author: MONTEMURO, Judge:

text:
    574 A.2d 664
    Arnold JOYNER and Ruth Joyner, Appellees, v. HARLEYSVILLE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued March' 7, 1990.
    Filed May 7, 1990.

      Debra G. Staples, Philadelphia, for appellant.
    Claire D. Newman, Philadelphia, for appellees.
    Before McEWEN, MONTEMURO and CERCONE, JJ.
   MONTEMURO, Judge:

The single issue presented in this appeal is whether the “producer of record”, who processes an application for insurance for an insured pursuant to the Pennsylvania Assigned Risk Plan, may be deemed to have “apparent authority” to receive premium payments on behalf of the assigned insurance carrier. We hold that under the circumstances of this case, the producer was an agent of the assigned insurer for the purpose of collecting premiums. Accordingly, we affirm the order of the trial court.

The parties submitted an agreed upon statement of facts to the trial court, each seeking an entry of judgment. Appellant Harleysville Insurance Company (Harleysville) appeals from an order granting judgment in favor of appellees, Arnold and Ruth Joyner (Joyners), in the amount of $30,383.70.

This case involves a claim by the Joyners for payment of basic loss benefits from Harleysville for injuries sustained in a motor vehicle accident on January 31, 1984. The basis for the insurance claim is an insurance policy which the Joyners held with Harleysville under the Pennsylvania No-Fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, §§ 101-701, 40 P.S. § 1009.101 et seq, repealed by Act of Feb. 12, 1984, P.L. 26, No. 11, § 8(a) (No-Fault Act). Harleysville has denied the Joyners’ claim, asserting that the policy of insurance had been cancelled thirty days prior to the date of the accident.

The relevant facts, as gleaned from the agreed upon statement of facts, are as follows. In September, 1982, Arnold Joyner went to a licensed insurance broker in Philadelphia trading under the name Seers Insurance Agency (Seers) and applied to the Pennsylvania Motor Vehicle Insurance Plan, commonly known as the Assigned Risk Plan (Plan), for automobile insurance. Pursuant to the Plan, Mr. Joyner filled out a Pennsylvania Insurance Plan Application in which Seers was identified as the producer of record. Harleysville was designated by the Plan as the servicing insurance carrier for the Joyner policy. Harleysville issued a policy directly to Mr. Joyner, effective September, 1982. Mr. Joyner made all premium payments in cash to Seers; Seers then forwarded the payments in the form of Seers checks to Harleysville.

On September 10, 1983, when the policy was about to expire, Mr. Joyner accepted Harleysville’s renewal offer by making a cash payment of $165.00 to Seers and signing a request for renewal in which he requested certain changes in his policy. The request for renewal was written on a message form bearing Seers’ trade logo. Although Harleysville received the renewal request and a Seers check for $165.00 on September 15, 1983, as of September 16, 1983, Harleysville’s books did not show receipt of the payment due on the renewal. Thus, Harleysville sent a cancellation notice to Mr. Joyner on September 22, 1983. In response to the cancellation notice, Mr. Joyner contacted Seers and was advised that a mistake had been made. Harleysville’s records eventually reflected receipt of the $165.00 check and Harleysville rescinded the cancellation. Problems arose again, however, as the Seers $165.00 check was dishonored by the bank for insufficient funds. On October 17, 1983, Harleysville sent a cancellation notice to both Mr. Joyner and Seers, advising them that a certified check or money order was required to reinstate the policy. Mr. Joyner again contacted Seers and was assured that a mistake had been made. Harleysville received a replacement check from Seers on October 20, 1983 and subsequently rescinded the cancellation.

Although Mr. Joyner made two more premium payments to Seers for the policy, $200.00 in November, 1983 and $250.00 in December, 1983, Harleysville never received the payments from Seers. Thus, on December 13, 1983, Harleysville sent another cancellation notice to Mr. Joyner and Seers, to be effective January 1, 1984. Once again, Mr. Joyner went to Seers and questioned the Seers employee to whom he had made the cash premium payments. In Mr. Joyner’s presence, the Seers representative purported to call Harleysville. The Seers representative then told Mr. Joyner that Harleysville had erred and that Mr. Joyner’s policy was in effect. Mr. Joyner left Seers, believing that no further premium payment was due until February, 1984.

In fact, the telephone call was not actually placed to Harleysville and the assurances given to Mr. Joyner were false. Harleysville cancelled the Joyner policy on January 1, 1984 for non-receipt of premiums. On January 31, 1984, the Joyners and their daughter were involved in an automobile accident in which they suffered injuries requiring medical treatment. When Mr. Joyner attempted to report the accident to Seers, he learned that Seers had closed permanently. Mr. Joyner notified Harleysville of the accident and reported losses in the amount of $16,313.40. Harleysville denied liability on the claim for first party benefits on the grounds that no policy was in effect on the date of the accident.

Based upon these undisputed facts, the trial court held that Seers had apparent or implied authority to accept Mr. Joyner’s premiums on behalf of Harleysville, and because Seers was clothed with authority to accept premiums on behalf of Harleysville, the payments made to Seers were good payments.

In arguing that the trial court erred in finding an agency relationship between Harleysville and Seers, Harleysville attaches special significance to the fact that the insurance policy was issued pursuant to the Assigned Risk Plan. Harleysville emphasizes that Harleysville was required to participate in the Plan under the No-Fault Act, and that an insurer participating in the Plan cannot choose who will be the producer under the Plan or choose those individuals whom the insurer will insure under the Plan.

The No-Fault Act required every owner of a motor vehicle which was registered or operated in Pennsylvania to provide security covering the motor vehicle for the payment of basic loss benefits and for the payment of liability for damages for bodily injury or death arising out of an accident. 40 P.S. § 1009.104(a). This security could be provided under an insurance policy with an insurer or through self-insurance with the approval of the insurance commissioner. Id. To ensure that the statutorily required coverage for no-fault benefits and tort liability damages would be available for all owners of motor vehicles, the No-Fault Act directed the insurance commissioner to implement a plan by which those individuals who could not obtain insurance through ordinary methods would be able to obtain insurance coverage on reasonable and not unfairly discriminatory terms. 40 P.S. § 1009.105(a)(1). The No-Fault Act provided that this goal could be accomplished via assignment of applicants among insurers, joint insuring or reinsuring arrangements, or any other method. Id.

Under the Act, all insurers writing no-fault benefits and tort liability coverage in Pennsylvania were required to participate in the Plan. 40 P.S. § 1009.105(a)(3). The Act envisioned that the financial burdens incident to insuring those individuals covered by the Plan would be equitably apportioned among all participating insurers required to write insurance coverage under the Plan. The Act permitted insurers to reach agreements as to the organization, administration and operation of the Plan and as to rate provisions under the Plan. Id. The Pennsylvania Assigned Risk Plan was the insurance industry’s response to these legislative requirements.

Mr. Joyner, apparently unable to obtain insurance through the regular channels, applied to the Plan in accordance with the method established by the Plan. He went to the Seers Agency where he obtained and filled out the prescribed form entitled “Pennsylvania Automobile Insurance Plan Application,” and submitted an advance premium payment of $510.00 for forwarding to the Plan by Seers. The application, which named Seers as the producer, contained a clause located above the applicant signature line and printed in small type, which stated:

I designate as producer of record for this insurance the producer named in this application and I understand he is not acting as an agent of any Company for the purpose of this insurance.

Mr. Joyner signed his name on the signature line. Seers submitted the Joyner application and advance premium to the Plan. Harleysville was assigned by the Plan to service the Joyner policy, and in accordance with the Plan, Harleysville forwarded a policy directly to Mr. Joyner. Presumably, Harleysville also forwarded a copy of the policy declarations page to Seers, and sent commission checks to Seers within 30 days of receipt of the premiums due, in accordance with the Plan provisions. Mr. Joyner made all of his renewal and policy change requests and cash premium payments to Seers for forwarding to Harleysville.

Having carefully reviewed the particular facts of this case, the law of agency in Pennsylvania, and caselaw from other jurisdictions regarding the status of a producer of record in the assigned risk setting, we agree with the trial court’s conclusion that Seers had apparent authority to receive premiums on behalf of Harleysville.

The doctrine of apparent authority has been incorporated into the principles of agency law in Pennsylvania. See Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987), appeal denied 518 Pa. 627, 541 A.2d 1138 (1988); Stallo v. Insurance Placement Facility of Pennsylvania, 359 Pa.Super. 157, 518 A.2d 827 (1986), appeal denied 515 Pa. 609, 529 A.2d 1082 (1987). Apparent authority exists where a principal, by words or conduct, leads people with whom the alleged agent deals to believe that the principal has granted the agent the authority he or she purports to exercise. Bolus v. United Penn Bank, supra; Stallo v. Insurance Placement Facility of Pennsylvania, supra.

The third party is entitled to believe the agent has the authority he purports to exercise only where a person of ordinary prudence, diligence and discretion would so believe. Friedman v. Kasser, 332 Pa.Super. 475, 481 A.2d 886 (1984). Thus, a third party can rely on the apparent authority of an agent when this is a reasonable interpretation of the manifestations of the principal. The Trident Corporation v. Reliance Insur. Co., 350 Pa.Super. 142, 150, 504 A.2d 285, 289 (1986).

Bolus v. United Penn Bank, supra 363 Pa.Super. at 262, 525 A.2d at 1222.

Although the question of whether a principal-agent relationship exists is ordinarily one of fact for the jury, where the facts giving rise to the relationship are not in dispute, the question is one which is properly decided by the court. Breslin by Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982), citing Juarbe v. City of Philadelphia, 288 Pa.Super. 330, 335, 431 A.2d 1073, 1076 (1981).

