author: BECK, Judge:

text:
    517 A.2d 997
    Ann Marie FRANCIS v. George H. FRANCIS, III, Appellant.
    Superior Court of Pennsylvania.
    Argued May 28, 1986.
    Filed Nov. 19, 1986.

      Frank W. Hayes, West Chester, for appellant.
    Linda L. MacElree, West Chester, for appellee.

      Before WIEAND, BECK and JOHNSON, JJ.
   BECK, Judge:

Husband appeals from a Chester County order awarding spousal and child support. Husband and wife separated in 1984. They have two living children, a daughter born in December 1975 and a son born in July 1982. Between these two children, the couple had a third child who lived for nine months. The wife and children reside in the marital home.

Included in the support order were the findings of fact that wife’s net monthly income or earning capacity was $1279 and husband’s net monthly income or earning capacity was $3500. The portions of the order relevant to this appeal directed the husband to pay $300 a month support for his wife and $900 a month support for his two children, and $100 a month for arrearages. In addition, the order directed the husband to pay a gross amount of $489 a month for mortgage, taxes and insurance on the marital residence for which he receives $324 per month credit toward spousal and child support. The order also directed the husband to continue to pay his daughter’s private school tuition, and was made retroactive to the time of filing the complaint. The court conditioned its order on husband’s paying “$1,100 per month to Plaintiff [wife] for one-half of net rental of joint property leased to business operated by Defendant [husband] and his brother.”

I.

The husband initially complains that the court abused its discretion by enforcing the rental income contract through its support order. We find the husband’s challenge to be without merit. It is clear that the court was not enforcing the rental contract through the support order. The court did not order the husband to pay the rental income of $1,100 a month as additional support, but predicated its support order on wife’s income from the rental property. It is clear that if the wife had not been entitled to receive the rental income, the support order would have been higher. Since the property is jointly owned, each party is entitled to one-half the income from the property. The proportionate share of rental income to which wife is entitled was stipulated and therefore the trial court was not in error in conditioning the support order on the wife’s receiving one-half the rental income or $1,100 a month.

II.

The trial court placed the obligation for paying for the daughter’s private school solely upon the husband. Review of the record shows that during the marriage the husband removed his daughter from public school in first grade and enrolled her in the private school, which she has attended for more than two-and-a-half years. It appears the husband does not object to child’s attending private school. He may even desire it. He challenges the court’s assessing the entire cost to him.

The husband attempts to establish an analogy between college and private school to suggest the applicability of the undue hardship test. See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). This test is not applicable because:

[t]he duty of parents to support a child who has reached the age of majority is different from the nearly absolute parental obligation with respect to a minor child. When a child reaches the age of majority, a presumption arises that the duty to support the child ends and the burden shifts to the child to rebut the presumption, i.e. to demonstrate a need for support. Sutliff v. Sutliff, 339 Pa.Super. 523, 545-46, 489 A.2d 764, 775 (1985).

To the extent they are able, parents have a duty to provide the subsistence and education that are necessary for their children’s physical, mental and emotional health. See 42 Pa.Cons.Stat.Ann. § 6302 (Purdon 1982).

Parents are legally obligated to provide the reasonable expenses of raising their children.

Reasonable expenses are not limited to the bare necessities of life, but extend to articles that are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life ... and the fortune possessed by him and his parents.... Among the “necessities” for which a child is entitled to support is a proper education.

Commonwealth ex rel. Stump v. Church, 333 Pa.Super. 166, 172, 481 A.2d 1358, 1361 (1984) (citing Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991, 995 (1984)). In Stump, the child attending a private college preparatory school was over the age of eighteen. The court determined that private school education was reasonable, and then, because the child was over eighteen, it considered whether the obligation to pay created an undue hardship on the father. The court determined that an undue hardship did not exist. See Reitmayer v. Reitmayer, 355 Pa.Super. 318, 323-326; 513 A.2d 448, 452 (1986); Commonwealth ex rel. O’Hey v. McCurdy, 199 Pa.Super. 115, 184 A.2d 291 (1962).

Where the child is a minor, however, the applicable test is whether the cost of private schooling is a reasonable need of the child and a reasonable expectation and expense of the parents. In determining if the need is reasonable, the court must determine if the child will benefit from private schooling. In addition the court must determine if private schooling is consistent with the family’s standard of living and station in life before the separation. Sutliff v. Sutliff, 339 Pa.Super. at 555, 489 A.2d at 780. Based on the record evidence of the advantages to the child, the family’s social status as well as the income and earning potential of the father, we can say that the court did not abuse its discretion.

III.

The support order included a provision requiring the husband to pay $489 month for mortgage, insurance and taxes on the marital residence occupied by wife and children. The trial court provided that from this sum the husband would receive $324 a month credit toward his spousal and child support obligations. Husband challenges this calculation and asserts he should be credited with the full $489 a month that he makes toward the mortgage, insurance and taxes. We find no merit to husband’s argument.

In determining the amount of credit the husband should be given, the court applied a formula which recognizes that interest payments are in the nature of expenses and that principal payments are in the nature of capital accretions. The monthly interest and principal figures to be used in the formula are the average interest and principal payment that are due over the next three years (or less, if the mortgage has less than three years to run).

The formula was first published in Chester County in Kinden v. Kinden, 32 Ches. County 106 (1984) and provides that:

The average interest payment would be considered equivalent to a rental payment, and would simply be considered part of the defendant’s GSO [general support obligation], just as a rental payment would be, and would not be grounds for varying the GSO. However, the defendant would also be ordered to pay the plaintiff an amount over and above the GSO which would be sufficient to cover the average principal payment, but would in turn receive a credit towards the GSO of one half of the principal amount, representing the defendant’s contribution to the plaintiff’s investment in the premises. Plaintiff would then be obliged to make the mortgage payments. If plaintiff failed or refused to make the mortgage payments, the defendant could then make the mortgage payments directly, and would receive credit against his (or her) GSO for one half of the principal payments and the total interest payment.

Kinden v. Kinden, 32 Ches. County at 108. The formula used is reasonable and correct and the trial court did not abuse its discretion in applying it. In the context of support this formula may serve as a valuable guide in calculating credit for interest and principal for mortgage payments.

IV.

The husband asserts that the trial court abused its discretion by limiting wife’s earning capacity to part-time employment and in its findings regarding wife’s income.

There is substantial evidence in the record to support the court’s conclusion as to the wife’s current net income and earning capacity. The record shows that at the time of the hearing the children were ages two and a half and nine, and that the family has been traumatized by the death of the third child. The record reveals that the wife wishes to remain at home because the children’s welfare requires it. The trial court carefully considered the wife’s position and properly disposed of this issue in accordance with Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977).

V.

The husband argues that the court’s finding as to his earning capacity represents an abuse of discretion. The record contains substantial evidence supporting the trial court’s finding of husband’s net income and earning capacity. When income and earning capacity are at issue in a self-employment situation, the court may make its own deductions from the evidence and the accompanying circumstances. Smith v. Smith, 285 Pa.Super. 146, 151, 426 A.2d 1184, 1187 (1981). The wife’s testimony based on her working in husband’s business and the wife’s accountant’s testimony support the trial court’s finding.

VI.

Husband complains that in making the support order retroactive to the filing of the complaint, the court failed to take into account his change of circumstances from the time that his wife filed the complaint until the date of the order. Since husband did not file exception to the master’s report on this issue, ordinarily the challenge is waived. Curtis v. Curtis, 326 Pa.Super. 40, 47-49, 473 A.2d 597, 601-02 (1984). However, because of the unusual posture of this case we do not find waiver.

The court’s support order reflects the fact that after the master issued his report the mortgage on the jointly held property was paid off; thereby increasing substantially the amount of net rental income available for distribution to each party. After the mortgage was paid off, each party received $1100 per month in rental income. The increased funds available are reflected in the court’s ordering the husband’s support obligation to be higher than that recommended by the master; therefore the husband could not have excepted at the master’s level to the retroactivity of the higher support order which the court made. There is no provision in the rules for motions for post trial relief subsequent to the court’s order. Pa.R.Civ.P. 1910.11(k), 1910.12(g). We do not find the issue waived.

The court found that after the mortgage payoff each party’s gross income increased substantially. The record reveals that the court considered the increase in income before making the order retroactive. Based on the record we cannot conclude that the court abused its discretion in making the order retroactive to the date of the filing of the complaint. Pa.R.Civ.P. 1910.17(a).

VII.

The husband argues that the court’s finding on the reasonable expenses of the children lacks sufficient evidence in the record. Having reviewed the record, we note that the wife prepared a budget for the children alone and testified extensively as to the expense of maintaining them. The record thus provides substantial evidence for the trial court’s finding of reasonable expenses of the children. See Sutliff v. Sutliff, 339 Pa.Super. 523, 489 A.2d 764.

Order affirmed.

WIEAND, J., concurs in result.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    517 A.2d 1293
    Angelo BROPHY and Carol Brophy, Individually and as Husband and Wife, Appellants, v. Hernan BRIZUELA, M.D., Mihan Maani, M.D., Roopali Bhattacharjee, M.D. and Episcopal Hospital.
    Superior Court of Pennsylvania.
    Argued June 26, 1986.
    Filed Oct. 1, 1986.
    Reargument Denied Dec. 8, 1986.

      Andrea B. Witten, Philadelphia, for appellants.
    John T. Quinn, Philadelphia, for Maani, appellee.

      Anne T. Hopkins, Philadelphia, for Bhattacharjee, appellee.
    Before MONTEMURO, JOHNSON and CERCONE, JJ.
   JOHNSON, Judge:

In this appeal from the order granting summary judgment we are asked to decide two intertwined issues. First, we are asked to decide whether the trial court abused its discretion in imposing a sanction excluding the use of any expert testimony pertaining to the subject matter of the interrogatories due to Appellants’ failure to answer the interrogatories after a court order to do so. Secondly, we are asked to consider whether this exclusion is a proper ground for granting summary judgment in a medical malpractice case since Appellants are unable to have the benefit of the expert testimony.

