author: WIEAND, Judge:

text:
    496 A.2d 1210
    COMMONWEALTH of Pennsylvania, Appellant, v. David L. WOODELL, Jr., Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Arthur P. SMITH, III, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 10, 1985.
    Filed Aug. 9, 1985.

      Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.
    Joseph E. Yogrin, III, Pittsburgh, for appellee (at No. 493).
    Raymond J. Seals, Pittsburgh, for appellee (at No. 515).
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Arthur P. Smith, III, was charged with an attempt to commit the theft of an automobile; and Daniel L. Woodell, Jr., was charged with firearms and prohibited weapons offenses. Immediately prior to trial, the court heard omnibus pre-trial motions which had been filed by both defendants. At that pre-trial hearing, during cross-examination of police officers, it became apparent that a “prosecution report” had been prepared by police and contained discoverable information not previously disclosed by the Commonwealth. The court found the failure to disclose the information in the report to be a violation of Pa.R.Crim.P. 305 and, in response to an oral defense motion, dismissed the several prosecutions with prejudice. The Commonwealth appealed. We conclude that the trial court’s decision was an abuse of discretion and, therefore, reverse.

The information not disclosed by the District Attorney included (1) names and addresses of Commonwealth witnesses; (2) a list of the events and the times when they had occurred on the date of arrest; and (3) a personal property inventory which included a “door opener” as an item found in Woodell’s car.

This information, it will be observed, was not exculpatory. “Exculpatory evidence” has been defined as “evidence which extrinsically tends to establish defendant’s innocence of the crimes charged, as differentiated from that which, although favorable, is merely collateral or impeaching.” Commonwealth v. Gee, 467 Pa. 123, 131, 354 A.2d 875, 878 (1976), quoting People v. Bottom, 76 Misc.2d 525, 351 N.Y.S.2d 328, 334-335 (1974). It may have been helpful for the defense in this case to know about the information tardily disclosed by the Commonwealth, but that information did not establish defendants’ innocence. Similarly, most of the information was not subject to mandatory disclosure under Pa.R.Crim.P. 305 B. Neither a list of the names and addresses of witnesses nor a chronological list of events and times of occurrence is subject to mandatory discovery under the Supreme Court Rule.

The second observation to be made is that the defendants did not make a formal, specific demand for discovery. There was only an informal, general request. “[WJhere no request is made or where only a general request is made, the Commonwealth has the burden of providing the defense with evidence that is material____ However, ‘[t]he mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial, does not establish “materiality” in the constitutional sense.’ ” Commonwealth v. Rose, 483 Pa. 382, 396, 396 A.2d 1221, 1228 (1979). In the instant case, the trial court found that undisclosed witnesses “might very well be favorable to [the] defense” and that the sequence of events on the day of arrest “could be vital to the defense.” The inventory reference to the “door opener” found in Woodell’s car, the court determined, “could be exculpatory” because of the Commonwealth’s contention that a coat hanger had been used to open the door of the car which had been the subject of the attempted theft.

Next, it is significant that the presence of the “door opener” in the Woodell car was not known to the District Attorney prior to the pre-trial hearing. Its existence was uncovered for the first time by defense counsel’s cross-examination of an investigating police officer. The courts have consistently held that a District Attorney cannot disclose information which he does not possess and of which he is unaware, even if it is available to the police. Commonwealth v. Bonacurso, 500 Pa. 247, 251 n. 3, 455 A.2d 1175, 1177 n. 3, cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983); Commonwealth v. Starks, 304 Pa.Super. 527, 529-530, 450 A.2d 1363, 1364 (1982).

Even if we assume that the Commonwealth was under a duty to disclose the list of events prepared by the police, the identity of witnesses, and the finding of a “door opener” in Woodell’s car, the simple fact is that the defense did become aware of all of this information prior to trial. If the defense was prejudiced by tardy disclosure — the trial court did not find prejudice — was it appropriate to dismiss the charges? We think not. A more appropriate sanction would have been a short continuance to permit the defense to assimilate this new information. The fact that delay in commencing trial would have inconvenienced the trial court did not alone establish good reason for dismissing the prosecution.

The remedies for failing to provide discovery as required by Pa.R.Crim.P. 305 are enumerated in Subsection E as follows:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

Dismissal of the prosecution is not a remedy which has been specifically recommended. It is conceivable, of course, that a violation may be so egregious as to recommend an order dismissing all charges. Such an order, however, was not warranted under the circumstances present in this case. A continuance, if necessary and requested, would have been more appropriate. See and compare: Commonwealth v. Jacobs, 501 Pa. 139, 460 A.2d 728 (1983) (continuance granted where it was ascertained during trial that Commonwealth had failed to disclose identity of eyewitness); Commonwealth v. Giles, 500 Pa. 413, 456 A.2d 1356 (1983) (police report containing brief details of date, time, and location of incident and names of complaining witness and officer at scene was not exculpatory, and nondisclosure did not require new trial); Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981) (nondisclosure of eyewitness’ statement until time of trial did not deprive defendant of fair trial where no prejudice shown); Commonwealth v. Starks, supra (Commonwealth’s failure to provide tape in accordance with ordered discovery did not require new trial where defendant allowed time to prepare further); Commonwealth v. Keeler, 302 Pa.Super. 324, 448 A.2d 1064 (1982) (court properly provided defendant with opportunity to suppress inculpatory statement disclosed for first time at trial). See also: Commonwealth v. Smith, 490 Pa. 329, 416 A.2d 494 (1980) (new trial not required when Commonwealth failed to disclose witnesses until mid-trial where defendant given time to prepare and no prejudice shown).

Under all the circumstances surrounding the Commonwealth’s tardiness in disclosing information in this case, we are constrained to conclude that dismissal of the prosecution was an inappropriate penalty. The tardiness was not so egregious and the appellee-defendant was not so prejudiced that the court was required to dismiss the charges in order to protect the right of the defendant to a fair trial.

Reversed and remanded for further proceedings. Jurisdiction is not retained.


source: Caselaw Access Project

license: Public Domain

text:
    496 A.2d 1213
    COMMONWEALTH of Pennsylvania v. Gregory WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1985.
    Filed Aug. 9, 1985.

      William R. Hare, Assistant Public Defender, Beaver, for appellant.
    Edward J. Tocci, District Attorney, Beaver, for Commonwealth, appellee.

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

Gregory Williams was tried by jury and was found guilty of rape, aggravated assault, and making terroristic threats in connection with a beating inflicted upon his former girl friend on November 29, 1982, in Aliquippa, Beaver County. On direct appeal from consecutive sentences imposed for rape and aggravated assault, Williams complains of evidentiary rulings made by the trial court and ineffective assistance allegedly rendered by counsel. He also contends that his conviction for aggravated assault merged for sentencing purposes in the conviction for rape. We find neither trial nor sentencing error, but, because there is arguable merit in several of Williams’ averments that trial counsel rendered ineffective assistance, we remand for an evidentiary hearing.

Williams and Jacqueline Jamison had been living together but had separated. On November 29, 1982, while Ms. Jamison was sitting in a bar in Aliquippa, Williams entered and asked her to come outside to talk to him about a money matter he wished to discuss. Jamison left the bar, and the two of them walked down the street, arguing loudly, with Williams pushing and threatening Jamison. When they entered a wooded lot at the end of the street, Williams began beating his former girl friend. He knocked her down and continued to beat her when she tried to rise. According to the Commonwealth’s evidence, Williams then drew a knife and used it to cut Jamison’s pantyhose and underwear. He also cut her legs, ankle and hand. Finally, he forced her to have sexual intercourse with him. Williams conceded that he had beaten his former girl friend but denied that he had cut her with a knife. They had resolved their dispute, he contended, and then had engaged in consensual intercourse. Thereafter, in any event, they returned to the bar, where a friend of the victim intervened. She took Jamison to a nearby house, where Jamison’s missing shoes were replaced. The police were then notified.

While the victim was at the police station, she was met by her sister, Carol Ann Kimbrough, who had been summoned. Carol Ann testified at trial to the observations which she had made regarding her sister’s condition. Despite the meager information which the witness was able to impart to the jury, defense counsel undertook extensive cross-examination. In response to questions asked by defense counsel, Carol Ann told the jury that she had disapproved of the relationship between appellant and her sister, that appellant had been in the penitentiary, and that appellant had previously shot the victim in the mouth. Then the following occurred:

Q. Okay. Did you have any knowledge that [Jacqueline] was a prostitute?
A. Vaguely. I couldn’t put my finger on it. I questioned her about it.
Q. Did she ever admit this to you?
A. No, she did not.
Q. Did you ever personally file charges against Gregory Williams?
A. I never personally filed charges against him. My father did. My 78-year-old father did, and we had a hearing down at Mr. Ayoob’s office, and Attorney Ceris was his attorney.
Q. And when was that?
A. That was—
Q. Just approximately?
A. —last summer. I don’t know the exact date.
Q. And, even after that, Jackie still lived with Gregory; isn’t this correct?
A. I believe so; but I didn’t have any dealings with them.
Q. Since Jackie was living with Gregory, since you heard some rumors that she was being a prostitute, did you think Gregory was the one who had her being a prostitute?
A. Yes.
MR. KELKER: May we approach the Bench, Your Hon- or?

