author: CERCONE, Judge:

text:
    573 A.2d 1128
    Darrell J. VAN MASTRIGT, Appellant, v. DELTA TAU DELTA, an unincorporated association and national fraternity Delta Tau Delta, Delta Beta Chapter, an unincorporated association Carnegie Mellon University, the Estate of Jeanne Goldberg and Brian Goldberg.
    Superior Court of Pennsylvania.
    Submitted Feb. 5, 1990.
    Filed April 23, 1990.

      Darrell J. Van Mastrigt, appellant, pro se.
    S. Asher Winikoff, Pittsburgh, for Delta Tau Delta and Nat. Fraternity, appellee.

      David H. Patterson, Pittsburgh, for Delta Tau Delta, Delta Beta Chapter and Carnegie Mellon University, appellee.
    Robert A. Cohen, Pittsburgh, for Estate of Jeanne Goldberg, appellee.
    John A. Robb, Jr., Pittsburgh, for Brian Goldberg, appellee.
    Before KELLY, POPOVICH and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County sustaining appellees’ preliminary objections to the Complaint. We affirm.

Appellant, Darrell J. Van Mastrigt, filed a pro se complaint in negligence for personal injury and defamation. The trial court subsequently granted appellant’s request to proceed in forma pauperis. Appellant is presently incarcerated following his conviction for the murder of Jeanne Goldberg. In his complaint, appellant sought money damages from several defendants including: (1) Delta Tau Delta, a national fraternity, (hereinafter referred to as “National Fraternity”), the national organization for the local fraternity that sponsored a party that he and Jeanne Goldberg attended on the night of her death; (2) Delta Tau Delta, Delta Beta Chapter, (hereinafter referred to as “Local Fraternity”), who sponsored the above mentioned party; (3) Carnegie Mellon University (hereinafter referred to as “CMU”), the school he and Ms. Goldberg were attending at the time of her death; (4) the Estate of Jeanne Goldberg, (hereinafter referred to as “Estate”); (5) Stella Goldberg, the mother of the deceased; and (6) Brian Goldberg, a friend of appellant and Ms. Goldberg, but no relation to the deceased. This complaint was initially sent by regular mail, but subsequently served by the Sheriff in accordance with the lower court’s order of June 12, 1989.

On June 30, 1989, Local Fraternity served appellant with preliminary objections. On July 3, 1989 the lower court ordered appellant to respond to these objections within thirty (30) days. On July 21, 1989 the Estate and Stella Goldberg served appellant with preliminary objections. On July 26, 1989, appellant filed his brief in opposition to Local Fraternity’s preliminary objections. On July 31st both National Fraternity and Brian Goldberg filed preliminary objections against appellant. On August 11, 1989, CMU also filed preliminary objections against appellant. On August 18, 1989, the lower court sustained all of the preliminary objections and dismissed appellant’s complaint with prejudice. The prothonotary received appellant’s brief in opposition to Estate and Stella Goldberg, and Brian Goldberg’s preliminary objections on August 23, 1989. Appellant’s timely appeal raises the following issues for our review: (1) whether the lower court erred in prematurely dismissing the appellant’s complaint by violating appellant’s right to due process, fundamental fairness and equal protection; and (2) whether the lower court judge deviated from his lawful discretion by utilizing extreme prejudice and ignoring basic statutes of law. Since these issues are interrelated, we will consider them together.

We note that our scope of review is limited where there is a challenge to the sustaining of a preliminary objection in the nature of a demurrer. Mahoney v. Furches, 503 Pa. 60, 468 A.2d 458 (1983). Our inquiry goes only to determining the legal sufficiency of appellant’s complaint and we may only decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa.Super. 253, 489 A.2d 1364 (1985). We must also be able to state with certainty that “upon the facts averred, the law will not permit recovery by the plaintiff.” Berger v. Ackerman, 293 Pa.Super. 457, 459, 439 A.2d 200, 201 (1981).

Appellant initially argues that the lower court should have given him an opportunity to respond to all of the preliminary objections. Appellant contends that while he was given thirty days to respond to the Local Fraternity’s preliminary objections, he was not given the same opportunity to respond to the remaining preliminary objections. Appellant responded to Estate and Stella Goldberg, and Brian Goldberg’s preliminary objections, but the prothonotary did not receive a copy of his response until after the lower court had entered its order sustaining all of the preliminary objections and dismissing appellant’s complaint with prejudice. Appellant alleges that he never responded and indeed did not even have an opportunity to respond to preliminary objections filed by National Fraternity or CMU.

The Pennsylvania Rules of Civil Procedure provide for an answer to preliminary objections. Pa.R.C.P., No. 1017(a), 42 Pa.C.S.A. However, an answer to a preliminary objection is required only if the preliminary objection contains a notice to plead. Id. Rule 1026. The court may direct the respondent to answer, so that the matter may proceed under Rule 209 of the Pennsylvania Rules of Civil Procedure. In the instant case, none of the preliminary objections filed by appellees contained a notice to plead. Therefore, an answer to these objections was neither required nor was appellant entitled to respond. The lower court ordered appellant to respond to the first set of preliminary objections. No similar order is of record as to any of the other preliminary objections. Further, Rule 1028(c) of the Pennsylvania Rules of Civil Procedure makes it mandatory that a court dispose of preliminary objections promptly and preliminarily. Schaffer v. Batyko, 227 Pa.Super. 62, 323 A.2d 62 (1974). We find that the lower court did not prematurely dismiss appellant’s complaint and that the lower court was under no obligation to allow appellant to respond to the preliminary objections.

All of the appellees in the instant case filed preliminary objections in the nature of a demurrer. In so doing, each appellee was challenging the sufficiency of appellant’s complaint. The lower court reviewed the complaint as to each appellee and determined that appellant did not, and could not, set forth a cause of action against any of the appellees. As the lower court correctly noted:

The Fraternity is being sued because at the party [appellant] and Jeanne attended, alcohol and marijuana were available and they each indulged. The University is being sued because the fraternity house is on their campus and the University should have had better control over the fraternity. The Estate of Jeanne Goldberg is being sued because Jeanne enticed the [appellant] to attend the fraternity party. Stella Goldberg, Jeanne’s mother is named as a defendant for having failed to raise her daughter in a proper manner. And finally, Brian Goldberg is named as a defendant for his role in persuading Jeanne and [appellant] to attend the fraternity party.

As the lower court correctly concluded, appellant has failed to state a cause of action as to any of the appellees. Neither the fraternities nor CMU stands in loco parentis to the appellant. They accordingly cannot be held liable for their alleged failure to protect appellant from the consequences of his own actions. Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir.1979).

As to the Estate, the dismissal of appellant’s complaint is proper for several reasons. First, an action against an Estate must be brought against the personal representative. Lovejoy v. Georgeff, 224 Pa.Super. 206, 303 A.2d 501 (1973). Appellant failed to name Stella Goldberg, in her capacity as the administratrix of the estate, as a party to the instant action. Second, appellant has failed to establish the requisite proximate cause linking the decedent’s alleged misconduct to appellant’s ultimate harm. Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 551 A.2d 1112 (1988). Even if we were to believe that the decedent acted negligently in “enticing” appellant to attend a party he did not wish to attend, this alleged misconduct would be too remote from the harm arising to the appellant to be considered a substantial factor in causing appellant’s harm. This rationale is equally applicable to appellee Brian Goldberg. In addition, neither the decedent nor Brian Goldberg owed a duty or obligation that could have been breached by their allegedly persuading appellant to attend a party. Orner v. Mallick, 515 Pa. 132, 527 A.2d 521 (1987).

In his brief, appellant alleges that each of the defendants are responsible for his personal injuries by their negligence in serving alcohol and drugs to him as a minor. While appellant’s complaint does not specifically set forth what his personal injuries are, it does allege that each of the above defendants is responsible for depriving him of his health, safety, logic, and well-being resulting in personal injuries. The only injuries that can be discerned from the record are those related to appellant’s incarceration. His incarceration is clearly a result of his conviction for the murder of Jeanne Goldberg. While appellant does not specifically allege that the defendants were responsible for his act of murdering Jeanne Goldberg, this is the only inference that can be reached. Thus, appellant contends, without using these exact words, that but for the acts of each of the defendants: (1) he would not have murdered Jeanne Goldberg; (2) he would not have been convicted of said murder; (3) he would not have been incarcerated; and (4) he would not be suffering from the evils associated with his incarceration.

Even if we were to agree with appellant that the defendants played a role in placing appellant in his current predicament, we would be unable to make the quantum leap necessary for excusing appellant from his own crime. None of the defendants put a knife in appellant’s hand. None of the defendants were responsible for the act of killing Jeanne Goldberg. A court determined that appellant alone was responsible for the actual murder of Jeanne Goldberg. It was as a result of this determination that appellant was incarcerated. If this incarceration has resulted in personal injuries, appellant has only to look to himself for the consequences of his senseless action. We find no error in the lower court’s determination.

