author: WIEAND, Judge:

text:
    553 A.2d 436
    Margaret ADELSTEIN, Appellant, v. Sheldon ADELSTEIN, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 9, 1988.
    Filed Jan. 26, 1989.

      William R. Lee, Scranton, for appellant.
    David P. Posatko, Public Defender, Tunkhannock, for appellee.
    Before WIEAND, McEWEN and MELINSON, JJ.
   WIEAND, Judge:

The trial court, acting upon recommendations made by a master, entered a decree of equitable distribution which (1) awarded alimony to the wife at the rate of fifty ($50) dollars per week for one year; (2) directed each party to pay his or her own counsel fees and expenses; (3) directed that the proceeds derived from the sale of the marital home be divided equally; and (4) awarded wife a one-half (V2) interest in a single share of stock owned by husband and representing a one one-hundredths interest in a closely held business corporation. The wife appealed. In every respect, she contends, the awards made to her were inadequate. We find merit in the last of her contentions; and, therefore, we reverse and remand for further consideration.

Margaret and Sheldon Adelstein were married on April 25, 1964. Following marriage, Margaret discontinued her employment and for the next eighteen years became a homemaker and mother. Sheldon was one of two shareholders in NEPP Wire Products, Inc., a closely held corporation engaged in the business of manufacturing lamp shades and lamp components. The parties separated in 1982, and a divorce action followed. Prior to the hearing before a master, most items of personal property had been distributed by and between the parties. The master, after taking testimony, made additional recommendations which the court, despite exceptions by both spouses, incorporated into a final decree.

The trial court’s order regarding alimony must be evaluated against an abuse of discretion standard. Mazzei v. Mazzei, 331 Pa.Super. 432, 437, 480 A.2d 1111, 1113 (1984). “[I]f a party receiving alimony is able to provide for [her] reasonable needs through employment, the court is to fashion an alimony order to be in effect only until such employment has been obtained or the party has developed an appropriate employable skill.” Id., 331 Pa.Superior Ct. at 443, 480 A.2d at 1116, quoting Geyer v. Geyer, 310 Pa.Super. 456, 464, 456 A.2d 1025, 1029 (1983). Here, the husband-appellee has supported the wife-appellant during the pendency of the divorce proceedings, and the trial court found that wife-appellant, in an additional year, should be able to become self-supporting. The record discloses no impediment, whether physical, mental, or educational, that would prevent appellant from supporting herself. Under these circumstances, there is no basis in this case for finding an abuse of the trial court’s discretion in the fixing of alimony.

In determining the propriety of an award of counsel fees, we also utilize an abuse of discretion standard of review. Miller v. Miller, 352 Pa.Super. 432, 443, 508 A.2d 550, 556 (1986); Pangallo v. Pangallo, 329 Pa.Super. 25, 31, 477 A.2d 885, 888 (1984); Prozzoly v. Prozzoly, 327 Pa.Super. 326, 331, 475 A.2d 820, 823 (1984); Ruth v. Ruth, 316 Pa.Super. 282, 285, 462 A.2d 1351, 1352-1353 (1983). However, counsel fees are not awarded to either spouse automatically. Diamond v. Diamond, [360 Pa. Super. 101, 116, 519 A.2d 1012, 1019 (1987)]. “Actual need must be shown in order to justify an award.” Dech v. Dech, 342 Pa.Super. 17, 23, 492 A.2d 41, 44 (1985), citing Hoover v. Hoover, 288 Pa.Super. 159, 161-162, 431 A.2d 337, 338 (1981). Counsel fees are appropriate when necessary to put the parties “on a par” in defending their rights or in allowing a dependent spouse to maintain or defend an action for divorce. See: Miller v. Miller, supra 352 Pa.Super. at 442, 508 A.2d at 556; Dech v. Dech, supra; Young v. Young, 274 Pa.Super. 298, 302, 418 A.2d 415, 417 (1980).

Johnson v. Johnson, 365 Pa.Super. 409, 415, 529 A.2d 1123, 1126 (1987). In the instant case, the court determined that the distribution of property was sufficient to require both spouses to pay their own legal fees. A spouse’s separate estate is a legitimate consideration in the trial court’s determination of a request for counsel fees. Fitzpatrick v. Fitzpatrick, 377 Pa.Super. 268, 271, 547 A.2d 362, 369 (1988). We find no abuse of discretion in the trial court’s determination that each party had sufficient assets to pay his or her own counsel fees.

The marital home was sold during the divorce proceedings for thirty-five thousand ($35,000) dollars. The trial court distributed these proceeds equally between the parties. Although we find no abuse of discretion in the court’s equal division of the proceeds, we observe that some revision may be necessary in order to correct the error made by the court in distributing husband-appellee’s interest in NEPP Wire Products, Inc., a closely held business corporation.

NEPP Wire Products, Inc. was organized in 1979 by the husband-appellee and Gene DeMuro. Its initial capitalization was forty thousand ($40,000) dollars. Of this amount, husband-appellee contributed twelve thousand five hundred ($12,500) dollars, ten thousand of which had been borrowed from DeMuro. The balance of the initial capital was contributed by DeMuro. Although one hundred (100) shares of stock had been authorized, only two shares were issued. One share was issued to DeMuro, and one share was issued to the husband-appellee. This was intended to vest an equal interest in the corporate owners. The remaining ninety-eight (98) shares were held as treasury stock.

The existence and nature of marital property are determined as of the date of separation. Divorce Code of April 2,1980, P.L. 63, No. 26, § 401(e)(4), 23 P.S. § 401(e)(4). When Margaret and Sheldon Adelstein separated in 1982, Sheldon owned a one-half interest in NEPP Wire Products, Inc. This one-half interest was marital property.

In 1983, while the divorce action was pending, the ninety-eight shares of treasury stock were issued to DeMuro. There was no additional consideration paid for these shares of stock. The issuance of the stock, according to the testimony, was intended to compensate DeMuro for his greater capital contribution and also to repay the initial loan of ten thousand ($10,000) dollars which he had made to the husband-appellee. The later issue of treasury stock without new consideration did not change the interest which the husband-appellee owned at the time of separation and which was subject to distribution in the divorce proceedings. That interest could not be diluted by the issuance of treasury stock to DeMuro without consideration. When the court held that only husband-appellee’s one-one hundredth (Vioo) interest constituted marital property, therefore, it erred.

The attempt by the shareholders inter se to rearrange their respective interests in the corporation did not alter Adelstein’s obligation to account in the divorce action for his interest in the corporation on the date when he and his wife separated. On that date, only two shares of stock were outstanding, and the husband owned one of them. If the corporation had been liquidated on the date of separation, its assets would have been distributed equally between its authorized stockholders. 18 C.J.S. Corporations § 212. See also: Commonwealth v. Ajax Metal Co., 29 Dauph. 4, 8 Pa.D. & C. 30 (1925). Although 98 shares were then in the corporate treasury, these shares had no liquidating value and could not have participated in the distribution; they would not have been a factor in distributing the corporate assets. Henn, The Law of Corporations (2d edition) at 291. See also, Note, The Legal Status of Treasury Shares, 85 U.Pa.L.Rev. 622, 626 (1937). Where, as here, two shareholders owned one share each, the value of each share was equivalent to one-half of the corporate assets available for liquidation purposes. In a division of marital assets, the non-shareholder spouse is entitled to participate in that which the shareholder spouse would have realized if his or her interest in the corporation had been liquidated. Fletcher, Cyclopedia of Corporations, Stock & Stockholders, § 5102, at 116. Therefore, when appellant and appellee separated, the interest in the business to be distributed as marital property was a one-half (V2) interest therein.

The Supreme Court of Pennsylvania has held that marital property is to be evaluated at the date of distribution. Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988). In the instant case, however, the corporation has appreciated in value since the separation and now has a value in excess of seven hundred thousand ($700,000) dollars. This has been accomplished in large measure because of the post-separation efforts of husband and his co-owner of the business. To these post-separation efforts, the wife-appellant has made no contribution. This, too, may be considered by the trial court in ordering distribution of marital assets equitably between husband and wife. Husband, who has already paid a part of his work product to the wife-appellant as support, should not be deprived totally of the fruits of his labor.

Reversed and remanded for further consideration in accordance with the foregoing opinion. Jurisdiction is not retained.

      . Two children were born of the marriage. At the time of the trial court’s decision, they were 21 and 19 years old. Their support is not in issue.

      . On that date, of course, Sheldon Adelstein was also indebted to DeMuro in the amount of ten thousand ($10,000) dollars.

      . It is obvious that appellee-husband considered himself more than a one percent owner of the corporation, for the "consideration" for the transfer of the remaining shares of stock from the corporation’s treasury was, in part, appellee’s personal debt of $10,000 to DeMuro. Appellee was, in fact, using corporate assets, i.e., treasury stock, to satisfy a personal debt.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    553 A.2d 439
    Charlotte M. McPEAKE, as Administratrix of the Estate of Robert T. McPeake, Deceased and Charlotte M. McPeake, on Behalf of Erina Jamie McPeake, a Minor by Charlotte and Robert T. McPeake and Charlotte M. McPeake in Her Own Right, Appellant v. WILLIAM T. CANNON, ESQUIRE, P.C.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1988.
    Filed Jan. 26, 1989.

      Alberto Roldan, Harrisburg, for appellant.
    Jeffrey B. Albert, Philadelphia, for appellee.
    Before BROSKY, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal arises from the order of August 26, 1987, granting appellee’s preliminary objections and dismissing appellants’ complaint with prejudice. Appellants contend that the trial court erred in granting appellee’s preliminary objections because the complaint set forth a valid claim of legal malpractice. For the reasons that follow, we affirm the order below.

