitting Joe Genteel to refresh his recollection from notes made after the litigation was commenced and at least two years after the events at issue. This occurred on the first day of trial, November 8, 1983, during Mr. Genteel’s direct examination. Mr. Genteel was testifying about the events surrounding the establishment of and the early transactions in the hedging account. When asked about specific phone conversations between himself and Mr. Leslie which occurred on April 28, 1980, he stated what he remembered, but noted that he could not presently recall the entire series of phone calls that day. At his counsel’s suggestion, he was permitted to examine some notes concerning the phone calls, which he had dictated to his wife about a year and a half prior to trial. Mr. Genteel testified that after his wife wrote down his statements, he examined the notes and found them to be accurate. The court then allowed him to review the notes, whereupon he stated that his recollection was refreshed, and he then continued to testify from memory-

Despite its surface appeal, we find that, upon closer examination, the caselaw in Pennsylvania does not support Dean Witters’ position. It is well settled that a witness whose memory is exhausted may use any writing or other aid to refresh or revive his or her present recollection of past events. Commonwealth v. Payne, 455 Pa. 503, 317 A.2d 208 (1974); Commonwealth v. Lamb, 309 Pa.Super. 415, 455 A.2d 678 (1983). “The proper procedure for a party to refresh his own witness’s recollection is to show the writing, or other evidence, to his witness and after the witness’s recollection is refreshed, to proceed with direct examination and have.the witness testify from present recollection.” Commonwealth v. Payne, supra, 455 Pa. at 506, 317 A.2d at 210. The witness, however, must testify from present, albeit refreshed, memory, and not from the writing itself. Commonwealth v. Canales, 454 Pa. 422, 311 A.2d 572 (1973). Therefore, a witness may use a memorandum or other aid for the purpose of refreshing his memory even though the writing itself may not be competent evidence. Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974), cert, denied, 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414 (1975); Panik v. Didra, 370 Pa. 488, 88 A.2d 730 (1952); In re Reiter, 173 Pa.Super. 552, 98 A.2d 465 (1953); Lardieri v. Lamont, 172 Pa.Super. 35, 92 A.2d 229 (1952).

It is this last point that helps distinguish refreshing recollection from the other rule governing the use at trial of a witness’s prior writing: past recollection recorded. The latter rule permits a prior writing to be admitted into evidence, if it meets certain conditions. See Nationwide Mutual Insurance Co. v. Hassinger, 325 Pa.Super. 484, 473 A.2d 171 (1984). On the other hand, in the process of refreshing recollection, the witness testifies orally on his or her present refreshed memory; the underlying writing is not admitted into evidence, and thus need not be admissible. Commonwealth v. Canales, supra. See generally, McCormick on Evidence § 9 (3d ed. 1984). In Commonwealth v. Proctor, 253 Pa.Super. 369, 385 A.2d 383 (1978), our court discussed whether a foundation must first be established before a party can use the rule permitting a witness to refresh recollection, and we adopted the following three part test:

To permit the use of a writing in order to refresh the memory of a witness, the proponent must show: (1) that the witness’ present memory is inadequate; (2) that the writing could refresh the witness’ present memory; and (3) that reference to the writing actually does refresh the witness’ present memory.

Id., 253 Pa.Superior Ct. at 373, 385 A.2d at 385 (quotations omitted). Accord, Commonwealth v. Lamb, supra; Commonwealth v. Wilson, 296 Pa.Super. 264, 442 A.2d 760 (1982), modified, 498 Pa. 529, 447 A.2d 1381 (1982).

We are satisfied that the Genteels provided the foundation required by Proctor. Mr. Genteel testified that his present memory was inadequate and that the memorandum could refresh his present memory. Once he reviewed the memorandum, his memory was actually refreshed. Since the memorandum was not admitted into evidence but was used only to refresh Mr. Genteel’s recollection of the April 28, 1980 phone calls, there was no need for the memorandum to meet the more stringent qualifications of Nationwide Mutual Insurance Co. v. Hassinger, supra.

Dean Witter next argues that the lower court erred in not permitting it to introduce evidence to establish an absence of customer complaints regarding Jack Leslie. During his direct examination of Mr. Leslie’s former supervisor at Dean Witter, counsel for Dean Witter attempted to question the supervisor as to whether there were any complaints about Mr. Leslie, presumably from other customers. Following objections by the Genteels’ counsel and an off the record, side-bar discussion, the objections were sustained on the basis that any prior complaints by other customers were not relevant to the issue of how Mr. Leslie treated the Genteels’ account.

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion. Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985), Gallegor by Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 34 (1984). Furthermore, not only must a clear abuse of discretion be shown, but there must be a showing that actual prejudice has occurred. Lewis v. Mellar, 259 Pa.Super. 509, 393 A.2d 941 (1978). Dean Witter cannot convince us that any actual prejudice occurred by the exclusion of the evidence. Dean Witter was allowed to ask the witness whether he had ever received any complaints from Mr. Genteel concerning the handling of his account. He answered in the negative and added that when the witness met Mr. Genteel in May 1980, Mr. Genteel said he “was very happy about the way the account was handled.” N.T. 580. It was this testimony that was valuable to Dean Witter’s case; the fact that other customers were happy or unhappy with Mr. Leslie’s methods would have added very little to its position. Thus, we cannot find a clear abuse of discretion in the lower court’s exclusion of this evidence.

Dean Witter argues next that the lower court erred in imposing punitive damages upon it. It is well settled that the decision of whether to award punitive damages and the amount to be awarded are within the discretion of the fact finder, in this case the trial judge. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983).

Pennsylvania has adopted section 908 of the Restatement (Second) of Torts and the comments thereunder regarding the imposition of punitive damages. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985); Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 480 A.2d 1101 (1984). Punitive damages are defined by section 908(1) as damages other than compensatory or nominal, awarded against a person to punish him for outrageous conduct and to deter him and others like him from similar conduct in the future. Section 908(2) provides that:

Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Thus, punitive damage are proper when the act “imports insult or outrage, and is committed with a view to oppress or is done in contempt of plaintiffs’ rights____ Punitive damages may be given when the act is done with reckless indifference, as well as, bad motive.” Delahanty v. First Pennsylvania Bank, N.A., supra, 318 Pa.Super. at 129-30, 464 A.2d at 1263. Punitive damages must be based on conduct which is malicious, wanton, reckless, willful, or oppressive. Feld v. Merriam, supra; Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). The imposition of damages to punish a civil defendant is appropriate only where the conduct complained of is especially egregious. Martin v. Johns-Manville Corp., supra. We must look to the act itself, together with the circumstances, including the motive of the wrongdoers and the relations between the parties. Id. “The state of mind of the actor is vital. The act, or the failure to act, must be intentional, reckless or malicious.” Feld v. Merriam, supra, 506 Pa. at 396, 485 A.2d at 748.

