author: BECK, Judge:

text:
    598 A.2d 1300
    COMMONWEALTH of Pennsylvania v. Charles REMENTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 14, 1991.
    Filed Oct. 28, 1991.

      Samuel C. Stretton, Westchester, for appellant.
    Eric Schoenberg, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and BECK and HESTER, JJ.
   BECK, Judge:

On April 19, 1989, the decedent Mary Berry was crushed to death beneath the wheels of a passer-by’s automobile while attempting to escape from an ongoing assault by her boyfriend, appellant Charles Rementer. Appellant was charged with having caused the death of Mary Berry and was convicted of murder in the third degree at a non-jury trial. He appeals from the judgment of sentence which was imposed after the denial of post-verdict motions. He raises two primary challenges to his conviction. Appellant first argues that the evidence at trial was insufficient to prove that his conduct caused the death of the victim. He also alleges that the Commonwealth failed to prove malice, an essential element of third degree murder. We affirm.

Appellant’s conviction for third degree murder arose from events which occurred during the early evening hours of April 19, 1989 in Philadelphia. On that evening, at about 6:30 p.m., the decedent Berry and appellant entered a bar together at 7th and Oregon. The bartender serving them, who had known Berry for many years, noted that Berry and appellant were arguing, although the bartender could not discern the substance of the argument. During the argument Berry became “very upset” and was “crying hysterically].”

Shortly thereafter, Berry left the bar and got into her cab, which was parked outside and which she drove for a living. A moment later, appellant followed her, got into the driver’s side where Berry was sitting, shoved her into the passenger’s seat and drove away.

An out-of-town trucker, Brent Murphy, was taking a break from loading his truck a few blocks from the bar when he saw Berry’s cab. Berry was hanging out of the passenger window, screaming “Help me, he’s trying to kill me.” The driver of the cab, identified as appellant, was holding on to Berry, beating her and pulling her hair. Berry, by “fighting and kicking”, had managed to get one leg out of the passenger window, but all the while appellant was “trying to pull her back in by her hair.”

While Murphy watched, Berry struggled away from appellant and fell out of the passenger window. Appellant also left the car and continued the assault on Berry, beating her “with his fists in the face” while she was lying on the ground. Murphy ran into a nearby supermarket and told somebody to call the police. When he emerged from the store, appellant was holding Berry against the cab while he continued to beat her. Murphy heard Berry say, “Don’t hurt me, Charlie.” Appellant pulled Berry into the cab, held her down, shut the door and drove away. About ten minutes later, a short distance away, Murphy saw the police. Berry was dead and the police had been summoned. Murphy explained to the police what he had witnessed moments earlier.

Meanwhile, three young men were standing at a nearby intersection. One of them, David Brotnitsky, saw appellant and Berry standing and arguing under the bridge of the I-95 on-ramp. Berry’s cab was parked nearby on Water Street. Appellant punched Berry in the face and Berry ran away from him. Appellant pursued her, grabbed her and dragged her back to the cab. At first, appellant threw Berry in the back seat but she again managed to escape. Appellant then “got out after her and threw her in the front seat.” Thinking that the fight was over, Brotnitsky stopped paying attention. The next thing he noticed was that the police had arrived on Water Street to investigate Berry’s death.

Another witness, John Smith, was driving towards Water Street when he saw Bend’s cab moving slowing along the curb with the passenger door open. Smith yelled and asked the occupants what was going on. Just then, Berry ran from the cab towards Smith’s car shouting unintelligible pleas for help. Another occupant of Smith’s car suggested finding a police officer. As he pulled away Smith saw Berry in the rear view mirror. She was lying on the street and a station wagon was driving away “from her body.”

Joseph Campbell was also in the vicinity when he saw “Charlie”, whom he recognized from the neighborhood, and Berry fighting and arguing. Berry was shouting for help and running from appellant. Campbell saw appellant punch Berry in the head. Berry then ran towards oncoming cars, finally stopping at a station wagon. From where he was standing a short distance away, Campbell saw Berry grab on to the window of the station wagon and then fall. No more than two minutes passed from the time Campbell saw appellant strike Berry in the face to the time she fell beneath the wheels of the station wagon to her death.

The station wagon referred to by Smith and Campbell was driven by Vito Michielli. Michielli and his wife and two small children were on Water Street that evening driving home from a shopping trip. Berry and appellant approached his car forcing him to stop. Berry was screaming “help me” and “let me in” and attempted to open the back door of the station wagon. Michielli and his wife were frightened and the children began to cry. The Michiellis’ reaction was to lock all the doors and attempt to close the windows of the car. Mr. Michielli reached out of his window, pushed Berry away and sped off. Not until several days later, when a local newspaper reported the incident and Berry’s tragic death, did Michielli realize that in leaving the scene his car had run over Berry.

Michielli’s wife also testified. She said that she first saw Berry running up the middle of the street toward their car. Mrs. Michielli stated that appellant was chasing her and that when they reached the Michiellis’ car, he was “right behind her”. Berry went over to the driver’s side of the station wagon and appellant went to the passenger side. Mrs. Michielli saw Berry reach in to open the rear door of the car and heard her scream, “Help me, Help me, please let me in.” Mr. Michielli pushed Berry away from the car and immediately drove off. Mrs. Michielli was also unaware at the time that the incident had ended with Berry’s death.

The medical examiner’s report revealed that Berry had suffered “blunt head trauma consistent with direct blows to the face, recent contusions to the chin, right and left cheeks near the nose and contused lacerations to the upper and lower lips, on the inside of the mouth.” The medical examiner also found that Berry sustained a crush injury of the chest, “consistent with a motor vehicle passing over the body.” There were also fractures of the skull and of the ribs. The coroner’s report, as stipulated to by the parties at trial, concluded that the crush injury was the cause of death. Finally, the Mobile Crime Unit discovered a large clump of Berry’s hair inside the cab, which had been forcibly pulled from Berry’s head.

At trial, appellant testified on his own behalf. He stated that both he and Berry had injected cocaine earlier on the day of her death. He testified that they were arguing and that they had also been drinking. Appellant stated that he drove Berry’s cab out of concern for her welfare because she was “acting schizy from the cocaine.” According to appellant, Berry’s pleas for help were entirely unprovoked by him. He said that he pulled her back into the cab to prevent her from hurting herself and from “making a scene.” Appellant admitted striking Berry but claimed that he did so out of anger because his attempts to calm her down by talking rationally had failed. He also claimed that he hit her only once, did not mean to hurt her and did not intend to kill her.

The trial court found appellant guilty of murder in the third degree. Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of four to twelve years. On appeal he argues that the Commonwealth failed to present sufficient evidence to establish two essential elements of third degree murder, i.e., causation and malice. We will address each challenge separately.

We begin by noting that here, as with all challenges to the sufficiency of the evidence, the applicable standard of review is well-settled and quite narrow. We must determine whether, viewing all the evidence at trial, as well as the reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence. Commonwealth v. Hughes, 521 Pa. 423, 430, 555 A.2d 1264, 1267 (1989); Commonwealth v. French, 396 Pa.Super. 436, 578 A.2d 1292 (1990).

Moreover, it is undisputed that causation constitutes an essential element of the offense of murder which the Commonwealth must prove beyond a reasonable doubt. Commonwealth v. Webb, 449 Pa. 490, 296 A.2d 734 (1972). Our court has held that: “The Commonwealth must prove a direct causal relationship between the defendant’s acts and the victim’s death.” Commonwealth v. Barnhart, 345 Pa.Super. 10, 28, 497 A.2d 616, 626, appeal denied, 517 Pa. 620, 538 A.2d 874, cert. denied, Barnhart v. Pennsylvania, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1985) (emphasis in original).

The issue regarding causation plainly arises in the instant case because the immediate cause of Berry’s death was the crushing blow received under the wheels of Michielli’s station wagon. Appellant argues that by the time Berry ran over to Michielli’s car the “unfortunate domestic dispute” had ended and that therefore Berry’s death had an accidental and intervening cause. Thus, according to appellant, the chain of causation between his assault on Berry and her resulting death had been broken. As such, he argues, his actions did not constitute a sufficiently direct cause of Berry’s death. Moreover, appellant argues that Berry’s death was not foreseeable and stemmed not from his assault but from independent actions by Berry for which he, appellant, cannot be held culpable. We reject these claims.

Certain fundamental principles guide our inquiry. First, it is well established that the tort theory of causation will not suffice to impose criminal responsibility. This principle was first explicitly adopted by the supreme court in Commonwealth v. Root, 403 Pa. 571, 575, 170 A.2d 310, 311 (1961), which held that “... the accused is not guilty unless his conduct was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law.” (emphasis in original). The Root court explained: “Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law’s encompassing concept of proximate cause is too harsh to be just.” Root, 403 Pa. at 576, 170 A.2d at 312. Thus, a “more direct causal connection is required for conviction.” 403 Pa. at 580, 170 A.2d at 314.

It is difficult to draw a bright line between causation in the criminal law and in the tort law. Certain principles can, however, be ascertained. In order to impose criminal liability, causation must be direct and substantial. Defendants should not be exposed to a loss of liberty based on the tort standard which only provides that the event giving rise to the injury is a substantial factor. Although typically the tort context refers only to substantial and not to direct and substantial as in the criminal context, the additional language in the criminal law does not provide much guidance. Therefore, criminal causation has come to involve a case-by-case social determination; i.e., is it just or fair under the facts of the case to expose the defendant to criminal sanctions. In other words, was the defendant’s conduct so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability or was the actual result so remote and attenuated that it would be unfair to hold the defendant responsible for it?

