author: CAVANAUGH, Judge:

text:
    452 A.2d 530
    Merle A. MARRYSHOW, Appellee, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1982.
    Filed Nov. 5, 1982.

      Edward H. Hoffner, Stroudsburg, for appellant.
    Ronald J. Mishkin, Stroudsburg, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The issue on appeal is whether Merle A. Marryshow, a full time college student at the time of her injury, is entitled to work loss benefits under Section 205(c) of the No-Fault Act, and if so, whether she is also entitled to interest on overdue payments of work loss benefits under Section 106 of the same Act. We agree with the lower court which held that the claimant was entitled to work loss benefits and awarded interest.

Merle A. Marryshow received serious personal injuries on September 9, 1978, when, as a pedestrian she was struck by a motor vehicle as she was crossing Route 611 in Swiftwater, Pennsylvania. At the time Merle was a full-time first year student at East Stroudsburg State College. She had just begun college after graduating from high school the previous spring. She had no history of gainful employment. Appellant, Nationwide Insurance Company, has paid costs of medical treatment to a appellant pursuant to a no-fault insurance policy issued to appellee’s mother, Merle P. Mar-ryshow, but has resisted payment of any work loss benefits on the basis that appellee was, and intended to continue being, a full-time college student and therefore suffered no loss of income. Suit was filed and after the case was at issue Marryshow filed a motion for summary judgment solely on the issue of entitlement to work loss benefits under the policy and applicable provisions of the Pennsylvania No-Fault Motor Vehicle Insurance Act. Judge Williams, on December 31, 1979, entered an Order to the effect that the appellant was generally responsible to appellee for work loss under the No-Fault Act, and that the obligation of the appellant to pay specific sums to appellee for work loss would be conditioned upon submission of reasonable proof of the fact and the amount of loss sustained for each monthly accrual period.

Thereafter, the case was listed for trial and the jury, by a verdict, dated October 21, 1980, awarded appellee work loss benefits for fifty-six (56) weeks at a weekly rate of One Hundred Twenty and 00/100 ($120.00) Dollars, for a total of Six Thousand Seven Hundred Twenty and 00/100 ($6,720.00) Dollars.

Appellant filed a timely post-trial Motion for Judgment N.O.V., and appellee filed a timely Motion to Mold the Verdict by adding interest in accordance with the No-Fault Motor Vehicle Insurance Act and reasonable attorney fees. The trial court denied appellant’s motion for judgment non obstante verdicto, denied appellee’s claim for attorney’s fees and permitted interest. This appeal followed.

Initially, appellant argues that work loss benefits were not intended to extend to appellee since at the time of the accident she was a non-employed person, not then in the job market and seeking employment. In the recently decided case of Freeze v. Donegal Mutual Insurance Co., 301 Pa.Super. 344, 447 A.2d 999, the court dealt with the argument that work loss benefits are not due the survivors of a deceased eleven year old for the reason, inter alia, that he had not worked. In' rejecting that argument the en banc majority of this court held that there was a right of recovery of work loss benefits even though the decedent was a minor who had never worked. The court stated:

Finally, although the “deceased victim” in the instant case is a minor child who had never worked, we see no difficulty in calculating his work loss.9 Section 205(c) sets out the method by which the work loss of one not employed at the time of the accident is to be calculated:

(c) Not employed.—The work loss of a victim who is not employed when the accident resulting in injury occurs shall be calculated by:
(1) determining his probable weekly income by dividing his probable annual income by fifty-two; and
(2) multiplying that quantity by the number of work weeks, or fraction thereof, if any, the victim would reasonably have been expected to realize income during the accrual period;

40 P.S. § 1009.205(c). Because the victim was never employed the “probable annual income” referred to in Section 205(c)(1) will be “the average annual gross income of a production or nonsupervisory worker in the private nonfarm economy in the state in which the victim is domiciled for the year in which the accident resulting in-injury occurs” as required by Section 205(d)(0) of the Act. 40 P.S. § 1009.205(d)(0).

447 A.2d at 1004-05 (footnote omitted).

Other cases dealing with claims for work loss benefits where there is a negative history at the time of the accident have also reached the conclusion that this factor does not in itself negate eligibility for benefits under Section 205. See Callahan v. State Automobile Mutual Insurance Co. of Ohio, 18 D & C 3rd 190 (1981); Reynolds v. Nationwide Mutual Insurance Co., 303 Pa.Super. 31, 449 A.2d 62 (1982); and cf. Erie Insurance Co. v. Roule, 279 Pa.Super. 40, 420 A.2d 733 (1980); Dorsey v. Harleysville Mutual Insurance Co., 285 Pa.Super. 124, 426 A.2d 1173 (1981). We conclude that an absence of employment history is not per se, a basis for precluding the right to work loss benefits under Section 205(c).

The court charged the jury in accordance with § 205(d)(0), using the average annual income of a production or nonsupervisory worker in the private or nonfarm economy for Pennsylvania for the applicable year, which was $255.00 per week, and instructed them to determine the number of weeks that the claimant would have reasonably expected to realize income during the accrual period (40 P.S. § 1009.205(c)(2)). The jury found a work loss of fifty-six weeks “prorated” at $120.00 weekly for a total of $6,720.00.

The appellee as the verdict winner is entitled to have the evidence considered in a light most favorable to herself. Eddystone Fire Co. No. 1 v. Continental Insurance Companies, 284 Pa.Super. 260, 425 A.2d 803 (1981). So considered, the verdict is clearly supported by the evidence. Appellee suffered a fracture of the left humerus, fracture of the left femur, fracture of the right tibia and fracture of the anteri- or portion of the pelvis. She suffered a residual deformity of the knee, necessitating surgical intervention in the form of an osteotomy which was performed in December 1979, fifteen months after the accident. Appellee testified that a year after the accident she decided not to go back to college, that she unsuccessfully sought work in the summer of 1980 when she felt capable of performing work short of hard manual employment. Her physician’s testimony fully supported the jury’s determination as to the period of time that appellee’s disability affected her reasonable expectations to realize income.

We agree with the lower court’s determination that interest in the amount of 18% be added to the sum due, effective November 21, 1980, which was thirty days after the verdict; the trial being the first time claimant could be said to have submitted reasonable proof of the fact and amount of the work loss. 40 P.S. § 1009.106(a)(2).

The argument of Marryshow of entitlement to attorney’s fees was abandoned at oral argument in this case.

Judgment affirmed.

      . Interestingly, the court in reaching this conclusion relied on and quoted from the opinion written by Judge Arlington Williams on the motion for summary judgment in the present case. See Marryshaw [Maryshow] v. Nationwide Mutual Insurance Co., 13 D & C 3d 172 (1979).


source: Caselaw Access Project

author: CAVANAUGH, Judge: ROWLEY, Judge,

license: Public Domain

text:
    452 A.2d 532
    In re ESTATE OF Pierino DiPIETRO. Appeal of Anthony DiPIETRO, Proponent of the Will of Pierino DiPietro.
    Superior Court of Pennsylvania.
    Argued June 7, 1982.
    Filed Nov. 5, 1982.
    Petition for Allowance of Appeal Denied Jan. 20, 1983.

      John T. Salvucci, Media, for appellant.

      Donald W. Lehrkinder, Media, for participating party.
    Before CAVANAUGH, ROWLEY and WATKINS, JJ.
   CAVANAUGH, Judge:

In this will contest, an extensive hearing was held before the Register of Wills, Anthony J. Semeraro, now a Judge of the Court of Common Pleas of Delaware County. The register found in favor of the proponent of the will, the appellant herein, and directed that the will be admitted to probate. The contestants appealed to the Orphans’ Court Division of the Court of Common Pleas and agreed that the case would be decided on the basis of the testimony before the register and the testimony of one witness before President Judge Catania, Pauline Capriotti, a daughter of the decedent, and one of the contestants. Judge Catania sustained the appeal on the basis that the contestants had established undue influence.

Our review in a will contest is limited to determining whether the findings of fact approved by the court en banc are based on legally competent and sufficient evidence and whether an error of law has been made or an abuse of discretion committed. Ziel Estate, 467 Pa. 531, 359 A.2d 728 (1976), Katkowski Estate, 485 Pa. 378 (1979). In this case the court below made no findings of fact. Judge Catania himself dismissed the exceptions to his order sustaining the appeal. Further, our case is complicated by the rule that “credibility of the witnesses is for the hearing judge who has heard and seen them and the record will be reviewed in the light most favorable to the appellee”. (Emphasis added). Ziel Estate, supra, 467 Pa. 537, 359 A.2d at 731. In our case the register of wills heard most of the testimony and he found in favor of the appellant.

