author: MONTEMURO, Judge:

text:
    585 A.2d 1109
    OHIO CASUALTY INSURANCE COMPANY, Appellant, v. Charles L. SPENCE, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Feb. 1, 1991.

      Peter J. Hoffman, Philadelphia, for appellant.
    Eric S. Plaum, Philadelphia, for appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

As appellee, Charles Spence, was getting into his car on December 12, 1984, he was struck by an automobile driven by an uninsured drunk driver and was thereby rendered a permanent quadriplegic. Appellant Ohio Casualty Insurance Company (“Ohio Casualty”) provided the insurance coverage on Spence’s automobile in accordance with the Pennsylvania No-Fault Motor Vehicle Insurance Act. Pursuant to § 203(b) of the No-Fault Act, Spence had elected that his private health care carrier (Blue Cross/Blue Shield) would be the primary provider of his basic loss benefits. Thus, Ohio Casualty, as the no-fault provider, has paid for those medical and rehabilitative care expenses which have exceeded the collectible benefits from Blue Cross/Blue Shield.

From the date of his accident in December, 1984 until June, 1986, Spence was treated as an in-patient at various hospitals and rehabilitation centers. Since June 1986, Spence has resided in his sister’s home which has been modified to accommodate Spence’s wheelchair and other needs. Spence’s quadriplegic condition necessitates certain licensed practical nurse services, nursing aide services and related care from other health care providers. Specifically, Spence requires daily care to treat and prevent infection of his bowels, urinary tract system and bed sores. These services may be properly classified as life-sustaining, for without this care, Spence would develop complications such as an impacted bowel and toxic urinary sepsis, which could be fatal if left unattended.

In August, 1989, Ohio Casualty filed this action for a declaratory judgment, seeking a determination that according to this Court’s interpretation of the No-Fault Act set forth in the case of Pennsylvania National Mutual Casualty Insurance v. Fertig, 382 Pa.Super. 335, 555 A.2d 208 (1989), appeal granted 571 A.2d 384, 524 Pa. 622 (1990), Ohio Casualty is no longer obligated to pay for Mr. Spence’s medical treatment which is being rendered by the trained professional personnel described above. After the parties submitted the case to the trial court on a stipulation of facts, the trial court found that Fertig, supra, did not control this case and that Spence’s medical expenses are “allowable expenses” under § 103(A) of the No-Fault Act. Following denial of post-trial motions, Ohio Casualty brought this appeal.

The sole issue on appeal is whether the home-administered health care being rendered to Mr. Spence by the trained health care providers are allowable expenses under § 103(A) of the No-Fault Act. Section 103(A) of the Act provides:

“Allowable expense” means reasonable charges incurred for, ..., reasonably needed and used products, services, and accommodations for:
(A) professional medical treatment and care; ...

40 P.S. § 1009.103(A). The Act does not further define “professional medical treatment and care.” The dispute here centers on whether the services being provided to Spence constitute professional medical treatment and care.

Ohio Casualty relies on Fertig, supra, where this Court held that the no-fault insurance carrier was not required to pay room charges in a nursing home where the insured, a quadriplegic, lived. Fertig, supra, 382 Pa.Superior Ct. at 339, 555 A.2d at 210. The evidence in Fertig showed that the insured had reached the maximum level of recovery and was no longer a candidate for rehabilitative services, but was in need of the maintenance and support provided by the nursing home. The Fertig court found the case of Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985) to be directly controlling. In Reilly, the Supreme Court discussed what constitutes “medical and vocational rehabilitation services” within § 103(C) of the Act and concluded that the cost of custodial services provided by the Woods School where the quadriplegic plaintiff resided were not recoverable as medical and vocational rehabilitative services from the no-fault carrier. Thus, the plaintiff could recover these costs as special damages from the tortfeasors. Id., 507 Pa. at 228-34, 489 A.2d at 1303-1306. Although in Reilly the supreme court did not cite or discuss § 103(A) of the No-Fault Act, the Fertig court nevertheless concluded that under the holding in Reilly, custodial nursing home charges were not recoverable under § 103(A) of the Act.

We disagree with Ohio Casualty that Reilly and Fertig control the outcome of this case. Although similarities exist between this case and the Reilly and Fertig cases insofar as Mr. Spence has stopped receiving rehabilitation therapy and has achieved the maximum level of orthopedic and neurological improvement that he can be expected to attain during his lifetime, the record shows that Spence continues to receive medical treatment from trained professionals for complications resulting from his quadriplegia. The absence of the bowel and bladder care could prove to be fatal to Mr. Spence. There is nothing in Reilly and Fertig that indicates that the insureds were receiving the kind of treatment which Spence requires. Reilly and Fertig concerned whether the no-fault carrier was responsible for institutional charges for room and board. We find that the instant case poses a different question, as Ohio Casualty seeks to deny the cost of Spence’s necessary medical treatments, not charges for room and board at an institution.

We have no hesitation in agreeing with the trial court that the treatment Spence continues to receive falls within the plain meaning of the phrase “professional medical treatment and care” under section 103(A) of the No-Fault Act. We agree with the trial court that

[t]he common definition of professional medical treatment and care would include the services which are being rendered to the Defendant, including the bowel program, urinary tract program and the decubiti care. The Defendant is receiving a course of therapy prescribed by his physicians which is being administered at his residence which can be categorized as medical treatment which restores his bodily functions and is of a life-sustaining nature. As such, these expenses are clearly recoverable from the Plaintiff under the No-Fault Act as “allowable expenses” for professional and medical treatment and care.

Trial Court Opinion 3-4.

Ohio Casualty argues that because Mr. Spence’s recovery has plateaued and further nursing services will neither rehabilitate him nor restore his bodily functions to their pre-accident state, the services do not fall within the meaning of “medical treatment” under the No-Fault Act. Brief for Appellant at 16. We decline to accept Ohio Casualty’s proposed reading of the term “professional medical treatment,” as their interpretation equates § 103(A) of the Act, dealing with medical treatment and care, with § 103(C) of the Act, dealing with medical and vocational rehabilitation services. The Act defines “medical and vocational rehabilitation services” as “services necessary to reduce disability and to restore the physical, psychological, social, and vocational functioning of a victim____” 40 P.S. § 1009.103. Thus, Ohio Casualty’s suggested definition of “professional medical treatment and care” mirrors the Act’s definition of “medical and vocational rehabilitation services,” in effect robbing § 103(A), “professional medical treatment and care,” of any independent meaning. This interpretation violates the basic canon of statutory interpretation which holds that “[e]very statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). We do not believe that our Legislature intended § 103(A) of the Act to be mere surplusage.

For the foregoing reasons, we affirm the order of the trial court.

Order affirmed.

      . Act of July 19, 1974, P.L. 489, No. 176, 40 P.S. § 1009.101 et seq., repealed by Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1984.

      . Ohio Casualty states in its brief that the only difference between this case and Fertig is that "Mr. Fertig’s bowel, bladder and decubiti (bed sore) care was accomplished by the nursing staff of the nursing home and included in his room and board charge, whereas the identical custodial care Mr. Spence receives is administered in his home by nursing personnel.” Brief for Appellant at 9. We have carefully read Fertig and have found nothing which indicates that the room and board charges included expenses for bowel, urinary tract system and decubiti care.


source: Caselaw Access Project

license: Public Domain

text:
    585 A.2d 1112
    COMMONWEALTH of Pennsylvania v. Bruce DIEHL, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1990.
    Filed Feb. 1, 1991.

      Michael Dennehy, Danville, for appellant.
    Scott W. Naus, Dist. Atty., Bloomsburg, for Com., appellee.
    Before MONTEMURO, TAMILIA and HOFFMAN, JJ.
   MONTEMURO, Judge:

This case arises from the appeal of appellant, Bruce Diehl, who was adjudged guilty by jury, on May 11, 1988, of criminal conspiracy to commit theft and burglary. Appellant was sentenced to seven to twenty-three months in the Columbia County jail; and, it is from this judgment of sentence that the instant appeal arises.

The pertinent facts of this case revolve around the burglary of a Firestone store, located in Bloomsburg, Pennsylvania, on the evening of February 1, 1988. Pursuant to the testimony of two witnesses and co-conspirators to the crime, Michael Vial and Richard Barnes, evidence was introduced which showed that, on the evening in question, appellant, Vial and Barnes were driving around the town of Bloomsburg when Vial and Barnes decided, pursuant to a conversation held in the presence of appellant, to burglarize the Firestone store. Appellant, the driver of the car, parked the car near the shopping plaza where the Firestone store was located and waited while Vial and Barnes broke through the rear window of the store. Once inside, Vial and Barnes opened the cash register, removed $20.15 in change and took two alternators located in the store. Upon exiting the store, appellant drove Vial and Barnes from the scene. Barnes kept the cash and Vial took one of the two alternators. The other alternator was allegedly left in the car with appellant. Appellant did not testify at trial; and, neither Vial nor Barnes were charged with the burglary, having entered into a plea agreement with the Commonwealth prior to the time of appellant’s trial.