Many cases have grappled with the concept of what constitutes a legally sufficient causal connection where, as here, the immediate cause of death was not the blow dealt by the defendant’s hand. We have concluded, from a careful reading of these cases and from analysis provided by criminal law commentators, that the resolution of the causation issue here and in analogous cases involves a two part inquiry. The first part of the inquiry requires us to decide whether the defendant’s conduct was an operative cause of the victim’s death. With respect to establishing a causal relationship between conduct and result, our crimes code poses a threshold factual requirement and that is, the conduct must be “an antecedent but for which the result in question would not have occurred.” 18 Pa. C.S.A. § 303(a)(1) (Purdon 1983). Thus, if the victim’s death is attributable entirely to other factors and not at all brought about by the defendant’s conduct, no causal connection exists and no criminal liability for the result can attach. The second part of the test raises the question of whether the result of defendant’s actions were so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible.

In discussing the first part of the test we point out that the defendant’s conduct need not be the sole cause of the victim’s death in order to establish causal connection. In Commonwealth v. Skufca, 457 Pa. 124, 321 A.2d 889, appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974), a parent left two small children trapped inside a locked apartment while she went out for the evening. A fire started which suffocated the children who were impossible to rescue due to their mother’s action in locking them inside an unattended apartment. Suffocation through smoke inhalation was the immediate medical cause of death. In upholding the involuntary manslaughter conviction of the parent, the supreme court emphasized:

[I]t has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death____ Criminal responsibility is properly assessed against one whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result.

Commonwealth v. Skufca, 457 Pa. at 132-133, 321 A.2d at 894. See also Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979) (defendant’s failure to protect her five-year-old child from beatings and abuse inflicted by her boyfriend over a period of at least several weeks was direct cause of death sufficient to impose criminal liability).

In Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966), the victim was stabbed in the abdomen by the defendant during a robbery. The stabbing necessitated an operation which resulted in complications including abdominal distention. As a result of the victim’s post-operative condition, tubes were inserted through the victim’s nostrils and into his stomach. The victim was disoriented, uncooperative and confused and pulled out the tubes on several occasions. Finally, he pulled out a tube, gagged and asphyxiated. The defendant in Cheeks argued that the stab wound was not the cause of death and that the victim’s own actions had intervened as an independent act of causation. The supreme court disagreed. The court found that “the fact that the stabbing was not the immediate cause of death is not controlling”. 423 Pa. at 73, 223 A.2d at 294. The stabbing was an operative link in a chain of events which resulted in the victim’s death. The court saw defendant’s conduct as the cause which necessarily triggered the series of events which ended in the victim’s death.

However, causation-in-fact, the “but for” element of assessing the causal connection, alone will not necessarily determine criminal culpability. If it did, little would distinguish tort liability from criminal liability. Our cases emphasize that a criminal conviction requires “a more direct causal connection” than tort concepts. See Commonwealth v. Howard, supra, 265 Pa.Super. at 539, 402 A.2d at 676. Thus not only do we demand that the defendant’s conduct actually cause the victim’s death in that “it is an antecedent but for which the result in question would not have occurred”, we also question, in cases such as the instant one, whether the fatal result was so extraordinary, remote or attenuated that it would be unfair to hold the defendant criminally responsible for it.

In our view, it is this second prong of the causation inquiry which is in fact at issue when our cases impose a “stricter” or “more direct” test for criminal causation than is needed for tort liability. See Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973) (“A defendant’s actions are the legal cause of death if they are a direct and substantial factor in bringing it about. This is a stricter test than the ‘proximate cause’ test of tort law____”) (citations omitted); Commonwealth v. Howard, supra, 265 Pa.Super. at 539, 402 A.2d at 676 (criminal conviction requires a “more direct causal connection” than tort liability). Thus, the defendant’s conduct must bear a direct and substantial relationship to the fatal result in order to impose criminal culpability. Put another way, if the fatal result was an unnatural or obscure consequence of the defendant’s actions, our sense of justice would prevent us from allowing the result to impact on the defendant’s guilt.

This concept is often addressed in terms of foreseeability. For instance, in Commonwealth v. Skufca, supra, in which a parent was held to have legally caused the death of her children who died of smoke inhalation after being trapped in a room by their mother, the court noted: “Although suffocation due to the fire was the immediate cause of the children’s death, appellant’s unlawful conduct in leaving them locked in the room, without supervision, for several hours, susceptible to numerous foreseeable dangers, was the legal cause of their death.” 457 Pa. at 133, 321 A.2d at 894.

Likewise in Commonwealth v. Paquette, supra, the court found the defendant’s actions were the legal cause of an infant’s death where the blows the baby sustained resulted in a comatose state which in turn led to pneumonia which was the immediate cause of death. In Paquette, the court stated: “Such occurrences are not uncommon. A defendant cannot escape the natural consequences of his act merely because of foreseeable complications.” 451 Pa. at 254, 301 A.2d at 839.

In Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981), this court found that a police officer’s death during a high speed pursuit of a fleeing defendant on a motorcycle was a “foreseeable” and direct consequence of the defendant’s conduct and “not a fortuitous or coincidental event”. 285 Pa.Super. at 44, 426 A.2d at 696. In Lang, we found that “[the defendant] knew or should have known that his actions, speeding and attempting to elude arrest, were likely to result in injury to someone: either to himself, to some innocent third party, or to the pursuing police officer.” 285 Pa.Super. at 44, 426 A.2d at 695-696.

In contrast to the above-cited and similar cases, is Commonwealth v. Colvin, 340 Pa.Super. 278, 489 A.2d 1378 (1985) wherein the actual result was so remote and fortuitous that it must be said to have no bearing on the defendant’s culpability. In Colvin, this court reversed an involuntary manslaughter conviction due to insufficiency of evidence on causation. In that case, the defendant threw a stone at a house, breaking a window. The noise the mischief made was heard by only one member of the household. That person immediately informed his mother, who had not heard the stone hit the house, about what had just happened and the mother collapsed and died. Implicit in the court’s finding that the causal connection was not “direct” enough, is an appreciation that that the fatal result was so remote and attenuated from the risks hazarded by the defendant’s unlawful conduct in throwing the stone, that it had no “bearing on the liability of the actor or on the gravity of his offense.” 18 Pa.C.S.A. § 303(c)(2).

In light of the foregoing principles, we examine appellant’s claim that the evidence at trial was insufficient to establish the necessary causal connection between his conduct and Berry’s resulting death. Appellant first contends that the argument he was having with Berry was over by the time she approached Michielli’s car for aid and that, therefore, her actions in seeking refuge in the station wagon cannot be attributed to him. Berry’s actions were not provoked by his assault but were spontaneous and unrelated to the “earlier dispute”, appellant argues, and therefore, his conduct cannot be said to have caused her death.

This argument that there was no dispute occurring at the time Berry ran to Michielli’s car is belied by considerable evidence which, when viewed in the light most favorable to the Commonwealth, establishes quite the contrary. As described above, several witnesses testified to the ferocity and tenacity of appellant’s assault on Berry and all the observations attested to occurred within minutes of Berry’s death. Campbell testified that he saw Berry shouting and running for help. He said appellant punched Berry in the head no more than two minutes before she fell to her death beneath the wheels of the car. Smith, Campbell and the Michiellis all testified that Berry’s actions right up until the instant of her death were accompanied by cries for help, a fact which completely refutes appellant’s claim that her actions were not taken in response to his conduct. Finally, Mrs. Michielli stated that when Berry approached their car, appellant was chasing her and was right behind her. Appellant’s contention that the “dispute” had ended is wholly without support in the record.

Appellant further argues that Berry’s death occurred through such an unforeseeable chain of events that his conduct cannot be said to have caused the fatal result. We disagree. The evidence at trial plainly established that appellant subjected Berry to a brutal and persistent assault from which she continually attempted to escape. In the first place, it is completely natural and foreseeable that any victim of an assault would respond to the danger by trying to escape it. In fact, it is difficult to imagine behavior which is more responsive or more predictable than fleeing from a deadly assault. Moreover, Berry’s actions were particularly likely in the context of the instant case. Berry was clearly intent upon escaping her assailant at any cost and attempted to do so repeatedly. She tried climbing out of the car window, only to be beaten and pulled back into the car. She ran away from appellant twice after that and each time was violently forced back into the car by appellant. Just before Berry escaped for the last, and fatal, time, the cab was seen moving along the street with the passenger door open. The risk that Berry might suffer serious injury or death either during the assault or in her attempt to avoid it, was inherent in the situation appellant’s attack created. In our view, the fatal result of appellant’s assault is not rendered unforeseeable merely because the precise agency of death, i.e. the Michielli’s station wagon, could not have been foretold. Appellant perpetrated a deadly assault on the decedent in and around an automobile on a public street with other moving vehicles in close proximity. It is absurd to argue that the fatal result was so extraordinary or accidental that appellant should not be held criminally liable for the consequences of his conduct. We find that more than sufficient evidence was adduced at trial from which the factfinder could conclude that appellant’s conduct was the legal cause of Berry’s death.

Appellant also contends that the evidence was insufficient to prove malice, an essential element of third degree murder. Malice is defined as a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty.” Commonwealth v. Pigg, 391 Pa.Super. 418, 428, 571 A.2d 438, 443 (1990), appeal denied, 525 Pa. 644, 581 A.2d 571 (1991). Malice may be inferred from all the circumstances surrounding the conduct of the accused. Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160, cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1974). Finally, in instances where fists are used in an assault, whether malice may be inferred depends on the particular circumstances, such as the size of the assailant, the manner in which the fists were used, the ferocity of the attack, its duration and the existence of any provocation. Commonwealth v. Moore, 488 Pa. 361, 412 A.2d 549 (1980).