The testator, Pierino DiPietro, who died on February 23, 1979, at the age of 83, executed the will in question in March, 1974. He was survived by five children. Under his will he bequeathed one thousand dollars to his daughter, Pauline Capriotti, and left his entire residuary estate to his son, Anthony DiPietro, who was named executor of his will. Testator’s will was prepared by Richard Prevail, Esquire, who died prior to the proceedings before the register of wills.

The sole question before this court is whether there was sufficient evidence to establish undue influence by the appellant that resulted in the testator leaving the bulk of his estate to the appellant. Our Supreme Court recently considered the meaning of undue influence in Ziel Estate, supra, and stated at 467 Pa. 540, 541, 359 A.2d 728 (1978):

“The word ‘influence’ does not refer to any and every line of conduct capable of disposing in one’s favor a fully and self-directing mind, but to control acquired over another that virtually destroys his free agency. ... In order to constitute undue influence sufficient to void a will, there must be imprisonment of the body or mind . .. fraud, or threats, or misrepresentations, or circumvention, or inordinate flattery or physical or moral coercion, to such a degree as to prejudice the mind of the testator, to destroy his free agency and to operate as a present restraint upon him in the making of a will.” Williams v. McCarroll, supra, 374 Pa. [281] at 295-296, 97 A.2d [14] at 20 quoting from Phillips Estate, 244 Pa. 35, 43, 90 A. 457, 460 (1914).

To show undue influence: “[T]he contestant must establish by clear and convincing evidence that 1) when the will was executed the testator was of weakened intellect, and 2) that a person in a confidential relationship with the testator 3) receives a substantial benefit under the will.” Fickert Estate, 461 Pa. 653, 657, 337 A.2d 592, 594 (1975). (Emphasis added). There is no question that the third requirement was met as appellant was the sole beneficiary of the testator’s residuary estate. We are also satisfied that there was sufficient evidence to carry the burden of demonstrating that testator was of weakened intellect when he made his will. He was of advanced years and medical testimony established that he had been diagnosed as suffering from organic brain syndrome in February 1973, when he had been confined to the hospital. Testator’s own physician, Dr. Patterson, a family practitioner, who first saw the testator in May, 1976, was of the opinion that he had average intelligence for a man of his age. Nevertheless, there was sufficient evidence to sustain the determination that the testator had impaired intelligence when he made his will.

The keystone that is missing is sufficient evidence to establish a confidential relationship between the testator and his son, the appellant. Judge Catania in his opinion bases the existence of the confidential relationship on the fact that the appellant had been in business with his father at one time and had countersigned checks for him. It appears that testator’s other children had also at one time or another assisted their father in his business. With respect to countersigning checks, the appellant testified as on cross-examination as follows:

Q. You said that you have endorsed your father’s name to checks for him and that you filled out deposit slips and withdrawal slips.
A. Well, let me undestand. When you say endorsed, now, exactly what do you mean by endorsed?
Q. Well, sign his name and place the money in his account?
A. I didn’t sign his name. He signed his own name every time and then I just countersigned in order to be able to cash the check.
Q. What you are saying is, when he would endorse the check then, you would subsequently endorse the check? A. Right.
Q. And you would subsequently endorse it with your name?
A. Yes.
Q. Were there any times that you ever signed your father’s name?
A. No.
Q. You never signed your father’s name to anything?
A. No.

There is no indication whatsoever that the appellant took any advantage of his father by countersigning his father’s checks. The court below pointed out at page 7 of its opinion: “The court does not question the good intention of the proponent [appellant herein] on his father’s behalf.”

With respect to the testator’s making his will in 1974, the evidence established that the appellant took his father to the office of Richard Prevail, Esquire, because his father wanted to make a will. Appellant made no suggestions to his father concerning the will because: “he had his mind made up and he was going to do what he wanted to do.” During the first meeting between Mr. Prevail at his office and the testator, the appellant testified that he was present in case “Mr. Prevail ran into any difficulty understanding my father that I would help him clarify what my father said.” The testator was born in Italy and apparently spoke with an accent. However, the appellant did not participate in the discussion which the testator had with Mr. Prevail concerning the will. When testator returned to Mr. Prevail’s office to sign his will on a date subsequent to the original meeting, the appellant brought his father to the office but did not recall whether he was present at the actual signing of the will. Appellant did not witness his father’s will.

A confidential relationship for the purpose of establishing undue influence exists: “when the circumstances make it certain that the parties did not deal on equal terms, but on one side there is an overmastering influence, or, on the other, weakness, dependence or trust, justifiably reposed.” (Emphasis added). Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411, (1922). See also Clark Estate, 461 Pa. 52, 334 A.2d 628 (1975). In this case, the record does not establish a confidential relationship by clear and convincing evidence. All it does is establish that the testator wanted to make a will and was assisted in doing so by reputable counsel. The evidence introduced in the court below to establish undue influence is based primarily on the appellant’s testimony and falls far short of clear and convincing evidence and in fact does little to even suggest undue influence.

Order reversed and case remanded for further proceedings consistent with this opinion.

ROWLEY, J., files dissenting statement.

ROWLEY, Judge,

dissenting:

I respectfully dissent. In my judgment the record does not reveal that the trial court abused its discretion nor that it erred in applying the correct legal principles in this case. President Judge Catania discussed the evidence presented, clearly set forth the facts as he found them, and applied the applicable principles of law to those facts. It was his conclusion that clear and convincing evidence of a confidential relationship between decedent and the appellant had been presented, and that a prima facie case of undue influence had been established which was not adequately refuted by the appellant.

My review of the record persuades me that the evidence relied on by President Judge Catania in arriving at his conclusion was legally competent and sufficient. Consequently, under the limited scope of review granted this Court in In re Estate of Ziel, 467 Pa. 531, 359 A.2d 728 (1976), I would affirm the order of the trial court.

      . The court below stated at page 7 of its opinion: “Even without the opportunity to observe the demeanor of most of the witnesses in order to assess their credibility, the court believes that a case of ‘undue influence’ has been made out, and has not adequately been refuted.”

      . After sustaining the appeal from the register, Judge Catania issued Letters of Administration D.B.N.C.T.A. to Julia D’Agostino.

      . While generally there might always appear to be a confidential relationship between a son and his father, as far as the concept of undue influence is concerned the term “confidential relationship” has a limited meaning. As noted in Leedora v. Palmer, supra, 274 Pa. 26, 117 A. 412: “... care must be used not to confound acts springing from natural love and affection with confidential relations...”


author: ROWLEY, Judge:

text:
    452 A.2d 536
    COMMONWEALTH of Pennsylvania v. James P. HERBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1982.
    Filed Nov. 5, 1982.

      John Rogers Carroll, Philadelphia, for appellant.
    Michael Johnston, District Attorney, Mifflintown, for Commonwealth, appellee.
    Before WICKERSHAM, ROWLEY and WATKINS, JJ.
   ROWLEY, Judge:

The appellant, a practicing physician, entered pleas of guilty to ten (10) charges of unlawful distribution of controlled substances, as well as to two additional counts of conspiracy in connection with those deliveries. The deliveries were made in a five month period from November, 1978 to March, 1979. After having been sentenced to a total of five (5) to ten (10) years imprisonment, plus costs, restitution, and fine of $30,000.00, appellant presented a motion to withdraw his guilty plea and also for modification of sentence. The post-sentence motions were denied and appellant has filed this direct appeal.

Appellant argues first, that the guilty plea colloquy is defective and second, that the sentence imposed is excessive.

With respect to appellant’s challenge to his guilty plea, it must be emphasized that there is an important distinction between pre-sentencing attempts to withdraw a guilty plea and post-sentencing attempts. Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982). When considering a petition to withdraw a guilty plea after sentencing, it is well established that “a showing of prejudice on the order of manifest injustice” is required before withdrawal is properly justified. Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973). Post-sentencing attempts to withdraw a guilty plea must sustain this more substantial burden because of the recognition that a plea withdrawal can be used as a sentence testing device. Commonwealth v. Starr, 450 Pa. at 489, 301 A.2d at 594.

I.

Appellant’s first challenge to the validity of his plea is that the colloquy is defective because he was not specifically advised that a jury verdict would have to be unanimous in order to convict him. The Commonwealth and the trial court concede that that specific instruction was not given. Therefore, under the standard set out in Commonwealth v. Starr, supra, we must determine whether refusing to allow appellant to withdraw his plea on that basis would amount to a manifest injustice.