After a careful reading of the testimony, we are not convinced that punitive damages were imposed upon Dean Witter solely on the basis of Jack Leslie’s churning actions. There is evidence that other persons or departments within the organization were not completely free from blame in this incident. Even if we assume arguendo, however, that Dean Witter was held liable to the Genteels for punitive damages solely on the basis of vicarious liability of its agent, this is entirely consistent with Pennsylvania law as it now stands. Back in 1886, our supreme court held that a corporation is liable for punitive damages for the act of its servant. Lake Shore & Michigan Southern Ry. Co. v. Rosenzweig, 113 Pa. 519, 6 A. 545 (1886). This rule was reiterated by the supreme court in Philadelphia Traction Co. v. Orbann, 119 Pa. 87, 12 A. 826 (1888) and Funk v. Kerbaugh, 222 Pa. 18, 70 A. 953 (1908), and by our court in Gerlach v. Pittsburgh Ry. Co., 94 Pa.Super. 121 (1928), Hannigan v. S. Klein’s Department Store, 1 Pa. D & C 3d 339 (1976), affd per curiam, 244 Pa.Super. 597, 371 A.2d 872 (1976), and most recently in Delahanty v. First Pennsylvania Bank, N.A., supra.

Although we have adopted section 908 of the Restatement (Second) of Torts, we have not adopted the standard of section 909 of the same Restatement, which limits an employer’s liability for punitive damages imposed for the torts of his employee. Id. Dean Witter argues that the trend is clearly away from the traditional, less restrictive rule in favor of section 909, and cites for us a number of states which have adopted by caselaw or statute section 909. While we concur with the supreme court’s admonition that the rule allowing punitive damages on the basis of vicarious liability be applied with great caution, see Philadelphia Traction Co. v. Orbann, supra and Funk v. Kerbaugh, supra, we are not convinced that this is the right time or court to abandon the traditional rule. Therefore, we decline Dean Witter’s invitation to adopt section 909.

Applying the traditional rule to the instant case, we cannot say that the lower court abused its discretion in awarding punitive damages against Dean Witter. The record clearly supports the court’s finding that the injury inflicted upon the Genteels was a result of its broker’s activities which, at best, reflected a reckless indifference to the investment objectives of the Genteels. Since a reckless indifference to the rights of others and conscious action in deliberate disregard of them may provide the necessary state of mind to justify punitive damages, we find no abuse of discretion herein.

Finally, Dean Witter argues that the court erred in awarding both prejudgment interest and Rule 238 delay damages. We agree with this contention. While Pa.R.C.P. No. 238 does not specifically label its delay damages “prejudgment interest” as such, it has been deemed a juridical rule of prejudgment interest. Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981), appeal dismissed sub nom, Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982); Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984). The language of subsection (g) of the rule lends support to this interpretation:

(g) This rule shall not apply to
(1) ...
(2) pending actions in which damages for delay are allowable in the absence of this rule.

Subsection (g) is a pending action clause. The comments to Rule 238, 8 Pa.Bull. 2669 (1978), explain its purpose:

[The rule will not] apply to any pending actions for damages to property in which damages for delay are already allowable under prior decisions of the Court, e.g. Marrazzo v. Scranton Nehi Bottling Co., Inc., 438 Pa. 72, 263 A.2d 336 (1970), in which compensation for delay may be allowed in trespass actions for destruction or involuntary conversion of property where the compensation can be measured by market value or other definite standards. These pending cases will be disposed of under the standards set forth in Marrazzo, supra. However, all new actions of the Marrazzo character commenced after the effective date of proposed Rule 238 will be governed by the provisions of the rule.

It was the obvious intention of the committee in promulgating Rule 238, to foreclose the awarding of Marrazzo type prejudgment interest, and after April 15, 1979, the Rule’s effective date, to treat all claims for delay damages in tort actions under a uniform standard. Our court recognized this in Robert Wooler Co. v. Fidelity Bank, 330 Pa.Super. 523, 479 A.2d 1027 (1984), in which we stated:

Pursuant to Pa.R.C.P. 238, which became effective April 15, 1979, a plaintiff who recovers a verdict for personal injury, death or property damage is entitled under certain enumerated circumstances to receive an additional award of interest at the rate of ten percent from the date of the complaint____ Delay damages have also been recovered in tort actions when considerations of justice and fair dealing have required it____ Double recovery, however, is not permitted. If there is a recovery of delay damages under Pa.R.C.P. 238, there can be no recovery under common law principles enumerated in Marrazzo v. Scranton Nehi Bottling Co., supra.

Id., 330 Pa.Superior Ct. at 538-39, 479 A.2d at 1034-35. See also, American Enka Co. v. Wicaco Machine Corp., 686 F.2d 1050 (3d Cir.1982) (under Pennsylvania law, there can be no duplication of common law damages for delay and damages awarded under Rule 238).

Because the lower court erred in awarding the Genteels both prejudgment interest of $23,778.08 (12% from the date their answer, new matter, and counterclaim was filed), and Rule 238 damages of $15,272.75 (10% per year from the date one year after the accrual of the cause of action), we must vacate the award for prejudgment interest.

We vacate the award of prejudgment interest; in all other aspects, the orders are affirmed.

      . Even if we were to find that the use of Mr. Genteel’s notes to refresh his memory during his direct testimony was improper, the admission of such evidence was harmless. The witness had already testified generally as to the events of April 28, 1980 before he reviewed his notes. After he reviewed his notes, he was able to add only a few details to what he had already testified. Thus, the testimony given by Mr. Genteel after reviewing his notes was basically testimony corroborating his prior testimony about the April 28 transactions.

      . In addition, Dean Witter failed to make an offer of proof of what it hoped to elicit from the questions excluded by the court. While we can assume that Dean Witter was attempting to elicit that the supervisor had never received any customer complaints concerning Mr. Leslie, there is absolutely no mention of that on the record. It is long-established that where an objection to a question asked of a witness is sustained, it is essential to put in the record an offer of proof of the relevant facts desired to be proved by the refused testimony, so that the reviewing court can consider the relevancy of the evidence and whether the refusal to receive it was harmful. Cockcroft v. Metropolitan Life Ins. Co., 133 Pa.Super. 598, 3 A.2d 184 (1938). See Commonwealth v. Peterson, 271 Pa.Super. 92, 412 A.2d 590 (1979).

      . Federal courts applying Pennsylvania law have also considered whether an employer can be held liable for punitive damages for his employee’s act. In Skeels v. Universal C.I.T. Credit Corp., 335 F.2d 846 (3d Circ.1964) and Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir.1979), the courts answered yes. However, in Carpenter v. Dizio, 506 F.Supp. 1117 (E.D.Pa.1981), affd., 673 F.2d 1298 (3d Cir. 1982), the court apparently chose not to follow the traditional Pennsylvania rule.

      . Due to our vacation of the prejudgment interest award, we need not address the Genteel’s contention that the lower court erred in its calculation of the prejudgment interest award.


author: TAMILIA, Judge:

text:
    499 A.2d 644
    COMMONWEALTH of Pennsylvania v. Jeffrey Ray NORRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Oct. 11, 1985.

      Robert L. McQuaide, Gettysburg, for appellant.
    Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.
    Before TAMILI A, LIPEZ and BUCHER, JJ.