Based upon the above facts, appellant raises three (3) issues for review:

I. WHETHER THERE WAS SUFFICIENT EVIDENCE OF AN AGREEMENT AMONG APPELLANT, VIAL AND BARNES TO SUPPORT APPELLANT’S CONVICTIONS OF CONSPIRACY TO COMMIT THEFT AND BURGLARY;
II. WHETHER THE DISTRICT ATTORNEY’S COMMENT DURING CLOSING ARGUMENT, WHICH STATED THAT THERE WAS “NO CONTRARY EVIDENCE”, AMOUNTS TO REVERSIBLE ERROR; AND,
III. WHETHER THE COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THE COMMONWEALTH’S TWO WITNESSES WERE “PAID INFORMERS”, TESTIFYING UNDER A PRIOR PLEA AGREEMENT.

For the following reasons, we affirm the judgment of sentence imposed.

With regard to appellant’s contention that there was insufficient evidence to support his conviction of conspiracy, our scope of review is limited to viewing the evidence in the light most favorable to the Commonwealth, drawing all proper inferences from the evidence in such light, and determining whether the jury could reasonably have found that all the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989). We agree with the opinion of the trial court that there was sufficient evidence to find appellant guilty of conspiracy to commit theft and burglary. To convict a person of conspiracy,

... [a] factfinder must conclude that he [defendant] reached an agreement with his co-conspirator to commit the crime. Commonwealth v. Graves, 316 Pa.Super. 484, 463 A.2d 467 (1983). Direct proof of the corrupt agreement, however, is not necessary. Commonwealth v. Brown, 351 Pa.Super. 119, 505 A.2d 295 (1986). “An explicit or formal agreement to commit crimes can seldom, if ever, be proved and it need not be, for proof of a criminal partnership is almost invariably extracted from the circumstances that attend its activities.” Commonwealth v. Campbell, 353 Pa.Super. 178, 509 A.2d 394 (1986) quoting Commonwealth v. Strantz, 328 Pa. 33, 43, 195 A. 75, 80 (1937) ...

Commonwealth v. Lyons, 390 Pa.Super. 464, 472, 568 A.2d 1266 (1989), citing Commonwealth v. Anderson, 381 Pa.Super. 1, 15-16, 552 A.2d 1064, 1071 (1988).

In the instant case, the Commonwealth met its burden of proof by introducing circumstantial evidence of an illicit agreement among appellant, Vial and Barnes. The evidence, presented by the two witnesses and alleged co-conspirators, shows that Vial and Barnes were engaged in a conversation, concerning the burglary of the Firestone store, while in the presence of appellant. Appellant subsequently drove Vial and Barnes to the Firestone store and waited in the car while the two co-conspirators broke into the store. After exiting the store, Vial and Barnes re-entered the car which appellant was driving; and, thereafter, appellant drove Vial and Barnes from the scene of the crime, with the illegal merchandise present in appellant’s car. This evidence, viewed in the light most favorable to the Commonwealth, leads to the inference that appellant was in illicit agreement with the two co-conspirators. Appellant’s reliance upon Commonwealth v. Finley, 477 Pa. 382, 383 A.2d 1259 (1978) is, therefore, incorrect.

In Finley, our Supreme Court reviewed the circumstantial evidence presented by the Commonwealth and found that evidence insufficient to convict appellant of murder, burglary and criminal conspiracy. The Commonwealth had introduced testimony, at trial, of only one (1) witness and alleged co-conspirator, who testified that: 1) he was not present in appellant’s car at any time prior to the car’s arrival at the scene of the crime; 2) he was not sure if appellant was waiting prior to his arrival at the scene; and, 3) he was not certain if appellant was driving upon leaving the scene of the crime. After reviewing this evidence, the Court found that it was mere speculation and guesswork to infer that appellant had any knowledge of the common plan among the occupants of appellant’s car and the witness to commit the crimes involved, or that appellant in any way aided or abetted the commission of the common plan. Therefore, the Court concluded that appellant’s mere presence at the scene was insufficient to find him guilty of conspiracy. Id., 477 Pa. at 390, 383 A.2d at 1263.

In the instant case, there is no possibility of guesswork and speculation as the circumstantial evidence presented by the Commonwealth herein clearly raises the inference that appellant had knowledge of the common plan of the two co-conspirators and aided and abetted that plan by driving the two co-conspirators to and from the scene of the crime. See discussion above. Therefore, appellant’s first issue is meritless.

Appellant also argues that the trial court erred in . denying appellant a mistrial when the district attorney commented, in closing, that there was no contrary evidence which would show that appellant did not commit the crime. We also find this contention to be without merit.

It is certainly true that a defendant has an absolute right to refrain from testifying. It is further true that neither counsel may make reference to the fact that a defendant has refused to testify on his own behalf. As stated in 42 Pa.C.S.A. § 5941,

(a) General rule.—Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him; nor may the neglect or refusal of any defendant, actually upon trial in a criminal proceeding, to offer himself as a witness, be treated as creating any presumption against him, or be adversely referred to by court or counsel during the trial.

42 Pa.C.S.A., § 5941(a). If the Commonwealth in any way violates this rule, it bears the burden of establishing that any error it made is harmless beyond a reasonable doubt. Commonwealth v. Davis, 452 Pa. 171, 177, 305 A.2d 715, 719 (1973), citing Chapman v. California, 386 U.S. 18, 26, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). It is then our duty to determine whether there is any reasonable possibility that the error might have contributed to appellant’s conviction. Commonwealth v. Davis, supra, citing Chapman v. California, supra. And, even if there is a “reasonable possibility” that the error contributed to conviction, the error can be held harmless if the “ ‘properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the ... [constitutional error] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the ... [constitutional error] was harmless error.’ ” Commonwealth v. Davis, supra, citing Schneble v. Florida, 405 U.S. 427, 430, 92 S.Ct. 1056, 1059, 31 L.Ed.2d 340 (1972). See also Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1981).

Applying the reasoning set forth in Commonwealth v. Davis to the facts of this case, we find that there is no reasonable possibility that the Commonwealth’s comment contributed to the conviction of appellant. Further, assuming arguendo that there was a reasonable possibility that the error contributed to appellant’s conviction, upon applying the exception as enunciated in Davis, we find that the limited and vague language utilized by the Commonwealth was insignificant in comparison to the properly admitted evidence. As the Commonwealth’s limited reference to “no contrary evidence” does not rise to the level of prejudice required pursuant to the guidelines and decision in Commonwealth v. Davis, the error committed herein was harmless.

Finally, we approach appellant’s third contention. Appellant alleges that the trial court erred in failing to give an instruction to the jury encompassing the standard jury instruction entitled, “Commonwealth Witness A Paid Informer”. This standard instruction states that:

In deciding whether or not to believe......you should be guided by the following principles which apply specially to the testimony of a paid informer:
You should examine the testimony of _____ closely to determine if it is colored in such a way so as to implicate the defendant falsely in furtherance of.......’s own self-interest. This is because ..... testified for pay. Therefore, although you may convict the defendant on the testimony of.....standing alone, you must consider.....'s interest in deciding whether or not to believe him.

Pa.SSJI [Crim.] 4.06.

This issue obviously revolves around whether the two co-conspirators were “paid informers”, so as to fall within the provisions of the above instruction. The trial judge, in instructing the jury, included a general charge concerning the credibility of the two witnesses based upon their criminal records. He further included an instruction concerning the corrupt source of the two witnesses’ testimony based upon their roles as accomplices to appellant and the crime committed. In responding to the request of appellant to include the “paid informer” charge, the trial judge concluded that the charge was not applicable as the “... co-defendants had pleaded guilty and served their sentences prior to testifying against the Defendant. Therefore, a charge on the question of credibility because of a plea agreement was not warranted in this instance.” See Opinion of Trial Court, December 15, 1988, p. 5. We agree with the trial court’s conclusion that the “paid informer” instruction was not applicable. However, we reach this conclusion based upon the fact that the two co-conspirators do not fall within the definition of “paid informer”.

It must be noted that this case is one of first impression. In enunciating the proper standard of review, we start with the legal proposition that the Standard Jury Instructions are only guides to the trial judge. He or she is free to deviate from them or ignore them entirely. Mackowick v. Westinghouse Elec. Corp., 373 Pa.Super. 434, 541 A.2d 749 (1988), aff'd. 575 A.2d 100. Further, “[a]s a general rule, ‘[T]he refusal to give a proper instruction requested by a party is a ground for a new trial only if the substance thereof has not otherwise been covered by the trial court’s general charge.’ ” Commonwealth v. LaMassa, 367 Pa.Super. 54, 58, 532 A.2d 450, 452 (1987), citing Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 269, 486 A.2d 1009, 1011 (1984) (citation omitted). And, “[i]n viewing jury instructions for reversible error, we must read the charge as a whole. Error cannot be predicated on isolated excerpts of the charge; it is the general effect that controls.” Commonwealth v. Mason, 358 Pa.Super. 562, 580, 518 A.2d 282, 291 (1986), alloc. den. in 516 Pa. 640, 533 A.2d 711.

Appellant seeks to argue that the two witnesses in the Commonwealth’s case-in-chief were “paid informers” as they entered a plea agreement, prior to testifying against appellant, which granted them immunity from prosecution on the burglary charge and which reduced their sentences for prior offenses committed. Appellant cites various federal cases in support of this argument.