We have concluded that appellant has not demonstrated any such “manifest injustice”. During the colloquy, the trial court addressed numerous questions to the appellant concerning the selection and operation of the jury. Afterwards, appellant’s counsel himself stated that the colloquy was “quite extensive and covered everything”. Immediately pri- or to entering his plea, appellant had observed the jury trial of another criminal case in the same courtroom. Appellant was present in the courtroom for the entire charge to the jury, during which the necessity of a unanimous verdict was explained. Appellant is a forty-six year old physician who, by his own admission, is of “above average intelligence”. Additionally, the record shows that appellant was convicted, and sentenced, on drug related charges in Centre County prior to his sentence in the present case. In view of the above, it is inconceivable that appellant did not know of the requirement of a unanimous verdict. Indeed, he has never claimed that he had no such knowledge. He does not now contend that the plea was involuntary, but has charged only that because the word “unanimous” was not specifically mentioned by the trial court, the plea is invalid. We do not agree.

Appellant relies on Commonwealth v. Ward, 483 Pa. 53, 394 A.2d 535 (1978). In Ward, as in the present case, the trial court failed to inform the defendant of the requirement of a “unanimous” verdict. A majority of the Supreme Court held that such a colloquy failed to comply with the mandate of Pa.R.Crim.P. 319. However, to the extent that Ward laid down a per se rule requiring reversal in such a case, we believe that it has been overruled by Commonwealth v. Shaffer, supra, which held that the validity of a plea should be determined by the totality of the circumstances surrounding the entry of the plea. As Justice McDermott observed in his concurring opinion in the Shaffer case, “The guilty plea colloquy has become almost symbolic of the worship of technicality over substance, and is where not ridiculous, tragic.” Commonwealth v. Shaffer, 498 Pa. at 356, 446 A.2d at 598. As the Supreme Court stated in Shaffer, “blind adherence to a per se rule would not, in this case, comport with any notion of remedying a ‘manifest injustice’.” Com monwealth v. Shaffer, 498 Pa. at 349, 446 A.2d at 594. Viewing all of the circumstances of this case, we have concluded that the court’s failure to inform appellant of the requirement for a “unanimous” verdict did not constitute a manifest injustice and did not affect the validity of his plea.

II.

In his second challenge to the validity of his plea, appellant alleges that the court failed to define the offense of delivery of drugs. The information against appellant charged him with violations of 35 P.S. § 780-113(a)(14), which prohibits: “The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner or professional assistant under the practitioner’s direction and supervision unless done i) in good faith in the course of his professional practice; ii) within the scope of the patient relationship; iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.”

The trial court explained to appellant that in order to prove the charges, the Commonwealth would have to establish that he was a practitioner, that the act was outside the scope of his professional practice, that he intentionally delivered the drug to someone who was not a patient, and that that was not in accord with good medical practice. For each charge, the trial court explained the identity of the controlled substance involved and repeated the elements of the offense to the appellant, who indicated that he understood them. Contrary to appellant’s assertion, we find that the trial court adequately defined and explained the elements of the offenses charged.

Appellant argues that the court did not quote the exact language of the statute. This is merely a “semantic quibble” and is without merit. See Commonwealth v. Possinger, 264 Pa.Super. 332, 340 n. 4, 399 A.2d 1077, 1081 n. 4 (1979).

Appellant also argues that the court failed to define “practitioner” and “administer or deliver”. This argument is also without merit. These are commonly used terms with easily understood meanings, especially for a forty-six year old physician who had been practicing medicine for nineteen years. See Commonwealth v. Everett, 290 Pa.Super. 344, 434 A.2d 785 (1981).

III.

Appellant next alleges that his plea is invalid because the court failed to advise him of the statutory requirement that an information charging conspiracy must allege an overt act. A review of the record shows that the trial court correctly defined the offense of conspiracy and did inform appellant that the Commonwealth had to prove an overt act. The court then asked appellant whether he understood the elements of conspiracy and appellant replied that he did. This section of the colloquy clearly complied with Commonwealth v. Ingram, 455 Pa. 198, 316 A.2d 77 (1974).

It is true that the information in this case did not allege an overt act in the conspiracy counts. However, this was harmless error. Appellant was specifically charged with delivery of a controlled substance, cocaine, which was plainly an overt act in furtherance of the conspiracy charged. The fact that the Commonwealth erred by not specifically incorporating the prior count into the conspiracy counts was a technical defect which could be cured even after a verdict. Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979).

IV.

Appellant’s final challenge to his plea is that the court failed to require a statement of record of the factual basis for the plea. This allegation is not accurate. Officer Richard W. Husler gave testimony as to the facts behind the charges. This testimony spans six pages of transcript. It is true that part of this testimony consisted of Officer Husler reading a statement by Trooper Craig Wolfe, to whom most of the drugs were delivered. However, Trooper Wolfe was generally available to testify if the defense had made such a request. This testimony clearly established a record of the factual basis for the plea.

Appellant argues that the court should have inquired if he admitted and understood this recital of the evidence. We disagree. The appellant stated many times during the colloquy that he understood the charges and that his plea was knowing and voluntary. “And, while it may be more advisable for the court to elicit from the accused personally the factual basis for the guilty plea, the failure to follow this procedure is not sufficient to invalidate the plea, if during the plea proceedings the facts of the crime and the factual basis for the plea are placed on the record in the presence of the accused and the court.” Commonwealth v. Nelson, 455 Pa. 461, 464, 317 A.2d 228, 229 (1974).

V.

Appellant’s final argument on appeal is that, in view of the circumstances, the sentence he received is manifestly excessive. It is undisputed that the sentence in this case is within the statutory limits. Therefore, absent an abuse of discretion, the sentence will not be disturbed on appeal. Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981). The record in this case reveals that the trial judge considered both appellant’s character and the particular circumstances of the offenses. He was provided with a pre-sentence investigative report and a pre-sentence memorandum from appellant, as well as the testimony of various professional and non-professional individuals. His reasons for the sentence imposed were clearly and adequately stated on the record. Therefore, we conclude that the sentence was not manifestly excessive and that there was no abuse of discretion by the trial judge.

Judgment of sentence affirmed.

      . However, Count 11, alleging a conspiracy, did refer to Count 10, alleging the delivery of a substance containing cocaine.

      . There was evidence that at the time of the offenses, appellant was an alcoholic and drug addict and that since that time, he had made substantial progress towards rehabilitation.


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    452 A.2d 540
    Roger E. BUCHANAN, et al. v. CENTURY FEDERAL SAVINGS & LOAN ASSOCIATION, et al. Appeal of FEDERAL NATIONAL MORTGAGE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued April 13, 1982.
    Filed Nov. 5, 1982.

      Judith R. Cohn, Pittsburgh, for appellant.
    Michael Malakoff, Pittsburgh, for appellees.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This class action was brought in 1971 by a group of mortgage borrowers challenging the practice of numerous banks and lending institutions of requiring monthly payments of one-twelfth of annual taxes, assessments and fire and casualty insurance premiums, without compensating mortgagors for the use of their money. In 1971 and 1972, preliminary objections for failure to state a cause of action were filed by all defendants except the Federal National Mortgage Association, (FNMA), the sole appellant in this appeal. In 1973, the trial court sustained these preliminary objections and dismissed the case with respect to all defendants, including FNMA. In Buchanan v. Brentwood Federal Savings and Loan Association, 457 Pa. 135, 320 A.2d 117 (1974) (Buchanan I), the Supreme Court reversed, holding that the allegations of the complaint were sufficient to withstand preliminary objections and that plaintiffs should be permitted to prove facts sustaining their theories of express trust, constructive trust and implied contract. After remand, FNMA filed preliminary objections challenging plaintiffs’ standing and the propriety of a class action and demurring to the complaint on the grounds that, because FNMA is only an assignee of mortgages and makes no mortgage loans directly to borrowers, FNMA could not have entered into a trust relationship, a constructive trust relationship, or an implied contract with the plaintiffs. These preliminary objections were denied in 1975, and no appeal was taken from that order. On November 6, 1975, the trial court entered an order certifying a class and certain subclasses, approving the class litigation notice and establishing procedures for the future conduct of the case. The class in regard to FNMA consists of persons who obtained loans secured by mortgages on property in Allegheny County, having entered into form mortgage agreements prescribed and insured by the Federal Housing Administration and Veterans Administration, which were subsequently sold by the mortgagor lending institutions to FNMA. In December of 1975, plaintiffs concluded a settlement with all defendants except FNMA. However, the Court of Common Pleas refused to approve the settlement. In Buchanan v. Century Federal Savings & Loan Association, 259 Pa.Super. 37, 393 A.2d 704 (1978) (Buchanan II), this Court held that the lower court had erred, and that the parties’ settlement was fair, reasonable and in the best interest of the class.