It is well settled that an insurance broker may act as an agent of an insurance company in the collection of the premium from the insured and remittal of the premium to the insurance company. Transcontinental Oil Co. v. Atlas Assurance Co., 278 Pa. 558, 123 A. 497 (1924); Pearl Assurance Co. v. National Ins. Agency, 150 Pa.Super. 265, 28 A.2d 334 (1942). The cases of Taylor v. Crowe, 444 Pa, 471, 282 A.2d 682 (1971) and Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 331 A.2d 711 (1974) define the bounds within which an agency relationship between an insurance broker and an insurer may be found.

In Taylor v. Crowe, supra, an insurance broker had been advising the insureds for many years of the insurance needs for the various businesses in which the insureds were engaged. The insureds wanted to obtain insurance coverage, including protection against landslides, for a bowling alley which they owned. The broker assured the insureds that the desired coverage could be obtained at a low premium and then placed the coverage with a group of insurance companies through the insurance group’s agent. When a landslide damaged the building six months later, the insureds learned that the policy did not provide protection against landslides. The insureds sued the group of insurance companies and the insurance broker based on a theory of negligent misrepresentation as to the extent of the insurance coverage. Our Supreme Court held that the evidence showed that the broker was not acting as an agent for the insurance companies at the time the misrepresentations were made. Taylor v. Crowe, supra 444 Pa. at 472-74, 282 A.2d at 682-83. Testimony at trial showed that the insureds relied on the broker as a representative of their company to procure the “best” insurance he could get. On the basis of that testimony, the Court found the case to be controlled by Taylor v. Liverpool, 68 Pa.Super. 302, 304 (1917):

Where a person desiring to have his property insured applies not to any particular company or its known agent, but to an insurance broker, permitting him to choose which company shall become the insurer, a long line of decisions has declared the broker to be the agent of the insured; not the insurer.

Taylor v. Crowe, 444 Pa. at 475, 282 A.2d at 683, citing Taylor v. Liverpool, supra at 304. The Court also noted that for a broker to be found to be an agent of the insurer there must be some evidence which could be inferred as an authorization by the company to the broker. Since there was no evidence of authorization, no agency relationship could be established between the broker and the insurance companies. Taylor v. Crowe, 444 Pa. at 475, 282 A.2d at 683-84. The Court noted that the broker had no contact with the insurers, and that he did not even know with which companies the coverage was placed. Id.

In Sands, supra, the plaintiff went to an insurance broker with whom he had previously dealt to obtain auto insurance. The plaintiff indicated that he desired to be fully insured, and since the broker was familiar with the plaintiff, the broker had the plaintiff sign a blank insurance application, leaving the broker to fill in all of the necessary information. Although the broker accepted the premium payment and placed the insurance with the defendant, Granite Mutual Insurance Company, the broker failed to obtain uninsured motorist coverage for plaintiff. During the next two years, plaintiff paid all premiums on the policy directly to the broker, who also processed a renewal of the policy for plaintiff at the end of the first year. Toward the end of the second year of the policy, plaintiff made an installment payment of the premium to the broker in order to renew the policy, and within two months, plaintiff paid to the broker the premium balance in full. The broker failed to forward plaintiff’s renewal application and premium payments to the insurance company. Plaintiff discovered the broker’s default when he was injured in an automobile accident involving an uninsured motorist and sought payment under the policy. This Court held that the broker had apparent, if not actual, authority to receive payments from plaintiff and bind Granite, and therefore, the payment of the premiums to the broker by the plaintiff was good payment. In finding that the broker had apparent authority to bind the insurer, the Court noted that the insurance policy listed the broker as an “authorized representative,” and that the insurer permitted the broker to set rates and deduct its commissions directly from the premium payments as the broker received them. The Court noted that

[i]t requires no extended discussion or citation of authorities to establish the proposition that a person authorized to deliver a policy of insurance and receive and receipt for the premiums is the agent of the company for that purpose, and the payment of the premium to him is good payment.

Id. 232 Pa.Super. at 78, 331 A.2d at 716, quoting Thomas v. Western Ins. Co., 5 Pa.Super. 383 (1897).

Although neither Taylor v. Crowe nor Sands is directly on point, we find the Sands case to be applicable to our factual situation. In Taylor v. Crowe, supra, the broker had absolutely no contact with the insurers and the dispute centered on the authority of the broker to bind the insurer regarding substantive provisions of the policy; thus, we find that Taylor v. Crowe is substantially different from this case. Although there are factual differences between the instant case and Sands, we find that Sands supports a finding that Seers was an agent of Harleysville in Seers’ function of collecting premiums from Mr. Joyner. Harleysville was aware of the role that Seers had adopted, and approved of Seers’ course of dealing to the extent that Harleysville accepted Mr. Joyner’s renewal request through Seers and accepted Mr. Joyner’s premium payments in the form of the Seers checks, rather than insisting upon direct payment by the Joyners. We hold that Seers had apparent authority to receive the premiums on behalf of Harleysville, and thus was Harleysville’s agent for purposes of receiving and remitting the premium payments. Despite the language in the Plan application which denied any agency relationship between the producer and the assigned insurer, Harleysville knowingly permitted Seers to accept the premium payments and process Mr. Joyner’s requests for changes in policy and renewal. Furthermore, Harleysville continued to permit Seers to receive and remit the premiums after Seers submitted the request for renewal and accompanying premium late and a Seers check was dishonored for insufficient funds. Thus, we find that the clause in the application denying an agency relationship is not dispositive of the question of the agency relationship between Harleysville and Seers.

Given the facts of this case, we find that Mr. Joyner acted as a reasonable person would under the circumstances. Having dealt with Harleysville strictly through the Seers agency in the past and having received no resistance from Harleysville regarding this manner of dealing, Mr. Joyner acted as a prudent person would when he received the cancellation notice and returned to Seers to inquire as to the source of the problem. Harleysville’s acceptance of the premium payments, renewal request and policy changes from Seers would lead a reasonable person to believe that Seers had apparent authority to accept premiums on behalf of Harleysville. We find that the payments made by Mr. Joyner were valid, irrespective of actual receipt by Harleysville. “ 'Payment to insurer’s agent, authorized or having apparent authority to receive the premium, is equivalent to payment to insurer; and the policy has its inception from the instant such payment is made. And it is no defense to the company that the agent has not remitted at all... ’ ” Transcontinental Oil Co., supra 278 Pa. at 563, 123 A. at 499, quoting 26 C.J. 62.

We agree with the views of the trial court that Harleysville was in a far better position to police Seers’ conduct and prevent Seers’ default. Harleysville could have insisted that all premiums be paid directly to Harleysville, particularly after becoming aware of Seers’ penchant for remitting late premiums and dishonored checks. As the trial court aptly stated, ''Harleysville, having accepted the benefit of doing business in Pennsylvania and the benefit of plaintiffs’ premiums paid over before Seers’ default, will not now be heard to deny the burden of its contract with plaintiffs.” Trial Court Opinion at 7.

In reviewing cases from other jurisdictions dealing with a producer’s authority to act as an agent of the carrier in the assigned risk setting, we find the case of Nationwide Mutual Insurance Company v. Mason, 218 So.2d 185 (Fla.Dist.Ct.App.1969), cert. denied 225 So.2d 912 (Fla.1969) to be factually similar to the case at hand. In Nationwide, the insured applied through an insurance agency for insurance under Florida’s assigned risk plan and the agency, as the producer of record, forwarded the application and deposit premium to the Plan. The risk was assigned to the defendant insurance company. The company sent a notice to the producer and the insured which stated that the insured was to forward the premium balance to the assigned risk carrier and if the insured failed to forward the balance by the payment date, the insurer would cancel the policy. Immediately after the insured received the notice, she paid the balance to the producer for forwarding to the assigned carrier, but the producer did not forward the funds until after the payment due date. A cancellation notice to the producer and the insured was mailed on the same date that the producer executed and sent a check to the insurer for the premium balance. After the insured received the cancellation notice, she contacted the producer to find out why the policy was being cancelled; the producer explained that the paperwork and money had gotten misplaced due to a hurricane and assured her that “everything would be all right.” Id. 218 So.2d at 186. The insurer refused to accept the late premium, however, and cancelled the insured’s policy and returned the check to the producer. Under these facts, the court held that the payment of the premium by the insured to the producing agency was effective against the insurer, notwithstanding the agency’s failure to forward the premium to the insurer before the due date. Id. at 187-88. Similarly, we find that Seers was authorized to receive premiums on behalf of Harleysville, given Seers’ dealings with Harleysville before Seers’ default.

Harleysville cites an impressive list of cases from other jurisdictions which have held that a producer under an assigned risk plan who submits the application to the assigned risk plan, and who thereafter forwards the policy to the insured or accepts premiums from the insured is not the agent of the insurer. Having carefully reviewed those cases, we find that none of them deal with the precise question presented here, that is, whether the producer may be an agent of the insurer purely for purposes of receiving and remitting premiums, thus binding the insurer in the event of the producer’s default in remitting the premiums. The out-of-state case which we find to be most on point is Nationwide Mutual Ins. Co. v. Mason, supra, which supports a finding of apparent agency under the facts of this case. In fact, several of the cases cited by Harleysville lend support for the proposition that the producer may be an agent of the insurer for purposes of receiving and remitting premiums. See Jackson & Jackson, Inc. v. Louisiana Offshore Insurance Agency, Inc., 508 So.2d 875, 877 (La. App. 5th Cir.1987), writ denied 512 So.2d 1179 (La.1989) (holding that in context of worker’s compensation assigned risk pool, broker was insured’s agent and broker “had no authority, apparent or otherwise, to represent or act for [insurer] except for premium collecting”); Pearson v. Selected Risks Insurance Company, 154 N.J.Super. 240, 381 A.2d 91, 93 n. 2 (1977) (acknowledging in a footnote that “[p]erhaps the assigned insurer may make the broker its agent for the collection of premiums”). Although in some situations the fact that a policy was issued pursuant to an assigned risk plan under which the insurer could not choose the producer of record may determine the question of agency, under the facts of this case, our finding of Seers’ apparent authority is not negated by the fact that the policy was issued pursuant to the Plan. Although Harleysville could not choose the producer under the Plan, Harleysville could have established another means of collecting the premiums.