Order affirmed.

POPOVICH, J., concurs in the result.

      . On August 23, 1989, appellant filed a motion to dismiss Stella Goldberg from the complaint. The lower court denied this motion as moot on September 1, 1989 because the entire complaint had been dismissed. Nonetheless, appellant’s Notice of Appeal to our court did not include Stella Goldberg. We find therefore that Stella Goldberg is not a party to this appeal.

      . Appellee, Local Fraternity, alleges that appellant’s complaint was not properly served. While it is correct that appellant’s first attempt at service was unsuccessful, the record reveals that proper service was ultimately achieved through the sheriff’s office. We further note that Local Fraternity repeatedly states that appellant’s complaint should be dismissed. Local Fraternity is mistaken as to our role at this juncture. The appellant’s complaint has already been dismissed, we need not dismiss it again. Perhaps it would have served this appellee better to have more carefully revised its brief in support of preliminary objections rather than submitting the same brief to our court.

      . Our finding that appellant was not "entitled” to respond is limited to the facts of this case. In this case, there was a proliferation of preliminary objections which essentially adopted the issues raised in the first set of preliminary objections. Since appellant provided such a complete response to the first preliminary objections, we found that his initial response sufficiently covered the salient issues in this case.

      . Although appellant contends that the lower court on July 21, 1989, ordered a response to be filed to Estate and Stella Goldberg’s preliminary objections within thirty (30) days, no such order is a part of the record certified for our review. We must decide a case on the basis of the facts of record and not on allegations of fact contained in a party’s appeal brief. Marine Bank v. Huhta, 279 Pa.Super. 130, 420 A.2d 1066 (1980).

      . Rule 1028(c) also states that a party may file an amended pleading as of course within ten (10) days after service of a copy of preliminary objections. Appellant was not given this opportunity as to CMU’s preliminary objections. However, appellant does not raise this issue. We therefore find that appellant waived his right to raise this issue. Even if appellant was given the opportunity to amend his complaint, we find, for reasons set forth more fully in this memorandum, that he would not be able to establish a cause of action as a matter of law.

      . Although the lower court does not sustain the preliminary objections as to the Estate on this basis, as an appellate court we may affirm a decision of the trial court if the result is correct on any ground. Green v. Juneja, 337 Pa.Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985).


source: Caselaw Access Project

author: TAMILIA, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    573 A.2d 1132
    COMMONWEALTH of Pennsylvania v. Lewis STERN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 10, 1990.
    Filed May 1, 1990.

      Marlene Cooperman, Philadelphia, for appellant.
    Laurie Magid, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant herein, Lewis Stern, appeals judgment of sentence of life plus two and one-half to five years imprisonment imposed following his convictions of first degree murder and possession of an instrument of crime. Appellant and co-defendant, Steven Johnson, were convicted at a jury trial in which the evidence established that Johnson hired Stern to kill James Clark for Clark’s failure to return drug money to Johnson after Clark made sales for him. An eyewitness, Joe Buxton, testified he saw not only the killing but the set-up by Johnson to get Clark to the murder scene.

Although the co-defendants were tried simultaneously and have one issue on appeal in common, their appeals will be addressed separately. As to co-defendant, Johnson, see Commonwealth v. Johnson, — Pa.Super. —, — A.2d — (unpublished memorandum filed 4/16/90).

Stern’s first assignment of error is that the prosecutor intentionally used his peremptory challenges to exclude black jurors from sitting at trial. Both defendants and the Commonwealth were allowed eight peremptory challenges during selection of the regular jury panel and two peremptory challenges during selection of the alternatives. The Commonwealth used six of its eight initial peremptory challenges against blacks and both peremptory challenges during selection of alternates were against blacks. The final jury panel consisted of ten whites and two blacks, after a black alternate took the place of a white juror who was excused due to hardship.

Appellant had the burden of proving to the trial court a prima facie case of discrimination by the Commonwealth in exercising its peremptory challenges. This rule and its requirements were set forth in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) and recently reviewed by this Court, en banc, in Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (plurality Opinion).

In order to prevail, the defendant must initially establish a prima facie case of discrimination.
To establish such a case, the defendant first must show that he is a member of a cognizable racial group, and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant’s race. Second, the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits “those to discriminate who are of a mind to discriminate.” Finally, the defendant must show that these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race. This combination of factors in the impaneling of the petit jury, as in selection of the venire, raises the necessary inference of discrimination. [Batson v. Kentucky,] 476 U.S. at 96-97, 106 S.Ct. at 1723 (citations omitted). See also Teague v. Lane, 489 U.S. 288 [-], 109 S.Ct. 1060 [1066-67], 103 L.Ed.2d 334, 345 (1989).
Thus, a prima facie case of discrimination has three elements: 1) the defendant’s membership in a cognizable racial group; 2) the prosecutor’s use of peremptory strikes to exclude members of that group; and 3) an inference arising under the totality of the circumstances that the prosecutor used the strikes to exclude venirepersons on account of race.

Id., 386 Pa.Superior Ct. at 40-41, 562 A.2d at 343. Only after a defendant proves a prima facie case of discrimination does the burden shift to the prosecutor to justify his strikes. Id., 386 Pa.Superior Ct. at 41-43, 562 A.2d at 344.

Immediately after the jury was impaneled, appellant’s counsel moved for the jury to be striken based on the alleged discriminatory selections of the prosecutor.

Following the motion, the court permitted both defense counsel and the prosecutor to discuss with him the specific allegations of prejudice or bias. The transcript illustrates that the trial judge seriously considered appellant’s allegations of specific bias in the context of the voir dire, which he personally supervised. The trial judge exhibited a sound grasp and recollection of the proceedings, and in fact corrected misstatements of fact by appellant’s counsel as to the selection process.

Appellant’s counsel began by alleging that because the Commonwealth had exercised six of its eight peremptive challenges against blacks and only one against whites, and both of his peremptory challenges in choosing alternate jurors were used against blacks, the inference of bias existed. This is not a conclusive indicator, however, of discrimination as we have not adopted “a per se rule that any particular number of strikes against minority venirepersons must invariably give rise to a prima facie case.” Id., 386 Pa.Superior Ct. at 43, 562 A.2d at 344-45. Appellant does not compare any particular black venirepersons who were striken by the prosecutor with those jurors accepted by him to show us how his strikes were discriminatory. See Commonwealth v. Weaver, 390 Pa.Super. 434, 568 A.2d 1252 (1989).

Appellant’s second specific allegation of bias was that in attempting to keep a white person, Juror 86, on the jury who wished to be excused for a minor medical problem, the prosecuting attorney questioned her for five minutes about her condition. She was excused for cause by the court. Mr. Campolongo’s response was that he didn’t believe the condition was a ground for nonservice as a juror since he suffered from it himself. A third instance involved Juror 447, who appellant’s counsel alleges was questioned too extensively about her ability to judge people in light of her religious beliefs. Appellant’s counsel admitted to asking similar questions but in a “different tone” and a less offensive manner (T.T., 11/24/88, p. 31). The trial judge determined this was a legitimate line of questioning even though it had not been asked of any white juror. The next incident alleged by appellant to have illustrated bias concerned a black, Juror 328, who, although he previously had sat as an alternate juror on another criminal trial, wanted to be excused from this trial because he did not want to sit on a murder case. By agreement of counsel, the court therefore excused him. Appellant’s counsel argued the Commonwealth showed bias in that when a white person (Juror 86) asked to be excused, he questioned her for five minutes until such time the court excused her, but as to Juror 328, a black person, no lengthy questioning was conducted before the court agreed to excuse the juror. We agree with the trial court that because all counsel agreed to excuse Juror 328, there is no merit to appellant’s bias argument.

