author: JOHNSON, Judge: McEWEN, Judge,

text:
    459 A.2d 765
    GIANT MARKETS, INC., Formerly M.L. Hodin, William Hodin, Joseph Hodin and Jack Hodin, t/a Giant Markets v. SIGMA MARKETING SYSTEMS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1981.
    Filed April 15, 1983.

      McEwen, J., dissented and filed opinion.

      Francis P. Devine, III, Philadelphia, for appellant.
    Thomas P. Kennedy, Scranton, for appellees.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

This is an appeal from the order of a trial court en banc vacating the award of an arbitrator rendered as a result of a common law arbitration of a contract dispute between Sigma Marketing, Inc. (appellant) and Giant Markets, Inc. (appellee). The trial court en banc concluded that appellant breached the terms of a stipulation entered into by both parties on January 22, 1980. Since we conclude that the stipulation was not breached, and more fundamentally, we believe that the trial court en banc erroneously exceeded the limited scope of review applicable to common law arbitration, we reverse.

On August 2, 1977, in settlement of prior litigation, not relevant here, the parties concluded an agreement which included the following arbitration clause:

“In the event of any dispute between the parties under this Agreement, the same may be submitted to arbitration by either party in accordance with the rules of the American Arbitration Association.”

The clause was later supplemented on January 22, 1980 by the following written stipulation entered into by the parties:

“MR. DEVINE: This will be for the benefit of the Arbitrator. We had extensive settlement discussions during the depositions here today. We both agreed as counsel and the parties agreed that no mention of settlement was to be made to the Arbitrator; and in the event that one of the parties broach the subject to the Arbitrator without the knowledge of the other party, we are in agreement that the Arbitrator shall immediately discontinue the hearing, remove himself as an Arbitrator, and ask that the matter be reassigned to someone else; is that what we agreed to?
“MR. KENNEDY: Yes.”

Subsequently, the parties commenced an arbitration proceeding pursuant to the above-quoted arbitration provision as modified by the stipulation. Several days of testimony had been taken when the incident that precipitated this appeal occurred. During a break from the hearing, a Mr. Roth, an officer of appellant corporation, who knew of the stipulation between the parties, made mention of the subject of settlement in response to a question from the arbitrator. More specifically, it is alleged that Mr. Roth stated to the arbitrator that “no reasonable cash settlement had been offered.” Since this occurred during the break, it occurred off the record and we have relied upon the recollections of the parties and the arbitrator for an account of what happened.

Three issues are presented for consideration. The first issue is: whether or not appellee waived any objection it had to the continuation of the arbitration proceedings after a dispute arose regarding the stipulation. The second issue is framed differently by both parties. Appellant frames the issue as whether or not the trial court en banc erred by substituting its own factual finding when there was no evidence that the award was induced by any fraud, misconduct, corruption, or other irregularity causing it to be unjust, inequitable, or unconscionable. Appellee frames the' issue as a question of whether the arbitrator exceeded the scope of submission. The third issue is: whether or not appellant breached the terms of the stipulation.

For reasons set forth in more detail below, we agree with the trial court en banc that appellee did not waive its objection to the continuation of the arbitration hearing.

Put simply, appellant’s waiver argument is that appellee cannot preserve the dispute regarding the stipulation for appellate review by merely entering an objection upon the record. Appellant asserts that appellee had to adjourn the hearing and seek immediate judicial determination of his objection. Otherwise, appellee’s continued participation in the hearing operated to waive its objection. Appellant relies on a line of cases, representative of which are Christman v. Moran, 9 Barr 487 (1848), Capecci v. Joseph Capecci, 392 Pa. 32, 139 A.2d 563 (1958) and Rosenbaum v. Drucker, 346 Pa. 434, 31 A.2d 117 (1943). Christman holds that a party’s objection is waived by proceeding with the arbitration protestando. Capecci and Drucker hold that a party waives an objection by submitting the dispute to arbitration and participating in the hearing in spite of having an objection to the proceeding. We are not persuaded by appellant’s argument that these cases control the instant situation.

On similar facts, our supreme court distinguished the cases of Capecci and Drucker in Abramovich v. Pennsylvania Liquor Control Board, 490 Pa. 290, 294 n. 3, 416 A.2d 474, 476 n. 3 (1980) (a statutory arbitration case). Abramovich involved the submission to arbitration of a contract dispute between Felix Abramovich and the Pennsylvania Liquor Control Board (PLCB). Unbeknownst to Abramovich, the arbitrator appointed to hear the dispute had a past and continuing relationship with the PLCB. Upon learning of the arbitrator’s affiliation with the PLCB, Abramovich challenged the arbitrator’s appointment. This challenge occurred after the beginning of the hearing but before the rendering of the award. The arbitrator denied the challenge and rendered an award in favor of the PLCB. In a footnote, the supreme court concluded that where the ground for objection was not apparent prior to the arbitration hearing and it was raised at the earliest opportunity after learning of it, the issue was properly preserved for review.

Unlike Christman, Drucker and Capecci, in the instant case no ground for challenge to the proceeding existed prior to the hearing. When grounds for objection became apparent, appellee raised the issue of violation of the stipulation at the earliest opportunity after it occurred. We are persuaded that Abramovich controls this case. Therefore, appellee has sufficiently preserved the issue for review by noting its objection in a timely fashion.

In reviewing a common law arbitration award, the first task of a court is to determine whether the parties have agreed to arbitrate, then once it is determined that the parties have agreed to arbitrate, the issue becomes whether the dispute in question falls within the purview of the submission. Borough of Ambridge Water Authority v. Columbia, 458 Pa. 546, 328 A.2d 498 (1974). See also Flightways Corporation v. Keystone Helicopter Corporation, 459 Pa. 660, 331 A.2d 184 (1975). The arbitrability of the contract dispute underlying this matter is uncontroverted by the parties.

The questions presented by this appeal address the authority of an arbitrator once a matter is properly in arbitration. In Sley Systems Garages v. Transport Workers Union of America, 406 Pa. 370, 178 A.2d 560 (1962), the supreme court made the following pertinent remarks regarding the authority of an arbitrator:

[T]he power and authority of arbitrators are wholly dependent upon the terms of the agreement of submission, and they cannot exercise authority as to matters not included therein, or validly determine the dispute if they violate or act inconsistently with the terms of the submission. To put it another way, their powers, being derived from submission, are measured by it.

Id., 406 Pa. at 374, 178 A.2d at 561. (Emphasis added and citation omitted). It was also stated in Sley that “[t]he scope of matters submitted to arbitration is determined by the intention of the parties as ascertained in accordance with the rules governing contracts generally.” Id., 406 Pa. at 374, 178 A.2d at 561-562. Ascertaining the intention of the parties to the instant case requires a careful analysis of the arbitration agreement as modified by the stipulation.

Originally, the arbitration clause empowered either party to submit “any dispute between [them] under this agreement” to arbitration. This power was not affected by the stipulation. The stipulation modified this clause with the following language: “[w]e both agreed as counsel and the parties agreed that no mention of settlement was to be made to the arbitrator; and in the event that one of the parties broach the subject [of settlement] to the arbitrator without the knowledge of the other party, ... the arbitrator shall immediately discontinue the hearing____” The effect of this language was to condition the continued vitality of the otherwise proper arbitration hearing upon the nonoccurrence of the event specified therein.

Both parties have highlighted different portions of the language quoted above in support of their respective positions. Appellee emphasized the language that “no mention of settlement was to be made to the arbitrator____”■ Appellant, however, focuses attention on the following language in the stipulation: “... in the event that one of the parties broach the subject [of settlement] to the arbitrator____” It is evident from the parties’ positions as to the stipulation that a problem of interpretation exists.

It is axiomatic in contract law that a court, in resolving problems of interpretation similar to the instant one, must ascertain the intent of the parties. The intent of the parties to a written agreement is regarded as embodied within the writing itself. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). The agreement should be read in its entirety, giving effect to all of its provisions. The language therein should be accorded its “plain meaning.” Applying these principles, we believe the intent of the parties manifested in the stipulation is that no party was to discuss the settlement efforts in this case with the arbitrator without the other party being aware of the discussion. To adopt appellee’s interpretation would fail to give any effect to language emphasized by appellant. Furthermore, the requirement of lack of knowledge in the language appellant emphasized was intended by the parties to refer to the lack of awareness by the opposing party of the discussion, not the lack of prior knowledge and consent by the opposing party. This interpretation of the word “knowledge” is in accord with its plain meaning. Webster’s Third New International Dictionary (1966 ed.). Thus to trigger the stipulation, one party would have to discuss the settlement negotiations in this case with the arbitrator unbeknownst to the opposing party. Clearly, that did not occur. Therefore, we conclude that no breach of the stipulation resulted from the colloquy between Mr. Roth of Sigma and the arbitrator.