On January 11, 1985, appellants’ decedent was arrested for burglary, rape, indecent assault, corrupting the morals of a minor, and possession of an instrument of crime. Decedent retained the legal services of appellee to represent him on the above-mentioned charges. On August 18, 1986, after a jury found decedent guilty on all counts, he suddenly jumped from a closed fifth floor window of the courtroom and killed himself. Appellants filed a legal malpractice, wrongful death and survivors’ action against appellee, alleging that appellee’s negligent representation of decedent caused his fatal leap from the courtroom window after the jury found him guilty of rape. Appellants averred in their complaint eighteen instances of alleged negligent conduct on the part of appellee which led to decedent’s conviction. Appellee filed preliminary objections in the nature of a demurrer. The court granted appellee’s preliminary objections and the complaint was dismissed with prejudice. This timely appeal followed.

A preliminary objection in the nature of a demurrer is not to be sustained and the complaint dismissed unless the law says with certainty that no recovery is possible. Hoffman v. Miscicordia Hosp. of Phila., 439 Pa. 501, 267 A.2d 867 (1970). Therefore, if any theory of law will support the claim raised by the [complaint], a dismissal is improper____
For the purpose of our review of a dismissal on the pleadings in the nature of a demurrer, the averments [in the complaint], except to the extent that they constitute conclusions of law, must be taken as true, Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978)....

Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). See also Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 374 Pa.Super. 613, 615, 543 A.2d 1138, 1139 (1988); Aetna Electroplating Co. v. Jenkins, 335 Pa.Super. 283, 285, 484 A.2d 134, 135 (1984).

I. Background: Causes of Action based on Suicide generally

The gravamen of appellants’ complaint is that appellee’s negligent representation during trial amounted to legal malpractice, and caused decedent to commit suicide. Generally, suicide has not been recognized as a legitimate basis for recovery in wrongful death cases. This is so because suicide constitutes an independent intervening act so extraordinary as not to have been reasonably foreseeable by the original tortfeasor. See Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). See also Annot., 41 A.L.R.4th 351, 352 (1985); 11 A.L.R.2d 751, 757 (1950); W. Prosser, Law of Torts § 44, at 280-81 (4th ed. 1971). There are, however, limited exceptions to this rule. For example, Pennsylvania has recognized suicide as a legitimate basis for wrongful death claims involving hospitals, mental health institutions and mental health professionals, where there is a custodial relationship and the defendant has a recognized duty of care towards the decedent. See Simmons v. Saint Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984); Smith v. United States, 437 F.Supp. 1004 (E.D.Pa. 1977). In other cases, where the defendant was not associated with a hospital or mental health institution, courts have required both a clear showing of a duty to prevent the decedent’s suicide and a direct causal connection between the alleged negligence and the suicide. See Malloy v. Girard Bank, 292 Pa.Super. 34, 436 A.2d 991 (1981); Freedman v. City of Allentown, 651 F.Supp. 1046 (E.D.Pa.1987). A third line of cases which have recognized suicide as a basis for recovery involve suits brought under the worker’s compensation statute. See Globe Security Sys. Co. v. Workmen’s Comp. App. Bd, 103 Pa.Commw. 384, 520 A.2d 545 (1987); SCM Corp. v. Workmen’s Comp. App. Bd. (Schulman), 102 Pa.Commw. 536, 518 A.2d 887 (1986). Under this statute, compensation will be granted if a suicide was caused by pain, depression or despair resulting from a work-related injury so severe as to override rational judgment. See Globe Security Sys. Co. v. Workmen’s Comp. Bd., supra; SCM Corp. v. Workmen’s Comp. Bd. (Schulman), supra; But see McCoy v. Workmen’s Comp. App. Bd:, 102 Pa.Commw. 436, 518 A.2d 883 (1986).

II. Legal Malpractice

On review, the issue presented for us is whether an attorney may be held liable for his client’s suicide that has allegedly resulted from the attorney’s negligent representation. More specifically, the question is whether an attorney’s duty of representation extends to protecting a client from his own suicidal tendencies. The issue is one of first impression in Pennsylvania.

A.

Appellants proceed under a theory of legal malpractice. As a general matter, the plaintiff in a legal malpractice action must be prepared to show:

1. the employment of the attorney or other basis for duty;
2. the failure of the attorney to exercise ordinary skill and knowledge;
3. that such negligence was the proximate cause of the plaintiff’s injuries.

Schenkel v. Monheit, 266 Pa.Super. 396, 398, 405 A.2d 493, 494 (1979) (quoting R. Mallen & V. Levit, Legal Malpractice 123 (1977)) (footnote omitted). These elements must be proven by a preponderance of the evidence. Schenkel v. Monheit, supra. An attorney will be found to have been negligent if he or she has failed to use that ordinary skill, knowledge, and care which would normally be possessed and exercised under the circumstances by members of the legal profession. See Restatement of Torts, § 299A(2) (1988 edition); Duke v. Anderson, 275 Pa.Super. 65, 418 A.2d 613 (1980). Once the plaintiff has established that a duty of care is breached, the plaintiff must still establish a causal connection between the defendant’s negligent conduct and the plaintiff’s injuries. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1285 (1978). “Proximate” or “legal” causation in turn is defined as “[t]hat which, in a natural and continuous sequence, unbroken by any sufficient intervening cause, produces injury, and without which the result would not have occurred.” Wisniewski v. Great Atlantic and Pacific Tea Company, 226 Pa.Super. 574, 582, 323 A.2d 744, 748 (1974). Moreover, Prosser has noted that the question of “proximate” causation,

... becomes essentially a question of whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether his duty includes protection against such consequences.

W. Prosser, supra § 42, at 244. Thus, a defendant will not be found to have had a duty to prevent a harm that was not a reasonably foreseeable result of the prior negligent conduct. The rationale behind this rule is that it would be unfair to impose a duty upon persons to prevent a harm that they could not foresee or avoid.

B.

Here, appellants assert that as a result of appellee’s negligent representation decedent committed suicide. More specifically, appellants claim that decedent committed suicide while possessed by an uncontrollable insane frenzy brought on by the jury’s verdict of guilty. Appellants further allege that appellee knew of decedent’s emotional problems because they were manifested by the uncontrollable twitching of his limbs and his prior expressed intention to take his own life. Appellants therefore argue that decedent’s suicide was foreseeable, and that appellee’s negligent legal representation was the direct cause. The trial court, in sustaining appellee’s preliminary objections, stated that:

The court concludes as a matter of law, assuming the malpractice or negligence of [appellee] is true as alleged, that jumping out of a window is not foreseeable and therefore the alleged actions or omissions of [appellee] are not the proximate or legal cause of [decedent’s] injuries. The court will not elaborate further as this issue is a matter of common sense.

Trial Court Opinion at 1.

Our research has revealed only one reported case which deals directly with suicide as the alleged result of legal malpractice. In McLaughlin v. Sullivan, 123 N.H. 335, 461 A.2d 123 (1983), the New Hampshire Supreme Court rejected a wrongful death claim brought against an attorney based upon his client’s suicide following the client’s conviction in a criminal case. The issue presented in McLaughlin, as here, was whether, as a matter of law, legal malpractice could be a legal or proximate cause of suicide. Id. at 341, 461 A.2d at 127. The Court held that a lawyer’s duty of representation does not extend to protecting a client from his suicidal tendencies, and thus, proximate causation could not be established as a matter of law. Id. We agree with the McLaughlin court and adopt its holding as a matter of Pennsylvania law.

The duty of an attorney in a criminal case is to provide competent legal representation to his client. If an attorney does not provide adequate representation, he has breached his duty and is liable to his client for the resulting injuries. An attorney, however, is responsible only for the loss proximately caused his client by his negligence. Suicide has been recognized as an act that is so extraordinary as not to be reasonably foreseeable and thus courts have held that it is not the type of harm that can proximately result from ordinary negligence. The exceptions to this rule usually involve defendants with some special knowledge or duty, such as institutions, hospitals, and mental health professionals. An attorney, unlike a hospital or mental health professionals, has no special expertise or professional training, that would enable him either to foresee that a client is likely to commit suicide, or, if he could make that determination, to adopt a response to the threat. The McLaughlin Court’s reasoning in this regard is instructive:

we do not believe that lawyers generally have either the expertise or training necessary to judge or foresee that a client will commit suicide, or to fashion appropriate responses to a risk. It follows that such a risk should not be found to be a hazard against which a lawyer can fairly be said to have the duty to guard. We find the connection between negligence in the practice of law, and the harm which befell the decedent in the case to be simply too attenuated to impose legal liability on the part of the defendant.

Id. at 342, 461 A.2d at 127-28. Because an attorney does not possess the ability either to perceive that a client is likely to commit suicide, or to prevent the suicide, we will not impose liability upon him for failing to prevent a harm that is not a foreseeable result of prior negligent conduct.

Moreover, we agree with the McLaughlin Court that, as a matter of policy, it would be inappropriate to impose liability upon an attorney for a suicide that allegedly resulted from his negligence. To impose liability based on a client’s suicide,

would undoubtedly open the floodgates of unexpected and inequitable liability on the part of attorneys. Neither are we unmindful of the fact that attorneys, if exposed to such liability, would naturally be discouraged from representing what may be a sizeable number of depressed or unstable criminal defendants, in the fear that it would later be alleged that one such client committed suicide out of despondence over a “wrongful” conviction based on inadequate representation.

Id. at 342-47, 461 A.2d at 127-28.