As to the alternate jurors 13 and 14, appellant’s counsel argued that although they were black, they were accepted only after the Commonwealth used its two challenges to exclude other blacks. It appears in this situation appellant’s counsel was overzealous, misstated the facts and was corrected by Judge Sabo, who stated “[t]he first juror called for number 13 position he struck was black. But the second one that came in, he took. That was also a black.” Mr. Medway responded “I stand corrected____” (T.T. 5/24/88, pp. 34.) The court pointed out that black Juror 32 had two nephews convicted of murder, and because the court refused to strike for cause, the prosecutor was forced to exercise a peremptory challenge. While he would not strike for cause, Judge Sabo believed it was a proper basis for a peremptory strike. Another black juror was a 20 year old female psychology major at Temple University. The court acknowledged that there could be a legitimate reservation about young psychology students as jurors. Juror 177 had a nephew convicted of murder. None of the above strikes on their faces appeared to be based on racial consideration or on considerations which would have been different for white jurors. The prosecutor pointed out that the Commonwealth exercised its peremptory challenges against blacks and whites according to various factors permitted in exercising peremptory challenges, whereas in this case the defense struck only white jurors. The prosecutor further explained that he accepted a black early on as well as an alternate who later served on the panel when another juror was excused. He went on in detail to explain his jury selection process. From the consideration of the above and all other factors he observed during the voir dire process, the trial judge properly denied the motion to strike the jury. We may presume thereby he found that appellant failed to establish a prima facie case of discrimination in selecting the jury. Appellant reiterated his argument in post-trial motions and the trial court again denied the claim. We agree with the trial court that a prima facie showing of discrimination was not made because appellant failed to prove, by the totality of the circumstances, an inference of discrimination. There would be no purpose in remanding this case, as was done in Weaver, supra, for the purpose of an evidentiary hearing to determine reasons for striking the various black jurors.

The facts of this case are clearly distinguishable from those of Weaver, supra, in that in Weaver, when defense counsel made his motion for mistrial, instead of allowing defense counsel to explain the basis upon which the prima facie case was asserted, before ruling on that motion, the prosecutor was permitted to respond that this was a personal attack against him, accusing him of being racist. Without comment, the court denied the motion for mistrial. Here, there was full dialogue and analysis with and by the trial judge. In addition, the trial court in Weaver had information available to him, which in addition to the fact there were no black jurors on the panel, could lead him to believe strikes of blacks was racial in nature as whites with similar characteristics were not stricken. While Batson, supra, requires that pursuant to the fourteenth amendment no juror be excluded because of race, it did not hold that an impartial jury mandated by the sixth amendment is a fair cross-section of the populous. This appears to be the focus of appellant’s argument. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), permits the use of peremptory challenges to enable prosecutors and defense counsel to strike jurors who are more partial to the other side thereby removing extremes of partiality on both sides. Recently, the United States Supreme Court in Daniel Holland v. Illinois, — U.S. —, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990), held that a fair cross-section principle may not be read into the sixth amendment as a requirement for petit jury selection, as is the case with venire selection. See Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). To do so would be to emasculate the device of peremptory challenges. See Batson and Swain, supra.

Stern’s second issue is a claim of ineffectiveness of counsel for trial counsel’s failure to request a jury charge on “unreasonable belief” voluntary manslaughter, 18 Pa.C.S. § 2503(b).

In reviewing the stewardship of counsel, a court must first determine whether the underlying claim is of arguable merit. If so, it must then determine whether counsel’s conduct was reasonably calculated to serve the interests of his client. Finally, the defendant must demonstrate that he was prejudiced by counsel’s ineffectiveness. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. Gibbs, 387 Pa.Super. 181, 189, 563 A.2d 1244, 1248 (1989).

We find the underlying claim is without merit as the court did give instructions concerning unreasonable belief voluntary manslaughter. The statute reads as follows:

(b) Unreasonable belief killing justifiable. — A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed,- would justify the killing under Chapter 5 of this title (relating to general principles of justification), but his belief is unreasonable.

18 Pa.C.S. § 2503(b).

In his charge to the jury, the trial judge said, “Voluntary manslaughter also exists where at the time of the killing, the defendant believed the circumstances to be such that if they existed would have justified the killing but his belief was unreasonable” (N.T. 6/8/88, pp. 40-41).

Since the trial court gave the charge Stern claims his counsel failed to request, his argument is without merit.

Finally, appellant argues he is entitled to a new trial due to prosecutorial misconduct and cites numerous instances of allegedly improper remarks and questions. The trial court denied a new trial, finding there was no reversible error since cautionary instructions were given where needed.

The test we must use to determine whether a new trial is warranted is the “unavoidable prejudice test.”

[Wjhere the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. The language must be such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” The effect of such remarks depends upon the atmosphere of the trial and the the proper action to be taken is within the discretion of the trial court.

Commonwealth v. Bullock, 384 Pa.Super. 269, 279, 558 A.2d 535, 539-40 (1989), citing Commonwealth v. Johnson, 516 Pa. 527, 532-33, 533 A.2d 994, 997 (1987) (citations omitted).

The focus of appellant’s argument is on the prosecutor’s references to drugs and gang violence and appellant’s involvement therein. The prosecutor’s comments were permissible, however, as they revolved around the evidence showing intent and motive for the murder.

In a similar case, Commonwealth v. Ramos, 366 Pa.Super. 624, 532 A.2d 22 (1987), we found that evidence of drug dealing, fighting and shooting was properly admitted at trial to establish intent and motive. The only connection the victim in the instant case had with appellant was through drug dealing and gang activity; therefore, the prosecutor could introduce this evidence to support his claim that appellant had a motive for shooting Clark, namely, Clark’s failure to handle his drug courier duties in the fashion Johnson required.

For the above stated reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

DEL SOLE, J., dissents.

DEL SOLE, Judge,

dissenting.

I join the Majority’s Opinion in its analysis with regard to the three issues discussed, namely, racial discrimination in jury selection, the failure to include an “unreasonable belief” voluntary manslaughter charge and its application of Commonwealth v. Ramos, 366 Pa.Super. 624, 532 A.2d 22 (1987) to permit evidence of drug dealing at the trial to establish intent and motive.

However, I cannot accept the Majority’s conclusion that the actions of the prosecutor in this case did not amount to prosecutorial misconduct. Having reviewed the record in this matter, I find that it is replete with actions by the prosecuting attorney that are unprofessional, uncivil and amount to misconduct. One example deals with the testimony of Mr. Howell, a witness who stated that he saw an individual armed with a .38 revolver in a bar located about seven blocks from the scene of the shooting. Following direct examination the Assistant District Attorney asked one question and this is demonstrated as follows:

Q. (by A.D.A.) How many other bartenders in this city does Mr. Johnson have in his pocket?
Mr. Medway: Objection.
Ms. Smarro: Objection. Move for mistrial.
Mr. Medway: Move to strike and move for mistrial. Mr. Compolongo: I have no questions of this witness.
The Court: Don’t get excited. Disregard the last comment by the Assistant District Attorney. That stricken from the record. You are excused. Thank you.
Mr. Medway: Excuse me, Your Honor, may we see you at side bar, please?
(Sidebar discussion held on the record as follows:)
Ms. Smarro: Judge, I think the case law is in my favor when I move for a mistrial. I have the cases over there on my desk.
The Court: Mistrial is denied. I have stricken it from the record. I told them to disregard it.
The Court: I will not declare a mistrial. I will instruct the jury to disregard it. Okay?
(Sidebar discussion concluded at this time.)

(N.T. 6/6/88, 89-91)

This attempt by the prosecutor was to impinge the testimony of a crucial defense witness by propounding what purported to be a question, knowing that the question was improper and he did not even seek to justify the question asked. A review of this record shows that the prosecutor in this case engaged in a course of conduct that is not designed to seek the truth but rather to prejudice the jurors. Admittedly, the trial court gave cautionary instructions, the trial court was required to do that throughout the trial because of the actions of the prosecutor and one of the defense attorneys. It is obvious that the trial judge in this case sought to get this matter concluded and, in my view, excused actions which should not be tolerated in a courtroom. Instructive on this issue is the- Commonwealth’s brief on this point dealing with the witness, Mr. Howell. The Commonwealth argues:

There was no prejudice resulting from the question since an objection to it was sustained, the question was stricken from the record, and the jury was twice instructed at length to disregard it because it was not evidence and cannot be considered in way.
(Commonwealth Brief, p. 29)

Interestingly, the Commonwealth in its brief cannot justify the asking of the question by the prosecutor. It merely seeks to excuse the prosecutor’s action by saying that the court acted to strike the prejudicial question. This is not the way cases should be tried and, when one reads the entire record in this case, one cannot avoid the inescapable conclusion that the prosecutor’s action was extremely prejudicial not a search for truth and should no be excused because the trial judge instructed the jury to disregard what the prosecutor said. I would vacate the judgment of sentence and remand the case for' new trial based on prosecutorial misconduct.

      . 18 Pa.C.S. § 2502.

      . 18 Pa.C.S. § 907.

      . While it is not necessary for the prosecutor to justify his strikes nor was he required to do so, during the presentation of the prima facie case by appellant, most of his reasons for striking jurors were presented and considered. The fact that he did not justify every strike is irrelevant, as even if a prima facie case of discrimination is presented, the prosecutor may rebut the case without explaining every strike. See United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986).