More fundamentally, we believe the trial court en banc has misperceived the proper scope of review to be applied to the controversy regarding the stipulation in the instant case. The gist of the instant controversy is whether the arbitrator exceeded the scope of his authority, as measured by the above-quoted language of the stipulation, when he refused to adjourn the arbitration hearing and thereafter rendered an award. The function of a reviewing court is first to determine the extent of the arbitrator’s authority before it proceeds to determine whether in its judgment a violation of the terms of the stipulation occurred. It may well be that the court is without power to make such a judgment.

Normally the arbitrator has the authority to decide all matters necessary to dispose of the claim, once it has determined that the substantive dispute is arbitrable. It is settled law.in Pennsylvania that “unless restricted by the submission, the arbitrators are the final judges of both law and fact and their award will not be disturbed for mistake of either.” Sley, supra, 406 Pa. at 374, 178 A.2d at 561. See also Kardon v. Portare, 466 Pa. 306, 353 A.2d 368 (1976) (all procedural questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator). Although no Pennsylvania case discusses the proper treatment of instances where the parties have conditioned the continued vitality of the arbitration hearing on the nonoccurrence of a particular event, we discern no reason to regard the stipulation entered into by the parties instantly as outside of the normal authority of the arbitrator. It simply is another question of fact and law for the arbitrator to resolve.

The parties, by their mutual agreement, have the ability to structure in advance of the hearing the arbitrator’s authority. In absence of some limitation specified by the parties, the arbitrator has the authority to decide all matters necessary to dispose of the disputed claim subject to arbitration. The stipulation of the parties in the instant case did not expressly restrict the arbitrator from resolving any dispute as to its applicability. On the contrary, as appellant correctly points out, the arbitration clause was still broad in scope after the stipulation was adopted, since it permitted any dispute as to the agreement between the parties to be decided by the arbitrator. Absent the expression of a restriction by the parties, a court may not impose one sua sponte. See Kardon, supra. Thus, we cannot say that the submission was restricted by the parties in such a manner as to have withdrawn the decision of any dispute regarding this stipulation from the normal range of the arbitrator’s authority.

In its brief appellee contends that any dispute over this stipulation was not intended by the parties to be resolved by the arbitrator. Appellee cites Hunn v. Pennsylvania Institute for the Blind, 221 Pa. 403, 70 A. 812 (1908), in support of this contention. Hunn involved the issue of whether a court’s evidentiary ruling that certain testimony was inadmissible was error. By the terms of a construction contract, the architects were made the arbiters of questions between the parties, and also it was their duty to certify when the project was finally completed thereby triggering the final payment on the contract. The excluded evidence related to the failure of the architects in their duties under the contract. It was excluded because the evidence failed to show that the matters discussed in the testimony had been submitted to arbitration. The court reversed the ruling holding that the arbitration clause referred to disputes between the contractor and the owners, and not questions that concern the performance of duties by the architects themselves. It concluded that the parties did not intend to permit the architects as arbitrators to pass upon and finally determine questions involving their own failure in the performance of duties, thus submission to arbitration was unnecessary.

In the instant case the arbitrator was not required to pass upon his own failure with respect to any duty imposed upon him by the stipulation. The stipulation did not obligate the arbitrator to refrain from inquiring as to settlement efforts; nor did it oblige the arbitrator to determine whether his judgment had been prejudiced by its breach in order for it to become operative. Arguably, the only obligation it imposed upon the arbitrator was to discontinue the hearing upon the occurrence of a specified event. It was the province of the arbitrator to decide if one of the parties breached the stipulation. In doing so, he was not required to pass upon his own failure to perform a duty imposed upon him by the stipulation. Appellee’s reliance upon Hunn is misplaced.

Mindful of the power of this court to determine whether the arbitrator has stayed within the authority given him by the submission, see Sley, supra, we must conclude that the arbitrator did not exceed his authority, for the stipulation did not manifest the parties’ intention that the arbitrator should have no authority to resolve a dispute as to its applicability.

Since the arbitrator was well within the bounds of his authority when he continued the hearing upon finding as fact that the agreement was not breached, the trial court en bane exceeded the proper scope of review when it found a violation of the stipulation. A mistake in the findings of fact and law in a common law arbitration is not subject to review on appeal. Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978). It was error for the trial court en banc to find a violation of the stipulation.

Inasmuch as the arbitrator did not exceed the scope of the submission, the only remaining avenue of review of the award for appellee is to show by clear, precise, and indubitable evidence that the parties were denied a hearing or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable, and unconscionable award. See Newspaper Guild, etc. v. Philadelphia Daily News, Inc., 401 Pa. 337, 164 A.2d 215 (1960). See also 42 Pa.C.S.A. § 7341. In this regard appellee, seemingly as an afterthought, argues that it was denied a hearing because it was unable to present testimony regarding the alleged violation of the stipulation. Upon reviewing the record, we have not found a request by appellee to present such evidence, nor have we found that the arbitrator denied any offer of such evidence by appellee. Not having proffered such evidence, appellee cannot now claim that it was denied a fair hearing. See Runewicz, supra, 476 Pa. at 462, 383 A.2d at 192. Furthermore, we fail to see the necessity to present testimony to establish the surrounding circumstances of the alleged breach, when the arbitrator and both counsel witnessed the event. Additionally, we note that appellee availed itself of the opportunity to argue the merits of its objection at length, before the arbitrator ruled. We conclude that no merit exists in appellee’s contention.

For the foregoing reasons, we reverse the order vacating and setting aside the arbitrator’s award of February 2, 1981 and remand for the entry of an order and judgment consistent with this opinion. We relinquish jurisdiction.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

While the opinion of the majority reflects a careful analysis and presents its holding in quite persuasive fashion, I must, nonetheless, very respectfully dissent. I share the following views expressed in the able opinion of the distinguished court en banc, specifically the learned Judges James T. Walsh and S. John Cottone:

It is not disputed that the controversy at issue was intended by both parties to be subject to arbitration. However, upon a breach of an expressed condition, both parties agreed that the arbitration would terminate and the matter would be reassigned. This modification of the agreement to arbitrate was neither invalid nor contrary to law.
It is the opinion of this court that the colloquy between the arbitrator and Mr. Roth for respondent on September 29, 1980, was in direct contradiction of the agreement of January 22, 1980. No matter how innocuous the remarks may have been, and despite the arbitrator’s claim that he would not be biased because of those statements, the statement by Mr. Roth violated the stipulation to refrain from any mention of settlement negotiations posited by respondent’s counsel and agreed to by the petitioner.

The record makes clear and the majority acknowledges that Mr. Roth, an officer of Sigma and an attorney who was present at the time that counsel for the parties entered into the stipulation, responded, despite the terms of the stipulation, that a reasonable sum and offer had not been made.

There can be little question but that the response of this officer of Sigma to the arbitrator could only mean that Giant had not made any reasonable offer of cash settlement, from which the arbitrator could infer only that it was Giant upon which the onus for resolution of the dispute rested. It would be difficult to accept that the response was mere oversight since it was provided by an individual who was an officer of Sigma, an attorney, and a party present at the time the stipulation was proposed by counsel for Sigma.

I would, therefore, affirm the order of the Common Pleas Court vacating the award and directing the parties to resubmit the matter to arbitration after a new arbitrator has been selected.

      . By their mutual agreement to the stipulation, the parties amended the original arbitration clause. See 11 Standard Pennsylvania Practice ch. 49 § 29.

      . In the summary of argument in appellee’s brief, appellee argues that one of the commercial arbitration rules had been violated, thereby constituting misconduct and other irregularity of such a nature as to cause the award to be inequitable. This argument is not carried forward in the brief, so it will not be considered.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    459 A.2d 772
    Floyd S. HENRY and Carol L. Henry, His Wife, Appellants, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF GREENE COUNTY v. Charles W. RHODES, Individually and T/D/B/A Wayne Industrialized Building Company.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed April 15, 1983.

      Stephen Paul McCloskey, Washington, for appellants.
    Louis M. Tarasí, Jr., Pittsburgh, for appellees.
    Before HESTER, McEWEN and JOHNSON, JJ.
   JOHNSON, Judge:

Appellants, Floyd and Carol Henry, appeal from an order granting summary judgment pursuant to Pa.R.Civ.P. 1035 in favor of appellee, First Federal Savings & Loan Association of Greene County.