Initially cited is Fletcher v. United States, 158 F.2d 321 (D.C.Cir.1946), wherein the government utilized the testimony of an informer, who was paid $6 dollars a day to “turn up” cases involving violations of narcotics laws. Also cited is United States v. Daniels, 191 F.Supp. 129 (E.D.Pa.1961), wherein the government utilized a drug addict/informer to entice the defendant into purchasing narcotics. The United States District Court for the Eastern District determined that where the government utilizes testimony of paid drug informers and addicts, it is within the jury’s sole discretion to judge the credibility of such testimony, in light of the informer’s narcotics conviction and his general character. Id. at 131. All other federal case law in this area involves informers who, prior to the commission of any crime, were paid, either with money or with promises of reduced charges or sentences, to entice the various defendants to commit the crimes. See On Lee v. United States, 343 U.S. 747, 72 S.Ct. 967, 96 L.Ed. 1270 (1952); Amaya v. United States, 373 F.2d 197 (10th Cir.1967); Government of Virgin Islands v. Hendricks, 476 F.2d 776 (3rd Cir.1973). No federal or state case law has ever broadened this instruction to include two witnesses who consent to a plea agreement after the crime. Therefore, we will not broaden the limited scope of the standard instruction to encompass appellant’s argument herein.

Further, in viewing the jury charge as a whole, the substance of appellant’s requested instruction was contained in the general jury instructions given.

In charging the jury on the credibility of the two co-conspirators, the trial judge stated that:

[t]he only purpose for which you may consider the evidence of prior convictions in deciding whether or not you believe all or a part of their testimony as given in this particular case, and in so deciding you may consider the types of crimes that they admitted they committed, how long ago the crimes were committed, how they related to the crimes in question and how they would affect the likelihood that the witnesses, Barnes and Vial, testified truthfully in this case.

(N.T., May 11, 1989, p. 65). Further, the trial judge instructed the jury that:

[sjince both Michael Vial and Richard Barnes were accomplices in this case, to the Defendant alleged accomplices at least, their testimony, that is of Michael Vial and Richard Barnes, has to be judged by you as Jurors by certain special cautionary rules, and because experience shows us that an accomplice, when caught, will often try to place the blame falsely on someone else, he may testify falsely in the hope of obtaining favorable treatment or for some other corrupt or wicked motive.

(N.T., May 11, 1989, p. 65) (emphasis added). These instructions adequately covered the character, veracity and possible interests of the two co-conspirators in testifying against appellant. Therefore, we will not reverse the decision of the trial court.

Based upon the foregoing reasons, judgment of sentence is affirmed.

      . 18 Pa.C.S.A. §§ 903(a)(1) and (2), respectively.

      . Although the notes of testimony do not contain the transcribed notes of counsels' closing arguments, both the trial court and all parties of record admit that the district attorney utilized certain general language to this effect. We, therefore, address this issue.

      . Further support for this conclusion is found in the evidence introduced to the jury on cross-examination. This evidence showed that both co-conspirators had committed various other crimes prior to the instant matter. Appellant’s counsel cross-examined them extensively on their records. Appellant’s counsel further questioned them as to their purposes in testifying against appellant, to which both witnesses admitted that they had entered their respective plea agreements in return for testifying against appellant and various other defendants. (N.T., May 11, 1989, pp. 20-21 and 31-32). The jury was, therefore, made fully aware of the possibility that the two co-conspirators held an interest in testifying against appellant.


author: BECK, Judge: OLSZEWSKI, Judge,

text:
    585 A.2d 1117
    COMMONWEALTH of Pennsylvania v. Byron L. HALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 4, 1990.
    Filed Feb. 4, 1991.

      Joshua D. Lock, Harrisburg, for appellant.
    Daniel G. Ehrgood, Asst. Dist. Atty., Lebanon, for Com.
    Before OLSZEWSKI, BECK and HOFFMAN, JJ.
   BECK, Judge:

Appellant Byron L. Hall was found guilty of escape while he was a prisoner participating in a work release program. On appeal he challenges the sufficiency of the evidence under the escape statute. 18 Pa.C.S.A. § 5121. Finding that the Commonwealth failed to present sufficient evidence, we reverse the judgment of sentence and vacate the sentence.

Hall was participating in Lebanon County Prison’s Work Release Program. Pursuant to placement in this program, Hall signed a work release agreement in which he agreed that he would “go directly to his place of employment and return directly therefrom without exception ...” via an agreed upon travel route.

On the morning of the alleged escape Hall’s girlfriend drove to the prison, picked him up and proceeded to drive in the direction of his place of employment. Unknown to Hall and his girlfriend, a prison official followed her vehicle. Hall did not proceed directly to work. Instead, he and his girlfriend stopped at his home for approximately one hour. Hall then arrived at work, completed work, and timely returned to the prison. Hall did not request this “deviation” nor did he report any emergency necessitating the stop at his home. The prison authorities found he violated his work release agreement. He was subsequently charged with escape.

The crime of escape is defined as follows:

A person commits an offense if he unlawfully removes himself from official detention or fails to return following temporary leave granted for a specific purpose or limited period.

18 Pa.C.S.A. § 5121(a).

In this appeal, Hall raises a single issue: Whether the prohibition in the statute that a person not “unlawfully remove[s] himself from official detention” includes the slight and temporary deviation from the path of travel prescribed by his work release agreement.

Several cases have addressed the escape statute as it relates to prisoners in work release programs. See, e.g., Commonwealth v. Kaminski, 349 Pa.Super. 78, 502 A.2d 1281 (1985), appeal denied; Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978); Commonwealth v. Hearn, 34 Pa.D.C.2d 49 (1966). None has decided the issue presented here.

First, we note that for purposes of the escape statute, “official detention” includes participation in a prison work release program. See 18 Pa.C.S.A. § 5121(e); Commonwealth v. Brown, 261 Pa.Super. 240, 396 A.2d 377 (1978). Next, we must decide whether the legislature intended to include the kind of deviation made by Hall in the language of the escape statute; i.e., did Hall “unlawfully removejs] himself from official detention.”

In interpreting the statute we note that one of the general purposes of the Crimes Code is “[t]o give fair warning of the nature of the conduct declared to constitute an of-fens[e].” 18 Pa.C.S.A. § 104(4). The Crimes Code also instructs us to construe its language “according to the fair import of [its] terms but when the language is susceptible of differing constructions it shall be interpreted to further the general purpose[s]” of the Crimes Code, one of which is stated above. 18 Pa.C.S.A. § 105. In addition, we are bound by the Statutory Construction Act of 1972, Dec. 6, No. 290, § 3, 1 Pa.C.S.A. § 1928(b)(1), which prescribes that penal statutes be “strictly construed.”

Given the above guidance, we conclude that the conduct proscribed by the escape statute does not include Hall’s behavior because the statute requires that Hall intended to remove himself from official detention. The Commonwealth failed to present evidence which would give rise to such an inference beyond a reasonable doubt.

Hall concedes that at the time of the incident he was in “official detention.” However, he contends that § 5121(a) of the escape statute applies only to a prisoner in a work release program who fails to return to confinement. As such, Hall argues, under § 5121(a) “escape requires flight from confinement sufficient to justify the conclusion that the inmate was not going to return as directed, but, rather, was seeking to regain his freedom.” (Appellant’s brief, at 9.)

Although we do not read the statute as broadly as Hall, we agree that in this case the Commonwealth failed to show that Hall intended unlawfully to remove himself from official detention. We hold that the reasonable definition of unlawful removal in subsection (a) of the escape statute does not encompass a situation where a prisoner does not substantially deviate from a prescribed travel route, goes to work and returns to official custody as prescribed by his work release program. Hall’s challenge to the sufficiency of the evidence, therefore, has merit.

We note that Hall does not deny deviating from the prescribed route and thereby violating his work release agreement. His violation of his work release agreement is an administrative matter not a violation of a penal statute. In this case, prison officials were not without recourse. They could have imposed administrative sanctions, such as revocation of his participation in the work release program.

Judgment of Sentence reversed, and sentence for escape is vacated. Jurisdiction is relinquished.

OLSZEWSKI, J., filed a concurring opinion.

OLSZEWSKI, Judge,

concurring:

While I agree with the analysis and result reached by the majority, I must write separately to express my concern that this case will provide a poor precedent by inviting prisoners participating in a work release program to abuse this privilege -through conduct such as that of appellant herein. Though I believe that appellant in the present case may have committed a technical violation of 18 Pa.G.S.A. § 5121, I agree with the majority’s conclusion that the legislature did not intend such conduct to constitute an escape under this statute. If such conduct was intended to be included as a violation of this statute, the legislature should make an appropriate amendment to that effect.


author: BECK, Judge:

text:
    585 A.2d 1119
    Marbel IBARRA, Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 27, 1990.
    Filed Jan. 31, 1991.

      John A. Rothschild, Philadelphia, for appellant.
    David M. McCormick, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   BECK, Judge:

The issue is whether a wife, who is a named insured along with her husband, under a policy of automobile insurance, may collect first-party benefits when she suffers injuries in an accident while operating an uninsured vehicle titled only in her husband’s name.