Harleysville quotes language from Pearson, supra, which holds that the producer in the assigned risk situation does not become an agent of the insurer for the purpose of writing additional business for the assigned risk by the insurer, and that the broker does not “speak” for the insurer. We simply note that the issue in this case does not involve a broker/producer’s capacity to write additional business for the insured, or to make representations on behalf of the insurer regarding substantive provisions of the policy or the effective date of the policy, but instead involves a producer’s capacity to act as an agent for purposes of collecting premiums.

We find that under the facts of this case, Seers was an agent of Harleysville for the purpose of receiving and remitting the Joyner premiums, and thus Mr. Joyner was entitled to rely on Seers’ apparent authority to receive the premiums. Accordingly, we affirm the order of the trial court.

Order affirmed.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    574 A.2d 671
    Linda Kitts LAFFERTY, Appellant, v. The ALAN WEXLER AGENCY, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1990.
    Filed May 1, 1990.

      Gregory P. Sesler, Erie, for appellant.
    Ritchie T. Marsh, Erie, for appellee.
    Before McEWEN, BECK and HUDOCK, JJ.
   BECK, Judge:

The question presented in this case is under what circumstances a plaintiff should be permitted to amend her complaint to substitute a new defendant for the defendant named in the original complaint, once the statute of limitations has run. We find that the statute of limitations is tolled where a defendant actively conceals the identity of the party against whom a plaintiff intends to bring a cause of action. Accordingly, we reverse.

In her complaint filed on May 4, 1988, plaintiff-appellant, Linda Kitts Lafferty, alleged that she was injured on November 23, 1986 when a light fixture in an apartment in which she was then living, disengaged from the ceiling of the apartment and fell on top of her head and shoulders. Subsequently, Lafferty contacted Robert LeSuer, Esquire, to represent her in pursuing a claim against the owner of the apartment. LeSuer commenced correspondence with the Rockwood Insurance Company (“Rockwood”), the insurer of appellee The Alan Wexler Agency, Inc. (“Wexler Agency”). Soon afterward, however, Rockwood requested that LeSuer discontinue his representation of Lafferty because the firm through which he was currently employed had previously defended cases involving Rockwood. The file was then transferred to Gregory P. Sesler, Esquire.

Thereafter, on May 4, 1988, Lafferty filed a complaint against the Wexler Agency, alleging that as the owner of the premises in which the accident occurred, it was liable for her injuries. The Wexler Agency responded by filing preliminary objections, which, among other things, objected that Lafferty failed to either establish an inference of negligence or allege that the Wexler Agency possessed prior knowledge of any defective condition. After the trial court granted the Wexler Agency’s preliminary objections, Lafferty filed an amended complaint. Once again, the Wexler Agency responded to this complaint by filing preliminary objections. In addition to objecting to the form and structure of the amended complaint, the Wexler Agency averred that Lafferty failed to allege that the Wexler Agency possessed notice regarding the allegedly defective condition or that as the landlord, the Wexler Agency had any obligation to repair the allegedly defective condition. Again the trial court sustained the Wexler Agency’s preliminary objections.

Thereafter, on December 22, 1988, one month after the statute of limitations had run, Lafferty filed her second amended complaint. Three weeks later, less than two months after the statute of limitations had expired, the Wexler Agency filed an Answer, New Matter and Counterclaim, in which the Wexler Agency averred that:

The defendant, “The Wexler Agency, Inc.,” is not the owner of the property located at 1251-1251V2 East 38th Street, Erie, Pennsylvania. The defendant, “The Wexler Agency, Inc.,” denies ownership and/or control of the beforementioned property. In further answer thereto, the property commonly referred to as 1251-1251V2 East 38th Street is owned by Alan S. Wexler, personally, pursuant to the deed recorded in Erie County Deed Book 1419 at Page 289, which deed is incorporated herein by reference.

In response to this pleading, Lafferty filed a Motion to Amend Complaint by Leave of Court. Pursuant to this motion, Lafferty sought to substitute Alan S. Wexler, personally, as the defendant, for the Wexler Agency. As the basis for this amendment, Lafferty cited Pennsylvania Rule of Civil Procedure 1033, which provides, in pertinent part: “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.” Pa.R.Civ.P. 1033 (emphasis added).

A hearing was held on this matter, and the trial court issued an order which denied Lafferty’s motion to substitute Alan Wexler as the defendant. Lafferty appeals this order.

Initially, we note Lafferty’s appeal is properly before this court. Because the trial court denied Lafferty’s motion to substitute Alan Wexler as the defendant, Lafferty has been effectively put out of court with respect to Alan Wexler individually, the only defendant who is potentially liable. The order has the effect of a final order and is appealable to this court. Peaceman v. Tedesco, 51 Pa. Commw. 544, 547-48, 414 A.2d 1119, 1120 (1980) (citing Saracina v. Cotoia, 417 Pa. 80, 82 n. 3, 208 A.2d 764, 766 n. 3 (1965)).

Lafferty first contends that she is entitled to substitute Alan Wexler individually for the Wexler Agency because she originally intended to sue the owner of the premises and the owner has not changed throughout this litigation. We find this argument unpersuasive.

The Pennsylvania Supreme Court, in Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), announced the rule to be utilized in analyzing cases wherein an amendment to a party’s name is sought, as follows:

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct' the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.

Id., 232 Pa. at 1, 81 A. at 63 (citing Wright v. Eureka Tempered Copper Co., 206 Pa. 274, 55 A. 978 (1903)).

More recently, the court emphasized that the issue “is whether the right party was sued but under a wrong designation, or whether a wrong party was sued and the amendment was designed to substitute another and distinct party.” Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 29, 53 A.2d 73, 76 (1947). In Gozdonovic, the court pointed out that it would be impermissible to bring in as the right party members of a partnership where the partnership itself was the original defendant. Id., 357 Pa. at 29, 53 A.2d at 76 (citing Girardi, 232 Pa. at 1, 81 A. at 63) (plaintiff attempted to amend caption on complaint from Laquin Lumber Co., a corporation, to Laquin Lumber Co., a partnership composed of six individuals trading as the La-quin Lumber Co.; court affirmed trial court’s denial of requested amendment, because to allow amendment would be to allow new parties on record rather than to correct defendant’s name).

In the instant case we find that while Lafferty has asserted that throughout this action she intended to sue the owner of the premises, her motion to the trial court requested that court to substitute a new party for the Wexler Agency in the suit, rather than requesting merely a change in the capacity in which Alan Wexler was originally sued. We note that the outcome in this case is controlled by Girardi, where the Pennsylvania Supreme Court refused to permit a plaintiff to amend her complaint to substitute a partnership composed of six individuals where the original complaint named the corporation as the defendant.

We emphasize that one of the rationales supporting this rule is to insure that assets originally not subject to liability will not become subject to liability through court action after the statute of limitations has run. Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289, 292 (1988), allocatur granted, 522 Pa. 614, 563 A.2d 499 (1989) (citing Powell v. Sutliff, 410 Pa. 436, 438-39, 189 A.2d 864, 865 (1963)). This rationale is clearly implicated in the instant case where Alan Wexler’s personal assets, rather than the assets of the Wexler Agency, would be subject to liability if the amendment were permitted.

Our inquiry, however, is not at an end. Lafferty makes the persuasive argument that the Wexler Agency actions lulled her into a false sense of security. She asserts that by failing to inform her that she had sued the wrong defendant, the Wexler Agency’s actively concealed the identity of the correct defendant until after the statute of limitations period had expired. Lafferty contends, therefore, that the amendment should have been permitted despite the expiration of the statute of limitations. We agree.

We commence our analysis with DeRugeriis v. Brener, 237 Pa.Super. 177, 348 A.2d 139 (1975), wherein this court first articulated the rule that where a defendant or his agents actively mislead a plaintiff as to who are the proper defendant or defendants until after the statute of limitations period has expired, the proper remedy is to toll the statute of limitations as to the defendant regarding whom the concealment was directed. Id., 237 Pa. Superior Ct. at 179, 348 A.2d at 140. In DeRugeriis, for example, this court permitted the plaintiff to amend his complaint to substitute Stephen Brener (son) for Herbert Brener (father), where Stephen had been the operator of the vehicle which was involved in the accident forming the substance of the cause of action. The DeRugeriis court found that whether intentional or not, through active concealment the true identity of the driver was withheld from the plaintiff until the statute of limitations had run. Id., 237 Pa. Superior Ct. at 179, 348 A.2d at 140. Based upon this concealment, the court permitted amendment to the pleadings to reflect the proper party defendant.

Several years later, the Commonwealth Court of Pennsylvania, in Peaceman v. Tedesco, 51 Pa.Commw. 544, 414 A.2d 1119 (1980), applying the standard articulated in De-Rugeriis, found that the defendant had committed active concealment which warranted the tolling of the statute of limitations.