When reviewing a motion for summary judgment, we adhere to the following guidelines:

[W]e are to accept as true all well-pleaded facts in the non-moving parties’ pleadings, as well as the admission on the file, giving to them the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to them; and in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.

Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969). We note additionally that the moving party bears the burden of establishing the absence of genuine issues as to material facts. Lehigh Electric Products Company, Inc. v. Pennsylvania National Mutual Casualty Insurance Co., 257 Pa.Super. 198, 390 A.2d 781 (1978). Mindful of these guidelines, we now affirm the order granting summary judgment.

Appellants filed a complaint against appellee alleging causes of action for breach of contract and implied warranty in assumpsit, and causes of action for negligence and gross negligence and malfeasance in trespass. From appellants’ pleadings and the three depositions of record, we adduce the following facts.

Appellants contracted with Charles W. Rhodes to have a dwelling built upon property they purchased near Smith-field, Pennsylvania. To finance the construction, they entered into a construction loan agreement with appellee through its employee Scott O’Neil. The agreement provided for five progress payments upon completion of specified construction work. As the construction progressed, approximately six inspections of the property were conducted by Mr. O’Neil. These inspections simply consisted of Mr. O’Neil ascertaining whether the construction had progressed to the point where various items listed on his progress report did indeed exist. None of the inspections were conducted to determine the quality of the workmanship done.

The periodic progress payments provided for under the construction loan agreement were accomplished by a check drawn in the name of both the appellants and Mr. Rhodes. Most of the checks were disbursed directly to appellants, and not to the contractor (Mr. Rhodes) as was appellee’s right under the agreement. They were disbursed after appellee had determined by means of inspection of the quantity of the work done, that the progress payment was due.

Acting upon the assumption that appellee had done a quality inspection, appellants perfunctorily endorsed the checks, allowing them to be cashed by Mr. Rhodes by affixing his signature. Appellants did not have an inspection to determine the quality of the work done until after their house was completed. It then became apparent that there were numerous deficiencies in the construction work. Appellants first sought recompense for these deficiencies from Mr. Rhodes by filing a separate action. They obtained a judgment against him, which remains unsatisfied. Thereafter, they filed the action now before this court.

We will first consider whether appellants' claims are ones upon which relief may be granted. It is axiomatic that in order to state a cause of action for negligence, appellants must have been owed some duty by appellee to conduct quality inspections for their benefit. See Boyce v. U.S. Steel Corp., 446 Pa. 226, 285 A.2d 459 (1971). Since gross negligence is simply a greater degree of negligence, it must also be predicated upon some duty owed to appellant by appellee. For purposes of the assumpsit counts appellants must have been the beneficiaries of some contractual duty. Unless appellants have stated a claim upon which relief can be granted, we need not consider appellants’ allegations as to the invalidity of the exculpatory language in the construction loan agreement. Nor do we need consider appellee’s affirmative defenses of statute of limitations, collateral estoppel, and contributory negligence.

The central issue herein for our determination is whether appellee was under a duty to inspect the construction work for quality of the workmanship as well as quantity of work before disbursing the construction loan funds. We begin our analysis by determining whether appellants’ counts in trespass are actionable because appellee owed appellants a legal duty.

In Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 410 A.2d 344 (1979), Fetner filed counterclaims averring that the bank fraudulently withheld from him knowledge of the fact that an easement burdened the property he purchased. Fetner contended that the bank had an affirmative duty to inform him that an easement burdened his property. Citing Grace et ux. v. Moll, 285 Pa. 353, 355, 132 A. 171, 171 (1926), a panel of this court stated that “[ojrdinarily, the relationship between borrower and lender does not create a confidential relationship.” It was. further stated that:

Ordinarily, there is no duty on the part of a lender to inspect the mortgaged property to determine that the borrower is obtaining that which he may have been promised by the vendor or that which he believes he is obtaining. Unless some further obligation is assumed, the lender’s inspection of the premises to be mortgaged is made only to ascertain whether the property has sufficient value to secure the loan and is made by the lender for its benefit only.

Fetner, supra, 269 Pa.Super. at 462, 410 A.2d at 348. Finding that the bank had in no way assumed such a duty, the panel affirmed the dismissal of Fetner’s counterclaim. Thus, the general rule, as enunciated by the Fetner court, is that ordinarily the law does not impose a duty upon the mortgagee/lender to inspect the mortgaged property for the benefit of the mortgagor/borrower, unless the mortgagee/lender has otherwise assumed such a duty.

In their brief, appellants maintain that appellee contractually assumed a duty to inspect for their benefit. Underlying their argument is the assertion that the construction loan agreement as supplemented by parol representations of Mr. O’Neil at the time the agreement was executed creates a contractual duty to inspect for their benefit. They further maintain that appellee negligently performed this duty.

At this point we note that our analysis of the validity of appellants’ counts in both trespass and assumpsit will depend upon what obligations are imposed on appellee by the construction loan agreement. We therefore, must interpret it to determine the extent of appellee’s obligations.

The interpretation of the construction loan agreement is a question of law for the court. While it is the court’s province to interpret the agreement, it is still inappropriate to enter á summary judgment if there are substantial disputes as to the facts regarding the interpretation or application of its terms. Murray v. Yoe, 170 Pa.Super. 348, 85 A.2d. 623 (1952). However, if the terms of the construction loan agreement are clear and unambiguous, we believe that summary judgment is appropriate if the court is able to apply those terms to the facts of the case because of the absence of substantial factual disputes.

We begin the task of interpreting the construction loan agreement by examining its terms. From our examination of the agreement, it is apparent that the agreement imposes few obligations upon appellee, while vesting appellee with various other rights. As to appellee’s obligation to inspect, we focus our attention on paragraphs 9 and 16. Paragraph 9 gave appellee the right to enter the premises and conduct inspections “for its own protection” and not as agent for the appellants. Both paragraphs 9 and 16 stipulate that appellee assumes “no responsibility for the completion of said building ... according to the plans and specifications...” Thus the plain and unambiguous language of the construction loan agreement clearly negates the existence of the duty appellants assert.

Appellants assert that oral representations contrary to the terms of the agreement were made by Mr. O’Neil prior to its execution. Appellee disputes that these representations were made. This, in appellants’ view, raises a “genuine issue of material fact.” We disagree because we believe the representations alleged are barred by the parol evidence rule.

In Clancy v. Recker, 455 Pa. 452, 458 n. 5, 316 A.2d 898, 902 n. 5 (1974), the court stated the parol evidence rule as follows:

In the absence of fraud, accident or mistake, parol evidence as to preliminary negotiations or oral agreements and as to a prior or contemporaneous oral promise or representation or agreement is not admissable in evidence if it adds to or modifies or contradicts or conflicts with a written agreement which purportedly contains the entire agreement between the parties.

Thus, the parol evidence rule would bar the admission of the oral representations alleged by appellants if we determine the construction loan agreement is the complete agreement between the parties.

For guidance, we look to the landmark case of Gianni v. Russell & Co., 281 Pa. 320, 126 A. 791 (1924). In Gianni, the supreme court stated that “[wjhere the parties ... have deliberately put their agreement in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement.” Also, the following approach for determining the completeness of a writing was advanced:

[TJhe writing will be looked at, and if it appears to be a contract complete within itself, “couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the engagement”, it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing.

Id., 281 Pa. at 323-24, 126 A. at 792. (Citation omitted). It was further stated in Gianni that “where the cause of action rests entirely on an alleged oral understanding concerning a subject which is dealt with in a written contract it is presumed that the writing was intended to set forth the entire agreement as to that particular subject.” Id. Since the construction loan agreement does not contain an integration clause that recites that the parties have set forth their entire agreement, we must examine its text to determine its completeness.

As we have indicated in our discussion supra, the construction loan agreement contains provisions that clearly address the matters of inspection of the property and for whose benefit that inspection will be conducted. Thus, we deem it to be complete as to those matters.

Finding the construction loan agreement to be complete as to matters regarding inspection, evidence of the parol representations of Mr. O’Neil is barred unless appellants allege and prove fraud, accident or mistake by clear and convincing evidence. Appellants have not alleged fraud, accident, or mistake in their complaint and reply to new matter, nor is it established by any facts of record. We therefore conclude that the parol representations asserted by appellants are not admissible to contradict the terms of the construction loan agreement.