In June, 1980, the named representatives of the class of plaintiffs asserting claims against FNMA, Roger and Dorothy Buchanan, filed a motion for partial summary judgment on the issue of liability against FNMA. Judge Silvestri granted appellees’ motion, finding that a trust relationship existed between plaintiff class members and FNMA and that FNMA violated its fiduciary duties by comingling and using the tax and insurance premium prepayments for its own benefit. Following the entry of partial summary judgment, Judge Silvestri ordered FNMA to capitalize the escrow payments received by FNMA from members of the class on FHA and VA mortgage loans owned by FNMA which originated between December 7, 1965 and August 10, 1970. This appeal followed. We reverse.

Appellees, the Buchanans, obtained the mortgage which is the basis of their claim against FNMA on May 20,1969 from the Abbott Mortgage Corporation, which subsequently became the Galbreath Mortgage Company. The note and mortgage were sold to FNMA on June 11, 1969. Galbreath remained as the servicer of the mortgage for FNMA, with the responsibility for collecting all monies due, keeping records and protecting all rights of the mortgagee. The following language exists in the form mortgage executed by appellees, and is representative of the language contained in other mortgages purchased by FNMA.

“That in order to more fully protect the security of this mortgage, the Mortgagor, together with, and in addition to, the monthly payments of principal and interest payable under the terms of the note secured hereby, covenants to pay the Mortgagee, ... the following sums:
(b) A sum . . . equal to . . . the premiums that will next become due and payable on policies of fire and other hazard insurance covering the premises secured hereby, plus taxes and assessments next due on the premises covered hereby (all as estimated by the Mortgagee) .. . such sums to be held by Mortgagee in trust to pay said . . . premiums, taxes and special assessments; and
(c) All payments mentioned in the two preceding subsections of this paragraph and all payments to be made under the note secured hereby shall be added together and the aggregate amount thereof shall be paid by the Mortgagor each month in a single payment to be applied by the Mortgagee to the following items in the order set forth:
(I) premium charges under the contract of insurance with the Secretary of Housing and Urban Development, or monthly charge (in lieu of mortgage insurance premium), as the case may be;
(ÍI) ground rents, taxes, special assessments, fire and other hazard insurance premiums;
(III) interest on the note secured hereby; and
(IV) amortization of the principal of said note.”

Appellant, FNMA, contends that because the mortgage agreement reflects a debtor-creditor relationship between mortgagor and mortgagee, and not a beneficiary-trustee relationship, the lower court erred in granting summary judgment against FNMA on the issue of liability. In Buchanan I, supra, the Supreme Court was deciding whether, admitting all the well-pleaded facts in the complaint and all inferences reasonably deducible from the facts, the complaint stated a cause of action. The Court noted that on remand, appellants (appellees herein) would have to prove all of the elements of a trust. The lower court quoted Thompson’s Will, 416 Pa. 249, 251-55, 206 A.2d 21, 25 (1965), in setting forth the elements necessary to create a trust; “sufficient words to create a definite subject, and a certain or ascertained object; and to these requisites may be added another, viz, that the terms of the trust should be sufficiently declared, but, as to these terms, ‘any words’ which indicate with sufficient certainty a purpose to create a trust will be effective in so doing.” Lower Court Opinion at 4. The lower court found that each of these requirements was met by the form mortgage agreement. The “definite subject” requirement is created by the language in the mortgage documents requiring monthly payments of portions of insurance premiums and taxes. The “ascertained object” of the trust is indicated by the mortgage documents as the satisfaction of the insurance and tax obligations of the mortgagors. Although the stated purpose of the monthly payments is to protect the security of the mortgage, the lower court found from the facts and circumstances that the words of the mortgage agreement “to be held ... in trust” strongly indicate that a trust was contemplated. The court below noted that the Supreme Court in Buchanan I had instructed that neither the presence or the absence of the word “trust” is determinative of an intention to create a trust, but felt that since the agreement provided for the transfer of property with directions to the transferee to deal with it for the benefit of another, an intent to create a trust was sufficiently manifested. The court felt that since liability to pay the insurance premiums and taxes remains on the mortgagor, the mortgagor retains the beneficial interest in the funds when they are held by FNMA.

Appellant has cited numerous cases from other jurisdictions which have not found trust relationships from mortgage agreements which raise the same issue as the agreement in this case. See Brooks v. The Valley National Bank, 113 Ariz. 169, 548 P.2d 1166 (1976); Petherbridge v. Prudential Savings and Loan Ass’n., 79 Cal.App.3d 509, 145 Cal.Rptr. 87 (1978); Marsh v. Home Fed. S & L Ass’n., 66 Cal.App.3d 674, 136 Cal.Rptr. 180 (1977); LaThrop v. Bell Federal Savings and Loan Association, 68 Ill.2d 375, 12 Ill.Dec. 565, 370 N.E.2d 188 (1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2818, 56 L.Ed.2d 768 (1978); Zelickman v. Bell Fed. S & L Ass’n., 13 Ill.App.3d 578, 301 N.E.2d 47 (1973); Yudkin v. Avery Fed. S & L Ass’n., 507 S.W.2d 689 (Ct.App.Ky.1974); First Fed. S & L Ass’n of Lincoln v. Board of Equalization of Lancaster County, 182 Neb. 25, 152 N.W.2d 8 (1967); Kronisch v. The Howard Savings Institution, 161 N.J.Super. 592, 392 A.2d 178 (1978); Surrey Strathmore Corp. v. Dollar Savings Bank of New York, 36 N.Y.2d 173, 366 N.Y.S.2d 107, 325 N.E.2d 527 (1975); Tierney v. Whitestone S & L Ass’n., 83 Misc.2d 855, 373 N.Y.S.2d 724 (1975); Cale v. American Nat’l Bank, 37 Ohio Misc. 56, 66 Ohio Opinions 2d 122 (1973); Richman v. Security S & L Ass’n., 57 Wis.2d 358, 204 N.W.2d 511 (1973). The lower court did not address these decisions, finding that the Pennsylvania Supreme Court in Buchanan I had established that a debtor-creditor relationship did not exist:

“FNMA cites cases from other jurisdictions to illustrate that the relationship involved here is not trustee and beneficiary but debtor and creditor. However, in Buchanan the Supreme Court found that the trial court was incorrect in stating that the relationship established between mortgagors and mortgagees was that of debtor and creditor. The indicia of such a relationship did not exist. The mortgage agreements do not speak of a debt in regard to the monthly payments in question. The Supreme Court recognized that liability for payment of taxes and insurances remained always on the mortgagors. Furthermore, the Supreme Court recognized that the absence of interest paid on the ‘escrow monies’ indicates that a trustee-beneficiary relationship and not a debtor-creditor relationship was contemplated, because the payment of interest has been held to denote the existence of the latter relationship. Buchanan, [457 Pa.] at 149, 150, n. 14 [320 A.2d 117] (citations omitted).” Trial Court Opinion at p. 7.

In further support of its holding that an express trust existed, the court below cited the Restatement (Second) of Trusts, § 12, Comments (g) and (i):

“Comment (i) states that ‘where a person deposits money with another as security for the faithful performance of obligations which he owes to the other, it depends upon the manifestation of intention of the parties whether the person receiving the money is a trustee with a security interest on the money or is a debtor. If it is understood that he is to keep the money for the other person and to return it to him when he has performed his obligations, he is a trustee of the money. If, on the other hand, it is understood that he may use the money as his own and pay the amount of it to the other when the latter has performed his obligations, he is a debtor.’ Comment (g) lists circumstances helpful in determining the intention of the parties in regard to whether a trust or debt is contemplated. Among these circumstances are:
the presence or absence of an agreement to pay interest on the amount paid; the amount of money paid; the time within which the payee will have to perform; the relative financial situation of the parties; the relation between the parties; and custom or usage. The following paragraph of the comment is devoted to the significance of the payment of interest on the money paid, and indicates the importance of parties’ [sic] agreement in this regard to the question of the type of relationship intended. The crucial factor of the absence of an agreement to pay interest on the monthly payments for insurance and taxes clearly demonstrates that the payee, FNMA or its servicers, is not paying for the right to use the money and is not entitled to use the money for its own purposes.” Trial Court Opinion at p. 7, 8.