In Peaceman, the plaintiff filed a malpractice action against the physician-son when plaintiff intended to sue the physician-father who was the doctor who performed the surgery. The father was Edwin W. Shearburn, Jr., M.D. and the son was Edwin W. Shearburn, III, M.D. The plaintiff filed suit alleging malpractice and named Edwin W. Shearburn, III, M.D. (“son”) as the defendant. The son filed an answer stating that he did not perform the alleged surgery or the acts averred. Id., 51 Pa. Commw. at 546, 414 A.2d at 1120. The court found that despite the son’s answer filed ten months prior to the running of the statute of limitations, the answer also pleaded that “ ‘[I]t is specifically denied that the defendant, Edwin M. Shearburn, III, M.D., performed the surgery as alleged ’ and that ‘Edwin W. Shearburn, III, M.D. did not make any warranties [of treatment in accordance with medical standards in the community] as averred.’ ” Id. at 554-55, 414 A.2d at 1123.

The court opined that the phrases utilized by the son such as “as alleged” and “as averred” were susceptible to the interpretation that the surgery was performed by the son, but that the surgery was not performed as the plaintiff “alleged” or “averred”. Id., 51 Pa. Commw. at 554-55, 414 A.2d at 1123. The court additionally declared that regarding the warranty language contained in the son’s pleading, it could have been interpreted by the plaintiff to mean “that the warranties were made by the pleader but not as averred, rather than as a denial that the pleader had performed the surgery or made the warranties, but that someone else had.” Id. at 554-55, 414 A.2d at 1123.

The Peaceman, court next cited language from the son’s Motion for Summary Judgment, which was filed after the statute of limitations had run and which clearly articulated the confusion between the father and the son, that both were physicians at the same hospital, that the father had performed the subject operation and that the son did not participate in that operation. The court ruled that counsel’s filing of an answer which lacked the clarity and certainty contained in the subsequent summary judgment motion, coupled with counsel’s actions throughout the litigation, which were consistent with a defense on the merits of a malpractice action, led the court to conclude that the defendant had actively concealed the identity of the correct party defendant. Id., 51 Pa. Commw. at 554-55, 414 A.2d at 1123. As a result, the court held that the statute of limitations had been tolled regarding the father as the defendant.

The instant case is factually analogous to Peaceman. For this reason the principles established in Peaceman are clearly applicable.

Throughout the pleading stage of this litigation, the Wexler Agency acted as if it was defending the case on the merits. In its first Preliminary Objections to Lafferty’s complaint, for example, it maintained that:

If plaintiff is attempting to make an inference of negligence, same has not been made with clarity. The fact that an apartment contains a suspended ceiling with a fluorescent light fixture certainly is no evidence of misconduct or negligence on the defendant’s part. In fact, it could reasonably be assumed that the plaintiff was aware that the “downstairs apartment contained a suspended ceiling which had a fluorescent light fixture above it in the kitchen.”

Preliminary Objections, filed June 27, 1988, p. 2. Additionally, in the Wexler Agency’s Brief in Support of Defendant’s Preliminary Objections to Plaintiff’s First Amended Complaint, the Wexler Agency asserted the substantive rule of law that a landlord out of possession of a leased premises is not responsible for injuries on those premises. Preliminary Objections, filed Oct. 11, 1988, pp. 2-4. Finally, in the Wexler Agency’s Answer, New Matter and Counterclaim, filed after the statute of limitations had run, the Wexler Agency finally stated with clarity that the Wexler Agency was not the owner of the subject premises, but rather that the owner was Alan Wexler, personally.

While based upon this record we cannot discern whether the Wexler Agency intentionally concealed the identity of the owner of the premises at issue, this need not be established. DeRugeriis, supra. See also McNair v. Weikers, 300 Pa.Super. 379, 387-88, 446 A.2d 905, 909 (1982) (proof of intentional concealment not required). All that is required is that the evidence establish that one party actively misled another party. Peaceman, supra; DeRugeriis, supra. The evidence clearly establishes, even more clearly than was the case in Peaceman, that the Wexler Agency actively misled Lafferty regarding the identity of the proper defendant. The Preliminary Objections filed by the Wexler Agency attacked only the substance of the litigation. It was not until the Wexler Agency filed its Answer, New Matter and Counterclaim, two months after the expiration of the statute of limitations, that it first articulated that it was not the owner of the premises.

For these reasons we reverse that portion of the order below which denied Lafferty’s motion to amend her complaint to substitute as the defendant, Alan S. Wexler, individually.

Jurisdiction is relinquished.

      . The plaintiff additionally requested the court’s permission to aver pain and suffering damages in her complaint.

      . Judge Dwyer granted the plaintiff’s motion to include pain and suffering as an element of damages.


author: TAMILIA, Judge:

text:
    574 A.2d 676
    Mary BAKER, Appellant, v. MORJON, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed May 3, 1990.

      Lawrence R. Chaban, Washington, for appellant.
    William M. Radcliffe, Uniontown, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment entered May 3, 1989 against appellant Mary Baker, following an April 17, 1989 Order denying her motion to remove nonsuit. The underlying action, instituted by appellant on September 23, 1985, alleged appellee Morjon, Inc., intentionally caused appellant severe emotional distress by the manner in which Morjon provided for her deceased husband’s interment. Specifically, decedent, Michael Baker, and appellant entered into a contract in May, 1983 to purchase two mausoleum crypts from Morjon. Decedent had worked in coal mines and expressed to his family an aversion to underground burial. The agreement entered into provided for temporary underground interment if decedent or appellant, or both, died prior to the mausoleum’s completion. When decedent died on October 13, 1983, the mausoleum was not completed, and decedent was temporarily interred underground, as allowed by the purchase agreement, in a wooden coffin selected by the family from the funeral director, Mr. Gordon Greenlee. Appellant was unaware of the temporary interment provision but it was approved by her son, John Baker. The subsequent factual history as detailed by the trial court is as follows:

In early November of 1983 John Baker told his mother for the first time that Michael Baker was placed underground, causing her to become extremely upset. That same month he requested that the crypt lid be removed so that the condition of the coffin could be examined. On December 27, 1983, this was done, at which time John Baker and [appellant] were present. John Baker noticed moisture under the crypt lid and on the discolored coffin, water on the bottom of the crypt, and a separation of the coffin’s seams, all of which he reported to representatives of [appellee] and [appellant]. [Appellant] testified that she observed the discoloration only, even though she was standing some distance from the gravesite during her son’s examination of the crypt and coffin. She also stated that she became upset when her son told her of the casket’s condition.
Sometime after December 27, 1983, John Baker visited the business office at [the cemetery] for the purpose of determining when his father would be transferred to an aboveground tomb. Although no answer was immediately forthcoming, [appellant] received a call around September of 1984 from a representative of [appellee] advising her that Mr. Baker would be transferred on October 1, 1984, to a newly-completed mausoleum at Sylvan Heights, another cemetery owned by [appellee]. This was done as a courtesy to the Baker family. Present at the appointed time were the plaintiff, John Baker, Gordon Greenlee, [the superintendent of the cemetery] and other employees of [appellee]. Again [appellant] was not within the immediate vicinity of the gravesite and observed nothing relative to the disinterment. However, she became upset when her son John told her of the coffin’s dilapidated condition. At Greenlee’s funeral home the body of Michael Baker was transferred to a new wooden coffin, which was gratuitously provided by [appellee] corporation, and then taken to Sylvan Heights.
At the insistence of John Baker, Mr. Greenlee photographed the corpse of Michael Baker. Although [appellant] did not view the photographs, she became upset when she asked Mr. Greenlee how her husband looked, to which he replied, “Not good.” By May of 1986, the purchased mausoleum at LaFayette was completed, and Mr. Baker’s remains were transferred thereto.
Mrs.. Baker testified that as a result of viewing the discoloration of the coffin and statements made to her by her son and Mr. Greenlee regarding the deteriorated condition of the coffin a!nd the corpse, she has become nervous, upset, and dreams of her husband coming to her saying he came “a long way through the water.”

(Slip Op., Capuzzi, J., 4/17/89, pp. 2-4) (footnote omitted).

A jury trial was held in the instant action. At the close of appellant’s case on the issue of liability, appellee moved for compulsory nonsuit. The trial court granted the motion as a matter of law on the basis appellant’s testimony did not “rise to the level of extreme and outrageous conduct.” (N.T., 1/19/89, p. 218.) This appeal followed.

On appeal, appellant first argues the trial court erred in granting the motion for compulsory nonsuit, inasmuch as another judge in the same court prior to trial had denied appellee’s motion for summary judgment which alleged appellant’s complaint failed to state a legally recognized cause of action.

Ordinarily, a trial judge should not place himself in the position to overrule a decision by another judge of the same court in the same case. Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988). The purpose of this rule is to ensure a degree of judicial finality and thereby promote judicial economy and efficiency. Id. Its application arises most often in situations where a determination is to be made whether to grant a motion for summary judgment or nonsuit, in both of which motions plaintiff is given the benefit of all evidence favorable to him, together with all reasonable inferences of fact arising therefrom, and with all conflicts with the evidence resolved in his favor. West Mountain Poultry Co. v. Gress, 309 Pa.Super. 361, 455 A.2d 651 (1982). However, these precepts need not be contradictory, nor will they allow refuge to a party against whom judgment is sought where such judgment is the best means to promote judicial economy and efficiency.

In the case at bar, appellant proceeded under a theory of intentional infliction of emotional distress. Restatement (Second) of Torts, § 46. We must, therefore, view the decision of the trial court in light of recent decisions of the courts in Pennsylvania dealing with this cause of action.