       The Honorable WILSON BUCHER, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   TAMILIA, Judge:

This is an appeal from the judgment of sentence entered pursuant to appellant’s conviction for robbery. Sentence imposed was five to fifteen years imprisonment under the provisions of 42 Pa.C.S.A. § 9712(a) requiring a mandatory five year sentence for crimes committed with a firearm.

Appellant’s first argument is that there was no probable cause for his arrest; thus the physical evidence seized by the police should have been suppressed. We disagree.

In Commonwealth v. Williams, 317 Pa.Super. 456, 464, 464 A.2d 411, 415 (1983), this Court stated:

The standard to be used in assessing whether there was probable cause for a given arrest was set forth by this court in Commonwealth v. Jones, 271 Pa.Super. 528, 532, 414 A.2d 379, 381 (1979):
Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the ... [crime]. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

Here, our review of the record discloses that appellant’s arrest was supported by probable cause. Appellant was in a car stopped initially for a summary motor vehicle violation and was arrested when the officer noticed that the occupants of the car matched descriptions of persons who had just robbed a pharmacy a short distance away. As the lower court concluded:

The furtive and suspicious nature of the occupants’ conduct coupled with the descriptions matching those of the robbery suspects gave the officer probable cause to believe the occupants had participated in the then recent robbery. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975).

(Slip Op. at 3). We, therefore, find that there was probable cause for the arrest and that the physical evidence (i.e., the stolen items) need not be suppressed as fruits of that arrest. Williams, supra. See Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982); Commonwealth v. Urbina, 290 Pa.Super. 117, 434 A.2d 157 (1981).

Appellant next argues that the application of the mandatory sentence provisions of 42 Pa.C.S.A. § 9712 are unconstitutional in the following respects:

1) the statute does not provide for proper notice of the offense charged and the requisite elements, which includes the visible possession of a firearm;
2) the statute places appellant in jeopardy of being deprived of his freedom for a minimum of five years yet the facts for determining that minimum are not to be determined by a jury, thus violating the Sixth Amendment right to a jury trial for crimes penalized by more than six months imprisonment;
3) the standard of proof applied (i.e., preponderance of the evidence) violates due process as visible possession of a firearm is an element of a crime and therefore requires proof “beyond a reasonable doubt”;
4) the statute is void for vagueness because of the notice deficiency;
5) the statute violates the separation of powers by usurpation of the judiciary’s function; and
6) the statute violates the Equal Protection Clause in that it differentiates between persons who use variant means to commit the same act.

Our Supreme Court has unanimously upheld the constitutionality of the mandatory sentencing provisions in the recent case of Commonwealth v. Wright et al., 508 Pa. 25, 494 A.2d 354 (1985; Opinion by Nix, C.J.) The central issue of Wright, which was a consolidation of five appeals, was whether proof of visible possession of a firearm by a preponderance of the evidence pursuant to section 9712(b) violates the Due Process Clause. The Wright Court concluded that visible possession of a firearm is not an element of the crime, noting that our Legislature “explicitly provided in section 9712(b) the ‘[provisions of this section shall not be an element of the crime. ... ’ 42 Pa.C.S.A. § 9712(b).” Wright, supra, 508 Pa. at —, 494 A.2d at 357. In addition, the Wright Court noted that there was no due process violation since section 9712 does not alter the degree of guilt of the crime to which it may be applied. Moreover, the Wright Court found that the application of section 9712 only comes into play once the defendant is convicted of one of the enumerated offenses. Since it is within the province of the legislature to determine the punishment imposable for criminal conduct, the Wright Court summarily rejected the argument that section 9712 violates the separation of powers principle by depriving the sentencing court of discretion, and also rejected the claim that section 9712 improperly delegates such legislative power to the executive branch, noting no distinction between such an exercise of discretion and the normal exercise of prosecutorial discretion.

Thus the Wright Court held that section 9712 relates solely to the sentencing proceeding and that a higher standard of proof was not necessary. Because the Wright Court has comprehensively analyzed and adequately disposed of appellant’s arguments one through five, we need not expound on them further. Appellant’s sixth argument focuses on a somewhat tenuous equal protection theory.

While the Wright Court was not faced with an equal protection challenge, we nevertheless find appellant’s equal protection argument to be meritless. Appellant claims that the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712 constitute a denial of equal protection since those defendants who use firearms are sentenced more harshly than all other defendants who commit the same crimes without using a firearm. In support of this argument, appellant relies solely on Commonwealth v. Bell, (No. 1401 August Term Phil.C.P.1982), which is currently before our Supreme Court, No. 29 1984, but as of yet remains unassigned. While the Bell court found the instant legislation unconstitutional, we find its holding to be contrary to the existing equal protection analysis adopted by the United States Supreme Court; thus, it is not dispositive of the case before us.

This Court previously noted in Commonwealth v. Webster, 462 Pa. 125, 130, 337 A.2d 914, 917 (1975), “the starting point of equal-protection analysis is a determination whether the State has created a classification for the unequal distribution of benefits or imposition of burdens.” (citations omitted) Moreover, “the Fourteenth Amendment does not deny to states the power to treat different classes of people in different ways.” Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 404 U.S. 71 (1971), and cases cited therein. In enacting 42 Pa.C.S.A. § 9712, our Legislature was concerned with curbing the proliferation of violent crimes resulting from the use of firearms. This is exemplified by the concurring opinion of Justice Larsen in Wright, supra, which provides a cogent synopsis of the legislation’s purpose: “to deter the dangerous and intimidating use of firearms by felons in the perpetration of crimes.” Wright, supra, 508 Pa. at —, 494 A.2d at 363. Because appellant does not belong to a “suspect class” (i.e., race or alienage), see Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), nor is a fundamental interest involved, see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), we need only apply the traditional “rational basis” standard to test this legislation. See Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). See generally, L. Tribe, American Constitutional Law, 991-1002 (1978). Doing so, we clearly find the instant legislation to be a reasonable means of achieving a legitimate legislative purpose, thus satisfying the “rational basis” test.

Accordingly, the judgment of sentence is affirmed.

      . We note that the jury found appellant guilty of several crimes but that he was sentenced only on robbery, a felony of the first degree. 18 Pa.C.S.A. § 3701(a)(i),(ii).

      . 42 Pa.C.S.A. § 9712 provides:
      § 9712. Sentences for offenses committed with firearms
      (a) Mandatory sentence. — Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i),(ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
      (b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
      (c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
      (d) Appeal by Commonwealth. — If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
      (e) Definition of a firearm. — As used in this section "firearm” means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

      . The Bell case was appealed simultaneously to both the Superior Court and Supreme Court, but since the Supreme Court decided to exercise its jurisdiction, this Court never issued a decision in Bell.


author: DEL SOLE, Judge: OLSZEWSKI, Judge,

text:
    499 A.2d 648
    Roseann DAWSON, Appellant, v. ZAYRE DEPARTMENT STORES.
    Superior Court of Pennsylvania.
    Argued June 18, 1985.
    Filed Oct. 18, 1985.