Although the above-quoted language leads one to the logical conclusion that a trust relationship clearly exists, we find that the court below is mistaken in its reliance on Buchanan I and the Restatement (Second) of Trusts, § 12, Comments (g) and (i). In Buchanan I the Supreme Court held that the trial court was in error when, on the basis of defendant’s preliminary objections, the lower court had held that the mortgage created a debtor-creditor relationship as a matter of law. Buchanan I, supra, 457 Pa. at 149-150, 320 A.2d at 125-126. The Supreme Court did not hold that as a matter of law a trust was created by the documents in question. All that the Supreme Court held, as this court noted in Buchanan II, was that the plaintiffs were entitled to the opportunity to attempt to prove at trial that a trust, and not a debt, was created and that the terms of the trust entitled plaintiffs to be compensated for the defendants use of the escrow funds. Buchanan II, supra, 259 Pa.Super, at 51-52 and 52, n. 17, 393 A.2d at 711-712. In Buchanan I, the Supreme Court cited with approval Carpenter v. Suffolk Franklin Savings Bank, 362 Mass. 770, 291 N.E.2d 609 (1973) (Carpenter I), where the Supreme Judicial Court of Massachusetts held that a case similar to the instant case should not have been dismissed on the basis of preliminary objections because a cause of action in trust had been set forth. However, after a trial on the merits, it was found that neither an express nor constructive trust had been created. This decision was affirmed on appeal. Carpenter v. Suffolk Franklin Savings Bank, 370 Mass. 314, 346 N.E.2d 892 (1976) (Carpenter II). See Buchanan II, 259 Pa.Super. at 52 n. 17, 393 A.2d at 712 n. 17. Although Carpenter II is not controlling precedent in this jurisdiction, its result is illustrative of the point that Buchanan I does not mandate the finding of a trust relationship in the case sub judice.

In analyzing the Restatement (Second) of Trusts, § 12, the lower court failed to mention Comment (b) which is more nearly on point that Comments (g) or (i). The following two statements from Comment (b) are relevant to the instant case:

“ ‘If money is deposited in a bank for a special purpose, the bank is not a trustee or bailee of the money unless it is the clear understanding of the parties that the money is not to be used for its own purposes.’ (Emphasis added). ‘Where the deposit is in escrow, that is where the money is to be paid to a third person on the happening of a designated event and in the meantime the depositor has no right to withdraw the money, it depends upon the manifestation of the intention of the parties whether the bank may use as its own the money deposited or whether the money shall be held in trust. Such a deposit ordinarily indicates an intention that the bank may use the money as its own, the bank undertaking to pay the third person the amount of the deposit on the happening of the designated event. (Emphasis added).’ ” Buchanan II, 259 Pa.Super. at 51, 52, 393 A.2d at 711.

The lower court found the absence of an agreement to pay interest on the monthly payments, one of five factors listed in Comment (g), as the crucial factor that clearly demonstrates that FNMA is not entitled to use the money for its own purposes. Although the absence of an agreement to pay interest is a significant factor, we do not see such absence as clearly demonstrating a trust relationship. Other than the word “in trust,” the form mortgage agreement is silent as to whether or not FNMA or its servicers can use the fund. This Court stated in Buchanan II, “certainly at trial, oral or written evidence specifically negating the existence of a trust could be introduced against individual mortgagors or perhaps entire sub-classes.” Buchanan II, 259 Pa.Super. at 53, 393 A.2d at 712. The relationship between the parties and custom or usage in the trade concerning this type of arrangement are also factors listed in Comment (g), but were not considered by the court below.

Appellees’ contend that appellant has failed to raise any genuine issue of material fact. However, as the lower court correctly stated, “the burden of demonstrating that there is no genuine issue of material fact, in that a party is entitled to judgment as a matter of law, is on the moving party ....” Lower Court Opinion at 1, 2. Because Buchanan I does not preclude the finding of a debtor-creditor relationship, and because we hold that the absence of an agreement to pay interest does not necessarily mean that a trust relationship was intended, there remains as a genuine issue of material fact whether or not the parties intended to enter into a trust relationship. Accordingly, we reverse the orders of the lower court granting summary judgment and injunctive relief, and remand this case for trial. Jurisdiction is not retained by this Court.

JOHNSON, J., files a dissenting statement.

JOHNSON, Judge,

dissenting:

I most respectfully dissent. I would affirm the instant appeal on the opinion of Judge SILVESTRI below.


author: HOFFMAN, Judge:

text:
    452 A.2d 545
    June WIBLE, Appellant v. Grace APANOWICZ and U.S. Fleet Leasing, Inc.
    Superior Court of Pennsylvania.
    Argued May 10, 1982.
    Filed Nov. 5, 1982.

      Barry L. Gross, Philadelphia, for appellant.
    Dale Patrick Kennedy, Philadelphia, for appellees.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting appellee’s motion for summary judgment. Specifically, she alleges that the court improperly calculated the time available for reinstating a complaint, or that appellee was arguably estopped from asserting the statute of limitations because she had frustrated service by giving false addresses. Finding appellant’s contentions without merit, we affirm the lower court’s order.

On May 10, 1976, appellant was involved in an auto accident with appellee, Grace Apanowicz, who was driving a car leased by her employer from appellee U.S. Fleet Leasing. Ms. Apanowicz gave the police an incorrect address for herself and her employer’s address. On March 30, 1978, appellant filed a complaint in trespass against appellees at the addresses shown in the police report. The sheriff indicated by return of service on April 19,1978 that he could not serve process. On April 2, 1980, appellant, having discovered the correct addresses, filed a reinstated complaint, that was subsequently served upon appellees. Appellees asserted the statute of limitations in new matter and moved for summary judgment on grounds that appellant had reinstated the complaint two days beyond the two year statute of limitations period. The lower court granted summary judgment to Ms. Apanowicz, and this appeal followed.

Appellant contends first that the lower court incorrectly calculated the time available for reinstating the complaint. Appellant argues, alternatively, that the limitations period for reinstating a complaint should begin either thirty days following the filing of the complaint, or on an earlier day when the plaintiff knows, or should know, that the sheriff cannot serve process. We determine that, because the lower court properly began the limitations period for reinstatement when appellant filed the initial complaint with the prothonotary, it calculated the period correctly. In Pennsylvania, a party may commence an action, and toll the statute of limitations, by filing with the prothonotary any of three forms of process: a praecipe for writ of summons; a complaint; or an agreement for amicable action. Pa.R. Civ.P. 1007. See Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) (such filing ordinarily tolls the statute unless the filing party prevents its delivery to the adverse party). If the process cannot be served upon the adverse party within a period, measured from the time of the filing of the initial process, and not longer than the period of the statute of limitations for the underlying action, the process loses its efficacy and the filing party is again subject to the bar of the statute of limitations. Katz v. Greig, 234 Pa.Superior Ct. 126, 339 A.2d 115 (1975). The filing party may prevent such lapse of its process, however, by timely reinstating it through a renewed filing with the prothonotary, and each such reinstatement will remain effective for a period equal to that of the applicable statute of limitations. See, e.g., Nath v. St. Clair Memorial Hospital, 251 Pa.Superior Ct. 361, 380 A.2d 820 (1977) (process timely reinstated). Indeed, a party may reinstate a complaint or reissue a writ of summons “at any time or any number of times,” Pa.R.Civ.P. 1010, although a late reinstatement will be subject to the statute of limitations. The party who files initial process bears the burden of acting to ensure its continued efficacy. Katz v. Greig, supra. In applying these reinstatement rules, our courts have consistently considered irrelevant both the time the filing party became aware the sheriff could not serve process and the time the original cause of action arose. Rather, once a party files process with the prothonotary, the party has been allotted a fixed time equal to the statute of limitations to either file new process, or risk losing the action to the bar of the statute of limitations. Washington v. Papa, 253 Pa.Superior Ct. 293, 384 A.2d 1350 (1978) (one-year statute of limitations in wrongful death action; death on August 12, 1971; praecipe for writ of summons filed August 2, 1972; action barred because new complaint filed “more than one year later, on August 9, 1973”); Katz v. Greig, supra (two-year statute of limitations; injury on January 8,1970; praecipe for writ of summons filed November 6,1970; action subject to bar because new summons and complaint, filed January 5, 1973, were not filed “until after November 6, 1973”). Because appellant filed her original complaint on March 30, 1978, and did not file her reinstated complaint until April 2, 1980, two days outside the applicable two year statute of limitations, her action is subject to the bar of that statute, as the lower court properly concluded.