In summary, we conclude that no duty was imposed upon appellee by law or contract, to inspect the mortgaged premises for the quality of the construction work performed before disbursing funds from the construction loan fund. We hold that appellants have failed to state causes of action upon which relief may be granted because the parol evidence rule bars the only proof that would permit appellants’ complaint to be actionable. In such cases, it has been held that summary judgment is an appropriate disposition. Rose v. Food Fair Stores, Inc., 437 Pa. 117, 262 A.2d 851 (1970).

Because of our holding, we need not consider appellants’ argument that genuine issues of material fact exist relative to the validity of the exculpatory clauses in the construction loan agreement. While it has been held that genuine issues of material fact arise when the validity of exculpatory clauses is disputed, see Leidy v. Deseret Enterprises, Inc., 252 Pa.Super. 162, 381 A.2d 164 (1977), we find no underlying cause of action that would invoke the exculpatory clause. Similarly, we need not consider appellee’s affirmative defenses.

Finding that appellee is entitled to judgment as a matter of law and that no triable issues of fact exist, we therefore affirm the order granting summary judgment in favor of appellee.

      . Later, appellee joined Charles W. Rhodes as an additional defendant. Mr. Rhodes did not participate in this appeal, but joins in the arguments of appellee.

      . Appellants cite McHale v. Antonio, 71 Luz.L.Reg.Rep. 54 (C.P. Luzerne County 1981) and Garbish v. Malvern Federal Savings and Loan Association, 17 Pa.D. & C.3d 202 (C.P. Chester County 1980) in support of their position that such a duty exists. Appellants' reliance upon the holdings in these cases is misplaced. Both of these cases are distinguishable on their facts from the instant case. In both cases, the Bank exercised absolute control over the disbursements permitting the borrower no discretion whatsoever to control the disbursal of funds to the contractors. In the instant case the borrowers did in fact have control over the disbursement of funds to the contractor. Since these two cases are distinguishable from the instant case, we need not, indeed we do not, here express an opinion as to the validity of the holdings in them.

      . The assumption of a tort duty, when otherwise no duty exists, is governed by the Restatement (Second) of Torts § 323 (1965). See Hamil v. Bashline, 224 Pa.Super. 407, 307 A.2d 57 (1973), appeal after remand 243 Pa.Super. 227, 364 A.2d 1366 (1976), vacated 481 Pa. 256, 392 A.2d 1280 (1978). It states in pertinent part that: “one who undertákes ... for consideration to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking____" The assumption of a duty must be evidenced by "some contractual or legal obligation.” Dejesus v. Liberty Mutual Insurance Co., 423 Pa. 198, 223 A.2d 849 (1966). Thus, appellants’ counts in trespass are not actionable unless appellee contractually undertook to make quality inspections for their benefit.

      . Paragraph 9 of the construction loan agreement states:
      The Borrower and the Contractor do hereby authorize the inspectors or representatives of the Association to enter upon the said premises and inspect and check the construction of the improvements at all reasonable times. It is understood and agreed that the Association, in making inspections and disbursing funds, is doing so only for its own protection and is not acting as agent for either of the parties hereto. The Association assumes no responsibility for the completion of said improvements either in accordance with the plans and specifications or for the contract price, nor shall it be liable for any acts other than gross negligence of malfeasance in the disbursement of the construction funds. (Emphasis added.)

      . In pertinent part Paragraph 16 states:
      That the owner has accepted, and hereby excepts the sole responsibility for the selection of his own contractor and subcontractors, all materials, supplies and equipment to be used in the construction, and the Association assumes no responsibility for the completion of said building, according to the plans and specifications and for the contract price.... (Emphasis added)


author: MONTEMURO, Judge:

text:
    459 A.2d 777
    COMMONWEALTH of Pennsylvania v. James Curtis SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 6, 1982.
    Filed April 15, 1983.
    Petition for Allowance of Appeal Denied July 21, 1983.

      Gary Spohn Fronheiser, Assistant Public Defender, Reading, for appellant.
    Charles M. Guthrie, First Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, James Curtis Smith, was convicted in a jury trial of second degree murder, rape, indecent assault, involuntary deviate sexual intercourse, robbery, theft, and conspiracy. Post-verdict motions were heard and denied and a sentence of life imprisonment imposed. A timely appeal was taken to this court.

The charges arose out of the brutal slaying of William Eich, Jr., an eighteen year old army private who was home in Reading on a three day pass from Aberdeen, Maryland. On October 7, 1978, Eich arrived home in the afternoon. At approximately 5:00 P.M. he borrowed the family car, an orange 1972 Volkswagen square-back station wagon, and left “to go to the movies.” He picked up two friends, Karim O’Connor and Ricky Curry. Eich also picked up one Darryl Carter. They proceeded to the Maple Bar in Reading. Carter, being the only one of the four over twenty-one years of age, purchased two eight-packs of Miller beer and two six-packs of Old Milwaukee beer. Carter purchased the beer with a twenty dollar bill provided by Eich.

They went to a cemetery to drink the beer and smoke marijuana. Carter forced O’Connor and Curry to leave the car for an undisclosed reason while at the cemetery. They returned to the car and all four left the cemetery. O’Con-nor and Curry were dropped off at Carter’s insistence between 9:00 and 9:15 P.M. Both boys testified that Carter hit or attempted to kick Eich while they were in the vehicle. O’Connor also testified that he had been punched by Carter.

Subsequently, Eich and Carter picked up the appellant who was hitchhiking on Carsonia Avenue in Reading. The appellant was acquainted with Carter but did not know Eich. According to the appellant’s uncontradicted testimony he had been at his girlfriend’s house all day. Upon leaving, about 7:00 P.M., he waited for a bus to take him to his apartment. It was a cold evening and appellant drank a pint of “Amaretto” and smoked three “bones,” that is, marijuana cigarettes. The bus did not come so he went back to his girlfriend’s where he remained for about forty-five minutes to an hour. He then left again and commenced hitchhiking until he was picked up by Carter and Eich. The appellant testified that they offered him more marijuana, which he initially declined but later might have accepted. He was also offered a beer or “[MJaybe more, three, I’m not sure,” which he drank.

The three of them drove to a deserted location on a “powerline road” in Ruscombmanor Township. Sometime between the hours of 9:15 and 11:00 P.M., Eich was brutally beaten to death and sexually assaulted.

The appellant’s version of the story is that, as a result of the combined effect of the amaretto, beer and marijuana, he was intoxicated and had fallen asleep in the back of the vehicle. He awoke briefly when he heard Eich and Carter arguing about a road. They went up the road and stopped. Carter asked the appellant for his belt “to bang up some crank.” (to use as a tourniquet to aid in injecting speed). Eich and Carter left the car and the appellant handed them trash (bottles, cartons) and then went back to sleep. Appellant then testified that Carter came back shook the appellant awake and returned his belt, which was broken. The appellant noticed this and took the belt off and put it on the floor. Carter told the appellant that Eich was staying with friends and had lent the Volkswagen to Carter.

The Commonwealth disputes the appellant’s version of the events. While offering no direct evidence of what happened, they attempt to demonstrate the appellant’s participation through circumstantial evidence. They offered the testimony of a chemist that blood stains found on the vehicle were of the same blood type as William Eich’s. They offered testimony of the officers who discovered the body regarding the positioning of the body some thirty feet off a path in a tangle of weeds, and the positioning of objects found proximate to the body including Darryl Carter’s wristwatch, the appellant’s belt “keeper”, and two beer cartons and a beer bottle on which appellant’s fingerprints were found. Additionally, one of the officers testified to scratches he received from the weeds on the backs of his hands. Similar scratches were observed on the appellant. The Commonwealth’s theory was that the attack on Eich commenced inside the vehicle and was completed outside. The body was then dragged into the weeds, whereupon appellant and Carter fled.

The Commonwealth also relied a great deal on events subsequent to the criminal incident. Carter and appellant drove to Carter’s mother’s residence and then to Carter’s own residence where they picked up clothing. He told appellant they were going to California, although the appellant stated that he thought they were merely going to drive around. They proceeded to the appellant’s apartment where he picked up a jacket and a tape deck. While returning to the car, he saw Carter throwing something in the sewer. They were seen by a gas station attendant, between 10:30 and 11:00 P.M., who was suspicious of their manner and thought they might have stolen the vehicle. They drove through the night, Carter driving, the appellant sleeping. They turned around- in “Illinois” and returned, picking up a hitchhiker, Frank L. Mays, outside of Cleveland. Mays drove all the way back to Reading with them. Once in Reading, Carter met his brother in a gas station, took his belongings and departed. The appellant then sold the car to Mays for ten dollars and signed a receipt using the name, William Eich. Mays drove the car to his home in New Jersey and then called William Eich, Sr.

