text:
    436 A.2d 685
    In the Interest of Joseph James LEONARDO (Infant). Appeal of Joseph James LEONARDO.
    Superior Court of Pennsylvania.
    Submitted March 4, 1981.
    Filed Oct. 30, 1981.

      Charles B. Coleman, Assistant Public Defender, Reading, for appellant.
    George C. Yatron, District Attorney, Reading, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and BROSKY, JJ.
   BROSKY, Judge:

On June 30, 1980, a petition captioned “Juvenile Petition” was filed in the Court of Common Pleas of Berks County, Pennsylvania, alleging that Joseph James Leonardo, a minor, committed the following “delinquent acts”: unauthorized use of a motor vehicle, a misdemeanor of the second degree; driving without a license, a summary offense; and driving on the wrong side of the road, a summary offense. The matter came before the Juvenile Court of Berks County in a hearing held July 8, 1980. At the hearing, appellant admitted the charges of unauthorized use, but objected to the juvenile court’s jurisdiction to adjudicate the summary charges. We agree with the appellant and therefore reverse. On this point, the following exchange took place.

THE COURT: Now, there has been an admission made, Mr. Baro [District Attorney] as to the unauthorized use charges. Do you wish to proceed with the evidence regarding the summary violations?
MR. BARO: Yes, Your Honor.
THE COURT: I also point out, Mr. Coleman [Public Defender] that since we are now sitting as a Court of Common Pleas and the juvenile matter has been resolved without an issue, the court is open and if you wish to have the public admitted you may do so.
MR. COLEMAN: No, Your Honor, I object to these proceedings?
MR. BARO: What was this?
THE COURT: I simply said that since I’m sitting as the Court of Common Pleas the court is now open. It is not a juvenile proceeding at this point. . . .

The court then proceeded to hear evidence as to the summary charges. At the conclusion of the hearing, the court found, “beyond a reasonable doubt,” that Leonardo had committed the acts of unauthorized use. The judge then stated:

I also find from the evidence presented—and now I make this finding as a judge of the Court of Common Pleas . . . that you are guilty of the charge of operating a motor vehicle .without being licensed . . . [and] that you drove on the wrong side of the road....

The court sentenced Leonardo to pay a $200 fine for driving without a license and a $25 fine for driving on the wrong side of the road. Appellant was also ordered to pay restitution for damages to the automobiles involved. The court also entered an order finding that appellant “is in need of treatment, supervision and rehabilitation” and is taken under the care of the court as a delinquent boy and committed to Bethany Children’s Home. . . . ” Thereafter, Leonardo appealed his sentences on the summary charges to our court.

The central issue for our determination is whether the lower court acted improperly in hearing the two summary charges.

Appellant contends that the lower court acted improperly in sitting as both a juvenile court and a criminal court.

It is without doubt that juvenile court has jurisdiction over children charged with delinquent acts. In the Interest of Ryan, 277 Pa.Super. 433, 419 A.2d 1224 (1980). Under § 6302 of the Juvenile Act, “delinquent act” is defined as follows:

(1) The term means an act designated a crime under the
law of this Commonwealth. . .
(2) The term shall not include :
(ii) summary offenses. . .
(Emphasis added.)

Therefore, it was improper for the district attorney to have characterized the summary charges as “delinquent acts” and to have filed those charges as part of the juvenile petition.

The court below concedes that, acting as a juvenile court, it was without jurisdiction to hear the summary offenses. However, the court held that by its act of stating that: “[W]e are now sitting as a court of common pleas . . . the court is open and if you wish to have the public admitted, you may do so,” the problem of jurisdiction was cured. We do not agree.

We find that the procedure followed here was improper. Clearly, juvenile proceedings are different in character and purpose from adult criminal proceedings. The stated purpose of the Juvenile Act is to “remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation.” 42 Pa.C.S. § 6301. The purpose of juvenile proceedings is to seek treatment, reformation and rehabilitation, and not to punish. In the Interest of Tasseing H., 281 Pa.Super. 400, 422 A.2d 530 (1980).

While scholars may disagree with respect to the goals of our criminal justice system, there can be no doubt that at least one of the goals is punishment. It is in this criminal respect that the juvenile system differs from the adult criminal system.

The character of juvenile proceedings differs as well. In Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 1785, 44 L.Ed.2d 346 (1975), the Supreme Court recognized that the juvenile court system was designed to provide “[a] distinctive procedure and setting to deal with the problems of youth. .. . ” One example of this is § 6336, which provides that hearings shall be conducted in an “informal” manner.

Because the purposes and procedures of the two systems differ in important ways, a proceeding held pursuant to alleged violations of the Juvenile Act cannot also serve the function of a proceeding held pursuant to alleged violations of the Crimes Code.

In the case at bar, although the judge symbolically opened the courtroom door, and stated that the juvenile proceeding had been concluded, the fact remains that the two proceedings and, in a larger sense, the two systems of justice, cannot be combined in this manner. The juvenile here had a constitutional right to a separate hearing on the summary charges, at which time he could present a defense to those charges if he wished to do so. Further, it is clear from the record that the proceeding here was held for the express purpose, in the judge’s own words, of determining “whether [appellant] committed delinquent acts as alleged.” Summary offenses are not considered delinquent acts.

We hold that the lower court acted improperly in combining juvenile and criminal court proceedings. Therefore, the sentences with respect to those charges must be vacated.

CERCONE, President Judge, and WICKERSHAM, J., concur in the result.

      . 18 P.S. § 3928. Appellant was charged with two distinct and separate acts of unauthorized use.

      . 75 Pa.C.S. § 1501.

      . 75 Pa.C.S. § 3301.

      . 42 Pa.C.S. § 6301 et seq.


source: Caselaw Access Project

author: MONTGOMERY, Judge:

license: Public Domain

text:
    436 A.2d 687
    BENEFICIAL CONSUMER DISCOUNT CO. v. Julia SAVOY, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 9, 1981.
    Filed Oct. 30, 1981.
    Petition for Allowance of Appeal Granted Feb. 16, 1982.

      Michael Donahue, Darby, for appellant.
    Alan B. Liss, Philadelphia, for appellee.
    Before HESTER, DiSALLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The instant appeal is from the award of a deficiency judgment to Beneficial Consumer Discount Company, following the repossession and resale of Appellant’s 1964 Cadillac in which Beneficial held a security interest.

Beneficial loaned Appellant Julia Savoy the sum of $4,752.00 to be repaid in monthly installments. To secure repayment, Beneficial retained a security interest in the 1964 Cadillac. Savoy defaulted on the loan. Beneficial then repossessed the Cadillac. Beneficial sent Savoy two notices by registered mail, which stated the reason for repossession, the time limit for redemption, the balance due on the loan, and the time and place of the proposed resale. The return receipts were signed by an adult living at Savoy’s residence over fifteen (15) days before the scheduled resale. The Cadillac was sold at a private sale for $250.00. Beneficial credited the sales price, less expenses, to Savoy’s account, then brought this action to recover the deficiency.

At trial, the lower court found that Beneficial’s notice to Savoy did comply with the notice provisions of 13 Pa.C.S.A. § 9504(c). The trial judge also determined, however, that the resale of the car for the price of $250.00 was commercially unreasonable and would not permit Beneficial to assess its deficiency using that figure as the value of the car. Instead, the lower court took judicial notice of the Redbook value of the car and reduced Beneficial’s deficiency by that amount. Because we agree that the lower court erred in taking judicial notice of the Redbook value of the car, we reverse.

Appellant urges us to hold that when a sale is found to be commercially unreasonable under 13 Pa.C.S.A. § 9504(c), the creditor is barred from obtaining a deficiency judgment against the debtor. No Pennsylvania court has yet held that a commercially unreasonable resale bars entirely any deficiency judgment. See Mercantile Financial Corporation v. Miller, 292 F.Supp. 797 (E.D.Pa.1968); Atlas Construction Company v. Dravo-Doyle, 114 P.L.J. 34 (C.P.— Allegheny County 1966); Family Finance Corporation v. Scott, 109 P.L.J. 119 (C.P.—Allegheny County 1961). Although other jurisdictions have adopted this position, see Camden National Bank v. St. Clair, 309 A.2d 329 (Me.1973), we believe such an approach to be inequitable, especially in light of the additional remedy offered a debtor by 13 Pa.C.S.A. § 9507(a).

Alternatively, Appellant argues that failure to comply with 13 Pa.C.S.A. § 9504(c) raises a presumption that the value of the collateral equals the indebtedness secured unless the creditor rebuts the presumption. United States v. Willis, 593 F.2d 247 (6th Cir. 1979). Thus, the issue becomes whether Beneficial sustained this burden.

Since Beneficial presented no evidence, other than the sale price, the only way the trial court could find in its favor was to take judicial notice of the Redbook value of the car. Judicial notice may be taken only of matters of common knowledge, of facts which are so well known that they are incontestable. Seibert v. Comm., Unemployment Comp. Bd., 44 Pa.Cmwlth. 506, 403 A.2d 1369 (1979). It is difficult to believe that the value of a particular automobile at a particular time, without any information as to its condition, is a matter of common knowledge. As we have said before, the Redbook “is adopted for the convenience and benefit of dealers and is not based on market prices which are arrived at in the open. . . . ” Alliance Discount Corp. v. Shaw, 195 Pa.Super. 601, 171 A.2d 548, 550 (1961). Thus, the Redbook values cannot be considered matters of common knowledge and it was error to take judicial notice thereof. Since there was no other evidence from which the court could determine value, we must find that Beneficial failed to prove its case.