Plaintiff-appellant Marbel Ibarra (Ibarra) sued defendantappellee insurance company, Prudential Property and Casualty Insurance Company (Prudential), for denying her first-party benefits under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. §§ 1701-1798.4 (1984) (MVFRL). The trial court granted Prudential’s motion for summary judgment on the ground that Ibarra had an ownership interest in the uninsured car involved in the accident. The MVFRL provides that an owner of a registered motor vehicle that is uninsured cannot recover first-party benefits. 75 Pa.C.S.A. § 1714 (1984).

Ibarra asserts her right to first-party benefits on a policy of insurance with Prudential in the name of Ibarra and her estranged husband covering two other cars. Ibarra claims that at the time of the accident she had no ownership interest in the uninsured car she was driving. The car was titled in her estranged husband’s name, she did not regularly use the car, and the accident occurred when, as an accommodation to her husband, she was taking the car to the repair shop.

Under the MVFRL if she had an ownership interest in the uninsured car involved in the accident she is not entitled to first-party benefits. On the other hand, if she did not have an ownership interest in the uninsured car involved in the accident, then she is entitled to look to her own insurance company, in this case Prudential, for first-party benefits.

The question then is whether Ibarra had an ownership interest in the car involved in the accident? We conclude she did not, and, therefore, we reverse the trial court’s decision.

The relevant facts stipulated to by the parties are as follows. Ibarra was involved in an automobile accident in which she sustained personal injuries. Ibarra was driving a 1982 Chevette, titled and registered in the name of her estranged husband, Miguel Ibarra. The Chevette was not listed under any insurance policy on the date of the accident.

An automobile insurance policy issued by Prudential was in full force and effect on the date of the accident, naming as insureds both husband and wife. The policy covered two automobiles, but did not cover the Chevette involved in the accident. The Ibarras’ policy provided first-party benefits as required by the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S.A. § 1711 (1984).

As a result of the accident Ibarra submitted a claim for medical expenses and wage loss to Prudential. Prudential denied Ibarra’s first-party benefits claim contending that she was barred from recovering such benefits under section 1714 of the MVFRL. Section 1714 of the MVFRL provides in pertinent part that

[a]n owner of a currently registered motor vehicle who does not have financial responsibility ... cannot recover first party benefits.

75 Pa.C.S.A. § 1714.

Although “an owner” is not defined in the MVFRL, it is defined under the general provisions of the Vehicle Code. An owner is defined in pertinent part as

[a] person, other than a lienholder, having the property right in or title to a vehicle.

75 Pa.C.S.A. § 102 (1977). No definition of “the property right” is provided in the MVFRL or the Vehicle Code.

The trial court concluded that Ibarra had a property right in the Chevette because the vehicle would be considered marital property under the Divorce Code, 23 Pa.S.A. § 401(f), and could therefore be subject to future equitable distribution. Trial Court Opinion, at 3-4. Because the trial court found that Ibarra had a property right in the Chevette, the court held she could not recover first-party benefits pursuant to the MVFRL. The trial court therefore granted Prudential’s motion for summary judgment.

On appeal Ibarra asserts that she is not an owner of the vehicle in question with respect to section 1714 of the MVFRL. Specifically, she argues that the definition of marital property included under the Divorce Code is not applicable to the determination of ownership under the MVFRL. We agree.

The Divorce Code was promulgated to provide the law for the dissolution of marriage, to encourage settlement of differences between spouses, to mitigate the harm to spouses and children caused by dissolution of marriage, and to insure fairness and consistency in divorce proceedings. See generally 23 Pa.S.A. § 102 (1980). Marital property is defined within the Divorce Code as the property acquired by either spouse during the marriage that the divorce court has the power to equitably divide, distribute or assign between the two parties. See 23 Pa.S.A. §§ 401(d), 401(e).

The specific definition of “marital property” in the Divorce Code provides that “[fjor purposes of this chapter only, ‘marital property’ means all property acquired by either party during the marriage.” 23 Pa.S.A. § 401(e) (emphasis added). Chapter 4 of the Divorce Code, which includes § 401(e), generally provides the law for the divorce court to decree property rights in matters of equitable distribution. We note that each of the sections promulgated under Chapter 4 contain language establishing that the statutes are intended to apply to “matrimonial causes,” decrees or proceedings for “divorce or annulment,” and court orders of “equitable distribution, alimony pendente lite, alimony, child and spousal support.” 23 Pa.S.A. §§ 401-04.

In this instance, we conclude that the use of the definition of “marital property” in the Divorce Code is not applicable to determine who an owner is under the MVFRL. In particular, we find the specific language limiting the definition of “marital property” to matters of equitable distribution to be determinative. Upon a thorough review of the purpose and policy of the Divorce Code and the MVFRL, we can find no persuasive support for directly applying the Divorce Code definition of “marital property” to determine ownership of a vehicle for purposes of financial responsibility.

We note that this court has previously held that the Divorce Code may not be applicable to other areas of the law. Haviland v. Haviland, 333 Pa.Super. 162, 164-165, 481 A.2d 1355, 1357 (1984). In Haviland, we considered the application of the Divorce Code to the situation where a spouse dies prior to the entry of the divorce decree. Noting that the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 101 et seq., contains provisions addressing the distribution of marital property, as does the Divorce Code, we held that the Divorce Code would not be construed to debilitate the Probate Code. Haviland, 333 Pa.Super. at 164-165, 481 A.2d at 1357. See also Pastuszek v. Pastuszek, 346 Pa.Super. 416, 423-424, 499 A.2d 1069, 1073 (1985) (noting “that the death of a spouse prior to the entry of a divorce decree abates the [divorce] action, including any equitable distribution of marital property”).

Our conclusion that the definition of “marital property” under the Divorce Code is not applicable to determine vehicle ownership under the MVFRL does not fully resolve the question. We must still determine whether under the Vehicle Code appellant was an owner of the vehicle in order to decide whether appellant should be precluded from recovering first-party benefits.

We return to the definition of “owner” as provided in the Vehicle Code. An “owner” is

[a] person, other than a lienholder, having the property right in or title to a vehicle. The term includes a person entitled to the use and possession of a vehicle subject to a security interest in another person, but excludes a lessee under a lease not intended as security.

75 Pa.C.S.A. § 102 (emphasis added). This definition provides that ownership is evidenced (1) by having title in a vehicle or (2) by having the property right in a vehicle. At bar, the parties stipulated that Ibarra does not hold title in the vehicle. We conclude that Ibarra did not have “the property right” contemplated by the Vehicle Code definition. In the absence of interjecting the Divorce Code definition of “marital property” into the Vehicle Code, we simply find no foundation to support Prudential’s assertion that Ibarra has “the property right” in the car. Prudential points to no other basis for its contention that Ibarra has the property right.

Moreover, nothing in the factual scenario supports the argument that Ibarra is an owner of the car. The vehicle in question is titled and registered solely in the name of husband Miguel Ibarra. The parties stipulated to the fact that prior to the accident the car was permanently located at Miguel Ibarra’s residence. Moreover, appellant did not have regular use of the vehicle, nor did she have her own set of keys to the vehicle. On the day of the accident, appellant was driving the car to a repair shop, at the request of, and as a favor to her husband. We find that Ibarra is neither an owner of the vehicle, nor does she have “the property right” in the vehicle.

Because we conclude appellant Ibarra is not an owner nor does she have the property right in the uninsured vehicle in question, we reverse the trial court’s grant of summary judgment for appellee Prudential and remand for proceedings consistent with this memorandum.

Jurisdiction is relinquished.

CAVANAUGH, J., concurs in the result.

      . The fact that the parties are estranged has no relevancy to the analysis of the issue before us.

      . Financial responsibility is defined under the MVFRL as
      ”[t]he ability to respond in damages for liability on account of accidents arising out of the maintenance or use of a motor vehicle in the amount of $15,000 because of injury to one person in any one accident, in the amount of $30,000 because of injury to two or more persons in any one accident and in the amount of $5,000 because of damage to property of others in any one accident.”
      75 Pa.C.S.A. § 1702 (1984).

      . Pursuant to § 401(f) of the Divorce Code, “[a]ll property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership.” At bar, the parties stipulated that the vehicle in question was acquired when they were married. Reproduced Record, at 2-3, para. 11.

      . We note that the issue of who is an owner under the MVFRL is one of first impression. The cases interpreting § 1714 have each involved a claim for first-party benefits by the admitted owner of the vehicle and did not address the meaning of "owner,” or who is an "owner.” See Kresge v. Keystone Ins. Co., 389 Pa.Super. 548, 567 A.2d 739 (1989); DeMichele v. Erie Ins. Exchange, 385 Pa.Super. 634, 561 A.2d 1271 (1989); Mowery v. Prudential Property & Casualty Ins. Co., 369 Pa.Super. 494, 535 A.2d 658 (1988), appeal denied, 518 Pa. 641, 542 A.2d 1370 (1988); Allen v. Erie Ins. Co., 369 Pa.Super. 6, 534 A.2d 839 (1987).


author:
JOHNSON, Judge:
      DEL SOLE, Judge,

text:
    586 A.2d 383
    Cara SCHWEITZER, Appellant, v. ROCKWELL INTERNATIONAL, and James W. Barson.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1990.
    Filed Dec. 10, 1990.
    Reargument Denied Feb. 19, 1991.