We conclude that the factfinder had more than sufficient evidence upon which to base a finding of malice beyond a reasonable doubt. Appellant was witnessed repeatedly and relentlessly beating Berry about the face and head. Appellant’s attack forced Berry to pursue foolhardy, indeed fatal, attempts at escape. After Berry climbed out the cab window, appellant pursued her and attacked her while she was on the ground. He then lifted her and pummelled her against the car. Berry’s pleas for him to stop and pleas for help did not restrain appellant. Even after Berry had escaped from the moving cab, appellant was seen punching her in the head and chasing her into traffic. Appellant’s assault was both continuing and fierce. Evidence from the eyewitnesses was corroborated by the medical examiner’s report which revealed numerous head injuries consistent with the blows dealt by appellant’s fists. In light of these factors, it is clear that malice was established beyond a reasonable doubt.

Judgment of sentence affirmed.

      . Appellant also states, in conclusory fashion, that the verdict was against the weight of the evidence. This argument is based entirely upon appellant’s contention that the evidence on causation was insufficient as a matter of law. Appellant makes no separate weight of the evidence claim. Since we address and dispose of appellant’s argument regarding the sufficiency of the causal connection, we do not separately address the dependent argument on the weight of the evidence.

      . Criminal homicide, which encompasses all degrees of murder and voluntary and involuntary manslaughter, is defined as follows: (a) Offense defined. — A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501(a) (Purdon 1983).

      . Illustrating this basic concept, one commentator explains:
      "Thus if A shoots at B intending to kill but misses, but at that moment B drops dead of some cause wholly unconnected with the shooting, A is not liable for the murder of B, in spite of the simultaneous existence of the two required ingredients, A’s intentional conduct and the fatal result. What is missing is the necessary causal connection between the conduct and the result of conduct; and causal connection requires something more than mere coincidence as to time and place.”
      LaFave and Scott, Substantive Criminal Law, Vol. 1, Ch. 3., at 391— 392 (1986).

      . In explaining the inadequacy of the but-for inquiry in assessing ultimate criminal liability, the comments to the Model Penal Code use the following illustration to demonstrate a causal connection which might satisfy the but-for test but which, due to remoteness of result, would not constitute legally sufficient causation:
      For example, if the defendant attempted to shoot his wife, with the result that she retired to her parents’ country home and died there from falling off a horse, no one would think that he should be held guilty for murder, though he did intend her death and his attempt to kill her was a but-for cause of her encounter with the horse. Further questions must be asked and it is the nature of those questions that is critical. The Institute decided that they should not be posed in terms of the encrusted precedents on proximate causation, by reference to doctrines of dependent supervening and independent supervening causes, and so on. The proper inquiry is not merely factual, but concerns the propriety of allowing the result to influence the criminality of the defendant or the gravity of his crime.
      Model Penal Code § 2.03, Comments at 258 (emphasis added).

      . Section 303 of the Crimes Code, which deals with the concept of causation, reads in pertinent part:
      (a) General rule. — Conduct is the cause of a result when:
      (1) it is an antecedent but for which the result in question would not have occurred; and
      (2) the relationship between the conduct and result satisfies any additional causal requirements imposed by this title or by the law defining the offense.
      ******
      (c) Divergence between probable and actual result. — When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of which he should be aware unless:
      (2) the actual result involves the same kind of injury or harm as the probable result and is not too remote or accidental in its occurrence to have bearing on the liability of the actor or on the gravity of his offense.
      This section is derived from the Model Penal Code § 2.03 which explains its import as follows:
      [These subsections] are based on the theory that but-for causation is the only strictly causal requirement that should be imposed generally, and that the remaining issue is the proper scope of liability in light of the actor’s culpability.
      Model Penal Code § 2.03, Comment at 260.
      The crimes code does not, nor did the Model Penal Code, attempt to catalogue every conceivable divergent event which could occur to vary the actual result from the intended or hazarded result of the actor’s conduct. The section is deliberately formulated in a general way in order to allow the trier of fact to use its common sense in deciding whether the actual result has bearing on the actor’s culpability or whether the result was too remote to have such bearing.

      . An analogous case arose from the widely known incident in Howard Beach, New York, in which several white teenagers assaulted and threatened three black men. In the course of the assault, which the appeals court found was “motivated solely by the color of the victims’ skin", several youths relentlessly chased Michael Griffith. People v. Kern, 149 A.D.2d 187, 239, 545 N.Y.S.2d 4, 37 (1989), affirmed, 75 N.Y.2d 638, 555 N.Y.S.2d 647, 554 N.E.2d 1235 (1990). Griffith was forced to retreat by jumping a barricade and attempting to cross a well-travelled, six-lane highway. A passing motorist collided with Griffith, killing him. On appeal, the defendants in the Howard Beach case, like appellant here, argued that the evidence on causation was legally insufficient both because their chase had ended and because the motorist’s intervention rendered their conduct too remote a cause of death to warrant criminal liability. The court emphatically rejected these arguments:
      [I]t was the defendants’ wrongful conduct which forced Griffith to
      seek refuge from his assailants by crossing the highway____
      [T]he only reasonable alternative left open to Griffith while being persistently chased and threatened by the defendants and their friends, several of whom were carrying weapons, was to seek safety by crossing the parkway where he unfortunately met his death. Clearly, on the basis of these facts, it cannot be said that the defendants’ despicable conduct was not a sufficiently direct cause of Griffith's death. The defendants will not be heard to complain that, in desperately fleeing their murderous assault, Griffith chose the wrong escape route.

        People v. Kern, 149 A.D.2d at 212-213, 545 N.Y.S.2d at 20.
      Likewise, in the instant case, appellant will not be heard to complain that Berry chose the wrong vehicle in which to seek asylum from his persistent assault.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    598 A.2d 1309
    COMMONWEALTH of Pennsylvania v. Dennis Eugene GETZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1991.
    Filed Nov. 12, 1991.

      Charles R. Rosamilia, Jr., Lock Haven, for appellant.
    Merritt E. McKnight, Dist. Atty., Lock Haven, for Com., appellee.
    Before POPOVICH, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a non-final order which set the amount of restitution to be paid by appellant as a condition for his acceptance into an Accelerated Rehabilitative Disposition (ARD) program. For the reasons set forth below, we quash this appeal as interlocutory.

Appellant, Dennis Eugene Getz, was placed in the ARD program in Clinton County on January 5, 1990 after being charged with three counts of arson, one count of burglary, and one count of criminal mischief. Appellant’s acceptance into the ARD program was conditioned on his agreeing, inter alia, to comply with his duty to make restitution to his victims for the fire damages resulting from the incidents of arson. The amount of restitution was to be determined by the Clinton County Adult Probation Services, subject to appellant’s right to a hearing before the court of common pleas on the question of damages. Such a hearing was in fact conducted by the trial court. After the restitution hearing, the lower court entered an order directing appellant to pay the sum of eight thousand seven hundred and forty dollars ($8,740.00). Instead of complying with the lower court’s decision, however, appellant elected to file a notice of appeal from the order setting the amount of restitution.

The general rule in Pennsylvania is that a defendant may appeal only from a final judgment of sentence and an appeal from any prior order will be quashed as interlocutory. Commonwealth v. Albert, 306 Pa.Super. 472, 474, 452 A.2d 822, 823 (1982), quoting Commonwealth v. Myers, 457 Pa. 317, 319, 322 A.2d 131, 132 (1974). An ARD determination provides no exception to the general rule. Rather, it constitutes a non-final proceeding in which the resolution of the criminal prosecution is merely held in abeyance. Commonwealth v. Krall, 290 Pa.Super. 1, 5, 434 A.2d 99, 101 (1981). Acceptance of ARD is an interlocutory matter and consequently is not appealable. See, e.g., Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988). Thus the merits of the claims raised by appellant are not properly before this court.

Under the lower court’s order of January 5, 1990, the restitution complained of by appellant was a condition for his acceptance in the ARD program. As the Honorable Charles F. Greevy has correctly stated in the lower court opinion filed February 21, 1991, proceeding under the ARD program is not a right. Trial court opinion at 5. Accord Commonwealth v. Feagley, supra. Appellant’s remedy, if he is dissatisfied with the terms and conditions of the ARD program, is to notify the trial court and the District Attorney of Clinton County regarding his non-acceptance. Pursuant to Pa.R.Crim.P., Rules 179(d), 183, and 184(c), 42 Pa.C.S.A., the trial court may then enter a non-appealable interlocutory order terminating appellant’s participation in the program. Appellant’s case would then proceed to the trial which has been postponed during the term of appellant’s participation in the ARD program. Id.

Appeal quashed.

      . 18 Pa.C.S.A. § 3301(a)(1), (c)(1), and (c)(2).

      . Id. § 3502(a).

      . Id. § 3304(a)(1).


author:
CERCONE, Judge:
      DEL SOLE, Judge,

text:
    598 A.2d 1310
    Robert E. WILSON, Appellant, v. DONEGAL MUTUAL INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued May 16, 1991.
    Filed Nov. 13, 1991.

      Joseph J. Hinchliffe, Pittsburgh, for appellant.
    Dara A. DeCourcy, Pittsburgh, for appellee.

      Before CAVANAUGH, DEL SOLE and CERCONE, JJ.
   CERCONE, Judge:

This appeal is from a civil judgment entered in the Court of Common Pleas of Allegheny County. We affirm.

On February 3, 1987, a residential building owned by appellant, Robert E. Wilson, was seriously damaged by fire. The property had been insured against fire loss by appellee. On March 26,1987, appellant submitted a claim for fire loss to appellee, who then commenced an investigation. As part of that investigation, appellant’s deposition was scheduled. Immediately after the deposition, on June 5, 1987, appellant was arrested on charges of arson. Appellant was tried for arson in the criminal division of the lower court and was acquitted. On September 25, 1989, appellee denied coverage to appellant for the fire loss on the grounds of arson.