Reversed and order vacated. We relinquish jurisdiction.

      . Beneficial’s only evidence at trial was from its own business records. Although other bids were submitted on the car, these were properly excluded upon a hearsay objection. The debtor presented no evidence on value. Thus, no testimony of anything other than the actual sale price was introduced for the purpose of determining the value of the car.

      . In Skeels v. Universal C.I.T. Credit Corporation, 222 F.Supp. 696 (W.D.Pa.1963), vacated on other grounds, 335 F.2d 846 (3d Cir. 1964), the Court barred the creditor from obtaining a deficiency judgment because the notice required by 13 Pa.C.S.A. § 9504(c) was not given. Although Appellant alleges lack of reasonable notice, we do not agree. There is no requirement of actual receipt of notice, provided the secured party takes “such steps as may be reasonably required to inform the other in ordinary course whether or not such other actually comes to know of it.” 13 Pa.C.S.A. § 1201. Appellant’s contention that the notice is defective because the sale occurred later than the date specified in the notice is meritless. Since the purpose of notification is to provide the debtor with a reasonable period of time to exercise his option to participate in the sale, or otherwise protect his interest, the notice is reasonable even if the sale occurs at a date later than that specified in the notice. See 12A P.S. § 9-504, Comment 5. Here, notice was given over 15 days prior to the date originally scheduled for the resale, which is sufficient.

      . Some courts have required the debtor to prove any actual loss sustained. Leasco Computer, Inc. v. Sheridan Industries, Inc., 82 Misc.2d 897, 371 N.Y.S.2d 531 (1975). However, since the creditor is the plaintiff in a deficiency action, we believe the usual burden of proving one’s case should not shift to the debtor when the creditor is the one who has violated the commercially reasonable standard.


text:
    January 9, 1981.
    432 A.2d 250
    Commonwealth v. Cole, Appellant.
    Submitted March 6, 1980.
    H. Staaley Robert, Public Defender, for appellant; John A. Hall, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., and WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.

CERCONE, P. J., filed a memorandum dissenting statement.


text:
    432 A.2d 251
    Commonwealth v. Gouse, Appellant.
    Submitted March 3, 1980.
    David J. Foster, for appellant; C. Joseph Rehkamp, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Judgment of sentence is affirmed on the comprehensive opinion of Judge Quigley.


text:
    432 A.2d 251
    Commonwealth, Appellant v. Lincoln.
    Submitted November 16, 1979.
    John L. Brown, Jr., Assistant District Attorney, for Commonwealth, appellant; John P. Dohanich, for appellee.
    Before CERCONE, P. J., and MONTGOMERY and LI-PEZ, JJ.
   Order affirmed.


text:
    January 16, 1981.
    432 A.2d 251
    Commonwealth v. Coda, Appellant.
    Submitted November 16, 1979.
    John A. Halley, for appellant; Robert L. Eberhardt, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    432 A.2d 252
    Commonwealth v. Harris, Appellant.
    Submitted March 21, 1980.
    John C. Anderson, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 252
    Commonwealth v. Maxwell, Appellant.
    Submitted June 13, 1980.
    David Hirsh, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    432 A.2d 252
    Commonwealth v. Norwood, a/k/a Bey, Appellant.
    Reargument Denied March 17, 1981.
    Submitted March 21, 1980.
    John M. Close, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    432 A.2d 252
    Commonwealth v. Pisor, Appellant.
    Submitted April 16, 1980.
    Philip P. Lope, for appellant; Robert F. Hawk, Assistant District Attorney for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   We affirm the order of the lower court.


text:
    432 A.2d 253
    Commonwealth v. Smith, Appellant.
    Submitted March 21, 1980.
    William P. James, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, WICKERSHAM and LIPEZ, JJ.
   Order affirmed.


text:
    432 A.2d 253
    Commonwealth v. Taylor, Appellant.

      Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    January 23, 1981.
    432 A.2d 253
    Adkins et al. v. Nationwide Mutual et al. Appeal of Trooper Heat and Fuel and Harry Groff.
    Argued June 10, 1980.
    Robert J. Kerns, for appellant; Michael J. Daniels, for appellees.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 254
    Commonwealth v. Delvalle, Appellant.

      Submitted September 11, 1980.
    David A. Binder, for appellant; John B. Stevens, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    432 A.2d 254
    Commonwealth v. Kowalyk, Appellant.
    Reargument Denied April 23, 1981.
    Petition for Allowance of Appeal Denied Sept. 17, 1981.
    Argued December 6, 1979.
    Peter G. Loftus, for appellant; Robert J. Farrell, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and O’KICKI, JJ.

       President Judge Joseph F. O’Kicki, of the Court of Common Pleas of Cambria County, Pennsylvania, is sitting by designation.

   The judgment of sentence of the lower court is hereby affirmed.

O’KICKI, J., filed a memorandum dissenting opinion.


text:
    432 A.2d 254
    Commonwealth v. Lynch, Appellant.
    Submitted March 17, 1980.
    James A. Lynch, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 255
    Commonwealth v. Shelton, Appellant.
    Submitted September 13, 1979.
    Herman Winderman, for appellant; Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, WIEAND and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 255
    Commonwealth v. White, Appellant.
    Argued June 10, 1980.
    Barry S. Yaches, for appellant; Ellen Mattleman, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Judgment of sentence affirmed.


text:
    433 A.2d 97
    Commonwealth ex rel. Cambria City Child Serv. v. Alvin Dodson, Sr., Appellant.
    Submitted November 16, 1979.
    Alvin Dodson, Sr., appellant, in propria persona; Gerard Long, District Attorney, for appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.

       The caption appearing on the Notice of Appeal herein on appellant’s briefs is as follows: Commonwealth of Pennsylvania ex rel. Cambria County Children’s Services v. Dodson, Alvin, Sr. We have modified the caption to this opinion, however, to conform with appellant’s legal name—Alvin Dodson, Sr.

   Order affirmed.


text:
    432 A.2d 255
    Green, Appellant v. Green, Jr.
    Argued April 14, 1980.
    Sylvia Denys, for appellant. No appearance entered on behalf of appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Appeal is quashed and case remanded to the court below for further proceedings.


text:
    432 A.2d 255
    Mueller et ux., Appellants v. Brown et al.
    Argued November 14, 1979.
    Thomas P. Cole, II, for appellant; George A. Kotjarapoglus, for Brown, appellee; Rabe F. Marsh, III, for Equitable Gas, appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    432 A.2d 256
    Patrick and Wilkins et al., Appellants v. Reliance Insurance Co. et al.
    Petition for Allowance of Appeal Granted July 22, 1981.

      Argued September 8, 1980.
    Andrew F. Mimnaugh, for appellants; Harry P. Begier, Jr. and M. Stuart Goldin, for appellees.
    Before BROSKY, WATKINS and MONTGOMERY, JJ.
   Order affirmed.


text:
    432 A.2d 256
    Sarachman v. Meehan. Appeal of Joyce Sarachman, Formerly Joyce Meehan.
    Argued January 14, 1981.
    Shelley W. Elovitz, for appellant; Michael A. Donadee, for appellee.
    Before SPAETH, SHERTZ and MONTGOMERY, JJ.
   The above matter is remanded to the lower court for a full evidentiary hearing pursuant to Allegheny County Common Pleas Court Rule 1139.5 of the Civil and Family Division to determine the present best interest of Amber Meehan, the three year old daughter of the parties, and to make a proper award of her custody in accordance with such findings.


text:
    432 A.2d 256
    Smialek etc., Appellant v. Chrysler Motors Corp. et al. Appeal of North Hills Passavant Hospital.

      Argued November 12, 1980.
    Donald W. Bebenek, for North Hills Passavant Hospital, appellant, at No. 451 and appellee at No. 472. Dennis C. Harrington, for Smialek, appellant at No. 472 and appellee at No. 451; Thomas J. Reinstadtler, for Chrysler, appellee; Asher Wincoff, for Drewel, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   Appeals quashed.


text:
    432 A.2d 257
    Valley Forge Christian College, Appellant v. Cote.
    Submitted September 8, 1980.
    Margaret Ann O’Connor, for appellant; Elliott N. Pincus, for appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    January 30, 1981.
    432 A.2d 257
    Commonwealth v. Bailer, Sr., Appellant.
    Submitted June 13, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo, of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   The order denying appellant’s application for reconsideration of sentence is affirmed.


text:
    432 A.2d 257
    Commonwealth v. Brewer, Appellant.
    Argued March 19, 1980.
    Janet W. Mason, Assistant Public Defender, for appellant; Robert J. Donatoni, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, CAVANAUGH and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 258
    Commonwealth v. Conklin, III, Appellant.
    Submitted April 16, 1980.
    Joseph C. Barnhart, for appellant; Richard A. Hernán, District Attorney, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   Order affirmed.