      Daniel W. Ernsberger, Pittsburgh, for appellant.
    John C. Unkovic, Pittsburgh, for Rockwell Intern., appellee.
    Before DEL SOLE, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from the summary judgment entered in favor of defendant Rockwell International (Rockwell) on July 11, 1989. We decide that the withdrawal of a complaint from the Pennsylvania Human Relations Commission within less than a year does not constitute exhaustion of a complainant’s statutory remedy, but that the Pennsylvania Human Relations Act does not extinguish common law causes of action arising out of the same underlying acts which support a discrimination claim derived from the Act. Therefore we affirm in part and reverse in part.

In November of 1983, Schweitzer, an employee in the tax department of Rockwell, informed Rockwell that her supervisor James W. Barson touched her breasts, demanded a sexual relationship and made lewd comments about her body characteristics. Subsequently, Barson was discharged from employment with Rockwell in September of 1985 and Schweitzer was transferred to the insurance department.

Schweitzer filed a complaint against Rockwell with the Pennsylvania Human Relations Commission (the Commission) on September 16, 1985. In her complaint she alleged that Rockwell discriminated against her by subjecting her to sexual harassment by Barson based upon the above described acts and by transferring her to another department after she informed Rockwell of her intention to file a complaint with the Commission against Rockwell.

Based upon a letter from the Commission to Schweitzer dated May 20, 1986, it appears that Schweitzer asked the Commission for $10,000.00 in damages for mental anguish and $5,000.00 for medical expenses related to emotional distress. However, the Commission informed her that the remedies she sought were not available to her under the Pennsylvania Human Relations Act (the Act), codified at 43 P.S. §§ 951-962.2. As a result, on June 2, 1986, Schweitzer requested that the Commission transfer her action to the Equal Employment Opportunity Commission (EEOC) because she felt that it was futile to pursue her claim with the Commission. The Commission transferred her action to the EEOC and thereafter closed her case by letter of August 11, 1986. On March 25, 1987, Schweitzer instituted the present action by filing a complaint in the Allegheny County Court of Common Pleas in which she requested compensatory and punitive damages. She later filed two amended complaints.

In her second amended complaint Schweitzer alleged in Count II that Rockwell violated the Human Relations Act and discriminated against her by creating and permitting an oppressive work environment not experienced by male employees, by failing to investigate her harassment complaint and by retaliating against her for filing a complaint with the Commission. In Count V, Schweitzer alleged that Rockwell was vicariously liable to her for the assault and intentional infliction of emotional distress perpetrated by Barson.

Rockwell filed a motion for summary judgment on April 18,1989 alleging merely that Schweitzer “has failed to state any claim upon w;hich relief could be granted against Rockwell.” Rockwell’s argument in support of this contention was wholly that the Act provided Schweitzer’s exclusive remedy for her claims of sexual discrimination, assault and intentional infliction of emotional harm. Rockwell did not argue that Schweitzer failed to allege facts sufficient to support a cause of action for assault and intentional infliction of emotional distress. The court granted summary judgment on June 19, 1989. In its opinion of September 8, 1989, the court based its decision to grant summary judgment for both counts on the fact that Schweitzer had not exhausted her administrative remedies, which were exclusive, and thus she was precluded from recovering from Rockwell on any basis in the Allegheny County Court of Common Pleas.

Barson did not move for summary judgment. Schweitzer’s common law tort claims against Barson are still pending and are not a subject of this appeal.

On appeal Schweitzer asks us to consider whether the trial court erred in granting Rockwell’s motion for summary judgment on the basis that Schweitzer failed to exhaust her administrative remedies with regard to her sexual discrimination claim, and on the basis that the Pennsylvania Human Relations Act and the Pennsylvania Workmen’s Compensation Act are her exclusive remedies for assault and intentional infliction of emotional distress.

We agree with the trial court that Schweitzer has not exhausted her administrative remedies with regard to the claims arising exclusively under the act and thus the trial court correctly granted summary judgment over this portion of her case. However, we reject a construction of the Human Relations Act and the Workmen’s Compensation Act that would bar Schweitzer’s action for assault and intentional infliction of emotional distress.

In determining whether the trial court erred in granting or denying a motion for summary judgment, this court must determine whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue of any material fact, and that the moving party is entitled to judgment as a matter of law. Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 507 A.2d 323 (1986); Incollingo v. Maurer, 394 Pa.Super. 352, 575 A.2d 939 (1990). Summary judgment may be entered only in those cases which are clear and free from doubt. Id. We shall not disturb the trial court’s decision granting summary judgment unless there has been an error of law, or a manifest abuse of discretion. Id.

In general, a party seeking relief must exhaust available administrative remedies before he may obtain judicial review. Ohio Casualty Group v. Argonaut Ins. Co., 514 Pa. 430, 525 A.2d 1195 (1987). However, a complainant’s right of action in the courts of the Commonwealth shall not be foreclosed. Section 962(c) of the Human Relations Act provides the prerequisites to filing a suit based upon a discrimination claim in the common pleas court:

If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the Commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this act.

Schweitzer invoked the procedure of the Act when she filed her complaint with the Commission against Rockwell on September 16, 1985. Nine months later, before the Commission could take action to dismiss her complaint or enter into a conciliation agreement, Schweitzer requested that the Commission transfer her case to the EEOC. The Commission transferred her case to the EEOC pursuant to her request and the Commission closed her case. Schweitzer, without notice that her case had been dismissed or notice that the Commission had not entered into conciliation, as mandated by 43 P.S. § 962(c), instituted this action in the Allegheny County Court of Common Pleas.

This case is consistent with Snyder v. Pa. Ass’n of School Retirees, 389 Pa.Super. 261, 566 A.2d 1235 (1989). In that case, a panel of this court held that a civil rights claimant could seek redress in a judicial forum where the full one year period contemplated in § 962(c) of the Act had passed with respect to a separate “retaliation” allegation, this court held that its withdrawal by the claimant well before the expiration of the one year time limit in § 962(c) operated to deprive the trial court of jurisdiction. Snyder, 389 Pa.Super. at 274, 566 A.2d at 1241.

Schweitzer concedes in her brief that she failed to exhaust her administrative remedies; she suggests that the rule of exhaustion of remedies is inappropriate here. Schweitzer argues that she did not ask the Commission to close her case but rather she made a conditional recommendation that the Commission transfer her case to the EEOC. Our Supreme Court has held that the closing of the Commission file at the claimant’s request does not fit either of the prerequisites to filing suit in the common pleas courts of this Commonwealth. Fye v. Central Transportation, Inc., 487 Pa. 137, 409 A.2d 2 (1979). We interpret Schweitzer’s request to transfer her case to the EEOC as a request to close her case with the Commission.

Further, invocation of the procedures set forth in the. Act entails more than the filing of a complaint; it includes the good faith use of the procedures provided for disposition of the complaint. Lukus v. Westinghouse Elec. Corp., 276 Pa.Super. 232, 419 A.2d 431 (1980). Schweitzer has not alleged facts to support the conclusion that she made a good faith attempt to exhaust her remedies under the Act. She did not give the Commission an opportunity to resolve her controversy in the relatively short time period allotted by the Act; instead, she requested that her case be transferred to the EEOC “rather than dismissing her claim for refusal to limit her demand.” Letter from Schweitzer to the Commission, June 2, 1986. The Commission responded by letter of August 11, 1986 and notified Schweitzer that “in accordance with [your] request, this Commission is closing [your] case.”

Schweitzer ignores the fact that it was she who chose to first file a complaint with the Commission, thereby invoking the procedure provided by the Act. She then changed her mind and chose to pursue her claims in the Allegheny County Court of Common Pleas in contravention of the requirements of the Act. We conclude that the trial court properly entered summary judgment in favor of Rockwell regarding Schweitzer’s discrimination claims arising out of the Act because Schweitzer failed to exhaust the administrative remedies provided by the Act.

Next, Schweitzer contends that the Human Relations Act does not provide the exclusive remedy for her common law tort claims against Rockwell for assault and intentional infliction of emotional distress based upon the underlying acts that also constitute the harassment giving rise to her discrimination claims. We agree. The issue is whether a complainant who filed a claim for sexual discrimination with the Commission may also bring a common-law tort action against her employer in the common pleas court for assault and intentional infliction of emotional distress based upon the same underlying acts. Initially, to determine whether an alleged injury is subject to the exclusive remedies of a statute, or whether it is remediable in tort, we must examine the scope of the statute and its remedies to determine the intent of the legislature. Kuney v. PMA Insurance Company, 525 Pa. 171, 175-175, 578 A.2d 1285, 1286 (1990).

Section 952(b) of the Human Relations Act sets forth the legislative purpose of the Act:

It is hereby declared to be the public policy of this Commonwealth to foster the employment of all individuals in accordance with their fullest capacities regardless of their race, color, religious creed, ancestry, handicap.or disability, use of guide dogs because of blindness or deafness of the user, use of support animals because of a physical handicap of the user or because the user is a handler or trainer of support or guide animals, age, sex, or national origin, and to safeguard their right to obtain and hold employment without such discrimination, to assure equal opportunities to all individuals and to safeguard their rights to public accommodation and to secure housing accommodation and commercial property regardless of race, color, religious creed, ancestry, sex, handicap or disability, use of guide animals because of blindness or deafness of the user or national origin.