On December 30, 1982, Appellants, Angelo and Carol Brophy, filed a complaint in trespass and assumpsit against Appellees seeking damages for Appellees’ allegedly negligent performance of a bilateral tubal ligation. Appellants base their claim on the fact that Appellees performed a tubal ligation on Carol Brophy and she subsequently became pregnant. Appellees are Dr. Hernán Brizuela, Dr. Maani and Dr. Roopali Bhattacharjee, a resident physician. Dr. Maani was the attending physician who actually performed the tubal ligation.

On October 10, 1984, Appellee Maani served expert interrogatories upon Appellants. After failing on numerous occasions to have Appellants answer these expert interrogatories, on May 22, 1985, Appellee Maani filed a motion for further sanctions against Appellants on the basis of their failure to answer the expert interrogatories. On July 2, 1985, the court below issued an order precluding Appellants from introducing any testimony or evidence pertaining to the subject matter of the expert interrogatories (as to Appellee Maani only).

On August 13, 1985, Appellee Maani filed a motion for summary judgment. On September 13, 1985, Appellants filed a petition for reconsideration of the court’s order of July 2, 1985. The petition was denied on October 16, 1985. On December 3, 1985, the lower court granted appellee Maani’s motion for summary judgment. This appeal followed, on December 27, 1985. Along with Appellants’ appeal of the summary judgment in favor of Appellee-Maani, Appellee-Bhattacharjee filed a brief contending that Maani should not be dismissed from the case.

The imposition of sanctions, is within the discretion of the trial court. Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971); Crance v. Sohanic, 344 Pa.Super. 526, 530, 496 A.2d 1230, 1232 (1985). A reading of the Pennsylvania Rules of Civil Procedure pertaining to the discovery of expert testimony shows that these sanctions include the exclusion of expert testimony after failure to disclose the nature of this testimony pursuant to a discovery order. Rule 4003.5 of the Pennsylvania Rules of Civil Procedure, provides in pertinent part:

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

Pa.R.C.P. § 4003.5(b). In Kaminski v. Employers Mutual Casualty Co., 338 Pa.Super. 400, 487 A.2d 1340 (1985), this Court held that absent extenuating circumstances, Pa.R. C.P. § 4003.5(b) is a rule of mandatory preclusion, at trial, of the testimony of an undisclosed expert witness. Id., 338 Pa.Superior Ct. at 407, 487 A.2d at 1344.

In granting the motion for sanctions, the trial court relied on Rule 4019(c)(2) of the Pennsylvania Rules of Civil Procedure. Rule 4019(c)(2) provides:

(c) The court, when acting under subdivision (a) of this rule may, make
(2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents, things or testimony, or from introducing evidence of physical or mental condition;

Id. This rule permits the imposition of sanctions, that the trial court deems appropriate, when, as in this case, a motion for sanctions is filed after a party fails to serve answers, sufficient answers or objections to written interrogatories. Pa.R.C.P. 4019(a)(l)(i). While we note that Rule 4003.5(b) may be read to be limited to the disclosure of the identity of the expert, Rule 4019(c)(2) is not. Either way, prior to the imposition of the sanctions, Appellants had failed to both disclose the identity of their expert and the substance of his testimony. Not only did they fail to disclose, but they also failed to either properly object to the interrogatories, Pa.R.C.P. § 4019(a)(l)(i), or provide an explanation as to why the failure to disclose was the result of extenuating circumstances beyond their control. Pa.R.C.P. 4003.5.(b). This is clearly an example of too little, too late.

On October 10, 1984, Appellee Maani served expert interrogatories upon Appellants. On February 15, 1985, Maani filed a motion to compel Appellants to answer the expert interrogatories. On March 19, 1985, the court below issued an order directing Appellants to answer the expert interrogatories within thirty days. On May 22, 1985, Maani filed a motion for further sanctions against Appellants for their failure to answer the expert interrogatories. On July 2, 1985, nine months after the interrogatories were served, and four months after the court below ordered Appellants to answer the interrogatories, the court below issued an order excluding evidence of any testimony pertaining to the subject matter of the expert interrogatories. Not only is this a long delay, but it is also inadequately explained, and no objections to the interrogatories were raised. Rule 4003.5.(b) requires a showing of extenuating circumstances beyond the control of the defaulting party before the court will grant appropriate relief. The only explanation offered by Appellants is that they had difficulty in locating an expert. They make no showing of what efforts they took towards procuring an expert, nor any showing of extenuating circumstances beyond their control. We find no abuse of discretion in the trial court’s granting these sanctions.

In reviewing an appeal from an Order granting a Motion for Summary Judgment, this Court, in Spain v. Vicente, 315 Pa.Super. 135, 461 A.2d 833 (1983), stated:

Summary judgment is appropriate only in those cases which are clear and free from doubt. Since the moving party ... has the burden of proving that no genuine issues exist as to any material facts, we must examine the record in the light most favorable to the non-moving party. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give him the benefit of all reasonable inferences to be drawn, therefrom. We are not limited to the pleadings in determining whether summary judgment was properly entered. Rather, we also consider depositions, answers to interrogatories, admissions on file, and affidavits, if any, in our search for issues of material facts. Pa.R.C.P. No. 1035.

Id., 315 Pa.Superior Ct. at 138, 461 A.2d at 835. (citations omitted).

The general rule in a medical malpractice case is, in order to establish the standard of care, expert testimony is required. Brannan v. Lankenau Hospital, 490 Pa. 588, 417 A.2d 196 (1980). There is an exception to this rule, however, where the matter is so simple, and the lack of skill or want of care is so obvious, as to be within the comprehension of non-professional persons.

Appellants correctly assert that res ipsa loquitur is applicable in a medical malpractice action. Jones v. Harrisburg Polyclinic Hospital, et al., 496 Pa. 465, 437 A.2d 1134 (1981). Starr v. Allegheny General Hospital, 305 Pa.Super. 215, 451 A.2d 499 (1982). However, in viewing the facts in the light most favorable to Appellants, the record clearly reveals that even if the surgery was performed properly, there was still a chance of subsequent pregnancy. Thus, even though the determination of negligence remains a jury issue, in this instance the doctrine of res ipsa loquitur is not applicable because there is not sufficient evidence to eliminate other reasonable causes beyond the alleged negligence of the Appellee.

Thus, it becomes clear that Appellants are not able to establish a critical element of negligence action for medical malpractice; that of a deviation from the required standard of care. Accordingly, the trial court properly granted Appellee Maani’s Motion for Summary Judgment.

Finally, Appellee-Bhattacharjee’s contention that Maani not be dismissed from this case fails. These issues were not raised in the court below, and this Court cannot consider these contentions because they are not properly before us. Accordingly, this claim is waived. See Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982).

Order affirmed.


author: CAVANAUGH, Judge: HOFFMAN, Judge,

text:
    517 A.2d 1296
    Gladys CALDWELL, Appellant, v. CITY OF PHILADELPHIA. Gladys CALDWELL v. CITY OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1985.
    Filed Oct. 3, 1986.
    Reargument Denied Dec. 8, 1986.

      Barbara Axelrod, Deputy City Solicitor, Philadelphia, for appellant in No. 924 and for appellee in No. 923.
    Cary L. Sandler, Philadelphia, for appellant in No. 923 and for appellee in No. 924.
    Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

The trial of this case resulted in a $175,000.00 verdict for the plaintiff, Gladys Caldwell (hereinafter, “Caldwell”). Caldwell alleged that the City, acting through its police officers, was liable on a theory which stemmed from the failure by the police to obtain the identity of a driver who struck her while crossing a street. Following the jury verdict, the City moved for judgment notwithstanding the verdict and for a new trial. The trial court denied the City’s motion for judgment n.o.v. and granted its motion for a new trial. Both Caldwell and the City were dissatisfied with the lower court’s decision and have appealed to this court. Caldwell appeals the grant of a new trial. The City’s appeal argues that the trial court erred in denying its motion for judgment n.o.v. Following careful study of this matter, we vacate the award of a new trial, reverse the lower court’s denial of judgment n.o.v. and enter judgment in favor of the City of Philadelphia.

We first examine the appeal from the denial of the City’s claim of entitlement to judgment n.o.v. Our standard of review is clear. When reviewing whether a judgment n.o.v. should have been entered, we are bound to review all the evidence, together with all reasonable inferences, in the light most favorable to the verdict winner. Dawejko v. Jorgensen Steel Co., 290 Pa.Super. 15, 434 A.2d 106 (1981); Fahringer v. Rinehimer, 283 Pa.Super. 93, 423 A.2d 731 (1980). Viewed in this light, the evidence may be stated as follows:

On February 17, 1975 Gladys Caldwell and her friend, Charles Wiley, were struck by an automobile as they were walking across an intersection. Appellant was knocked to the ground and sustained various injuries. Wiley, who was not seriously injured, directed traffic to prevent any further injury to appellant who was lying in the street. Shortly after the accident, two police vehicles, a cruiser and a van, arrived at the scene. The two officers in the van and the sergeant who arrived in the cruiser placed appellant on a stretcher and began to lift her into the van. As they were placing her in the van, a man approached them and identified himself as the driver of the car that struck appellant. One of the police officers told the driver to “stand by” until they could get appellant on her way to the hospital. Wiley testified that he then attempted to approach the man and obtain identification from him, but was stopped by the police who told him they would take care of it. Wiley also testified that the driver had been hostile to him before the arrival of the police. The police then directed Wiley to get inside the van and accompany his companion to the hospital. By the time the van had left for the hospital, the driver had disappeared from the scene. Wiley testified that approximately fifteen to twenty minutes transpired between the time of the accident and the time the driver left the scene of the accident. He also testified that the man who said he was the driver was at the scene of the accident while the police were there for at least ten minutes.