PRICE, J., filed a memorandum dissenting statement.


text:
    432 A.2d 258
    Commonwealth v. Cwalina, Appellant. Kathleen Cwalina, participating party.
    Argued September 8, 1980.
    David N. Cwalina, appellant, in propria persona; Philip A. Arnold, for Commonwealth, appellee; Samuel Andes, submitted a brief on behalf of Kathleen M. Cwalina, participating party.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   Order affirmed.


text:
    432 A.2d 258
    Commonwealth v. DuBose, Appellant.
    Submitted September 11, 1980.
    Michael D. Marino, for appellant; Ronald T. Williamson, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The order of the lower court is hereby affirmed.


text:
    432 A.2d 258
    Commonwealth v. Holcomb, Appellant.
    Petition for Allowance of Appeal Denied July 10, 1981.
    Submitted March 21, 1980.
    George E. Lepley, Jr., Assistant Public Defender, for appellant; William S. Kieser, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 259
    Commonwealth v. Maslany, Appellant. Commonwealth v. McGaw, Appellant.

      Argued June 12, 1980.
    Peter T. Campana, for appellants; Gailey C. Keller, District Attorney, submitted a brief on behalf of Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgments of sentence affirmed.


text:
    432 A.2d 259
    Commonwealth v. McCrossen. Appeal of Joseph C. Santaguida, Esquire.
    Argued March 12, 1980.
    Joel Harvey Stomsky, for appellant; Jean Marie Celia, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    432 A.2d 259
    Commonwealth v. Mitchell, Appellant.

      Argued June 10, 1980.
    Janet Mason, Assistant Public Defender, for appellant; Joseph Carroll, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   Judgment of sentence affirmed.


text:
    432 A.2d 260
    Commonwealth v. Mizell, Appellant.
    Submitted September 11, 1980.
    Christopher G. Furlong, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    432 A.2d 260
    Commonwealth v. Wyland, Appellant.
    Submitted September 11, 1980.
    Thomas G. Klingensmith, Assistant Public Defender, for appellant; Edward F. Browne, Jr., Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, HESTER and CAVANAUGH, JJ.
   The judgment of sentence of the lower court is hereby affirmed.


text:
    432 A.2d 260
    Commonwealth ex rel. Kachelries v. Kachelries. Appeal of Joy Ann Kachelries.
    Submitted June 12, 1980.
    Jeffrey T. Spangler, for appellant; Lester Krasno, for appellee.
    Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   The orders of the Court below are affirmed.


text:
    432 A.2d 261
    Commonwealth ex rel. Wambold v. Wambold, Appellant.
    Argued June 9, 1980.
    Michael P. Shay, for appellant; Gus Milides, submitted a brief on behalf of appellee.

      Before BROSKY, HOFFMAN and CIRILLO, JJ.

       Judge Vincent A. Cirillo of the Court of Common Pleas of Montgomery County, Pennsylvania, is sitting by designation.

   Order affirmed.


text:
    432 A.2d 261
    Dic Concrete Corp., Appellant v. Blust et al.
    Argued March 20, 1979.
    Stanton Dubin, for appellant; Alan Jay Davis, for Blust, Blewett and Fab, appellees; A. Richard Gerber, for Kober, appellee.
    Before VAN der VOORT, HESTER and WIEAND, JJ.
   Order affirmed.


text:
    432 A.2d 261
    Leace etc., Appellant v. Conover Jr., et al.
    Argued March 10, 1980.
    Thomas H. Goldsmith, for appellant. No appearance entered nor briefs submitted for Conover, appellee. Charles W. Johns, for Bouni, appellee. No appearance entered nor briefs submitted for FoxBouni Associates, appellees. John B. Day, for Borough of West Chester, appellee. Joseph A. Torregrossa, for County of Chester, appellee. No appearance entered nor briefs submitted for Blackburn, appellee. No appearance entered nor briefs submitted for Lawver and Winokur, appellees.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.


text:
    432 A.2d 262
    Montgomery etc. v. Central Builders, Appellant.
    Argued March 12, 1980.
    Barry D. Floyd, for appellant; Jack H. Land, for appellees.
    Before SPAETH, BROSKY and VAN der VOORT, JJ.
   Order affirmed.

SPAETH and VAN der VOORT, JJ. concurred in the result.


text:
    432 A.2d 262
    Tkach, Appellant v. Tkach.
    Submitted April 16, 1980.
    Gary P. Fine, for appellant; Harry Stump, for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   Order affirmed.


author: HOFFMAN, Judge: VAN der VOORT, Judge,

text:
    436 A.2d 690
    Elizabeth E. McCLOSKEY v. NEW YORK LIFE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Oct. 30, 1981.

      John H. Scott, Jr., Pittsburgh, for appellant.

      Robert B. Truel, Pittsburgh, for appellee.
    Before CAVANAUGH, HOFFMAN and VAN der VOORT, JJ.
   HOFFMAN, Judge:

Appellant contends, inter alia, that it is entitled to a judgment n. o. v. because the insurance policy had been fraudulently obtained. We agree and, accordingly, reverse the judgment of the court below and remand for entry of judgment n. o. v. in favor of appellant.

In early December, 1974, appellee’s husband, Robert J. McCloskey, Jr., applied to appellant for a $25,000 life insurance policy and completed a medical questionnaire designed to reveal any history of various medical conditions including diabetes and heart disease. Mr. McCloskey answered each question in the negative. He also submitted to a paramedical examination which disclosed that he was overweight. Appellant subsequently issued a policy with a special rate classification requiring appellee’s husband to pay a premium higher than that of a standard policy. He accepted the policy, and paid the first year’s premium. Mr. McCloskey died within a month after the issuance of the policy, whereupon appellee submitted a claim for the face value of the policy. After an investigation, appellant denied appellee’s claim and, instead, tendered the initial premium with interest. Appellee rejected that offer, commencing this action in assumpsit for the proceeds of the policy.

At trial, appellant defended on the ground that appellee’s husband has fraudulently obtained the policy by misrepresenting his medical condition in the application for insurance. Appellant introduced evidence that Mr. McCloskey did, in fact, suffer from diabetes and that he had suffered a heart attack prior to applying for the policy and that he had undergone a variety of diagnostic tests, a series of x-rays, and a number of electrocardiograms within the period relevant to the application. Although appellee disputed her husband’s knowledge of his medical condition, she contended primarily that appellant had not relied upon her husband’s misrepresentations when it issued the rated policy. The jury returned a $25,000 verdict for appellee. Following the denial of post-trial motions and entry of judgment, appellant took this appeal challenging the denial of its motion for judgment n. o. v.

In reviewing an order denying judgment n. o. v., we must view the evidence, together with all reasonable inferences therefrom, in the light most favorable to appellee as the verdict winner. See e. g., Lynch v. Metropolitan Life Insurance Co., 427 Pa. 419, 423, 235 A.2d 406, 409 (1967). See also Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980). Judgment n. o. v. should be entered when the facts are such that no two reasonable persons could disagree that the verdict was improper. See e. g., Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 880-81 (1967); Bottorf v. Waltz, 245 Pa.Super. 139, 142-44, 369 A.2d 332, 334 (1976). Accordingly, when the lower court would be warranted in giving binding instructions to the jury, see e. g., Connelly v. Ziegler, 251 Pa.Super. 521, 523-24, 380 A.2d 902, 903 (1977); Albright v. Metropolitan Life Insurance Co., 143 Pa.Super. 158, 164, 17 A.2d 709, 711 (1941), or when the evidence is insufficient to sustain a verdict against the losing party, see e. g., Fitzgerald v. McCutcheon, 270 Pa.Super. 102, 105-06, 410 A.2d 1270, 1271 (1979); Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 480-81, 406 A.2d 1142, 1143 (1979); Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 274-75, 363 A.2d 1265, 1266-67 (1965), the court should enter a judgment n. o. v.

Appellant contends that the uncontroverted testimony and documentary evidence established, as a matter of law, that appellee’s husband had fraudulently obtained the life insurance policy by misrepresenting his medical condition in the application for insurance. To avoid its obligations under the life insurance policy, appellant had to prove that: (1) statements of appellee’s husband in his insurance application were false; (2) their subject matter was material to the risk assumed by appellant; and (3) he knew his statements to be false and made them in bad faith. See e. g., Lynch v. Metropolitan Life Insurance Co., supra, 427 Pa. at 424, 235 A.2d at 409; Underwood v. Prudential Insurance Co., 241 Pa.Super. 27, 81, 359 A.2d 422, 424-25 (1976). Additionally appellant must establish that it relied upon the misstatements in issuing the policy. Kizirian v. United Benefit Life Insurance Co., 383 Pa. 515, 519, 119 A.2d 47, 49-50 (1956), quoting Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 553, 186 A. 133, 138 (1936). The questions propounded in the application for insurance, see note 2, supra, clearly were material to the risk assumed by appellant. See, e. g., Shafer v. John Hancock Mutual Life Insurance Co., 410 Pa. 394,189 A.2d 234 (1963); Kizirian v. United Benefit Life Insurance Co., supra. The uncontroverted testimony and documentary evidence established that Mr. McCloskey answered the questions falsely. Moreover, from that same evidence, we can infer that he knowingly and in bad faith misrepresented his medical condition when answering the medical questionaire. See Platt v. John Hancock Mutual Life Insurance Co., 361 Pa. 652, 653-54, 66 A.2d 266 (1949) (when undisputed hospital records established numerous admissions to hospital, diagnosis and treatment for tuberculosis, beneficiary precluded from recovering under life insurance policy; judgment n. o. v. for insurer); Freedman v. Mutual Life Insurance Co. of New York, 342 Pa. 404, 409, 21 A.2d 81, 84 (1941) (“[Wjhere it is established by uncontradicted documentary evidence that the insured has consulted physicians so frequently, or undergone medical or surgical treatment so recently, or of such a serious nature, that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance, bad faith may be inferred as a matter of law if the insured denies in his answer that any physician has been consulted, or medical or surgical treatment has been received during the period of inquiry.”). See also Shafer v. John Hancock Mutual Life Insurance Co., supra, 410 Pa. at 399, 189 A.2d at 236; Evans v. Penn Mutual Life Insurance Co., supra, 322 Pa. at 560-61, 186 A. at 141-42. Consequently, this case should not have been submitted to the jury unless there was sufficient evidence to permit the jury to infer that appellant had not relied upon the misrepresentations when it issued the policy.