Appellant then commenced a civil action against appellee by writ of summons. On May 6, 1988, when the complaint was filed, it contained three counts: Count I, breach of contract; Count II, trespass/fraud and deceit; and Count III, violations of the Consumer Protection Act. Appellant was given permission to amend the complaint in October, 1989. The amended complaint contained four additional counts: Count IV, deprivation of civil rights; Count V, false arrest; Count VI, false imprisonment; and Count VII, infliction of emotional distress.

A jury trial was held on May 23, 1990 in the lower court. After a motion in limine by appellee, the lower court dismissed counts III, IV, V, VI, and VII of the complaint. Before the jury retired for deliberations, the court entered a non-suit as to count II. The jury deliberated on count I and returned a verdict in favor of defendant appellee. Appellant’s post-trial motions were denied, and he then filed the instant timely appeal.

On appeal, appellant raises the following issues:

I. Whether the trial court erred when it denied a mistrial when defense counsel improperly questioned the plaintiff as to whether he had refused a polygraph examination;
II. Whether the trial court erred when it granted a non-suit as to plaintiffs action for fraud and deceit against the defendant insurance company.

On the basis of these and other issues, appellant requested post-trial relief in the form of a new trial in the lower court. “Our standard of review of the denial of a new trial is to decide whether the trial court committed an error of law which controlled the outcome of the case or an abuse of discretion.” Robertson v. Atlantic Richfield Petroleum Products Company, 371 Pa.Super. 49, 61, 537 A.2d 814, 820 (1988), allocatur denied 520 Pa. 590, 551 A.2d 216 (1988).

The appellant bears a heavy burden in persuading this court that such error occurred. In considering all of the evidence in the light most favorable to appellee we must, to reverse the trial court, conclude that the verdict would be changed if another trial were granted.

Id. When the basis of the request for a new trial is the lower court’s ruling(s) on evidence, to constitute reversible error, such ruling “must be shown not only to have been erroneous but harmful to the party complaining____” Hart v. W.H. Stewart, Inc., 523 Pa. 13, 16, 564 A.2d 1250, 1252 (1989) (citations omitted). “An evidentiary ruling which did not affect the verdict will not provide a basis for disturbing the jury’s judgment.” Id.

Appellant contends that the lower court erred in failing to grant him a new trial on the basis of testimony elicited from him on cross-examination concerning whether he had refused to take a polygraph examination in connection with the instant litigation. Specifically, the testimony objected to was:

Q. When I asked you to take a polygraph in this case you refused, didn’t you?
A. My attorney advised me to not take any sort of a polygraph test because they are not admissible and inaccurate.

At the trial, counsel for appellee indicated that he elicited this testimony from appellant for the purpose of impeachment. (N.T., May 24, 1990, at 112). A review of the record reveals that the impeachment related to a question which appellee’s counsel had previously asked appellant, as to whether he [appellant] had called the fire department the day after the fire at issue in the present case. Appellant replied that he had indeed called the department about the fire. (N.T., May 24, 1990, at 104). Subsequently, counsel for appellee began his impeachment of this statement by reading and having appellant read excerpts of his testimony from a previous proceeding, a deposition of appellant which took place on June 5, 1987. In that deposition, when asked whether he had called the fire department to find out any of the particulars about the fire, appellant replied that he had not.

The testimony at the deposition then addressed the reasons for appellant’s failure to call the fire department. These included the fact that there had been a prior legal action involving appellant and the Borough of Swissvale, which had caused some “bad relations” with the borough of Swissvale “in general.” In that legal action, appellant had requested that the court order the borough officials to take a polygraph test concerning certain of the circumstances involved in that case, which request the lower court refused. The testimony at trial then proceeded to the objected-to question, which appellant cites as the basis for a new trial. That question was immediately followed by testimony that appellant had been advised by his attorney prior to his June, 1987 deposition that he should refuse any request that he submit to a polygraph.

In ruling on appellant’s objection to the quoted question, the lower court held that it was admissible for the limited purpose of impeachment relative to the prior statement which appellant had made on the stand during trial, i.e., that he had contacted the fire department about the fire at issue the day after the fire’s occurrence. The question then is whether appellant’s testimony that he had refused appellee’s counsel’s request that he submit to a polygraph in regard to the instant proceeding was admissible for the purpose of impeaching appellant’s statement that he had contacted the fire department the day after the fire.

Rulings on evidence are within the discretion of the trial judge and will not be reversed on appeal absent a manifest abuse of that discretion. Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1979); Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975); Kubit v. Russ, 287 Pa.Super. 28, 429 A.2d 703 (1981). With regard to polygraph evidence, it has been held that since the test is not judicially acceptable, testimony of a witness’ willingness or refusal to submit to such examination is not properly admitted. Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956). It has also been held, however, that a witness’ reference to the polygraph test of a defendant in a criminal trial is not the basis for a new trial where the reference was an unresponsive answer to a narrowly framed question by the prosecutor, did not suggest the result of the test, and where the trial court issued immediate and extensive instructions regarding the unreliability and inadmissibility of polygraph tests. Commonwealth v. Brinkley, 505 Pa. 442, 452-53, 480 A.2d 980, 986 (1984). The Commonwealth Court has also held that mere references to polygraphs in non-criminal, quasi-judicial proceedings did not sufficiently taint those proceedings so as to constitute reversible error. Leonard v. Pennsylvania State Police, 125 Pa.Commw. 641, 558 A.2d 174 (1989); Appeal of McMullin, 41 Pa.Commw. 474, 401 A.2d 572 (1979). Crucial to the court’s holdings in these cases was the fact that no reference was made to the results of the polygraph examinations in the lower tribunals. Leonard v. Pennsylvania State Police, 125 Pa.Commw. at 648, 558 A.2d at 177; Appeal of McMullin, 41 Pa.Commw. at 477-78, 401 A.2d at 574.

Applying these principles to the facts of the instant case, we note first that the strict prohibition on reference to polygraph examinations, as set forth in Commonwealth v. Saunders, supra, has been eroded by the more recent cited cases. See Commonwealth v. Brinkley, supra; Leonard v. Pennsylvania State Police, supra; Appeal of McMullin, supra. These latter decisions have adopted a less stringent standard for the admission of testimony concerning polygraphs, with the decisive factor being whether the testimony contained any reference to polygraph test results. Using these pronouncements as our standard, we would not find the polygraph testimony in the instant case inadmissible solely because it referred to a polygraph examination since there was no reference here to test results. However, the issue of the effect on the factfinder of testimony concerning polygraph tests has been addressed again quite recently by the Pennsylvania Supreme Court in Quigley v. Philadelphia Civil Service Commission, 528 Pa. 195, 596 A.2d 144 (1991). Since Quigley represents the most recent decision of our supreme court on the issue of the admissibility of evidence of this nature, we will examine that case in detail.

In Quigley, the Pennsylvania Supreme Court held that the numerous references to a polygraph examination taken by a witness at a hearing on dismissal charges against appellant, a police officer, were prejudicial as those references raised an impermissible inference of the test results. 528 Pa. at 203-204, 596 A.2d at 148-149. In Quigley, appellant was dismissed from the Philadelphia Police Department on charges of having prearranged a false arrest and seizing false evidence, thereby perverting and obstructing the administration of law. At a hearing on the charges, Richard Edgerton, a witness to the alleged misconduct of appellant, testified against him. Appellant gave a different version of the events than did Edgerton, and a third witness, police officer Losco, testified in ways consistent with both Edgerton and appellant. During the hearing, various references were made to the fact that Edgerton had taken a polygraph examination in regard to his version of the relevant events. Appellant made objections to the polygraph references as they occurred. The Civil Service Commission denied appellant’s appeal of his dismissal, explicitly noting that it found Edgerton’s testimony credible and that Edger-ton had “passed a lie detector test.”

On appeal to the Commonwealth Court, that court rejected appellant’s argument that the numerous references at the hearing to Edgerton’s polygraph constituted reversible error. The Commonwealth Court reasoned that the references were not error because they did not discuss the results of the polygraph. On appeal, the Pennsylvania Supreme Court reversed. Justice Zappala, writing for the court, found that despite the fact that the test results were not explicitly disclosed, the numerous polygraph references had caused the Commission to infer that Edgerton had passed the test. He concluded that the references were prejudicial in that they unavoidably raised an impermissible inference of the test results.

We find the instant case distinguishable from Quigley. Unlike the witness in Quigley, appellant Wilson never submitted to a polygraph examination. Thus, the inference which our Supreme Court found so offensive in Quigley, that the witness had passed the examination, could not possibly have been drawn here. Since Wilson had not submitted to a test, together with his explanation that the results of such a test, if taken, are inadmissible at trial, no inference as to results was possible. In addition, in the instant case, there was only one reference to the fact that Wilson had refused to take a polygraph in regard to the present litigation; in Quigley, there were numerous references, a fact which our Supreme Court found significant in producing reversible error.

Because of these differences, we do not find Quigley controlling. In comparison to Quigley, the reference to polygraph in the case sub judice was so ineffectual and inconsequential that it could in no way have obstructed the jury from a fair determination of the issues in the case based on relevant factors. If we were to find otherwise, it would mean that a passive mention of any irrelevant statement, which, if pursued to its most extreme extent would constitute prejudicial evidence, could result in reversal. We therefore hold that the polygraph testimony in this case was not of the same offensive nature and quality as the testimony in Quigley.

Continuing with our analysis of the particular facts of the instant case, we note that the fundamental consideration in determining the admissibility of any evidence is its relevance to the fact sought to be proved. Martin v. Soblotney, 502 Pa. 418, 466 A.2d 1022 (1983). The stated purpose of the objected-to testimony in this case was to impeach appellant’s testimony at trial that he had communicated with the fire department the day after the fire. The lower court accepted this reason for the admission of the polygraph testimony and allowed it to be admitted for this limited purpose. On review, we would not conclude that the polygraph testimony was particularly relevant for the stated purpose. The evidence which directly impeached appellant’s statement at trial was the reading of his prior statement at the deposition, which statement straightforwardly contradicted the trial testimony concerning whether appellant had contacted the fire department. The testimony of appellant’s answer to counsel’s polygraph question seems to us a tangential line of questioning with regard to impeaching his statement at trial. We would not say the testimony had no relationship to the statement about the fire department but the relationship is at best a very tenuous and indirect one. On this basis, we conclude that the lower court went beyond the bounds of its discretion in permitting inquiry into this essentially non-relevant area.