N.T. at 186-187. There followed a lengthy sidebar conference during which defense counsel attempted to justify his cross-examination as it pertained to the victim’s possible prostitution, while the prosecuting attorney requested cautionary instructions. The trial court instructed the jury as follows:

THE COURT: Members of the jury, I am going to give you a special instruction, and this relates to the charge of rape in this case, and there is a charge against this Defendant of rape. Now, there is a statute that provides as follows: “Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this Chapter,” and that is the Chapter dealing with rape, “except evidence of the alleged victim’s past sexual conduct with the Defendant”; now, that is, where consent of the alleged victim is at issue. What that says is that evidence of sexual relationships between the alleged victim and the Defendant, himself, is admissible, all evidence that relates to their relationship — that is, the alleged victim and this Defendant — and you may hear and there may be evidence put in concerning that for you to evaluate the question of rape, because that’s where the question of consent is at issue; and I understand, in this case, that the question of consent is at issue and will be placed in issue.
Now, I will go into more detail in my general Charge; but, on the crime of rape, there are the elements, first, that the Defendant engaged in sexual intercourse with the victim and that the victim was not the spouse or the wife of the Defendant and that the intercourse was accomplished through forcible compulsion or by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution; in other words, that the intercourse was not consented to, that it was obtained by forceful compulsion or by the threat of forceful compulsion that would prevent resistance by a person of reasonable resolution. So, evidence of the relationship between the Defendant and the alleged victim is relevant in this case; but the relationship of the alleged victim with other persons other than the Defendant, any relationships she might have had — any sexual relationships in the past with other persons, has no relevance to this charge of rape with respect to this Defendant, you understand, or even her reputation that might be given as to her conduct with other persons. You can’t go into those past relationships, whatever they may be, or even the reputation of those, because, whoever the woman is, she has the right to give consent, you understand, and she cannot be forcefully compelled into an act of intercourse; and where the question of consent is raised and the victim says she did not consent and the Defendant says she did consent, you can examine the relationships between the Defendant and the victim and what the past relationships have been, but you cannot examine and are to completely disregard on the charge of rape any relationships of the alleged victim that she might have had with other men in the past.
Now, there are other charges here also against this Defendant — the charge of kidnapping, the charge of aggravated assault, the charge of assault, the charge of terroristic threats; and whether or not the particular lifestyle of the victim and the relationship of that with this Defendant would involve any evidence concerning the alleged victim and her lifestyle as might reflect on these other charges, that would be something for the Court to consider and for you to consider. But I am saying to you, on the charge of rape, that the alleged victim’s past relationships with other people other than the Defendant has no relevance in the case.
All right. You may proceed.

N.T. at 209-212. On appeal, Williams argues that “the Court sustained the objection and refused to allow this type of testimony to come in.” It should have been allowed, he argues, to show that the witness was biased against appellant because she believed appellant had made her sister, the victim, a prostitute.

We reject appellant’s argument. The trial court did not sustain an objection to the testimony of the witness that she believed appellant had made her sister a prostitute. The court also did not order stricken the testimony of the witness which the jury had heard. The trial court did instruct the jury that evidence of the victim’s sexual acts with third persons, if any, was not relevant to the charge of rape because “whoever the woman is, she has the right to give consent ... and she cannot be forcefully compelled into an act of intercourse.” The trial court’s remarks did not instruct the jury and appellant’s counsel did not request an instruction regarding the significance of the testimony to show bias on the part of the witness. Moreover, the record discloses no ruling of the trial court that would have precluded an argument that the witness’ dislike of the appellant could be weighed in determining the credibility of her testimony.

If the trial court’s instructions had the effect of precluding further evidence of the victim’s sexual contacts with third persons, we are nevertheless of the opinion that appellant should not receive a new trial. In Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985), this Court held that the Rape Shield Law may not be used to exclude relevant evidence tending to show bias on the part of a witness in order to attack the credibility of his or her testimony. Not all relevant evidence, however, is admissible. “Although logically relevant, evidence tending to show the victim’s prejudice or lack of credibility may be excluded if ‘it would so inflame the minds of the jurors that its probative value is outweighed by unfair prejudice.’ ” Id., 337 Pa.Superior Ct. at 567, 487 A.2d at 401, quoting Commonwealth v. Stewart, 304 Pa.Super. 382, 387, 450 A.2d 732, 734 (1982), quoting Commonwealth v. Strube, 274 Pa.Super. 199, 216, 418 A.2d 365, 374 (1979). Applying this balancing test to the facts of the instant case, it seems clear that evidence of the witness’ belief that appellant had led her sister, the alleged victim, into prostitution could properly be excluded. The evidence would have created a collateral issue. Its avowed purpose, to attack the credibility of a witness whose testimony had been limited both in scope and value, was negligible. The proposed additional cross-examination would have pertained to the witness’ subjective belief, a belief that was not otherwise supported by factual evidence, that the victim had engaged in acts of prostitution. The slight value of such evidence was heavily outweighed by its potential for mischief. Not only was there a danger that it would arouse unduly the passions of the jury but there was also a possibility that it would encourage a verdict based on passion instead of calm reflection. Under these circumstances, appellant was not entitled to pursue further the cross-examination of the witness regarding a belief that her sister, the victim of the alleged rape, had become a prostitute. Compare: Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159 (1985); Commonwealth v. Dear, 342 Pa.Super. 191, 492 A.2d 714 (1985).

A criminalist called by the Commonwealth to testify regarding the presence of sperm on slides delivered to him for examination, said, “I suspect that they [the slides] were from the vaginal area.” This prompted a defense objection, which the trial court sustained. In doing so, the court told the jury

this witness can’t assume or suspect something that he doesn’t really know____ This witness may testify to matters that he examined and what he found himself. The proof of where these articles came from, if this witness does not, himself, know, must come from proof from someone else.

Other evidence, however, showed that the slides had been vaginal smears. Therefore, the trial court did not err when it allowed the witness to testify that his examination of the vaginal slide had disclosed the presence of sperm. This tended to demonstrate, as the Commonwealth was required to show, that the victim of the alleged rape had engaged in sexual intercourse. In view of appellant’s admission that he and the alleged victim had, in fact, engaged in intercourse, it is difficult in any event to comprehend that the criminalist’s testimony was harmful.

According to the several versions of the events on the night of November 29, 1982, an assault had been committed on Jamison because of a money dispute between her and appellant. This assault had preceded the act of sexual intercourse. The offenses of aggravated assault and rape, therefore, were successive. Moreover, each required an element not essential to the other. Consequently, the offenses did not merge. The court could properly impose consecutive sentences of imprisonment for aggravated assault and rape. See: Commonwealth v. McCusker, 363 Pa. 450, 457-458, 70 A.2d 273, 276-277 (1950); Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104-105, 21 A.2d 920, 921 (1941); Commonwealth v. Olsen, 247 Pa.Super. 513, 520-521, 372 A.2d 1207, 1211 (1977). Accord: Commonwealth v. Padden, 335 Pa.Super. 51, 54, 483 A.2d 950, 952 (1984); Commonwealth v. Dieterly, 294 Pa.Super. 25, 29-30, 439 A.2d 732, 734 (1981); Commonwealth v. Johnson, 274 Pa.Super. 440, 445, 418 A.2d 487, 490 (1980).

Finally, appellant raises for the first time in this Court, where he is represented by new, appellate counsel, several instances of alleged ineffective assistance of trial counsel. Some of these allegations have no arguable merit; others will require an evidentiary hearing.

There is no arguable merit in the contention that trial counsel should have moved to quash the information. After a complaint had been signed, appellant could not be found. He was subsequently located at his uncle’s home in Alabama. In the meantime, an information had been issued upon court approval without a preliminary hearing. This procedure was consistent with Pa.R.Crim.P. 231(a). Because the information was properly issued, counsel was not ineffective for failing to move to quash it.

It has also been alleged that trial counsel was ineffective “for failing to interview and call certain witnesses at trial who would have impeached the victim’s credibility.” This is inadequate. Appellant has neither identified the witnesses nor disclosed the nature of their contribution to the fact finding process. Counsel will not be deemed ineffective in a vacuum. See: Commonwealth v. Anderson, 501 Pa. 275, 287, 461 A.2d 208, 214 (1983) (“appellant must allege more than a bare assertion that counsel failed to interview ‘X, Y or 71 and their testimony would have been helpful, for claims of ineffectiveness cannot be abstractly reviewed in a vacuum.”); Commonwealth v. Guest, 500 Pa. 393, 398, 456 A.2d 1345, 1348 (1983) (“appellant did not make any offer of proof as to the nature of the [uncalled witness’] testimony, nor does the record indicate in what respect the [witness’] testimony could have advanced appellant’s cause. In these circumstances, counsel’s failure to call the [witness] cannot be deemed to be ineffective assistance.”); Commonwealth v. Murray, 338 Pa.Super. 580, 585, 488 A.2d 45, 47 (1985) (“where a defendant alleges that his attorney was ineffective in failing to investigate, interview and/or call witnesses in his defense, there must be some demonstration that their testimony would be helpful.”); Commonwealth v. Whyatt, 327 Pa.Super. 491, 498, 476 A.2d 374, 377 (1984) (“there must be some showing that the witnesses not interviewed were equipped with information which might expand the admissible evidence.”). It is not enough merely to allege the existence of “certain witnesses ... who would have impeached the victim’s credibility.” “Rather, an appellant must also supply a factual basis indicating (1) the identity of the witnesses; (2) that counsel knew of the existence of the witnesses; (3) the material evidence that the witnesses would have provided; and (4) the manner in which the witnesses would have been helpful to his cause.” Commonwealth v. Torres, 329 Pa. Super. 58, 68, 477 A.2d 1350, 1355 (1984). See also: Commonwealth v. Bradford, 339 Pa.Super. 215, 223, 488 A.2d 628, 632 (1985). This appellant has failed to do. We will not remand for an evidentiary hearing merely because of a general, nonspecific averment that trial counsel should have interviewed or subpoenaed unidentified witnesses. See: Commonwealth v. Cottman, 327 Pa.Super. 453, 460, 476 A.2d 40, 43-44 (1984); Commonwealth v. Blackwell, 312 Pa.Super. 117, 122, 458 A.2d 541, 544 (1983). See also: Commonwealth v. Sherard, 483 Pa. 183, 193-194, 394 A.2d 971, 977 (1978).