Appellee contends, and the lower court held, that the jury could reasonably infer appellant’s lack of reliance from the facts that appellee’s husband habitually wore a bracelet disclosing his diabetes and that appellant had admittedly issued a rated policy because Mr. McCloskey had been in poor health. We disagree. Assuming, arguendo, that the jury could reasonably infer that the paramedic discovered that Mr. McCloskey was diabetic and reported that discovery to appellant, the jury could not possibly have inferred that appellant had also learned of Mr. McCloskey’s entire medical history. Nor could such an inference be drawn from the fact that appellant had issued a rated policy. The only evidence presented by appellee of appellant’s knowledge of Mr. McCloskey’s medical condition was the testimony of his7 daughter that the agent who delivered the policy to him told that “he was a special rating due to poor health.” No evidence whatsoever was introduced as to what the agent had meant by “poor health.” Regardless of whether the policy was rated due to diabetes, as asserted by appellee at trial, or because of obesity, as asserted by appellant at trial, there was no basis other than sheer conjecture for the jury to conclude that appellant had become aware of Mr. McCloskey’s entire medical history. Because “[a] verdict will not be sustained which is based on conjecture or surmise or guess,” Warden v. Lyons Transportation Lines, Inc., 432 Pa. 495, 498, 248 A.2d 313, 314 (1968) (quotations omitted), we cannot agree with the lower court that there was sufficient evidence from which “the jury could properly have concluded that the insurance company knew of [Mr. McCloskey’s] medical condition and chose [, nevertheless, to issue a policy and] to charge a higher premium rather than to deny the insurance application.” Opinion of the Lower Court at 3. Accordingly, we hold that the issue of appellant’s reliance upon the misstatements of appellee's husband should not have been submitted to the jury, and, therefore, appellant is entitled to judgment n. o. v.

Judgment reversed and case remanded for entry of judgment n. o. v. in favor of appellant, New York Life Insurance Company.

VAN der VOORT, J., files a dissenting opinion.

VAN der VOORT, Judge,

dissenting:

On the basis of the decedent’s application and the medical examination given the decedent by the medical representative of the appellant, the decedent was offered a so-called “rated” policy at a premium substantially double the appellant’s charge for an unrated policy. When the policy was delivered to the decedent, he was told by the appellant’s representative who delivered it that he was being offered a rated policy at an increased premium because of his “poor health.” He accepted the rated policy and paid the first year premium.

On this appeal, the appellant has renewed its Motion for a Judgment N.O.V. or a New Trial. In passing upon the propriety of entering a Judgment N.O.V., the reviewing Court must view the evidence, together with all reasonable inferences therefrom in the light most favorable to the verdict-winner. Lynch v. Metropolitan Life Insurance Company, 427 Pa. 418, 423, 235 A.2d 406, 409 (1967).

The insurance policy issued to the decedent states that the decedent’s statements in the application were representations and not warranties. It therefore becomes incumbent upon the appellant to establish: (1) that the statements of the decedent in his application were false, (2) that their subject matter was material to the risk, and (3) that the decedent must have known them to be false and made them with the intent to deceive. Lynch, 427 Pa. at 424, 235 A.2d 406.

It is evident that the decedent’s answers to the medical questions were material to the risk and were contrary to the facts of his medical background. The evidence is also undisputed that he knew he had diabetes, as evidenced by his diabetic bracelet. However, members of his family testified that he had not been told that he had a heart condition. I believe it was for the jury to determine whether he had knowingly misrepresented his heart condition.

The central issue before us is whether credible evidence was offered from which the jury could conclude that the appellant had not been deceived by the medical application, but had acted upon other information which disclosed to it the true situation when it issued the policy. The appellee contends that the fact that the appellant issued a rated policy at a substantially higher premium than normal was evidence that it knew the decedent’s condition and preferred to assume the risk at a higher premium rather than decline the application. There was evidence that the decedent always wore his diabetic bracelet and his daughter testified that he was wearing it when he took his medical examination for the policy. There was no evidence as to whether the examining doctor took note of the bracelet and reported it to the appellant or the diabetes which it indicated, but it is a permissible inference that he did so in view of the fact that the appellant would only issue the policy on a rated basis. It is also a reasonable inference that the medical examiner discovered the diabetic condition of the decedent in the physical examination. This finds some confirmation in the testimony that the agent who delivered the policy to the decedent explained the reason for the rating and the higher premium as the decedent’s “poor health.”

The appellee contends that unless the appellant had knowledge of the decedent’s condition, it would have had no basis for issuing a rated policy because the decedent revealed no medical history which would call for a rating. The appellant explains its rating of the policy as due to the decedent’s obesity, its medical examination having revealed the decedent to be a man 5' 10" in height and weighing 238 lbs.

Whether the appellant relied upon the misinformation in the insurance application or whether it had learned of the decedent’s condition and decided to assume the risk at an upgraded premium was a disputed issue of fact for the jury. In view of our obligation to view the evidence and all reasonable inferences from it in the light most favorable to the verdict winner, I must conclude that there is no basis for reversing the Judgment and entering Judgment N.O.V. in favor of appellants.

The appellant bases its claim for a new trial on the grounds (1) that the appellee did not offer the insurance policy in evidence during her case in chief, and (2) that the trial court limited the appellant’s cross-examination of the appellee during her case in chief to the issues raised in her direct examination. There is no merit in either argument.

The policy was not produced during appellee’s case in chief because it had previously been turned over to the appellant who offered it in evidence during its defense. The appellant had the insurance policy in its possession throughout the appellee’s case and suffered no harm from the fact that it, rather than the appellee, introduced the policy in evidence.

While it is generally true that a party may be cross-examined as to any matter relevant and material to the case, it is equally true that a defendant should not be permitted to put in its defense under cover of cross-examination of the plaintiff. Agate v. Dunlevy, 398 Pa. 26, 30, 156 A.2d 530, 532 (1959). This is what was being attempted by the cross-examination. The appellee remained available to testify as on cross-examination in the appellant’s case, but was not called.

Therefore, I respectfully dissent and would affirm the judgment.

      . Because of our disposition of this case, we need not reach appellant’s alternative contentions that the lower court erred in denying its motions for a compulsory nonsuit or a new trial.

      . In particular, Mr. McCloskey answered “no” to each of the following questions:
      2. Have you ever consulted a physician or practitioner for or, so far as you know, ever had or been treated for
      (b) rheumatic fever, heart murmur, heart attack, angina pectoris, stroke, chest pain, shortness of breath, palpitation, irregular pulse, elevated blood pressure, varicose veins or any other disorder of the heart or blood vessels?
      (d) duodenal or gastric ulcer, nervous stomach, indigestion, appendicitis, colitis, diverticulitis, gall bladder disease, hemorrhoids, bleeding from the intestinal tract or any other disease of the stomach, liver, intestines or rectum?
      (e) nephritis, kidney stone or colic; sugar, albumin, blood or pus in urine; or any other disorder of the prostrate, bladder, kidney or genito-urinary system?
      (j) cancer, cyst, tumor, hernia of any kind, anemia or other blood disorder; syphilis, diabetes, disease of the thyroid or any other gland; dermatitis, eczema or other skin disease?
      3. Have you
      (a) ever had a surgical operation?
      (b) ever been advised to have any surgical operation which has not been performed?

        (c) within the last 5 years, had any x-ray, electrocardiogram or other diagnostic procedure ordered by a physician or practitioner?
      (g) ever applied for, or ever received, benefits or a pension because of accident, sickness or disability?
      4. Other than as stated in your answers to the preceding questions, have you, within the last 5 years, so far as you know,
      (a) had any sickness, disease or injury?
      (b) been admitted, to or advised to be admitted to, a hospital or similar institution?
      (c) consulted any physician or practitioner for any reason, including routine or checkup examination?
      6. Do you have any reason to believe you are not in good health at the present time?

      . Mr. McCloskey, who was five-feet-ten-inches tall, weighed 238 pounds.

      . The undisputed evidence established that Mr. McCloskey: (1) wore a diabetes bracelet; (2) followed a diabetic diet; (3) received oral anti-diabetic medications, and, eventually, insulin injections; (4) consulted several doctors and had been hospitalized concerning his diabetes; (5) had at least twenty-six electrocardiograms, and a variety of other diagnostic studies including blood tests, urinalyses, a liver scan, barium enema, and several x-rays; (6) had a prescription for nitroglycerine tablets; (7) occasionally complained of chest pains and shortness of breath; (8) had been hospitalized for a liver ailment and a myocardial infarction; (9) signed two different disability insurance claims forms, each of which reciting that he had suffered a heart attack; and (10) had suffered from drug-induced hepatitis.