The Supreme Court of this Commonwealth declined to adopt section 46 in Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), because the Court concluded “if section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Id., 515 Pa. at 195, 527 A.2d at 995. More recently in Ford v. Isdaner, 374 Pa.Super. 40, 44, 542 A.2d 137, 139 (1988), this Court said: “Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. For this reason the complaint in the instant case fails to state a cause of action.” Id. This finding, however, resulted from a determination that plaintiff failed to satisfy the standards identified in Kazatsky, that is, “neither the degree of “outrageousness” in the defendants’ conduct nor the nature and extent of the emotional injuries alleged justifies a finding of liability and an award of damages in the instant case.” Id., 374 Pa. Superior Ct. at 44, 542 A.2d at 139. Also see Daughen v. Fox, 372 Pa.Super. 405, 539 A.2d 858 (1988). This Court, in Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989), however, held that a worker who was allegedly exposed to high levels of radiation during work for a power company, stated a claim against the power company for intentional infliction of emotional distress, pursuant to section 46. Distinguishing Kazatsky on procedural grounds, the panel in Field found that the allegations of the complaint supported a finding that the power company’s conduct was both extreme and outrageous and therefore reversed the trial court’s grant of a demurrer on the count relating to intentional infliction of emotional distress and held the appellant should be provided with the opportunity to prove that he did seek medical assistance for emotional distress as it determined venting highly radioactive steam upon appellant was extreme and outrageous conduct.

Even were this Court inclined to adopt section 46, appellant has failed to establish the “extreme and outrageous” conduct required for this tort. Comment (d) of the Restatement sets forth the following standard:

Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by “malice,” or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. 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!”

Restatement (Second) of Torts, § 46, comment (d).

Appellee’s conduct does not meet this standard of outrageousness. The purchase agreement entered into between the parties allowed for temporary underground interment until completion of the mausoleum. Appellee’s awareness, or lack of it, as to decedent’s aversion to underground burial becomes irrelevant in light of the contract. We find the trial court properly granted appellee’s motion for compulsory nonsuit and reject this claim by appellant.

Appellant next argues the court erred in refusing to allow appellant to testify as to what she was told by other persons concerning the condition of the casket and body unless other witnesses testified as to those matters first. We find this claim without merit, irrespective of appellee’s objection being sustained on relevancy or hearsay grounds.

While we have already determined appellant would not prevail in Pennsylvania under a section 46 claim, such a claim would require appellant to have been present at the time of appellee’s alleged outrageous conduct. Appellant never saw any of the damage to the casket nor did she see the body. Therefore, statements made to appellant by her son and the funeral director regarding the casket and body were excluded properly on relevancy grounds because they could only corroborate what appellant might have seen had she been present. Likewise, the statements constituted inadmissible hearsay if used to prove the truth of appellee’s treatment of the casket and body. Although the statements would be admissible as an exception to the rule against hearsay if used to show appellant’s state of mind, the exception would not apply in this case because appellant’s state of mind when she learned of the conditions from third persons is not causally related to appellee’s alleged tortious acts. We may affirm a decision of the trial court when it is correct on any legal ground without regard to the ground on which the court relied. Wecht v. PG Pub. Co., 353 Pa.Super. 493, 510 A.2d 769 (1986).

Appellant’s final argument is the court erred in excluding three photographs of decedent’s damaged casket taken in October, 1984. However, two other photographs taken the same day were admitted by the court. The admission of photographs is a matter within the sound discretion of the trial court. Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970); Berman v. Radnor Rolls, Inc., 374 Pa.Super. 118, 542 A.2d 525 (1988). The court determined the excluded photographs were cumulative, and we find no manifest abuse of discretion in this determination.

Appellant’s statement of the questions involved also claims the trial court improperly excluded statements made by employees of appellee concerning decedent’s burial. However, as appellant presented no argument in her brief to support this argument, it is waived on appeal.

Judgment affirmed.


author: OLSZEWSKI, Judge:

text:
    574 A.2d 679
    COMMONWEALTH of Pennsylvania v. James Dean VOSBURG, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 14, 1990.
    Filed May 8, 1990.

      Frank Ledahawsky, Honesdale, for appellant.
    William J. Parker, Asst. Dist. Atty., Honesdale, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence for convictions of indecent assault, 18 Pa.C.S.A. § 3126, and burglary, 18 Pa.C.S.A. § 3502. Appellant presents eight issues for our consideration, which we consider seriatim. As we find none of appellant’s eight issues to be of merit, we affirm the judgment of sentence.

At trial of the case the evidence was that the perpetrator entered a house in the early morning hours at about 3:00 A.M., proceeded to the second floor bedroom where an eight year old girl was sleeping, walked around her bed, pulled on her under-wear, put his hand over her mouth momentarily when she yelled for her mother, then left the house. At approximately 3:50 A.M. a vehicle was stopped one block from the house in question by police investigating the incident. The vehicle was stopped because it had driven by the scene several times. The driver of the vehicle was [appellant], but he was questioned and released at that time. The following morning a flashlight was found in the young girl’s bed which turned out to be similar to one owned by [appellant’s] foster parent which was missing.
At sentencing held on July 13, 1989, [appellant] contended that due to his mental retardation and psychological disorders he should be committed to a mental retardation facility in lieu of incarceration. In support of such a commitment [appellant] offered twenty-one exhibits containing medical, psychological, psychiatric, and educational reports and evaluations regarding [appellant]---- The Commonwealth contended that [appellant’s] mental retardation and psychological disorders were not such that they made commitment to a mental retardation facility appropriate, but rather incarceration was the appropriate sentence in this case.

Appellant’s brief, at 4-5.

Appellant first argues that the trial court erred in denying his motion in limine to prohibit introduction of evidence of a prior crime.

It is black letter law that evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. However, there sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove ... (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 others; or (5) to establish the identity of the person charged with the commission of the crime on trial — in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.

Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269-70 (1973) (citations omitted); Commonwealth v. Rose, 483 Pa. 382, 396 A.2d 1221 (1979).

The evidence in question related to a burglary which took place within three to four blocks of the crime for which appellant was on trial. The prior burglary took place on January 14, 1988, ten months before the burglary and indecent assault of which appellant was accused; both crimes took place within two-and-one-half to three blocks of appellant’s home. Appellant was convicted of burglary in the earlier incident, for cutting, with scissors, the nightgown of a seven-year-old girl while she slept in her bedroom. In the instant case appellant was accused of walking into the bedroom of an eight-year-old girl and pulling at her underpants while she lay in bed. Both incidents took place in the early morning hours: approximately 1:00 a.m. in the earlier incident; approximately 3:00 a.m. in the instant case. In both cases, the assailant used a flashlight and fled upon discovery. Appellant had been on parole from his sentence for the prior offense for only 47 days before the instant break-in took place.

The trial court states that “when evidence is relevant and ■ important to show a common scheme, plan or design it is generally said that: ‘The prejudicial effect of the testimony is outweighed by its probative value.[’]” Trial court opinion, at 5-6. A more correct statement of law is that, when evidence is relevant and important to show a common scheme, plan or design, the prejudicial effect may be outweighed by its probative value. Rose, supra; Commonwealth v. Newman, 388 Pa.Super. 146, 564 A.2d 1308 (1989). It is clear that the trial court carefully considered the relevance of this evidence:

There is no question that the facts on both crimes are nearly identical. The entry into the dwelling of another late at night. The [appellant] carried a flashlight to the second floor of each house and attacked a young girl and then fled upon the young girl’s awakening and screaming. In each instance the [appellant] left some article behind, that would help identify him. Certainly the commonality of the two crimes tends to show the identity of the perpetrator as one and the same person.

Trial court opinion, at 6. We also note that the trial court gave an appropriate limiting instruction to the jury. N.T. 100-101. Further, evidence of prior crimes is admissible “if there is ‘such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.’ Commonwealth v. Morris, 493 Pa. [164] at 176, 425 A.2d [715] at 721 [ (1981) ].” Commonwealth v. Laurenson, 323 Pa.Super. 46, 53, 470 A.2d 122, 125 (1983). As the evidence was relevant, and its probative value outweighed its prejudicial impact, we conclude that the trial court did not abuse its discretion in denying appellant’s motion in limine. See Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11 (1977).

Appellant’s second and third issues attack the sufficiency of the evidence presented at trial. Appellant’s second issue is whether the trial court erred in admitting appellant’s statements into evidence before the Commonwealth established the corpus delicti of either indecent assault or burglary. The corpus delicti rule states that the jury may not consider a defendant’s own statements as evidence of his guilt until the Commonwealth has presented enough evidence to convince the jury beyond a reasonable doubt that the crimes charged were committed by someone. Commonwealth v. Fried, 382 Pa.Super. 156, 555 A.2d 119 (1989); Commonwealth v. Drexel, 349 Pa.Super. 335, 503 A.2d 27 (1986). Proof by circumstantial evidence will satisfy the corpus delicti rule. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989).

Indecent assault is defined as any touching of the sexual or intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person, where the victim does not consent or is unaware. 18 Pa.C.S.A. § 3126; 18 Pa.C.S.A. § 3101. Before appellant’s statements were introduced, the eight-year-old victim testified that she had felt someone pulling on her underwear while she lay in bed. This was sufficient evidence for the jury to conclude, beyond a reasonable doubt, that an indecent assault occurred, and satisfied the corpus delicti rule.

In order to establish the corpus delicti for burglary, the Commonwealth was required to prove that a building or occupied structure was entered by someone not licensed or privileged to enter, that the premises were not open to the public, and that the person who entered did so with the intent to commit a crime. 18 Pa.C.S.A. § 3502; Commonwealth v. Hardcastle, 519 Pa. 236, 546 A.2d 1101 (1988). Before the Commonwealth introduced appellant’s statements, the jury heard ample testimony from three people, establishing that their private home had been entered at 3 a.m., by someone not licensed or privileged to enter. The evidence presented concerning the indecent assault was sufficient for the jury to infer that the home was entered with the intent to commit a crime. We agree with the trial court’s conclusion that the corpus delicti of both crimes had been established before appellant’s own statements were allowed into evidence.