Lastly, appellant argues that trial counsel was ineffective for allowing the jury to learn (1) that he had a criminal record and had served time in jail; (2) that he was known to carry a knife or a gun; (3) that he had beaten and stabbed the victim on earlier occasions; and (4) that he had shot her in the mouth in 1980. These facts were elicited during defense cross-examination of Commonwealth witnesses. The facts elicited were arguably prejudicial to the defense. See: Commonwealth v. Mitchell, 314 Pa.Super. 364, 367, 460 A.2d 1182, 1183-1184 (1983); Commonwealth v. Glasco, 298 Pa.Super. 189, 192-194, 444 A.2d 724, 726 (1982) , aff'd, 503 Pa. 124, 468 A.2d 1095 (1983). See also: Commonwealth v. Witherspoon, 481 Pa. 321, 327-328, 392 A.2d 1313, 1316-1317 (1978); Commonwealth v. Gray, 339 Pa.Super. 385, 389-390, 489 A.2d 213, 215-216 (1985). Accord: Commonwealth v. Garvin, 335 Pa.Super. 560, 566, 485 A.2d 36, 39 (1984) (en banc). This Court, however, will not hold counsel ineffective without an evidentiary hearing at which the reasons for his trial tactics may be explained. See: Commonwealth v. Grant, 329 Pa.Super. 189, 195-196, 478 A.2d 26, 30 (1984); Commonwealth v. Murray, 320 Pa.Super. 77, 79, 466 A.2d 1070, 1071 (1983); Commonwealth v. Fink, 317 Pa.Super. 171, 174, 463 A.2d 1140, 1141 (1983). Whether counsel will thereafter be deemed ineffective will, at least in the first instance, be for the trial court to determine.

For the foregoing reason, we will vacate the judgment of sentence, at least for the time being, and remand for an evidentiary hearing to determine whether there were reasons calculated to serve appellant’s best interests for eliciting these arguably prejudicial facts. If such reasons exist and the court finds counsel constitutionally effective, the sentences may be reimposed. If the court determines that trial counsel was constitutionally ineffective, a new trial must be granted.

The judgment of sentence is vacated, and the matter is remanded for an evidentiary hearing consistent with the foregoing opinion. Jurisdiction is not retained.

      . The District Attorney’s initial request was that the jury be instructed to disregard the evidence. The request was modified during sidebar discussion to seek cautionary instructions.

      . Appellant did not object to the substance of the court's cautionary instructions and did not request contrary or additional instructions.

      . 18 Pa.C.S. § 3104.


text:
    496 A.2d 1220
    Roseann MERRITT, a minor, By her guardian, the SOUTHEAST NATIONAL BANK, and Roscoe Merritt, Deceased, by his Administrators, John D. Delcollo and Sheila W. Merritt, Deceased, by her Administrator, John H. Clark, Jr., Appellants, v. CITY OF CHESTER and Estate of Roscoe Merritt, Appellees.
    Superior Court of Pennsylvania.
    Argued March 19, 1985.
    Filed Aug. 9, 1985.

      Avram Adler, Philadelphia, for appellants.
    John J. Fonash, III, Philadelphia, for appellees.
    Before WIEAND, WATKINS and GEISZ, JJ.

         The Honorable John A. Geisz, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   WIEAND, Judge:

On the evening of January 1, 1979, Roscoe Merritt drove his automobile from a parking lot on Seventh Street in the City of Chester. He did not turn right or left but continued directly across Seventh Street. When he had reached the opposite side of the street, he mounted a two to four inch curb, crossed the sidewalk, mounted a six to eight inch high retaining wall, knocked down a cyclone fence, and plunged into the Chester Creek. Merritt and his wife, who had been a passenger, were drowned. His infant daughter, also a passenger, allegedly sustained injuries to her nervous system in the nature of emotional distress but otherwise survived without physical injury. An action to recover damages as a result of Merritt’s death was commenced against the City of Chester by the administrator of his estate. Actions on behalf of the estate of the deceased wife and on behalf of the surviving daughter were commenced against the City of Chester and also against the Estate of Roscoe Merritt, deceased. The trial court granted summary judgment in favor of the City of Chester. All claimants appealed. We affirm.

Summary judgment may be entered when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 231, 464 A.2d 1313, 1316 (1983), quoting Acker v. Palena, 260 Pa.Super. 214, 218-219, 393 A.2d 1230, 1232 (1978), quoting Husak v. Berkel, Inc., 234 Pa.Super. 452, 458, 341 A.2d 174, 177 (1975).

In order to hold a defendant liable for injuries sustained by a plaintiff, it must be shown that the defendant breached a duty of obligation recognized by the law, which required him to conform to a certain standard of conduct for the protection of persons such as the plaintiff. Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980). Accord: Leoni v. Reinhard, 327 Pa. 391, 393, 194 A. 490, 491 (1937). “Each person has a primary duty to exercise care lest his action result in injuries to others.” 27 P.L.E. Negligence § 2. However, the law does not impose upon persons generally a duty to act to save others from harm; only in certain specific situations is there an affirmative duty to act. Zayc v. John Hancock Mutual Life Ins. Co., 338 Pa. 426, 432-433, 13 A.2d 34, 37-38 (1940). “When injury is suffered by one not within the scope of a duty ... such person has no right to recover, because there has been no breach of duty with regard to him____■ Liability ... depends on antecedent probability, not the mere possibility, of harmful results therefrom. The general test of liability is whether the injury could be foreseen by an ordinarily intelligent person as the natural and probable outcome of the act complained of; the law does not require the parties to go beyond this in their relations with each other.” Venzel v. Valley Camp Coal Co., 304 Pa. 583, 589-590, 156 A. 240, 242 (1931).

The trial court determined that as a matter of law the City of Chester did not have a duty to construct and maintain a cyclone fence of sufficient strength and durability to withstand impact by a vehicle moving directly at and into the fence at a rate of speed in excess of 25 mph. Its holding is supported by the decided cases. The City of Chester was obligated to maintain its streets so that they were reasonably safe. They will be deemed safe if they may be negotiated safely by all but the very reckless. However, there was no obligation on the City to construct and maintain its streets in a manner that would insure the safety of all drivers. It was not required to erect and maintain a cyclone fence on Seventh Street that was able to withstand impact with a rapidly moving vehicle that was out of control or which was recklessly or intentionally driven directly into it. Ault v. Pennsylvania Railroad Co., 381 Pa. 496, 113 A.2d 150 (1955); Yocum v. Town of Bloomsburg, 289 Pa. 512, 137 A. 668 (1927); Wasser v. Northampton County, 249 Pa. 25, 94 A. 444 (1915). “Public roads are intended for ordinary travel; if they meet the requirements which their ordinary uses demand, the authorities in charge of them have performed their duty under the law and cannot be made answerable in damages for extraordinary accidents occurring on them.” Wasser v. Northampton County, supra, 249 Pa. at 27, 94 A. at 445. See also: Martin v. State Department of Highways, 175 So.2d 441 (La.Ct.App.1965), cert. denied, 248 La. 359, 178 So.2d 653 (1965); Smith v. Sharp, 82 Idaho 420, 354 P.2d 172 (1960); Swain v. City of Nashville, 170 Tenn. 99, 92 S.W.2d 405 (1936); Watkins’ Adm’r. v. City of Catlettsburg, 243 Ky. 197, 47 S.W.2d 1032 (1932); Gerrie v. City of Port Huron, 226 Mich. 630, 198 N.W. 236 (1924); Davison v. Snohomish County, 149 Wash. 109, 270 P. 422 (1928).

This is a rule of foreseeability; it is applicable to determine the scope of the legal duty owed by a defendant, in this case a municipality. The validity of the rule has not been impaired by the more recent enactment of the Pennsylvania Comparative Negligence Law. 42 Pa.C.S. § 7102. Although there is contrary dictum in Thompson v. City of Philadelphia, 320 Pa.Super. 124, 466 A.2d 1349 (1983), that decision was reversed by the Supreme Court. See: Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). The facts in Thompson, moreover, were vastly different and readily distinguishable from the facts in the present case. In Thompson, a tractor-trailer, while the driver was attempting to extricate himself from a perilous situation caused by confusing and misleading traffic control signs, broke through the guardrail of an overpass and fell upon and killed a motorist on the roadway below. A jury found that inadequately constructed guardrails had been part of the dangerous condition created by the City of Philadelphia in violation of the duty which it owed to all members of the travelling public.

The instant case was not one in which a driver, while attempting to extricate himself from a perilous situation created by the City of Chester, inadvertently permitted his vehicle to get too close to the cyclone fence on Seventh Street. It was not a situation in which a vehicle veered from the travelled portion of a highway and sideswiped or collided with a guardrail. The deceased driver in this case had operated his vehicle directly across a well lighted city street, had driven over the curb and across the sidewalk, had mounted a low retaining wall and had crashed directly and forcefully into a cyclone fence at a speed of at least 25 miles per hour. This was so extraordinary as to be legally unforeseeable and outside the scope of the duty owed by the City. The City of Chester was not required to construct and maintain a fence that would withstand a forceful impact of this type. It was not required to maintain a fence which could not be knocked down under any circumstances. It was not required to insure that the Merritt vehicle, driven as it was, could not breach the limited safeguard which the fence provided. The City of Chester was obligated merely to maintain its streets so that they were reasonably safe for normal use.

The Order is affirmed.

      . The trial court determined that the jury’s verdict was contrary to the weight of the evidence and awarded a new trial. A panel of the Superior Court reversed. The Supreme Court disagreed with the Superior Court and reinstated the trial court’s order awarding a new trial.


text:
    496 A.2d 1222
    COMMONWEALTH of Pennsylvania, Appellant, v. Nathaniel DURAH-EL, Appellee.
    Superior Court of Pennsylvania.
    Argued April 11, 1985.
    Filed Aug. 9, 1985.