43 P.S. § 952(b).

Section 955 of the Act describes what actions constitute unlawful discriminatory practices. It prohibits individuals, employers, employment agencies, housing providers, lending institutions and labor organizations from discriminating against various classes of individuals. Because we are concerned only with unlawful discrimination perpetrated by an employer, we will address only the prohibitions of § 955 with regard to employers. Under § 955, it is an unlawful discriminatory practice:

For any employer because of race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability to refuse to hire, employ or otherwise discriminate against such individuals with respect ... to the conditions or privileges of employment^]____ [to] elicit any information or make or keep a record ... of the race, color, religious creed, ancestry, age, sex, national origin or past handicap or disability of any applicant for employment^]____ [to] print or publish ... any notice or advertisement relating to employment ... indicating any preference, limitation or discrimination based upon [the above mentioned characteristics,]____ [to] deny or limit ... employment because of race, color, religious creed, ancestry, age, sex, national origin, non-job related handicap or disability or place of birth[,]____ [to] substantially confine or limit recruitment or hiring of individuals, with intent to circumvent the spirit and purpose of the act[,]____ [to] deny employment because of a prior handicap[,] ... [to] discriminate in any manner against any individual because such individual has opposed any practice forbidden by this act, or because such individual has made a charge, testified or assisted, in any manner, in any investigation, proceeding or hearing under this act[,]____ [or to] aid, abet, incite, compel or coerce the doing of any act declared by this section to be an unlawful discriminatory practice.

43 P.S. § 955. None of the above mentioned unlawful discriminatory acts by an employer includes molestation that constitutes assault and intentional infliction of emotional harm.

In furtherance of the purpose of the Act, the legislature created the Pennsylvania Human Relations Commission, 43 P.S. § 956. The Legislature intended that the Commission would be an expert in the field of unlawful discrimination. See Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989). However, the Commission, like all administrative agencies, can exercise only those powers which have been conferred upon it by the Legislature. Pennsylvania Human Relations Comm’n v. Zamantakis, 478 Pa. 454, 387 A.2d 70 (1978). The Act provides specific remedies for the victim of discrimination. These remedies are:

such affirmative action, including, but not limited to, reimbursement of certifiable travel expenses in matters involving the complaint, not to exceed fifty dollars ($50), compensation for loss of work in matters involving the complaint, not to exceed two hundred dollars ($200), hiring, reinstatement or upgrading of employes, with or without back pay____

43 P.S. § 959(f). The Legislature gave the courts the authority to order, in addition to the “affirmative action” carried out by the Commission, “any other legal or equitable relief as the court deems proper.” Zamantakis, supra. The Legislature chose to give the common pleas court the power to award these types of damages instead of the Commission. Id. The Zamantakis court held that the Commission has no authority, let alone exclusive authority, to award damages for mental anguish and humiliation arising as a result of acts that also constitute unlawful discrimination.

Underscoring the limited power of the Commission, 43 P.S. § 962(b), the exclusivity provision of the Act in pertinent part provides:

[a]s to acts declared unlawful by section five [section 955] of this act the procedure herein provided shall, when invoked, be exclusive and the final determination therein shall exclude any other action, civil or criminal, based on the same grievance oí the complainant concerned.

(Emphasis added). We have determined that the acts of assault and intentional infliction of emotional distress are not acts declared unlawful by the Human Relations Act. Read as a whole, § 962(b) forbids any civil actions based upon the same grievance declared unlawful by § 955 of the Act where the Act has been invoked. In the above quoted passage, “grievance” refers to the phrase “acts declared unlawful by section five of this act,” and can in no way be construed to mean the “underlying acts” themselves. We conclude that nothing in the intent of the Legislature or in the language of the Act forbids independent legal actions based upon the underlying acts, in this case assault and intentional infliction of emotional distress.

A comparison of the interests that the Act is designed to protect with the interests protected by the common law causes of action also leads us to the conclusion that the statutory remedy does not redress these common law interests. In Shaffer v. National Can Corporation, 565 F.Supp. 909 (E.D.Pa.1983), Shaffer charged her former employer with employment discrimination in the form of sexual harassment. Shaffer filed complaints with the EEOC and the Commission. The Commission dismissed her complaint, while the EEOC sent her notice of her right to sue. Shaffer then filed a complaint in the district court alleging a violation of Title VII of the Civil Rights Act of 1964 as well as state claims for wrongful discharge and intentional infliction of emotional distress. Her former employer argued that Shaffer’s causes of action for wrongful discharge and intentional infliction of emotional distress were superseded by the Pennsylvania Human Relations Act and that Shaffer’s complaint failed to state a claim for intentional infliction of emotional distress. The district court compared the interests involved and determined that, the Act is not necessarily a complainant’s exclusive remedy:

Shaffer’s claim for intentional infliction of emotional distress presents a different situation. Unlike the claim for wrongful discharge, the interests sought to be protected by the PHRA and this tort are fundamentally different. The PHRA effectuates the state’s interests in eradicating targeted forms of discrimination. Remedies thereunder are tailored to further this interest and include injunctions, reinstatement and awards of back pay (citation omitted). The tort of intentional infliction of emotional distress vindicates the personal interest of freedom from intentionally imposed mental anguish. Damages, both compensatory and punitive, provide the remedy for this wrong. To the extent that the interests protected and remedies afforded differ, the PHRA could not have been intended and should not be held to supplant a cause of action for intentional infliction of emotional distress.

Shaffer, 565 F.Supp. at 914. (Emphasis added). The interests that Schweitzer seeks to protect by her claims for assault and intentional infliction of emotional distress are fundamentally different from the interests she seeks to protect in her claim for sexual discrimination under the Human Relations Act, as are the remedies sought. Further, preventing Schweitzer from bringing her common law claims in the common pleas court actually frustrates the purpose of the statute, the prevention and remediation of discrimination. See Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977). The legislature did not intend to erect a procedural obstacle to recovery when it provided the Act as an individual’s exclusive remedy regarding discrimination as defined in the statute itself. Id.

Rockwell relies on Fye v. Central Transportation, Inc, 487 Pa. 137, 409 A.2d 2 (1979), and Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989) in support of its contention that the Act provides Schweitzer’s exclusive remedy for her claims of assault and intentional infliction of emotional distress. Its reliance, however, is misplaced. In Fye, a school bus driver became pregnant and was ordered by her doctor to stop working until the child was born. When she was able to return to work she notified the company and was refused employment. She filed a complaint with the Commission and subsequently requested that the Commission close her case. She then filed a complaint based solely on unlawful sexual discrimination pursuant to the Human Relations Act in the court of common pleas. Our Supreme Court held that the Commission divested the common pleas court of jurisdiction because the complaint was based solely upon a discrimination claim cognizable and remediable under the Act. Fye involved no independent common law tort claims.

Rockwell misrepresents the holding in Clay v. Advanced Computer Applications, supra in order to support its theory that the Human Relations Act’s exclusivity provision precludes a complainant from pursuing common law claims involving alleged sexual harassment in the workplace against a former employer. In order to illustrate the true holding of Clay, we must discuss the procedural history of Clay in detail. In the trial court, the Clays alleged that their at-will employment with Advanced Computer Applications had been unjustly terminated because Mrs. Clay rebuffed sexual advances made by a management-level employee. The Clays filed an action in the common pleas court alleging wrongful discharge, breach of an implied contract of employment and intentional infliction of emotional distress.

The defendants filed preliminary objections which the court referred to collectively as motions to dismiss. The motions to dismiss were subsequently granted. In its opinion the trial court stated that it dismissed the Clays’ claims because: 1) the court lacked subject matter jurisdiction over the wrongful discharge claims because the PHRA and the Civil Rights Act of 1964 provided the exclusive remedy for grievances arising from sexual discrimination in the workplace; 2) the Clays failed to state a cause of action for breach of contract and 3) the Clays failed to state a cause of action for intentional infliction of emotional distress.

The Clays appealed to this court in Clay v. Advanced Computer Applications, 370 Pa.Super. 497, 536 A.2d 1375 (1988). We affirmed the order of the trial court in part and reversed in part, holding that the trial court erred in determining that it did not have jurisdiction over the Clays’ wrongful discharge claims, and that the trial court properly dismissed the Clays’ claims for breach of contract and intentional infliction of emotional distress. In addressing the Clays’ claim for emotional distress we, as did the trial court, concluded that the Clays failed to allege facts supporting a cause of action for intentional infliction of emotional distress. We did not hold that the claim for emotional distress was not cognizable in the common pleas court. We wrote as follows:

[t]aking all well pleaded facts in the complaint as true, we certainly agree that the conduct attributed to Mr. Gruenwald and Mr. Baus [the defendants] is obnoxious and reprehensible. It might even have supported a complaint before the Pennsylvania Human Relations Commission. (Footnote omitted). It does not, however, amount to intentional infliction of emotional distress.

Clay, 370 Pa.Super. at 513-514, 536 A.2d at 1384 (1988). Further, we held that:

[w]e do not underestimate the seriousness of sexual harassment in the workplace. Nor do we exclude the possibility that, under different circumstances, sexual harassment could support a claim for intentional infliction of emotional distress.

Clay, 370 Pa.Super. at 515, 536 A.2d at 1385. Thus, we did not determine that the Human Relations Act barred an individual’s common law tort action.