      . Appellant’s counsel also plays heavily on the statement made by the trial court that because both defendants were black and the victim was also black, there was no racial issue involved. While this is a consideration among others, the fact that the defendant and victim are of the same race does not preclude an attempt to establish a prima facie case. See Commonwealth v. Jackson, 386 Pa.Super. at 39-41, 562 A.2d at 343 (1989) (plurality Opinion by Beck, J.). However, in Commonwealth v. Monroe, 373 Pa.Super. 618, 542 A.2d 113 (1988), and Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987) (factually almost on all fours with this case on the jury issue), it was considered relevant in determining whether a prima facie case of prejudice existed. All factors considered, the requisite prima facie case was not made out.

      . Our discussion as to this issue is identical to that in our unpublished memorandum in Commonwealth v. Johnson (No. 03237 Philadelphia, 1988, J-A01019/90).


author: JOHNSON, Judge:

text:
    573 A.2d 1139
    Michael LUKO and Independent Pier Company v. LLOYD’S LONDON and The Institute of London Underwriters and Pennsylvania Insurance Guaranty Association. Appeal of LLOYD’S LONDON and The Institute of London Underwriters, Appellant. Michael LUKO and Independent Pier Company v. LLOYD’S LONDON and The Institute of London Underwriters and Pennsylvania Insurance Guaranty Association. Appeal of PENNSYLVANIA INSURANCE GUARANTY ASSOCIATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 12, 1989.
    Filed May 1, 1990.

      A. Robert Degen, Philadelphia, for appellant (at 1470) and appellee (at 1471).
    Lise Luborsky, Philadelphia, for appellant (at 1471) and appellee (at 1470).
    Charles F. Love, Philadelphia, for Lupko, appellee (at 1470 and 1471).
    Frank C. Bender, Philadelphia, for Independent Pier, appellee (at 1470 and 1471).
    Before BROSKY, WIEAND and JOHNSON, JJ.
   JOHNSON, Judge:

In this declaratory judgment action appeal is taken from an order granting summary judgment to appellees Independent Pier Company and Michael Luko. We are asked to decide whether coverage provided by the Pennsylvania Insurance Guaranty Association Act (the PIGA Act), 40 P.S. § 1701.101 et seq. can be substituted as underlying insurance for the benefit of an excess insurer when the underlying insurer becomes insolvent and where the excess policy contains an unambiguous clause providing for excess coverage to begin at a substantially lower amount should there be no underlying insurance. Because we determine that the PIGA Act was not intended to be used in this way, we affirm.

Luko was employed as a longshoreman with Independent Pier Company. He was seriously injured on March 8, 1981 when he fell through a defective dock on the premises of Independent Terminal Company. On March 2, 1983, Luko brought an action against Independent Terminal Company for his injuries. During the relevant period, Independent Terminal and Independent Pier were each named insureds under a policy issued by Midland Insurance Company with limits of liability of $1,000,000.00 for each occurrence and $1,000,000.00 in the aggregate.

During that same period, Independent Terminal and Independent Pier were also insured by a consortium composed of Lloyd’s London and additional members of The Institute of London Underwriters (the Consortium) under an umbrella policy with limits of liability of $10,000,000.00 for any one occurrence or, in the alternative, the excess of $100,000.00 for any one occurrence where no underlying insurance existed. Thus, Independent Terminal and Independent Pier were completely covered for claims up to $10,000,000.00, with Midland covering the first $1,000,000.00 and the Consortium covering the excess up to $10,000,000.00.

On April 30, 1986 Midland was declared insolvent by order of the Supreme Court of New York. Addressing just such circumstances where an insurer becomes insolvent and thus exposes its policyholders to financial loss, The Pennsylvania legislature enacted the Pennsylvania Insurance Guaranty Association Act (the PIGA Act), 40 P.S. § 1701.102; Bethea v. Forbes, 519 Pa. 422, 548 A.2d 1215 (1988). As a condition to doing business in Pennsylvania, each insurer is required to participate in the Association (PIGA). The Act mandates that PIGA shall:

be obligated to make payment to the extent of the covered claims of an insolvent insurer existing prior to the determination of said insurer’s insolvency ... but such obligation shall include only that amount of each covered claim which is in excess of one hundred dollars ($100), and is less than three hundred thousand dollars ($300,000).

40 P.S. § 1701.201(b)(l)(i). A covered claim:

means an unpaid claim ... which arises under a property and casualty insurance policy of an insolvent insurer----

40 P.S. § 1701.103(5)(a).

Following Midland’s insolvency and its submission to liquidation proceedings, Independent Pier sought protection from PIGA with regard to Luko’s claim. In response to Independent Pier’s request for reimbursement to the extent of Midland’s liability, PIGA required that Independent Pier first seek coverage from the Consortium on the basis that the policy with the Consortium was insurance other than the policy of the insolvent insurer under the non-duplication provision of the Act:

Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy.

40 P.S. § 1701.503(a). When the Consortium failed to respond to Independent Pier’s request for information on the extent of its policy coverage, Independent Pier on March 23, 1988 commenced the declaratory judgment action now before us. The complaint asked the court to determine the coverage for which each insurance entity was responsible. Michael Luko was added as a plaintiff by stipulation of counsel, thus bringing all necessary and indispensable parties into the action.

In answer, the Consortium asked the court to declare that they are to provide no coverage for the first $1,000,000.00 of liability because their contract with the insureds was based upon the existence of underlying coverage. PIGA answered the declaratory judgment complaint by denying any obligation to provide coverage because of an alleged exclusion in the Midland policy excepting coverage of injury sustained by an employee in the course of his employment. If it were obligated to provide coverage under the Midland policy, PIGA asserted that its obligation is limited to the amount of the claim exceeding the Midland policy deductible of $25,000.00, and less than $100,000.00, and that, in any event, the insured is required first to exhaust its rights under the excess policy with the Consortium. The defendants filed a petition for removal to the U.S. District Court on April 28,1988, which was denied on August 29, 1988, and the case was remanded to the Court of Common Pleas.

On October 14, 1988 Independent Pier and Michael Luko filed a motion for summary judgment. The motion stated that the terms of the insurance contract with the Consortium provided coverage for any loss in excess of $100,000.00 if there was no underlying insurance. With respect to PIGA’s obligation, the motion asserted that 40 P.S. § 1701.101 et seq. required PIGA to supply the coverage that the insolvent underlying insurer was contractually obligated to provide. They asserted that PIGA’s obligation was any amount over the deductible of $25,000.00 and up to $100,000.00, the point at which the excess insurance coverage began.

The trial court granted the motion for summary judgment by issuing the following declaratory judgment order:

IT IS HEREBY ORDERED and DECREED that judgment is entered in favor of Plaintiffs, Michael Luko and Independent Pier Company, and against the Defendants as follows:
(a) Defendants, Lloyd’s of London {sic) and the Institute of London Underwriters, are obligated to provide coverage to the Plaintiff, Independent Pier Company, with respect to the claim of Michael Luko for any and all amounts in excess of $100,000.00 and to defend the action commenced on. behalf of Michael Luko to the extent required under the policies issued by them;
(b) Defendant, Pennsylvania Insurance Guaranty Association, is obligated to provide coverage to the Plaintiff, Independent Pier Company, in accordance with the provisions of the Pennsylvania Insurance Guaranty Association Act, 40 P.S. Section 1701.101 et seq. for any and all amounts between $25,100.00 to $100,000.00.

Order of April 12, 1989. Both defendants appeal. At 1470 Philadelphia 1989, the Consortium challenges the court’s conclusion that a clause in the contract requires it to “drop down” and provide some of what was primary coverage under the Midland policy when Midland became insolvent. At 1471 Philadelphia 1989, PIGA argues that an exclusion in the original Midland policy would have precluded Luko’s claim entirely and that thus PIGA would not be required to supply coverage.

The Consortium mounts a two-part challenge to the trial court’s decision. First, it argues that the trial court erred in deciding that its contract with the insureds provides that if no underlying insurance existed, then the Consortium’s liability would drop down to begin at $100,-000.00. The Consortium does not dispute that this first issue is purely one of contract interpretation. The Supreme Court of Pennsylvania has set forth the principles governing insurance contract interpretation:

The task of interpreting a contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language.

Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304-305, 469 A.2d 563, 566 (1983) (citations omitted), quoted in State Farm Mutual Automobile Insurance Co. v. Moore, 375 Pa.Super. 470, 475, 544 A.2d 1017, 1019 (1988); appeal denied in State Farm Mutual Automobile Insurance Co. v. Ohio Casualty Insurance Co., 521 Pa. 622, 557 A.2d 725 (1989). An insurance contract must be construed as a whole, and not in discrete units. Koval v. Liberty Mutual Insurance Company, 366 Pa.Super. 415, 531 A.2d 487 (1987); appeal denied 518 Pa. 619, 541 A.2d 746.