Appellant contends next, however, that appellee is precluded from obtaining summary judgment on the statute of limitations because Ms. Apanowicz’s failure to disclose proper addresses to the investigating police officer raises a triable issue of fact as to fraudulent concealment designed to frustrate service that would estop appellee from asserting the statute of limitations. This contention lacks merit. A defendant may indeed be estopped from asserting the statute of limitations if through fraud or concealment he causes the plaintiff to relax his or her vigilance or deviate from a right of inquiry. See, e.g., Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964); Courts v. Campbell, 245 Pa.Superior Ct. 326, 369 A.2d 425 (1976). Upon appropriate proof, this principle may also apply to estop a defendant from asserting the statute of limitations against reinstated process. See Mangino v. Lieber, 442 Pa. 594, 277 A.2d 823 (1971); Goodrich-Amram 2d § 1010(b):1 at 513 (1976). However, when a plaintiff seeks to assert the equitable doctrine of estoppel against a defendant’s motion for summary judgment on grounds that the plaintiff untimely reinstated process, the plaintiff must assert facts other than the defendant’s mere failure to provide a correct address. Mangino v. Lieber, supra, citing Pa.R.Civ.P. 1035(d) (opportunity to assert facts to oppose motion for summary judgment). “It is difficult to see what effect the sheriff’s inability to find anyone to serve with the complaint at the [defendant’s given] address . . . could have on appellant’s failure to reinstate the complaint within two years.” Id., 442 Pa. at 596, 277 A.2d at 824. Moreover, it is reasonable to expect that a plaintiff, if he knows the process could not be served at the given address, will employ some alternative means to effect service before the limitations period expires. See Pa.R.Civ.P. 2077, 2079 (alternative means to effect service). Appellant, however, rests her estoppel argument entirely upon Ms. Apanowicz’s failure to give correct addresses. The errors in question were minor: she gave her correct name and street, but reported her house number as 2626 rather than 2826; she correctly named U.S. Fleet Leasing as the car owner, but gave the address of her employer, who had leased the car from U.S. Fleet Leasing, then provided it to her as employee. Although appellant received prompt notice that the sheriff could not serve process, the record lacks any indication that appellant, at any time during the two years that the initial process remained valid, sought to have the sheriff again attempt service, or to check a phone book, city directory, or other public source such as license files to verify the addresses, or to avail herself of alternative means of service. Even viewing this record in the light most favorable to appellant, see Schacter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841 (1968), no question of fact exists as to whether appellees actions caused appellant to fail timely to reinstate her complaint. Appellees were thus entitled to obtain summary judgment, and we affirm the lower court’s order granting it.

Order affirmed.


text:
    452 A.2d 548
    COMMONWEALTH of Pennsylvania v. Donald M. LAUGHMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 11, 1982.
    Filed Nov. 5, 1982.

      Samuel K. Gates, York, for appellant.
    William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.
    Before CAVANAUGH, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in not declaring a mistrial when the victim testified over objection to unrelated prior criminal activity of appellant. We agree and, accordingly, reverse the judgment of sentence and grant a new trial.

On October 21, 1979, the victim received severe facial injuries in an altercation with appellant in the bathroom of a York County tavern. Appellant was subsequently found guilty of assault in a jury trial and following the denial of post-trial motions and the imposition of sentence, took this appeal.

Appellant contends that the lower court erred in refusing his motion for mistrial made after the following testimony:

[District Attorney]: Could you tell us how you were acquainted with [appellant]?
[Victim]: I ran into [appellant] at the Lucky Spot Restaurant, I guess about a year ago. I really don’t know the time anymore. I was in there with Barbara Wagaman, who is sitting back there, and we were eating breakfast. This was after we left the Tavern about 1:00 o’clock, 2:00 o’clock and [appellant] came in with two other guys. He sat down, and I don’t know what he was saying, I wasn’t listening to him because it was him and two other guys. He had spit in my food and I looked down at the food and he came leaping over the table and I jumped up and we both grabbed butcher knives and we both were arrested, and he was found guilty and they left me go.

(N.T. January 22, 1980 at 7-8). Appellant immediately objected and moved for a mistrial. The Commonwealth informed the court that the testimony had been inadvertent and that the victim had in fact been told not to mention the prior record. The lower court instructed the jury to disregard the statement but refused to grant the motion for mistrial.

The decision whether to grant a mistrial is within the sound discretion of the lower court and will not be reversed absent an abuse thereof. Commonwealth v. Seigrist, 253 Pa.Superior Ct. 411, 418, 385 A.2d 405, 408 (1978). “It is a principle of long standing in this Commonwealth that evidence of a distinct crime, except, under special circumstances, is inadmissible against a defendant who is being tried for another crime, because the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.” Commonwealth v. Morris, 493 Pa. 164, 174-175, 425 A.2d 715, 720 (1981). Passing references to criminal activity will not necessarily require reversal unless the record illustrates that prejudice results. “Prejudice results where the testimony conveys to the jury, either expressly or by reasonable implication, the fact of a prior criminal offense.” Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979). See Commonwealth v. Washington, 488 Pa. 133, 138, 411 A.2d 490, 492 (1979). The infusion of such evidence into trial effectively strips a defendant of his presumption of innocence. Commonwealth v. Spruill, 480 Pa. 601, 604-05, 391 A.2d 1048, 1049-1050 (1978); Commonwealth v. Brown, 280 Pa.Superior Ct. 303, 307, 421 A.2d 734, 736 (1980). “Evidence of prior criminal activity ... is probably only equalled by a confession in its prejudicial impact upon a jury.” Commonwealth v. Spruill, supra 480 Pa. at 604-05, 391 A.2d at 1049-1050. Although curative instructions may suffice to remove the taint of certain unintentional and innocuous references, see Commonwealth v. Williams, 470 Pa. 172, 178, 368 A.2d 249, 252 (1977), a “specific reference to prior unrelated criminal conduct which would be so offensive and prejudicial as to mandate a mistrial,” cannot be so cured. Id., 470 Pa. at 179 n. 4, 368 A.2d at 252 n. 4. See Commonwealth v. Fortune, 464 Pa. 367, 374, 346 A.2d 783, 787 (1975); Commonwealth v. Durant, 268 Pa.Superior Ct. 191, 194, 407 A.2d 1311, 1312 (1979). Although the presently disputed testimony was inadmissible, the lower court refused the mistrial motion because the statement “was brought into the testimony during cross-examination by the defense, was not pursued by the Commonwealth and was later referred to by [appellant] in his testimony, [and thus] the Court’s cautionary instructions were sufficient.” Lower Court Op. at 3. Contrary to the lower court’s findings, however, the testimony was elicited by the Commonwealth on direct.. Although the Commonwealth did not pursue this line of inquiry, the single instance unnecessarily conveyed to the jury the express fact of a prior criminal offense and thus mandated a mistrial. See Commonwealth v. Nichols, supra. The prejudice aroused by such a specific reference to appellant’s prior unrelated criminal activity precluded the effectiveness of any curative instructions. Commonwealth v. Williams, supra; Commonwealth v. Fortune, supra. Finally, appellant’s subsequent testimony about his prior conviction was necessitated by the lower court’s error in not granting the mistrial. Appellant was forced to minimize the impact of the prejudicial comment upon the jury and chose to do so by testifying to explain the circumstances of his crime. We shall not penalize appellant for strategies designed to overcome the error of the lower court.

Accordingly, because we find the prejudice caused by the victim’s reference to appellant’s prior unrelated criminal activity incapable of being remedied by curative instructions, we reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed and new trial granted.

      . Evidence of prior crimes may be used to show (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the other; or to establish the identity of the person charged with the commission of the crime on trial. Commonwealth v. Morris, supra, 493 Pa. at 174-175, 425 A.2d at 720. The Commonwealth has not alleged, nor do we find, any of the limited exceptions applicable.

      . Moreover, the lower court’s purportedly curative instruction did nothing to lessen the damage of the improper reference. The court instructed that “I don’t know what he’s talking about, and I expect you don’t know what he’s talking about, and therefor you should disregard what he said with regard to the fact that [appellant] was found guilty of something over which neither you nor I know what he’s talking about.” (N.T. January 22, 1980 at 9). The lower court did not instruct the jury that the victim’s allegations were wholly irrelevant to the present case. Rather, it instructed the jury to disregard the comments because they did not have enough facts to adequately assess the incident, despite their having been told that appellant had attacked the victim with a knife and was subsequently convicted. The jurors were not only capable of “reasonably inferring” that appellant was involved in some prior criminal activity, see Commonwealth v. Washington, supra, but they were also told the specific circumstances of the crime. To hold that they were unable to discern appellant’s prior criminal activity presupposes a naivete we are unable to accept.