In light of the foregoing, we find, as a matter of law, that the alleged negligence of appellee could not be the proximate cause of decedent’s injuries, and thus we hold that an attorney’s duty to provide adequate representation does not encompass the duty to foresee and protect a client from his own possible suicidal tendencies. Thus, even assuming that appellee negligently represented the decedent, he cannot be held liable for decedent’s subsequent suicide. We therefore conclude that the trial court properly granted appellee’s preliminary objections and that appellants’ negligence action seeking damages for decedent’s suicide was properly dismissed. Accordingly, we affirm the order below.

Order affirmed.

      . Appellee's preliminary objections in the nature of a demurrer are as follows:
      (1) Plaintiffs have filed this wrongful death and survivor’s action against defendant alleging that defendant was negligent in representing decedent in a criminal proceeding.
      (2) The harm which plaintiff’s allegedly suffered arose from decedent’s suicide immediately following entry of a verdict against decedent in that criminal proceeding.
      (3) An attorney cannot be held liable for alleged negligence in representing a client in a criminal proceeding unless the client (a) has pursued post-trial relief asserting ineffective assistance of counsel, (b) was prevented from pursuing such relief by conduct of counsel who was allegedly negligent, or (c) was impeded from seeking such relief by other causes beyond the client’s control. Inasmuch as the client’s suicide prevented pursuit of post-trial relief asserting ineffective assistance of counsel, no cause of action arises in favor of the client-decedent’s estate or his survivors.

        (4) An attorney cannot be held liable for alleged negligence in representing a client in a criminal proceeding unless and until a conviction occurs. Inasmuch as the suicide occurred prior to entry of judgment of conviction, no cause of action arises in favor of the client-decedent’s estate or his survivors.
      (5) An attorney cannot be held liable for alleged negligence in representing a client in a criminal proceeding unless that attorney engaged in conduct so grossly violative of the standard of conduct for such representation as to shock the conscience. In the absence of any averment of such conduct, no cause of action arises in favor of the client-decedent’s estate or his survivors.
      (6) An attorney cannot be held liable for alleged negligence in representing a client in a criminal proceeding unless the client is innocent of the crimes for which the client is being tried. In the absence of any such averment, no cause of action arises in favor of the client-decedent’s state or his survivors.
      Defendant's Preliminary Objections at 2-3.

      . We note that the allegations in appellants’ complaint are limited to ordinary negligence. Because appellants proceeded solely under this theory, we need not address the question whether liability may be premised upon a suicide caused by alleged intentional misconduct.

      . We note that other jurisdictions have recognized that liability should not be imposed upon an attorney for failing to prevent an unforeseeable harm. See Gautam v. De Luca, 215 N.J.Super. 388, 521 A.2d 1343 (1987) (claim for negligent infliction of emotional distress rejected in malpractice setting since it is not ordinarily situation in which it is foreseeable that failure to provide effective representation may cause serious mental distress); See abo Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573 (Iowa App.1987) (same); Edwards v. Chain, Younger, Jameson, Etc., 191 Cal.App.3d 515, 236 Cal.Rptr. 465 (5 Dist.1987) (same).


author: ROWLEY, Judge: CIRILLO, President Judge, POPOVICH, Judge,

text:
    553 A.2d 443
    Keith G. MILLER, Appellant, v. WISE BUSINESS FORMS, INC., Appellee, WARNER AND WARNER, INC. (Two Cases)
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed Jan. 25, 1989.

      Richard G. Spagnolli, Pittsburgh, for appellant.
    Dennis S. Mulvihill, Pittsburgh, for Wise, appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN , OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.

       McEwen, J., did not participate in the consideration of or decision upon this appeal.

   ROWLEY, Judge:

These consolidated appeals of appellant Keith G. Miller, successful plaintiff in a personal injury action, raise a single issue: whether, pursuant to Pa.R.C.P. 238, the trial court erred in refusing to award delay damages to appellant where neither appellant nor defendant/appellee Wise Business Forms, Inc. engaged in conduct that delayed the trial of the case. In light of the revision of Rule 238 promulgated by our Supreme Court on November 7, 1988, and made effective immediately, we vacate the judgment entered January 29, 1987, insofar as it does not include an award of delay damages to appellant, and remand the case to the trial court for further proceedings consistent with this opinion.

The facts of the case, briefly summarized, are as follows: Appellant was employed as a laborer by Warner and Warner, Inc., a general contractor. On December 5, 1983, appellant’s right foot was crushed in an accident on the work site where Warner and Warner was working on a building owned by appellee. Appellant filed the underlying action against appellee on October 19, 1984. Appellee joined Warner and Warner as an additional defendant.

On three occasions appellee made written requests for appellant’s settlement demands and received a response that was described by the trial court as “very limited” (Trial Court Opinion at 2). On August 27, 1986, appellant requested damages in the amount of $750,000. On October 20,1986, the date set for trial, appellee made a written offer of $25,000, which was declined by appellant. The case went to trial before a jury, which returned a verdict in favor of appellant for $195,000. Appellant was found to be one percent contributorily negligent, and the judgment eventually entered in his favor was in the amount of $193,-050.00.

Appellant sought delay damages pursuant to Pa.R.C.P. 238. Following a hearing, the trial court on January 28, 1987, entered an order denying appellant’s petition. Appellant filed exceptions to the order, which were denied by the trial court in a second order entered on February 26, 1987. On that day, appellant filed a notice of appeal to this Court from both the January 28, 1987, and the February 26, 1987, orders. This appeal has been docketed at No. 319 Pittsburgh 1987. On March 23, 1987, upon praecipe of appellant, judgment was entered on the trial court’s order of February 26, 1987, denying appellant’s exceptions. Appellant thereupon filed a second appeal to this Court, docketed at No. 418 Pittsburgh 1987, this time appealing only from the order entered on February 26, 1987.

Initially we are required to address the somewhat unorthodox procedure by which the present appeal has come before us. There is no rule of civil procedure which provides for the filing of exceptions to an order denying a petition for delay damages. Consequently, appellant’s filing of such exceptions, the trial court’s order denying the exceptions and the entry of judgment thereon, and the two appeals from the order denying the exceptions were unnecessary. We note also that on January 28, 1987, the same day that the trial court entered an order denying appellant’s petition for delay damages, the court entered a second order denying appellee’s post-trial motions and directing the prothonotary to enter judgment in favor of appellant in the amount of $193,050.00. Judgment was so entered the following day. The present appeal, therefore, should properly have been taken from the judgment entered January 29, 1987, not from the order of January 28, 1987, denying the petition for delay damages.

Nevertheless, as there has been a final judgment entered in the case and appellant’s first appeal, docketed at No. 319 Pittsburgh 1987, was filed within thirty days of the entry of that judgment, we will treat that portion of the first appeal that is from the January 28, 1987, order as actually being from the January 29, 1987, judgment. The trial court’s order of February 26, 1987, cannot be considered final and appealable, however, as it adds nothing to the order of January 28, 1987, or the judgment of January 29, 1987. Therefore, we are without jurisdiction to consider an appeal from that order, and the appeal at No. 418, as well as that portion of the appeal at No. 319 which is taken from the February 26, 1987, order, must, accordingly, be quashed.

We now turn to the merits of appellant’s appeal at No. 319 Pittsburgh 1987. Appellant’s sole argument on appeal is that the trial court erred in denying his petition for delay damages pursuant to Rule 238. In the opinion which accompanied its January 28, 1987, order, the trial court observed that although the parties agreed that neither had engaged in any delaying activity during the pleading and discovery stages, appellee had not made a settlement offer until the day set for trial and then offered only $25,000; the jury verdict, of course, was for $195,000. Therefore, according to the trial court’s reading of the Supreme Court’s opinion in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), the issue to be decided was whether “mitigating factors exist that would abrogate [appellee’s] duty to pay delay damages” (Trial Court Opinion at 1). The court found such mitigating factors in appellant’s inability to make a settlement demand of his own until August 27, 1986, and appellee’s consequent inability to formulate a reasonable offer until very late in the pretrial process. The trial court concluded that appellant was at fault in this regard and appellee was not, and therefore delay damages should not be awarded.

Appellant argues on appeal that “all Craig did and all that it was ever intended to do was to permit the defendant to toll the imposition of prejudgment interest for whatever period of time the factfinder concluded that the conduct of the plaintiff delayed the trial of the case” (Brief for Appellant at 19). The mere fact that appellee caused no procedural delay in the present case, appellant asserts, does not change the fact that appellant was injured by appellee’s tortious conduct and deserves just compensation, including an award of prejudgment interest. Therefore, according to appellant, appellee, having failed to insulate itself from liability for delay damages by making a written settlement offer equal to or greater than eighty percent (80%) of the verdict, as provided for in then-effective Rule 238(e), should now be required to make appellant whole through the payment of such - damages. Appellee’s response is that where, as here, a defendant has been found not to have delayed the progress of the case, delay damages may not be awarded.

To resolve the issue raised by appellant, we turn to the revision of Rule 238 that was promulgated by our Supreme Court on November 7, 1988, and made effective immediately. The Explanatory Comment to the rule observes that “[t]his amendment revises Rule 238 in light of the Craig decision.” Subsection (f) of the rule provides that it “shall apply to actions pending on or after the effective date of this rule in which damages for delay have not been determined.” In the case before us, whether appellant is entitled to delay damages has not yet been finally determined. Therefore, we are required to resolve the issue in accordance with the mandate of revised Rule 238. Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 418, 552 A.2d 258, 259 (1988) (en banc).