Mr. Eich and a Police Officer Phillips picked up the vehicle and showed a photographic array of approximately fifteen pictures to Mays. Mays identified Carter and the appellant.

On October 12, 1978, the appellant was picked up for questioning by Chief Wells of the Lower Alscace Police Department and Trooper Goetz of the Pennsylvania State Police. They administered Miranda warnings and asked if he had any information concerning Eich, who was then considered a missing person. He was also told that a murder investigation might result. They drove the appellant to his apartment and the appellant directed them to the sewer where they found the wallet and the belt. The appellant was taken to the State Police Barracks to make a statement about Carter disposing of the objects in the sewer. At this time Smith requested an attorney and a call was made to the Public Defender’s Office. There was no attorney available at that time but the appellant was instructed not to say anything.

The parties dispute what occurred next. The appellant contends that in response to questioning he stated, “I can show you where the body is.” The prosecution contends that the appellant merely blurted out the statement. After making the statement; the appellant took the police to several locations, including the “power-line road” (which he said did not look familiar), but they did not locate the body. Later that evening, pursuant to Darryl Carter’s information, the mangled body of William Eich was found. Smith was immediately arrested and charged.

The Commonwealth also relied heavily on statements made by the appellant, in addition to those we have previously mentioned. While awaiting trial in prison, the appellant made a request to speak with his probation officer. Following a recount of the events of October 7, during which the appellant frequently broke into tears, the appellant stated, “I didn’t know that I had, you know, Billy was dead. I thought Bill was still living.” The prosecution also brought out two prior statements of the appellant, made before his arrest to his probation officer — each giving a different version of the events of October 7.

The appellant raises several issues herein: That his Sixth Amendment right to counsel was violated due to different representation at the preliminary hearing and at trial; That the trial court erred in admitting prejudicial and inflammatory materials; That the trial court erred in allowing the testimony of an unqualified expert witness; That the trial court erred in denying appellant’s motion to suppress; That the trial court erred in refusing to grant appellant’s demurrer; and that the evidence was insufficient to sustain the verdict. We will address these claims seriatim.

Appellant contends he was denied effective representation by having different counsel at the preliminary hearing and at trial. In all, appellant was represented by three attorneys, each one a member of the Berk’s County Public Defender’s Office. One, Anthony B. Reardon, III, Esq., represented the appellant at the preliminary hearing and later petitioned the court to withdraw. Another, George C. Yatron, Esq., represented appellant briefly. Finally, appellant’s present counsel, Gary S. Fronheiser, Esq., began his representation prior to trial and has continued through this appeal.

The appellant does not assert any specific prejudice has resulted from the fact of different representation. Instead he attempts to create an implication that such prejudice must necessarily result. We cannot subscribe to this view. In Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976), the Supreme Court held:

While we have held that an accused is guaranteed the right to counsel, Moore v. Jamieson, 451 Pa. 299, 307, 306 A.2d 283, 287 (1973), we have never required that the same counsel must represent the defendant at each stage of the proceedings. Absent any demonstrable prejudices because of the change in counsel, we cannot find that [the defendant’s] right to the effective assistance of counsel [has] been violated.

Id., 467 Pa. at 286, 356 A.2d at 752. Therefore, we find that the appellant was not denied the effective assistance of counsel in this respect.

Appellant claims that the trial court erred in allowing prejudicial and inflammatory materials to be viewed by the jury. Specifically, he objects to Commonwealth Exhibit No. 4, a chart displaying an ink figure of the victim’s body and the objects found in the proximate area, and Commonwealth Exhibit No. 14, a black and white photograph of the victim’s body lying where it was found, and showing the disarray of his clothing and bloody, beaten face.

It is well settled that the admission of such evidence is a matter within the discretion of the trial judge, and absent an abuse of discretion there is no reversible error. Commonwealth v. Garrison, 459 Pa. 664, 331 A.2d 186 (1975); Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974); Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973). In Commonwealth v. Scaramuzzino, supra, the Supreme Court reiterated the standard by which such materials are evaluated:

The proper test to be applied by the trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Powell, 428 Pa. 275, 278-279, 241 A.2d 119, 121 (1968). Such photographs will not be excluded merely because they are horrid or gruesome. Commonwealth v. Snyder, 408 Pa. 253, 257, 182 A.2d 495, 496 (1962), but the more inflammatory the photograph, the greater 'the need to establish the evidentiary value.

Supra 455 Pa. at 381, 317 A.2d at 226.

In the present case, Exhibit No. 4, the chart, was used by the Commonwealth to aid in clarifying the testimony of State Police Trooper Robert Seese, regarding the position of the body and the objects found in close proximity; i.e., the wristwatch, the belt keeper, the beer cartons and beer bottle. This evidence was important to the Commonwealth’s attempt to establish the appellant’s participation in the crime by showing objects associated with appellant in close proximity to the victim’s body. The chart was essential to the understanding of the factual testimony of the trooper. Furthermore, the ink drawing is not the sort of horrid, gruesome representation which usually draws the close scrutiny of the courts..

Commonwealth Exhibit No. 14, the black and white photograph was introduced by the Commonwealth, and admitted by the court, to demonstrate the brutality of the beating as evidence of the intent to kill. In Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982), the Supreme Court reversed this court’s grant of a new trial based on the admission of inflammatory photographs. One of the photographs was a color slide of the body of the victim showing the injuries sustained including,

one large bruise of the right eye, across the cheek area, extending down to and toward the lips and side of the jaw; one above the left eye socket, being a blunt impact injury which produced a gaping wound; one across the top of the head, also a blunt impact injury which produced a larger gaping wound; and injury to the mouth resulting in the loss of several teeth.

Id. 499 Pa. at 601, 454 A.2d at 548-49. The Supreme Court found that the pictures helped establish the brutality of the beating and supported an inference of the intent to kill, and thus the value exceeded the prejudicial impact upon the jury. A factor present in McCutchen, which is also present in this case, is that the photographic evidence constituted virtually the only evidence regarding the intent to kill. An additional factor emphasized by the Supreme Court was the cautionary instruction given by the trial judge, a charge comparable to that given by the trial judge herein. While the admission of explicit and gruesome photographic evidence will always raise judicial concern because of the impact such evidence has on a jury, there are instances where the prosecution’s need for it and the trial court’s diligent caution in admitting it, will render the evidence admissible. We find this to be such a case.

Appellant next contends the trial court erred in allowing the testimony of an unqualified expert witness. Trooper Leon Krebs testified that the “belt keeper” found at the scene of the crime was part of the belt buckle, belonging to the appellant, found in the sewer. Trooper Krebs testified that his training involved tools and whether they made a certain mark and also determining whether one part of a tool was part of another tool. Appellant contends the belt and “belt keeper” are not tools and therefore his testimony was beyond the scope of his expertise.

The initial question of whether the witness is qualified to testify as an expert is within the sound discretion of the trial court and will not be overturned absent a clear case of abuse of that discretion. Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). We find no abuse of that discretion. Trooper Krebs is a trained criminalist who has made several hundred tool mark identifications and testified in numerous trials. He testified as to his expertise in determining, "... if broken portions of tools are, in fact, an integral part of another tool ...” (N.T. 201). The witness was qualified to testify and it was a matter for the jury to determine how much weight to give that testimony.

The appellant’s next claim of error is that the trial court improperly denied appellant’s pre-trial motion to suppress. The appellant attempted to suppress a number of statements made both prior and subsequent to his arrest. In each case it appears from the record that the appellant was fully apprised of his Miranda rights. Therefore, in ruling on whether the statements should be suppressed, the court below focussed upon determining whether the statements were voluntary. It determined that the statements were voluntary and denied the appellant’s motion to suppress.

In Commonwealth v. Jackson, 497 Pa. 591, 442 A.2d 1098 (1982), the Supreme Court held:

... In reviewing [the ruling of a suppression court] our initial task is to determine whether the factual findings are supported by the record. In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in context of the whole, remains uncontradicted. Commonwealth v. Goodwin, 460 Pa. 516, 522, 333 A.2d 892, 895 (1975). If, when so viewed, the evidence supports the factual findings, we are bound by such findings; we may only reverse if the legal conclusions drawn therefrom are in error.

Id., 497 Pa. at 595, 442 A.2d at 1100. It is necessary to analyze the circumstances attending each statement which appellant sought to -suppress under the above standard to determine whether the suppression court was correct.