Despite this conclusion, we must still determine whether the admission of the polygraph testimony was harmless error, or of such a magnitude that if a new trial were granted, a different verdict would result. See Robertson v. Atlantic Richfield, supra. We have reviewed the entire record of the trial and cannot conclude that a different outcome would ensue. We note that there was no reference to polygraph test results, since appellant did not actually submit to a polygraph. Therefore, the type of highly prejudicial polygraph testimony to which the courts have objected was not present in this ease. In addition, there was testimony at trial, by other witnesses, which supported the defense’s version of events. Thus, even if the objected-to testimony had been excluded, the jury had sufficient facts before it to reach the same verdict as it did with the inclusion of the testimony. The polygraph testimony, as recorded, could not have affected the appellant’s credibility before the jury because he explained his reason for refusing the testimony, i.e., on the advice of his counsel. Consequently, we agree with the lower court that the damage was not so great as to require a new trial, because the testimony was not that appellant had flatly refused to take a polygraph, but that his attorney had advised him not to submit to one because of the inadmissibility of such testimony. It seems reasonable to conclude that this response muted the potential adverse impact of the polygraph reference. For all of these reasons, we conclude that the lower court did not err in refusing to grant appellant a new trial on this basis.

Appellant’s next contention on appeal is that the lower court erred in granting a non-suit as to Count II of his complaint, which alleged a cause of action in fraud and deceit against appellee. He contends that the appellee’s scheduling of a deposition of him by letter of May 20, 1987 as well as the communications of appellee’s field claims adjustor, Mr. Les Misko, to the police established a cause of action for fraud and deceit.

A motion for compulsory nonsuit will only be granted where it is clear that a cause of action has not been established. Storm v. Golden, 371 Pa.Super. 368, 373, 538 A.2d 61, 63 (1988). “[T]he plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from the evidence, resolving any conflict in the evidence in favor of the plaintiff.” Id.

The essential elements of a cause of action for fraud or deceit are a misrepresentation, a fraudulent utterance thereof, an intention to induce action thereby, justifiable reliance thereon and damage as a proximate result. Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 51 A.2d 759, supplemented 356 Pa. 442, 52 A.2d 177 (1947); Borelli v. Barthel, 205 Pa.Super. 442, 211 A.2d 11 (1965). To be actionable, a misrepresentation need not be in the form of a positive assertion but is any artifice by which a person is deceived to his disadvantage and may be by false or misleading allegations or by concealment of that which should have been disclosed, which deceives or is intended to deceive another to act upon it to his detriment. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). Concealment can be a sufficient basis for finding that a party engaged in fraudulent conduct, provided that the other requisite elements of fraud are established. Mancini v. Morrow, 312 Pa.Super. 192, 458 A.2d 580 (1983). While concealment may constitute fraud, however, mere silence is not sufficient in the absence of a duty to speak. Smith v. Renaut, 387 Pa.Super. 299, 564 A.2d 188, 192 (1989).

In the instant case, the evidence adduced at trial shows that it was standard policy for appellee to investigate insurance claims in excess of twenty thousand dollars, as was appellant’s claim. As part of the investigation, the company decided to take a statement under oath from the claimant, appellant, as is required under the terms of the insurance policy. Thus, the deposition of appellant was requested by letter of May 20, 1987, and subsequently scheduled for June 5, 1987. After the deposition had been scheduled, Mr. Misko contacted the Allegheny County Police to request some time with one of the detectives to discuss the police investigation of appellant.

On June 4, 1987, Mr. Misko met with the detectives and was told by them that they planned to arrest appellant the next day, June 5, 1987. Mr. Misko was not informed by them as to when the warrant for appellant’s arrest had been issued or when the criminal action against him had been filed. Misko also testified that he did inform the police officers that appellant would be in the Frick Building for a deposition the following day, but did not make arrangements with them to have appellant arrested. When the police learned that appellant would be present at the Frick Building on the next day, the decision was made to arrest him there as a matter of convenience due to the close proximity of the Frick Building to the detectives’ office.

We cannot conclude that these facts constituted a cause of action for fraud or deceit. The letter of May 20, 1987, despite appellant’s allegations, simply contained no misrepresentations. As to Misko’s “concealment” of the police plan to arrest appellant, this is not the type of concealment which would constitute the basis of a cause of action for fraud. Misko did not set up the deposition with knowledge of the impending arrest. Nor did the deposition’s scheduling have any connection with the criminal action. Misko only learned of the police’ plan to arrest appellant the day before its actual occurrence.

Misko was under no duty to advise appellant of the knowledge he had acquired. The police investigation was a separate one from the claims investigation of which the deposition was a part. The coincidence of appellant’s arrest at the site of the deposition due to considerations of police convenience was not the type of information that Misko was required to disclose. Had the arrest not occurred there, it is certain to have occurred elsewhere, and Misko would not have been required to advise appellant of such a fact. In addition, the deposition was scheduled because the policy under which appellant claimed benefits required such a proceeding. Thus, Misko’s actions did not induce appellant to submit to deposition; he was required to do so under the terms of the policy if he wished to proceed with his claim for fire loss benefits. For all of these reasons, we conclude that the lower court did not err when it granted appellee’s motion for a non-suit on the cause of action based on fraud and deceit.

Judgment affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I would grant a new trial on the ground that the trial court erred in failing to declare a mistrial after Appellee’s counsel intentionally introduced evidence of Appellant’s refusal to take a polygraph examination upon the request of Donegal Mutual’s attorney.

Although the majority holds that the testimony elicited concerning Appellant’s refusal to take a polygraph was irrelevant, nevertheless, it finds that a new trial is not warranted for the reason that there was no reference to the test results. The majority also distinguishes the recent Quigley decision from the instant case on the basis that since Appellant never submitted to a test, no inference as to results was possible, that the refusal to take the test was not mentioned repeatedly, and because Appellant explained his reasons for not submitting to the test, [citation omitted]

I disagree. A trial court is required to grant a mistrial when the prejudicial admission of information may reasonably be said to have deprived a party of a fair and impartial trial. Commonwealth v. Rolison, 473 Pa. 261, 274, 374 A.2d 509 (1977); Commonwealth v. Brinkley, 505 Pa. 442, 452, 480 A.2d 980 (1984). I am convinced that the evidence of Appellant’s refusal to undergo a polygraph examination so tainted the proceedings that he was deprived of a fair and impartial trial, and a new trial is required to correct this error.

In the recent decision by the Pennsylvania Supreme Court, Quigley v. Philadelphia Civil Service Commission, 528 Pa. 195, 596 A.2d 144 (1991), the court cited with approval Township of Silver Spring v. Thompson, 90 Pa.Commonwealth Court, 456, 496 A.2d 72 (1985) and Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971), which held that any references, explicit or implied, to the results of lie detector tests are inadmissible for any purpose, [emphasis added].

Silver Spring also reaffirmed the unreliability of lie detector tests, noting that there was no concrete evidence of developments in this field which would make polygraph results any more scientifically reliable than when the court held in Johnson, supra, 441 Pa. at 240, 272 A.2d 467, that references to a lie detector test are not permitted because they raised the impermissible inference that the results carried the weight of scientific evidence in certifying the truth of a statement. See also, Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976).

The Quigley decision also narrowed the holding in McMullin Appeal, 41 Pa.Commonwealth Court. 474, 401 A.2d 572 (1979), which held that references to a polygraph examination without mentioning the results of that examination were not prejudicial where examination results were not relied on and the findings were supported by other substantial evidence. Quigley held that references at trial to a polygraph test, and the mere inference that could be drawn from these references, i.e., that the subject had passed the test, was sufficient to taint the proceeding and cause incurable prejudice, even though there was no explicit mention of the results.

The majority, in distinguishing the instant case from Quigley, states that because Mr. Wilson refused to take the exam, “the inference which our Supreme Court found so offensive in Quigley, that the witness had passed the examination could not possibly have been drawn here.” However, it is clear that the fact-finder would equally draw the opposite inference, that Appellant refused to take the exam because he was lying, which would be equally offensive. A references to a witness’ willingness or unwillingness to take a lie detector test raises an inference as to the test result, which in turn unavoidably raises the issue of credibility. Johnson, supra., 441 Pa. at 240, 272 A.2d 467. It is the inference of credibility or lack of credibility which is the problem, not whether the witness would have passed or failed the lie detector test.

Nor am I persuaded that Appellant’s explanation for his refusal to take the test reduced the inference that he was lying. In Johnson, supra., 441 Pa. at 242, 272 A.2d 467, cited in, Quigley, supra., curative instructions which charged the jury to limit its considerations strictly to the fact that the test had been administered were considered insufficient to remove the prejudice. If such instructions were insufficient, I can not accept that a mere explanation could have lessened the prejudice. Moreover, Mr. Wilson’s statement that he had refused to take the test because his attorney had advised him not to take it, is an extremely weak excuse in light of his earlier testimony that he had offered to pay for polygraph tests for various municipal officials with whom he had an ongoing dispute. (N.T., May 24, 1990 at 108).

Justice Larsen, who concurred in the finding that the appellant had been deprived of due process by the introduction of the polygraph evidence in the administrative proceeding, stated, “We must be scrupulous in insuring that every person who is accused of wrongdoing and whose liberty and/or substantial property interests are at risk is afforded a fair trial before a fair and impartial tribunal.” Quigley, supra., (Justice Larsen concurring and dissenting) (emphasis added).