Subsection (b) of the revised rule explicitly provides that the period of time for which delay damages shall be calculated shall exclude (1) any periods of time after which the defendant has made a written offer of settlement, the offer is continued in effect for at least ninety days or until the commencement of trial, whichever first occurs, the offer is rejected by the plaintiff, and the plaintiff does not recover more than 125 percent of the offer; and (2) any periods of time during which the plaintiff caused delay of the trial. As noted in the Explanatory Comment, these provisions are the two bases upon which a defendant may oppose a plaintiff’s motion for delay damages. The Comment also notes that only those procedural delays which actually cause delay of the trial are relevant to the issue of delay damages.

Plainly, the drafters of the revised Rule 238, by specifying two sets of circumstances under which periods of time shall be excluded from the calculation of delay damages, have indicated that no other exclusions are warranted. They have not allowed for the exclusion of periods of delay not caused by either party. Accordingly, we conclude that where the defendant has not made an adequate settlement offer pursuant to Rule 238(b)(1) and the plaintiff has not caused delay of the trial as noted in Rule 238(b)(2), the defendant is liable for delay damages.

In the case at bar, it is clear that appellee did not make an adequate settlement offer, and the trial court acknowledged the parties’ agreement “that neither party engaged in any activity during the pleading and discovery stages to delay this case” (Trial Court Opinion at 2). The court concluded, nevertheless, that

[a] reading of the Craig case shows that the Supreme Court intended that delay damages should not be given if the defendant was not at fault for the delay____[Appellant] was at fault for not making an offer until it was too late to provide [appellee] a reasonable amount of time to formulate its own offer. [Appellant] was clearly at fault and [appellee] was not____ Therefore, delay damages should not be awarded in this case.

Trial Court Opinion at 3. While the court’s interpretation of Craig may have been reasonable at the time the court wrote its opinion, it is no longer reasonable in light of the revision of Rule 238. Pursuant to the revised rule, where, as here, the defendant has not made the requisite settlement offer and the plaintiff has not caused delay of the trial, the defendant is liable for delay damages. Accordingly, we are required to vacate the judgment entered January 29, 1987, insofar as it does not include an award of delay damages, and remand the case to the trial court for calculation of delay damages and entry of judgment thereon.

For the guidance of the trial court, we note two provisions of revised Rule 238 which affect the calculation of delay damages. The first is subsection (a)(2)(i), which provides that in an action commenced before August 1, 1989, delay damages shall be awarded for the period of time “from the date the plaintiff first filed a complaint or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision____” This starting date is the same as that specified in the former rule. The second provision is subsection (a)(3), which specifies that delay damages “shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.” This provision is a change from the former rule, which directed that delay damages be calculated at a rate of ten percent per annum, not compounded.

Insofar as the judgment entered on January 29, 1987 and appealed from at No. 319 Pittsburgh 1987 does not include an award of delay damages, the judgment is vacated. The case is remanded to the trial court for further proceedings consistent with this opinion. The appeal at No. 418 Pittsburgh 1987 and that portion of the appeal at No. 319 Pittsburgh 1987 which is taken from the order of February 26, 1987, are quashed. Jurisdiction is relinquished.

CIRILLO, President Judge, files a dissenting statement in which JOHNSON, J., joins.

POPOVICH, J., files a dissenting opinion.

CIRILLO, President Judge,

dissenting:

I must respectfully dissent from the result reached in the majority opinion. Once again, I note that I disagree with the majority’s application of the newly promulgated rule 238 to the proceedings in this case for reasons more explicitly outlined in my dissenting opinion in Ceresini v. Valley View Trailer Park, 380 Pa.Super. 420-421, 552 A.2d 258. Although I agree that the supreme court’s decision in Craig v. Magee Memorial Rehabilitation Center, 512 Pa. 60, 515 A.2d 1350 (1986), as elucidated by the newly promulgated rule, requires that the case be remanded for a proper determination of delay damages, I would not remand the case for determination under new rule 238. It seems clear to me that section (f) of the new rule and the comments to its other provisions are inapplicable in this case because the issue of delay damages has been determined by the trial court:

The purpose of [section (f) of new rule 238] is to indicate that the rule applies to pending as well as future actions, but not to pending actions in which the damages for delay have been determined under the provisions and procedures of the Craig case. Once damages for delay have been determined under Craig, those proceedings are final, and are not to be reopened under this rule.

Even though the delay damages determination was made using an improper standard, the determination was made, and the issue resolved. I would remand the case with instructions to determine the award of delay damages in accordance with the more general strictures of Craig, rather than under the inapplicable provisions of rule 238.

POPOVICH, Judge,

dissenting:

I dissent consistent with my Dissenting Opinion by Popovich, J. in Ceresini v. Valley View Trailer Park, Ephrata, Inc., 380 Pa.Super. 416, 552 A.2d 258 (1988) (en banc).

      . Pursuant to a pretrial conference order, the trial of appellant’s action was bifurcated and the issues of negligence and damages were submitted to the jury only as to appellee, the original defendant. A second, non-jury proceeding determined that Warner and Warner had no duty to indemnify appellee. Warner and Warner has taken no part in this appeal.

      . Appellant notes in his brief that the judgment has been satisfied.

      . The trial court also noted that this offer was subsequently increased to either $60,000 or $100,000. Our examination of the record indicates that any subsequent offers were made orally. An oral offer, even if otherwise sufficient, did not toll the running of delay damages under then-effective Rule 238(e) and does not do so under subsection (b)(1) of the revised Rule 238.


author: BECK, Judge:

text:
    553 A.2d 447
    COMMONWEALTH of Pennsylvania v. Linda GEHMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Feb. 6, 1989.

      Robert L. Lansberry, Doylestown, for appellant.
    M. Jacqueline Vargas, Assistant District Attorney, Doylestown, for Com., appellee.
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   BECK, Judge:

This is an appeal by Linda Gehman from a judgment of sentence imposed on June 10, 1987 by the Court of Common Pleas of Bucks County. Appellant was tried by a judge sitting without a jury and convicted of driving a vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving. 75 Pa.Cons. StatAnn. § 3731(a)(1) (Purdon 1977 & Supp.1988). Appellant contends that the trial court erred by failing to grant her post-verdict motion in arrest of judgment and for a new trial. After careful consideration, we affirm the judgment of the trial court.

Appellant argues that the Commonwealth produced insufficient evidence of intoxication, or in the alternative, that the trial court’s finding of intoxication was contrary to the weight of the evidence. This claim is without merit for the reasons set forth in the opinion of the trial court.

Appellant also claims that her right to a speedy trial under Pennsylvania Rule of Criminal Procedure 1100 was violated. At the time that proceedings against appellant were initiated, Rule 1100 provided that “[t]rial in a court case in which a written complaint is filed against the defendant ... shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.” Pa.R.Crim.P. 1100(a)(2). In this case, three criminal complaints were filed against the appellant. The first complaint was filed on October 31, 1986 and dismissed on February 19, 1987. The second complaint was filed on February 25, 1987 and dismissed on April 23, 1987. The third complaint was filed on April 23, 1987. The parties agree that appellant’s trial was untimely if the 180 day period ran from the filing dates of the first complaint or the second complaint, and that appellant’s trial was timely if the 180 day period ran from the filing date of the third complaint.

In Commonwealth v. Simms, 509 Pa. 11, 500 A.2d 801 (1985), the Pennsylvania Supreme Court clarified the standard for determining when the Rule 1100 period begins to run when multiple complaints have been filed against a defendant. The Court explained that:

[W]hen an initial complaint has been withdrawn or otherwise dismissed, the 180 day period begins to run anew with the filing of a subsequent complaint only if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule 1100.

Id., 509 Pa. at 15, 500 A.2d at 803.

The first complaint was dismissed by a district justice on February 19, 1987 because the Commonwealth had failed to make out a prima facie case against the appellant at the preliminary hearing. It is well settled that a dismissal for failure to make out a prima facie case is a proper dismissal for Rule 1100 purposes. Commonwealth v. Davies, 342 Pa.Super. 318, 324, 492 A.2d 1139, 1142 (1985). Moreover, the trial judge found that the Commonwealth did not attempt to manipulate the criminal justice system in order to circumvent Rule 1100 and this finding is supported by the record. Accordingly, the time between the filing of the first complaint and the second complaint should not be included as part of the 180 day period.

The second complaint was dismissed by a district justice on April 23, 1987 upon motion of the appellant. The reason for the dismissal was that the second complaint was filed late in violation of Pennsylvania Rule of Criminal Procedure 130(d). Appellant now argues that the second complaint was not “properly dismissed” since the judge did not specifically determine that appellant had been prejudiced by the Rule 130(d) violation before dismissing the complaint. See Commonwealth v. Schimelfenig, 361 Pa. Super. 325, 522 A.2d 605 (1987) (en banc). However, since the appellant filed the motion requesting that the complaint be dismissed, she may not now assert that the dismissal was improper. See Commonwealth v. Genovese, 493 Pa. 65, 72, 425 A.2d 367, 371 (1981) (citing ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 2.2(b) (Approved Draft, 1968)). An appellate court must assume that the dismissal was proper because the appellant did not object to the dismissal. See Commonwealth v. Braithwaite, 253 Pa.Super. 447, 450, 385 A.2d 423, 425 (1978).