We have reviewed the contract of insurance, the briefs and the trial court opinion and conclude that the contract language is unambiguous. The Consortium contracted to provide coverage beginning at $100,000.00 if there is no underlying insurance. The policy contains a typewritten declaration portion, which lists the names of the insured entities and specific modifications to the general, printed contract to which it is attached. The limits of liability are set forth as follows:

U.S. $10,000,000 any one occurrence.
U.S. $10,000,000 annual aggregate — Products.
U.S. $10,000,000 annual aggregate Occupational Disease.
ONLY TO PAY THE EXCESS OF:
(A) The Limits of Underlying Insurances as per Schedule attached, or
(B) U.S. $100,000 any one occurrence where no Underlying Insurance.

The general contract provision section is in standard print. The standard form declaration page contains no specifics. Rather, the words “as attached” appear after each item. The following is set forth in.the general limits of liability section:

(a) the limits of the underlying insurances as set out in the attached schedule in respect of each occurrence covered by said underlying insurances, or
(b) [“AS ATTACHED” is stamped here] ultimate net loss in respect of each occurrence not covered my said underlying insurances.....

The trial court found that the presence of the two “(b)” clauses created an ambiguity and thus construed the contract in favor of the insured. We conclude that that the typewritten policy provisions supplant the general printed provisions. Hence, the contract provides for coverage beginning at $100,000 should no underlying insurance exist.

Second, the Consortium maintains that, if it is found that the insolvency of the primary insurer does activate coverage, causing its liability to “drop down,” then, by virtue of the existence of PIGA, its liability should begin at $300,000.00, the upper limit of PIGA’s statutory obligation, and not, as the court ordered, at $100,000.00. In response, PIGA asserts that it cannot be used as the Consortium’s underlying insurer. We agree that the guaranty created by the PIGA Act cannot function as “other valid and collectible insurance” within the meaning of the Consortium’s policies. We have decided that the Consortium’s liability begins at $100,000.00. PIGA’s liability is triggered only when the conditions of the PIGA Act are met:

The Act itself explicitly declares that the Association does not stand in the stead of the insolvent insurer until:
1. The claim in question is determined to be a “covered claim.” (40 P.S. § 1701.201, as that term is defined by 40 § 1701.103(5)).
2. The extent of the obligation of the Association on the covered claim is determined. (40 P.S. § 1701.201).
3. The claimant has exhausted his rights against his insurer under any provision in an insurance policy he maintains. (40 P.S. § 1701.503(a)).

Henninger v. Riley, 317 Pa.Super. 570, 575, 464 A.2d 469, 472 (1983).

Recently, this Court has interpreted the Act’s exhaustion provision in the context of uninsured motorist coverage, an interpretation that illustrates the proper application of the exhaustion provision. In Blackwell v. Pennsylvania Insurance Guaranty Association, 390 Pa.Super. 31, 567 A.2d 1103 (1989), the insolvency of the tortfeasors’ insurer recast them as uninsured motorists, and thus the plaintiff received uninsured motorist coverage from her own insurer. Because this did not cover the amount she sustained in damages, she sought to collect the entire amount of damages from PIGA. Holding that the plain meaning of the statute reduces recovery from PIGA by any amount received by other insurance coverage, we upheld a declaratory judgment that PIGA was not obligated to pay the amount already covered by the plaintiffs own uninsured motorist provision. 40 P.S. § 1701.503(a).

In the present case, the Consortium asks that we regard PIGA protection as “other insurance” as defined in its policy. They advocate that PIGA should become the underlying insurer, at least up to its statutory limit of $300,-000.00, at which point the Consortium would then assume its excess coverage obligation. To allow this would be to pervert the legislative intent to protect individuals whose insurance companies have become insolvent, and we refuse to so interpret the statute. “The statutory purpose is to place claimants in the same position that they would have been in if the liability insurer had not become insolvent ...” Blackwell, 390 Pa.Super. at 37, 567 A.2d at 1106 (emphasis added). The intent of the Act is not to protect other insurers by filling in for every aspect of the underlying insurance but rather to fill in only as the insolvency adversely impacts upon the insured. To illustrate, a section of the Act specifically prohibits insurers from using the category “covered claim” to mean amounts allegedly due them from other insurers:

A covered claim shall not include any amount due any insurer, reinsurer, insurance pool, or underwriting association, as a subrogation recovery or otherwise.

40 P.S. § 1701.103(5)(b). We conclude that the trial court correctly applied PIGA in its order.

PIGA’s main contention is that Independent Pier would not have been entitled to recover under the Midland policy, and that thus the claim is not a covered claim as defined in section 1701.103(5)(a) of the Act. PIGA asserts that, under the terms of the insurance contract, employees are excluded from coverage. After reviewing the contract of insurance as drawn up and agreed upon between the parties, we conclude that employees are, in fact, covered under the policy. We agree with the trial court’s conclusion that this is a matter of contract interpretation, and we concur in the court’s disposition that the Midland policy-does in fact cover employee Luko’s claim.

Applying the above-set-forth contract interpretation principles to the contract at issue, we conclude that PIGA’s position is unfounded. Independent Pier Company and Independent Terminal Company are each among the several named insureds named on an endorsement to the Midland policy. The policy contains the following clause in the Exclusions section of the standard printed contract:

EXCLUSIONS
This insurance does not apply:
(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury

However, the policy is amended by a special endorsement, which by its express terms modifies the standard policy. The endorsement states:

It is agreed that the “persons insured” provision is amended to include any employee of the named insured while acting within the scope of his duties as such, ...

The endorsement, a specifically bargained-for contract provision, clearly and uambiguously modifies the standard employee exclusion. Where the language of the policy, including specific modification through amendments or endorsements is clear and unambiguous, it cannot be construed to mean other than what it says. See United States Fidelity and Guaranty v. Griggs, 341 Pa.Super. 286, 491 A.2d 267 (1985). The insurance contract at issue provides coverage to employees of the named insured.

Even if the above-quoted contract modification did not exist, a severability clause in the contract would act to provide coverage for damages arising out of Luko’s injury. The definition section of the policy defines an insured as:

any person or organization qualifying as an insured in the “Persons insured” provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company’s liability.

(Emphasis supplied). Luko is an employee of Independent Pier Company, and under the standard (unmodified) contract, Independent Pier Company would not be insured for its employee Luko’s injury. However, Independent Terminal Company is another named insured, in addition to several other named entities. Luko is not an employee of Independent Terminal Company. Therefore, the above “sever-ability” clause provides for coverage of Luko’s injury with respect to Independent Terminal Company, the entity against whom Luko seeks to collect damages.

PIGA’s reliance upon Pennsylvania Manufacturers’ Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967) is misplaced. In that case, the court interpreted a standard automobile liability policy and concluded that the clear and unambiguous policy language excluded employees of the insured. This holding has no application to a case where, as here, the clear language of the policy does provide coverage for employees.

Finding no merit in the issues presented, we affirm the declaratory judgment order.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting.

I respectfully dissent from the reasoning and decision of my colleagues of the majority. In my opinion, the policy of umbrella coverage did not “drop down” when the underlying insurance carrier became insolvent. Even if it were to “drop down,” however, it would not “drop down” below three hundred thousand ($300,000.00) dollars for which there clearly was underlying coverage by the Pennsylvania Insurance Guaranty Association.

Michael Luko, a longshoreman employed by Independent Pier Company, was injured on March 8, 1981, while working on a pier owned by Independent Terminal Company. On March 2, 1983, Luko commenced an action against Independent Terminal Company to recover for the injuries which he had sustained.

At the time of the accident, Independent Pier Company and Independent Terminal Company were named insureds in a policy of comprehensive general liability insurance which had been issued by Midland Insurance Company. The policy contained a deductible or self-insured feature in the amount of twenty-five thousand ($25,000.00) dollars and had liability limits of one million ($1,000,000.00) dollars for each occurrence. Independent Pier Company and Independent Terminal Company were also protected by umbrella policies which had been issued by several underwriters at Lloyd’s and the Institute of London Underwriters (hereinafter “Lloyds”). The limit of this coverage, which was expressly designated to be in excess of the coverage of one million dollars provided by Midland Insurance Company, was ten million ($10,000,000.00) dollars. The umbrella policies also contained provisions that for claims not covered by “underlying insurance,” the underwriters would provide coverage for claims in excess of one hundred thousand ($100,000.00) dollars.

Approximately three and one-half years after Luko’s action had been commenced, Midland Insurance Company was declared insolvent by the courts of New York. By that time, Independent Pier Company and Independent Terminal Company had merged into a corporation known as Independent Pier Company. When the corporation called upon the Pennsylvania Insurance Guaranty Association (P.I.G.A.) to undertake the obligations of its insolvent liability carrier, P.I.G.A. directed the insured to seek coverage from Lloyds, the writers of the excess coverage policies.