The defendants appealed to our Supreme Court, Clay v. Advanced Computer Applications, 522 Pa. 86, 559 A.2d 917 (1989). The defendants appealed our upholding of the viability of the wrongful discharge claim against them. That portion of our decision which affirmed the trial court’s dismissal of the intentional infliction of emotional distress claim was not appealed to the Supreme Court. Clay, 522 Pa. at 88 n. 1, 559 A.2d at 918 n. 1. This issue, therefore, was never before the Supreme Court. The Supreme Court held, only with regard to the wrongful discharge claim, that the Commission had exclusive jurisdiction because the Clays’ claim for wrongful discharge was an unlawful discriminatory practice pursuant to § 955(a) of the Act and thus remediable only by the Act. Our order was only “reversed in part” by the Supreme Court. Clay, 522 Pa. at 95, 559 A.2d at 921. Our Supreme Court never held, as Rockwell would have us believe, that a compláinant’s claim for intentional infliction of emotional distress is generally barred by the Human Relations Act.

We recognize that in the recent case of Kuney v. PMA Insurance Company, 525 Pa. 171, 578 A.2d 1285 (1990), our supreme court held that an individual’s tort claim against an insurance company for the wrongful delay of his compensation benefits is ultimately based upon an injury compensable under the Workmen’s Compensation Act and thus limits the individual to the remedies provided within the framework of the act. Kuney, however, is readily distinguishable from the present case. In Kuney, a Workmen’s Compensation hearing had already taken place and Kuney had been granted benefits. The court held that Kuney’s claim that the insurance company wrongfully delayed the benefits awarded him following the Workmen’s Compensation adjudication was “clearly a matter pertaining to a worker’s compensation claim and must therefore be adjudicated within the framework of the statute____” Kuney, supra. Schweitzer’s tort claims are procedurally and functionally independent of her sexual discrimination claims. Thus, they need not be adjudicated within the framework of the Human Relations Act.

Common law rights existing before a statute is passed continue to exist once the statute is enacted. See Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986). Nothing in the language of the Act itself or in the expressed legislative intent shows that the Legislature intended to extinguish common law rights. The trial court improperly concluded that Schweitzer’s claims against Rockwell for assault and intentional infliction of emotional distress were barred by the Act. The trial court did not address the issue of whether Schweitzer had alleged facts sufficient to support a claim for emotional distress and we do not make this determination ourselves.

Last, the Workmen’s Compensation Act does not bar Schweitzer’s claim. If it is determined that an injury to an employee is “caused by an act of a third person intended to injure the employe because of reasons personal to him and not directed against him as an employee or because of his employment,” 77 P.S. § 411(1), liability for-the injury is not covered by 77 P.S. § 481, the exclusive remedy provision of the Workmen’s Compensation Act. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980).

In Mike, Hopewell Township Deputy Constables physically assaulted a Borough of Aliquippa police officer. The issue before us was whether Mike’s injuries were exclusively compensable under the Workmen’s Compensation Act. We held that because Mike’s injuries were caused by an act of a third person intended to injure because of reasons personal to him and not directed against him as an employee or because of his employment, Mike’s injuries were not covered by the Workmen’s Compensation Act. The Mike court did not exclude “fellow employees” from the definition of a third person; the court addressed the possibility that an employee could be a third person:

Normally, when an employee is injured in an attack by a fellow employee, there is a rebuttable presumption that the claimant is covered by the Act and the one claiming otherwise bears the burden of showing an intention to injure owing to reasons personal to the assailant. O’Rourke v. O’Rourke, 278 Pa. 52, 122 A. 172 (1923); McBride v. Hershey Chocolate Corp. 200 Pa.Super. 347, 188 A.2d 775 (1983); U.S. Steel Corp. v. Workmen’s Compensation App. Bd., 10 Pa.Commw. 247, 309 A.2d 842 (1973).

Mike, 279 Pa.Super. 382, 388, 421 A.2d 251, 254 (1980). In the present case, the alleged emotional distress arose from harassment personal in nature and not part of the proper employer/employee relationship. Therefore, nothing in Mike precludes the conclusion we reach in this case, that Schweitzer is free to bring her claims in the common pleas court against Rockwell for the assault and intentional infliction of emotional distress inflicted by Barson.

We reject the position that the cases of Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 555 A.2d 766 (1989) and Poyser v. Newman & Company, 514 Pa. 32, 522 A.2d 548 (1987) control the resolution of this issue. Barber interprets the Occupational Disease Act, not the Workmen’s Compensation Act. The Occupational Disease Act does not contain a third person/fellow employee exception, as does the Workmen’s Compensation Act. Poyser involves an action against an employer for injury caused by the deliberate derelictions of the employer. No third person/fellow employee is involved in Poyser. Thus, neither of these cases are controlling.

We conclude that the exclusivity provision of the Workmen’s Compensation Act is inapplicable to Schweitzer’s claim for injuries arising from Barson’s intentional actions. We neither consider nor decide whether Schweitzer will be successful against Rockwell in the court of common pleas but only that the Workmen’s Compensation Act does not bar her tort claims.

Because we conclude that Schweitzer has not exhausted her administrative remedies, we affirm the trial court’s grant of summary judgment in favor of Rockwell on the sexual discrimination claim. However, because her claims against Rockwell for assault and intentional infliction of emotional distress are not covered by the Pennsylvania Human Relations Act or the Workmen’s Compensation Act, we reverse the trial court’s grant of summary judgment in favor of Rockwell as to these claims.

Judgment affirmed in part, reversed in part. Case remanded for further proceedings consistent with the views expressed herein. Jurisdiction relinquished.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting.

I join that portion of the Majority Opinion that affirms the Trial Court’s grant of Summary Judgment against Appellant on her claims of employment discrimination for failure to exhaust the administrative remedies provided by the Pennsylvania Human Relations Act, 43 P.S. §§ 951-962.2. However I must dissent from its conclusion that the plaintiff can proceeded with her common law tort claims of intentional infliction of emotional distress and assault.

I conclude that these claims are barred by the Workmen’s Compensation Act, 77 P.S. § 1, et seq., as interpreted by the Pennsylvania Supreme Court. The Majority reaches its result by relying on this court’s decision in Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Unfortunately, this case does not apply to the facts before us. There, the employee was permitted to recover from his employer in a tort action because his injuries were inflicted by third parties, not fellow employees. This case does not apply to situations like those present where the intentional injury is inflicted by a fellow employee.

In Barber v. Pittsburgh Corning Corp. 521 Pa. 29, 555 A.2d 766 (1989) the Supreme Court stated:

In this Court’s decision in Poyser, supra, [Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A.2d. 548 (1987) ] we expressly held under ... provisions of the WCA that there was no intentional tort exception to the exclusivity provisions of the WCA. That decision ... [held that the WCA] ... preserved no common law cause of action for intentionally inflicted harm.

521 Pa. at 37, 555 A.2d at 770.

The Court went on to state that it has never recognized such an exception to the WCA. See also Barber v. Pittsburgh Corning Corp., 365 Pa.Super. 247, 529 A.2d 491 (1987) (Del Sole, J. Dissenting). It is my belief that the Supreme Court of Pennsylvania has effectively disallowed the type of action that the plaintiff seeks to pursue by its interpretations of the WCA and for this reason, I dissent and would affirm the decision of the trial court.


author: WIEAND, Judge:

text:
    586 A.2d 393
    COMMONWEALTH of Pennsylvania v. Samuel HICKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 12, 1990.
    Filed Dec. 14, 1990.
    Reargument Denied Feb. 21, 1991.
    Petition for Allowance of Appeal Denied May 28, 1991.

      LeRoy G. Levan, Reading, for appellant.
    Mark C. Baldwin, Asst. Dist. Atty., Reading, for Com., appellee.
    Before WIEAND, DEL SOLE and MONTEMURO, JJ.
   WIEAND, Judge:

Where a jury finds a defendant not guilty of third degree murder but is unable to reach a verdict on charges of first degree murder and aggravated assault, is a retrial on the charges of first degree murder and aggravated assault barred by principles of double jeopardy? After careful review, we conclude that retrial is barred. Therefore, the order of the trial court refusing to dismiss such charges must be reversed.

Samuel Hickson was charged with criminal responsibility in the shooting death of Michael Auchenbach. The Commonwealth contended that Hickson had conspired with a person known as “Deep” to kill Auchenbach and had participated as principal or accomplice in the shooting. The jury which tried Hickson found him guilty of criminal conspiracy to commit murder of the first degree and two counts of conspiracy to commit aggravated assault. The same jury found Hickson not guilty of second degree murder, third degree murder, voluntary manslaughter and involuntary manslaughter. The jury was unable to reach agreement on whether Hickson should be found guilty or not guilty of first degree murder and on two counts of aggravated assault. When the Commonwealth attempted to retry Hick-son for first degree murder and aggravated assault, Hick-son moved to dismiss the charges on grounds that a retrial was barred by the double jeopardy clauses of the United States and Pennsylvania Constitutions.