Caldwell initiated this law suit alleging that the City, through its employees, the police officers, negligently failed to obtain the identity of the driver who struck her. She further alleged that as a result of the City’s failure to properly investigate her case, she was deprived of her right to attempt to recover damages from the driver.

After Caldwell filed this action, the City filed motions for judgment on the pleadings (February 9, 1980) and a motion for summary judgment (March 9, 1982). In those motions, which the lower court denied, the City argued that there was no legally cognizable duty owed to Caldwell under which the City could be held liable in damages for her injuries. At trial, in its post-trial motions, and in this appeal, the City likewise argues that it had no duty to Caldwell.

Having reviewed the evidence, together with all reasonable inferences, in the light most favorable to the verdict winner, we must now inquire whether these facts support a cause of action. The question for us, then, is whether the trial court should have found as a matter of law that the City, acting through its police officers, had no duty to Caldwell to conduct and to exercise reasonable care in its investigation and, therefore, could not be liable in damages for Caldwell’s injuries. If this be the case, then the post-trial motion court should have granted the City’s motion for judgment n.o.v.

First, we note that the City has not claimed immunity from liability. The facts that give rise to the this cause of action occurred in 1975. The judicial doctrine of governmental immunity was abrogated by our supreme court in 1973. See Ayala v. Philadelphia Board of Public Education, 453 Pa. 584, 305 A.2d 877 (1973). It was partially reinstated by our legislature in the Political Subdivision Tort Claims Act (Act), but not until 1978. See 42 Pa.C.S.A. §§ 8541-8564 (originally enacted as Act of 1978, November 26, 53 P.S. §§ 5311.101-803). As the accident in this case occurred in 1975, the Act is inapplicable.

Whether a municipality may be held liable for the failure of its police officers to obtain the identification of a motorist involved in an accident for the benefit of a victim is an issue of first impression in this Commonwealth. The City argues that it did not owe appellant a duty to exercise reasonable care in obtaining the driver’s identification. Whether a police officer owes an individual a duty to exercise reasonable care depends, initially, on whether he is exercising a duty owed to the public at large or to an individual. Our courts have held that there is a distinction between duties that the police owe to the public at large and those to an individual. “Public” duties are usually redressed by “public” prosecutions.

[I]f the duty which the official authority imposes upon an officer is a duty to the public, then, a failure to perform it, or an inadequate or erroneous performance, must be a public not an individual injury and must be redressed, if at all, in some form of public prosecution.

Berlin v. Drexel University, 10 D & C 3rd 319, 326 (C.P. Phila Co. 1979) quoting 2 Cooley on Torts, § 300 at 385-86 (4th Ed.1932). It is clear that the police were exercising public duties in their protection and care of appellant at the accident scene.

In some limited instances, however, the duty to the public may become a duty to the individual if the police have a “special relationship” to the complainant that differs from that of the police to the general public. This “special relationship” may allow the police to be liable for negligent performance of their duty where otherwise liability would not exist. For example, police protection of citizens may become a private duty under special circumstances. See Melendez v. City of Philadelphia, 320 Pa.Super. 59, 64, 466 A.2d 1060, 1063 (1983); Chapman v. City of Philadelphia, 290 Pa.Super. 281, 283, 434 A.2d 753, 754 (1981); Berlin v. Drexel University, supra at 328. See also Miller v. United States, 561 F.Supp. 1129, 1134 (E.D.Pa.1983), aff'd. sub nom appeal of Miller, 729 F.2d 1448 (3rd Cir.1984).

In Berlin the court held that a special relationship exists when “a member of the public has been exposed to a special danger ... and the authorities have undertaken the responsibility to provide adequate protection.” Berlin v. Drexel University, Id. (Emphasis added.) See also Miller v. United States, supra, at 1134; Chapman v. City of Philadelphia, supra, 290 Pa.Super. at 283, 434 A.2d at 754. In Melendez v. City of Philadelphia, supra, this court further defined a special relationship to include the following three elements: 1) police awareness of the individual’s particular situation; 2) knowledge by the police of the potential for the particular harm suffered; and, 3) a voluntary assumption by the police of the protection of the individual from the precise harm. Id. 320 Pa.Super. at 64, 466 A.2d at 1063-64. Examples of such special relationships include that of the police to a prosecution witness, a police informant, and an undercover agent. Berlin v. Drexel University, Id. In Melendez, this court held that a special relationship did not exist between appellant and the police department to support his claim for damages against the City. Appellant was injured during a racial confrontation between residents of his neighborhood. He argued that, as the police department and the human relations commission had been apprised of the neighborhood’s racial problems, the City owed him a special duty of protection.

We do not believe a special relationship arose between Caldwell and the police under the circumstances of this case. At no time did the police officer’s activities with respect to Caldwell take on the character of a “special relationship” to enable appellant to sue in a private action. Cases using the “special relationship” analysis to impose liability have involved police protection of individuals. Not only do we believe that police protection differs significantly from police investigations, but we do not believe that the police ever voluntarily assumed to accord appellant particular benefits not accorded to the public at large. See Berlin, Id. The police adequately performed their duties toward Caldwell when they encountered her for the first time at the scene of the accident. Accordingly, we agree with the appellee that no special relationship existed between these two parties and, therefore, the police had no duty to appellant to obtain the driver’s identification.

Furthermore, the police never dealt directly with Caldwell at the scene of the accident with respect to the accident’s investigation. The police dealt only in a limited respect with her companion regarding the investigation when they told him they would take care of obtaining the driver’s identification. The police, arriving at the scene of the accident, responded promptly and efficiently in securing Caldwell’s removal to the hospital. Caldwell would have us hold that a special relationship arose for purposes of investigating her claim. We decline to so rule.

While there is no precise authority on this issue in our jurisdiction, our Supreme Court in Stupka v. Peoples Cab Company, 437 Pa. 509, 264 A.2d 373 (1970) enunciated principles which give support to our decision. In Stupka, the plaintiff passenger sued the defendant cab company for failing to obtain the identity of a driver who struck the cab causing injuries to the plaintiff. Her theory was that the cab driver owed her a duty to secure the hit-and-run driver’s identification. Accordingly, she asserted that his failure to perform the duty was negligence so as to permit her to recover. Our supreme court held against plaintiff stating that the defendant had no duty to obtain sufficient information about individuals involved in traffic accidents to enable plaintiff to bring suit. The court noted that the only legal duty the defendant had to plaintiff was regarding her physical well-being: offering her assistance after she suffered injury. The court concluded its opinion stating that “An individual’s financial interests can be so complex and varied that we should not require the carrier to be cognizant of them and responsible for furthering and protecting them.” Id. 437 Pa. at 513, 264 A.2d at 374.

We believe the case under review to be similar because we hold that the police had no duty to protect the financial interests of the plaintiff under these circumstances. We further believe that the police’s only duty to the plaintiff were public duties to ensure her physical well-being in expediting her trip to the hospital. Accordingly, we hold that the police had no duty to plaintiff to secure identification from the driver for purposes of plaintiff’s civil claim.

Other jurisdictions have held that police are not liable for alleged negligent investigations. In Warren v. District of Columbia, 444 A.2d 1 (D.C.1981) the plaintiff was assaulted by occupants of a car that stopped behind him at a traffic light. A policeman arrived at the scene and directed the plaintiff’s companion to cease his efforts to obtain the assailants’ identification in order to break up the fight. The officer left the scene without obtaining identification. The plaintiff sued the District of Columbia and the police officer for failing to obtain the assailants’ identification. The court held that any duty that the officer had to obtain the identification was related to his duty to the public and that there was no additional element that created a special relationship between the plaintiff and the police officer. Id. at 3-4.

In Jackson v. Heymann, 126 N.J.Super. 281, 314 A.2d 82 (Law Div.1973), the plaintiff sued the city because a police investigation failed to discover the identity of a hit and run driver who had injured her child. Id. at 282-83, 314 A.2d at 83. The New Jersey Superior Court held that the municipality did not owe the plaintiff a duty to conduct a motor vehicle accident investigation even though New Jersey law required local governments to file accident reports in connection with criminal prosecutions. Id. at 287, 314 A.2d at 85-86. The court there stated:

In compliance with the statute, police officers file their reports with the director of motor vehicles. They are utilized by the prosecutor’s office in cases requiring criminal and quasi-criminal proceedings. However, because of their usual availability, the reports in a vast majority of cases ultimately become a part of the parties files in civil litigations. It is to be noted that this is a separate and secondary utilization of the reports. There is no statutory mandate requiring preparation of such reports for civil proceedings. The purpose of the reports, from the police officer’s position, is not the same as a civil investigator. Plaintiff here seeks to place upon each action in investigation by a police officer the duty of a civil law investigator....
It is the opinion of this court that, as a matter of law, a municipality does not owe a duty to victims to conduct an investigation of their motor vehicle accidents. Since the city owes no duty to plaintiff, it cannot be held answerable to plaintiff in negligence [cite omitted]. This court is unwilling, absent legislation, to extend the police officer's role in the investigation of accidents to that of an investigator for civil litigants.

Jackson v. Heymann, 126 N.J.Super. 281, 285-287, 314 A.2d 82 (1973). We agree with the reasoning of the New Jersey courts. Police officers are entrusted with important responsibilities to protect public safety. Their primary concern at an accident scene is to render aid to injured parties and protect people who might be at risk. This includes preventing a possible confrontation, as in this case, between the driver and the injured party’s friend. Their duties are not that of a civil investigator. While it is true that police officer’s reports are often used in civil litigation, this does not impose a duty on them towards a private individual to obtain such an accident report. We also note that the driver in this case violated his statutory duty to identify himself and give information as to his license and insurance at the scene of the accident. 75 Pa.C.S.A. § 3744(a)(b). This statute imposes an affirmative duty upon a driver to remain at the scene of the accident until he gives the necessary information to the injured party or to the police. The driver in this case violated the statute by leaving before the police could get this information. It is an irrational imputation of tort responsibility to impose liability upon the police and the City where the driver has violated his express statutory duty to give information.