Faced with a dispute between P.I.G.A. and Lloyds regarding coverage, Independent Pier Company filed an action for declaratory judgment. Luko was added as a party plaintiff by stipulation as an essential party. The trial court, in response to motions for summary judgment, held that P.I. G.A. was responsible for coverage to the extent that Luko’s claim and/or recovery did not exceed one hundred thousand ($100,000.00) dollars and that Lloyds was responsible for providing coverage for claims in excess thereof. Both P.I.G.A. and Lloyds appealed. The majority affirms. I would reverse.

Lloyds’ coverage is determined by the terms of the policies which it issued. By these terms, Lloyds agreed to pay liabilities in excess of the underlying insurance of one million ($1,000,000.00) dollars which had been issued by Midland Insurance Company or the excess of $100,000.00 if there were no “underlying insurance.” Where there was underlying insurance of one million dollars, Lloyds’ liability was to pay for liability incurred in excess thereof. There is nowhere in the Lloyds’ policy an agreement to insure against insolvency of the underlying insurance carrier. Midland Insurance Company was identified in the Lloyds’ policy as the underlying insurance carrier, and Lloyds clearly agreed to pay only the excess of liability over that underwritten by Midland.

My review of the policies discloses that this intent is clear. There is no ambiguity. Lloyds’ liability, according to the unambiguous terms of the policy, does not attach until the underlying insurance carrier or the insured has paid the amount of the underlying limit. Its policy provides for excess coverage, not primary coverage. Its coverage does not “drop down” merely because the underlying liability insurance carrier has become insolvent. See: Werner Industries, Inc. v. First State Insurance Co., 112 N.J. 30, 548 A.2d 188 (1988); Pergament Distributors, Inc. v. Old Republic Insurance Co., 128 A.D.2d 760, 513 N.Y.S.2d 467 (1987), appeal denied, 70 N.Y.2d 607, 519 N.Y.S.2d 1031, 514 N.E.2d 389 (1987); Wurth v. Ideal Mutual Ins. Co., 34 Ohio App.3d 325, 518 N.E.2d 607 (1987). Contra: Massachusetts Insurers Insolvency Fund v. Continental Casualty Co., 399 Mass. 598, 506 N.E.2d 118 (1987). The insolvency of the primary carrier does not alter the policy issued by the excess carrier so as to require the excess carrier to provide primary coverage. See: Mission National Ins. Co. v. Duke Transp. Co., Inc., 792 F.2d 550 (5th Cir.1986).

Under the Pennsylvania Insurance Guaranty Association Act of Nov. 25, 1970, P.L.-, No. 232, 40 P.S. §§ 1701.101 et seq., P.I.G.A. is required to stand in the shoes of an insolvent insurance carrier. Before it can be made to assume a liability of the insolvent carrier, however, it must first appear that the insolvent carrier provided coverage. In the instant case, P.I.G.A. argues that Midland did not provide coverage for the claim made by Luko because of the following exclusionary language in its policy:

This insurance does not apply:
(j) to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured or to any obligation of the insured to indemnify another because of damages arising out of such injury ...

P.I.G.A. contends that Luko was an employee of the insured and that his claim, therefore, is excluded from the coverage provided by the Midland policy. However, the “insured” is defined by the policy as

any person or organization qualifying as an insured in the “Persons insured” provision of the applicable insurance coverage. The insurance afforded applies separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the company’s liability, (emphasis added).

Here, Luko was employed by Independent Pier Company, a named insured, but his claim was against Independent Terminal Company, which was not his employer. For purposes of determining the obligations of the insurance carrier with respect to such a claim, Independent Terminal Company must be deemed “the insured.” Luko was not employed by Independent Terminal Company; and, therefore, his claim must be deemed the claim of a third person. His employment by Independent Pier Company does not preclude coverage where, as here, his claim has been directed against Independent Terminal Company. See: U.S. Fidelity and Guaranty Company v. Globe Indemnity Co., 60 Ill.2d 295, 327 N.E.2d 321 (1975). The severability of interests clause makes it abundantly clear that the use of the word “insured” in the exclusionary clause of the policy refers only to the person or entity for whom coverage is then in issue.

It is correct, as P.I.G.A. argues, that a contrary result wás reached under slightly different circumstances in Pennsylvania Manufacturers Association Insurance Co. v. Aetna Casualty & Surety Insurance Co., 426 Pa. 453, 233 A.2d 548 (1967). Recent decisions in other jurisdictions, however, have abandoned such a broad interpretation of the word “insured” and, in reliance upon the severability clause, have held that “the insured” means the person or entity against whom the claim has been made. See: United States Fidelity and Guaranty Co. v. Globe Indemnity Co., supra; Commercial Standard Insurance Co. v. American General Insurance Co., 455 S.W.2d 714 (Tex.1970). Cf. Patton v. Patton, 413 Pa. 566, 198 A.2d 578 (1964). In the instant case, the intent, as evidenced by the severability clause, is clear.

Midland Insurance Company’s policy of liability insurance provided coverage for Independent Terminal Co. in an amount not to exceed one million ($1,000,000.00) dollars. Because Midland became insolvent, P.I.G.A. must assume Midland’s obligations. By statute, however, P.I.G.A.’s liability cannot exceed three hundred thousand ($300,000.00) dollars. See: 40 P.S. § 1701.201(b)(l)(i). Within this statutory limit it seems clear to me that P.I.G.A. is an underlying insurer and is required to provide coverage to Independent Terminal Co. Thus, even if Lloyds’ excess coverage were to “drop down,” it would be required to provide coverage only for liability of Independent Terminal Co. in excess of three hundred thousand ($300,000.00) dollars. See: Washington Insurance Guaranty Association v. Guaranty National Insurance Co., 685 F.Supp. 1160 (W.D.Wash.1988).

For these reasons, I respectfully dissent from the majority’s decision to affirm the judgment entered in the trial court. I would hold that primary coverage, within the limits set by statute, must be provided by P.I.G.A. and that Lloyds’ coverage is only for such liability as exceeds one million ($1,000,000.00) dollars. Only in this way can we give effect to the unambiguous terms of the liability policies purchased by the insured.


author: WIEAND, Judge: KELLY, Judge,

text:
    573 A.2d 1147
    COMMONWEALTH of Pennsylvania v. Charles W. SHIELDS, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 18, 1989.
    Filed May 9, 1990.

      David C. Wertime, Chambersburg, for appellant.
    John M. Lisko, Waynesboro, for appellee.
    Before CAVANAUGH, WIEAND and KELLY, JJ.
   WIEAND, Judge:

Charles W. Shields, Jr. entered a plea of guilty to possession of a small amount of marijuana. At sentencing, he requested that he be placed on probation without verdict, as permitted by Section 17 of the Controlled Substance, Drug, Device and Cosmetic Act of April 14, 1972, P.L.233, as amended, 35 P.S. § 780-117. The trial court denied his request, placed Shields on probation for thirty (30) days and ordered him to pay in lieu of a fine the sum of two hundred ($200.00) dollars. A motion for reconsideration of the sentence was denied, and Shields filed the instant appeal. He asks that we review his sentence and find that the trial court abused its discretion by denying his request for probation without verdict. There was an abuse of discretion, he argues, because the trial court’s denial of probation without verdict was based solely and improperly on the fact that appellant had not entered his guilty plea until after the court’s time had been spent in hearing a pre-trial motion to suppress the marijuana found in appellant’s possession. This is a substantial issue; and, therefore, we allow the appeal.

Appellant did not have a right to be placed on probation without verdict. Whether to grant his request for probation without verdict was discretionary with the trial court. Commonwealth v. Rocco, 362 Pa.Super. 259, 523 A.2d 1181 (1987). It follows that a trial court’s denial of a petition for probation without verdict will not be reversed on appeal unless there has been an abuse of discretion.

The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, and discretionary power can only exist within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied, or where the record shows that the action taken is a result of partiality, prejudice, bias or ill will.

28 P.L.E. New Trial § 1.

We are constrained to conclude that it was an abuse of discretion for the trial court to deny appellant’s request for probation without verdict solely because appellant had exercised his right to test the propriety of the seizure of marijuana from his person. Contrary to the trial court’s belief, the creation of probation without verdict was not intended primarily to encourage defendants to plead guilty. By the specific language of Section 17 of the statute, a person is eligible for probation without verdict “if he pleads nolo contendere or guilty to, or is found guilty of, any nonviolent offense under this act.” 35 P.S. § 780-117(1) (emphasis added). A more significant purpose of the statute was to encourage the rehabilitation of minor drug offenders to the end' that they would mend their ways and abstain from the future use of substances which were deemed harmful to the user and to society. In any event, probation without verdict is not to be denied merely because the offender has inconvenienced a trial court by filing a pre-trial motion to suppress evidence. Cf. Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977) (improper to impose more severe sentence because defendant chose to stand trial rather than plead guilty).