As a general rule, reprosecution is not barred by principles of double jeopardy after a jury has been discharged because of an inability to reach a verdict. Commonwealth v. McCane, 517 Pa. 489, 499, 539 A.2d 340, 346 (1988). See: Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); United States v. Perez, 9 Wheat 579, 6 L.Ed. 165 (1824); Commonwealth v. James, 506 Pa. 526, 531, 486 A.2d 376, 378-379 (1985). However, principles of collateral estoppel are a necessary part of a double jeopardy analysis. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Commonwealth v. Crenshaw, 504 Pa. 33, 37, 470 A.2d 451, 453 (1983); Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1980) (plurality opinion). Therefore, a person cannot be tried a second time if the jury has decided in his or her favor an issue of ultimate fact essential to a conviction of the offense on which the jury was unable to agree.

In Commonwealth v. Zimmerman, 498 Pa. 112, 445 A.2d 92 (1981), the Pennsylvania Supreme Court determined that a defendant’s retrial on charges of third degree murder, voluntary manslaughter and involuntary manslaughter, on which the jury had deadlocked, was barred by principles of double jeopardy where the defendant had also been acquitted by the same jury of simple assault and first degree murder. The issue before the Court in Zimmerman was framed as follows:

The underlying question is whether the principle of double jeopardy would permit a retrial for the remaining degrees of homicide where appellant has been found not guilty of committing a simple assault upon the deceased victim.

Commonwealth v. Zimmerman, supra, 498 Pa. at 114, 445 A.2d at 93. The Court held that retrial was barred, reasoning as follows:

We have had occasion to express the essence of the double jeopardy protection as follows:
It has been stated that “the principle of double jeopardy serves not one, but three distinct interests. In ascending degrees of importance, they are: (1) an interest in finality which may be overcome relatively easily; (2) an interest in avoiding double punishment which comes armed with a presumption in the defendant’s favor; and (3) an interest in nullification—viz., an interest in allowing the system to acquit against the evidence—which is absolute. These three interests are loosely connected to the notion of ending litigation, and it is this connection that provides textual justification for bringing them under the common ‘rubric’ of double jeopardy.”
Commonwealth v. Tabb, supra [491 Pa. 372] at 379, 421 A.2d [183] at 187 [(1980)] (quoting from Weston and Drubel, “Towards a General Theory of Double Jeopardy”, The Supreme Court Review 1978, p. 81).
Here we are concerned with that interest of double jeopardy which has been given the highest order of priority. The question presented is whether the allowance of a retrial on the charges in question erodes the original factfinders’ absolute right to make the final factual determination on the charges submitted to them. It is, therefore, encumbent [sic] upon us to determine whether the exposure of appellant to the charges the Commonwealth now seeks to proceed to trial, offers to a new tribunal the opportunity to overturn the decision reached by the original finders of fact. If the original decision is not disturbed by the finding of the subsequent tribunal, this interest of double jeopardy is not offended. If the original decision has foreclosed the question to be decided by the retrial then the retrial cannot be permitted.

Id., 498 Pa. at 115-116, 445 A.2d at 94. Under this approach, it was clear that simple assault is a constituent element of all grades of homicide. Because the first jury had found the defendant not guilty of assault, therefore, a second jury was precluded from finding that defendant had committed any degree of homicide. See also and compare: Commonwealth v. McCane, supra; Commonwealth v. Pounds, 281 Pa.Super. 19, 421 A.2d 1126 (1980); Commonwealth v. Jones, 274 Pa.Super. 162, 418 A.2d 346 (1980).

These cases teach that the constitutional bar against double jeopardy will preclude retrial of a criminal charge upon which a jury has deadlocked if the same jury has also acquitted the defendant of a constituent offense. In such cases, the acquittal of the constituent offense necessarily prevents retrial of the offense on which the jury could not agree upon a verdict.

In the instant case, the jury found appellant not guilty of third degree murder. Third degree murder is an unlawful killing of another with malice. Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981); Commonwealth v. Carter, 481 Pa. 495, 498-499, 393 A.2d 13, 15 (1978). “Murder of the third degree is a killing done with legal malice but without specific intent to kill.” 17 P.L.E., Homicide § 14. It seems clear, therefore, that third degree murder is a constituent offense of first degree murder. “Malice aforethought is the general intent prerequisite to a finding of murder” in any degree. Commonwealth v. Weinstein, 499 Pa. 106, 115, 451 A.2d 1344, 1348 (1982). First degree murder is an unlawful killing committed not only with malice but also with a specific, fully formed intent to kill. See: Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 510 (1988); Commonwealth v. Weinstein, supra; Commonwealth v. Holzer, 480 Pa. 93, 98, 389 A.2d 101, 104 (1978).

In the instant case, when the jury found appellant not guilty of third degree murder it found that he was not guilty of committing a malicious killing. A second jury could not find appellant guilty of first degree murder without overturning the decision of the original fact finder. To permit the Commonwealth to seek such a result in a second trial would be to contravene the constitutional guarantees against double jeopardy. Commonwealth v. Zimmerman, supra. We hold, therefore, that the jury’s finding that appellant did not commit the crime of third degree murder bars retrial on a charge of first degree murder.

The Supreme Court’s decision in Commonwealth v. Terry, 513 Pa. 381, 521 A.2d 398 (1987), upon which the Commonwealth relies, is inapposite. In Terry, the Supreme Court exercised its supervisory power to establish a policy requiring, in homicide cases, that a trial court not record verdicts of not guilty on lesser included degrees of homicide after the jury has returned a verdict of guilty on a higher degree of homicide. The purpose of this policy was to limit the Court’s previous holding in Commonwealth v. Beck, 502 Pa. 78, 464 A.2d 316 (1983), to non-capital cases and to insure that, in the event of the grant of a new trial following a first degree murder conviction, the defendant could also be retried on lesser degrees of homicide. In this manner, the Court avoided any possible conflict with the decision of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), where the Supreme Court of the United States had held that juries in capital cases must be permitted to consider lesser included degrees of homicide which are reasonably implicated by the evidence. Instantly, appellant was not convicted of first degree murder. Therefore, the decision in Commonwealth v. Terry, supra, is not applicable. Here, the question is whether appellant can be retried on a charge of first degree murder after a jury has acquitted him of third degree murder. To allow a second prosecution under these circumstances, as we have observed, would subject appellant to be tried a second time on a charge of an unlawful killing with malice and would permit a second jury to nullify the facts found by the first jury. This is precisely what is prohibited by constitutional guarantees against being placed twice in jeopardy for the same offense. It follows that appellant cannot be retried for murder of the first degree.

The jury was also unable to decide whether appellant was guilty of aggravated assault in connection with the shooting of Michael Auchenbach. Appellant had been charged with violating 18 Pa.C.S. § 2702(a)(1), which defined aggravated assault as an “attempt[ ] to cause serious bodily injury to another or causpng] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life” and 18 Pa.C.S. § 2702(a)(4), which made it an aggravated assault to “attempt[ ] to cause or intentionally or knowingly cause[] bodily injury to another with a deadly weapon.”

Neither the briefs filed by the parties nor the inadequate record forwarded to this Court disclose any factual basis for an aggravated assault other than the shooting. Thus, it appears that the Commonwealth relied upon the same shooting to establish both aggravated assault and homicide. As such, it was a single act of shooting which formed the basis for the Commonwealth’s charges of murder and aggravated assault against appellant. To sustain convictions for either murder or aggravated assault, the Commonwealth was required to prove beyond a reasonable doubt that appellant, individually or as an accomplice, had been criminally responsible for shooting Auchenbach.

It was also necessary to show that the shooting had been done with malice. Malice “exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Commonwealth v. Hornberger, 441 Pa. 57, 61, 270 A.2d 195, 197 (1970). Aggravated assault, as appellant was charged, required a shooting which was done intentionally, knowingly or recklessly. Such a shooting required evidence of malice.

In finding appellant not guilty of third degree murder, however, the jury found that appellant had not been guilty of maliciously shooting Michael Auchenbach. To permit appellant to be retried for aggravated assault, therefore, would be to permit the Commonwealth a second opportunity to prove appellant’s guilt of maliciously shooting Auchenbach. It would permit a second fact finder to nullify the finding of the first jury that appellant was not guilty of shooting Auchenbach with malice. This, as we have already observed, is the precise scenario which constitutional guarantees against double jeopardy were intended to prevent. Because in this case a malicious shooting is a constituent element of both third degree murder and aggravated assault, the jury’s finding that appellant was not guilty of third degree murder, i.e., a malicious shooting, precludes a second trial for aggravated assault.

The order of the trial court is reversed. Because a retrial on charges of first degree murder and aggravated assault is barred by constitutional guarantees against double jeopardy, such charges are dismissed.

      . In Commonwealth v. Beck, the defendant had been found guilty of third degree murder and not guilty of voluntary manslaughter. When a new trial was granted on the third degree murder charge, the jury’s not guilty verdict on the charge of voluntary manslaughter precluded the second jury’s finding that appellant was guilty of that offense rather than third degree murder.

      . Attempts to obtain a record of the trial have been unsuccessful. Apparently, the notes of testimony have not been transcribed.

      . There is no merit in appellant’s contention that the trial court declared a mistrial without manifest necessity therefor. The record discloses that the jury had been unable to agree upon a verdict after thirteen (13) hours of deliberation. Under these circumstances, the trial court could properly declare a mistrial. Commonwealth v. Murry, 498 Pa. 504, 447 A.2d 612 (1982); Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978); Commonwealth v. Smith, 324 Pa.Super. 156, 471 A.2d 510 (1984).