      Richard A. Hernán, Jr., District Attorney, Warren, for Commonwealth, appellant.
    Paul R. Gettleman, Zelienople, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Nathaniel Durah-El was arrested and charged with theft by unlawful taking and theft by receiving stolen property in connection with the unlawful taking of several gas grills from the Warren County Fairgrounds. A jury acquitted him of theft by unlawful taking but found him guilty of theft by receiving stolen property. After post-trial motions had been filed, trial counsel was permitted to withdraw, and present counsel was appointed. He filed supplemental motions alleging, inter alia, that appellee’s trial counsel had rendered ineffective assistance. The trial court agreed and at the conclusion of an evidentiary hearing granted a new trial. The Commonwealth appealed. We reverse.

The first reason cited by the court for awarding a new trial was trial counsel’s failure to move pre-trial to suppress an oral statement made by appellee “that he took one of the gas grills and sold it to someone.” The court found as a fact that trial counsel had known of the oral statement. The court then awarded a new trial because “[tjhere is a possibility the alleged inculpatory statement may not have been made voluntarily and knowledgeably and in our opinion this should have been explored considering all of the circumstances.” (Trial Court Opinion at p. 2) (Emphasis supplied). This was improper.

The burden of proving constitutionally ineffective assistance of counsel was on the appellee. Commonwealth v. Shore, 487 Pa. 534, 536, 410 A.2d 740, 741 (1980); Commonwealth v. LaSane, 479 Pa. 629, 634, 389 A.2d 48, 50 (1978). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Garvin, 335 Pa.Super. 560, 564, 485 A.2d 36, 38 (1984). “Before a claim of ineffectiveness can be sustained, it must be determined that, in light of all the alternatives available to counsel, the strategy actually employed was so unreasonable that no competent lawyer would have chosen it.” Commonwealth v. Dunbar, 503 Pa. 590, 596, 470 A.2d 74, 77 (1983), quoting Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 234-235 (1981), quoting Commonwealth v. Hill, 427 Pa. 614, 617, 235 A.2d 347, 349 (1967). “A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. ... The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. ... In short, inquiry into counsel’s conversations with the defendant may be critical to a proper assessment of counsel’s investigation decisions, just as it may be critical to a proper assessment of counsel’s other litigation decisions.” Commonwealth v. Litzenberger, 333 Pa.Super. 471, 478-80, 482 A.2d 968, 972-973 (1984), quoting Strickland v. Washington, 466 U.S. 668, —, 104 S.Ct. 2052, 2066-2067, 80 L.Ed.2d 674, 695-696 (1984). Counsel will not be deemed ineffective for not filing pre-trial motions just for the sake of filing them. Cf. Commonwealth v. Courts, 317 Pa.Super. 271, 280, 463 A.2d 1190, 1195 (1983). Moreover, it is not enough to show that counsel made an error of judgment; defendant must also prove that it prejudiced the outcome of the case. Commonwealth v. Garvin, supra at 566, 485 A.2d at 39.

In the instant case, appellee told his trial counsel that the police had warned him of his right to remain silent in accordance with Miranda and that he had made no statement. This is undisputed. Appellee gave counsel no reason to believe that his rights had been violated in any way by the police and, on the contrary, insisted that after he had been advised of his rights, he made no statement. Trial strategy, according to counsel, was based on what appellee had told him.

The court found counsel ineffective because (1) he had become aware of police pre-trial testimony that an inculpatory statement had been made and (2) because he made no attempt to suppress it. However, appellee failed completely in his attempt to show during the evidentiary hearing that there existed an adequate basis on which to obtain a pre-trial suppression of his oral statement. This the trial court conceded. It nevertheless found counsel ineffective and awarded a new trial because of a “possibility” that if counsel had “explored” the circumstances in a suppression hearing, it “might” have been shown that the statement was not voluntarily and knowingly made. This reasoning is speculative. The simple fact, as shown by the evidence, is that defendant did not give trial counsel any reason to believe that a petition to suppress his oral statement would have been successful. The defendant also failed to show during a post-trial, evidentiary hearing that there was any factual support for a motion to suppress. The record before us, therefore, demonstrates clearly that the trial court erred when it found trial counsel ineffective and awarded a new trial because of counsel's affirmative decision not to file a pre-trial motion to suppress.

The trial court also found counsel ineffective for failing to request a jury instruction that mere presence at the scene of the crime was not evidence of guilt. Appellee and his accomplice had driven to the Warren County Fairgrounds to pick up a display for their employer; and while there, according to the accomplice’s testimony, they had stolen two barbeque grills, had placed them on their truck, and had taken the grills with them to Pittsburgh. Defendant denied that he had stolen the grills and denied also that he had had any knowledge that the co-defendant had placed them on the truck. Under these circumstances, the trial court held, trial counsel should have requested a “mere presence” instruction. We disagree that counsel was constitutionally ineffective for failing to do so.

It is correct, of course, and the law is clear that a defendant cannot be convicted of a crime where the only evidence to connect him with the crime is “mere presence” at or near the scene. Commonwealth v. Stores, 317 Pa.Super. 109, 117-118, 463 A.2d 1108, 1112-1113 (1983). The converse is that something more than “mere presence” at the scene of a crime must be shown to convict one of participating in the commission of the crime. Commonwealth v. Lovette, 271 Pa.Super. 250, 255, 413 A.2d 390, 392 (1979), rev’d on other grounds, 498 Pa. 665, 450 A.2d 975 (1982). It does not follow, as a corollary of this rule, that a jury must be instructed in all cases that “mere presence” is insufficient to convict. Neither counsel’s research nor our own has disclosed any appellate decision holding as appellee contends.

In the instant case, appellee’s defense was that he had had no knowledge of the theft of the grills by his companion and that he had not participated in selling or otherwise disposing of them. The jury was fully and accurately instructed regarding the elements of theft by receiving stolen property. The essence of appellee’s defense was also explained to the jury. An additional instruction that “mere presence” was insufficient to warrant a guilty verdict, therefore, was not essential to a jury’s understanding of the issues. When counsel was asked why he did not request such an additional instruction, he replied:

A Well, I thought they were covered in the general instructions and the charges that I requested. And I also thought it was so obvious to the jury that no specific charge would be needed. That’s —it’s the same in every crime. I mean, in every crime you wouldn’t give an instruction to the jury that his mere presence doesn’t make him guilty. And in this case I think that was obvious, based upon the fact that we were saying that he wasn’t even present during the commission of the crime.

(N.T. 10-9-84, at 32). We agree with counsel’s observations. It is not essential in all criminal trials to request an instruction that mere presence is insufficient to convict. Where the jury has been fully and accurately instructed concerning the elements of the crime charged and the defense which has been advanced thereto, we will not hold counsel ineffective for failing to request, in addition, a “mere presence” charge.

Finally, without expressly finding prosecutorial misconduct, the trial court expressed “concern” about the District Attorney’s remarks to the jury during closing argument. No record was made of closing arguments. During the post-trial evidentiary hearing, therefore, several witnesses related their recollection of the prosecuting attorney’s summation. The court found specifically that there had been no expression of personal opinion by the District Attorney. The court concluded, nevertheless, that “inferentially” the prosecuting attorney had “included himself in his urging the jury to find the Defendant guilty.” (Trial Court Opinion at p. 3). This apparently referred to the District Attorney’s urging the jury to return a verdict which said, “we know what you did” and “we find you guilty.” We have examined these remarks at length and have attempted to understand the trial court’s “concern” and the reasons therefor. We cannot. There is to be found in the remarks of the District Attorney no basis for concluding that he argued improperly or exceeded the bounds of legitimate advocacy.

During closing argument a prosecutor may refer to all facts properly in evidence and may argue all reasonable inferences from such evidence. Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980); Commonwealth v. Graham, 467 Pa. 417, 420-421, 358 A.2d 56, 58 (1976); Commonwealth v. Smith, 321 Pa.Super. 170, 185-186, 467 A.2d 1307, 1315 (1983). In Commonwealth v. Williams, 295 Pa.Super. 369, 441 A.2d 1277 (1982), where the prosecuting attorney had argued that on the basis of a witness’ testimony the defendant was clearly guilty as charged, this Court, per McEwen, J., appropriately observed:

Our system of jurisprudence not only relies but rests upon the notion that the scales of justice are evenly balanced and each party, not only the defendant but also the Commonwealth, must be afforded an equal opportunity to tip the scales. It, therefore, follows that the Commonwealth is entitled to a full measure of oral advocacy and the prosecutor has not only the privilege but the duty to exert his skills as an advocate in such manner as he deems the most likely to be persuasive. There is no sound reason why counsel for the Commonwealth should be expected to show any less fervor than counsel for the defendant during any portion of the trial, including the closing remarks, provided, of course, the statements do not fall afoul of the ABA Prosecution Standards. ... [Ojnly such remarks as clearly and obviously violate the ABA Prosecution Standards may be determined to be improper.

Id., 295 Pa.Superior Ct. at 378-379, 441 A.2d at 1282. Although it is improper, according to the ABA Standards, for the prosecutor to express his personal opinion as to the guilt of the defendant, it is not improper for the prosecutor to ask a jury to return a verdict of guilty if it believes the Commonwealth’s evidence. See: Commonwealth v. Henry, 295 Pa.Super. 47, 55-56, 440 A.2d 1215, 1220 (1982).

In the instant case, there was no violation of the ABA Standards relating to the prosecution function. The Commonwealth had relied, inter alia, upon the testimony of an accomplice and an oral, inculpatory statement made by appellee. Appellee, however, had denied guilt, had denied knowledge of the theft of the grills, and had denied making an inculpatory statement. There was no reason, in view of the issues presented for determination by the jury, to prevent the prosecutor from asking the jury to return a verdict which said, “We know what you did” and “we find you guilty.”