      Joseph J. Chester, Pittsburgh, for appellant.
    Edward D. Klym, Pittsburgh, for appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

Roseann Dawson appeals from an order granting appellee’s preliminary objections in the nature of a demurrer and dismissing the complaint.

In April 1983, Appellant entered Zayre’s Department Store intending to pick up a lay-away item. She became involved in a dispute with a store employee over the layaway ticket. During the argument, the employee called the Appellant a “nigger”. Appellant filed a complaint in trespass alleging that she suffered severe emotional distress as a result of this incident: wounded feelings; humiliation; physical harm; and that she cried and was unable to gain her composure for one-half hour. On June 12, 1984 the trial court granted Appellee’s preliminary objections in the nature of a demurrer. We affirm.

Appellant argues that the lower court erred in holding that her complaint failed to establish a cause of action. The lower court held that Appellee’s actions did not rise to the level of extreme and outrageous conduct required to sound in tort.

Liability for intentional infliction of emotional distress is limited to those cases in which the conduct complained of is extreme and outrageous. Jones v. Nissenbaum, Rudolph and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976). Further, it is for the court to determine, in the first instance, whether the defendant’s conduct can reasonably be regarded as so extreme and outrageous so as to permit recovery. Restatement (Second) of Torts, § 46, comment (h) (1965).

Conduct which does not meet the requisites for liability is described in comment (d) of the Restatement (Second) of Torts § 46:

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivilaties. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam.

We would find that the conduct outlined in Appellant’s Complaint does not possess the degree of severity that is necessary to establish a cause of action. Although we by no means condone the derogatory and offensive language used by Appellee’s employee, and while we understand Appellant’s rightful resentment, we believe that this conduct merely constitutes insulting namecalling from which no recovery may be had. The Restatement cites the following example:

4. A makes a telephone call but is unable to get his number. In the course of an altercation with the telephone operator, A calls her a God damned woman, a God damned liar, and say that if he were there he would break her God damned neck. B suffers severe emotional distress, broods over the incident, is unable to sleep, and is made ill. A’s conduct, although insulting, is not so outrageous or extreme as to make A liable to B.

Restatement (Second) of Torts, supra, § 46, comment (d) illustration 4. Similarly in this case, the Complaint alleges that a dispute arose with regard to a layaway ticket. In the course of the dispute Appellee’s employee called Appellant a “nigger”. Although this word is insulting and abusive, taken in this context it does not amount to the type of extreme and outrageous conduct which gives rise to a cause of action. Clearly the law cannot serve to redress all indignities. An Illinois court has held under similar circumstances that the plaintiff failed to state a cause of action for intentional infliction of emotional distress. In Irving v. J.L. Marsh, Inc., 46 Ill.App.3d 162, 4 Ill.Dec. 720, 360 N.E.2d 983 (1977) the plaintiff sought to return merchandise and to obtain a refund. An employee of the retail store wrote on the refund slip which he handed to the plaintiff: “arrogant nigger refused exchange/says he doesn’t like product”. The court found that the employee’s conduct was insufficient to support a valid cause of action. The dismissal of a count in a complaint which attempted to state a cause of action for intentional infliction of emotional distress was also affirmed in Lay v. Roux Laboratories, Inc., Fla.App., 379 So.2d 451 (1980). In that case, an employee of Roux Laboratories who was responsible for administering and policing parking spaces for the company’s employees called plaintiff a “nigger” when an argument arose concerning a parking space. The court held that the employee’s conduct did not reach such level of outrageousness and atrociousness as to serve as a predicate for the independent tort of intentional infliction of emotional distress. Likewise, the Court of Appeals in Bradshaw v. Swagerty, 1 Kan.App.2d 213, 563 P.2d 511 (1977), upheld a decision refusing to recognize a cause of action when during a heated argument over a debt collection the defendant called the plaintiff a “nigger”, a “bastard”, and a “knot-headed boy”. The court noted that the trial court was fully justified in regarding the epithets complained of as mere insults.

This is not a case involving continuous malicious actions. See: Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984). Nor, is this a case where there was a special relationship between the parties. See: Restatement (Second) of Torts, supra, § 48. Likewise the situation described herein is not one in which the actor knew of the other’s susceptibility to emotional distress, by reason of some physical or mental condition or peculiarity. See: Restatement (Second) of Torts, supra, § 46, comment (f); Zalnis v. Thoroughbred Datsun Car Co., — Colo.App. —, 645 P.2d 292 (1982). Rather, this case involves a party who during the course of a disagreement characterized another with an offensive term. The law does not invoke liability in a situation where, without other aggravating circumstances, one hurls an epithet at another during the course of a disagreement.

None of the cases cited by the dissent is based on a situation similar to the one found in the instant case. Although three of the cited cases involve a suit dealing with the offensive nature of spoken words, in each of those cases other aggravating circumstances accompanied the insults. No such aggravating circumstances were alleged by Appellant in her complaint.

In Alcorn v. Anbro Engineering, 2 Cal.3d 493, 86 Cal. Rptr. 88, 468 P.2d 216 (1970), the plaintiff alleged that defendants who where “standing in a position or relation of authority over plaintiff, aware of his particular susceptibility to emotional distress ... intentionally humiliated plaintiff, insulted his race, ignored his union status, and terminated his employment, all without just cause of provocation.” 86 Cal.Rptr. at 90, 91, 468 P.2d at 218, 219. The Supreme Court of California in Alcorn stated: “Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient to uphold his complaint as against defendant’s general demurrer.” 86 Cal.Rptr. at 97, 468 P.2d at 219 (emphasis added). Aggravated circumstances can also be found in the case of Ruiz v. Bertolotti, 37 Misc.2d 1067, 236 N.Y.S.2d 854 (1962). Therein, plaintiffs’ complaint asserted that defendant expressed his anger at “colored persons” moving into the neighborhood, and threatened bodily harm to the home builder, to plaintiffs, and to plaintiffs’ children if the sale of the house was consummated. Plaintiffs further alleged that fear of their personal safety and that of their children caused them to rescind the contract of sale. Similarly, in Fisher v. Carrousel Motor Hotel, Inc., (Tex.) 424 S.W.2d 627 (1963), the defendant’s loud and offensive words were accompanied by conduct which the court found to constitute a battery. The court specifically held that the “plaintiff was entitled to actual damages for mental suffering due to the willful battery”. 424 S.W.2d at 630.

The remaining cases cited by the dissent do not involve a situation where one party refers to another with an offensive term. These cases all deal with plaintiffs who were refused service or admittance in defendant’s establishments because of their race. These cases can be further distinguished based on their individual holdings. In Odom v. East Avenue Corp., 178 Misc. 363, 34 N.Y.S.2d 312 (1942) recovery was based on the defendant’s special duty as an innkeeper. See: Restatement (Second) Torts, supra § 48, comment (a). In Amos v. Prom Inc., 115 F.Supp. 127 (N.D.Iowa 1953); it was held that a jury would be permitted to award exemplary damages; however, the court therein specifically relied on defendant’s alleged illegal conduct in violating the Iowa Civil Rights Statute. Violation of the public accommodation statute, RWC 9.91.010(2), was alleged in Browning v. Slenderella Systems of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959). The Browning court held that the plaintiff had a cause of action under the public accommodation law to recover damages for injuries to her feelings, even though the statute was criminal in form. The court also found that the evidence failed to establish that plaintiff suffered severe emotional distress since defendant’s discriminatory conduct did not occur in the presence of others.