In Falco v. City of New York, 34 A.D.2d 673, 310 N.Y.S.2d 524 (1970), aff'd. 29 N.Y.2d 918, 329 N.Y.S.2d 97, 279 N.E.2d 854 (1972), the New York court considered a case factually similar to the this case and found that there was no special relationship and, therefore, no liability would be imposed. There, the plaintiff was injured when he was hit by a car while riding his motorcycle. While lying on the ground injured, he asked the police officer to obtain for him the name and license number of the driver. The police officer told the plaintiff that he would take care of everything. The plaintiff then observed the police officer talking with the driver, but the officer failed to obtain any identification, precluding the plaintiff from instituting suit against the driver. Id. at 674, 310 N.Y.S.2d at 525. The court concluded that no relationship existed between the plaintiff and the police officer that created a duty to use care for the plaintiffs benefit. Accordingly, it would not impose liability on the municipality for the police officer’s negligence. Id. Also, in McNeil v. Town of Hempstead, 60 Misc.2d 797, 303 N.Y.S.2d 803 (Sup.Ct.1969), aff'd., 34 A.D.2d 958, 313 N.Y.S.2d 652 (1970), the New York court held that a municipality could not be liable for an officer’s failure to secure the names of a driver and owner of the vehicle which struck a plaintiff’s intestate. This was true even though the driver was still at the accident site when the officers arrived. The court borrowed language from Riss v. City of New York, 22 N.Y.2d 579, 583, 293 N.Y.S.2d 897, 899, 240 N.E.2d 860, 861 (1968) where Judge Breitel stated:

Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities, there should be a legislative determination that that should be the scope of public responsibility (Van Alstyne Governmental Tort Liability, 10 UCLA L.Rev. 463, 467; note 60 Mich.L.Rev. 379, 382).... To foist a presumed cure for these problems [of increased crime] by judicial innovation of a new kind of liability in tort would be foolhardy indeed and an assumption of judicial wisdom and power not possessed by the courts.... There is no warrant in judicial tradition or in the proper allocation of the powers of government for the courts in the absence of legislation, to carve out an area of tort liability for police protection for members of the public. Id. 293 N.Y.S.2d at 898, 899, 240 N.E.2d at 861.

We agree with Judge Breitel that it would be improper to impose liability on the police absent a legislative determination. We further agree that it would be judicial overreaching to extend tort liability to police negligence in this area.

Courts in some jurisdictions, most notably California, have held police officers to be liable in related circumstances. In Williams v. State, 34 Cal.3d 18, 664 P.2d 137, 192 Cal.Rptr. 233 (1983), the California court stated that, “when the state, through its agents, voluntarily assumes a protective duty towards a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person....” Id. at 24, 664 P.2d at 140, 192 Cal. Rptr. at 236. In Clemente v. State, 40 Cal.3d 202, 707 P.2d 818, 219 CaLRptr. 445 (1985) the California Supreme Court borrowed from the Williams’ analysis to a fact pattern similar to that in the instant case. In Clemente, the plaintiff was struck by a motorcycle as he was crossing the street at an intersection. A state highway patrol officer arrived at the scene just as a group of bystanders had begun to assist the plaintiff. The motorcyclist approached the officer and told him that he had struck the plaintiff. The officer directed the motorcyclist not to leave the scene but to await the arrival of the Los Angeles Police Department. The officer then left the scene without obtaining the motorcyclist’s name or license number, and his identity was never discovered. Relying on its prior decision in Williams the court recalled that there it had recognized that a duty of care may arise when a patrol officer’s conduct results in a plaintiff’s detrimental reliance on the officer for protection. The Clemente court noted that the officer induced the plaintiff’s reliance and that the officer’s conduct had prevented bystanders from obtaining the driver’s identification for the plaintiff. Thus, the court concluded that the plaintiff could properly state a cause of action against the state of California and its highway patrol officer. Id. at 213, 707 P.2d at 824, 219 Cal.Rptr. at 451. We decline to follow those cases.

We hold, then, that under the evidence in this case there is no responsibility on the City for the failure of its agents or employees to obtain the identity of the offending motorist.

Caldwell also raises procedural issues in this appeal. Caldwell first argues that the lower court erred in granting the City’s motion for a new trial because the City failed to preserve for appeal its grounds for a new trial. Appellant first argues that the City failed to request a jury instruction on “special relationship.” See Chapman v. City of Philadelphia, 290 Pa.Super. 281, 434 A.2d 753, (1981). Therefore, she argues that the court erred in reversing the jury’s verdict on the ground that it failed to instruct the jury that any legal duty owed by the City to appellant had to be predicated on a finding of a special relationship between them. We disagree.

The City requested the following point for charge:

there is no legal duty imposed upon the City of Philadelphia to insure the success of its police investigation, and it cannot be held to be legally responsible for unsuccessful investigations.

As its grounds for a new trial, the City argued that the jury should have been instructed that it did not owe appellant a duty of care. Thus, although the City did not specifically employ the term “special relationship” in its requested points for charge we conclude that it properly preserved the duty issue for review. Judge Hill, dissenting to the en banc panel’s majority opinion, would have found the City’s contention waived because he believed that its requested point for charge covered only the question of the police duty to investigate following the driver’s disappearance rather than its duty at the scene of the accident. We believe that the term “police investigation” in the City’s requested point for charge encompassed both aspects of the police investigation.

Appellant also argues that the City failed to object to the court’s charge to the jury and, therefore, waived its right to object to the court’s failure to charge on duty and whether the City’s action was the proximate cause of appellant’s injuries. This claim is likewise meritless. The City submitted requested points for charge on both issues. The lower court denied both and the City took an exception to each. An exception to the trial court’s refusal to charge the jury as requested is sufficient to preserve the issue for appeal even if there is no specific objection to the charge at trial. Jones v. Montefiore Hospital, 494 Pa. 410, 415 n. 5, 431 A.2d 920, 923 n. 5 (1981); Gradel v. Inouye, 491 Pa. 534, 540 n. 6, 421 A.2d 674, 677 n. 6 (1980). Accordingly, we conclude that the City did not waive its grounds for a new trial.

Appellant also contends that the lower court erred in granting the city leave to file post-trial motions nunc pro tunc. We disagree. The City filed its post-trial motions the morning after the ten day filing period expired. See Pa.R.C.P. 227.1(c). (Post-trial motions shall be filed within ten days after verdict). They assert that the motions were filed on the morning following the tenth day after the verdict because the clerk’s office assured it on the tenth day that filings are accepted as timely when filed the following morning. The lower court, relying on Pennsylvania decisions holding that judicial review on the merits is preferable to dismissal on technical grounds, held that leave to file the motions nunc pro tunc was properly granted. See lower court opinion at 5 citing Estate of Vittorio, 290 Pa.Super. 329, 331 n. 1, 434 A.2d 777, 778 n. 1 (1981); First Valley Bank v. Steinmann, 253 Pa.Super. 8, 11, 384 A.2d 949, 951 (1978); Thornbury Twp. v. Jones, 6 Pa.Commonwealth Ct. 69, 72-73, 293 A.2d 149, 151 (1972). We agree and conclude that the court did not abuse its discretion in granting the City leave to file its motions nunc pro tunc. See Gutman v. Rissinger, 334 Pa.Super. 259, 482 A.2d 1324 (1984) (lower court did not abuse its discretion in considering post-trial motions filed thirteen days after verdict where parties substantially complied with Pa.R.C.P. 227.1(c) and adverse party raised no allegations of prejudice).

Appellant contends that the City waived its right to move for judgment n.o.v. because it failed to request a directed verdict at trial. Appellant relies on Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977) to support her contention. This claim is meritless. In Broxie our supreme court concluded that a party waives the right to move for a judgment n.o.v. if he or she neither objects to a jury charge on the ground at issue nor offers a specific point for charge. Id., 472 Pa. at 377, 372 A.2d at 744. Here, the City both requested a specific point for charge and objected to the court’s denial of its request. See also Frank v. Peckich, 257 Pa.Super. 561, 578, 391 A.2d 624, 632 (1978) (judgment n.o.v. may be sought only by party who submits point for charge requesting binding instructions). Accordingly, we do not find merit in Caldwell’s argument.

For the reasons set out above, we hold that the City was not liable in this instance where its police officers failed to obtain the driver’s identification or to investigate this accident. This would be a rationally unwarranted extension of the fault concept and would ultimately fix responsibility on the taxpayer because a private citizen had violated the law and left the scene of an accident. Accordingly, we vacate the lower court’s award of a new trial, reverse the lower court’s denial of judgment n.o.v., and enter judgment in favor of the cross-appellant, City of Philadelphia.

Award of new trial vacated. Lower court’s denial of judgment n.o.v. reversed, and judgment entered in favor of the City of Philadelphia.

HOFFMAN, J., files a dissenting opinion.

HOFFMAN, Judge,

dissenting:

I dissent. Cross-appellant, the City of Philadelphia, contends that a “would-be civil litigant” does not have a cause of action against a municipality for the failure of its police officers to investigate properly an accident and that the court should have granted its motion for judgment n.o.v. and not awarded a new trial. Appellant contends in response that the jury’s verdict should be reinstated because the City’s acts gave rise to a legally cognizable claim for damages. Because I believe that the jury was not properly charged, I would affirm the lower court's order granting a new trial.