Appellant’s third issue is whether the trial court erred in not sustaining his demurrer to the Commonwealth’s evidence. In deciding whether to sustain a demurrer, the court is to decide, as a question of law, whether the evidence presented by the Commonwealth, if accepted as true, is sufficient to warrant a conclusion that the defendant is guilty beyond a reasonable doubt. Pa.R.Crim.P. 1124(a)(1); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986), cert. denied, 488 U.S. 871, 109 S.Ct. 187, 102 L.Ed.2d 156 (1988); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983). In addition to the testimony establishing the corpus delicti, the Commonwealth presented testimony indicating that: (1) a flashlight had been found in the victim’s bed, and that the flashlight was similar to one belonging to appellant’s foster father; (2) within an hour after the break-in, police stopped a car about one block away from the Kudrich home, and that appellant was the driver of the car; (3) appellant had been arrested and convicted of a strikingly similar offense which occurred ten months earlier, and that both offenses occurred within two-and-one-half to three blocks of appellant’s home; (4) on the afternoon of November 14, 1988, appellant told Pennsylvania State Police Corporal Donald Bradbury, “I knew you were going to catch me,” and admitted breaking into the Kudrich house, but denied touching the victim’s underwear; and (5) appellant telephoned an acquaintance on November 14, 1988, and said, “I did the same thing again that I got arrested for.” The evidence presented by the Commonwealth was more than sufficient, if believed, to prove appellant’s guilt beyond a reasonable doubt.

Appellant’s fourth issue is whether the trial court erred in denying his motion in arrest of judgment and motion for new trial. Appellant bases this argument on his first three issues, supra, and on the trial court’s characterization that appellant’s foster father identified the flashlight found in the victim’s bed as “missing and belonging to him.” Trial court opinion, at 1-2. The transcript shows that appellant’s foster father, Rev. Edward Forkan, actually testified: “Well, it’s similar to the one I have. Whether it’s mine specifically or not, I don’t know.” N.T. 62. Pennsylvania State Police Corporal Donald Bradbury testified that upon being shown the flashlight, Rev. Forkan said: “it must be mine or I got one just like it.” N.T. 69. While the trial court’s statement may not be a rote repetition of the testimony, we find no error, as the court merely describes a legitimate conclusion which the jury may properly have reached. As we have found no error in appellant’s first three issues, we need not discuss them further.

Before considering appellant’s fifth, sixth and seventh issues, all of which pertain to the discretionary aspects of sentencing, we consider appellant’s final issue: “Whether the sentence imposed by the Trial Court constituted cruel and unusual punishment in contravention of Article 1, section 13, of the Pennsylvania Constitution and the eighth amendment of the U.S. Constitution.” Appellant argues that a sentence of three to ten years’ incarceration, given appellant’s mental retardation, is cruel and unusual punishment. A punishment is cruel and unusual under the eighth amendment “only if it is so greatly disproportionate to an offense as to offend evolving standards of decency or a balanced sense of justice.” Commonwealth v. Ehrsam, 355 Pa.Super. 40, 62, 512 A.2d 1199, 1210 (1986), allocatur denied, 515 Pa. 573, 527 A.2d 535 (1987), cert. denied, — U.S. —, 110 S.Ct. 321, 107 L.Ed.2d 311 (1989).

While not precisely on point, we note a recent case in which the Supreme Court of the United States held that the eighth amendment to the United States Constitution does not prohibit imposing even the death penalty against a mentally retarded defendant, so long as the defendant’s retardation is considered. Penry v. Lynaugh, — U.S. —, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The record clearly reveals that the trial court did consider appellant’s retardation, as well as the pre-sentence report and additional information supplied by appellant’s counsel in arriving at the sentence imposed. Appellant’s aggregate sentence for convictions of burglary and indecent assault was a term of imprisonment for three to ten years. We find no basis to hold that this sentence is constitutionally impermissible. Cf. Commonwealth v. Landi, 280 Pa.Super. 134, 421 A.2d 442 (1980) (holding that it was not cruel and unusual punishment to impose a prison sentence on a paraplegic confined to a wheelchair).

We further reject appellant’s assertion that the trial court “sentencefd] him to prison without appropriate supportive services[.]” Appellant’s brief, at 50. An inspection of the sentencing transcript reveals that the court directed that appellant be “transported directly to the Camp Hill facility and to be enrolled in the Bureau of Corrections Mental Health Unit located there at the earliest opportunity.” N.T. (sentencing) 29.

Appellant finally raises three issues concerning the discretionary aspects of his sentencing:

Whether the Trial Court disregarded the evidence regarding [appellant’s] mental and learning disabilities.
Whether the Trial Court properly denied [appellant’s] motion for commitment in lieu of sentence.
Whether the Trial Court disregarded the evidence concerning [appellant’s] ability to conform his conduct to the requirements of law.

Appellant has complied with the procedural requirements to challenge these discretionary aspects of his sentence. He has: (1) filed a timely notice of appeal; (2) set forth his challenge in the statement of questions presented; and (3) included a statement of reasons relied upon for allowance of appeal, pursuant to Pa.R.A.P. 2119(f). Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); Commonwealth v. Darden, 366 Pa.Super. 597, 531 A.2d 1144 (1987).

We may not grant allowance of appeal pursuant to 42 Pa.C.S.A. § 9781(b) unless appellant has raised the appearance of a substantial question whether the sentence imposed in appropriate under the Sentencing Code as a whole. Commonwealth v. Hall, 382 Pa.Super. 6, 554 A.2d 919 (1989). For our review we assume, arguendo, that appellant’s averments that the trial court did not consider appellant’s circumstances and that the trial court disregarded the overwhelming weight of the evidence concerning appellant’s disabilities and his ability to conform his conduct to the requirements of the law do raise a substantial question. In deciding whether to grant allowance of appeal, we look to the record.

At the sentencing hearing, the trial court stated:

I feel sorry for you and your past terrible upbringing, but on the other hand you have had ample opportunity to reform.
You have committed two (2) crimes, which we don’t know what lasting effect, hopefully none, will effect two (2) young girls. People are to be protected in their own homes and not have to live in fear that someone like you will crawl into their child’s bedroom some night.

N.T. (sentencing) 28. In its memorandum denying appellant’s motion to modify sentence, the trial court states:

This Court carefully considered all of the evidence presented to it at the time of sentencing concerning the defendant’s learning disabilities and psychological problems. This Court further considered the possibility of sentencing alternatives and concluded that in this particular case none of these alternatives were available or appropriate.

Memorandum and order, filed August 3, 1989, at 1. Based on our review of the record, we deny appellant’s petition for allowance to appeal the discretionary aspects of his sentence.

Having found no merit in any of the arguments raised in this appeal, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . We reject appellant’s assertion that the victim’s testimony that an intruder “was pulling on my underwear” is insufficient to sustain an inference that the intruder did so for the purpose of arousing or gratifying sexual desire.

      . The trial court found that for sentencing purposes, the indecent assault conviction merged with the burglary conviction.


author: CAVANAUGH, Judge:

text:
    574 A.2d 684
    Robert FREEMAN and Marlene Freeman, Appellees, v. MAPLE POINT, INC. and Toll Brothers, Appellants.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1990.
    Filed May 9, 1990.

      Robert C. Houpt, Paoli, for appellants.
    James E. Lynch, Langhorne, for appellee.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

Robert and Marlene Freeman, the appellees herein, purchased a new home from the appellants, Maple Point, Inc. and Toll Brothers, in July, 1984. The house was part of a housing development of single homes and the purchase price was $95,900.00. The house was situated on a lot approximately 80 feet x 130 feet. Because of the grading of the lot and the nature of the soil, which had a high clay content, and the construction of the driveway, water collected in certain areas of the lot after heavy rains. This was brought to the builder’s attention by the Freemans and the builder attempted to correct the situation by regrading the property. The Freemans also made improvements on the house after they purchased it by enclosing the patio at the rear of the house and adding a 12 feet x 13 feet concrete patio. The appellees also put in trees and sod on the property.

After at least four attempts by the builder to regrade the property were not successful in solving the surface water problem, a civil action in assumpsit was commenced against Maple Point, Inc. and Toll Brothers. The demand for damages was more than $7,000.00, but less than $20,000.00 and the matter was referred to arbitration. An award was entered by the arbitrators in favor of the appellees and against the appellants in the amount of $5,874.55. Appellants filed a timely appeal to the Court of Common Pleas. Following a jury trial before Ward, J., a verdict was entered in favor of the appellees and against the appellants in the amount of $45,785.00. The appellants’ motions for new trial and for judgment n.o.v. were denied and judgment was entered on the verdict. An appeal has been taken to this court from the judgment of the court below.

The appellees presented testimony at trial by Jonathan Tabas, a registered engineer and land surveyor, who testified that the driveway was the main contributor to the problems connected with surface water. He also concluded that the installation of a french drain was necessary as well as removal and proper construction of the driveway. His estimate of the cost for. correcting the problem of excess water was $50,738.00. The appellants’ expert witness, Mr. Froshour, estimated that it would cost approximately $10,-000. to $12,000.00 to remedy the situation.

In our opinion, the appellees, the plaintiffs below, did not properly establish damages. The measure of damages for breach of contract in the construction of a house containing defects is set forth in Gadbois v. Leb-Co. Builders, Inc., 312 Pa.Super. 144, 152, 458 A.2d 555, 559 (1983) wherein we stated:

The measure of damages in cases where a homeowner sues for defective construction is the difference between the market value of the house as constructed and the market value that the house would have had if constructed as promised, with the qualification that if it is reasonably practical to cure the defects in construction by repair, and if the cost of repairs does not exceed the difference in market value, then the measure of damages is the cost of repairs.