      . Because of our disposition of this matter, we need not address appellant’s remaining contentions.


text:
    452 A.2d 550
    COMMONWEALTH of Pennsylvania v. Dennis Lee SHEFFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 12, 1982.
    Filed Nov. 5, 1982.

      Robert Thomas Panowicz, Wilkes-Barre, for appellant.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CIRILLO, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that his guilty plea counsel was ineffective. The present record, however, is insufficient to permit a determination of the merits of appellant’s contentions and therefore, we must remand the matter for an evidentiary hearing.

On September 14, 1981, appellant entered counselled guilty pleas to rape, kidnapping, involuntary deviate sexual intercourse, statutory rape, aggravated assault, recklessly endangering another person, unlawful restraint, false imprisonment and terroristic threats arising out of a three-and-one-half hour assault upon a thirteen-year-old girl. At sentencing, appellant offered no testimony and was sentenced to consecutive terms of ten-to-twenty years on the rape charge, five-to-twenty years on the involuntary deviate sexual intercourse charge, two-to-ten years on the kidnapping charge, and one-to-two years on the recklessly endangering charge, as well as concurrent one-to-two year terms on the remaining charges. Appellant filed a pro se appeal to this Court, and new counsel was appointed.

In reviewing appellant’s challenge to the effectiveness of his counsel, “our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). “The initial factor we must consider is whether there is any arguable merit in the positions appellant now asserts, for it is axiomatic that counsel will not be deemed ineffective for failing to assert a baseless claim.” Commonwealth v. Boyd, 300 Pa.Superior Ct. 539, 543, 446 A.2d 1290, 1292 (1982). Appellant contends that counsel was ineffective in: (1) failing to file pre-trial motions; (2) advising him to plead guilty to all charges without any plea bargain; (3) allowing him to be sentenced on all of the offenses despite the obvious merger of sentences for several offenses; (4) failing to offer any mitigating evidence at the sentencing hearing; (5) allowing him to plead guilty despite being a patient at Farview State Mental Hospital and on medication; and (6) failing to take an appeal. We note first that this matter must be remanded for resentencing. “[I]n merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts . .. for the question is whether those facts show that in practical effect the defendant committed a single act, in which case there will be a merger and only a single sentence may be imposed.” Commonwealth v. Crocker, 280 Pa.Superior Ct. 470, 475, 421 A.2d 818, 820 (1980). We note that under the particular facts of this case, as outlined by the Commonwealth at the guilty plea proceeding, statutory rape merges into rape, see Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), recklessly endangering another person merges into aggravated assault, see Commonwealth v. Williams, 290 Pa.Superior Ct. 209, 434 A.2d 717 (1981), and false imprisonment and unlawful restraint merge into kidnapping, see Common wealth v. Belgrave, 258 Pa.Superior Ct. 40, 391 A.2d 662 (1978). Involuntary deviate sexual intercourse and terroristic threats do not merge with any of the other charges. Because the lower court erred in sentencing appellant to separate terms of imprisonment on the merged offenses, we must remand the matter for resentencing. With regard to ineffective assistance contentions, although several of appellant’s contentions may have arguable merit, the present record is insufficient for us to determine whether counsel had a reasonable basis for the course pursued. Accordingly, we must remand the matter for an evidentiary hearing on appellant’s ineffectiveness claims. If, following the hearing, the court determines that appellant was denied effective assistance of counsel, it shall enter an order granting appropriate relief. If, however, the court finds that appellant did receive effective representation, it shall then resentence him consistent with the directives of this opinion. Either party aggrieved by the court’s decision may take a new appeal to this Court, as provided by law.

Judgment of sentence vacated and case remanded for proceedings consistent with this opinion.


author: PER CURIAM:

text:
    452 A.2d 552
    COMMONWEALTH of Pennsylvania, v. Anthony James LOWRY, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 16, 1982.
    Filed Nov. 5, 1982.

      Vincent R. Baginski, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before BRÓSKY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant Anthony James Lowry was convicted of theft by the Honorable John W. O’Brien, sitting without a jury. Post-trial motions were denied and appellant was sentenced to 11% to 23 months imprisonment and five years probation. This direct appeal followed. Because we agree that the evidence is insufficient to sustain the conviction, we reverse the judgment of sentence and discharge appellant.

Appellant was charged with the theft of a diamond-coin pendant from the Boss Jewelry store. Leonard Boss, the store’s owner, testified that, on the morning of January 21, 1980, he had been working on the pendant at his workbench, in the work area of the store. An employee, William Masters, also worked in that area and Shirley Flosnik, a secretary, worked at a desk in the showroom area. Appellant, then an employee of IBM, arrived at the store around noon to install a newly-purchased typewriter at Ms. Flosnik’s desk. At that time, Masters and Boss were eating lunch at a separate table in the work area. Appellant installed the typewriter, which had been stored in a box in the work area. After he installed it, he brought the box to a location between the two workbenches and asked Boss and Masters about something else being in the box. Ms. Flosnik testified that she then came to the doorway of the work area and asked what appellant was looking for. He replied that it didn’t matter and returned to the typewriter, answered a few questions for her and left the store. Mr. Boss discovered the pendant was missing between 1:00 p.m. and 1:30 p.m. The pendant was never found although appellant’s apartment was searched three days later.

The test for sufficiency of the evidence is whether, accepting as true all of the Commonwealth’s evidence and all reasonable inferences therefrom, it is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972). In the instant case, the Commonwealth’s evidence shows that appellant was present and that the pendant was missing sometime after his departure. There is no evidence that he ever saw or handled the pendant or even knew of its presence. Moreover, other people were also in the vicinity of the pendant. Although these circumstances may be suspicious, we cannot sustain a conviction based on mere suspicion or conjecture. Commonwealth v. Keller, 249 Pa.Super. 384, 378 A.2d 347 (1977). Mere presence at the scene of a crime cannot, of course, sustain a conviction. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). The Commonwealth contends, however, that appellant appeared nervous and in a hurry to leave after his last trip to the work area and that this evidence distinguishes this case from the “mere presence” cases. Our Supreme Court has held, however, that even flight cannot convert presence into proof of guilt. Commonwealth v. Bailey, id.; Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976). Since there was no other evidence linking appellant to the pendant, we must reverse the conviction and discharge appellant.

      . Because of this disposition, we need not reach the ineffectiveness of counsel claims also raised by appellant.


author: BROSKY, Judge:

text:
    452 A.2d 725
    J.H. and J.H., his wife, Appellants, v. E.D.W. and D.L.W., his wife.
    Superior Court of Pennsylvania.
    Argued June 15, 1982.
    Filed Oct. 1, 1982.
    Reargument Denied Dec. 9, 1982.

      Patrick J. Rega, Charleroi, for appellants.
    James W. Haines, Jr., Monongahela, for appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   BROSKY, Judge:

This appeal arises from the denial of a petition to terminate parental rights brought by J.H. and J.H., appellants, against E.D.W. and D.L.W. The question raised by the appellants is simply that the trial court erred in failing to grant the petition to involuntarily terminate parental rights because the record contained evidence sufficient to justify termination of those rights under the Adoption Act of 1970. We do not agree. Accordingly, we affirm the decision of the trial court.

The record reveals that the child, J.W., was several weeks premature on August 7, 1977. Shortly thereafter, in September of 1977, the child was cared for by the natural mother’s aunt, J.H. The mother claims the aunt offered to care for the child for a period of time while she recuperated from the pregnancy. The aunt claims she was asked by the mother to care for the child. During the following 2V2 years, the child was cared for by the aunt most of the time. The mother claims that she desired to care for her child but that her own physical and emotional problems prevented her from doing so. The aunt claimed the mother abandoned the child, made infrequent efforts to see her child and that the child only saw his parents at the aunt’s initiative. The parents claim that they made frequent inquiries about the child’s condition and that they expressed an interest in and affection toward their child. We need not review the record in further detail because it consistently reveals two seemingly unrelated accounts of the parents’ relationship with their child. We view the issue as one of credibility. Simply put, the trial court believed the parents.

In In Re Adoption of B.D.S., 494 Pa. 171, 176, 431 A.2d 203, 206 (1981), our Supreme Court said:

Our standard of review in cases of involuntary termination of parental rights is well-settled. We will not reverse a decree of the Orphans’ Court if it is supported by competent evidence. In Re L.A.G., 490 Pa. 85, 415 A.2d 44 (1980). Furthermore, where the hearing court’s findings are supported by competent evidence of record “we must affirm the hearing court even though the record could support an opposite result.” Matter of Kapcos, 468 Pa. 50, 54, 360 A.2d 174, 176 (1976). . . .