      . Although appellee presented evidence that her husband had not been told that he had a heart attack, the issue still could not be submitted to the jury because of the overwhelming evidence, see note 4, supra, that he had grossly misrepresented the details of his medical condition in answering the medical questionaire. Mr. McCloskey’s glaring misrepresentations of his treatments would be sufficient to permit appellant to avoid its obligations under the policy.

      . As appellee acknowledges in her brief, because the application for insurance in this case stated that no medical examiner was authorized to waive any of appellant’s rights, the paramedic’s knowledge “will not estop the [appellant], unless such knowledge was brought to the attention of the [appellant] and acquiesced in by the [appellant] or its authorized officers.” Crawford v. Manhattan Life Insurance Co. of New York, 208 Pa.Super. 150, 163, 221 A.2d 877, 885 (1966), citing Matovich v. Mutual Benefit Health and Accident Association, 157 Pa.Super. 604, 43 A.2d 648 (1945). Accord, Celley v. Mutual Benefit Health and Accident Association, 229 Pa.Super. 475, 324 A.2d 430 (1974).


author: VAN der VOORT, Judge:

text:
    436 A.2d 695
    William GILLESPIE, Appellant, v. Harry VECENIE and Transport Motor Express, Inc.
    Superior Court of Pennsylvania.
    Argued Nov. 11, 1980.
    Filed Oct. 30, 1981.

      Thomas W. Brown, Pittsburgh, for appellant.
    Harry Stump, Pittsburgh, for Vecenie, appellee.
    Robert G. Simasek, Pittsburgh, for Transport Motor, appellee.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an action in trespass to recover damages for personal injuries sustained by plaintiff-appellant. Appellant was injured on August 10, 1978 at about 7:00 P.M. in a parking lot allegedly owned by defendant-appellee Transport Motor Express, Inc. (hereafter referred to as Transport). Appellant, an employee of Transport had a few minutes earlier “punched out” on the employer’s time clock. The other defendant-appellee, Vecenie, was a dispatcher in the employ of Transport. It is alleged that an altercation occurred between Vecenie and appellant involving the “punching out” procedure; Vecenie followed appellant into the parking lot where he attacked him both verbally and physically.

The appellees filed Preliminary Objections in the nature of a demurrer to the original complaint; the complaint was amended. Preliminary objections were again filed and the Complaint was again amended. A third set of Preliminary Objections was filed, and briefs were submitted, after which Judge Del Sole sustained the objections and dismissed the complaint. The present appeal is from that order dated December 18, 1979.

Judge Del Sole’s order is supported by his opinion which states, in effect: (1) that the common-law action in trespass by an employee against a fellow employee and against his employer is barred by the Pennsylvania Workmen’s Compensation Act; (2) that, in any event, Vecenie’s intentional assault upon the appellant cannot be charged vicariously to the employer; and (3) further, that the employer’s liability, if any, to appellant by reason of a failure to provide him a safe place to work, similarly, gives appellant a remedy only under the Workmen’s Compensation Act (hereafter referred to as the Act).

The lower court relied on 77 P.S. § 411(1), which provides as follows:

The terms “injury” and “personal injury” as used in this Act, shall be construed to mean an injury to an employee, . . . arising in the course of his employment and related thereto.. . The term “injury arising in the course of his employment” as used in this article shall not include an injury caused by an act of a third person intended to injure the employee because of reasons personal to him, and not directed against him as an employee or because of his employment; but shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employee, who though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employee’s presence thereon being required by the nature of his employment.
(Emphasis added)

The trial court found that the altercation was precipitated by the wash up and punch out procedure; therefore it held that the attack was not motivated by purely personal reasons. Accordingly, the court found that appellant was limited to his remedies under the Act. Dolan v. Linton Lunch, 397 Pa. 114, 152 A.2d 887 (1959). The court additionally reasoned that Transport could not be sued for failure to provide a safe working place because that kind of action was also covered by the Act.

Under the decided cases, particularly Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980), which contains an extensive review of the case law, we find that the averments of the last amended complaint are sufficient, if eventually proven by competent evidence, to permit a common-law recovery in tort against the employer. The complaint, as last amended, avers, among other things, in paragraphs 6-11, that an altercation began about 6:45 P.M. on August 10, 1978, between appellant and Vecenie; and in paragraphs 13-6, that at about 7:00 P.M. (as had occurred on other prior occasions) Vecenie threatened appellant; but unlike previous times, Vecenie, actually attacked appellant in the parking lot because of:

“pure personal hatred toward the plaintiff . . . ”; “personal animosity ... in no way resulted [sic] out of a relationship between an employer and an employee or . . . between two co-employees”; saying “. . . this has nothing to do with the job, this is between us.”

We recognize that averments of personal hatred and animosity, and the negative conclusion that the attack “has nothing to do with the job” may be difficult to prove at trial, but we find that the lower court improperly concluded as a matter of law:

“that the injury he sustained . . . were [sic] work related”; that
“the activities precipitating the altercation . . . arose out of the employment between the parties, namely the punching of a time card and washing up”; that “[t]his was not an attack ... for purely personal reasons
(Opinion pp. 2-3).

“[A] physical attack following a long running feud between two employees has been held to be ‘personal’, even though the initial spark for the animosity was work-related.” 279 Pa.Super 382 at 390, 421 A.2d 251 at 255.

We also must reject the conclusion of the court below that Transport cannot be vicariously liable because of the actions of Vecenie since they are alleged to be intentional. Mike, supra, allowed recovery against a municipality for permitting the plaintiff-employee to become the victim of a violent beating; the employer had failed to provide the victim with a safe working place. While the proof at trial may be difficult, we believe that appellant must be given an opportunity to prove, if he can, a basis of liability against Transport as averred in paragraphs 23 and 24 of the amended complaint.

With respect to the claim against Vecenie, the appellant has stated a clear basis of liability, unless a legal action is barred by the Act. The applicable provision is 77 P.S. § 72, which reads:

If disability or death is compensable under this Act, a person shall not be liable to anyone at common law or otherwise on account of such disability or death for any act or omission occurring while such person was in the same employ as the person disabled or killed, except for intentional wrong.
(Emphasis added)

If, as appellant alleges in Paragraph 28 of the Complaint Vecenie’s attack upon him was “willful, malicious, vicious, and violent”, the underscored exclusion in § 72 would be applicable.

Vecenie argues that the Workmen’s Compensation Referee made an adjudication that appellant’s injury was “a result of a negligent act”, and that appellant is now es-topped from establishing an intentional wrong as he failed to appeal such finding. We find no indication on the record that the Referee adjudicated that the injury was “a result of a negligent act.” The exhibit attached to Vecenie’s Preliminary Objections is the Referee’s findings on Transport’s petition to terminate the Workmen’s Compensation Agreement because appellant’s disability had ceased. The Second Finding of Fact recites that “claimant was accidentally injured on August 10, 1978. ...” Under rules applicable to Workmen’s Compensation matters, a set of circumstances may constitute a compensable “accident” as between employer and employee, even though the injury to the employee resulted from the intentional wrongdoing of some third person. See, for example, Repco Products Corp. v. WCAB, 32 Pa.Cmwlth. 554, 379 A.2d 1089 (1977).

Though, we find a cause of action stated against both defendants, we are foreclosed, by the record from giving the lower court definitive guidance. The record is somewhat contradictory and incomplete as to what action was taken pursuant to the Act. Attached as an exhibit to appellant’s reply to the first set of preliminary objections is a “Notice of Workmen’s Compensation Denial” dated November 13, 1978. Appellees’ final preliminary objections are accompanied by copies of a Referee’s findings of fact and conclusions of law on a “Termination Petition.” The Referee found that a “Compensation Agreement” was entered into by the parties on June 18, 1979. The initial complaint was filed on April 23, 1979. We are unable, from the state of the record, to determine whether Gillespie is barred, by an agreement, from proceeding in tort against Transport. Nor is the record dispositive as to whether appellant and/or Transport have waived rights and/or defenses by their failure to appeal rulings concerning a Workmen’s Compensation claim. Nonetheless, we are confident, on the state of the record, that appellant should be permitted the opportunity to prove his case against Vecenie.

When an injury has been compensated under the Act, then the Act, 77 P.S. § 481, would prohibit the claiming against the employer. An employee may sue a third party whose conduct caused an injury; but neither the employee nor the third party may join an employer in such suit. See Atkins v. Urban Redevelopment Auth., 263 Pa.Super. 37, 396 A.2d 1364 (1979).

The order of the lower court is vacated, the complaint is reinstated and the record is remanded to the lower court with directions to proceed not inconsistent with this Opinion.

      . Judge Del Sole’s opinion recites that “the Court takes notice of findings of fact and award by the Workmen’s Compensation Referee”. (Opinion, p. 2).