Unlike the above cited cases, the circumstances alleged here merely involve one party who during the course of a dispute speaks to another in an “opprobrious, insulting and abusive manner”. In this case, the speaker apparently lost her temper and resorted to namecalling. However unfortunate it may have been, conduct such as that engaged in by Appellee’s employee is not so extreme and outrageous as to give rise to a cause of action for intentional infliction of emotional distress.

Appellant also argues that the court below improperly dismissed her complaint under a theory of special liability of owners of public places, RESTATEMENT (SECOND) TORTS, § 48 (1965). We agree with the trial court that special liability under Section 48 has not been extended to conduct affecting an ordinary business invitee.

Accordingly, we conclude that the Appellee’s preliminary objections were properly sustained since Appellant failed to state a cause of action for intentional infliction of emotional distress.

Order affirmed.

OLSZEWSKI, J., dissents.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. In my opinion the majority has adopted an anachronistic position and I would allow this case to proceed to trial.

In considering preliminary objections in the nature of a demurrer, we must consider whether, on the facts averred, the law says with certainty that no recovery is possible. Bartanus v. Lis, 332 Pa.Super. 48, 52, 480 A.2d 1178, 1180 (1984) (per Rowley, J.) A demurrer admits all well-pleaded material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom. Id. A demurrer may be sustained only where a case is free from doubt. Id. Accepting as true all well-pleaded factual allegations in the instant complaint, it is sufficient to sustain an action for the intentional infliction of emotional distress.

An action for the intentional infliction of emotional distress has been recognized in Pennsylvania. See Papieves v. Lawrence, 437 Pa. 373, 263 A.2d 118 (1970); Bartanus v. Lis, 332 Pa.Super. 48, 480 A.2d 1178 (1984); Jones v. Nissenbaum, Rudolph, and Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976); see also Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985). In Papieves, our Supreme Court, relying in part on Section 46 of RESTATEMENT (SECOND) OF TORTS, held that an individual is entitled to protection from mental distress directly caused by wanton and outrageous conduct. 437 Pa. at 378, 263 A.2d at 121. Comment d to Section 46 explains:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

Other jurisdictions have allowed a cause of action to go forward in situations involving racial epithets. In Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970), the Supreme Court of California, en banc, permitted recovery for the intentional infliction of emotional distress against an employer whose superintendant directed racial slurs against a Black employee. The Court stated:

Although the slang epithet “nigger” may once have been in common usage, along with such other racial characterizations as “wop,” “chink,” “jap,” “bohunk,” or “shanty Irish,” the former expression has become particularly abusive and insulting in light of recent developments in the civil rights movement as it pertains to the American Negro.

88 Cal.Rptr. at 91, n. 4, 468 P.2d at 219, n. 4.

The majority would distinguish Alcorn on the basis that the plaintiff was accorded a protected status by virtue of his relationship as an employee of the defendant. Yet in the case sub judice, appellant was a business invitee of Zayre’s Department Store, owed a heightened standard of care by the store. Treadway v. Ebert Motor Co., 292 Pa.Super. 41, 436 A.2d 994 (1982) (business invitee may rely on duty of owner to keep premises safe and to warn of potential hidden perils).

In Papieves, our Supreme Court recognized that the intentional infliction of emotional distress is an evolving tort and its scope has not yet been clearly defined. However, the principles cited above compel the conclusion that if appellee did engage in the conduct described in appellant’s complaint, they could be held liable for emotional and mental distress suffered by appellant. This particular racial epithet is ripe with hundreds of years of meaning: its use in certain contexts is repugnant to contemporary social values. Simply put, it is an ugly reminder of man’s inhumanity to man.

Our Supreme Court wrote:

We recognize that any extension of legal liability to acts which cause emotional distress is not without its problems. We also recognize that the law cannot serve to guarantee all men’s peace of mind; as the late Judge MAGRUDER remarked, “Against a large part of the frictions and irritations and clashing of temperaments incident to participation in a community life, a certain toughening of the mental hide is a better protection than the law could ever be.” (Magruder, “Mental and Emotional Disturbance in the Law of Torts”, 49 Harv.L.R. 1033 (1936)).
But this case is not in that category. There can be little doubt that mental or emotional disorders brought on by conduct such as that set forth in the complaint at bar may be every bit as real, every bit as debilitating as ailments which have more obviously physical causes. For this reason, the obvious and inherent difficulties of the proof, or disproof, of emotional distress and the measurement of damages for such injury are not adequate cause, standing alone, to deny recovery ...
It goes without saying that in order to recover, a plaintiff asserting such a cause of action must be able to prove all the elements of his case by proper evidentiary standards.

The majority is incorrect in its statement that no other jurisdiction has recognized a cause of action for the intentional infliction of emotional distress in the context of racial slurs. See generally Amos v. Prom, Inc., 115 F.Supp. 127 (N.D.Iowa 1953) (black excluded from ballroom for racial reasons — cause of action for intentional infliction of emotion distress allowed to proceed); Fisher v. Carrousel Motor Hotel, Inc., (Tex.), 424 S.W.2d 627 (1963) (damages permitted for mental suffering); Ruiz v. Bertolotti, 37 Misc.2d 1067, 236 N.Y.S.2d 854 (1962) (threats against “colored people”- — damages for distress and emotional shock); Browning v. Slenderella Systems of Seattle, 54 Wash.2d 440, 341 P.2d 859 (1959) (damages for hurt feelings and embarrassment); Odom v. East Avenue Corp., 178 Misc. 363, 34 N.Y.S.2d 312 (1942) (mental suffering due to restaurant’s refusal to serve black patrons). Further, contrary to the majority’s opinion, Alcorn makes no suggestion that the court might not have allowed a cause of action to progress in a non-employer-employee context.

The development of the tort of the intentional infliction of emotional distress in Pennsylvania convinces me that appellant’s claim should proceed to trial by a jury of her peers. In a case similar to this, the Third Circuit, applying Pennsylvania law, allowed recovery for a party’s emotional distress upon an accusation of theft by a store security officer. Kahle v. Glosser Bros., Inc., 462 F.2d 815 (3d Cir.1972). Should not the jury in this case be permitted to consider whether being publicly called a “nigger” is equally outrageous conduct? Pennsylvania has long recognized humiliation as compensible harm. Connor v. Yellow Cab Co., 72 F.Supp. 442 (E.D.Pa.1947); Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194 (1984).

In short, I am unable to conclude that a jury would not find appellee’s conduct outrageous, atrocious and utterly intolerable in a civilized society. The case should be remanded for trial on the merits. See Denenberg v. American Family Corp., 566 F.Supp. 1242 (E.D.Pa.1983).