The essence of appellant’s argument is that she did, contrary to the Orphans’ Court finding, sustain her burden of proof and that appellee’s testimony was not believable. This contention is totally without merit. The trier of fact is the sole judge of credibility. In re Green, 486 Pa. 613, 406 A.2d 1370 (1979), and we will not usurp this function of the hearing court.

We will not disturb the trial court’s decision as to credibility and because the appellants argue essentially that their evidence was more credible than that given by the appellees, we are obliged to affirm the order of the trial court.

      . Act of July 24, 1970, P.L. 620, No. 208, Art. III, § 311, 1 P.S. § 311, repealed and replaced effective January 1, 1981 by the Adoption Act of 1980, Act of October 1980, P.L. 934, No. 163, 23 Pa.C.S.A. §§ 2101 et seq. Appellants did not ask for leave to amend to bring the proceedings under the new Adoption Act pursuant to 23 Pa.C.S.A. § 2101.

      . The United States Supreme Court has held, very recently, that the involuntary termination of parental rights will only be ordered if and when the party seeking the termination proves by clear and convincing evidence that grounds for granting the petition exist. Santosky and Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, et al., 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The trial court herein held that the petitioner need only satisfy the court by a preponderance of the evidence that the involuntary termination should be granted. In Re Adoption of M.M., 492 Pa. 457, 424 A.2d 1280 (1981). This clearly is no longer the law. Nevertheless, the trial court found the appellants had not satisfied the lesser burden of proof required under the former law. Obviously, we cannot say now that the more rigorous burden upon petitioners would require a different result. See also: In Re William L., 477 Pa. 322, 383 A.2d 1228 (1978), cert. den. 439 U.S. 880, 99 S.Ct. 216, 58 L.Ed.2d 192 (1978), holding that involuntary termination of parental rights must be proven by the petitioner by clear and convincing evidence, cited with approval by court in Santosky v. Kramer, supra.

      . Appellants also argue that the trial court erred in censuring appellants without a hearing and that the court erred further in basing its decision in part on facts which were caused by the censuring of appellants. On May 14, 1980, the trial court ordered a visitation schedule be established between the appellants and appellees. The order was amended on August 7, 1980. However, the appellants failed to comply with the order which permitted the appellee’s visitation rights and also that the appellants also prevented the child’s examination by a court appointed psychiatrist which was contained in the order. A petition for contempt was brought by the appellees against the appellants which on September 18, 1980, after hearing, was not granted. However, the appellants were censured for failing to comply with the orders. The court also issued a more precise visitation schedule.
      We are satisfied that the trial court’s actions were proper and that the trial court did not base its decision, in part, on facts which were caused by the censuring of appellants. The trial court based its decision upon a very extensive record which included evidence of actions undertaken by the appellants which resulted in their censurement. This was not error.


author: MONTEMURO, Judge:

text:
    452 A.2d 727
    Joseph M. KLINE and Jeannette Kline, his wife, Appellants v. James F. BALL and Norma H. Ball, his wife, as parents and natural guardians of Mark Ball, and James F. Ball and Norma H. Ball, his wife; Robert A. Keisling and Sandra S. Keisling, his wife, as parents and natural guardians of Robert E. Keis-ling, and Robert A. Keisling and Sandra S. Keisling, his wife; Robert J. Baker and Jean P. Baker, his wife, as parents and natural guardians of Thomas A. Baker, and Robert J. Baker and Jean P. Baker, his wife; John W. Somerville and Agnes U. Somerville, his wife, as parents and natural guardians of Gregory T. Somerville and John W. Somerville and Agnes U. Somer-ville, his wife.
    Superior Court of Pennsylvania.
    Argued April 27, 1982.
    Filed Oct. 1, 1982.
    Reargument Denied Dec. 9, 1982.
    Petition for Allowance of Appeal Denied March 4, 1983.

      Phillip B. Hart, Jr., Pittsburgh, for appellants.
    Joseph B. Bagley, Pittsburgh, for Baker, appellees.
    Thomas F. Weis, Pittsburgh, for Somerville, appellees.
    Before ROWLEY, BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

The instant matter concerns a prank played by a group of highschool boys that resulted in injury to a staff member of the school. The two boys most obviously involved in the matter settled out of court with the injured woman, herein the appellant. The case was tried against the other two young men who were present at the time and allegedly participated by daring and encouraging the actors. The court below declared a non-suit, and the case did not go to the jury. Upon review of the record, we affirm the result of the lower court, but not all of its reasoning.

Where a compulsory non-suit is entered at the close of plaintiff’s evidence, the appellate court, upon appeal from a refusal of the trial court to remove the non-suit, will determine whether plaintiff’s evidence was sufficient to present a question for the trier of fact upon which a verdict or finding for the plaintiff could have been based. 9 Standard Pa. Practice Ch. 40, § 72, p. 389 and cases cited therein. The plaintiff must be given the benefit of all favorable evidence; every reasonable inference of fact arising therefrom and all conflicts therein must be resolved in favor of the plaintiff. Allen v. Leshner, 224 Pa.Super.Ct. 327, 306 A.2d 916 (1973). A compulsory nonsuit may be entered only where the lack of evidence to sustain an action is so clear that there is no room for reasonable disagreement. Piccolo v. Weisenberger, 237 Pa.Super. 218, 352 A.2d 116 (1975).

The facts, in the light most favorable to plaintiff, are as follows:

The four appellees, all high school students, had entered a part of the school that was off-bounds for students at that hour. They were on a second floor balcony area, chatting and engaging in horseplay while waiting for the bell for the next period. They knew, or should have known that other students, faculty and staff were as likely to be in the area as they were themselves.

Appellee Keisling balanced the plastic trash can on the railing. As appellee Ball ascended the staircase, several people on the platform above threatened to throw the trash can on him, but did not. He joined the group, still holding an orange left from his lunch. The group was jostling around:

. . . darin’ me to throw the orange at the garbage can and' knock it off. But I didn’t. We stood there for a little while, you know, talking back and forth, kind of throwing jabs at one another, you know, and it was like a dare, and I just went over and I kind of tapped it. (N.T. 19, R 234a)

As soon as the deed was done, the group beat a hasty retreat to the men’s room. A fair inference would be that they all felt implicated in the act, though they never intended injury to the appellant.

Appellant had entered the hall below during the horseplay. One of the appellees admitted to having heard the door below open and shut. Two other students also in the hallway (the people who discovered and rescued the injured appellant) testified to hearing appellant open the door and the click of her heels on the floor. Such testimony might reasonably give rise to an inference that appellees should also have noticed those sounds and anticipated the presence of the appellant on the stair. However, even the most liberal reading of the testimony does not reveal which of the group on the balcony in fact uttered the dare that instigated the act of pushing over the trash can. The witnesses do not remember and cannot say.

Unlike the court below, we are inclined to feel that appellants’ argument from the Restatement of Torts 2d has merit, and that on facts similar to those of the instant matter, § 876 might well prove applicable.

We need not, however, discuss the matter further under the Restatement or relate that Section to the law of this Commonwealth, because we must agree with the trial judge that the witness’s testimony is not specific enough to show that any one named party, nor all bystander parties, in fact did dare the actor and precipitate the behavior which led to injury. Testimony established that a dare was made; however, it was never established who made the dare:

Tort liability must be founded upon some blameworthy conduct, or lack of due care resulting in the violation of a duty owing to others.
In Pennsylvania, the principle of liability without fault for injuries to the person has received scant consideration.
The great body of our law of liability for personal injuries is that of liability through fault; liability based almost exclusively on wrongful conduct. Summit Hotel Co. v. National Broadcasting Co., 336 Pa. 182, 187, 8 A.2d 302, 305 (1939).

On the facts, after appellants had presented their case, fault could not be assigned to any one person or the whole group. In the absence of testimony tending to establish specific wrongdoing, the decision of the lower court to find for the appellees by granting a compulsory non-suit was correct, and we affirm the order of the trial judge.

Judgment affirmed.

      . The text of § 876 is as follows:
      Persons Acting in Concert
      For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
      (a) does a tortious act in concert with the other or pursuant to a common design with him, or
      (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or
      (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.
      The Comment following is even more apropos:

      Comment on Clause (b):
      d. Advice or encouragement to act operates as moral support to a tortfeasor and if the act encouraged is known to be tortious it has the same effect upon the iiabiiity of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for the consequences of the other’s act. This is true both when the act done is an intended trespass and when it is merely a negligent act. The rule applies whether or not the other knows his act is tortious. It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act. (Emphasis supplied)