The order awarding a new trial is reversed. The verdict of the jury is reinstated and the case is remanded for further proceedings thereon. Jurisdiction is not retained.

      . These findings suggested that the actual taking had been committed by an alleged accomplice but that appellee had assisted in transporting the grills to Pittsburgh and disposing of them there.

      . The Commonwealth may take an appeal as of right from an order awarding a new trial where it is alleged that the trial court committed an error of law. Pa.R.App.P. 311(a)(5).

      . The court, in its opinion, said: "trial counsel was faced with a difficult client in that ... [t]rial counsel was advised [by appellee] co-defendant would not testify against [him] and prepared his defense strategy along those lines. As the case progressed con-defendant [sic] became the chief witness for the Commonwealth against the Defendant and testified against him at time of trial. This compelled trial counsel to change tactics in that he was now confronted with an eyewitness [the accomplice] against Defendant as well as the incriminating statement.” (Trial Court Opinion at p. 2).


text:
    496 A.2d 1227
    In re ESTATE OF Kata BANKOVICH. Appeal of Joseph YURFICK.
    Superior Court of Pennsylvania.
    Argued April 10, 1985.
    Filed Aug. 9, 1985.

      Peter M. Suwak, Washington, for appellant.
    Charles S. Morrow, Pittsburgh, for appellees.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Joseph Yurfick, the sole beneficiary under the terms of the last will and testament of his deceased mother, has appealed from an order of the Orphans’ Court of Beaver County which refused to allow the will to be probated because it was found to be a product of undue influence.

Kata Bankovich died on April 22, 1983 at the age of 87. She was survived by seven children, including the appellant. She had lived on a farm in Beaver County until her husband died in 1973. Thereafter, the oldest son, Stephen Yurcic, joined her at the farm and lived with her until his death in August, 1979. Stephen discovered in late 1978 or early 1979 that he was terminally ill. On May 4, 1979, appellant, who lived only a few miles from his mother’s farm and who assisted Stephen in taking care of her, took his mother to the offices of her attorney where a will was prepared and executed. The will provided in pertinent part as follows:

All of my estate, real, personal or mixed, of whatsoever nature and wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my son Stephen Yurcic, and in the event that he predecease me, then to my son Joseph Yurfick, to be his absolutely.

While at the lawyer’s office, Kata Bankovich also executed a power of attorney in favor of appellant. In 1980, after Stephen had died, she also conveyed her farm to Joseph Yurfick, the appellant. On December 23, 1980, however, Kata Bankovich was declared incompetent; and on January 4, 1983, the deed was set aside.

Within three days after the death of the testatrix, Anne Megart, a daughter, filed a caveat in the office of the Register of Wills of Beaver County. When appellant offered the will for probate, the Register of Wills certified the record to the Orphans’ Court to determine whether the will should be admitted to probate. After two days of hearings, the Orphans’ Court found that the testatrix had been subjected to undue influence by her son, Joseph. In reaching this determination, the court found that Joseph had occupied a confidential relationship with the testatrix who, at the time of executing the will, had been of a weakened intellect. The court, therefore, placed the burden on appellant, the proponent of the will, to show that the will had been the product of the testatrix’s free will and not the result of undue influence. The court found that appellant had failed to meet this burden and, therefore, refused to allow the will to be admitted to probate. Exceptions were denied, and this appeal followed.

“Our review in [a will contest] is limited to determining whether the findings of fact approved by the court en banc rest on legally competent and sufficient evidence, and whether an error of law has been made or an abuse of discretion committed.” In re Estate of Ziel, 467 Pa. 531, 536, 359 A.2d 728, 731 (1976); In re Estate of DiPietro, 306 Pa.Super. 238, 240, 452 A.2d 532, 533 (1982). “It is not our task to try the case anew.” In re Estate of Ross, 316 Pa.Super. 36, 40, 462 A.2d 780, 782 (1983). “This rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of the witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ ” Estate of Gilbert, 342 Pa.Super. 82, 87, 492 A.2d 401, 404 (1985), quoting In re Estate of Dembiec, 321 Pa.Super. 515, 519-520, 468 A.2d 1107, 1110 (1983).

The burden of proof in cases of this type is as defined by the Supreme Court in Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979). The Court said:

When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proof. The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent’s intellect was weakened.

Id., 484 Pa. at 614, 400 A.2d at 1270. See also: In re Estate of Pedrick, 505 Pa. 530, 538-39, 482 A.2d 215, 219 (1984); Estate of Shelly, 484 Pa. 322, 332, 399 A.2d 98, 103 (1979).

“For purposes of voiding a will on the ground of undue influence, a confidential relationship exists whenever circumstances make it certain that the parties did not deal on equal terms but that on the one side there was an overmastering influence, and on the other, dependence or trust, justifiably reposed.” In re Estate of Ross, supra 316 Pa.Super. at 42, 462 A.2d at 783.

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not confined to a particular association of parties, but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.

Estate of Buriak, 342 Pa.Super. 371, 374, 492 A.2d 1166, 1167 (1985), quoting Estate of Keiper, 308 Pa.Super. 82, 86, 454 A.2d 31, 33 (1982). “Although a parent-child relationship does not conclusively suggest a confidential relationship, it is a fact to be considered.” Estate of Gilbert, supra 342 Pa.Super. at 88, 492 A.2d at 404. “No clearer indication of a confidential relationship [can] exist than giving another person the power of attorney over one’s entire life savings.” Estate of Keiper, supra 308 Pa.Super. at 86, 454 A.2d at 33, quoting In re Estate of Ziel, supra 467 Pa. at 542, 359 A.2d at 734.

The trial court found that a confidential relationship had existed between the testatrix and the appellant, her son. The evidence supports this finding. In 1973, after Kata Bankovich had become a widow, appellant joined with his brother, Stephen, in assuming responsibility for her care. The other children were informed that their assistance was not required. By 1978, perhaps earlier, Kata had become wholly dependent upon Stephen and Joseph for her maintenance and care. They assumed total control over her every day affairs, acted as her spokesmen, made decisions for her, and discouraged social intercourse with her daughters. Ignatz William Bankovich, Jr., who had lived on the farm during the last seven years of Kata’s life, testified that in the latter part of 1978, Stephen became ill, and his illness was diagnosed as terminal cancer. Thereafter, the appellant assumed exclusive responsibility for managing his mother’s affairs. Joseph testified of the relationship existing after his mother became a widow, “[w]e [Stephen and Joseph] were there all the time. We planned her life between the two of us. We knew what my mother’s desires were in her lifetime and what she wanted.” (N.T. at 182). When the testatrix went to the lawyer’s office to prepare a will, appellant went with her, participated in the conference, and stood by as the will was explained to her. She made no response to the attorney’s explanation but merely signed the will. On the same day, she executed a general power of attorney by the terms of which appellant was authorized to manage and control all of her property.

After 1975, Kata Bankovich suffered a progressive loss of intellect and awareness. Her children testified that she had almost completely lost touch with reality by the time of her death. Frequently she failed to recognize her children and on occasion imagined that she was back in her native Yugoslavia. Long before executing her will, the testatrix had sustained an impairment of memory, and by May, 1979, her senility had become manifest. Although her weakened intellect did not necessarily result in a loss of testamentary capacity, it was such that she was susceptible to influence by the son upon whom she relied for her care. See: In re Estate of Ziel, supra, 467 Pa. at 542, 359 A.2d at 734. “Undue influence,” it has been said, “is generally accomplished by a gradual, progressive inculcation of a receptive mind. The ‘fruits’ of the undue influence may not appear until long after the weakened intellect has been played upon.” In re Estate of Clark, 461 Pa. 52, 65, 334 A.2d 628, 634 (1975).

Because appellant was also the principal beneficiary under his mother’s will, it was necessary that he assume the burden of proving by clear and convincing evidence that his mother’s will was not the product of undue influence. See: In re Estate of Button, 459 Pa. 234, 328 A.2d 480 (1974). This was not altered merely because at the time of executing the will the principal beneficiary appeared to be Stephen. Not only had Stephen, a bachelor, been pronounced terminally ill prior to the execution of the Kata Bankovich will, but appellant had employed Stephen, had enjoyed a close relationship with his brother, and had been named sole beneficiary in Stephen’s will.

The trial court found that appellant failed to prove that the will had been the product of the testatrix’s free will. Rather, the court found, it had been the result of an overmastering influence which appellant exerted upon his mother. Our review of the record discloses a proper application of legal principles and evidentiary support for the findings of the trial court. The decree, therefore, will be affirmed.

Affirmed.

      . Anne Megart and Joseph Yurfick were children born during Kata Bankovich’s marriage to J.J. Yurfick. Ignatz William Bankovich, Jr., Catherine Tannehill, Mary Noonan, Dorothy Weaver and Rose Marie Skalka were children of a later marriage to Ignatz William Bankovich.

      . Stephen Yurcic spelled his name differently than his father and brother.


author: OLSZEWSKI, Judge:

text:
    496 A.2d 1230
    Robbin CRANCE v. Michael SOHANIC and Charlotte Harding, Appeal of Charlotte HARDING. Robbin CRANCE v. Michael SOHANIC and Charlotte Harding, Appeal of Michael SOHANIC.
    Superior Court of Pennsylvania.
    Argued March 20, 1985.
    Filed Aug. 9, 1985.

      James Shildt, and Anthony J. Frayne, Jr., Philadelphia, for appellants.
    Michael S. Valimont, Doylestown, for appellee.
    Before OLSZEWSKI, MONTGOMERY and LEDERER , JJ.