In the early evening on February 17, 1975, appellant and her friend Charles Wiley were struck by an automobile as they were walking across an intersection. Appellant was knocked to the ground and sustained various injuries. Wiley, who was not seriously injured, directed traffic to prevent any further injury to appellant while she was lying in the street. Shortly after the accident, two police vehicles, a cruiser and a van, arrived at the scene. The two officers in the van and the sergeant who arrived in the cruiser placed appellant on a stretcher and began to lift her into the van. As they were placing her in the van, a man approached them and identified himself as the driver of the car that struck appellant. One of the police officers told the driver to “stand by” until they could get appellant on her way to the hospital. Wiley testified that he then attempted to approach the man and obtain some identification from him but was stopped by the police who told him that they would take care of it. N.T. October 26, 1982 at 14. The police then directed Wiley to get inside the van. Some time following the accident, two other patrol cars arrived. Sergeant Smith, the first police officer to arrive, testified that he believed, but was not certain, that the two patrol cars arrived after appellant had been taken to the hospital in the van. Id. at 34-35. Wiley testified that the officers who arrived in the two patrol cars had been on the scene directing traffic around appellant when she was lying in the street. By the time the van left for the hospital, the driver had disappeared from the scene.

On February 10, 1977, appellant filed a complaint against the City alleging that the police officers at the scene of the accident negligently failed to obtain the driver’s identification and thus deprived her of the ability to sue the driver for her injuries. The City filed a motion for judgment on the pleadings contending that appellant had failed to state a cause of action because the City does not have a duty to investigate civil accident claims. The motion was denied and the case was tried before a jury on October 25, 1982. The jury returned a verdict in favor of appellant in the amount of $175,000. The City filed post-verdict motions for a new trial and for judgment n.o.v. The motions were argued before the lower court en banc. A majority of the three-judge en banc panel granted the City’s motion for a new trial and denied its motion for judgment n.o.v. Appellant has appealed from the grant of a new trial. The City filed a cross-appeal from the order insofar as the court failed to grant its motion for judgment n.o.v.

The City, on cross-appeal, contends that the lower court erred in failing to grant its motion for judgment n.o.v. because “a disappointed would-be civil litigant does not have a cause of action against a municipality for damages in the nature of a ‘lost’ verdict based on the failure of its police officers to act as her civil accident investigators and provide her with a defendant.” Brief for the City of Philadelphia at 12. Appellant responds that the jury verdict was proper because, under the instant circumstances, there was a special relationship between the police officers and herself that imposed a duty on them to obtain the drivers identification.

Whether a municipality may be held liable for the failure of its police officers to obtain the identification of a hit-and-run driver for the benefit of a victim is an issue of first impression in this Commonwealth. The City first argues that it did not owe appellant a duty to exercise reasonable care in obtaining the driver’s identification. To resolve this question, I would inquire (1) whether an ordinary citizen in the same position as the police officers would have a duty to obtain the driver’s identification, and (2) whether the officers’ status as municipal employees affords a shield from a civil liability for the failure to perform properly an official police function.

As a general rule, a person does not have a duty to aid another even if he or she realizes that his or her aid is necessary. See Restatement (Second) of Torts (Restatement) § 314 (1966). See also Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959). Once a person begins to aid another, however, he or she may be liable for injuries that result from a failure to exercise reasonable care in that undertaking. This tort concept, known as the good Samaritan rule, is stated in § 323 of the Restatement, which provides that:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
* * * * * *
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement § 323. See also Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) (applying § 323); DeJesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966) (applying § 323).

While § 323 of the Restatement, by its terms, applies only to liability for physical harm, I believe that in Pennsylvania the principle embodied in the section also applies to liability for economic harm such as that allegedly suffered here. This rule was the law in this Commonwealth before any of our appellate courts had expressly relied on § 323 itself. In Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954) our Supreme Court held that a party could recover for a negligent undertaking, but did not expressly require that the injured party suffer physical harm. The Court stated that:

“If a party make a gratuitous engagement and actually enters on the execution of the business and so negligently does it from want of care that another suffers damage thereby, an action will lie for this misfeasance.”

Id., 378 Pa. at 23, 105 A.2d at 73 (quoting Rehder v. Miller, 35 Pa.Superior Ct. 344, 347 (1908)). Similarly, in Pirocchi v. Liberty Mutual Insurance Co., 365 F.Supp. 277 (E.D.Pa.1973), the United States District Court for the Eastern District of Pennsylvania, applying Pennsylvania law, employed this rule in a case alleging harm similar to that in the instant case. There, the plaintiff alleged that the defendant claim adjuster’s failure to preserve physical evidence in its custody had destroyed his cause of action against a third party. Id. at 279. The defendant contended that it did not have a duty towards the plaintiff to maintain the evidence. The court refused to grant summary judgment on this ground, concluding that the jury could find that the defendant had undertaken a duty to preserve the evidence once it assumed control over it. Id. at 281-82. See also Quinones v. United States, 492 F.2d 1269 (3d Cir.1974) (plaintiff stated cause of action where he alleged that former employer had undertaken duty to maintain proper employment records and breach of that duty resulted in his rejection by potential employers); Western Union Telegraph Co. v. Direnzi, 442 F.Supp. 1 (E.D.Pa.1977) (plaintiff may state cause of action for money damages where plaintiff undertook to perform act although- under no initial duty to so perform). Courts in other jurisdictions, applying § 323, have permitted recovery for other than physical harm. See, e.g., Adkins & Ainley, Inc. v. Busada, 270 A.2d 135 (D.C.1970) (negligent undertaking to provide insurance; monetary loss); Blackmon v. Nelson, Hesse, Cyril, Weber & Sparrow, 419 So.2d 405 (Fla.Dist.Ct.App.1982) (per curiam) (law firm undertaking to provide employee with health insurance; monetary loss); McDonald v. Title Insurance Co., 49 Or.App. 1055, 621 P.2d 654 (1980) (negligent undertaking to provide legal advice; monetary loss); Schwartz v. Greenfield, Stein & Weisinger, 90 Misc.2d 882, 396 N.Y.S.2d 582 (Sup.Ct.1977) (negligent undertaking to perfect security interest; monetary loss). I would therefore conclude that an ordinary citizen would not be precluded from recovery under § 323 of the Restatement simply because the harm alleged is economic rather than physical.

I also do not believe that appellant’s recovery is precluded by Stupka v. Peoples Cab Co., 436 Pa. 509, 264 A.2d 373 (1970). In Stupka, the plaintiff was injured when the taxicab in which she was a passenger was struck from behind by another vehicle. The cab driver got out of his cab and spoke to the driver of the other vehicle, but failed to secure his name or other identification before he left the scene of the accident. The plaintiff sued the cab driver for negligently failing to obtain the identification of the hit-and-run driver and her consequent loss of a financial recovery from the driver. The Court held that the cab driver was not under a duty to protect his passenger’s financial interest. Id., 486 Pa. at 512-13, 264 A.2d at 374. The Court thus ruled only that the cab driver lacked an affirmative duty to obtain the driver’s identification. It did not address whether or not the driver had undertaken to perform this service for the plaintiff and had thereby induced her reliance. Stupka is therefore not controlling.

If the inquiry ended here, I would conclude that the jury should have been instructed pursuant to § 323 that the officers had a duty to exercise reasonable care in obtaining the driver’s identification if their acts at the scene of the accident constituted an undertaking to obtain the identification, and the undertaking induced appellant’s reliance on them to so perform. Because, however, the police officers are agents of a municipality, the question whether that status shields them from liability here must be addressed. Our courts have held that there is a distinction between duties that the police owe to the public at-large and those to an individual.

“[I]f the duty which the official authority imposes upon an officer is a duty to the public, then, a failure to perform it, or an inadequate or erroneous performance, must be a public not an individual injury, and must be redressed, if at all, in some form of public prosecution.”

Berlin v. Drexel University, 10 D. & C.3d 319, 326 (C.P.Phila.Co.1979) (quoting 2 Cooley on Torts § 300, at 385-86 (4th ed. 1932)).

The duty to the public, however, may become a duty to an individual if the police have a “special relationship” to the complainant that differs from that of the police to the general public. See Melendez v. City of Philadelphia, 320 Pa.Superior Ct. 59, 64, 466 A.2d 1060, 1063 (1988); Chap man v. City of Philadelphia, 290 Pa.Superior Ct. 281, 283, 434 A.2d 753, 754 (1981); Berlin v. Drexel University, supra at 328. See also Miller v. United States, 561 F.Supp. 1129, 1134 (E.D.Pa.1983), aff'd sub nom. Appeal of Miller, 729 F.2d 1448 (3d Cir.1984).

In Berlin, the court held that a special relationship exists when “a member of the public has been exposed to a special danger ... and the authorities have undertaken the responsibility to provide adequate protection.” Berlin v. Drexel University, supra at 328. See also Miller v. United States, supra at 1134; Chapman v. City of Philadelphia, supra 290 Pa.Super. at 283, 434 A.2d at 754. In Melendez v. City of Philadelphia, supra, this Court further defined a special relationship to include the following three elements: (1) police awareness of the individual’s particular situation; (2) knowledge by the police of the potential for the particular harm suffered; and (3) a voluntary assumption by the police of the protection of the individual from the precise harm. Id. 320 Pa.Super. at 64, 466 A.2d at 1063-64. Examples of such a special relationship include that of the police to a prosecution witness, a police informant, and an undercover agent. Berlin v. Drexel University, supra at 328.