I believe that we must be equally scrupulous in the present action. In the context of personal injury actions, the supreme court held in Cook v. Philadelphia Transportation Co., 414 Pa. 154, 199 A.2d 446 (1964), that the defendant was foreclosed from mentioning the name of a bar in the vicinity of an accident on the basis that there was no evidence that any of the participants in the accident had been drinking on the premises, while it was obvious that the plaintiff could have been irreparably prejudiced by testimony that she came out of a place called the “Crazy Bar”. Mr. Justice Musmanno eloquently stated:

[T]he ‘Crazy Bar’ was wholly alien to the accident, in no way contributed to the happening or an explanation of the accident, and the only possible advantage the defendant could have obtained by filling the jury’s ears with the cry of ‘Crazy Bar,’ would have been an advantage it was not entitled to, but which might well have brought about a mistrial. Id., 414 Pa. at 158, 199 A.2d 446.

See also, Morreale v. Prince, 436 Pa. 51, 258 A.2d 508 (1969), (in which a reference to the Club 30, an “after-hours” bar in Pittsburgh, required reversal of a verdict because it was unduly prejudicial.)

In the present case the intentional reference to Appellant’s refusal to submit to a polygraph gave the defendant/insurance company an advantage to which it was not entitled. It is certainly no less prejudicial to refer to a refusal to submit to a lie-detector test than it is to mention the name of a bar.

Furthermore, the testimony concerning this refusal was not, as the majority holds, “a passive mention” of Wilson’s refusal to take a lie detector test, [citation omitted] On the contrary, it was responsive to a direct question posed by the defendant’s attorney. Furthermore, it is unlike Commonwealth v. Brinkley, 505 Pa. 442, 480 A.2d 980 (1984), and Leonard v. Pennsylvania State Police, 125 Pa.Commonwealth Court 641, 558 A.2d 174 (1989), on which the majority relies, in that testimony concerning lie-detector tests was considered non-prejudicial because the witnesses blurted out emotional and unresponsive answers to questions without mentioning the results of the tests. In these cases the party examining the witness was not attempting to pursue an unfair advantage by calling attention to the witness’ willingness or unwillingness to submit to the exam, whereas, here, as in Quigley, Donegal intentionally elicited this information from Appellant in a narrowly framed question in order to call attention to Appellant’s lack of credibility.

Therefore, I would find that Appellant’s testimony concerning his unwillingness to take a lie-detector test had no probative value and was highly prejudicial. On this basis I would grant Appellant a new trial.

      . The majority states, "whether or not to admit evidence is within the discretion of the trial court and will not be reversed absent a manifest abuse of discretion” [citation omitted]. I agree with my colleague, Judge Wieand, in Commonwealth v. Wagner, 383 Pa.Super. 128, 556 A.2d 462, 466 (Wieand, J., concurring), that the courts should stop making the misleadingly broad statement that the admissibility of evidence is discretionary. The admissibility of evidence is determined by the rules of evidence, and the better approach is to state that a determination of the relevancy of evidence requires an exercise of discretion and will not be reversed absent an abuse of that discretion.


author: FORD ELLIOTT, Judge:

text:
    598 A.2d 1319
    PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY, Appellant, v. Frank STABRYLA and Ann Marie Stabryla, his Wife.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1991.
    Filed Nov. 13, 1991.

      Leroy H. Keiler, Jersey Shore, for appellant.
    Maureen J. Beirne, Athens, for appellees.
    Before JOHNSON, FORD ELLIOTT and HESTER, JJ.
   FORD ELLIOTT, Judge:

This is an appeal from the February 8, 1991 order of the Court of Common Pleas of Sullivan County, denying Pennsylvania National’s motion for judgment on the pleadings, and granting the Stabrylas’ motion for judgment on the pleadings. We affirm.

Appellant, Pennsylvania National Mutual Casualty Insurance Company, commenced a declaratory judgment action, seeking a judicial determination of the amount of uninsured motorist benefits payable to the Stabrylas under the policy of insurance issued to them by Pennsylvania National.

Prior to Pennsylvania National instituting the declaratory judgment action, the Stabrylas had filed a petition in the Court of Common Pleas of Sullivan County, to compel Pennsylvania National to appoint an arbitrator for the purposes of arbitrating the uninsured motorist claim. By agreement of the parties, these two matters were consolidated for argument.

The facts giving rise to these consolidated actions are not in dispute. Ann Marie Stabryla was injured when her car was run off the road by an unidentified vehicle. Because Ms. Stabryla was unable to identify either the driver or the automobile which caused the accident, she made a claim for uninsured motorist benefits under an insurance policy covering the vehicle she was operating at the time of the accident. The policy was issued by Pennsylvania National and provided coverage for four vehicles. The policy contained a $100,000 combined limit of liability for bodily injury/property damage. The policy also provided for uninsured/underinsured motorist benefits in the amount of $100,000. The Stabrylas demanded $400,000 from Pennsylvania National as the combined stacked limit of uninsured motorist benefits. Pennsylvania National tendered $100,-000, claiming that amount to be the full limit of uninsured motorist coverage available under the policy, hence the dispute giving rise to the consolidated actions before the trial court.

The trial court adjudicated the action as though a motion for judgment on the pleadings had been filed by each party. The trial court ruled in favor of the Stabrylas, holding that stacking uninsured motorist benefits in excess of the liability limits was not prohibited under Pennsylvania law. This timely appeal followed.

Appellants raise one issue for our consideration. Whether Section 1736 of the Pennsylvania Motor Vehicle Financial Responsibility Law prohibits stacking uninsured motorist benefits in excess of the amount that the insurance policy provides for liability coverage?

In addressing this issue, the trial court noted that there were no Pennsylvania appellate court cases dispositive of this precise issue. Indeed, in presenting their arguments to the court, both parties rely extensively upon federal court cases for guidance in resolving this issue, as neither party could identify a Pennsylvania appellate court case directly on point.

However, in light of a very recent opinion by another panel of our court, this case is no longer one of first impression. This very issue was addressed in Erie Indemnity Co. v. McGaughey, 409 Pa.Super. 177, 597 A.2d 718 (1991). In point, appellants cite the trial court opinion of this case in their brief, as the trial court in McGaughey had concluded that stacking underinsured motorist benefits in excess of the liability limits under the same policy was prohibited. However, on appeal, in a very well reasoned and extensive analysis of the Motor Vehicle Financial Responsibility Law and cases interpreting the same, this court, in an opinion authored by Judge Del Sole, reversed the trial court in McGaughey and held that underinsurance coverage limits applicable to more than one vehicle may be stacked so as to provide coverage in excess of third-party liability limits of the same policy. We now Conclude that the case sub judice is controlled by that holding and therefore affirm the trial court’s order granting appellees’ motion for judgment on the pleadings.

The only difference between the McGaughey case and the present one, is that the issue in McGaughey was framed in terms of underinsured benefits and the present case concerns uninsured benefits. However, it is a distinction which in no way impairs the application of the holding in McGaughey to the present case. Section 1736 of the Motor Vehicle Responsibility Law; the section at issue, involves both underinsured and uninsured motorist benefits. The cases relied upon in McGaughey apply equally as well to uninsured benefits as to underinsured benefits. The McGaughey court’s analysis of Pennsylvania’s liberal approach to stacking issues encompasses both uninsured and underinsured motorist benefits. Thus, the holding from McGaughey applies equally to instances of stacking uninsured motorist benefits as well as underinsured motorist benefits.

Because we find that Judge Del Sole’s opinion in McGaughey provides a complete analysis of the arguments both for and against stacking in this instance, and resolves those arguments with an interpretation of Pennsylvania case law, we merely refer to that case for a resolution of the issues presently before us.

In relying upon McGaughey to resolve these issues, we find the following passage from that decision most persuasive.

Section 1736 does not directly or impliedly prohibit or restrict the stacking of underinsurance motorist benefits. It does, however, fulfill the stated purpose of ensuring that others injured by an insured’s negligence are afforded coverage equal to the underinsured motorist coverage limits in the insured’s policy. This purpose is not frustrated by allowing the stacking of underinsured motorist benefits which the insured has purchased for more than one vehicle. Section 1736 places a cap on the amount of uninsured and underinsured motorist coverage that can be purchased in a single policy at the policy’s bodily liability coverage limit. Although uninsurance and under-insurance coverage in any one policy cannot exceed the liability coverage of that policy, it does not follow that the coverage purchased for separate vehicles, for which added premiums are paid, cannot be added together by the insured to provide full compensation for the injuries suffered.
Stacking of underinsured motorist coverage to compensate insureds to the extent of their damages is in keeping with the liberal compensatory scheme which the Tallman [v. Aetna Casualty and Surety Company, 372 Pa.Super. 593, 539 A.2d 1354 (1988) ] court relied upon in reaching its decision. Further, it is in accord with the principle of affording those who have paid multiple premiums to receive multiple coverage up to the extent of their damages. Thus, those who purchase coverage for more than one vehicle, and pay additional premiums would be entitled to collect what they had purchased — multiple coverage. Fairness dictates that such coverage, charged by the insurer and paid for by the insured, be available to meet the insured’s needs. Section 1736 cannot be construed to nullify this coverage. As noted by the Tollman court, the legislature which drafted a specific provision prohibiting the stacking of first party liability coverage was well aware that it could expressly prohibit stacking of uninsured and underinsured motorist coverage if it had such an intent; yet, it did not. Our reading of § 1736 does not include any express or implied limitation on stacking.

McGaughey, 409 Pa.Super. at —--, 597 A.2d at 720-721.

Thus, because McGaughey addresses the precise issue before us in the present case, we hold that McGaughey controls the resolution of this issue. Based on the holding of McGaughey we conclude that the uninsured motorist benefits of an automobile policy may be stacked so as to provide coverage in excess of the third party liability limits of the same policy.