      . In regard to the susceptibility of blacks to severe emotional distress, see Colley, Civil Actions for Damages Arising Out of Violations of Civil Rights (1965-66) 17 Hast.LJ. 189, 201.


text:
    499 A.2d 657
    Michael RICCIO and Sandra Riccio, His Wife, Appellants, v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN.
    Superior Court of Pennsylvania.
    Argued June 5, 1985.
    Filed Oct. 4, 1985.

      Benjamin Kuby, Philadelphia, for appellants.
    James K. Brengle, Philadelphia, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   WICKERSHAM, Judge:

Michael and Sandra Riccio appeal from the order of the Court of Common Pleas of Philadelphia County granting appellee insurance company’s preliminary objections.

As a result of a one-car accident that occurred on June 29, 1984, Michael Riccio sustained serious injuries that rendered him a permanent quadriplegic. After the accident, Riccio was taken to Nazareth Hospital and within hours he was transferred to Thomas Jefferson Hospital in Philadelphia, the regional spinal cord injury center. He remained in Jefferson Hospital until November 29, 1984, when he was transferred to Magee Rehabilitation Hospital, where he was still confined at the time this appeal was filed. Mr. Riccio has been informed, however, that the present stage of his rehabilitation is nearing completion and that he must be transferred to a nursing home or to a wheel chair-accessible private residence.

At the time of the accident, Riccio was a passenger in a vehicle owned and operated by Scott L. Surbrook. The Surbrook vehicle was insured under a policy issued by appellee Northwestern National Insurance Company of Milwaukee, Wisconsin. In applying for insurance with Northwestern, Mr. Surbrook had chosen a no-fault option plan which provided that the primary source of recovery for benefits, which would otherwise be covered by the no-fault carrier, would be from Blue Cross/Blue Shield.

At the time of the accident neither Michael nor Sandra Riccio owned a motor vehicle or resided in a household in which there was a motor vehicle. Michael Riccio was not and is not covered by Mr. Surbrook’s Blue Cross/Blue Shield insurance coverage; neither was Mr. Riccio enrolled in a health insurance program at his place of employment. Mr. Riccio is, however, included as an insured under an HMO PA/NJ plan in which Sandra Riccio is enrolled at her place of employment.

While Northwestern National has paid and presumably continues to pay wage loss benefits to Mr. Riccio, it has steadfastly refused to make payments for Mr. Riccio’s medical, hospital, and rehabilitation costs, claiming that under its policy with Surbrook, it was only responsible for excess medical expense not paid by a primary health care provider. The HMO plan has paid Mr. Riccio’s medical expenses to the present time; however, it has advised Mr. Riccio and the authorities at Magee that, under its contract, it will not pay for any equipment or care facilities following his discharge from Magee.

On March 5, 1985, appellants filed a Praecipe for Summons which was served on appellee Northwestern National on March 12, 1985. Meanwhile, on March 11, 1985, appellants filed a Petition for Rule to Show Cause why no-fault benefits should not be paid by appellee. Appellee filed preliminary objections to the petition alleging that the petition failed to state a cause of action upon which relief could be granted under sections 404 and 405 of the Pennsylvania No-fault Motor Vehicle Insurance Act. More specifically, appellee objected to the use of a petition and rule to obtain no-fault benefits under sections 404 and 405. Appellee’s preliminary objections also averred that the items of expense requested in the petition were not recoverable under those sections of the No-fault Act. After argument, the trial court sustained appellee’s preliminary objections and certified the case to this court.

Appellants raise two issues for our consideration:

I. Did the Trial Court err in sustaining Preliminary Objections where the question as to the status of the [Appellee] as an “obligor” under the provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq., can be determined as a matter of law in a claim for benefits under Sections 404 and 405 of the Act?
II. Is a Petition and Rule for benefits under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.404-405 a proper procedure where suit has been instituted by a Summons only?

Brief for Appellants at 3.

In their first issue, appellants contend that, in a claim for future rehabilitation and occupational therapy costs under sections 404 and 405 of the No-fault Act, it is proper to institute the action against the alleged obligor by summons, followed by a petition and rule. Appellants further aver that the trial judge who hears the petition and rule has the authority to determine the identity of the obligor in that same proceeding. Appellee argues, however, that the sections of the No-fault Act with which we are concerned require that the identity of the obligor already be established prior to utilization of the petition and rule procedure to obtain benefits.

Sections 404 and 405 of the No-fault Act provide:

§ 404. Court order; obligor responsibility.
(a) Court order. — After a hearing upon application by any interested person and reasonable notice to all other interested persons, and upon findings supported by evidence, a court of competent jurisdiction may enter an order determining that an obligor of basic loss benefits applicable to an injury is responsible, subject to the limits and other terms and conditions of the coverage, for the cost of a specified procedure or treatment for rehabilitation to which the injured person has submitted or does thereafter submit.
(b) Findings. — The findings required to support such an order are:
(1) that the specified course of procedure or treatment, whether or not involving surgery, is recognized and acceptable medically or is acceptable nonmedical remedial Christian Science treatment and care;
(2) that it has contributed or will contribute substantially to rehabilitation; and
(3) that the cost of such procedure or treatment is reasonable in relation to its probable rehabilitative effects.
§ 405. Court order; rehabilitative training.
(a) Court order. — After a hearing upon application by any interested person and reasonable notice to all other interested persons, and upon findings supported by evidence, a court of competent jurisdiction may enter an order determining that an obligor of basic loss benefits applicable to an injury is responsible, subject to the limits and other terms and conditions of the coverage, for the cost of a specified course of rehabilitative occupational training that the injured person has taken or does thereafter take.
(b) Findings. — The findings required to support such an order are:
(1) that the specified course of occupational training is a recognized form of training and is reasonable and appropriate for the particular case;
(2) that it has contributed or will contribute substantially to rehabilitation; and
(3) that the cost of such training is reasonable in relation to its probable rehabilitative effects.

40 P.S. §§ 1009.404 — .405 (emphasis added).

A claim for basic loss benefits under the No-fault Act may not be commenced by petition and rule. Floczak v. Nationwide Mutual Insurance Co., 289 Pa.Super. 438, 433 A.2d 885 (1981). Thus, while it is clear that a plaintiff may apply for relief under sections 404 and 405 by petition and rule, he or she may do so only where such proceeding is ancillary to an already pending action. Dambacher v. Commercial Union Assurance Cos., 313 Pa.Super. 34, 459 A.2d 396 (1983). As this court stated in Floczak, supra:

When an “action” to recover no-fault benefits has been commenced, within the time limitations imposed by section 106, and it has been determined that there is an “obligor” of basic loss benefits,” then, “upon application,” and after hearing, a court may order payment of the cost of rehabilitation treatment, section 404, or of rehabilitation occupational therapy, section 405.

Id., 289 Pa.Superior Ct. at 444, 433 A.2d at 888 (emphasis in original).