In the instant case, the appellees presented no evidence whatsoever as to the value of their house as constructed with all of its water problems, and the value it would have had with proper drainage. Only by establishing probable diminution in value because of the improper grading and driveway construction, would it be possible to determine if the damages awarded in the amount of $45,785. were appropriate. The cost of repairs of $45,785. would be excessive if the house had not diminished in value to at least that extent.

In the recent case of Douglass v. Licciardi Construction Co., Inc., 386 Pa.Super. 292, 562 A.2d 913, 915-916 (1989), we stated:

Pennsylvania courts, consistently therewith, have generally allowed damages for incomplete or defective performance of a building contract to be measured by the cost of completing the work or correcting the defects by another contractor. See, e.g.: Ecksel v. Orleans Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987); Steinhauer v. Wilson, 336 Pa.Super. 155, 485 A.2d 477 (1984); Brourman v. Bova, 198 Pa.Super. 279, 182 A.2d 245 (1962). It is only where the cost of completing performance or of remedying the defects is clearly disproportionate to the probable loss in value to the injured party that damages will be measured by the difference between the market price that the property would have had without the defects and the market price of the property with the defects. Although articulating the rule in a slightly different manner, the Court acknowledged and followed the same principle in Gadbois v. Leb-Co. Builders, Inc., 312 Pa.Super. 144, 458 A.2d 555 (1983). Where the cost of remedying the defects in construction is not clearly disproportionate to the probable loss in value to the injured party, the breaching contractor cannot require that the injured party’s damages be measured by the difference between the market price of the property without the defects and the price of the property with the defects. (Emphasis added.)

The appellees did not establish what the value of their house would have been had the surface water problem not existed, and its diminished value because of the water problem. The jury entered a verdict based on the cost of correcting the situation as that was the only issue submitted to it. The verdict in the amount of $45,785.00 represented almost 48% of the cost of the house and it is clear in these circumstances that the jury should have had some idea as to the diminution of value in order to avoid a windfall to the appellants. The rule set forth in Douglass v. Licciardi Construction Co., Inc., supra, requires that the cost of repairs be clearly disproportionate to the probable loss in value before damages are limited to the loss in value. Therefore, there must be some evidence produced by the plaintiff of the reduction in value, although it need not be shown with exactitude. There must be a balancing between the probable diminution in value, which is often quite nebulous, and the cost of repairs which may be determined with greater accuracy. However, there must be some reasonable basis for determining reduction in value, before a judgment may be made that the cost of repairs is a proper measure of damages, where the required repairs to a new house represent a high percentage of the cost of the house.

The court below, in its opinion, determined that there was no evidence presented by any of the parties that the repairs exceeded the fair market value of the property, and that, therefore, Gadbois v. Leb-Co. Builders, supra, was inapplicable. In our view, the court has misread Gadbois. It is not where repairs exceed the fair market value of the property that the measure of damages is the diminution of value, it is where the cost of repairs exceeds the diminution of value, that the cost of repairs is not the measure of damages. The court below has misconstrued the measure of damages and the issue is properly raised in the appellants’ motion for new trial.

A secondary reason for awarding a new trial is that the court erred in admitting the testimony of Jonathan Tabas as an expert when his written report was not given to counsel for the appellants until the day trial began. This resulted in prejudice to the appellants. The complaint sought damages in an amount in excess of $7,000. and less than $20,000. In their answer to interrogatories, the plaintiffs stated that their expert would be “Carroll Engineering” who would testify as to the “cause of swamp-like conditions on plaintiffs’ property” and various repairmen. There was no indication that they would call Jonathan Tabas as a witness.

In March, 1987, about IV2 years before trial, the plaintiffs answered the following interrogatories:

19. Please attach any and all bills in the possession of Plaintiff which indicate that it would cost Plaintiff $7,000 to regrade their property or reinstall the driveway. If not, on what do you base your estimate?
[ANSWER] See repair estimate of Marrazzo Landscaping dated April 1, 1986; this estimate was delivered in April, 1986. This price is no longer effective. It is believed that the Marrazzo Landscaping estimate will increase approximately 10% since the time of the estimate. Furthermore, the estimate will include replacement of sod which has died due to swamp-like conditions. Plaintiffs do not yet have an estimate for replacement of sod, but believe that the cost will exceed $1500.00. Driveway estimate to be supplied. Plaintiffs have received a verbal estimate from Stanley Paving Company to remove and reinstall the driveway for $3000.00.

The Marrazzo Landscaping Company estimate of April 1, 1986, which was attached to the answers to the interrogatories, estimated the cost of regrading and installation of new sod in the amount of $1,140.00. The cost of supplying and installing the French drain was $3,025.00 for a total of $4,165.00 which the plaintiffs believed would be increased by 10% to a total of approximately $4,580.00. The appellees also added $1,500.00 for additional sod and $3,000.00 to remove and replace the driveway. Their total estimate for grading, removal and replacement of the driveway and installation of new sod was approximately $9,080.00. The estimate of Carroll Engineering Company, their expert, was $6,800.00.

It was not until Jonathan Tabas prepared his report dated October 2, 1988, on behalf of the appellees did it appear that their alleged damages exceeded $50,000.00. The start of trial was postponed for approximately 30 days at the request of the appellees for the ostensible reason of their obtaining the presence of Jamie Williams as an expert. Shortly before trial began, counsel for the plaintiffs identified Mr. Tabas as their expert. On the day trial commenced, counsel for the defendants was furnished with a copy of Mr. Tabas’ report. At trial, counsel for the appellants objected to his testifying on the basis of surprise and the objection was overruled by the court since counsel had an opportunity to read the report.

Counsel for the appellees failed to comply with Pa.R.C.P. 4003.5(a)(1) which provides that the parties through interrogatories may require “any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify ...” The rule further provides in § 4003.5(b):

(b) If the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.

The appellees had the duty to identify their expert witness, Mr. Tabas, in response to the defendants’ interrogatories. Curran v. Stradley, Ronan, Stevens & Young, 361 Pa.Super. 17, 521 A.2d 451 (1987). Instead, they only identified Carroll Engineering as their expert and unnamed workman. Adequate notice to the defendants was not given where plaintiffs’ counsel waited until the. day trial commenced to furnish counsel for the defendants a written copy of the expert’s report. We have held that the giving of five months notice that a person will be called as an expert is adequate, but noted that “the purpose of Rule 4003.5 is to prevent the unfairness that would occur if one party would be unable to counter the expertise of a surprise witness produced at the last minute by the opposing party.” Jistarri v. Nappi, 378 Pa.Super. 583, 596, 549 A.2d 210, 217 (1988).

Mr. Tabas had been on the appellees’ property at least two times between 1984 and 1988 at the request of the appellees. There were no extenuating circumstances shown that would justify nondisclosure of Mr. Tabas as an expert witness until the eve of trial. Perhaps we would not find his testimony so prejudicial to the appellants if his estimate of damages did not so greatly exceed the amount of damages that the appellants reasonably anticipating defending against up to the date of trial. The plaintiffs had a duty to timely supplement the answers to their interrogatories pertaining to the identity of the expert witness under Pa.R.C.P. 4007.4(1) which provides that: “[a] party is under a duty seasonably to supplement his response with respect to any question directly addressed to ... the identity of each person expected to be called as an expert witness at trial ...” The prejudice resulting to the appellants by the untimely identification of Mr. Tabas and the production of his report, requires the grant of a new trial.

Finally, a new trial is mandated as to damages as the verdict shocks the conscience of this court because of its excessiveness. We may grant a new trial on the ground that a verdict is excessive and contrary to the weight of the evidence where it shocks the court’s sense of justice and makes a new trial imperative so that right may be given another opportunity to prevail. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970); Phillips v. Schoenberger, 369 Pa.Super. 52, 534 A.2d 1075 (1987). Mr. Tabas testified to the cost of replacing the driveway, grading the property and installing a french drain on the basis of what other persons told him would be the cost. He had no personal experience in buying the supplies that would be used in constructing the driveway such as crushed stone or in items involved in regarding such as sod. Mr. Tabas testified that he had never supervised the installation or removal of a driveway on a residential property. The estimate by Carroll Engineering to correct the problem, including the installation of a french drain, was $6,800.00. Inflation may be a factor, but we cannot agree that the cost could increase five times from the date of the estimates up to the time of trial. Although the verdict is excessive, the issue of liability of the appellants was properly before the jury. The verdict as to liability of the appellants shall remain.

Judgment reversed and case remanded to the court below for a new trial limited to the issue of damages. We relinquish jurisdiction.

      . Mr.. Tabas testified as follows concerning the cost of correcting the water problem.
      A. This is a cost estimate for the construction of a french drain which was proposed in my memorandum. I believe it was dated October the 21st. It includes the excavation, removal of dirt in order to construct a french drain, disposing of that dirt, placement

        of crushed stone in the excavated trench of the french drain, placing or providing and placing for an underdrain pipe or what would be a four inch perforated pipe to allow the water to enter into the pipe and drain off into that trench connecting that pipe to the street, getting township permits and approvals for that connection, grading the lawn after the completion of work and the area around the house which would obviously be disturbed by construction activities, placement of top soil, sod, fertilizing, demolition of the existing driveway and regrading of the property to allow for positive drainage plus an appropriate amount for design and inspection fees, a total of which would be approximately fifty thousand eight hundred dollars. The exact number on my estimate is $50,738.00.
      Q. Now, when you talk about the removal of the driveway and the regrading of the property would that in effect put in the swales that aren't there now?
      A. Correct. That includes the installation of the swales so that the water will flow freely on the surface of the ground towards Atkinson Lane.
      Q. And would this in your opinion resolve the problems on the Freeman property?
      A. Yes.