       Judge William J. Lederer, Senior Judge, of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OLSZEWSKI, Judge:

In this case, a visitor to a home was attacked and bitten by a dog belonging to another visitor. The young victim of the attack, Robbin Crance, was kneeling and petting the dog when it bit her. She suffered severe lacerations on her cheek and near her ear, and was required to undergo several operations to restore her face to its normal appearance. She subsequently sued Charlotte Harding, the dog’s owner, and Michael Sohanic, the occupant of the house where the attack occured, alleging that they knew of the dog’s vicious tendencies but negligently failed to warn her of the danger.

At trial, the court permitted the plaintiff to introduce evidence on biting and attack incidents which occurred after the attack which gave rise to this suit. The court also denied the defendants’ request to charge the jury on assumption of the risk, and barred the admission of a note from the plaintiff to defendant Sohanic which the defendants contended was an admission. The jury awarded the victim $20,000, allotting the responsibility for the damages 60 percent to Harding, 30 percent to Sohanic and 10 percent to Crance. The court entered judgment after adding on damages for delay. Defendant Charlotte Harding filed post-trial motions arguing that the court’s failure to charge on assumption of risk, the barring of the note, and the admission of subsequent acts constituted error. Defendant Sohanic argued in post-trial motions that the court’s barring of the note constituted error. We deal with these points seriatim.

Assumption of the risk.

Assumption of the risk is still a defense in this Commonwealth, appellee’s contentions notwithstanding. In Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983), the Supreme Court clearly stated that the doctrine still exists in our courts, in spite of the plurality opinion in Rutter v. Northeastern County School Board, 496 Pa. 590, 437 A.2d 1198 (1981). Whether the doctrine should have been applied in this case is the question.

Before assumption of the risk can be an issue, it must be shown that the plaintiff was aware of the facts creating the danger. In Groner v. Hedrick, 403 Pa. 148, 169 A.2d 302 (1961), the Supreme Court held that a housekeeper who was knocked over by a large dog in her employer’s home may have assumed the risk of being hurt, and that it was the jury’s duty to determine whether she did know of the dog’s tendency to jump on people. The Court specifically noted that the housekeeper carried a whip to prevent such incidents, and that the dog had attempted to jump on the plaintiff before the incident leading to the suit.

In Weaver v. Clabaugh, 255 Pa.Super. 532, 388 A.2d 1094 (1978), we held that assumption of the risk could not be used as a defense by a plaintiff passenger in an intoxicated driver’s car unless it could be shown that he was “subjectively aware of the facts which created the danger and he must have appreciated the danger itself and the nature, character and extent which made it unreasonable.”

Given these cases, we hold the court was right to refuse an assumption of the risk instruction. The record shows only that the plaintiff was warned to “be careful,” and not that she was told the dog had bitten others. Under the circumstances, no instruction on assumption of the risk was warranted.

Admission of the note.

The record shows the plaintiff made a timely request for the production of all written statements regarding the incident. On the first day of trial, October 20, 1983, the defendant found a note from Robbin Crance to Michael Sohanic, dated February 14, 1982, stating her face felt “fine.” The defendants showed this note to the plaintiff on the first day of trial and requested its admission as an admission of the plaintiff. The trial court refused to allow it, stating the failure to produce it earlier justified its exclusion. We agree.

Whether to bar evidence which has not been produced after a discovery order is a matter left with the trial judge’s discretion. Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971). Sanctions may be imposed where there is willful disregard of or disobedience to a discovery order, or an obligation stated in the rules of civil procedure. Lapp v. Titus, 224 Pa.Super. 150, 302 A.2d 366 (1973). The federal courts, in holding on their discovery rules, have held that gross negligence in fulfilling discovery requests is grounds for an order barring use of evidence. Cine Forty-Second Street Theatre Corp. v. Allied Artists Picture Corp., 602 F.2d 1062 (2nd Cir.1979).

The failure of the defendants to produce the note, whether deliberate or careless, was adequate reason to bar its admission. The trial court did not err in so holding.

Evidence of subsequent behavior.

Pennsylvania courts, to our knowledge, have never discussed whether evidence of a dog’s subsequent bites is properly admissible in a dog bite case. The plaintiff argues that the evidence was relevant to whether the defendants knew the dog was vicious, and that evidence of vicious behavior after the bite which led to this suit would tend to show the defendants knew the animal was prone to bite.

The trial court held that evidence of subsequent bites was probative on the issue of the dog’s nature. Under the circumstances of this case, where the plaintiff was using the evidence to show the dog had a vicious nature, the evidence was relevant.

Affirmed.

      . Ordinarily, of course, evidence of subsequent events is not admissible to show knowledge of a condition prior to an accident. It is not relevant to the issue of whether the defendant knew, at the time of the accident, that the accident could occur. It also serves to prejudice the jury by informing them that the defendant was careless not only once, but several times, and thus encourages them to find against the defendant merely for his generally careless behavior.
      Here, the evidence was relevant to the issue of whether the dog had a vicious disposition. Accord, Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982); Pharo v. Pearson, 28 N.C.App. 171, 220 S.E.2d 359 (1975).


author: DEL SOLE, Judge:

text:
    496 A.2d 1233
    Raymond MARTIN, personal representative of the Estate of Patti A. Martin, deceased, Appellant, v. STATE AUTOMOBILE INSURANCE ASSOCIATION.
    Superior Court of Pennsylvania.
    Argued March 27, 1985.
    Filed Aug. 9, 1985.

      Paul D. Kruper, Pittsburgh, for appellant.
    Alan H. Perer, Pittsburgh, for appellee.
    Before DEL SOLE, MONTGOMERY and BUCHER , JJ.

      The Honorable Wilson Bucher of the Court of Common Pleas of Lancaster County, is sitting by designation.

   DEL SOLE, Judge:

This appeal was taken following the entry of a trial court order which denied Appellant’s petition to Modify, Correct, or Vacate an Award of Arbitrators, and granted the petition of State Automobile Insurance Association (State Auto) to Confirm the arbitration award. Based upon the limited scope of review provided for this action under the provisions of Statutory Arbitration, 42 Pa.C.S.A. § 7301, et seq., we affirm.

The unique facts of this case are as follows: On or about May 6, 1981, State Auto issued a policy of insurance to Appellant’s decedent. This original policy, and the original Declaration Sheet contained no language relating to under-insured motorist coverage. Periodically, State Auto would renew the decedent’s insurance policy through the issuance of Declaration Sheets, which would set forth the applicable coverages and limits of liability. The Declaration Sheet for the period of January 6, 1983 through May 6, 1983 included “Underinsured Motorist” coverage with a limit of liability of $30,000 per accident. It appears that this coverage was included on the Declaration Sheet due to a computer malfunction, and no separate premium was charged for the coverage. In addition, State Auto’s standard endorsement for underinsured motorist coverage was not included with the Declaration Sheet, and it was neither forwarded to, nor received by the decedent.

The endorsement defined an underinsured motor vehicle as one to which, “a bodily injury liability bond or policy applies at the time of the accident but its limit for bodily injury liability is less than the limit of liability for this [underinsured motorist] coverage.” The policy limit for liability coverage under decedent’s policy was $35,000 or $5,000 in excess of the limit for underinsured motorist coverage shown on the Declaration Sheet.

On March 27, 1983, during the period covered by the above described Declaration Sheet, the decedent was killed while riding as a passenger in her own car. Thereafter, Appellant retained counsel who contacted State Auto. Mr. Robert C. Egley, a claims supervisor for State Auto, responded with a letter dated June 14, 1983, outlining State Auto’s position with regard to the underinsured motorist coverage.

Subsequently, the parties entered into a separate agreement providing that the matter be submitted to arbitration “governed by the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S.A. § 7301 et seq.” A hearing was held and two of the three arbitrators found in favor of State Auto accepting the carriers position that: 1) decedents vehicle was not an “underinsured motor vehicle” as that term is defined in the endorsement; and 2) the letter of June 14, 1983 did not constitute an agreement by State Auto to provide coverage without applying any of the provisions of the endorsement.

Appellant then petitioned to have the award modified, corrected or vacated, and State Auto petitioned to have the award confirmed. An order was entered denying Appellant’s petition, and granting State Farm’s petition to confirm the award. An appeal was then timely filed by Appellant pursuant to 42 Pa.C.S.A. § 7320(a)(3).

We initially note that this case is governed by the provisions of statutory arbitration outlined in the Uniform Arbitration Act (the Act), 42 Pa.C.S.A. § 7301 et seq. An agreement to arbitrate a controversy comes under this subchapter when “the agreement to arbitrate is in writing and expressly provides for arbitration pursuant to [the] subchapter.” 42 Pa.C.S.A. § 7302(a). The record in this case contains such a written agreement which specifically provides that this matter is to be governed by the Pennsylvania Uniform Arbitration Act.

Appellant contends in this appeal that the court erred by refusing to vacate or modify the arbitrators award since the arbitrators applied the provisions of the endorsement, and since the arbitrators did not find the June 14, 1983 letter to constitute an agreement by State Auto to provide coverage regardless of the provisions found in the endorsement.

The Act outlines the instances where it is appropriate to vacate, modify, or correct an arbitration award. A court may properly modify or correct an award only where:

(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.
42 Pa.C.S.A. § 7315(a).

These three situations are very limited and clearly do not cover the type of errors which Appellant claims were made by the arbitrators.

It should be noted that under prior law, it was expressly provided that a court should modify or correct an award, “where the award is against the law, and is such that had it been a verdict of the jury the court would have entered different or other judgment notwithstanding the verdict”. Act of 1927, April 25, P.L. 381, No. 248, § 11 (5 P.S. § 171(d)). No similar provision was included in Section 7315 of the Uniform Arbitration Act, which lists the three instances when the court may modify or correct an award. See: Act of 1980, Oct. 5, P.L. 693, No. 142 § 501(a), effective in 60 days, (42 Pa.C.S.A. § 7315).