Courts in other jurisdictions have ruled on the issue presented here, whether the police have a duty to obtain a tortfeasor’s identification for an injured party, and have analyzed the municipality’s duty under the rubric of the special relationship test. In Williams v. State, 34 Cal.3d 18, 664 P.2d 137, 192 Cal.Rptr. 233 (1983), the plaintiff, a passenger in an automobile, was injured when a heated brake drum from a passing truck was propelled through the car windshield. Several police officers arrived at the scene of the accident and assumed the responsibility of investigating it. The plaintiff alleged that the police officers’ failure to identify witnesses and pursue the truck owner prevented her from instituting a civil action for damages against the party who caused her injuries. Id. at 21-22, 664 P.2d at 138, 192 Cal.Rptr. at 234. In determining whether the police owed plaintiff a duty to investigate her accident, the California Supreme Court noted that, although highway patrol members do not have a special relationship to the motoring public in general, the existence of certain factors would impose a duty on the patrol officers to exercise the standard of care to which an ordinary person is held. The court stated that, “when the state, through its agents, voluntarily assumes a protective duty towards a certain member of the public and undertakes action on behalf of that member, thereby inducing reliance, it is held to the same standard of care as a private person....” Id. at 24, 664 P.2d at 140, 192 Cal.Rptr. at 236. In Williams, however, the plaintiff had alleged only nonfeasance, or the failure to the police to perform certain investigatory functions. The court noted that she did not allege that the officers assured her that they would investigate, that they induced her to rely on them, that they prevented her from conducting her own investigation, or that a police investigation would have identified the responsible party. Id. at 27 n. 8, 664 P.2d at 142 n. 8, 192 Cal.Rptr. at 238 n. 8. Accordingly, the court concluded that the plaintiff had failed to state a cause of action against the state because she did not establish that it owed her a duty of care. Id. at 27-28, 664 P.2d at 143, 192 Cal.Rptr. at 239.

In Clemente v. State, 40 Cal.3d 202, 707 P.2d 818, 219 Cal.Rptr. 445 (1985), the California Supreme Court applied the Williams analysis to a fact pattern similar to that in the instant case. In Clemente the plaintiff was struck by a motorcycle as he was crossing the street at an intersection. A state highway patrol officer arrived at the scene just as a group of bystanders had begun to assist the plaintiff. The motorcyclist approached the officer and told him that he had struck the plaintiff. The officer directed the motorcyclist not to leave the scene but to await the arrival of the Los Angeles Police Department. The officer then left the scene without obtaining the motorcyclist’s name or license number, and his identity was never discovered. Id. at 209, 707 P.2d at 821, 219 Cal.Rptr. at 448. Relying on its prior decision in Williams, the court recalled that there it had recognized that a duty of care may arise when a patrol officer’s conduct results in a plaintiff’s detrimental reliance on the officer for protection. Id. at 212, 707 P.2d at 823, 219 Cal.Rptr. at 450. The Clemente court noted that the officer had induced the plaintiff's reliance, and that the officer’s conduct had prevented bystanders from obtaining the driver’s identification for the plaintiff. Thus, the court concluded that the plaintiff could properly state a cause of action against the State of California and its highway patrol officer. Id. at 213, 707 P.2d at 824, 219 Cal.Rptr. at 451.

Three other jurisdictions have addressed whether a municipality may be held liable for its police officers’ negligent failure to obtain a tortfeasor’s identification. In each case, the court began its analysis by determining whether a special relationship obtained between the police and the plaintiff and concluded that such a relationship was absent. In Warren v. District of Columbia, 444 A.2d 1 (D.C.1981), the plaintiff was assaulted by occupants of a car that stopped behind him at a traffic light. A police officer arrived at the scene and directed the plaintiffs companion to cease his efforts to obtain the assailants’ identification in order to break up the fight. The officer left the scene without obtaining identification. Id. at 3. The plaintiff sued the District of Columbia and the police officer for failing to obtain the assailants’ identification. The court held that any duty that the officer had to obtain the identification was related to his duty to the public and that there was no additional element that created a special relationship between the plaintiff and the police officer. Id. at 3-4. Warren is distinguishable from the instant case, however, because there the police officer prevented the plaintiff from obtaining his assailants’ identification in an attempt to halt the melee. The officer did not, as here, promise the plaintiff that he would obtain the identification. Thus, all of the elements necessary to show an undertaking were not present.

In Jackson v. Heymann, 126 N.J.Super. 281, 314 A.2d 82 (Law Div.1973) the plaintiff sued the City because a police investigation failed to discover the identity of a hit-and-run driver who had injured her child. Id. at 282-83, 314 A.2d at 83. The New Jersey Superior Court held that the municipality did not owe the plaintiff a duty to conduct a motor vehicle accident investigation. Id. at 287, 314 A.2d at 85-86. Jackson, like Warren, can be distinguished from the instant case. In Jackson, the police did not know who struck the child. The police arrived after the driver had fled, and then attempted to carry out an investigation to discover the tortfeasor’s identity. Thus, the elements of dependence and reliance were missing because the police did not promise to secure nor prevent the plaintiff from obtaining the driver’s identification.

Finally, in Falco v. City of New York, 34 A.D.2d 673, 310 N.Y.S.2d 524 (1970), aff'd, 29 N.Y.2d 918, 329 N.Y.S.2d 97, 279 N.E.2d 854 (1972), the court also considered a case factually similar to the instant case and found that there was no special relationship. There, the plaintiff was injured when he was hit by a car while riding his motorcycle. While lying on the ground injured, he asked a police officer to obtain for him the name and license number of the driver. The police officer told the plaintiff that he would take care of everything. The plaintiff then observed the police officer talking with the driver, but the officer failed to obtain any identification, precluding the plaintiff from instituting suit against the driver. Id. at 674, 310 N.Y.S.2d at 525. The court concluded summarily that no relationship existed between the plaintiff and the police officer that created a duty to use care for the plaintiff’s benefit and that would impose liability on the municipality for the police officer’s negligence. Id. See also McNeil v. Town of Hempstead, 60 Misc.2d 797, 303 N.Y.S.2d 803 (Sup.Ct.1969), aff'd, 34 A.D.2d 958, 313 N.Y.S.2d 652 (1970). The New York Court of Appeals, then, would hold that police officers do not have a duty of care under facts similar to those in the instant case. I would decline to follow that case.

After considering the caselaw of this Commonwealth that would impose a duty to use reasonable care on one who undertakes to perform a service to prevent harm to another who relies on that performance, caselaw defining the elements of a special relationship in this Commonwealth, and the conclusion of the California Supreme Court that the elements of an undertaking in combination with facts showing that a police officer prevented other aid also create the special relationship necessary to impose a duty on a police officer towards an individual citizen, I believe that there is evidence in the record here that would support the conclusion that the police officers owed appellant such a duty. In Clemente v. State, supra, the court recounted that the plaintiff was in a position of dependence on the patrol officer, that the driver approached the officer and admitted that he was at fault and that the officer’s conduct prevented the plaintiff from obtaining the driver’s identification. The court held that a duty of care to the plaintiff could be predicated on this conduct. Here, there is evidence in the record that the driver approached the police and stated that he was at fault, that the police prevented the plaintiff from obtaining the driver’s identification, and that the plaintiff therefore became dependent on and relied on the police officer.

I emphasize that I would not create a new duty on the part of the police to obtain a tortfeasor’s identification for the benefit of an accident victim. Instead, I would hold only that if a police officer prevents a victim from obtaining a tortfeasor’s identification and assures the victim that he or she will obtain it, and if the tortfeasor is available and known to the police, the good Samaritan rule of § 323 of the Restatement will apply to a police officer as though he or she were a private citizen to impose a duty to exercise reasonable care in that undertaking.

In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory.

Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981) (quoting Riesberg v. Pittsburgh & Lake Erie Railroad, 407 Pa. 434, 180 A.2d 575 (1962). See also McCann v. Amy Joy Donut Shops, 325 Pa.Superior Ct. 340, 342, 472 A.2d 1149, 1150 (1984).

Here, the only instruction given to the jury on duty was the following: “[i]t is the duty of every person to use ordinary care, not only for his own safety and the protection of his property, but also to avoid injury to others.” N.T. October 28, 1982 at 3.52. Because I would conclude that the City owed appellant a duty only if its actions contained all of the elements of an undertaking, I would also conclude that the jury instruction was erroneous. Because the jury may have reached its verdict based on the general duty instruction, I would remand for a new trial. At the new trial, I would direct that the jury be instructed that the police officers undertook a duty to exercise reasonable care to obtain the driver’s identification if it finds that (1) the officers began to obtain the driver’s identification, (2) the officers induced appellant’s reliance, and (3) the officers prevented appellant, or someone acting in her behalf, from obtaining the identification.

The City also contends that the lower court erred in failing to grant its motion for judgment n.o.v. because the police officers did not cause appellant’s physical injuries. The City relies on Stupka v. Peoples Cab Co., supra (JONES, C.J., concurring), for the proposition that there was no causal relationship between the police officer’s breach of duty and appellant’s injuries, and thus there can be no recovery. I disagree. The Stupka majority did not reach the causation issue because it concluded that the cabdriver there did not owe the plaintiff a duty of care. Stupka v. People’s Cab Co., supra 437 Pa. at 512-13, 264 A.2d at 374. Thus, Stupka has no bearing on the disposition of the causation issue.

Furthermore, appellant does not contend that the City caused her physical injuries, but that it was the proximate cause of her financial loss. I agree. Appellant’s claim is similar to a client’s malpractice suit against his or her attorney for the loss of a favorable judgment. In such cases,

[t]he orthodox view, and indeed virtually the universal one, is that when a plaintiff alleges that the defendant lawyer negligently provided services to him or her as a plaintiff in the underlying action, he or she must establish ... that he or she would have recovered a judgment in the underlying action in order to be awarded damages in the malpractice action, which are measured by the lost judgment.

Duke & Co. v. Anderson, 275 Pa.Superior Ct. 65, 71, 418 A.2d 613, 616 (1980) (quoting Williams v. Bashman, 457 F.Supp. 322, 326 (E.D.Pa.1978)). Here, the lower court instructed the jury that it had to resolve whether appellant could have recovered against the driver in order to recover from the City. N.T. October 28, 1982 at 3.53. Thus, I would conclude that the court did not err in refusing to grant the City’s motion for judgment n.o.v. on this ground.