      . In Douglass v. Licciardi Construction Co., supra, we stated with reference to Restatement (Second) of Contracts § 348(2) quoting from comment c:
      Sometimes, especially if the performance is defective as distinguished from incomplete, it may not be possible to prove the loss in value to the injured party with reasonable certainty. In that case he can usually recover damages based on the cost to remedy the defects ...

        Sometimes, however, such a large part of the cost to remedy the defects consists of the cost to undo what has been improperly done that the cost to remedy the defects will be clearly disproportionate to the probable loss in value to the injured party. Damages based on the cost to remedy the defects would then give the injured party a recovery greatly in excess of the loss in value to him and result in a substantial windfall. Such an award will not be made. It is sometimes said that the award would involve “economic waste,” but this is a misleading expression since an injured party will not, even if awarded an excessive amount of damages, usually pay to have the defects remedied if to do so will cost him more than the resulting increase in value to him. If an award based on the cost to remedy the defects would clearly be excessive and the injured party does not prove the actual loss in value to him, damages will be based instead on the difference between the market price that the property would have had without the defects and the market price of the property with the defects. This diminution in market price is the least possible loss in value to the injured party, since he could always sell the property on the market even if it had no special value to him. (Emphasis added.)
      386 Pa.Super. 292, 562 A.2d 915.

      . If at trial the appellees had established that without the drainage problems their house would have had a probable value of $120,000, but with the situation existing it had a market value of only $90,000, then the verdict of $45,785 would have resulted in a windfall to them of $15,785, the difference between the loss in value and the amount of the verdict. This, of course, is only an illustration as no evidence was submitted by the appellees concerning the reduction in the value of their home because of the defects in grading and the driveway construction.

      . The Carroll Engineering report of July 6, 1986 set forth a second and third option for correcting the situation as follows:
      A second option is the construction of the originally designed swale. This option, while permitting a free flow of water to the street, would be the most disruptive on a short term basis, as it would require regrading of your side yard, a portion of the rear yard, and a major portion of your driveway.
      The third option consists of the work suggested in Option No. 2 and the installation of the underdrain (without the inlets) proposed by Toll Brothers. This option would provide free drainage during rain storms and also address the concern of saturated soils after a rain storm, and would, therefore, appear to be the most ideal solution.
      At trial, the appellees’ expert, Jonathan Tabas, who had no connection with Carroll Engineering, testified that his memorandum of October 21, 1988, stated that he essentially agreed with the comments and recommendations set forth in the Carroll Engineering report. The Carroll Engineering Company estimated that it would cost about $6,800. to correct the water problem. (N.T. 267).

      . Mr. Williams testified at trial as to the cost of materials but not as an expert.


text:
    574 A.2d 690
    In the Interest of Laura SWEENEY. Appeal of Verna THOMPSON.
    Superior Court of Pennsylvania.
    Argued March 8, 1990.
    Filed May 9, 1990.

      Barbara J. Entwistle, Gettysburg, for appellant.
    David K. James, Gettysburg, for appellee.
    Chester G. Schultz, Gettysburg, for Adams County Children and Youth Services, participating party.

      Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from an Order entered July 6, 1989 which continued placement of appellant Verna Thompson’s daughter, Laura L. Sweeney, in foster care and which adopted a long-range goal of adoption for the child, rather than reunification with appellant.

Laura Sweeney was born on May 31, 1983 and except for a three-month period in 1985-86, has been in foster care continuously since October 5, 1984, when appellant voluntarily relinquished custody to Adams County Children and Youth Services. During the time Laura has been in foster care, the court conducted periodic review hearings, as required by the Juvenile Act, 42 Pa.C.S. § 6301 et seq., and each time the court concluded the conditions necessitating placement had not been alleviated. It is from the last of these hearings, July 5, 1989, and the subsequent Order, that the instant appeal stems.

Appellant first argues the trial court erred in applying the “best interests of the child” standard instead of the “clear and convincing evidence” standard in determining whether the placement goal should be changed. We disagree.

The standard for adjudicating a child dependent is “clear and convincing evidence”, as well as a showing of clear necessity. Helsel v. Blair County Children and Youth Serv., 359 Pa.Super. 487, 519 A.2d 456 (1986); 42 Pa.C.S. § 6341(c). Once a child is adjudicated dependent, however, the issues of custody and continuation of foster care are determined according to a child’s best interests. In Re Miller, 380 Pa.Super. 423, 552 A.2d 261 (1988). In the instant case, appellant has not contested the dependency finding, and as Laura had been adjudged dependent prior to, and at the time of, the July'5, 1989 judicial review hearing, the trial court applied the proper standard in continuing Laura in foster care and modifying the long-range goal.

We also do not find the clear and convincing standard applicable to appellant’s allegations the change in the long-term goal means appellant’s “minimal visitation schedule” with Laura may be reduced. The trial court allayed these concerns at the last judicial review hearing.

THE COURT: ... If we do change the goal plan, I will not be suspending visitation____ The visitation rights will have to be determined at a termination hearing. If the parent’s rights are terminated that will take care of the visitation.
******
THE COURT: What we’re talking about right now is A, shall the child remain in placement. B, shall the goal, long range goal plan be changed.

N.T., 7/5/89, p. 21.

At such time as appellant’s parental rights are subject to termination, the applicable evidentiary standard will be clear and convincing evidence. However, the situation is not presented instantly, and this claim is without merit.

Appellant next argues the facts and equities of the case do not support the conclusion reached by the trial court that the condition necessitating placement had not been alleviated, and that it would be contrary to the child’s welfare to reunify her with her mother. Specifically, appellant argues the lack of housing which necessitated placement of Laura in foster care in 1984 is no longer a problem.

Review by the court is not limited to the original conditions or circumstances which necessitated placement. Sections 6351(f) and (g) of the Juvenile Act enumerate the determinations to be made by the court.

(f) Matters to be determined. — At each disposition review hearing, the court shall:
(1) determine the continuing necessity for and appropriateness of the placement;
(2) determine the extent of compliance with the service plan developed for the child;
(3) determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;
(4) determine the appropriateness and feasibility of the current placement goal for the child; and
(5) project a likely date by which the goal for the child might be achieved.
(g) Court order. — On the basis of the determinations made under subsection (f) and other relevant evidence, the court, in addition, shall:
(1) determine whether the child:
(1) should be returned to the parents, guardian or other custodian;
(ii) should be continued in placement for a specified period; or
(iii) because of the child’s special needs or circumstances, should remain in placement on a permanent or long-term basis; and
(2) order continuation, modification or termination of placement or other disposition best suited to the protection and physical, mental and moral welfare of the child.

42 Pa.C.S. §§ 6351(f), (g).

The trial court, within the exercise of its discretion, found, based on the record and the testimony presented on behalf of both Children and Youth Services and appellant, appellant had not cooperated with the family service plan and circumstances warranted the child’s continued placement in foster care.

The court stated:

November, 1985 the Court Order was to return the child to the mother over objection by the way of Children’s Services. That’s in 1985. The child was with the mother exactly three months. She then turned the child to the custody of the York County Children and Youth Services and then that agency transferred the case here. June, 1987 the mother agreed that the child should return, should remain in placement. December, 1987 neither parent appeared at the review hearing. June, 1988 we had the review hearing right after some domestic violence in Cumberland County in which the police were called and father at that time said that the parents were not ready for the child to be returned. Mother complained a little bit about the agency in Cumberland County but that was about it. December, 1988 which was the last review, the last visit was in July and it was said and not disputed that most of the visits that had been scheduled had been canceled [sic] by the mother. It was said at that time that the child was apprehensive about seeing the mother but there had been absolutely, really very little contact between mother and child.
We have today a statement that although mother was in jail she somehow feels that she was wrongfully deprived of the child’s contact during jail. That’s just not the law. We have had one overnight visit actually one overnight visit in a year. I have had this case for quite a few years. Mother had continually complained about lack of cooperation. She’s indicated that she wants the child back but we’re admonished by the Superior Court that long term foster placements are not to be tolerated. That there either should be reunification or adoption. I have said this to Mrs. Thompson on a number of occasions. It’s obvious that the child is not — the interests of the child will not be promoted by a return home today. We have only had slight amount of visits. It would be contrary to the child’s welfare. We have to do something. In that light the long term goal is going to be changed to adoption. The Court will not terminate the parents rights. We will wait until a termination hearing to decide that. If your client is more than just interested in talking about reunification, then I would strongly suggest that she do something about it.

N.T., 7/5/89, pp. 76-78.

Therefore, after a careful, independent review of the record in this case, this Court finds no basis for interfering with the Order entered by the trial court, nor can we say the court abused its discretion in modifying the long-range goal. Moreover, we reject appellant’s assertion that the trial court’s reference to In Re Quick 384 Pa.Super. 412, 559 A.2d 42 (1989), with its notion of Permanency Planning, is inappropriate to the case sub judice.

Permanency Planning is a concept whereby children are not relegated to the limbo of spending their childhood in foster homes, but instead, dedicated effort is made by the court and the children’s agency to rehabilitate and unite the family in a reasonable time, and failing in this, to free the child for adoption. See Adoption Assistance and Child Welfare Act of 1980, Public Law 96-272, June 17, 1980.

Id., 384 Pa. Superior Ct. at 422, 559 A.2d at 47, footnote 2.

While not the sole consideration for the Juvenile Court Judge in determining the best interests of the child, we consider the concept of Permanency Planning an invaluable aid to those considerations, as evidenced by the able trial court herein.

Order affirmed.

      . At the end of the three-month period, appellant, who was then residing in York County, relinquished custody to York County Children and Youth Services, whereupon the case was returned to the jurisdiction of Adams County.