Appellee contends, and the lower court agreed, that, pursuant to Dambacher, supra and Floczak, supra, an individual may petition for benefits under sections 404 and 405 only after (1) an action has been commenced, and (2) an obligor has been identified. Appellants agree that an action must have been commenced before they could petition for payment under sections 404 and 405. They assert that an action was commenced when they filed the Praecipe for Writ of Summons. For the purpose of addressing this issue, we will assume without deciding that appellants are correct, and that an action has been properly commenced pursuant to the dictates of Floczak and Dambacher.

The main issue in this appeal, therefore, is whether an obligor must be identified before an individual may proceed by petition and rule for benefits under sections 404 and 405, or rather whether the trial court may determine the obligor at the hearing on the petition and rule. We find that the identity of the obligor must be established prior to the institution of a petition and rule proceeding.

We believe that the most logical interpretation of sections 404 and 405 requires that an obligor already be determined prior to proceeding under those sections. For example, where an insurer has admitted its obligations to an injured party and has paid wage loss and medical benefits to him, that person may “apply” or “petition” for payment of the cost of rehabilitation treatment under section 404 or of rehabilitation occupational therapy under section 405. The only issue that arises from such a petition is whether the treatment or therapy undergone or contemplated by the petitioner is covered under the No-fault Act. Because of the narrow issue presented and the relative ease of determination, such petitions may be disposed of quickly and easily.

In cases such as the one at bar, however, a petition and rule proceeding is inappropriate since the obligor has not been established. Appellants contend that appellee is the obligor and must pay them for the medical expenditures and rehabilitative treatment and therapy incurred as a result of the motor vehicle accident. Appellee contests the fact that it is responsible for these costs. Thus, the petition in this case raises more than the issue of whether the claims therein are recoverable under the No-fault Act. We do not believe that the legislature intended the “application” procedure provided for in sections 404 and 405 to apply to cases such as the one at bar. These sections permit an existing litigant to apply to the court for extraordinary relief against a predetermined obligor for certain, well-defined rehabilitation treatment or therapy. They do not authorize the court to make a finding that a particular insurer is an obligor.

Our decision is supported by Floczak, supra. “Once a party is determined to be an obligor of basic loss benefits, the claimant may by ‘application’ seek payment of rehabilitative costs.” Floczak, supra, 289 Pa.Super. at 444, 433 A.2d at 888 (emphasis added). See also Dambacher, supra. Since it has not yet been determined that appellee is the obligor in the instant case, appellee’s preliminary objections were properly granted.

Appellants argue that by paying work loss benefits to Mr. Rieeio, appellee has admitted it is an obligor for all purposes under the No-fault Act. We disagree. While appellee has acknowledged that it is an obligor as to payment of work loss benefits, see Dambacher, supra, it has steadfastly refused to make payments for Mr. Riccio’s medical expenses. Furthermore, appellee also contests its responsibility to pay Mr. Riccio’s costs for rehabilitative treatment and therapy. Appellee’s refusal is based on the clause in Mr. Surbrook’s no-fault policy which provides that no-fault coverage is excess over amounts paid or payable by another insurance plan. Thus, appellee should be given an opportunity to present evidence and argument relative to whether or not it is the obligor for the basic loss benefits with which we are concerned.

We note that the dismissal of appellants’ petition does not necessarily deny them coverage or put them out of court. We have held only that appellants may not, at this point, proceed by petition and rule; rather, they must continue with a civil action against appellee. Appellants have already filed a summons; they need now only file a complaint requesting payment for expenses pursuant to the No-fault Act.

Thus we find that the trial court properly sustained appellee’s preliminary objections and dismissed appellants’ petition.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. §§ 1009.101-701.

      . Of course, as already indicated, the injured party may file such an “application” or "petition" only if an “action” has already been commenced.

      . Because of our disposition of this appeal, we need not address appellants’ second issue.


text:
    499 A.2d 661
    John K. BERRY, Sr., Administrator of the Estate of John K. Berry, Jr., Deceased and John K. Berry, Sr., in His Own Right, v. Cortland Orvel TITUS, Jr. and West Caln Township. Appeal of Mary C. BERRY.
    Superior Court of Pennsylvania.
    Argued June 4, 1985.
    Filed Oct. 4, 1985.

      Frank J. Marcone, Media, for appellant.
    M. Cherry Sharon, Media, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from the order of the Court of Common Pleas of Delaware County Orphan’s Court Division, dismissing appellant’s exceptions to an order that denied her proceeds from a distribution made pursuant to the Wrongful Death Statute, Act of July 9, 1976, P.L. 586, No. 142, Section 2, 42 Pa.C.S.A. § 8301. We reverse and order that appellant be awarded her proportional share of the proceeds pursuant to 20 Pa.C.S.A. § 2103.

Appellant, Mary Berry, is the mother of the decedent, John Berry, Jr., who was killed on June 29, 1980, when the motorcycle he was driving collided with a car. John Jr. was 15 years old at the time of his death. Appellee, John K. Berry, Sr. is the father of the decedent. At the time of John Jr.’s death, appellant and appellee had been divorced for sixteen months following 18 years of marriage. Appellant had left the marital home in the winter of 1978 and the parties divorced in February of 1979. The parties’ children, John Jr. and Jacqueline, remained in the marital home with appellee.

On March 31, 1981, appellee, as administrator of his son’s estate, commenced a wrongful death and survival action. The actions were settled for the amount of $80,000.00. The net recovery, after deduction of attorney’s fees and costs was $51,446.25. Of this net amount, $12,861.56 was apportioned to the survival action and $38,584.60 was apportioned to the wrongful death action. Appellee conceded that appellant shares in the portion allocated to the survival action. Appellee, however, contested any distribution of the proceeds from the wrongful death action to appellant, arguing that she had severed her ties with her son following her separation and divorce from appellee, and had suffered no pecuniary loss as a result of her son’s untimely death. Following a hearing, the lower court found as fact that only appellee supported John, Jr. following the separation and divorce, that appellant never requested visitation rights throughout the 16-month period between the divorce and her son’s death, and that appellant saw her son “only sporadically and not at all during the 6-month period immediately preceding her son’s death.” The court concluded as a matter of law that appellant abandoned her parental connection with the decedent and suffered no pecuniary loss as a result of his untimely death. Thus, the court concluded that appellant was not entitled to share in the wrongful death action proceeds.

In the Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985) we stated:

The findings of a judge of the orphans’ court division, sitting without a jury, must be accorded the same weight and effect as the verdict of a jury, and will not be reversed by an appellate court in the absence of an abuse of discretion or a lack of evidentiary support. In re Estate of Cornell, [336] Pa.Super. [594], [596], 486 A.2d 424, 425 (1984).
This rule is particularly applicable “to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.” Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). In reviewing the Orphans’ Court’s findings, our task is to ensure that the record is free from legal error and to determine if the Orphan’s Court’s findings are supported by competent and adequate evidence and are not predicated upon capricious disbelief of competent and credible evidence. In re: Estate of Damario, 488 Pa. 434, 412 A.2d 842 (1980). However, we are not limited when we review the legal conclusions that Orphans’ Court has derived from those facts. In re: Ischy Trust, 490 Pa. 71, 415 A.2d 37 (1980).
In re Estate of Dembiec, 321 Pa.Super. 515, 519-520, 468 A.2d 1107, 1110 (1983).