The first statement which appellant attempted to suppress resulted when the appellant contacted the probation officer, Patrick McCauley, and asked him to act as an intermediary between appellant and the police on October 11, 1978. The appellant had become aware of the police investigation of Eich’s disappearance. A meeting was arranged between appellant and Chief Wells at McCauley’s office. When asked about Eich and the orange Volkswagon, the appellant disclaimed any knowledge of either and stated that he had been picked up hitchhiking by an elderly lady on the night in question, was taken home where he stayed through the next day (see fn. 17, supra). The record supports the factual findings of the suppression court and we find no error in its determination the statements were voluntary.

The second statement was made on the morning of October 12, 1978. In a routine contact between appellant and McCauley (regarding appellant’s employment prospects), the appellant inquired of McCauley the potential penalties for non-disclosure of information regarding crimes. McCauley then gave the required Miranda warnings, whereupon the appellant related a second version of the events of October 7 (see f.n. 17 infra). Once again the record supports the suppression court’s findings of fact. Moreover, the impetus for this statement was supplied by the appellant himself and not the result of any interrogation. Clearly, there is no dispute that the statement was voluntarily made.

The third statement which appellant sought to suppress was his statement previously referred to at the State Police Barracks to the effect that he knew where the body was. Appellant contends that the statement was the result of continued interrogation after appellant had asserted his Miranda rights. The court below found that the statement was blurted out by the defendant in the course of general conversation, some concerning Eich, and not as a result of interrogation. The testimony of Trooper Goetz and Chief Wells substantiates this finding (albeit, it is disputed by the appellant). The primary question is therefore whether the general conversation constituted interrogation. The secondary determination is whether the appellant’s statement was voluntary.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) the United States Supreme Court con-eluded that in the context of “custodial interrogation” certain procedural safeguards are necessary to protect a defendant’s privilege against self-incrimination. The Court held that, “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Id., at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. The Court also defined “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way.” supra at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Subsequent opinions construing. Miranda tended to emphasize the custody aspect of the test. However, in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Court expounded upon Miranda regarding the interrogation aspect of the test:

We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response, (emphasis in original) (footnote omitted).

Id. at 300-302, 100 S.Ct. at 1689-90, 64 L.Ed.2d at 307-308. In Innis, a suspect in the shotgun murder of a taxi driver and the robbery of another driver was captured, sans shotgun, at 4:30 A.M. on a street adjacent to a school for handicapped children. He was given Miranda warnings and indicated his desire to speak to an attorney before máking any statements. He was then placed in a police vehicle to be transported to the station. En route, one police officer remarked to another that one of the handicapped children might find the shotgun and shells and might injure himself. The suspect told the police to turn around and when they arrived at the scene he led them to the gun. The Supreme Court held that the police officer’s comment in the vehicle did not constitute interrogation.

The rule set forth in Innis is compatible with the longstanding interpretation of “interrogation” in the Pennsylvania courts. In the seminal case of Commonwealth v. Simala, 434 Pa. 219, 226, 252 A.2d 575, 578 (1969) (quoting the Institute of Continuing Legal Education, “Criminal Law and the Constitution — Sources and Commentaries” p. 356 (1968)), the Supreme Court defined interrogation as “not simply custody plus ‘questioning’ as such, which calls for the Miranda safeguards but custody plus police conduct ... calculated to, expected to, or likely to, evoke admissions.” (emphasis in original). See also Commonwealth v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978); Commonwealth v. Boone, 467 Pa. 168, 354 A.2d 898 (1975); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974).

Based on the findings of fact and considering the standards as enunciated by our Supreme Court and by the United States Supreme Court, we find the general conversation taking place in the state police barracks did not constitute interrogation. The appellant was at the barracks only in order to make a statement regarding Darryl Carter throwing objects into the sewer. The parties were awaiting the arrival of a stenographer to take appellant’s statement. It is not at all unusual that the police officers would be talking about the Eich investigation (at that time a missing persons investigation). In light of these facts we cannot that conclude the suppression court was in error.

Moreover, in Commonwealth v. Mercier, 451 Pa. 211, 302 A.2d 337 (1973), the court held that the Commonwealth has the burden of proving that a suspect, after exercising his privilege, has changed his mind voluntarily without being threatened, tricked or cajoled. The court below found as a fact that there was no trickery, threats or cajolery. We find this to be supported by the record. Commonwealth v. Jackson, supra.

The fourth statement appellant sought to suppress was a taped, later transcribed, statement made at approximately 10:30 P.M. on October 12, 1978, subsequent to appellant’s arrest and arraignment. Appellant was given Miranda warnings and he indicated his understanding of his rights and his willingness to make a statement. Based on the written transcript of the taped statement which was signed by the appellant and also initialed on each page, we find the suppression court was correct in determining that the statement was knowingly, voluntarily and intelligently made. Commonwealth v. Mercier, supra.

The final statement at issue in the suppression proceeding was the taped statement made by appellant to Patrick McCauley and Frank Dougherty on October 18, 1978 at Berks County Prison. The interview was arranged at the appellant’s request. He was again issued Miranda warnings and indicated he did not wish to have an attorney present. He then gave a detailed account of his version of the events of October 7, 1978, similar to the taped statement given to Trooper Barry Pease and to his testimony at trial. Furthermore, at the end of the interview the appellant was told that the tapes might be transcribed and turned over to the district attorney. At this time the appellant said, “Anything to keep me from goin’ to jail.” Once again, the record amply supports the suppression court’s finding that the statements were voluntary. In sum, we find no error in the refusal of the court below to suppress any of the appellant’s statements.

Appellant’s next claim is that the trial court erred in refusing to grant his demurrer to the Commonwealth’s evidence. This issue was waived when appellant elected to put on a defense. Commonwealth v. Dussinger, 478 Pa. 182, 386 A.2d 500 (1978); Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). However, “we will treat the question as if properly framed, namely, whether the trial court erred in refusing defendant’s motion in arrest of judgment,” Id., 478 Pa. at 347, 353 A.2d at 388. We are addressing appellant’s insufficiency claim in any event.

This brings us to the appellant’s final claim that the evidence was insufficient to support the verdict. In reviewing a claim of insufficiency this court determines:

Whether, accepting as true all the evidence and all [the] reasonable inference therefrom upon which if believed the [finder of fact] could have properly based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted. Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the [witness’] testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240 [ (1968) ].

Commonwealth v. Waller, 498 Pa. 33, 43, 444 A.2d 653, 658 (1982) (quoting Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981)).

The court in Waller went on to state:

Furthermore, while it is clear that a criminal conviction may not be based upon mere surmise or conjecture, the Commonwealth’s burden in proving a criminal offense or the elements thereof may be sustained by means of wholly circumstantial evidence.

Commonwealth v. Waller, supra, 498 Pa. at 43, 444 A.2d at 658 (quoting Commonwealth v. Thomas, 465 Pa. 442 at 446-47, 350 A.2d 847 at 849 (1976)).

It is uncontradicted that the appellant was at the scene where the crimes were committed. The jury was entitled to disbelieve the appellant’s exculpatory story that he was asleep in the Volkswagen. Commonwealth v. Chermansky, supra. The appellant’s presence in conjunction with the other evidence connecting him with the crimes is sufficient to sustain all of the convictions.

Appellant’s most serious conviction was for the crime of murder in the second degree which is defined by 18 Pa.C. S.A. § 2502(b) as, “[A] criminal homicide ... committed while defendant was engaged as a principal or accomplice in the perpetration of a felony.”

‘Perpetration of a felony’ is defined in subsection (d) as, “The act of the defendant in engaging in or being an accomplice in the commission of ... robbery rape, or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.” A criminal homicide occurs when “[A] person ... intentionally, knowingly, recklessly, or negligently causes the death of a human being.” 18 Pa.C.S.A. § 2501(a).

It is evident that a criminal homicide has taken place. The Commonwealth’s evidence clearly demonstrated the savage beating which resulted in the death. The appellant was linked to the beating by the use of his belt as a ligature around the victim’s neck, the belt “keeper” found close to the body, and the beer bottle and cardboard holders on which were found appellant’s fingerprints. Moreover, scratches found on the appellant’s hands were similar to those found on the hands of the State Trooper who discovered the body. The evidence, although circumstantial, is sufficient to support a finding that appellant was present not only in the vehicle, but back in the weeds where the body was found. It is not clear whether the beating was administered by the appellant, by Darryl Carter, or by both. However, it is only necessary for the Commonwealth to prove appellant’s participation as an accomplice. We find that the Commonwealth has done so. In addition to the above-enumerated connecting facts there is the added fact that the appellant accompanied Carter on an excursion destined for California, although it progressed only as far as Illinois.