Moreover, we again emphasize that the record does not indicate that the Commonwealth attempted to circumvent Rule 1100. Appellant argues that we should assume that the Commonwealth acted in bad faith since the Commonwealth did not appeal the dismissal of the second complaint. We conclude, however, that the Commonwealth’s decision to refile charges immediately, rather than pursue a time consuming appeal, was a reasonable course of action which may well have expedited the date of appellant’s trial. Accordingly, the time between the filing of the second complaint and the third complaint should not be included as part of the 180 day period. Therefore, the 180 days ran from the filing of the third complaint, and appellant’s trial was timely.

Finally, appellant claims that the trial court erred by admitting the testimony of a police officer that the defendant had difficulty maintaining her balance while at the police station following her arrest. This testimony was relevant because it supports an inference that the appellant had been driving while under the influence of alcohol. Any confusion as to the precise time when the police officer observed the defendant affected the weight of the evidence but not its admissibility. This testimony was properly admitted at defendant’s trial. Cf. Commonwealth v. Neiswonger, 338 Pa.Super. 625, 488 A.2d 68 (1984) (police officer who did not see defendant drive was competent to offer opinion regarding whether defendant had been intoxicated).

The judgment of sentence is affirmed.


author: TAMILIA, Judge:

text:
    553 A.2d 450
    Marjorie M. HOLLAND, Appellant, v. FEDERAL KEMPER INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Feb. 1, 1989.

      Charles A. Bierbach, Huntingdon, for appellant.
    Michael W. Chorazy, Hollidaysburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was involved in an automobile accident on September 13, 1983, allegedly while insured by appellee. She was sued in common pleas court but the case was settled prior to trial for $9,397.49 and appellant now seeks to recover this amount from appellee as well as other costs she incurred which would have been included in her coverage.

The parties stipulated to the following facts. Appellant had automobile insurance, policy # R326631, with appellee for two vehicles she owned, a 1981 Buick and, a 1984 American Motors. On May 23, 1983, appellant applied to add a third vehicle and second driver to policy # R326631; she was told the premium would be $166 for the additional insurance coverage and appellee issued her a bill that day to be paid on or before June 12, 1983. The additional vehicle belonged to appellant’s son and while he was responsible for the additional premium, the ultimate responsibility for payment under the policy remained with appellant.

On June 17, 1983, appellee sent the July 14, 1983 renewal notice in the amount of $583 in order for appellant to renew policy # R326631, this amount being in addition to the $166 already owed. Appellee received $291.50, one-half of $583, on July 21, 1983, with the balance due 60 days later as per appellee’s two-pay plan.

On August 1, 1983, appellee sent a notice of cancellation for non-payment of the $166 additional premium, the cancellation to be effective August 19, 1983. The notice was sent to appellant’s current address although she was away for several weeks at a time during this period and made no arrangements to have her mail forwarded. Appellant and her son had agreed, however, that he would hand-deliver a check for the additional premium to appellee’s local office.

On September 13, 1983, appellant was in an accident with her 1981 Buick and promptly notified appellee in accordance with her policy. Appellee denied coverage based upon the cancellation notice of August 1, 1983. On October 3, 1983, appellee received the second payment due under the July 14, 1983 policy renewal notice but refunded this amount in addition to $8 which was refunded on September 26, 1983 as unearned premiums for cancellation of policy # R326631.

The parties agree the amount of $291.50 paid by appellant pursuant to the renewal notice was one-half the premium due on the entire policy, namely, coverage for three vehicles and two drivers. The trial court concluded appellee’s acceptance of the first renewal payment was insufficient consideration to provide a valid contract of insurance after the effective date of the cancellation notice. The court further found appellee was entitled to cancel policy # R326631 completely for non-payment of the $166 premium.

The sole issue is whether appellee properly denied coverage for appellant’s accident based upon the notice of cancellation due to non-payment.

Although appellant argues that acceptance by appellee of one-half the renewal premium proves there was sufficient legal consideration for the insurance contract between them to remain valid through September 13, 1983, we are constrained to follow Mackie v. Prudential Insurance Company of America, 148 Pa.Super. 498, 25 A.2d 736 (1942), which holds that acceptance of partial payment for premiums due does not operate as a waiver of the insurance company’s right of forfeiture for lapse of premiums. In other words, an insurance company at any time may cancel an insured’s policy for lack of timely payment until such time the balance is paid in full.

When appellant negotiated with the insurance company to include an additional automobile under the coverage of the policy, this restructured the premium rate and required payment on or before the due date to protect the appellant from cancellation. The additional premium, due by June 12, 1983, was never paid. Notice of cancellation was mailed on August 1, 1983, with cancellation effective August 19, 1983. The notice was sent to appellant’s then current address, and it is presumed it was received. The coverage of all three automobiles continued until August 19, 1983, and it is likely that if full payment of premiums due had been made and not rejected by the insurer, coverage would have continued. The accident occurred after the cancellation and any possible grace period. The tender and acceptance of the required periodic premium of $291.50, before notice of cancellation, did not correct the deficiency of $166. The subsequent periodic payment of $291.50 made on October 3, 1983, following the accident and cancellation, likewise did not correct the deficiency, nor did it revive the policy. The company simply treated it as a deposit and its return by the insurance company was timely and proper. The fact that the company sent a renewal notice on the policy after cancellation does not create a binding contract by the tender of payment by the insured when a deficiency exists. Mackie, supra.

In appellant’s case, the $166 premium was due on or before June 12, 1983. When that payment was not made, appellee was free to cancel appellant’s policy any time thereafter, provided the required notice of cancellation was given. On July 14, 1983, when appellant was notified she owed $583 to renew her policy, that amount was in addition to the $166 which' was already one month past due. Therefore, even though appellant paid one-half of the $583, as provided by appellee’s payment option, she was still delinquent for nonpayment of the $166, making the $291.50 she did pay only a partial payment of the amount immediately due. Until she paid the total amount due to appellee under their contract terms, she was “at risk” since appellee could cancel the policy for non-payment instead of holding appellant’s partial payment, waiting for the balance to be paid. Since the insurer invoked its right to cancel for failure to pay the required premium in full, neither periodic payment could bind the company to the policy coverage once cancellation was effective and premium overpayment was returned.

JUDGMENT AFFIRMED.

      . We note appellee refunded appellant’s second renewal payment as well as $8 on September 26, 1983. The record does not disclose how the refund amount of $8 was computed. Since appellant has not preserved for review consideration by this Court of the adequacy of its pro ration of premiums, we will not consider that matter.


author: DEL SOLE, Judge:

text:
    553 A.2d 452
    COMMONWEALTH of Pennsylvania v. David R. WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Jan. 30, 1989.
    Petition for Allowance of Appeal Denied June 30, 1989.

      Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

Appellant, David R. Wilson, was found guilty of one count of operating a motor vehicle while under the influence of alcohol (75 Pa.C.S.A. § 3731(a)(1)); and one count of operating a motor vehicle while his blood alcohol content exceeded 0.10% (75 Pa.C.S.A. § 3731(a)(4)). Wilson appeals raising two issues. We find both issues meritless and affirm the judgment of sentence.

One night, two police officers were called to the Elks Club because of a disturbance in the Club building. When the officers arrived, they found Wilson to be belligerent, disorderly and in what appeared to be a highly intoxicated state. Because of his apparent intoxication the officers gave Wilson the choice of calling a cab, taking a ride from the police or walking in order to get home. Wilson began to walk home, only to return to the Club’s parking lot. Wilson then got into a car that was parked in the lot, started the car and began to exit the lot. At that time one of the police officers blocked Wilson’s car from proceeding. Wilson was then arrested and was taken to a hospital which determined his blood alcohol content to be 0.196%.

Wilson was charged with Driving under the Influence of Alcohol which is defined in the vehicle code as a “Serious Traffic Offense.” A Serious Traffic Offense, according to 75 Pa.C.S.A. § 3101, must be committed on a highway or a trafficway. A highway is defined as:

the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the •use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park. 75 Pa.C.S.A. § 102.

A trafficway is defined as:

the entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

75 Pa.C.S.A. § 102.

Wilson’s first argument is that the Elks Club parking lot is neither a highway nor a trafficway. Consequently, his conviction for driving while under the influence should be reversed.

The question of whether a parking lot is a highway or a trafficway for the purposes of a conviction of driving while under the influence has never come before this court before. A number of the common pleas courts have been presented with this question. They have generally held that a party may be convicted of driving under the influence while in a parking lot. Commonwealth v. Bresnock, 19 Pa.D. and C.3d 327 (Lehigh County 1981); Commonwealth v. Smith, 15 Pa.D. and C.3d 369 (Clearfield County 1979); Commonwealth v. Barger, 52 D. and C.2d 744 (Centre County 1971).

The Commonwealth Court was faced with this question in Commonwealth Dept. of Transportation v. Bendik, 112 Pa.Cmwlth. 591, 535 A.2d 1249 (1988). Bendik’s car collided with another car while pulling out of a motel parking lot. When Bendik got out of her car, the arresting officer detected the odor of alcohol on her breath. Bendik refused a bloodtest. The Commonwealth Court construed the “implied consent” section of the vehicle code (75 Pa.C.S.A. § 1547) along with the section which defines “Serious Traffic Offenses” (75 Pa.C.S.A. § 3101) and decided that a person who is operating a motor vehicle on a highway or trafficway is deemed to have given her consent to a blood alcohol test.

The Court decided that a parking lot was a trafficway in terms of the code and suspended Bendik’s license according to § 1547. Because the parking lot was open to the public and vehicular traffic did occur on it, it fell within the definition of trafficway. The Court reasoned:

The purpose of Section 3101 is to afford protection to the public from serious traffic offenses even though these offenses did not occur on highways. It is this court’s opinion that the legislature was contemplating accidents such as the one which involved (Bendik) when it included the term ‘trafficways’ in the code and permitted the prosecution of serious traffic offenses, such as drunk driving, committed on them.
535 A.2d at 1251.