Appellant testified that during the first year of the separation, she saw John Jr. every other weekend, but that appellee stopped the children from seeing her after she began living with her boyfriend. She also testified that she also phoned him and sent him cards and that following the divorce in February of 1979 until the time of his death, she constantly attempted to phone him. Appellant also stated that she saw John Jr. once after the divorce, and also during the week before his untimely death, when she, appellee, and John Jr. went to the family’s campsite to celebrate John Jr.’s birthday. Appellant testified that she was aware of her son’s smoking and drinking habits, and expected, or at least hoped, that John Jr. would live in with her in the near future.

Appellee corroborated the fact that appellant and deceased went camping the week before the fatal accident, and was aware that John Jr. visited her at least once and that appellant had phoned John Jr. Appellee did not deny that appellant visited John Jr. and Jacqueline, although he claimed he had no actual knowledge of her visits. He did state that the children may have hidden their relationship with appellant from him. Appellee also stated that appellant contributed no financial support following the parties’ separation and divorce, though he acknowledged her contribution as a homemaker and part-time wage earner during the marriage. Moreover, he acknowledged that the marital home that had been purchased for $13,500.00 with an $11,-000.00 mortgage, had appreciated to $40,000.00 with over $30,000.00 in equity and that appellant transferred her marital interest in the home to appellee in exchange for $3,000.00 and six months of car payments. Appellant testified that she expected her share of the value of the home would be used by appellee to assist in their children’s support and maintenance. Appellee also testified that following the separation and to the time of John Jr.’s death appellant was despondent and had attempted suicide. He noted that appellant was beginning to recover sometime before John Jr.’s death.

The parties’ other child, Jacqueline, was called in rebuttal by appellee’s counsel. She testified that during the separation, appellant frequently visited the children at the parties’ campsite, but that following the divorce, appellant only phoned them at the marital home. She testified that during the separation, appellant taught her how to drive. She also stated that appellee objected to her visiting appellant when appellant moved in with her boyfriend. She also stated she had begun to see appellant before she herself had married and admitted seeing appellant frequently up to the time of the hearing of August 14, 1984.

The purpose of the Wrongful Death Act is “to compensate certain enumerated relatives of the deceased for the pecuniary loss occasioned to them through deprivation of the part of the earnings of the deceased which they would have received from him had he lived.” Manning v. Capelli, 270 Pa.Super. 207, 211, 411 A.2d 252, 254 (1979). “[OJnly those persons who stand in a family relation to the deceased are statutorily authorized to recover damages.” Id. A “family relation” is defined to require a showing of pecuniary loss by the relatives seeking damages as a result of the wrongful death of the decedent. Id., 270 Pa.Superior Ct. at 211, 411 A.2d at 255. A “family relation”

“ ‘... [ejxists between parent and child when a child receives from a parent services or maintenance or gifts with such reasonable frequency as to lead to an expectation of future enjoyment of these services, maintenance, or gifts. The term ‘family relation’ as thus used does not embrace its comprehensive definition, but is confined to certain phases of family relation between the persons named in the act. ... Before there can be any recovery in damages by one in that relation for the negligent death of another in the same relation, there must be a pecuniary loss.’ ” (Citation omitted).

Manning v. Capelli, supra 270 Pa.Super. at 211, 411 A.2d at 254 quoting Gaydos v. Domabyl, 301 Pa. 523, 529, 152 A. 549, 551-52 (1930).

In the instant case, the lower court’s finding that appellant provided no financial support is belied by the testimony of both appellant and appellee. Both acknowledged the value inurring to the benefit of the children because of appellant’s relinquishment of the majority of her share of the value of the marital home. The lower court’s finding that appellant never saw John Jr. during the six month period immediately proceeding John Jr.’s death is likewise belied by the record. The Berry family, including appellant, appellee and John Jr., went camping one week prior to the fatal accident. Though there is support in the record for the lower court’s finding that appellant never requested the court to make a visitation order, appellant, in point of fact, did visit her son following the separation. From these erroneous findings of fact, which findings are not predicated upon the credibility of the parties, the lower court concluded that no family relation was shown because appellant, in effect, abandoned John Jr. and suffered no pecuniary loss as a result of his untimely death. This conclusion is clearly erroneous.

The record demonstrates that appellant played an active role in raising John Jr. fourteen of his fifteen years while appellant and appellee lived as husband and wife. The lower court did not consider this. It is also unquestionable that appellant maintained her parental bond with the decedent following her separation from appellee. While indeed she was less involved in the day to day affairs of John Jr. following the marital discord, this, in part, as we glean from the record, was attributable to her own mental state and appellee’s own actions to dissuade the children from interacting with her. The family camping outing one week before John Jr.’s death indicates that a semblance of the family unit was being maintained. On the record before us, the evidence fails to establish what the lower court found to be akin to abandonment of the parental connection with the decedent, that is, a settled purpose to relinquish her parental claim or her failure to perform parental duties. Compare 23 Pa.C.S.A. § 2511(a)(1). We note that a finding of settled purpose to relinquish a parental claim in the context of a termination of parental rights proceeding, which we find instructive here, “requires an affirmative indication of a positive intent by the parent.” In Re Adoption of Wolfe, 454 Pa. 550, 556, 312 A.2d 793, 796 (1973). Evidence of inaction and lack of interest “for a period of at least six months” will not conclusively establish a settled purpose. See In Re Adoption of Wolfe, supra, and 23 Pa.C.S.A. § 2511(a)(1). Here, “settled purpose” is not demonstrated.

Most importantly, we cannot agree that appellant failed to establish pecuniary loss as a result of her son’s death. Though it is difficult to predict with reasonable certainty the expectation of future enjoyment by the parent of the efforts of a minor child had he lived to adulthood, a reasonable gauge for the court to follow is that parent’s contribution, financial and otherwise, to the development of the child while he was living. See and compare Manning v. Capelli, supra. While it is true that appellee maintained physical custody of the decedent and provided his basic economic needs on a day to day basis following the parties’ separation and divorce, appellant did contribute directly to the care and maintenance of the decedent the first fourteen years of his life. She also contributed to his maintenance by relinquishing the majority of her pecuniary interest in the marital abode for his benefit. On this record, we would conclude that appellant had an expectation of future enjoyment of her son’s efforts had he lived to adulthood, and she, unlike the emancipated child in Manning v. Capelli, supra, stands in a family relation to the decedent.

The Order of the lower court is reversed and appellant shall be awarded her proportional share of the wrongful death proceeds pursuant to 20 Pa.C.S.A. § 2103.

Jurisdiction is relinquished.

      . Appellant states in her brief that she and appellee were listed as parties entitled to recover damages for the wrongful death of her son in the wrongful death and survival actions commenced by appellee. The original papers filed in the lower court regarding the wrongful death and survival actions have not been duly certified in the record on appeal, and we may not consider a fact which is not part of the record in this case. See McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982); Pa.R.A.P. 1921.