Order of the trial court affirmed. Jurisdiction relinquished.


author: HOFFMAN, Judge:

text:
    598 A.2d 1321
    Blaine F. OPIE, Jr. v. Wendy RICHART, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 28, 1991.
    Filed Nov. 25, 1991.

      Thomas A. James, Jr., Bloomsburg, for appellant.
    Franklin E. Kepner, Jr., Berwick, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order dated March 1, 1991, denying both parties’ exceptions to the domestic hearing officer’s recommendation and ordering appellant, the mother herein, to pay fifty-seven dollars per month in child support plus ten dollars per month for any arrearages. On appeal, appellant raises the following issue:

WHETHER THE COURT ABUSED ITS DISCRETION IN NOT REVIEWING THE FACTS OF THIS CASE IN THAT THE APPELLANT DID NOT HAVE THE ABILITY TO PAY CHILD SUPPORT WHERE SHE WAS AT OR BELOW THE POVERTY LEVEL, HAD ANOTHER CHILD FOR WHICH SHE WAS SOLELY RESPONSIBLE FOR THE SUPPORT, AND WHERE THE APPELLEE HAD INCOME FAR IN EXCESS OF THAT OF THE APPELLANT AND DID NOT DEMONSTRATE A NEED.

Appellant’s Brief at 3. For the reasons that follow, we affirm the support order.

Appellant and appellee are the parents of one child, born October 8,1987. Appellee has primary custody of the child. Appellant has custody of another child, born June 22, 1989. Appellee is not the father of that child. Appellee filed a complaint in support on April 19, 1990. A hearing was held before a special domestic relations master on August 17, 1990. The master determined that appellee’s monthly net income is approximately $1,600, whereas appellant’s monthly net income is approximately $700. The master then recommended that appellant make monthly support payments of $125. N.T., August 17, 1990, at 17. Both parties filed exceptions to this recommendation. The court denied both parties’ exceptions, and reduced the amount of support recommended by the master to fifty-seven dollars per month. This timely appeal followed.

We will not disturb a child support order absent a clear abuse of discretion. Koller v. Koller, 333 Pa.Super. 54, 56-57, 481 A.2d 1218, 1220 (1984) (citations omitted). “An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Coffey v. Coffey, 394 Pa.Super. 194, 196-97, 575 A.2d 587, 588 (1990) (citations omitted).

The responsibility for child support rests equally upon both parents and must be discharged in accordance with their individual capacities and abilities. Conway v. Dana, 456 Pa. 536, 540, 318 A.2d 324, 326 (1974). Such obligation is based upon the reasonable needs of the dependent child and the reasonable ability of the parties to pay. 23 Pa.C.S.A. § 4322(a); see also Coffey, supra, 394 Pa.Super at 200, 575 A.2d at 589. Although support orders may not be punitive or confiscatory, parents may be required to make sacrifices in order to achieve the support goal. Id., 394 Pa.Superior Ct. at 200, 575 A.2d at 590.

The support guidelines suggest that the appropriate support figure is $130 per month where, as in the instant case, there is one child and the obligee’s and obligor’s incomes are, respectively, $1,600 and $700. Pa.R.Civ.P. 1910.16- 2. Thus, the guidelines suggest an amount more than double that which the court ordered. The guidelines create “a rebuttable presumption that the amount of the award determined from the guidelines is the correct amount of child support to be awarded. The presumption shall be rebutted if the court, permanent hearing officer or hearing officer makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate.” Pa.R.Civ.P. 1910.16- l(b). Rule 1910.16-5, outlining the operation of the support guidelines, provides that “[t]he support of a spouse or child is a priority obligation, so that the party is expected to meet this obligation by adjusting his or her other expenditures.” Pa.R.Civ.P. 1910.16-5(a) (emphasis added).

Appellant contends that the trial court abused its discretion by failing to take into consideration the disparity of the parties’ incomes and the fact that she has another child to support. We do not agree. The court specifically stated that taking into consideration the living expenses of both parties, as well as their respective incomes, “a deviation from the Supreme Court Support Guidelines was necessary after examining the defendant’s financial situation. Despite being employed, the defendant is living in near poverty. In addition to herself, the defendant supports another minor daughter, of whom she is the sole custodian.” Opinion, Keller, P.J., April 17, 1991, at 2. Thus, the court did consider the factors that appellant contends were unexamined, and the court adjusted its support order amount downward as a result of that consideration.

Nonetheless, appellant argues that she is unable to pay this amount, and, thus, the court committed an abuse of discretion by ordering the payments. As we noted above, a parent must make the support obligation a priority, even if other expenditures must be adjusted to meet the obligation. See Pa.R.Civ.P. 1910.16(a). The fact that appellant earns less money than appellee does not entirely negate the responsibility she shares to support her daughter. As the trial court correctly noted, appellant testified at the support hearing that she spends approximately eighty dollars monthly for entertainment, which consists of “[g]oing out to movies and things like that with friends.” N.T., August 17, 1990, at 14. We cannot find that the trial court abused its discretion by concluding that “[b]y decreasing her entertainment expenses, the [appellant] could easily afford the $57.00 a month, she has been ordered to pay to support her daughter.” Opinion, Keller, P.J., April 17, 1991, at 3. Accordingly, we affirm the trial court’s order directing appellant to pay fifty-seven dollars monthly to appellee for support of their daughter.

Order affirmed.


author: KELLY, Judge:

text:
    599 A.2d 203
    SUMMIT FASTENERS, INC., Appellant, v. HARLEYSVILLE NATIONAL BANK & TRUST CO., INC., Appellee.
    Superior Court of Pennsylvania.
    Argued May 15, 1991.
    Filed Sept. 30, 1991.
    Reargument Denied Dec. 2, 1991.

      Lewis Kates, Philadelphia, for appellant.
    Frederick C. Horn, Lansdale, for appellee.
    Before McEWEN, KELLY and FORD ELLIOTT, JJ.
   KELLY, Judge:

In this appeal, we are called upon to determine whether a counterclaim plaintiff has met its burden of proof when all of the evidence supporting the counterclaim is introduced by the counterclaim defendant and whether the trial court properly refused to give the jury a wanton misconduct instruction, when it subsequently instructed the jury on the possibility of awarding punitive damages. We affirm in part and reverse in part.

The transcript of the jury trial reveals the following scenario. Appellant, Summit Fasteners, Inc., was in the business of brokering nuts, bolts and other fasteners. The three directors and only shareholders of the corporation were Harvey Busch, Samuel Levin and Robert Kaufman. Each had equal ownership interests in Summit Fasteners, Inc., and corporate decisions could be made only when ratified by at least two of the three directors.

In 1977, Kaufman convinced the other directors to allow the corporation to obtain financing for an automobile purchase from appellee, Harleysville National Bank. The paperwork was manipulated to appear that only one director's signature was necessary to authorize the corporation to borrow. However, afterwards, a forged signature of Busch appeared on the borrowing/depositing resolution. This represented the first stage of Kaufman’s fraudulent scheme.

By 1979, appellee bank was managing all of appellant’s banking needs. Appellee provided appellant with a bank account and a $25,000 line of credit. The necessary documentation included that, in order to bind the corporation, signatures of at least two of the three directors would be necessary. In 1980, Kaufman was able to obtain blank bank statements from appellee bank through its Branch Manager, Arthur Mansell, appellee. Moreover, appellee bank routinely gave the monthly bank statements to Kaufman, in person. Kaufman, in turn, routinely prepared false statements, indicating the receipt of checks paid to the corporation from third parties. However, Kaufman actually diverted those funds for his own use. Forged statements also reflected debts in the corporation’s checking account, indicating that it had paid debtors (suppliers and tax authorities). Again, those parties were not paid, and Kaufman kept that money for himself. Kaufman’s greed cost Summit Fasteners, Inc., a large amount of money. The jury found that the corporation was damaged to the extent of $183,917.00. (Trial Court Opinion at 2). It was also adduced at trial that appellant’s accountant had warned the directors several times about the blank bank statements and that appellant was otherwise on notice of suspicious transactions from within the corporation.

Kaufman proved to be a judgment proof defendant, as he was declared bankrupt. The defrauded corporation sought recovery from the bank and its branch manager. The appellee brought a counterclaim seeking repayment of the $25,000 line of credit it had extended to the appellant.

At trial, the jury heard appellant’s claims that appellees were negligent, conspired with Kaufman, breached their fiduciary duty to appellant and had made fraudulent misrepresentations about appellant’s account. The jury also heard evidence that appellant, through its directors, was contributorily negligent and that appellant owed appellee bank for funds drawn from the line of credit. The jury calculated that appellees were negligent and that appellant suffered damages of $183,917.00. However, the jury attributed eighty percent of the damages ($147,133.00) to appellant’s contributory negligence. The jury also found that appellees sustained their counterclaim for $23,874.00, the amount borrowed on the line of credit. Therefore, the total verdict in favor of appellant was $12,910.00. Post-trial motions were denied. This timely appeal followed.

Appellant’s twelve assertions can be grouped into the following categories. First, appellant asserts error in the points of charge. Second, appellant maintains that the trial court erred in not admitting certain exhibits. Next, appellant claims that the trial court prejudiced appellant’s case by allowing appellee to exceed the proper scope of cross-examination of one of appellant’s witnesses. Appellant’s penultimate assignment of error alleges a defective verdict slip. Finally, appellant argues that appellee’s counterclaim should not have been submitted to the jury because, according to appellant, no evidence in support of the counterclaim was adduced at trial.

We find that the trial court committed prejudicial error with regard to one of its instructions to the jury. Because this alone warrants a new trial, we forego discussion of all of appellant’s other arguments, except for the one that appellee’s counterclaim should not have been submitted to the jury, as the resolution of this issue defines the scope of the retrial.