In Commonwealth v. Baughman, 357 Pa.Super. 535, 516 A.2d 390 (1986), this court was faced with the question of whether a dirt track, through a field which was open to the public and occasionally used for vehicular traffic, was a trafficway for the purposes of a conviction of driving while under the influence. The Court said that it was a traffic-way, the essential element being that it was “open to the public.” 357 Pa.Super. at 538, 516 A.2d 390.

We find the reasoning of both Courts persuasive in considering Wilson’s conviction. The Commonwealth Court’s finding that the legislature intended parking lots to be included within the definition of trafficways is especially important. It would raise form to towering levels above substance if parking lots, in which vehicular traffic is encouraged and occurs, sometimes at high rates of speed, were to become “DWI-free zones,” in which drunk driving is tolerated from entrance to exit. Such a construction would seriously undermine the effectiveness of any drunk driving prohibitions.

In Wilson’s case, the trial court found the Elks Club parking lot to be open to the public by custom even though the lot was marked private by a sign. This fulfills the prerequisite that a trafficway, by definition, must be open to the public. Even if restricted by signs, if a parking lot is used by members of the public, it is a trafficway for purposes of 75 Pa.C.S.A. § 3101.

We distinguish at this time Commonwealth v. McFadden, 377 Pa.Super. 454, 547 A.2d 774 (1988) from the present case. McFadden involved a drunk driving conviction which was overturned by this court because the Commonwealth failed to produce sufficient evidence to convict the defendant. The alleged drunk driving in McFadden took place in a trailer park driveway which a plurality of this court found not to be a trafficway. It is important to note, however, that McFadden is a plurality opinion with one judge concurring in the result and one judge dissenting. It’s interpretation of § 3101 has no precedential value in this Commonwealth.

Wilson’s second issue is whether the police officer who arrested Wilson as Wilson was driving out of the parking lot actually entrapped Wilson. Wilson argues that he should have been arrested for Public Drunkenness (18 Pa.C.S.A. § 5505) at the time the police officers first arrived. By waiting for him to come back to the lot and get into the car, the police officer entrapped Wilson into the offense of Driving while under the influence (75 Pa.C.S.A. § 3731).

Entrapment in this Commonwealth is defined in the following way:

A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purpose of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representation designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of such persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.

18 Pa.C.S.A. § 313.

A plain reading of the statute shows that the police officer’s actions cannot be entrapment. Wilson was ejected from a Christmas party at the Elks Club. The police officers who came to investigate the disturbance gave Wilson a break by not arresting him and by allowing him to go home. It was out of his own volition that after he had decided to walk home, Wilson came back to the lot and attempted to drive. Then he was stopped again by the police. In order to succeed on the defense of entrapment, “it must be shown that police conduct would have induced an innocent person to commit a crime.” Commonwealth v. Stokes 264 Pa.Super. 515, 518, 400 A.2d 204 (1979). We find no such inducement here.

Judgment of sentence affirmed.


text:
    553 A.2d 455
    CLEARFIELD BANK & TRUST COMPANY, Trustee of the Estate of John Beyer, Deceased, and GRC Coal Company, Appellees, v. David B. SHAFFER and Gloria A. Shaffer, Appellants.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1988.
    Filed Jan. 30, 1989.

      William C. Kriner, Clearfield, for appellants.
    Henry R. Pope, III, Clarion, for appellees.
    Before OLSZEWSKI, DEL SOLE and KELLY, JJ.
   DEL SOLE, Judge:

This is an appeal by David and Gloria Shaffer, of a decree entered on a petition by Clearfield Bank and Trust Company [Clearfield], and G.R.C. Coal Company [G.R.C.] praying for a declaratory judgment. The petition sought an interpretation of a deed between Clearfield and the Shaffers, and a determination whether or not G.R.C. should be allowed to strip mine the surface of the land described in the deed without the consent of the Shaffers.

The deed in question conveyed all the surface rights in 441.5 acres situated in Clearfield County from Clearfield to the Shaffers, and, most crucially, excepted and reserved all the mineral rights and the rights to mine those minerals, by “opening the surface and the removing the same by drilling, pumping, deep mining, strip mining, auger mining or other generally used commercial methods without liability for damages to the surface and improvements thereon or the water, thereon, therein or thereunder.” (emphasis added) Clearfield entered into a coal lease with G.R.C. to strip mine and remove the coal on the land described in the deed.

By memorandum and decree the trial court stated, “it is hereby decreed that under this Court’s interpretation of the deed in question the Respondents have no right to interfere with the rights of Petitioners to extract the coal from the subject property by the strip mining method.”

On appeal, the Shaffers first claim that the trial court erred in exercising jurisdiction over this declarator judgment proceeding. Appellants cite the Declaratory Judgment Act [Act] 42 Pa.C.S.A. § 7541(c)(2), which states, “relief shall not be available under this subchapter with respect to any proceeding within the exclusive jurisdiction of a tribunal other than a court.” Appellants claim that the Department of Environmental Protection [DER] has exclusive jurisdiction over this matter, and that the trial court’s jurisdiction is precluded by the Surface Mining Conservation and Reclamation Act, [SMCRA], which states in part, “Except as otherwise provided hereunder, ... all surface mining operations coming within the provisions of this act shall be under the exclusive jurisdiction of the department ...” 52 Pa.S.A. § 1396.4b. Appellants state that the administrative process of licensing and overseeing strip mining is undercut when the issue of consent of the surface owner to the strip-mining operation is committed to the courts, rather than the agency, for resolution.

However, in construing the deed between the Shaffers and Clearfield, the court only declared the rights of the owners of the surface rights and the owners of the mineral rights under that deed, and did not undercut the process of licensing and overseeing the operation of strip mining. The trial court did not decide, nor prejudice, the DER’s future decision whether to license GRC’s mining operation, nor did it prejudice the outcome of any of the dozens of disputes which might arise between the regulatory agency and the operators of the strip mine, which are indeed issues committed to the exclusive jurisdiction of the DER.

Next, Appellants argue that the lower court exceeded the limitations of the Declaratory Judgment Act. Under the Act, “courts shall have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed.” 42 Pa.C.S.A. § 7532. Furthermore, the Act expressly states that, “Any person interested under a deed, will, written contract ..., may have determined any question of construction or validity arising under the instrument, or ... contract, and obtain a declaration of rights, status, or other legal relations thereunder.” 42 Pa.C.S.A. § 7533 [emphasis added].

As this court has stated, “Declaratory judgments are nothing more than judicial searchlights, switched on in the behest of a litigant to illuminate an existing legal right, status or other relation.” Doe v. Johns-Manville Corporation, 324 Pa.Super. 469, 473, 471 A.2d 1252 (1984). These proceedings may not be used to search out new legal doctrines which would contravene settled law in Pennsylvania, Id., nor may they be used to prejudge issues that are committed for initial resolution to an administrative forum. Commonwealth, Department of General Services v. Frank Briscoe Co., Inc., 502 Pa. 449, 466 A.2d 1336 (1983). If declaratory judgments are used for such purposes then the trial court can be said to have exceeded the limitations of the Act.

No such abuse of the Act has occurred here. The use of the Act to interpret the deed in question does not render it a vehicle for changing the law, as it did in Johns-Manville, supra., at 324 Pa.Super. at 473, 471 A.2d at 1254, where the petitioner attempted to have the court declare that the statute of limitations on an asbestos related disease does not run until the injured is actually disabled, rather than, as was the law at the time, when the injury is discovered. Here the declaratory judgment neither undermines DER regulations nor changes settled property law. Rather, it interprets the document under existing law and attempts to define legal relationships under the deed.

Furthermore, the issues involved, unlike those in Briscoe, are not committed for initial resolution to an administrative forum such that a declaratory judgment concerning the rights of the parties under the deed will result in the issues being prejudged. In Briscoe, the petitioner for declaratory relief was the Commonwealth’s Department of General Services, who as a party to a contract with several construction contractors sought to have its contractual obligations fixed by the Commonwealth Court prior to having to defend against these same contractors in the Board of Claims. In effect the petition, “was in reality simply an attempt to establish in advance the validity of an affirmative defense to be used to defeat the contractors’ breach of contract actions.” Briscoe, supra., 502 Pa. at 459, 466 A.2d at 1340.

Here, unlike Briscoe, there is no present or future proceeding contemplated between Clearfield and the Shaffers which is initially committed to the DER’s administrative resolution. The issue of whether Clearfield’s licensee, G.R.C., needs the Shaffers’ permission to go on the land does not fall within the definition of surface mining operations, which are under the DER’s exclusive jurisdiction. Furthermore, this judgment will not fix or prejudge the parties’ obligations under SMCRA concerning the operation of the strip-mine. Thus, Appellants’ contention that the trial court’s judgment effectively wipes out any protections SMCRA affords the owner of surface rights is without merit.

In a similar case before this court, Woytek v. Benjamin Coal Co., 300 Pa.Super. 397, 446 A.2d 914 (1982), the appellant argued that the issue of whether it had complied with its obligations under a lease to restore strip-mined land should be raised before the DER and not in the courts. The court rejected this argument, stating that when the issue was whether Appellant had met its obligations under a lease, (which obligations were above and beyond those required by the DER), then it is for the courts, not the administrative agency, to interpret the lease and decide if the Appellant met its obligations. Id.