Because the trial court abused its discretion, we will remand for resentencing. We do not thereby imply that appellant’s request for probation without verdict should be granted. We hold only that probation without verdict may not be denied merely because appellant filed a pre-trial motion to suppress evidence. In determining whether appellant should be granted probation without verdict or should be otherwise sentenced, the trial court must take into consideration the pre-sentence investigation which it ordered and all those factors which are relevant in determining an appropriate sentence for a person with appellant’s attributes and history who has committed the offense of possessing a small amount of marijuana under the circumstances present in this case.

The judgment of sentence is vacated, and the case is remanded for resentencing in a manner consistent with the foregoing opinion.

KELLY, J., files a concurring statement.

KELLY, Judge,

concurring:

There is a fine distinction to be drawn between showing lenience to the penitent offender who acknowledges guilt, and improperly penalizing a defendant who stands upon his constitutional right to have his guilt proved. Nonetheless, I agree with the majority that the trial court improperly focused on judicial economy considerations in construing 35 P.S. § 780-117(1).

I emphasize, however, that the discretion remains with the trial court to grant or deny the probation without verdict option. Subject to the minimal restrictions expressed in the majority opinion, that discretion remains broad.

I further emphasize that I read nothing in the majority opinion to require a trial court to grant such a disposition in any case. The legislature has granted discretion to the trial court; that discretion may be exercised by denying such dispositions in all cases, or in all but the most mitigated and extenuated cases without offending that authorization.

With these observations noted, I join the majority opinion.

      . Probation without verdict had been recommended by the probation officer who made a pre-sentence investigation for the court.

      . The record confirms that the trial court denied probation without verdict because the defendant had filed a motion to suppress evidence, which required a hearing.

      . In view of the proportions of the current drug epidemic and the societal consequences thereof, the reader can decide for himself or herself whether the legislative provision for probation without verdict is a realistic approach to a serious problem.


text:
    573 A.2d 1149
    COMMONWEALTH of Pennsylvania v. Harold POMERANTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1989.
    Filed Aug. 3, 1989.
    Motion to Publish Opinion Granted April 23, 1990.

      Nino Tinari, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

Harold Pomerantz appeals from an order denying his motion for return of property. We affirm in part and vacate in part.

Pomerantz asks this court, on appeal, to consider the questions of (a) whether certain property constitutes derivative contraband, and if so, (b) whether such property need be returned as having been illegally seized. Since we are unable to determine that Pomerantz has established the necessary predicate to raise these questions, we decline to consider those issues and affirm the order denying return of the property.

At the outset, we note that a motion for return of property pursuant to Pa.R.Crim.P. 324 is entirely distinct from a procedure with respect to seized property (forfeiture) pursuant to Sections 28 and 29 of the Act of April 24, 1972 (P.L. 233, No. 64) known as The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-128, 780-129 Rep.

The clear object of § 780-128, in a forfeiture proceeding, is to impose a penalty upon those who are significantly involved in criminal enterprises in violation of the drug act. Commonwealth v. Landy, 240 Pa.Super. 458, 469, 362 A.2d 999, 1005 (1976). By contrast, a motion for return of property pursuant to Rule 324 is intended to return goods to a person aggrieved by a search and seizure based upon the right to lawful possession and the non-contraband status of the goods. Pa.R.Crim.P. 324.

Rule 324 expressly provides:

RULE 324. MOTION FOR RETURN OF PROPERTY
(a) A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he is entitled to lawful possession thereof. Such motion shall be filed in the Court of Common Pleas for the judicial district in which the property was seized.
(b) The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.
(c) .... (emphasis added).

Under the rule, a party must, at a minimum, allege that he is entitled to lawful possession of the involved property. In the case before us, no evidence was submitted to the trial court that Pomerantz is entitled to lawful possession of the cash in dispute.

On or about February 26, 1988, Pomerantz filed a motion for return of property requesting an order “directing that the certain property seized from his residence ... be returned to him.” In support of the motion, Pomerantz alleged in Paragraph 4:

4. The above-described U.S. Currency seized is not contraband, nor was it ever the fruit of any crime; instead, it is the exclusive property of the Defendant obtained by legitimate business means.

Although no written response to the motion is contained in the certified record, or noted in the docket entries, a handwritten notation to the file shows “5/25/88, Room 788, Comm, opposed. C-9/26/88 Room 788 hearing, By the Court, s/ O’Keefe, J.”

A review of the entire hearing transcript from the Return of Property Hearing, September 26, 1988, 39 pages reveals that the averments contained in the motion were not offered as evidence, nor was any testimony offered by Pomerantz on any of the factual allegations of the motion.

The court, in its order denying the return of property, alludes to a Commonwealth’s Petition for Forfeiture. No such petition has ever been filed, nor did the Commonwealth, at any time during the hearing, orally seek to proceed under 35 P.S. §§ 780-128. We will not consider a petition that has neither been filed nor been orally presented to the trial court. Commonwealth v. Young, 456 Pa. 102, 114-16, 317 A.2d 258, 264 (1974); Commonwealth v. Lowry, 385 Pa.Super. 236, 560 A.2d 781 (1989). To the extent that the order of November 23, 1988 purports to “grant” a petition for forfeiture, it is hereby vacated.

Returning to the only matter properly before the hearing judge, namely the motion for return of property, we point out the confusion which resulted by virtue of the failure of the trial court to recognize the type of proceeding before him and to apply the appropriate burden of proof. On any motion for return of property, the moving party must first establish entitlement to lawful possession, Rule 324(a), before any obligation is placed upon the Commonwealth to prove that the property at issue is contraband. Rule 324(b). The Commonwealth did not have any burden to come forward at the outset since the proceeding did not involve a petition for forfeiture.

We do not suggest that the two matters may not be heard together. See Matter of Kulbitsky, 112 Pa.Commw. 477, 480, 536 A.2d 458, 459-60 (1988) (answer and new matter to Rule 324 motion raised Commonwealth request for forfeiture). Where, as here, the only matter before the court is a motion for return of property, a necessary element which must be proven to warrant the granting of the motion is the right of the moving party to lawful possession.

The Notes of Testimony of the hearing on the motion before the Honorable James D. McCrudden contain the following exchange between the court and counsel for both parties:

MR. KENNEDY [Asst. D.A., Respondent]: Judge, on Mr. Mungello’s other matter Harold Pomerantz, that matter is listed. The Commonwealth is ready to proceed. His Counsel is here for—
MR. MUNGELLO [Atty. for Petitioner Pomerantz]: Again, Your Honor, Mark Mungello. Again I’m here for Nino Tinari on behalf of Harold Pomerantz and we are ready to go.
MR. KENNEDY: This matter involves the return of 38 hundred dollars which was confiscated from Mr. Pomerantz in January of 1985____
MR. KENNEDY: Judge, we are ready to proceed. I ask the Petitioner testify first since he has the burden of proof in this case.
MR. MUNGELLO: That is correct, Your Honor? It’s my understanding the Commonwealth has the burden of proof to show by a preponderance of the evidence that the items sought to be returned were either contraband per se or contraband in a derivative sense.
THE COURT: I don’t really know but I was always under the impression the Commonwealth had the burden.
MR. KENNEDY: Though there are actually two burdens in this case, Your Honor. The Petitioner’s burden to show the items confiscated were lawfully possessed, and the Commonwealth has the burden of showing on the contrary that they constitute derivative contraband.
In this case I’ll defer to the Court’s wishes, Your Honor. It really doesn’t make—
THE COURT: Let me ask you this. In other cases I have had didn’t the Commonwealth proceed first?
MR. KENNEDY: The distinction that we have made in this courtroom, Your Honor, is that in drug forfeiture hearings or hearings on petitions for forfeiture of money filed by the Commonwealth we proceed first, seek to proved that the items constitute derivative contraband and then it becomes in that case the Defendant’s burden of proof to prove on the contrary the items were lawful possessed.
On the other hand, the petition for the return of property which is filed by the Defendant for the return of items, we follow the procedure that they proceed first to show lawful possession of the items and then the Commonwealth follows by showing derivative contraband.
THE COURT: Is that the way Judge O’Keefe did it?
MR. KENNEDY: That’s the way we did it with Judge O’Keefe, Your Honor.
THE COURT: I’ll follow Judge O’Keefe. I don’t know.
MR. MUNGELLO: Judge, really I think it’s Rule 324 the Rules of Procedure that provides for this and the case law construing it, I don’t think the case changes in either context, either forfeiture or return of property.
These items that we seek to have returned were seized pursuant to an investigation. And the only standard by which the Commonwealth may keep them is if they were contraband per se or contraband derivatively. And the Commonwealth must prove that in either context. And if the Commonwealth — if Mr. Pomerantz were not even here today, Your Honor, I could lawfully waive his presence.
And if the Commonwealth could not place any evidence on the record that the items that we are seeking returned were contraband, those items would have to be returned to him. He does not have to be present for this hearing.
THE COURT: I’m not sure. Look, I have never looked that up. I don’t have the slightest idea of what the procedure is, but if Counsel tells me that Judge O’Keefe followed a certain procedure, I will for today only I will follow the procedure that was followed by Judge O’Keefe. I will definitely look into it myself because I know I will make my own opinion, my own decision tomorrow.
MR. MUNGELLO: Judge, can I have ten minutes to go to the libray [sic] and find the case law for you because I know right where it’s located?
MR. KENNEDY: Judge, I don’t think it makes that big of a difference. The Commonwealth will proceed.
THE COURT: Fine.
MR. KENNEDY: Commonwealth calls Officer Matrisciano.
THE COURT: Counsel, is the rule—
MR. MUNGELLO: I think it’s 32], Your Honor, the Rules of Criminal Procedure.
MR. KENNEDY: I don’t think the rules say — well, if you read the rule, Your Honor, Pm sure—
MR. MUNGELLO: The rule itself won’t answer the question.
MR. KENNEDY: It won’t answer the question; it’s really a matter that’s within the discretion of the Court.
MR. MUNGELLO: The case law construing it, Your Honor, however, which I have researched before I think will demonstrate.
THE COURT: Go ahead.
COMMONWEALTH EVIDENCE
.., POLICE OFFICER DAVID MATRISCIANO, BADGE NO. 4182, 19TH POLICE DISTRICT, having been duly sworn, was examined and testified as follows ____