      . 23. The injuries and damages sustained by the Plaintiff, WILLIAM GILLESPIE, were the direct and proximate result of the reckless, careless, negligent and wanton misconduct of the Defendant, Transport Motor Express, Inc., a corporation in the following respects:
      a. In failing to provide a safe place for Plaintiff to work and for the Plaintiff to leave the premises in a safe manner;
      b. In failing to provide adequate protection for the person of Plaintiff while lawfully on the Defendant’s premises;
      c. In inviting Plaintiff upon its premises and failing to safeguard his rights;
      d. In failing to keep the Defendant, Harry Vecenie, from assaulting employees going to or coming from work when the Defendant knew or in the exercise of reasonable care should have known that the said Defendant, Harry Vecenie had a vicious propensity for attacking fellow employees and had in fact been guilty of similar previous assaults upon other employees;
      e. In failing to properly police and supervise its premises so that Plaintiff could safely leave the premises without interference or undergo any vicious assaults by their employee, the Defendant, Harry Vecenie.
      24. The Defendant, Transport Motor Express, Inc., is not liable under the Doctrine of Respondeat Superior, but as stated above, is liable for its negligence in allowing a vicious Defendant, Harry Vecenie to do the acts complained of in the Complaint.

      . The claim was denied because the “disability [was] not related to employment”.

      . For a contrary result, prior to the 1974 Amendment to the Act, see Socha v. Metz, 385 Pa. 632, 123 A.2d 837 (1956); and Burke v. Duquesne Light Co., 231 Pa.Super. 412, 332 A.2d 544 (1974).


author: LIPEZ, Judge:

text:
    436 A.2d 698
    Carol Jean WALLS v. CITY OF PITTSBURGH. Appeal of AMERICAN MOTORISTS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed Oct. 30, 1981.

      S. Asher Winikoff, Pittsburgh, for appellant.
    Joseph M. Zoffer, Pittsburgh, for Walls, appellee.
    Joseph A. Fricker, Jr., Assistant City Solicitor, Pittsburgh, did not file a brief on behalf of City, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

Appellee Carol Jean Walls was injured when, as a result of the negligent driving of an uninsured motorist, the bus she was operating was diverted into a pothole in a street owned and maintained by the City of Pittsburgh (Pittsburgh). Walls sought recovery of her damages by filing a claim under her uninsured motorist insurance carried by appellant American Motorists Insurance Company (American), and by commencing the instant action against Pittsburgh alleging negligent roadway maintenance. An arbitration panel awarded Walls ten thousand dollars from American. Walls then signed an agreement drafted by American and containing, inter alia, the following:

This agreement is not intended to release any claim of action for damages against the owner or operator or any persons, firms or corporations responsible for the operation of the said uninsured automobile. It is further agreed that [American] shall be entitled [,] to the extent of such payment, to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery against any person or organization legally responsible for causing the injury or death on account of which said payment is made, and all such rights of recovery shall be held in trust for the benefit of [American]. The undersigned agrees to do whatever is necessary to secure, and to do nothing to prejudice, such rights.

(Emphasis added.) Walls subsequently settled with Pittsburgh for fifty thousand dollars. American sought to intervene, asserting that, since Pittsburgh was a “person or organization legally responsible for causing the injury on account of which” American had paid Walls, ten thousand dollars of the settlement was due American under the agreement. The court below denied American’s petition to intervene.

Examined without external reference, the agreement supports American’s position. The language of the contract unambiguously grants American the right to recover monies it had paid an injured insured under uninsured motorist coverage from any money received in settlement of the insured’s claim against any person legally responsible for the injury, even if such person has no relation at all to the uninsured motorist.

The part of the agreement at issue, however, is taken virtually verbatim from section (d) of the Uninsured Motorist Act (Act). Section (d) provides, in relevant part:

In the event of payment to any person under [uninsured motorist coverage], the insurer making such payment shall, to the extent thereof, be entitled to the proceeds of any settlement of judgment resulting from the exercise of any rights of recovery of such person against any person or organization legally responsible for the bodily injury for which such payment is made ....

(Emphasis added.)

Our interpretation of this statutory language, therefore, defines the boundaries of the similar broad language of the agreement. Since the appellate courts of Pennsylvania have not heretofore considered the issue raised in this appeal, we must look to those courts’ general statement of the policy embodied in the Act.

The Act is to be construed liberally in order to protect nonculpable victims of irresponsible drivers. Bankes v. State Farm Mutual Auto. Ins. Co., 216 Pa.Super. 163, 264 A.2d 197 (1970). In enacting this law, the legislature intended that, in any dispute thereunder, the courts find in favor of the insured person unless legal or equitable factors at least as strong as those in favor of coverage militate against it. Adelman v. State Farm Mut. Auto. Ins. Co., 255 Pa.Super. 116, 386 A.2d 535 (1978); Sands v. Granite Mut. Ins. Co., 232 Pa.Super. 70, 331 A.2d 711 (1974).

The purpose of the above-quoted statutory section and contractual provision is to allow an insurer who makes a payment under uninsured motorist coverage the right of subrogation. Hughes v. State Farm Mut. Auto. Ins. Co., 604 F.2d 573, 577 (8th Cir. 1979), citing A. Widiss, A Guide To Uninsured Motorist Coverage § 3.10, app. B 3 at 313 (1968 and Supp. 1978).

However, an insurer who has entered into an agreement such as is involved herein with an insured may be subrogated to the insured’s recovery from any person legally responsible for the insured’s injury for which the insuror has made payment under uninsured motorist coverage only upon the insuror’s showing that the sum of the insured’s recovery from the insuror and from persons legally responsible for the injury exceeds the insured’s loss. Hughes, supra, at 579. See also White v. Nationwide Mut. Ins. Co., 361 F.2d 785 (4th Cir. 1966).

In the case before us, American has not alleged plaintiff’s excessive recovery in its petition for a rule to show cause; the court below, therefore, properly discharged the rule. However, in view of the new principle here established for Pennsylvania, we shall remand to enable American to file an amended petition, if it is able to do so, alleging the insured’s excessive recovery.

The lower court’s conclusion that the words “any person or organization legally responsible for causing the injury” include only the uninsured motorist is incorrect; accordingly, we expressly disapprove its holding. The holdings of two other courts of common pleas, in Amabile v. GEICO, 13 Pa.D. & C.3d 17 (1980), and Johnston v. Springfield Dodge, Inc., 5 Pa.D. & C.3d 47, 65 Del.Co. 191 (1978), that agreements such as the one involved herein are unenforceable under any circumstances are likewise incorrect, and we disapprove them as well.

Order vacated and case remanded. Jurisdiction is relinquished.

      . The identity of this driver was never discovered. He was termed “uninsured” for the purposes of Walls’s recovery under her policy.

        . 40 P.S. § 2000.

      . Shamey v. State Farm Mutual Automobile Ins. Co., 229 Pa.Super. 215, 331 A.2d 498 (1974) relied upon by the court below is distinguishable because the release therein specifically referred to the uninsured motorist, and involved two separate collisions.


text:
    436 A.2d 701
    Robert NAGY and Lois Nagy, Appellants, v. The BELL TELEPHONE COMPANY OF PENNSYLVANIA and Gerald Porto.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1980.
    Filed Oct. 30, 1981.

      K. Lawrence Kemp, New Kensington, for appellants. William J. O’Brien and Thomas Gibson, Philadelphia, for Bell, appellee.

      Mark T. Wade, Washington, for Porto, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal by Robert and Lois Nagy, plaintiffs below, of the order of the trial court sustaining defendants’, The Bell Telephone Company of Pennsylvania and Gerald Porto, preliminary objections to all three counts of the plaintiffs’ complaint. We affirm in part and reverse in part.

The facts of the case are adequately stated by the court below:

The individual defendant, Gerald Porto, is the estranged husband of Judy Porto, the wife-plaintiff’s sister. As a result of beatings administered by Gerald Porto throughout fourteen years of stormy marriage, Judy Porto was compelled to leave her marital domicile and keep her whereabouts secret for her own safety and protection. The wife-plaintiff kept in contact with Judy Porto by way of long distance telephone calls which she completed through defendant Bell Telephone’s communication system. Some time in October of 1978, the wife-plaintiff contacted an employee of Bell at its McKeesport office and requested that the records of the telephone calls made from the plaintiff’s telephone, including telephone numbers, not be disclosed to third parties. She received assurance from that employee, whose identity is unknown, that her request would be honored. With this assurance, the wife-plaintiff proceeded to call her sister several times during the months of October and November of 1978. Subsequently, the individual defendant, Gerald Porto, obtained the telephone numbers of calls made from the plaintiff’s residence, including the telephone number of his wife, Judy Porto, the wife-plaintiff’s sister. Again, this was obtained from an unknown employee of defendant Bell Telephone Company. The plaintiffs next filed this action.

I.

The Nagys argue that the first count of their complaint states the causes of action against the Bell Telephone Company of Pennsylvania (Bell) for invasion of privacy and for emotional distress resulting therefrom. To sustain a demurrer, we must find that 1) a cause of action not properly made out in the complaint; and 2) the plaintiff would be unable to state a proper claim even on a different statement of facts.

Our decision of this issue is controlled by Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974). In Vogel, our Supreme Court approved the Second Restatement’s definition of the tort of invasion of privacy:

One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.

Id., 458 Pa. at 130, 327 A.2d at 136, quoting Restatement, Second, of Torts § 652 D (tent. Draft No. 13, 1967). “The crux of the tort developed in these cases and described in section 652 D is publicity. Without it there is no actionable wrong.” Id., 458 Pa. at 130, 327 A.2d at 136. The Vogel court held that “notification of two or four third parties is not sufficient to constitute publication. Without publication, appellees have not established an actionable invasion of privacy.” Id., 458 Pa. at 133, 327 A.2d at 137 38.