Here, as in Woytek, the issue before the court was the extent of the rights and obligations of the parties to a written instrument. As this only tangentially involves the regulations of an administrative agency, it is not an abuse of the Act for the court to declare the Shaffers’ obligations by interpreting this deed.

Finally, Appellants contend that the lower court erred in its interpretation of the deed in question. Specifically, they contend that the deed does not address the issue of consent to mine, and that the exception and reservation of coal was only for mining leases in existence at the time of the conveyance, which does not include the lease between G.R.C. and Clearfield Bank.

We agree with the trial court which rejected the latter claim that the exception and reservation of coal was only for mining leases in existence at the time of the conveyance in 1975. Rather, as the trial court stated, “it is apparent from the language of the deed, that the intention of the grantor in conveying the surface to the [Shaffers] was to be able to have the entire body of their coal mined and removed so that they could profit from it.” (Memorandum and Decree, 9/10/84, at 8-4). The language of the exception and reservation clause is clear. By agreeing that Clearfield Bank could open the surface and remove the coal by strip mining without liability for damages to the surface or water systems, Appellants expressly agreed to waive their right to surface support, which, under settled law, is guaranteed to the owner of the surface. Commonwealth v. Fisher, 364 Pa. 422, 72 A.2d 568, 571 (1950). There being no limitations on the right to extract the minerals, G.R.C., as lessee of the mineral rights from Clearfield, had the right to strip-mine, and by clear implication, the right to go on the land and explore for coal by geophysical or other means.

Similarly, although there is nothing in the deed expressly stating that no permission or consent is required from the surface owners prior to going on the land to mine or make preliminary exploratory drillings, by clear implication, no such consent is required. To conclude otherwise would render the exception and reservation clause unenforceable and effectively give the surface owners a veto power over the rights reserved to Clearfield and its assignees.

The decree of the trial court is affirmed.


author: PER CURIAM:

text:
    553 A.2d 458
    COMMONWEALTH of Pennsylvania v. Thomas H. BRAWNER, Appellant.
    Superior Court of Pennsylvania.
    Jan. 23, 1989.

      Joseph T. Molieri, Jr., Philadelphia, for appellant.
    Jeffrey Heilman, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and MONTEMURO and POPOVICH, JJ.
   PER CURIAM:

Appellant, Thomas Brawner, appeals from judgment of sentence imposed July 1, 1987 by the Court of Common Pleas, Philadelphia County. He raises five issues on appeal, we address them in the order presented.

On January 26, 1986, at approximately 3:00 A.M., Joseph White, a cab driver, was robbed by his two passengers, who had requested transportation to 19th and Catherine Streets in Philadelphia. Upon arrival at their destination, one of the passengers placed what appeared to be a gun against White’s right cheek and instructed White to “give it up”. In response, White handed the passengers his money. The passengers fled the scene after removing White’s keys from the ignition and placing them on the sidewalk. White immediately called his dispatcher, told her he had been robbed, gave her his location, and described the appearance of the passengers. Appellant, Thomas Brawner, and Alvin Johnson, who were in the near vicinity of the crime and who matched White’s description, were picked up by police who had responded to the call. During a pat down of the appellant, the police recovered a cap pistol from appellant’s left coat pocket. The appellant and Johnson were transported to the scene of the crime, where White positively identified first the pistol and then appellant and Johnson. Appellant was subsequently charged with robbery, simple assault, recklessly endangering another person, criminal conspiracy, theft, receiving stolen property, and possession of an instrument of crime. A preliminary hearing was scheduled for January 29, 1986. Because appellant was without counsel on January 29, 1986, counsel was appointed by the court and the preliminary hearing was rescheduled for February 21, 1986, which was the next available date. On February 21, 1986, the appellant was unable to appear because of hospitalization. The appellant was unable to appear at the next two rescheduled preliminary hearing dates, set for March 21, 1986 and April 4, 1986, for the same reason. The preliminary hearing was finally held on April 18,1986, at which time the appellant was held over for trial. On May 8, 1986, a pretrial conference was held. At that time a continuance until August 4, 1986 was granted due to the unavailability of Johnson’s counsel. On August 4, 1986, appellant’s counsel was granted a two day continuance. On August 6, 1986, the trial judge was not available for trial due to illness. The case was then relisted for August 11, 1986. On August 11, 1986, the Commonwealth requested a continuance because a necessary police witness was on vacation. The court granted the continuance until October 15, 1986, which was the next available date. On October 15, 1986, and on October 21, 1986 which was the next rescheduled date, the trial judge was not available for trial. As a result of these delays, the Commonwealth requested and was granted a continuance based on judicial delays until March 28, 1987. The appellant was finally brought to trial on January 12, 1987. The appellant’s pretrial suppression motion and his motion to dismiss pursuant to Pa.R.Crim.P. 1100 were denied. The trial proceeded uneventfully until cross-examination of the appellant’s witnesses. The prosecutor during the cross-examination of appellant’s sister asked how many times the appellant had been arrested. Counsel objected and the objection was sustained. Counsel’s motion for a mistrial was denied. The jury was then instructed to disregard the question. During the cross-examination of the appellant, the prosecutor asked him, in reference to the cap pistol, “so you don’t use it in your robberies, is that the idea?” Counsel again objected and the court sustained the objection, however, not before the appellant answered the question in the negative. Appellant’s counsel again objected to the prosecutor’s actions when, during his closing argument, the prosecutor, referring to the appellant’s testimony, declared “anybody is going to try to save their own skin even if it means being less than truthful” and “it (appellant’s alibi defense) smells to high heaven. Rotten, it stinks and its obvious.” Counsel’s objections to these closing comments were overruled both times. The jury convicted the appellant of robbery, criminal conspiracy, and possession of an instrument of crime. After appellant’s post-trial motions were heard and denied, appellant was sentenced to serve an aggregate term of 5 to 10 years imprisonment. This appeal followed.

Appellant first argues that the Commonwealth failed to exercise due diligence in bringing him to trial within the 180-day time limit of Pa.R.Crim.P. 1100(a)(2), and therefore, the Commonwealth’s petitions to extend the time for trial were erroneously granted. We disagree.

In order to be entitled to an extension under former Pa.R.Crim.P. 1100(c), the Commonwealth must prove by a preponderance of the evidence that it acted with due diligence at the last listing before the amended rúndate and any listing thereafter to bring the case to trial. Commonwealth v. Burke, 344 Pa.Super. 288, 291-93, 496 A.2d 799, 801 (1985). The test to determine whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Burke, 344 Pa.Super. 288, 291-93, 496 A.2d 799, 801 (1985). When we review a trial court’s ruling, relative to whether the Commonwealth has met its burden of proving due diligence, we consider only the evidence presented at the hearing by the Commonwealth and so much of the evidence presented by the defendant which remains uncontradicted. Commonwealth v. Yant, 314 Pa.Super. 442, 445-47, 461 A.2d 239, 241 (1983).

The Commonwealth twice requested an extension of the 180-day Rule. The first time, it did so because a necessary police witness was on vacation. In Burke, we held that the trial court properly granted the Commonwealth’s petition for an extension of the 180-day Rule based on the unavailability of its police witness, who was on vacation at the time, declaring that: “when witnesses become unavailable toward the end of the Rule 1100 time period — whether through vacation, illness, or other reasons not within the Commonwealth’s control — the Commonwealth is prevented from commencing trial within the requisite period despite its due diligence and an extension of time is warranted.” Id., 344 Pa.Superior Ct. at 292, 496 A.2d at 801. In the instant case, there was no evidence to establish that the Commonwealth knew that the police officer was scheduled for vacation on that date, nor had the officer received notification that he was to appear in court on October 15, 1986 prior to going on vacation. We therefore find that the trial court properly granted the Commonwealth’s first request for extension. The second time, it did so because of the court’s inability to schedule the trial prior to the running of the 180 days. In Commonwealth v. Briggman, 325 Pa.Super. 333, 472 A.2d 1145 (1985), we declared: “it is by now well settled that a court may grant an extension of time to commence trial under Pa.R.Crim.P. 1100(c) where judicial delay prevents the Commonwealth from bringing a defendant to trial within the mandatory period despite its due diligence.” Id., 325 Pa.Superior Ct. at 336, 472 A.2d at 1148. On October 15, 1986, the judge assigned to the trial was in chambers so the case was continued until October 21,1986, which was the earliest possible date for trial. Because another trial was still in progress on October 21, 1986, appellant’s trial was again continued until January 12, 1987, the earliest possible date for trial. Because the Commonwealth was ready to proceed on October 15, 1986 and October 21, 1986 but was prevented from doing so solely due to judicial delays, we find that the trial court properly granted the Commonwealth’s second request for extension.

Next, the appellant asserts that the physical evidence and the identification of the appellant obtained pursuant to the arrest of the appellant should have been suppressed. Specifically, appellant argues that the police did not have probable cause to arrest the defendant. We disagree.

Probable causé for a warrantless arrest exists if the facts and circumstances known to the officer at the time of the arrest would warrant a prudent person in believing that a criminal offense had been committed, and that the suspect' was the perpetrator of the offense. Commonwealth v. Woodson, 342 Pa.Super. 392, 395, 493 A.2d 78, 79-80 (1985). Before we apply this rule to the facts in the instant case, we reiterate the standard of review for suppression rulings established in Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986). In Jackson we stated:

Our function on review of an order denying a motion to suppress is to determine whether the factual findings of the lower court are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. If when so viewed, the evidence supports the factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error.