For the foregoing reasons, I would affirm the lower court’s order granting the City’s motion for a new trial and denying its motion for judgment n.o.v. and remand for a new trial. Upon remand, I would direct that the jury be charged in accordance with this opinion.

      . We note that Caldwell told the police that she would not participate in the criminal prosecution of the driver. The Philadelphia Police Department eventually obtained considerable information surrounding this accident. Information provided by witnesses to the accident enabled police investigators to reconstruct all but one of the numbers of the license plate of the car which struck plaintiff. Police were able to obtain a list of the names and addresses of the owners of each possible license plate number in the state of Pennsylvania belonging to the car that hit plaintiff. Several of the names and addresses were of individuals not likely to be in the area of the City of Philadelphia when the accident occurred. This information may have aided Caldwell in obtaining the identity of the individual who hit her had she so desired.

      . The City frames the issue on appeal as follows:
      Having correctly concluded that a disappointed would-be civil litigant does not have a cause of action against a municipality for damages in the nature of a “lost” verdict based on the failure of its police officers to act as her civil accident investigators and provide her with a defendant, the lower court should have granted judgment n.o.v. in the City’s favor rather than merely awarding a new trial.
      We note that the trial court, sitting en banc to hear the post-trial motions, stated in its opinion that "the trial court should have instructed the jury that no legal duty was owed by the City to the plaintiff to insure the success of its police investigations.” (Lower Court Opinion at p. 12, Hill, J. dissenting).
      We disagree, therefore, with the lower court in its order granting a new trial. The assertion that no legal duty was owed, in our opinion, leads us to conclude that the City could not be liable. Accordingly, we believe that the court erred in allowing this case to go to the jury in the first instance and later in awarding a new trial. See Morena v. South Hills Health Systems, 501 Pa. 634, 462 A.2d 680 (1983). (Before sending a case to the jury, the trial court must determine whether or not plaintiff has met his burden of establishing the elements necessary to maintain the cause of action).

      . 75 Pa.C.S.A. § 3744 (Duty to give information and render aid) states in pertinent part:
      (a) General rules. — The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle or other property which is driven or attended by any person shall give his name, address and the registration number of the vehicle he is driving, and shall upon request exhibit his driver’s license and proof of insurance to any person injured in the accident or to the driver or occupant of or person attending any vehicle or other property damaged in the accident and shall give the information and upon request exhibit the license and proof of insurance to any police officer at the scene of the accident or who is investigating the accident and shall render to any person injured in the accident reasonable assistance, including the making of arrangements for the carrying of the injured person to a physician, surgeon or hospital for medical or surgical treatment if it is apparent that treatment is necessary or if requested by the injured person, (b) Report of accident to police. — In the event that none of the persons specified are in condition to receive the information to which they otherwise would be entitled under subsection (a) and no police officer is present, the driver of any vehicle involved in the accident after fulfilling all other requirements of section 3742 (relating to accidents involving death or personal injury) and subsection (a), in so far as possible on his part to be performed, shall forthwith report the accident to the nearest office of a duly authorized police department and submit to the police department the information specified in subsection (a).
      75 Pa.C.S.A. § 3744(a) and (b).

      . This is the City’s paraphrase of the lower court’s conclusions that (1) there was no special relationship between the police officers and appellant, Lower Court Opinion at 9, 11, 12; and (2) the City’s acts or failure to act were not the proximate cause of appellant's injuries and, therefore, appellant could not recover from the City, id. at 14. Were the lower court’s conclusions correct, I would agree with the City that the court should have granted its motion for judgment n.o.v. rather than its motion for a new trial.

      . The City argues that the police should not be required to "choose between jostling a seriously injured individual ... and protecting any potential interest in civil litigation she might decide to pursue after her recovery.” Brief for the City of Philadelphia at 13. This concern is not relevant to whether the police had undertaken a duty, but whether they exercised reasonable care in carrying out that duty. Here, the officers who placed appellant in the police wagon and who were approached by the driver could have refrained from assuring Wiley that they would take care of securing the driver’s identification. Alternatively, they could have allowed Wiley to get the necessary information, or directed one of the other officers to do so.


author: OLSZEWSKI, Judge:

text:
    517 A.2d 1311
    COMMONWEALTH of Pennsylvania v. Howard JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1986.
    Filed Oct. 14, 1986.
    Reargument Denied Dec. 15, 1986.

      Marilyn C. Zilli, Assistant Public Defender, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com.
    Before OLSZEWSKI, CERCONE, and HESTER, JJ.
   OLSZEWSKI, Judge:

Appellant, Howard Johnson, challenges the denial of his petition for modification of sentence. On May 2, 1984, appellant was sentenced to five to ten years’ imprisonment following his jury conviction on five counts of possession with intent to deliver involving heroin and preludin, and one count of possession of marijuana. Appellant argues that: (1) the charges were improperly joined for trial; (2) the trial court abused its discretion by refusing to allow voir dire as to whether any of the jurors or members of their families had ever been the victim of a crime; (3) evidence was improperly admitted at trial; (4) the trial court failed to utilize proper sentencing procedures; (5) trial counsel was ineffective; and (6) the evidence was insufficient to prove intent to deliver. We find appellant’s arguments to be without merit, and affirm the judgment of sentence of the Dauphin County Court of Common Pleas.

The charges against appellant resulted when two searches of his residence revealed various controlled substances. The searches took place pursuant to warrant on November 11, 1982, and February 16, 1983. The warrants were issued on the basis of controlled buys. The November 11 search revealed heroin, cocaine, marijuana, and drug paraphernalia. On February 16, heroin, preludin and a large amount of cash, including marked bills from the preceding controlled buy, were found. The charges were joined for trial by May 12, 1983. When the case was called for trial on September 21, 1983, the deputy district attorney moved to sever an assault charge from the drug charges. At that time, appellant’s counsel made an oral motion to sever the charges arising out of the two searches. That motion was denied.

We find no impropriety in the trial court’s denial of appellant’s motion to sever. The joinder of the informations was permissible under Pennsylvania Rule of Criminal Procedure 1127 and was compelled under Section 110 of the Crimes Code. See Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). The Rules of Criminal Procedure provide that:

Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.

Pa.R.Crim.P. 1127(A)(1).

(E)vidence of other crimes is admissible where it is relevant to prove (1) motive, (2) intent, (3) a common scheme or plan involving the commission of two or more crimes so closely related that proof of one tends to prove the other, (4) the identity of the accused as the perpetrator, or (5) the absence of mistake or accident.

Commonwealth v. Travaglia, 502 Pa. 474, 492, 467 A.2d 288, 297 (1983). One of the major elements of the charges against appellant was intent. Appellant was charged with possession with intent to sell and evidence of either crime would be admissible at a separate trial as tending to prove that intent. Additionally, the crimes are closely related in time and nature, and reflect a common scheme. There is, however, no danger of jury confusion because of the factual simplicity of the criminal episodes. The trial court did not abuse its discretion in refusing to sever the charges.

The trial court opinion contains an able analysis of our Supreme Court’s decision in Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983). See lower court opinion at 4-6. The Hude Court “held that the compulsory joinder rule set forth (by the Court) and Section 110 of the Crimes Code demands a single trial where the alleged transactions can properly be characterized as a ‘single criminal episode.’ ” Lower court opinion at 5; see Hude, 500 Pa. at 487-88, 458 A.2d at 180. To determine whether acts are part of a single criminal episode the Court must consider the temporal sequence of events and the logical relationship between the acts. Hude, 500 Pa. at 487-89, 458 A.2d at 180. The incidents in the instant case were temporally related. They occurred barely three months apart. They are also logically related. The offenses present “a substantial duplication of factual, and ... legal issues....” Hude, 500 Pa. at 491, 458 A.2d at 181 (quoting Comment, Commonwealth v. Campana and Section 110 of the Crimes Code: Fraternal Twins, 35 U. of Pitts.L.Rev. 275, 286-287 (1973)). Since the acts were part of a single criminal episode, joinder was compulsory and severance was properly denied.

Appellant’s second argument challenges the trial court’s refusal on voir dire of the question whether any prospective juror or member of his family had ever been the victim of a crime. “The scope of voir dire is in the sound discretion of the trial judge.” Commonwealth v. Colson, 507 Pa. 440, 461, 490 A.2d 811, 821 (1985) (citations omitted). Voir dire examination serves to determine whether a juror has formed a fixed opinion or is otherwise subject to disqualification. Commonwealth v. Fulton, 271 Pa.Super. 430, 413 A.2d 742 (1979). We have, in other cases, granted a new trial where a trial court abused its discretion and frustrated the purposes of voir dire. See id. The Fulton Court granted a new trial where the defendant was charged with rape and attempted murder, and the trial court refused to permit questioning as to whether any juror or member of his family had been involved with a rape or a proceeding involving a sexual crime. Id. In Fulton, this Court stated that:

a natural adjunct to the accused’s right to probe for prejudice is the right to inquire into past victimization among the jurors of crimes similar to those with which the defendant stands accused. Thus, a defendant charged with robbery has the right to ask the veniremen whether they or any member of their families have ever been the victim of robbery. U.S. v. Poole, 450 F.2d 1082 (3d Cir.1971). Similarly, the accused, on trial for aggravated assault, may ask the potential jurors if any have been the victim of a crime in the nature of an assault.

Fulton, 271 Pa.Superior Ct. at 433, 413 A.2d at 743. This was not the type of probative question that appellant sought to ask.

In the instant case, appellant was charged with various drug offenses. The trial court ruled that a question addressing victimization of any crime was too broad, and instructed appellant’s counsel that a narrower question as to involvement with a drug-related crime would be permitted. Thus, the trial court not only acted within the bounds of its discretion, but also went a step further in ensuring appellant a fair and impartial jury by suggesting a limited and more appropriate question for voir dire. See Commonwealth v. Davis, 282 Pa.Super. 51, 422 A.2d 671 (1980).