In the case before us, the Nagys have alleged that information was disclosed to only one person. A fortiori, they have failed to make out a cause of action for invasion of privacy. The complaint also falls short of stating a claim for negligent infliction of emotional distress, it being the law of Pennsylvania that liability therefor must be founded upon one’s personal observation of physical injury negligently inflicted by another upon a third person. Hoffner v. Hodge, 47 Pa.Cmwlth. 277, 407 A.2d 940 (1979); see Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Nor do we conclude that disclosure, by a Bell employee, to a third party, of a telephone number called by plaintiffs is the sort of “extreme or outrageous” conduct on which recovery for intentional infliction of emotional distress may be predicated. See Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 383, 368 A.2d 770, 773 (1976).

II.

The second count of the Nagys’ complaint is in assumpsit. It alleges that Bell was obligated by contract with the Nagys “not to reveal the telephone number of parties called by [the Nagys] to third parties.” The court below concluded that the Nagys should have taken this claim before the Public Utilities Commission (PUC), under the doctrine of primary exclusive jurisdiction.

For the purposes of this [issue], this Court may assume, without deciding, that the factual allegations in appellant’s complaint would, if proven, constitute an actionable claim. Whether these allegations are legally sufficient to state a cause of action is an issue that the court below did not reach because the court based its dismissal of appellants complaint upon [the] failure to exhaust administrative remedies.

Feingold v. Bell of Pennsylvania, 477 Pa. 1, 5 n. 2, 383 A.2d 791, 793 n. 2 (1977) (reh’g denied 1978).

In Feingold, the Supreme Court of Pennsylvania “recognized .. . that the Courts of Common Pleas have original jurisdiction to entertain suits for damages against public utilities based upon asserted failure to provide adequate services, even though the subject matter of the complaint is encompassed by the Public Utility Law.” Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 129-30, 420 A.2d 371, 375 (1980). The Feingold court held that

[t]he rule requiring exhaustion of administrative remedies is not intended to set up a procedural obstacle to recovery; the rule should be applied only where the available administrative remedies are adequate with respect to the alleged injury sustained and the relief requested.

477 Pa. at 10, 383 A.2d at 795-96 (footnote omitted). The Court noted specifically that the plaintiff, who had sued for damages, could not have been made whole by the PUC and that, therefore, the administrative remedy was not “adequate and complete.” Id., 477 Pa. at 10-11, 383 A.2d at 796.

In the case before us, the Nagys ask, in the second count of their complaint, for damages for breach of contract. Even though their claim that Bell was contractually obligated to them not to reveal to third parties the telephone numbers they called might be interpreted as one that Bell’s disclosure of certain telephone numbers constitutes unreasonable service, the PUC would have no power to award damages. The order of the court dismissing this section of the complaint must, therefore, be reversed.

III.

The third count of the Nagys’ complaint alleges that the individual defendant Gerald Porto (estranged husband of Mrs. Nagy’s sister) “deliberately persuaded” a Bell employee to reveal to him the long-distance telephone numbers called from the Nagys’ telephone, and that Porto knew, at the time, that his thus obtaining his estranged wife’s telephone number would cause the Nagys “great emotional distress.” This falls short of stating an actionable tort claim.

One subdivision of the tort of invasion of privacy is often referred to as “intrusion upon solitude or seclusion.” It is defined by the Restatement, Second, of Torts as follows:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement, Second, Torts § 652B. It cannot be concluded that the act alleged here, viz., obtaining from a telephone company a list of telephone numbers called long-distance from a certain subscriber’s telephone, is a highly offensive or objectionable act whose commission would lead to tort liability. An act which constitutes a tortious invasion of privacy must be committed “ ‘in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.’ ” Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 99, 125 A.2d 644, 646 (1956), quoting Smith v. Doss, 251 Ala. 250, 252-53, 37 So.2d 118, 120-21 (1948). In the case before us, Porto’s alleged conduct falls short of the standard.

The complaint’s third count also fails to state a claim for infliction of mental distress. There is, once again, no showing or even allegation that Porto committed the sort of extreme and outrageous act which would subject him to liability. The mere obtaining of telephone numbers in the manner in which he obtained them is insufficient to make out a case for emotional distress, as it was for the invasion of privacy.

That part of the order of the court below which sustained Bell’s preliminary objection to the second count of the complaint is reversed, and the cause remanded for proceedings consonant with this opinion; the balance of the order of the court below is affirmed.

      . The Nagys have not attempted to state a claim under any other form of invasion of privacy.

      . In Elkin v. Bell Telephone Co. of Pennsylvania, 491 Pa. 123, 420 A.2d 371 (1980), Elkin sued Bell for damages, alleging failure to provide adequate service. The trial court ordered the matter stayed pending the PUC’s determination of standards for the services involved. Plaintiff then filed a complaint with the PUC. The PUC found in favor of Bell, and dismissed the complaint filed before it. Plaintiff then had the stayed court action listed for trial, and Bell moved for summary judgment, asserting that the PUC’s determination of the issues before it, unappealed by plaintiff, was conclusive and could not be challenged collaterally in the Court of Common Pleas. The trial court denied Bell’s motion. The Superior Court reversed and ordered judgment for Bell. Elkin v. Bell Telephone Co. of Pennsylvania, 247 Pa.Super. 505, 372 A.2d 1203 (1977). The Supreme Court affirmed the order of the Superior Court, holding that
      where the subject matter is within an agency’s jurisdiction and where it is a complex matter requiring special competence, with which the judge or jury would not or could not be familiar, the proper procedure is for the court to refer the matter to the appropriate agency. Also weighing in the consideration should be the need for uniformity and consistency in agency policy and the legislative intent. Where, on the other hand, the matter is not one peculiarly within the agency’s area of expertise, but is one which the courts or jury are equally well-suited [sic] to determine, the court must not abdicate its responsibility. In such cases, it would be wasteful to employ the bifurcated procedure of referral, as no appreciable benefits would be forthcoming.
      491 Pa. at 134-35, 420 A.2d at 377 (emphasis in original) (footnote omitted). The Court indicated that the issue presented by Elkin does not arise in cases like the one now before us, where the plaintiff has no adequate administrative remedy. See 491 Pa. at 131, 420 A.2d at 375.

        It appears to us that the issue presented by the second count of the Nagys’ complaint is one that can and should be heard by a court.

      . There is, of course, no question that allegation of witnessing physical injury, which is necessary to make out the tort of negligent infliction of mental distress, see Hoffner v. Hodge, supra, is absent from the third count of the complaint.


author: PER CURIAM:

text:
    436 A.2d 705
    Homer A. BOHNER and Frances W. Bohner, his wife, Appellants, v. Jeffrey R. STINE.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Oct. 30, 1981.
    Richard A. Stanko, Harrisburg, for appellants.
    David E. Lehman, Harrisburg, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   PER CURIAM:

Inasmuch as the verdict has not been reduced to judgment and the appeal is from an Order denying appellants’ Motion for a New Trial, this case is not properly before our Court at this time. Pa.R.A.P. 301(c). See Heffner v. Bock, 287 Pa.Super. 345, 430 A.2d 318 (1981) and cases cited therein.

Appeal quashed.


text:
    436 A.2d 705
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert James MONTGOMERY.
    Superior Court of Pennsylvania.
    Argued Jan. 5, 1981.
    Filed Oct. 30, 1981.

      Jean Marie Celia, Assistant District Attorney, Media, for Commonwealth, appellant.
    John W. Nails, Chester, for appellee.
    Before PRICE, WIEAND and HOFFMAN, JJ.
   PER CURIAM:

The Commonwealth appeals, contending that the lower court erred in suppressing a piece of blue paper, a piece of pink paper, and three marked one dollar bills seized from appellee during a warrantless search. We need not address the merits of this appeal, however, because the Commonwealth has not perfected our jurisdiction to entertain it. In Commonwealth v. Kunkel, 254 Pa.Super. 5, 8-10, 385 A.2d 496, 498-99 (1978), a plurality of this Court held:

[I]n every case in which the Commonwealth appeals from an order suppressing evidence, the Commonwealth must include in its brief, in support of its claim that this court has jurisdiction to hear the appeal, first, a statement that the suppression will terminate or substantially handicap the prosecution; and second, a brief explanation, not inconsistent with the record, why this is so.

Kunkel was subsequently adopted by a majority of this Court in Commonwealth v. Martz, 259 Pa.Super. 201, 203-04, 393 A.2d 787, 788 (1978). See also Commonwealth v. Trotman, 280 Pa.Super. 271, 273, 421 A.2d 718, 718-19 (1980); Commonwealth v. Hlavsa, 266 Pa.Super. 602, 607 n.3, 405 A.2d 1270, 1273 n.3 (1979) (SPAETH, J., dissenting). The Commonwealth’s brief contains the following unsubstantiated assertion of this Court’s jurisdiction:

This Court has jurisdiction to decide this appeal from a pre-trial order suppressing evidence since the question is purely one of law, and the suppression order results in the effective termination of the prosecution. Commonwealth v. Kunkel, 254 Pa. Super. 5, 385 A.2d 496 (1978); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

Consequently, because the Commonwealth has failed to articulate in its brief how “the suppression will terminate or substantially handicap the prosecution, [and to include] a brief explanation, not inconsistent with the record, why [that] is so,” Commonwealth v. Kunkel, supra, 254 Pa.Super. at 10, 385 A.2d at 499, its appeal is not properly before this Court.