Id., 359 Pa.Superior Ct. at 436, 519 A.2d at 429 (quoting Commonwealth v. Cavalieri, 336 Pa.Super. 252, 254-55, 485 A.2d 790, 791 (1984)). In its written opinion denying the appellant’s motion to suppress, the trial court, in the instant case, stated:

Applying the law to the facts of the instant case, the existence of probable cause is clear. Within minutes of the robbery, the victim notified police of the incident and not only described his attackers, but described the gun with which he was threatened. Shortly, thereafter and in the immediate vicinity, two suspects were encountered by police who fit the description given. The suspects were then frisked to ensure the safety of the officers and seized was a toy gun which also matched the description given. The suspects were then briefly detained and were unequivocally identified by the victim as those who robbed him. As such, the defendant’s contention in this regard is wholly unsupported by the record.

Op. of trial court at 5. We conclude that these factual findings are supported by the record, and therefore, affirm the trial court’s denial of appellant’s motion to suppress.

Appellant next argues that the verdicts of guilty were contrary to the weight of the evidence so as to render the verdicts based thereon pure conjecture. Appellant points to two pieces of evidence in order to prove his assertion. First, he points to what he alleges is a major contradiction in White’s testimony. White testified that both robbers had heavy mustaches. White also testified that appellant’s mustache at the time of trial was not heavy. According to the appellant, because the police photo taken of appellant on the day of the crime showed that appellant’s mustache was either the same as or lighter than the appellant’s mustache on the trial date, White contradicted himself, and because of this contradiction, could not identify appellant as one of the robbers. The other piece of evidence to which appellant points in order to prove the verdict was contrary to the weight of the evidence is the amount of money found on appellant and Johnson at the time they were picked up by the police. White testified that approximately $30.00, in one dollar denominations, was stolen from him. Although the appellant had no money on his person at the time he was picked up by police, $25.00, most of which were one dollar bills, was recovered from Johnson. Appellant argues that because all of the money allegedly stolen from White was not found on appellant and Johnson, they could not have committed the crime, and therefore, the verdict of guilty as to appellant was contrary to the weight of the evidence. We disagree.

In Commonwealth v. Ruffin, 317 Pa.Super. 126, 463 A.2d 1117 (1983), we stated:

Whether a verdict is contrary to the weight of the evidence is a matter committed to the sound discretion of the trial court. A new trial will be granted on this basis only where the record shows that the verdict was so contrary to the evidence as to shock one’s sense of justice and make a new trial imperative in the interests of obtaining justice.

Id., 317 Pa.Superior Ct. at 133, 463 A.2d at 1120. Based on this standard, we find that White’s comparison of the heaviness or lightness of the beard of one of his assailants a year after the crime occurred and at trial, and the fact that not all of the money allegedly stolen was found on appellant and Johnson, is hardly evidence which so contradicts the verdicts as to shock our sense of justice. We therefore affirm the trial court’s denial of appellant’s motion for new trial based on the weight of the evidence.

Appellant next asserts that the evidence was insufficient to establish beyond a reasonable doubt that the appellant committed the crimes of robbery, criminal conspiracy, and possession of an instrument of crime. As in his previous argument, he bases his assertions of insufficiency on White’s testimony about the heaviness of the appellant’s beard and the amount of money found on the appellant and Johnson. Our standard of review for sufficiency of the evidence arguments is that which we asserted in Ruffin. There we stated:

In reviewing the sufficiency of the evidence, we are required to view the evidence, and all permissible inferences to be drawn therefrom, in the light most favorable to the Commonwealth, as verdict winner. The test is whether, taking as true the evidence most favorable to the Commonwealth, together with all reasonable inferences therefrom, the evidence is sufficient to prove appellant’s guilt beyond a reasonable doubt.

Id., 317 Pa.Superior Ct. at 129, 463 A.2d 1117. Appellant and Johnson, who fit the description of the robbers and were found in the near vicinity of the crime within minutes after it occurred, were identified by White as his assailants. White also identified the cap pistol, which was found on appellant, as the one used in the robbery. In addition, White testified that most of the money stolen from him consisted of one dollar bills. Johnson, when he was picked up by police, had on his person $25.00 mostly consisting of one dollar bills. These are facts upon which the jury could have relied in reaching its determination of guilt. Having reviewed the record in the light most favorable to the Commonwealth, we conclude that the evidence was sufficient to sustain beyond a reasonable doubt appellant’s guilty verdicts.

Appellant’s final argument is that he is entitled to a new trial due to the prosecutor’s misconduct during the cross-examinations of appellant and his sister and during closing argument. We disagree.

Comments by a prosecutor do not constitute reversible error, unless the unavoidable effect of the comments is to so bias and prejudice the jury against the defendant as to render it incapable of objectively weighing the evidence and delivering a true verdict. Commonwealth v. D'Amato, 514 Pa. 471, 489-91, 526 A.2d 300, 309 (1987). Our standard of review for appeals based on prosecutorial misconduct is clearly set out in D'Amato, wherein our supreme court declared:

Whether this standard [for prosecutorial misconduct] has been violated by the language of the district attorney is not in the first instance our decision to make. It is the duty of the trial judge to rule upon the comments; this Court is limited in its review to whether the trial court abused its discretion.

Id., 514 Pa. at 491, 526 A.2d at 310 (quoting from Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968)).

Appellant points to four instances of misconduct by the prosecutor, which he claims unduly prejudiced the jury against him. The first occurred when the prosecutor asked the appellant’s sister on cross-examination how many times the appellant had been arrested. This question was obviously posed in response to defense counsel’s elicitation from appellant’s sister that appellant had been arrested only once in 1986. Although improper, the question did not so bias the jury as to render it incapable of delivering a true verdict. Because of defense counsel’s prompt objection, which was sustained, the jury never got to hear the answer to the question. In addition, the jury was properly instructed to disregard the question. These measures were sufficient to dispel any prejudice toward the appellant which may have been created by the prosecutor's question.

The second alleged incident of prosecutorial misconduct occurred when the prosecutor, in reference to the cap pistol, asked the appellant “So you don’t use it in your robberies, is that the idea?” Defense counsel again objected, but not before the appellant responded to the question in the negative. The objection was sustained. Although it is possible that the jury may have inferred from this question that the appellant had committed other robberies, it is very unlikely, especially in light of the court’s instruction at the outset of the case that questions standing alone are not evidence but answers to questions are evidence. We therefore find that the defendant was not prejudiced by this comment to such an extent that the jury was incapable of delivering a true verdict.

The third alleged incident of prosecutorial misconduct occurred during closing argument, when the prosecutor, referring to the veracity of the appellant’s testimony, asserted that “anybody is going to try to save their own skin even if it means to be less than truthful.” It is well established that a prosecutor may not inject his personal opinion of appellant’s credibility into evidence. See Commonwealth v. Potter, 445 Pa. 284, 287, 285 A.2d 492, 493 (1971). However, we conclude that in making this comment, the prosecutor was not stating his opinion but was simply reminding the jury that in assessing the appellant’s credibility it should not neglect to consider the appellant’s interest in the outcome of the case. In addition, we note that the trial court also instructed the jury prior to deliberation that what the attorneys said in their summation is not evidence.

The fourth comment, like the third, occurred in closing argument, when the prosecutor, referring to the appellant’s alibi, stated “it smells to high heaven. Rotten, it stinks and its obvious.” Initially we note that a prosecutor must be afforded reasonable latitude in prosecuting his case and presenting his arguments with logical force and vigor. Commonwealth v. D’Amato, 514 Pa. 471, 489-91, 526 A.2d 300, 309 (1987). In addition, not every intemperate or uncalled for remark by the prosecutor requires a new trial. It must be evaluated in context to determine the prejudicial effect. Commonwealth v. Jarvis, 482 Pa. 598, 394 A.2d 483 (1978). After reviewing the prosecutor’s comment in the context in which it was made, we conclude that its effect was not such that the jury was incapable of delivering a true verdict. We therefore hold that the trial court did not abuse its discretion when it denied the appellant’s post trial motions based on prosecutorial misconduct.

Judgment of sentence affirmed.

      . What appeared to White to be a gun, was actually a cap pistol.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 907.

      . Appellant and Johnson were tried in the same proceeding.

      . Rule 1100. Prompt Trial.
      (a)
      (1) ...
      (2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
      Pa.R.Crim.P. No. 1100(a)(2).

      . Rule 1100. Prompt Trial.
      (a) ...
      (b) ...
      (c)
      (1) At any time prior to the expiration of the period for commencement of trial, the attorney for the Commonwealth may apply to the court for an order extending the time for commencement of trial.
      (2) A copy of such motion shall be served upon the defendant through his attorney, if any, and the defendant shall also have the right to be heard thereon.
      (3) Such motion shall set forth facts in support thereof, and shall be granted only upon findings based upon a record showing that trial cannot be commenced within the prescribed period despite due diligence by the Commonwealth'and, if the delay is due to the court’s inability to try the defendant within the prescribed period, upon findings based upon a record showing the causes of the delay and the reasons why the delay cannot be avoided.
      (4) Any order granting a motion for extension shall specify the date or period within which trial shall be commenced. Trial shall be scheduled for the earliest date or period consistent with the extension request and the court’s business, and the record shall so indicate.
      Pa.R.Crim.P. No. 1100(c).

      . This issue was specifically preserved in appellant’s post-trial motions.

      . Again, this issue was specifically preserved in appellant’s post-trial motions.

      . We note with considerable dismay and alarm the increasing number of appeals in which the Philadelphia District Attorney’s Office is accused of prosecutorial misconduct, especially with regard to the prosecutor in the instant case. Although we are unwilling to designate his conduct in this case and on these facts as that which requires reversal, we strongly disapprove of such conduct.