Notes of Testimony, September 26, 1988, pages 4-8 (emphasis added).

From this transcript it is apparent that the Commonwealth initially recognized the procedural distinction between return of property cases and forfeiture cases. It is also apparent that the hearing court readily conceded its unfamiliarity with the procedure. Sadly, the only evidence offered at the hearing was by Police Officer Matrisciano on the issue of whether the money seized would be determined to be derivative contraband. There was no attempt to establish ownership or entitlement to lawful possession at any time during the hearing. Where the trial court is not provided with credible evidence as to ownership or entitlement, a motion for return of money should not be granted. Cf. Grossman v. Commissioner of Police, 318 Pa.Super. 584, 588, 465 A.2d 1007, 1009-10 (1983) (failure of movant to show he is the real owner of money seized).

We conclude that Pomerantz has failed to sustain his burden, on a motion for return of property, that he is entitled to lawful possession, as required by Rule 324(a). We also conclude that the Commonwealth may not benefit from an order granting forfeiture where no petition for forfeiture has been presented to the court. See Commonwealth v. Myers, 298 Pa.Super. 272, 279 n. 2, 444 A.2d 1170, 1174 n. 2 (1982). We express no opinion as to whether the Commonwealth might prevail, were a petition for forfeiture pursuant to 35 P.S. § 780-128 to be filed.

Accordingly, that portion of the order of November 23, 1988 which denied return of the money is affirmed. That portion of the order purporting to grant relief to the Commonwealth on a nonexistent petition for forfeiture is vacated.

Order affirmed in part and vacated in part.

      . Repealed and replaced by Section 4 of the Act of June 30, 1988 (P.L. 464, at 326-331, No. 79), 42 Pa.C.S., Chapter 68, §§ 6801, 6802.


author: JOHNSON, Judge.

text:
    573 A.2d 1153
    COMMONWEALTH of Pennsylvania v. Paul L. REEFER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1990.
    Decided May 1, 1990.

      Joel A. Klein, Coraopolis, for appellant.
    Claire C. Capristo, Deputy Dist. Atty., Pittsburgh, for Com., appellee.
    Before DEL SOLE, JOHNSON and FORD ELLIOTT, JJ.
   JOHNSON, Judge.

Following a nonjury trial, Judge Judith L.A. Friedman convicted Paul L. Reefer of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault and corruption of minors. Judge Friedman sentenced Reefer to an aggregate term of five to twenty years’ imprisonment after merger.

On direct appeal, Reefer now contends the trial court erred in ruling that the Commonwealth’s two witnesses — the thirteen-year old victim and his mother — could not be impeached through testimony of defense witnesses regarding the past sexual conduct of the two Commonwealth witnesses. We disagree with this contention and affirm the judgment of sentence.

Reefer argues that the trial court erroneously relied upon Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288 (1941), cited in Packel and Poulin, Pennsylvania Evidence, § 608.10, page 442 (1987 ed.) for the proposition that witnesses can be contradicted only on matters germane to the issue trying, and that no contradiction is permitted on collateral matters. We find no error by the trial court.

On the third day of trial, March 10, 1989, after the Commonwealth had rested the previous afternoon, defense counsel attempted to put three witnesses on the stand. The offer of proof was as follows:

[DEFENSE COUNSEL] MR. KLEIN: These witnesses are individuals who know Rita Reefer and/or John Reefer — strike that — John Wampler and have had contact with both of these individuals, have either been propositioned by these people or have actually been physically touched by these people in a sexual manner. They will testify as to what these people are doing or have done with them.
[ASST.D.A.] MR. DERMODY: I submit that none of that is relevant.

Reefer contends on this appeal that the analysis of the trial court’s conduct on this issue must be undertaken in the light of the Rape Shield Law, 18 Pa.C.S. § 3104. We agree with the Commonwealth’s position that the proffered evidence is properly excludable without considering the Rape Shield Law. Consent was never an issue in this prosecution involving a thirteen-year old minor boy. Nor was the proffered evidence otherwise admissible.

Evidence that other persons may have had sexual contact with a minor victim — which evidence would not prove exculpatory for the defendant then on trial — is properly refused on simple grounds of relevancy. Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504, 506 (1989). Ordinary rules of evidence will exclude testimony that does not tend to prove or disprove a material fact in issue, or to make such a fact more or less probable, or if it does not afford the basis for a logical or reasonable inference or presumption as to the existence of a material fact in issue. Commonwealth v. Haight, 332 Pa.Super. 269, 481 A.2d 357 (1987), affirmed 514 Pa. 438, 525 A.2d 1199 (1987). In the case now before us, we are unable to see how the testimony of the three proffered witnesses concerning their sexual contacts with either the victim or his mother is in any way relevant to a determination as to whether Reefer committed the acts for which he was then undergoing trial. Cf. Commonwealth v. Johnson, 389 Pa.Super. 184, 196-199, 566 A.2d 1197, 1202-04 (1989) (Johnson, J., concurring).

Reefer heavily relies on Commonwealth v. Black, 337 Pa.Super. 548, 487 A.2d 396 (1985) in asking us to remand this case for a new trial “so the defense may introduce evidence for the purpose of showing bias, or motive, or to attack the credibility of his accuser.” Brief for Appellant, Conclusion, page 14. As we explained in Commonwealth v. Coia, 342 Pa.Super. 358, 492 A.2d 1159, 1161 (1985), in deciding Black:

we narrowly held that it was constitutionally impermissible to exclude, under the Rape Shield Law, evidence of prior sexual conduct with third persons, offered to reveal a specific bias against the accused and therefore a motive to make a false accusation, so as to deny the accused the right of confrontation.

Nowhere in the record, nor in the Brief on appeal, does Reefer claim that he would connect the alleged sexual activity involving the excluded defense witnesses with a motive for hostility by the victim, or his mother, against him. The excluded evidence in Black concerned the defendant’s ability to cross-examine the prosecutrix/victim about her incestuous relationship with her brother, who had been driven from the home for that reason by the defendant. We face nothing like that in this case.

Were we to review this issue under the Rape Shield Law, as Reefer suggests, we would reach the same conclusion. In Commonwealth v. Johnson, supra, this court stated:

we hold that the Rape Shield Law is a bar to admission of testimony of prior sexual conduct involving a victim, whether it is consensual or the result of nonconsensual or assaultive behavior, unless it has probative value which is exculpatory to the defendant.

389 Pa.Super. at 195-196, 566 A.2d at 1202. (emphasis added).

This holding by our court in Johnson restates the statutory command found in the Rape Shield Law that evidence must first be relevant, that is to say “otherwise admissible pursuant to the rules of evidence”, before an analysis under the Rape Shield Law can proceed.

A trial court’s ruling on evidentiary questions is within the sound discretion of that court and will not be reversed absent a clear abuse of discretion. Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). Following our review of the entire record, and particularly the Notes of Testimony of March 10, 1989, pages 2-9, we conclude that the distinguished trial judge properly exercised her discretion in excluding the proffered testimony.

The judgment of sentence is AFFIRMED.