The last element which the Commonwealth needed to prove was that the criminal homicide took place in the course of one of the enumerated felonies. Of these felonies, appellant was convicted of rape, involuntary deviate sexual intercourse and robbery. We find the evidence sufficient to sustain all three convictions and, thus find that the conviction for second degree murder was proper.

Rape is defined in 18 Pa.C.S.A. § 3121:

§ 3121. Rape.

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is so mentally deranged or deficient that such person is incapable of consent.

The Commonwealth produced the testimony of the coroner who examined the body of the victim. He testified that the victim’s anus had been penetrated by an object consistent with a penis. The brutal beating provides all the evidence necessary to prove forcible compulsion. We find the evidence of rape by forcible compulsion was sufficient. Commonwealth v. Perrin, 484 Pa. 188, 398 A.2d 1007 (1979). Once again it is not clear whether Carter or the appellant effected penetration. However, an accomplice is as culpable as a principal. 18 Pa.C.S.A. § 306(d).

The same analysis holds true with regard to appellant’s conviction for involuntary deviate sexual intercourse as defined by 18 Pa.C.S.A. § 3123. We do not find any further discussion necessary. We find the evidence was sufficient. The same also holds true with regard to appellant’s conviction for indecent assault under 18 Pa.C.S.A. § 3126.

However, the same act constitutes the basis for all three convictions. Consequently, we find that the three offenses merge. It is well established that a conviction for indecent assault will merge into a conviction for rape. Commonwealth v. Brown, 290 Pa.Super. 448, 434 A.2d 838 (1981). However, for the most part, rape and involuntary deviate sexual intercourse will constitute separate offenses. In the present case, only one act was committed, and it is this act which serves as the basis for both convictions. Under these circumstances we would find the two offenses merge. Commonwealth v. Artis, 294 Pa.Super. 276, 439 A.2d 1199 (1982). The rape conviction must merge into the involuntary deviate sexual intercourse conviction because the latter contains an additional element; i.e., sexual intercourse per os or per anus. But c.f. Commonwealth v. Pifer, 284 Pa.Super. 170, 425 A.2d 757 (1981); Commonwealth v. Johnson, 274 Pa.Super. 440, 418 A.2d 487 (1980). Thus, the sentences for rape and indecent assault must be vacated.

The appellant was also convicted of robbery under 18 Pa.C.S.A. § 3701, which states:

§ 3701. Robbery

(a) Offense defined.—

(1) A person is guilty of robbery if, in the course of committing a theft, he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; or

(iii) commits or threatens immediately to commit any felony of the first or second degree,

(2) An act shall be deemed “in the course of committing a theft” if it occurs in an attempt to commit theft or in flight after the attempt or commission.

(b) Grading. — Robbery is a felony of the first degree. A person is guilty of “theft” under 18 Pa.C.S.A. § 3921(a) if “he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.” Two items were taken from the victim: the wallet and the Volkswagen. We find the evidence sufficient to sustain a finding that appellant was guilty of robbery with regard to the Volkswagen. The theft is established by the fact that Carter and the appellant took the Volkswagen after the slaying of the victim. The infliction of serious bodily injury is evident in this case. The appellant’s participation in the robbery is further corroborated by his continued accompaniment of Carter and the use and enjoyment of the vehicle during their trip to Illinois. Moreover, the appellant eventually sold the vehicle to the hitchhiker. The convictions for robbery and theft must be sustained. However, the offenses merge for purposes of sentencing, Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979), and therefore the sentence for theft must be vacated.

Finally, we find sufficient evidence to sustain the appellant’s conviction for conspiracy. 18 Pa.C.S.A. § 903. Although circumstantial, the evidence demonstrates an inference that the appellant and Carter planned the robbery of the victim. Commonwealth v. Finnegan, 280 Pa.Super. 584, 421 A.2d 1086 (1980). The evidence demonstrates that the appellant accompanied Carter and the victim to a deserted area, despite his explanation that he was merely being given a ride to his home. Furthermore, the evidence demonstrates the appellant’s participation in the crime and in sharing the spoils of the crime. This conviction must also be sustained.

In accordance with the above, we affirm the judgment of sentence of the trial court with regard to murder in the second degree, involuntary deviate sexual intercourse, robbery and conspiracy. We vacate the judgment of sentence with regard to rape, indecent assault and theft.

Affirmed in part and vacated in part.

      . 18 Pa.C.S.A. § 2502(b).

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3126.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 903.

      . Carter pled guilty in Dauphin County to multiple charges arising out of this incident.

      . The cause of death was found to be internal exsanguination, that is to say, internal bleeding. The bleeding resulted from the severe beating that was administered causing the ribs to break and puncture several internal organs, including the lungs and liver. There was also testimony that the victim’s neck sustained contusions as a result of a flexible ligature; possibly a belt. The medical examiner also testified that there was an indentation in the anus of approximately an inch and a half in diameter and extending inward approximately one and a half to two inches. This indentation was caused by penetration of a smooth blunt object close to the time of death.

      . The testimony of the chemist was inconclusive as to three samples taken inside the vehicle. One was found not to be blood. Two others could not be identified as human blood. The only stain positively identified as human blood of Eich’s type was found outside the vehicle on the ledge above the driver’s door.

      . The body was discovered by State Troopers acting pursuant to information supplied to them by Darryl Carter, who directed them to the location of the body.

      . This later turned out to be Eich’s wallet and appellant’s belt which were recovered by the police when the appellant led them to the sewer after he was picked up for questioning on October 12, 1979.

      . It appears from the testimony that Carter was the only party to drive the vehicle. The appellant indicated that he had no driver’s license and that the only vehicle he had ever driven was a tractor.

      . The appellant’s statement introduced by the prosecution indicated that they turned around at appellant’s insistance.

      . When Mays inquired about the appellant’s authority to sell the car, the appellant stated, “I’m a good boy. I don’t need my father’s permission to sell the car.”

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In one story, appellant stated he had been picked up hitchhiking by an elderly woman and dropped off at his home where he remained all night and the next day. In the other, he stated he was picked up hitchhiking, bought the car for ten dollars, and then sold the car to a second hitchhiker for five dollars. The obvious import the Commonwealth was trying to convey was that the appellant knew of, and had participated in the crime, and also that he was attempting to conceal his participation with false stories.


text:
    459 A.2d 789
    In the Interest of David A. PERRY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 28, 1982.
    Filed April 15, 1983.
    Beck, J., concurred in result.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Dana S. Jones, Assistant District Attorney, Erie, for Commonwealth, participating party.
    Before CERCONE, P.J., and BECK and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from an order of the court of Common Pleas, Erie County, which made an adjudication of delinquency on charges of Simple Assault, Terroristic Threats, False Imprisonment, Theft and Criminal Attempt to Commit Rape, and from the Order of Disposition.

The appellant, David Perry, appeared before Juvenile Court Master, Robert W. Murray, Esquire, in a hearing regarding the above stated charges. He was seventeen years of age at the time of his hearing. The findings of fact issued by the Master disclose that the appellant was acquainted with one Phyllis Smith on June 11, 1981 and that on that date he and his brother, James, arrived at Mrs. Smith’s home to visit her daughter, Kathleen. Kathleen was not home at the time but the boys stayed to help Mrs. Smith with some yardwork. When they finished, the boys went into the house to wash their hands. Mrs. Smith told the appellant and his brother that she had to go to the library and that she would give them a ride to a nearby bus depot.

While in the garage, the appellant grabbed Mrs. Smith from behind and squirted the right side of her face with mace. As she struggled, the appellant ordered his brother to get money, pull the phone plugs and obtain the keys to the car. The appellant then pulled her into the house and down to the basement. Dragging Mrs. Smith across the basement floor, he flipped her onto her back and asserted “I have you down — I’m going to rape you.” Mrs. Smith pleaded that she had recently had an operation and that such activity would kill her. The appellant then turned her onto her stomach, pulled her jeans and underwear down below her hips and said, “I'm not going to do it like you think.”

Mrs. Smith was able to pull up her clothing. The appellant dragged her from the floor to a bed placing her onto it face down. His brother brought some rope which the appellant used to tie her legs together. Throughout this confrontation he repeatedly assured Mrs. Smith that he did not intend to hurt her but merely to obtain her automobile so that he can get out of town.

Once Mrs. Smith was secured on the bed, the boys removed the money from her wallet and some assorted change from various places in the house. They left the premises in Mrs. Smith's automobile which was recovered the next day. Mrs. Smith was examined by a physician but she did not sustain any serious bodily injury nor did she require hospitalization as a result of the macing and her struggle.