The Act also describes five situations in which court shall vacate an award:

(1) On application of a party, the court shall vacate an award where:
(i) the court would vacate the award under section 7241 (relating to common law arbitration) if this subchapter were not applicable.
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 (relating to hearing before arbitrators), as to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceedings under section 7304 (relating to court proceedings to compel or stay arbitration) and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing. 42 Pa.C.S.A. § 7314(a)

It can be readily seen that subsections (ii)-(v) do not apply to the case at hand. A closer look at subsection (i) reveals that this ground for vacating an award is also inapplicable. Subsection (i) enables the court to vacate an award for the reasons deemed appropriate in Common Law Arbitration, as found in 42 Pa.C.S.A. § 7421. In Common Law Arbitration an award may not be vacated or modified “unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award”. 42 Pa.C.S.A. § 7341. Appellant does not claim that he was denied a hearing, nor does he claim that the award was based upon fraud, misconduct, corruption or a similar irregularity. In Mellon v. Travelers Ins. Co., 267 Pa.Super. 191, 406 A.2d 759 (1979) it was pointed out that an “irregularity” will not be found simply upon showing that an incorrect result was reached.

Further support for the position that this award cannot be vacated for the reasons raised by Appellant, is found in 42 Pa.C.S.A. § 7314(a)(2). It provides: “the fact that the relief awarded by the arbitrators was such that it could not or would not be granted by a court of law or equity is not a ground for vacating or refusing to confirm the award”.

The Act does, however, permit in limited situations an award to be modified or corrected notwithstanding the provisions of Sections 7314 and 7315. Where the award is contrary to law, and is such that had it been a verdict of a jury the court would have entered a different judgment, or judgment NOV, it may be modified or corrected if any of the following are applicable:

(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or agree to submit a controversy to arbitration pursuant to this subchapter.
42 Pa.C.S.A. § 7302(d)(1) & (2).

The above standard of review would also apply if the agreement to arbitrate was made prior to the effective date of the Act and stated that it is governed by statutory arbitration, or if the agreement expressly provided for arbitration pursuant to the former provisions of the Act of 1927. See: Section 501(b) of Act of 1980, Oct. 5 P.L. 693, No. 142; Ragin v. Royal Globe Ins. Co., 315 Pa.Super. 179, 461 A.2d 856 (1983).

The facts of this case do not permit us to apply the above standard of review, and modify the award if an error of law is discovered, because none of the situations described in the Act is present.

The legislature set forth in the Act the precise instances when an award may be modified, corrected or vacated. It also enumerated the limited circumstances in which a reviewing court can modify or correct an award due to an error of law. Appellant herein agreed to submit his controversy to arbitrators, and specifically agreed that the matter would be governed by the provisions of the Uniform Arbitration Act. By so choosing, Appellant is now bound by the terms of the Act and the standard of review which it provides. Regardless of whether this Court would have reached a different result than the arbitrators, absent grounds to modify, correct or vacate the award as provided in the Act, we have no alternative but to affirm the trial court’s order.

Order affirmed.


author: BECK, Judge:

text:
    496 A.2d 1237
    In the ESTATE of Hazel M. SELLERS, Deceased, Late of the Borough of Hastings, County of Cambria and State of Pennsylvania. Appeal of Rebecca McANDREWS, Roberta Snyder and the Estate of Robert Sibert Who Died July 18, 1982.
    Superior Court of Pennsylvania.
    Argued March 13, 1985.
    Filed Aug. 9, 1985.

      James A. Nelson, Assistant District Attorney, Ebensburg, for appellants.
    Francis J. Leaney, Ebensburg, for appellee.
    Before BECK, POPOVICH and HANDLER , JJ.

       Judge Earl R. Handler, Senior Judge of the Court of Common Pleas of Indiana County, is sitting by designation.

   BECK, Judge:

This is an appeal from an order of the Court of Common Pleas of Cambria County distributing decedent’s property. Hazel M. Sellers died testate on October 28, 1975. She was survived by a brother, William Sibert, and two sisters, Pauline Frontino and Dorothy Sibert. Three other brothers predeceased Sellers; each brother left surviving children. Decedent’s Last Will and Testament, dated March 19, 1953, provided in pertinent part:

SECOND: All the rest, residue and remainder of my estate, real, personal, and mixed, of which I die seized or possessed, or to which I may be entitled at the time of my death, and wheresoever situate, I give, devise and bequeath unto my mother, JOSEPHINE SIBERT, and to my brothers and sisters, namely: EDWARD SIBERT, WILLIAM SIBERT, DOROTHY SIBERT, PAULINE FRONTINO, ROBERT SIBERT, AND DONALD SI-BERT, to have and to hold absolutely, share and share alike. In the event that my mother should predecease me, then her share shall be divided equally among my brothers and sisters.

Josephine Sibert also predeceased the decedent. Pauline Frontino, executrix of the decedent’s estate, filed a proposed distribution of the estate. Frontino, William Sibert and Dorothy Sibert were listed as the proposed distributees. The children of Edward Sibert, one of the predeceased brothers, objected to the list of proposed distributees. The trial court held that the bequests to the brothers who predeceased the testatrix lapsed by operation of the will and by operation of law. Exceptions were filed and subsequently denied by the court en banc.

Appellants present two issues for our review:

1) Since Edward Sibert, Donald Sibert and Robert Sibert predeceased the decedent, do their respective shares of the estate devolve to their children?
2) Did the trial court err in holding that a class gift was intended when extrinsic evidence outside the Will was introduced into testimony that making the gift of bonds to some nieces and nephews necessarily excluded other nieces and nephews?

We view these two questions as different aspects of one ultimate issue: Do the bequests to the brothers who predeceased the testatrix lapse, with the result that their shares go to their surviving siblings? The trial court answered this question in the affirmative. We disagree and therefore reverse.

“It is, of course, a cardinal rule that a will is to be construed according to the intent of the testator.” Hamilton Estate, 454 Pa. 495, 312 A.2d 373, 374 (1973). Testatrix provided in her will for the contingency that her mother would not survive her, but the will contains no provision stating what should happen if any of her brothers and sisters should predecease her. In other words, the will is silent on the very question before us, at least as far as express provisions are concerned. We must therefore seek further guidance in ascertaining the testatrix’ intent.

In 20 Pa.C.S. § 2514, the Pennsylvania legislature enacted a series of rules of construction to assist in discerning the intent of a testator. The statute provides that wills shall be construed in accordance with these rules “[i]n the absence of a contrary intent appearing therein.” Subsection (9) is an anti-lapse provision; it states that in the absence of such contrary intent,

A devise or bequest to a child or other issue of the testator or to his brother or sister or to a child of his brother or sister whether designated by name or as one of a class shall not lapse if the beneficiary shall fail to survive the testator and shall leave issue surviving the testator but shall pass to such surviving issue who shall take per stirpes the share which their deceased ancestor would have taken had he survived the testator: Provided, That such a devise or bequest to a brother or sister or to the child of a brother or sister shall lapse to the extent to which it will pass to the testator’s spouse or issue as a part of the residuary estate or under the intestate laws.

The trial court held that sufficient evidence of a contrary intent had been adduced via testimony establishing that the testatrix during her lifetime had given bonds to all of her nieces and nephews except for the children of Edward Sibert, the appellants here. The court concluded that this evidence demonstrated that the testatrix did not intend for her nieces and nephews to share in her estate and that she provided for those nieces and nephews for whom she wished to provide through inter vivos gifts.

We hold that the trial court must be reversed for several reasons. First, the court erred in considering extrinsic evidence in determining whether a contrary intent existed. The trial court cites Estate of Corbett, 430 Pa. 54, 241 A.2d 524 (1968) as authority for the proposition that a contrary intent may be inferred from extrinsic evidence of the testator’s wishes. We do not read Corbett as authorizing the court to rely on extrinsic evidence and we further hold that the statute itself does not permit such an approach. Section 2514 states, “In the absence of a contrary intent appearing therein, wills shall be construed____” “Appearing therein” clearly means “appearing in the will,” and the language would be surplusage if the use of extrinsic evidence were permitted. Corbett holds that the contrary intent need not be manifested by express language providing for the disposition of lapsed bequests, but it “can be deduced by implication from other aspects of the will.” 430 Pa. at 61, 241 A.2d at 527 (emphasis added). Corbett allows the contrary intent to be implied rather than expressly stated but the focus is still on the provisions of the will. In fact Corbett also states that “[t]he general rule ... appears to be that the intention of the testator to render the statute inoperative must be plainly indicated.” Id.

This last principle was reiterated in Estate of Kehler, 488 Pa. 165, 411 A.2d 748 (1980), wherein our Supreme Court held that the contrary intent needed to overcome the operation of section 2514(9) must be shown with “reasonable certainty.” In Kehler the testator’s will left his residuary estate to his brother and three sisters “and to the survivor or survivors of them, equally, share and share alike.” The court held that the phrase “and to the survivor or survivors of them” did not establish a contrary intent with reasonable certainty. Kehler is similar to the instant case in that the testator’s will contained express lapse provisions with respect to other bequests. The Supreme Court found this fact to be relevant in ascertaining the testator’s intent with respect to the bequest at issue. Although the construction of one will is not automatically controlling as to a different will because no two wills are identical, the Supreme Court’s reasoning in Kehler is highly persuasive because the factual similarities between Kehler and the instant case are strong. In the case sub judice, there is nothing in the language of the will which indicates at all, let alone with reasonable certainty, that the testatrix intended to avoid the application of the anti-lapse statute.

There is another more general reason why the trial court’s use of extrinsic evidence was improper in this case. Although a will is said to speak as though executed immediately before the testator’s death, see e.g., In re Laughlin’s Estate, 336 Pa. 529, 9 A.2d 383 (1939); see also 20 Pa.C.S. § 2514(1), that rule refers to the operation and effect of the will, not to determinations of the testator’s intent. In ascertaining the testator’s intention the will is to be construed as of the date of its execution. In re Klein’s Estate, 429 Pa. 27, 239 A.2d 464 (1968); In re Parkin’s Will, 157 Pa.Super. 476, 43 A.2d 595 (1945). Testatrix executed her will in 1953. The earliest of the gifts of bonds was made in 1960. Therefore it was not proper to consider this evidence as probative of what the testatrix intended in 1953 when she executed her will.