Appellant next makes three arguments that certain evidence was improperly admitted at trial. Appellant first claims that physical evidence consisting of drugs and money seized at his residence should have been suppressed at trial. Appellant next protests the admission of opinion evidence by two police officers. Finally, appellant argues that his right to a fair trial was denied by admission of evidence of other crimes.

Immediately prior to voir dire, appellant’s counsel brought to the attention of the trial court what has been termed “a pro se motion to suppress” submitted by appellant. There were several problems with this motion: on its face it appears to deal with discovery, not suppression; it was submitted to the court by appellant pro se at a time when he was represented by counsel; and it was not timely. The trial court found the motion to be untimely and denied it. Under the facts of this case it was not an abuse of discretion for the trial court to deny appellant’s motion as it did. Appellant was at this time and for nearly a month previous to commencement of trial represented by counsel, although different counsel than that he employed at arraignment. A careful review of the briefs and records in this case reveals that the motion has no merit and that no merit was apparent at that time. See Commonwealth v. Brown, 250 Pa.Super. 504, 378 A.2d 1262 (1977).

“Appellant argues that suppression should have been granted because the Commonwealth failed to reveal the informant’s identity ..., because it failed to specify the type of search to which the informant was subjected prior to the alleged controlled buy and because the informant’s reliability was not sufficiently detailed.” Brief for appellant, p. 29. We disagree. There was abundant probable cause for issuance of the search warrants in this case. A controlled buy of heroin was made from appellant within 48 hours of the execution of the search on November 11, 1982. Appellant was observed to leave his residence and meet with the informant who immediately delivered the heroin to the surveillance officer. Another controlled buy preceded the February 16, 1983, search. The serial numbers of bills used in making the purchase were recorded on the face of that search warrant. There was no error in failing to suppress the fruits of these searches which were properly admitted at trial.

Appellant’s second evidentiary argument also fails for lack of merit. The trial court did not err in permitting two police officers who had qualified as expert witnesses to give opinion evidence that appellant possessed the drugs with intent to deliver. Opinion evidence is admissible when the subject matter is distinctly related to a science, skill, or occupation beyond the knowledge or experience of the average layman. In these circumstances, the opinion of the witnesses possessing such knowledge is permitted as an aid to the jury. Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976). This is true even when the expert expresses an opinion on the ultimate issue before the jury. Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978). When opinion evidence is properly admitted, as in the instant case, it is then for the jury to determine its credibility. The jury is free to reject it, accept it, or give it some weight between the two. At the close of appellant’s trial, the court correctly instructed the jury to that effect. The opinion evidence, thus properly admitted, offers no basis for overturning appellant’s conviction.

Appellant’s final argument under this issue is that evidence of other crimes was wrongfully admitted during the course of his trial. The “other crimes” appellant complains of are the controlled buys which led to issuance of the search warrants and the joinder of charges arising from the separate searches. We addressed the issue of admissibility of evidence of other crimes in our discussion of the joinder of charges. See supra, pp. 1313-14. Admission of evidence concerning the various charges against appellant was clearly proper. Evidence of the controlled buys was admissible to prove intent. See e.g., Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983).

Appellant’s fourth allegation of error is that the trial court improperly denied his motion for modification of sentence. Appellant’s motion to modify sentence was timely filed by his trial counsel. The motion alleged that appellant had not been convicted of a crime in twelve years, had been cooperative throughout the instant proceedings, and was a drug addict willing to seek help to end his drug dependency. These statements were offered without proof and, in any case, do not demand a modification of appellant’s sentence. Sentencing is within the discretion of the trial judge, whose decision will not be reversed absent an abuse of discretion. Commonwealth v. Stafford, 313 Pa.Super. 231, 459 A.2d 824 (1983). The lower court acted within its discretion in denying appellant’s motion to modify sentence.

Appellant argues that his conviction should be reversed or his sentence modified on three allegations of ineffective assistance of counsel. Appellant claims that trial counsel was ineffective in: (1) failing to properly challenge appellant’s sentence; (2) failing to file a motion to suppress evidence discovered in the searches of appellant’s residence; and (3) eliciting testimony concerning a drug-related death at appellant’s residence. In raising the issue of ineffectiveness of counsel, the burden is on appellant “to show (1) that counsel’s performance was deficient, and (2) that the deficiency prejudiced the defense so as to deprive the (appellant) of a fair trial.” Commonwealth v. Bryant, 349 Pa.Super. 358, 362, 503 A.2d 39, 41 (1986) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)).

In challenging counsel’s performance in the first prong of this test, appellant must show that the underlying issue has arguable merit. See, e.g., Commonwealth v. Garvin, 335 Pa.Super. 560, 564-65, 485 A.2d 36, 38 (1984). Once this has been shown, a determination must be made as to “whether the particular course of action chosen had some reasonable basis which would effectuate the best interest of the client.” See, e.g., id. (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)). Our Courts have consistently interpreted this to mean that counsel’s assistance is constitutionally effective if the course of action counsel pursued had “some reasonable basis designed to effectuate his client’s interests.” E.g., Bryant, 349 Pa.Superior Ct. at 363, 503 A.2d at 42. It is only after counsel’s performance has been shown to be deficient that we reach the second prong of the test in which appellant must show that counsel’s deficiency caused him actual prejudice thereby depriving him of a fair trial. Id.

Initially, appellant alleges that trial counsel was ineffective for failing to request a pre-sentence investigation and for failing to raise five separate points of error in his motion for modification of sentence. We do not agree. The failure to request a pre-sentence report is not per se ineffective. Commonwealth v. Broadwater, 330 Pa.Super. 234, 479 A.2d 526 (1984). Ineffectiveness will only be found when the contents of the report would have caused the sentencing judge to impose a lesser sentence. Id., 330 Pa.Superior Ct. at 246-48, 479 A.2d at 533. Appellant has shown neither of these requirements of ineffectiveness. Having failed to show that there was any arguable merit to the underlying issue, appellant has not met the burden of proving that his trial counsel's performance was deficient in this respect.

A thorough review of the record reveals that the remaining points of error that appellant would have had trial counsel raise in his motion for modification of sentence lacked arguable merit. Under these circumstances, it was not ineffective to fail to raise these issues. See Garvin, 335 Pa.Superior Ct. at 564-65, 485 A.2d at 38. The sentencing transcript reveals a lengthy dialogue between the sentencing court and counsel for appellant. Counsel informed the court of mitigating circumstances and stressed the relative antiquity of appellant’s prior convictions. The court stated that appellant’s prior record did not appear to be of great significance.

Appellant’s sentence of five to ten years’ incarceration was well below the potential maximum sentence of fifteen years on each count. In fact, his sentence falls into the minimum range under the Sentencing Guidelines. As we discussed earlier, sentencing is vested in the sound discretion of the trial judge. See, supra, p. 1316. The lower court acted within its discretion in denying appellant’s motion to modify sentence. Id. Nothing raised in this appeal changes this. Appellant’s allegations of ineffective assistance of counsel for failing to properly challenge his sentence are fatally flawed. Appellant has not shown that the underlying issues have arguable merit. Since the sentence was well within the lower court’s discretion, he also fails to show any prejudice from counsel’s alleged deficiency.

Appellant’s second challenge to counsel’s effectiveness is that counsel failed to file a written motion to suppress evidence. Since we have already determined that the evidence was properly admitted, we cannot find that counsel was ineffective on this ground. There is no merit to appellant’s underlying suppression claim. “Counsel will not be deemed ineffective for failing to assert a baseless claim.” Commonwealth v. Lyons, 346 Pa.Super. 585, 589-90, 500 A.2d 102, 105 (1985).

Appellant’s final allegation of ineffectiveness goes to trial counsel’s elicitation of testimony concerning a drug-related death at appellant’s residence. Counsel was clearly not ineffective in pursuing this line of questioning because it had an obvious, reasonable, and articulated basis to effectuating appellant’s interest. The record reveals that trial counsel used this testimony to stress the fact that other people had access to appellant’s residence, and to promote the argument that appellant ought not to be punished for possession of drugs belonging to those other people.

Finally, appellant argues that the evidence was insufficient to prove intent to deliver. A careful review of the record in this case reveals ample evidence which would, and in this case did, allow a jury to determine that appellant was guilty of possession with intent to deliver.

Judgment of sentence affirmed.

      . See Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973).

      . Sec. 110. When prosecution barred by former prosecution for different offense.
      Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
      (1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
      (i) any offense of which the defendant could have been convicted on the first prosecution;
      (ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense; ....
      18 Pa.Cons.Stat.Ann.Sec. 110 (Purdon 1983).

      . As the trial court observed:

        Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982), relied on in appellant’s brief, both sanctions and advises the use of expert testimony on the very issue facing the jury in this case. The police had seized eleven glassine bags containing a total of 15.3 grams of heroin. The Court noted: "Absent additional expert opinion ... the quantity of heroin seized in this case, despite the manner of its packaging, does not clearly support an inference of possession with intent to deliver.” Bagley, 296 Pa.Superior Ct. at 51, 442 A.2d at 291. The Bagley opinion goes on to cite numerous cases in which expert opinion testimony was allowed on precisely the issue of possession with intent to deliver.
      Lower Court Opinion at 11.

      . The record reveals a relatively simple and direct trial strategy: infuse in the minds of the jury reasonable doubts as to who actually possessed and used the drugs. The testimony revealed that Kevin Johnson died of drug overdose after the execution of both warrants and therefore could have been the explanation for the presence of drugs. That the cause of death was by a drug overdose further indicates that Kevin was using drugs and that the amount of drugs found could have been consistent with personal consumption. The jury obviously rejected this theory and its decision cannot now be challenged under the guise of ineffectiveness of counsel.