Appellant asserts error with regard to the charge to the jury. The purpose of charging the jury is to clarify the issues which the jurors must determine. Wood v. Smith, 343 Pa.Super. 547, 550, 495 A.2d 601, 603 (1985). In determining whether to reverse a jury verdict due to an erroneous jury charge, an appellate court must look at the jury charge as a whole; if the charge inaccurately describes the law, there is error. Reilly by Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985); Schecter v. Watkings, 395 Pa.Super. 363, 374-75, 577 A.2d 585, 590-91 (1990), appeal denied, 526 Pa. 638, 584 A.2d 320 (1991). However, error alone does not mandate a new trial. To constitute reversible error, a jury instruction must not only be erroneous, but must also be harmful to the complaining party. Jistarri v. Nappi, 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1988); Mickey v. Ayers, 336 Pa.Super. 512, 514-15, 485 A.2d 1199, 1202 (1984).

Appellant contends that based upon the evidence introduced at trial, it was entitled to a wanton misconduct jury charge. The appellant argues that a jury finding of wanton misconduct would preclude the comparative negligence of appellant from diminishing appellee’s liability. Thus, the appellant asserts that the trial court committed reversible error when it failed to give the jury a wanton misconduct instruction. We agree.

Wanton misconduct "means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.” Fugagli v. Camasi, 426 Pa. 1, 3, 229 A.2d 735, 736 (1967) (citations omitted). As a general rule, it is for the jury to determine whether a defendant has been guilty of wanton misconduct under the circumstances. Parker v. Jones, 423 Pa. 15, 20, 223 A.2d 229, 232 (1966). Where the appellant introduces evidence to show that the appellee acted in reckless disregard of an existing peril, the issue of wanton misconduct should be submitted to the jury. Stubbs v. Frazer, 308 Pa.Super. 257, 261, 454 A.2d 119, 121 (1982). When willful or wanton misconduct is involved, comparative negligence should not be applied. Krivijanski v. Union R. Co., 357 Pa.Super. 196, 203-208, 515 A.2d 933, 936 (1986).

The appellant submitted both testimonial and documentary evidence at trial that would allow the jury to infer that appellees acted wantonly. Indeed, one of appellant’s theories of the case was that appellee-Mansell recklessly disregarded the risk to appellant by continuously handing Kaufman blank bank statements. See, e.g., Amended Complaint at paras. 65, 66. Furthermore, during closing argument, appellant repeated to the jury that appellee acted wantonly. See N.T. 8/11/89 at 12, 24, 25, 26, 31, 32-33, 37. Appellees also suggested to the jury that they were not reckless. N.T. 8/11/89 at 48.

During the trial, the jury heard Mansell testify that, although there was no bank policy on handing customers blank bank statements, he routinely did just that for Mr. Kaufman. N.T. 8/9/89 at 169-71. Thus, the jury could reasonably infer that Mansell’s belief that blank statements would assist Mr. Kaufman in testing appellant’s optical scanner, see N.T. 8/11/89 at 11-12, may have been intentional and/or unreasonable under the circumstances. Although Mansell testified that he was unaware of any wrongdoing by Kaufman, the jury could have believed that appellee-Mansell was on notice that something was wrong when Mr. Levin explained that it was impossible for their account to be overdrawn, as he (Mr. Levin) saw “a plus balance in a checkbook.” Id. at 74-75. If the jury found Mansell’s delivery of blank statements to Kaufman unreasonable and if it also believed that Mansell was on notice of Kaufman’s wrongdoing which would harm appellant, a finding of reckless behavior would follow. While appellees may or may not have acted with reckless disregard to the rights of appellant, because some evidence was introduced to allow the inference of wanton misconduct, the jury should have been given a wanton misconduct instruction. See Stubbs v. Frazer, supra.

Moreover, the trial court properly instructed the jury as to the possibility of awarding punitive damages. A jury instruction for punitive damages may only be given when the plaintiff has submitted sufficient evidence from which the jury might reasonably conclude that the defendant’s conduct was outrageous, either because of the defendant’s evil motive or reckless indifference to the rights of others. Gray v. H.C. Duke & Sons, 387 Pa.Super. 95, 563 A.2d 1201 (1989). As the trial court properly concluded, on the basis of the evidence submitted by the appellant, that the appellant was entitled to a jury instruction on punitive damages, it logically follows that this evidence also entitled the appellant to a jury instruction for wanton misconduct which requires only a finding of an intentional act in reckless disregard of an existing peril.

We cannot conclude that the jury would not have found appellees to have acted recklessly merely because punitive damages were not awarded. The trial court instructed: “If you find that the conduct of the defendant or the defendants was outrageous, you may award punitive damage____” N.T. 8/11/89 at 110. The jury was free to award punitive damages, but it was not compelled to do so, even if it found that appellees were reckless. Furthermore, the verdict slip indicates only that the jury, voting 10 to 2, concluded that punitive damages were not appropriate. Verdict slip at 3. The jurors were never asked to determine simply whether appellees acted with reckless disregard towards the rights of appellant. The omission of such a charge was reversible error.

The prejudice to appellant due to the trial court’s failure to give a wanton misconduct instruction to the jury was substantial. If appellees were found to have acted with reckless disregard to appellant’s rights, any contributory negligence on appellant's part would not diminish appellees’ liability. Krivijanski v. Union R. Co., supra; see also McMeekin v. Harry M. Stevens, Inc., 365 Pa.Super. 580, 530 A.2d 462 (1987), appeal denied, 518 Pa. 619, 541 A.2d 746 (1988) (comparative negligence statute applies only to causes of action grounded in negligence). The jury found that appellant was eighty percent contributorily negligent, removing $147,133.00 from a possible damage award of $160,043.00, thus awarding the appellant $12,910.00 in damages. A finding of wanton misconduct would have relieved appellant of that liability and would have rendered appellees one hundred percent liable. Thus, the appellant is entitled to a new trial.

Next, in order to determine the scope of the new trial, we must consider whether the appellee’s counterclaim was properly decided. The appellant contends that the trial court erred when it submitted the appellee’s counterclaim for the unpaid balance due on the appellant’s line of credit to the jury. The appellant argues that because the appellee did not present any evidence in support of its counterclaim even though it had the burden upon it to do so, the trial court erred in submitting the counterclaim to the jury. We disagree.

While it is said that the party with the burden of proof has the burden of “going forward with the evidence,” this does not mean that a party must satisfy this burden with that evidence which he himself introduces. See Williams v. A-Treat Bottling Co., Inc., 380 Pa.Super. 195, 202, 551 A.2d 297, 300 (1988). A party may be relieved of this burden by the fact that the necessary proof was introduced by his adversary. Otto v. Western Saving Fund Society, 343 Pa. 615, 621, 23 A.2d 462, 465 (1942). Evidence is no less effective in support of a party’s case merely because it came into the case through an adversary rather than through the party. Devlin v. Piechoski, 380 Pa. 146, 110 A.2d 241 (1955). Generally, if there is any evidence which would allow the jury to infer liability, a counterclaim should be submitted for the jury’s consideration. Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966); Berry v. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984).

Instantly, we find support in the record for the trial court’s decision to submit appellee’s counterclaim to the jury. The record sets, forth uncontradicted evidence which was introduced by the appellant’s witnesses that a $25,000 line of credit was established by the appellee on the behalf of the appellant. N.T. 8/3/89 at 272. The line of credit was drawn down into the appellant’s corporate account. N.T. 8/3/89 at. 377. The funds were used by the appellant and were not solely directed to Kaufman, as other funds had been. N.T. 8/7/89 at 126-127. Finally, the appellant never repaid the debt to the appellee. N.T. 8/3/89 at 345. Accordingly, we find that the counterclaim was properly before the jury and the evidence was sufficient to support the jury’s verdict in favor of the appellee on the counterclaim.

In light of the foregoing, we affirm the judgment of the trial court awarding the appellee $23,874.00 on its counterclaim, but reverse and remand for a new trial on the appellant’s claim due to the trial court’s failure to give a wanton misconduct jury charge. See Dunlap v. Larkin, 342 Pa.Super. 594, 608, 493 A.2d 750, 758 (1985).

Affirmed in part and reversed in part. Remanded for proceedings consistent with this Opinion. Jurisdiction is relinquished.

      . We note that appellant’s appeal lies from the court’s dismissal of post-trial motions. Such an order, unless reduced to judgment, is interlocutory and cannot be appealed. See generally Fernandez v. Levin, 519 Pa. 375, 548 A.2d 1191 (1988); Pa.R.A.P. 301(a), (c) and (d) and 904(d). However, in the interests of judicial economy, we will consider done, "that which ought to have been done,” and review appellant’s claim. McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254, n. 1, 561 A.2d 328, 330, n. 1 (1989).

      . Kaufman claimed that he wanted blank statements to test Summit’s new electronic scanner. As counsel for appellant suggested in closing, a blank bank statement would reveal no information on a scanner, while an accurate, full bank statement would really test the scanner’s accuracy. N.T. at 8/11/89 at 11-12.

      . The jury found that appellant suffered $183,917.00 in damages; however, it awarded the appellee $23,874.00 on its counterclaim. Thus, only $160,043.00 was available to the appellant for the payment of its damages.

      . Contrary to appellees’ contention, see appellees’ brief at 9-10, we find that appellant’s challenges to the jury charges have been properly preserved for appeal. While a general exception does not ordinarily preserve a challenge to the jury charges, it is clear that, in this case, the agreement among the trial lawyers and court superseded any such strict rule. One of the results of the in-chambers, off-the-record, precharge conference was that the parties had ipso facto objected to all charges inconsistent with the ones suggested but rejected. See N.T. 8/7/89 at 2-3.