Appeal quashed.

PRICE, J., did not participate in the consideration or decision in this case.


text:
    436 A.2d 991
    Joseph A. MALLOY, Jr., Administrator of the Estate of Stanislaus Ploszanski, Deceased, and Joseph A. Malloy, Jr., Guardian of the Estate of Christina Ploszanski, a minor, Appellants, v. GIRARD BANK.
    Superior Court of Pennsylvania.
    Argued Sept. 8, 1980.
    Filed July 2, 1981.
    Reargument Denied Nov. 17, 1981.

      C. George Milner, Philadelphia, for appellants.
    Earl T. Britt, Philadelphia, for appellee.

      Before BROSKY, WATKINS and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This wrongful death and survival action was instituted by the Plaintiff-Appellant as the Administrator of the Estate of Stanislaus Ploszanski, deceased, and Guardian of the Estate of Christina Ploszanski, a minor. The deceased committed suicide in 1971 by shooting himself with a gun which was maintained at the premises of the Defendant-Appellee Girard Bank, the employer of the deceased. It was the theory of the Plaintiff that the Defendant was negligent in allowing the firearm to be in a place accessible to the decedent. The case was tried before a jury, but at the close of the Plaintiff’s evidence, the trial judge granted a defense motion for a compulsory nonsuit. Subsequently, a court en banc denied the Plaintiff’s motion to remove the nonsuit and this appeal followed.

In considering whether a nonsuit was properly entered in any case, our Court must give the Plaintiff the benefit of all of the evidence, resolving all doubts in his favor, and will affirm only in a clear case where there is no doubt as to inferences to be drawn from the evidence. See West Penn Power Co. v. Bethlehem Steel Corp., 236 Pa. Super. 413, 348 A.2d 144 (1975). With that mandate in mind, we will review evidence presented by the Plaintiff in this case.

The record shows that the decedent took his own life on December 17, 1971 when he deliberately shot himself with a gun owned by the Defendant Girard Bank. At the time, the decedent had been employed as a maintenance worker at a branch office of the Bank for approximately four years. The decedent was one of several maintenance employees of Defendant working under the supervision of one Stanley Pickens, the building superintendent. For approximately three years prior to the date of the decedent’s death, Pickens had followed the practice of storing a loaded .38 calibre revolver in the unlocked locker in his basement office at the Bank. The revolver was used each evening by the Bank’s night security guards. On the date of his death, the decedent went into Pickens’ office, removed the gun from the locker, and shot himself with it.

At the time of his death, Ploszanski was approximately 59 years old. He was a native of Poland who had apparently emigrated to the United States after World War II. During that war, he had apparently been a prisoner in a concentration camp, and had lost track of his wife and children. After his arrival in the United States, the decedent began living with a woman who assumed the name of Eleanor Ploszanski, although the two were never married. They had a child, and raised it, while living together until the day of the decedent’s death.

The Plaintiff’s case, in part, was based upon the claim that the decedent suffered psychological aberrations, including suicidal tendencies. This situation was blamed, in part, upon the decedent’s discovery in the mid 1960’s that his legal wife and children were still alive in Poland. The Plaintiff presented evidence that the deceased had often expressed a fear of Germans and a fear of being deported to Europe.

Plaintiff’s case was presented chiefly on the testimony of two witnesses: Stanley Pickens, the Bank’s supervisor, and Eleanor Ploszanksi, who had lived with the decedent for several years and was the mother of his child. Mr. Pickens testified that Stanley Ploszanski was a cooperative and reliable worker who had a good relationship with other employees. While Pickens testified that on occasion, while at work, the deceased expressed a fear of deportation, or of Germans, the witness said that he had no notion of what the decedent meant by such statements. Pickens testified that he never saw anything unusual in the decedent’s behavior during the four years he supervised him, and also did not notice any conduct which indicated any intent on the part of the decedent to commit suicide. He testified that on the day of the suicide, he saw Stanley Ploszanski working in his usual manner and that the deceased gestured to him with a smile shortly before the shooting.

Eleanor Ploszanski testified to the history of her family life with the deceased over several years. She described him as a mild-mannered man, who enjoyed a good relationship with their daughter, and who was a responsible head of their household. She further testified, however, that he had and repeatedly expressed his fears of Germans and deportation for many years. She related that in August 1971, the deceased had taken an overdose of a drug known as seconal, which had been prescribed for the decedent’s heart condition. She testified that she had communicated this information to Mr. Pickens.

In addition to the foregoing, the Plaintiff presented the testimony of an actuary, which resulted in a stipulation by counsel that the actuary would testify to an economic loss of just over $37,000.00 as a result of the death of Stanley Ploszanski. Further, an attorney testified to his representation of various heirs of the decedent, who were living in Poland. The Plaintiff also introduced records of an admission by the decedent to a Philadelphia hospital, in August, 1971, resulting from the decedent’s ingestion of an overdose of the seconal medication. Finally, the Plaintiff introduced notes from a nurse on the staff of the Defendant, which notes were retained by the Defendant as part of its files on the decedent. These notes contained a brief mention that the decedent had been seen by a psychiatrist in April, 1971. After the last notation, which was that the decedent had shot himself at work, the nurse’s note indicates merely that the decedent had some delusions about being deported approximately one month before his death.

The Plaintiff-Appellant relies upon the case of Kuhns v. Brugger, 390 Pa. 331, 135 A.2d 395 (1957) to establish that his evidence was sufficient to create a jury question on the issue of the Bank’s negligence, and to support his claim that a nonsuit was erroneously granted in this case. Kuhns appears to be a leading case in establishing the standard of care of one in the possession of firearms. In that case, a twelve year old boy was shot and wounded by his cousin, another twelve year old, with a loaded pistol maintained by their common grandfather in his residence. The Court, in evaluating the liability of the defendant grandfather, held that the possessor of a loaded firearm holds a duty of exercising not simply ordinary, but extraordinary care, so that no harm may be visited upon others. In that case, the evidence showed that the defendant’s grandchildren were frequent visitors and guests at the defendant’s cottage. The grandchildren had free access to all areas of the residence including the defendant’s bedroom, where the defendant maintained a loaded pistol, and at least one other firearm. It was held that the defendant’s act in permitting this weapon, with its deadly potentialities, to remain in a place frequented by young children, showed an absence of extraordinary care and constituted negligence on his part.

In reaching its conclusions in Kuhns, the Supreme Court relied significantly upon § 308 of the Restatement of the Law of Torts, which declared: “It is negligent to permit a third person to use a thing or to engage in an activity which is under the control of the actor if the actor knows or should know that such a person intends or is likely to use the thing or to conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.” The Supreme Court found Comment (b) to that Section of the Restatement to be particularly significant. That Comment stated: “The rule stated in this Section has its most frequent application where the third person is a member of a class which is notoriously likely to misuse the thing which the actor permits him to use. Thus, it is negligent to place loaded firearms or poisons within the reach of young children or feeble-minded adults.” (Emphasis supplied.)

While we fully recognize the high degree of care applicable to one possessing a loaded firearm in our Commonwealth, based upon our review of the totality of the evidence presented by the Plaintiff, we nevertheless conclude that the trial Court did not commit error in the instant case in ordering a nonsuit. It is argued by Plaintiff on this appeal that the evidence showed that the decedent was “feeble-minded”, or in the alternative, that the Defendant knew or should have known that the decedent was suicidal. However, the record is devoid of any evidence supporting the inference that Stanley Ploszanski was “feeble-minded”, and there is also no evidence upon which a conclusion could be reasonably reached that the Defendant should have been aware that the decedent may have been “suicidal”. On the contrary, the evidence showed that although the decedent occasionally expressed unrealistic fears of Germans, or that he would be deported, he presented himself to his employer as a conscientious employee who had a good relationship with his fellow employees and his supervisor. He exhibited no unusual conduct shortly before the day of his suicide which would have lead any reasonable person to suspect that he might commit suicide. While the employer did possess some evidence that the decedent had seen a psychiatrist many months earlier, such evidence simply could not support the conclusion that he was likely to take his own life. Further, while the Plaintiff relies upon the history of the decedent having ingested an overdose of medication several months prior to his death, that medication was prescribed for and related to a heart condition, and did not reasonably raise the inference of a suicidal disposition on the part of the decedent.

Although our law demands a high degree of care by one in the possession of loaded firearms, there is no imposition of strict liability for injuries which may arise from such mere possession. In the instant case, the evidence was clearly insufficient to create proof that the decedent was in the category of persons entitled to protection under the holding of Kuhns v. Brugger, supra. When a duty of care is stated in our law, it is measured not in an air of abstraction, but rather under factual circumstances and conditions presented in each particular case. See Potere v. City of Philadelphia, 380 Pa. 581, 112 A.2d 100 (1955). We cannot find, under the facts presented by the Plaintiff in the instant case, that the Defendant’s practice of keeping a loaded gun in an unlocked locker in the superintendent’s basement office, an area of access to adult employees of the Bank, constituted a dereliction of due care, even under the high standards applicable in these circumstances.

The lower court’s grant of a compulsory nonsuit is hereby affirmed.

      . Our Court had previously followed the same reasoning in Mendola v. Sambol, 166 Pa.Super. 351, 71 A.2d 827 (1950).