The trial court also held that the anti-lapse provision does not apply because Paragraph Second of the testatrix’ will constituted a class gift to her siblings. The court cited 20 Pa.C.S. § 2514(4), which states that the time for ascertaining a class is “when the devise or bequest is to take effect in enjoyment.” Since the bequest was to take effect in enjoyment at the time of the testatrix’ death, the court held that the predeceased siblings were not members of the class.

We believe that this holding of the trial court is based on a misreading of the statute. Section 2514(4), which the court cites, is inapposite to this case because it refers only to classes defined in terms of “heirs,” “next of kin,” “relatives,” and the like. A similar class determination rule is stated in subsection (5) of section 2514, but it contains the proviso “except that the issue then living of any member of the class who is then dead shall take per stirpes the share which their deceased ancestor would have taken if he had been living.” This exception is simply a restatement of the anti-lapse provision and its operation. Moreover, the anti-lapse provision itself, section 2514(9), states that it applies “whether [the beneficiary is] designated by name or as one of a class.”

The reason for this coordination of the class ascertainment rule and the anti-lapse provision is obvious. If the exception in section 2514(5) and the corresponding language in section 2514(9) were omitted, the absurd result would follow that the anti-lapse provision would never apply to the benefit of the beneficiary’s issue because the predeceased beneficiary would be simply excluded from the class by operation of law. Sound principles of statutory construction require us to avoid such a peculiar reading of section 2514.

For all the foregoing reasons we hold that the trial court erred in excluding the children of the testatrix’ deceased siblings from the scheme of distribution. The order of the trial court is reversed and the case is remanded with instructions to distribute the estate in accordance with this opinion. Jurisdiction is relinquished.


author: JOHNSON, Judge:

text:
    496 A.2d 1240
    Ellis ROBINSON, Appellant, v. TRENTON DRESSED POULTRY COMPANY.
    Superior Court of Pennsylvania.
    Submitted March 13, 1985.
    Filed Aug. 9, 1985.

      John Joseph Fonash, III, Philadelphia, for appellant.
    Charles A. Harad, Philadelphia, for appellee.

      Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

       Judge SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   JOHNSON, Judge:

This action arose out of an automobile accident which occurred September 23, 1980. On August 30, 1982 Appellant, Ellis Robinson, filed a Praecipe for Writ of Summons in trespass, and an arbitration hearing on the matter was scheduled for May 3, 1983.

As of the date of the arbitration hearing the Writ of Summons had neither been served, nor reissued, nor had a complaint been filed or served and, on May 5,1983, an order was entered by the trial court, dismissing the action without prejudice.

On May 25, 1983 Robinson filed a complaint in trespass under the same court term and number as the action dismissed by the May 5, 1983 order. Appellee, Trenton Dressed Poultry Company (Trenton), filed preliminary objections seeking to have the complaint dismissed as a nullity. On October 6, 1983 the trial court granted the preliminary objections of Trenton and dismissed Robinson’s complaint with prejudice. This appeal from both the May 5, 1983 and October 6, 1983 orders followed. For reasons hereinafter set forth, the appeal from the May 5, 1983 order is quashed and the order of October 6, 1983 is affirmed.

Robinson first challenges the trial court’s dismissal of the instant case, without prejudice, on May 5, 1983. Pa.R.A.P. 903(a) provides:

Rule 903. Time for Appeal
(a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.

The Notice of Appeal of November 3, 1983 was filed more than six months after this order had been entered and, therefore, was not timely. Thus, Robinson’s appeal from the May 5, 1983 Order must be quashed. Cameron v. Escofil, 321 Pa.Super. 347, 468 A.2d 513 (1983); In re Gorham, 272 Pa.Super. 145, 414 A.2d 712 (1979).

Robinson’s appeal from the May 5, 1983 Order having been quashed, we turn our attention to the legal effect of that order, which dismissed Robinson’s action without prejudice. A clear understanding of the difference between dismissal of an action without prejudice (Robinson’s case), and dismissal of an action with prejudice for failure to prosecute a claim is thus necessary to a proper resolution of the issues raised in the instant case.

When an action is dismissed, with prejudice, for failure to prosecute a claim, it is contemplated that that action is terminated unless the plaintiff takes positive steps to reinstate the cause of action within the applicable period of the statute of limitations. As the Commonwealth Court explained in Thompson v. Cortese, 41 Pa.Commw. 174, 398 A.2d 1079 (1979), when an action is dismissed with prejudice for failure to prosecute a claim, it is not a denial of relief to the plaintiff because it is not an adjudication on the merits; rather, it means only that the plaintiff whose complaint is thus dismissed cannot reinstate that complaint unless he first petitions the court to exercise its discretion to remove the non pros and establishes certain facts. Id. at 178, 398 A.2d at 1082. See also Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Company, 298 Pa.Super. 454, 444 A.2d 1272 (1982). The underlying reasons for such a policy are clear — prompt, final conclusion of pending matters, and removal from the docket of cases which would otherwise clutter it for an unreasonable length of time. Cf. Bon Homme Richard Restaurants, Inc. v. Three Rivers Bank & Trust Company, supra.

Like a dismissal with prejudice for failure to prosecute a claim, a dismissal without prejudice is not intended to be res judicata of the merits of the controversy. See Fiumara v. American Surety Co. of New York, 346 Pa. 584, 31 A.2d 283 (1943); Media-69th Street Trust Compa ny’s Trust Mortgage Pool Case, 344 Pa. 223, 25 A.2d 344 (1942); Commonwealth ex rel. Eldredge v. Eldredge, 175 Pa.Super. 276, 104 A.2d 185 (1954). Unlike a dismissal with prejudice for failure to prosecute a claim, however, the phrase “without prejudice” ordinarily imports the contemplation of further proceedings. Media-69th Street Trust Company’s Trust Mortgage Pool Case, supra. See also Fiumara v. American Surety Co. of New York, supra; Commonwealth ex rel. Eldredge v. Eldredge, supra. Thus, it is clear that the same considerations of prompt, final conclusion of pending matters, and avoidance of cluttering the docket for an unreasonable length of time are not present.

In the case at bar, the May 5, 1983 Order dismissed Robinson’s action “without prejudice,” thus importing the contemplation of further proceedings. Media-69th Street Trust Company’s Trust Mortgage Pool Case, supra. When Robinson filed a complaint twenty days later, however, the court, upon the filing of preliminary objections by Trenton, dismissed Robinson’s complaint, with prejudice. One of the reasons given by the court for its dismissal of Robinson’s complaint was that, having had his action dismissed previously by court order, Robinson was not entitled to file a complaint without first petitioning the court for reinstatement of his action and showing cause as to why the court should grant him leave to reinstate the action.

For the reasons set forth above, we do not agree, and hold, therefore, that when a case is dismissed without prejudice it is unnecessary to obtain permission of the court to proceed further with the action. In view of this holding, his case having been dismissed without prejudice for failure to prosecute his claim, Robinson was not obligated to obtain permission of the court to file his complaint. Notwithstanding our finding in this regard, however, we still deem the commencement of Robinson’s action a nullity.

As the trial court correctly observed, Robinson’s filing of the Praecipe for Issuance of a Writ of Summons clearly constituted the “commencement” of an action under Pa.R.C.P. 1007(1). See Ehrhardt v. Costello, 437 Pa. 556, 264 A.2d 620 (1970); Bowman v. Mattei, 309 Pa.Super. 486, 455 A.2d 714 (1983). In general, the filing of a praecipe is sufficient to toll the running of the statute of limitations; and, although the praecipe is not served within thirty days thereafter, see Pa.R.C.P. 1009(a), Pa.R.C.P. 1010 permits the writ to be reissued at any time within a new two-year period. See Bowman v. Mattei, supra; Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982). The filing of a complaint may be considered equivalent to the reissuance of a writ as of the date of the filing of the complaint. Pa.R.C.P. 1010(e).

Our supreme court has observed, however, that:
there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the processes of justice as speedy and efficient as possible.

Lamp v. Heyman, 469 Pa. 465, 477, 366 A.2d 882, 888-89 (1976) (footnotes omitted). That court then went on to qualify the rule, its purpose being to avoid the situation in which a plaintiff can bring an action but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations. Id., 469 Pa. at 478, 366 A.2d at 889. The court ruled that:

henceforth, i.e., in actions instituted subsequent to the date of this decision, a writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion. Since the manner in which writs of summons are to be prepared and delivered to the sheriff for service is not covered by our rules and since there are differences among the judicial districts of Pennsylvania in the procedures followed in these matters, a plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriffs office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service. Cf. Pa.R.C.P. 1009.

Id., 469 Pa. at 478-79, 366 A.2d at 889 (footnote omitted).

As Judge Doty observed, Robinson, having filed the praecipe for issuance of a writ of summons, took no action to serve the writ upon Trenton; thus, under the holding of Lamp v. Heyman, supra, Robinson’s failure to do so served to nullify the commencement of his action. See Jacob v. New Kensington Y.M.C.A., 312 Pa.Super. 533, 459 A.2d 350 (1983); Pannill v. Seaborne, 278 Pa.Super. 562, 420 A.2d 684 (1980); Delphus v. Kastanek, 267 Pa.Super. 26, 405 A.2d 1285 (1979); Snyder v. North-South Bowl, Inc., 263 Pa.Super. 328, 397 A.2d 1232 (1979).

The appeal from the May 5, 1983 order is quashed. The order of October 6, 1983 is affirmed.