Based on these findings, the Master recommended that allegations of Aggravated Assault and Criminal Attempt be reduced to the lesser included offenses of Simple Assault and Indecent Assault, respectively. This was done as a result of a demurrer by appellant’s counsel at the hearing. The Master sustained the allegations of Terroristic Threats, False Imprisonment and Theft. Pursuant to Section 6305(d) of the Juvenile Act, the lower court issued an order which, for the most part, adopted the Master’s recommendations. However, the court rejected the recommended charge of Indecent Assault, concluding, instead, that the findings of fact established beyond a reasonable doubt that the appellant committed the offense of Criminal Attempt to Rape. Counsel for the appellant filed exceptions to the Master’s recommendations and to the lower court’s conclusions to which the Commonwealth filed a reply. After oral argument on the matter, the court dismissed the exceptions.

The appellant puts forth a number of arguments. He contends that the lower court’s acceptance of part of the Juvenile Master’s report and its rejection of part thereof, absent a rehearing, violated his constitutional guaranty against double jeopardy, his constitutional right to due process and his rights under Section 6305 of the Juvenile Act. He asserts, also, that the doctrine of collateral estoppel prevents the court from concluding that the appellant committed the offense of Criminal Attempt to Rape and that the evidence produced at the Master’s hearing was insufficient to sustain this charge. We address these issues individually.

Following a review of the record and both briefs, we find that the lower court did not deprive the appellant of his constitutional rights. In North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), the United States Supreme Court explained that the Fifth Amendment guaranty against double jeopardy consists of three separate constitutional protections. It safeguards against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction and (3) multiple punishments for the same offense. Our Supreme Court has emphasized that the Constitution bars the retrial itself not merely the conviction or punishment. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977).

In the instant case, we agree with the appellee, Commonwealth, that there was no acquittal, conviction, or multiple punishment to which this constitutional protection would apply. Nor was there an attempt by the Commonwealth or the lower court to retry the appellant. The court merely overruled the Master’s grant of the appellant’s demurrer with regard to the Criminal Attempt charge. In ruling on a demurrer the proper test to be applied is whether the Commonwealth’s evidence and all reasonable inferences therefrom are sufficient to support a finding by the trier of fact that the accused is guilty beyond a reasonable doubt. Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d 1051 (1977). The decision to grant or deny a demurrer is therefore ultimately a question of law, not fact. Contrary to what the appellant would have us believe, the lower court did not attempt to alter the factual findings of the Master. Section 6305(d) of the Juvenile Act provides,

A rehearing before the judge may be ordered by the judge at any time upon cause shown. Unless a rehearing is ordered, the findings and recommendations become the findings and order of the court when confirmed in writing by the judge. (Emphasis added.)

When the lower court rejected the Master’s recommendation, it modified a mere legal determination which we find it empowered to do under this statutory provision.

Our denial of the appellant’s double jeopardy and due process claim is buttressed by our decision in In the Interest of Stephens, 277 Pa.Super. 470, 419 A.2d 1244 (1980) wherein we determined that inherent in the appellant’s choice to be heard by a Master is the understanding that his case might have to be heard again by a judge. By the same token we consider David Perry to have recognized, implicitly, that the Master’s recommendations were subject to the written approval or confirmation of a judge as indicated in Section 6305(d), supra.

In conjunction with his constitutional claims, the appellant contends that the judge’s order and opinion, having been entered without the benefit of the transcript of the Master’s hearing, should not be allowed to stand unless a rehearing is conducted. We support this argument insofar as our judicial system does not condone the practice of evaluating the merits of a particular claim without reference to a complete, accurate and untainted record of the proceedings from which that claim developed. We caution against this and any future practice by the lower court which may discredit an otherwise meaningful review. While, indeed, this was error on the part of the court below, we do not consider it harmful enough to remand the entire case.

In this particular situation, this court has had the opportunity to examine the transcript of the Master’s hearing. We have compared the evidence introduced by the Commonwealth with the evidentiary findings of the Master and we perceive no difference. Moreover, there is no dissimilarity between the Master’s findings of fact and those facts presented in the lower court’s opinion. Had there been a factual dispute to consider or had the judge, in rejecting the Master’s recommendation, modified these factual determinations, then a rehearing would have been in order. As this is not the case, we believe that a rehearing at this stage would be an exercise in futility. This is true especially in light of the appellant’s failure to request a hearing before a judge as provided by Section 6305 and his subsequent failure to address any factual conflicts on appeal.

We do not read anything in Section 6305 that explicitly mandates a rehearing and we do not consider the Master’s recommendations as automatically and unconditionally binding merely because there was no rehearing on the matter. It is clear that these recommendations must be confirmed by a judge before they become effective as court orders. The lower court, in this case, accurately defined these recommendations, simply, as the application of the facts as they were pre-determined, by the Master, to the pertinent legal principles. In compliance with Section 6305(d), the judge decided not to confirm the Master’s application regarding the charge of Criminal Attempt and absent any factual dispute or modification, we find that the use of a transcript or rehearing, in this particular case, would have been inconsequential to this decision.

We also reject the appellant’s assertion that the judge’s determination is precluded by the doctrine of collateral estoppel. In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the Supreme Court definitively applied the principle of collateral estoppel to criminal matters stating: 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475 (emphasis added). This doctrine does not apply to the proceedings that are presently questioned by the appellant. We stated, above, that the nature of the judge’s determination was legal, not factual. His conclusion that the appellant is guilty of Criminal Attempt to Rape instead of Indecent Assault was based on the unaltered findings of fact by the Master. Because there was no factual issue subjected to relitigation, we cannot allow the appellant’s argument to stand.

[Collateral estoppel] means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future lawsuit.

Furthermore, collateral estoppel should not be applied where there has been no valid and final judgment. By statute, the Master’s recommendation is not considered a valid and final judgment until it is confirmed by the judge. The judge’s reevaluation certainly does not constitute a relitigation of the matter. Rather, it is a final step in the prosecution of the appellant. We hold that this procedure does not conflict with the doctrine of collateral estoppel.

Finally, the appellant insists that the evidence produced at the hearing was insufficient to constitute the offense of Criminal Attempt to Rape. We disagree, the charge of Criminal Attempt is governed by 18 C.P.S.A. § 901(a) which states:

§ 901. Criminal attempt

(a) Definition of attempt — A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

Moreover the crime of Rape is defined by 18 C.P.S.A. § 3121 as follows:

§ 3121. Rape

A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:

(1) by forcible compulsion;

(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;

(3) who is unconscious; or

(4) who is mentally deranged or deficient that such person is incapable of consent.

The appellant argues that he had abandoned his intent to rape Mrs. Smith which is a defense to the charge of Criminal Attempt. The definition of this defense is set forth in 18 C.P.S.A. § 901(c) which provides:

(c) Renunciation.—

(1) In any prosecution for an attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant avoided the commission of the crime attempted by abandoning his criminal effort, and, if the mere abandonment was insufficient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

(2) A renunciation is not “voluntary and complete” within the meaning of this subsection if it is motivated in whole or in part by:

(i) a belief that circumstances exist which increase the probability of detection or apprehension of the defendant or another participant in the criminal enterprise, or which render more difficult the accomplishment of the criminal purpose; or

(ii) a decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar objective.

We defer to the Master’s factual findings which disclose that the appellant not only had informed Mrs. Smith of his intent to rape her but had gone so far as to pull her pants and underwear below her hips. We perceive this to be a significant step toward the commission of the Crime of Rape as defined, above. The appellant’s abandonment of his criminal intent was not voluntary as the record indicates that he and his brother were anxious to leave town and that his fear of being caught in the act by Mrs. Smith’s daughter was eminent. In light of these findings we hold that there is more than enough evidence to constitute the offense of Criminal Attempt to Rape.

The orders of the lower court are affirmed.

BECK, J., concurs in the result.

      . 18 Pa.C.S.A. § 2701.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 2903.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 3921.

      . Hearing was conducted on June 24, 1981 pursuant to Section 6305 of the Juvenile Act, 42 Pa.C.S.A. § 6305, Act of April 28, 1978, P.L. 202, No. 53 § 2, effective, June 27, 1978.

      . 42 Pa.C.S.A. 6305(c).

      . 42 Pa.C.S.A. 6305(d).

      . U.S. Const. amendments, V, XIV; Pa. Const, art. 1, § 10.

      . See note 6, supra.

      . In this case the defendant argued the illegality of Pennsylvania’s procedure with regard to Master’s hearings. Under attack, specifically was 11 P.S. § 50-301(b) which states:
      Before commencing the hearing the master shall inform the parties who have appeared that they are entitled to have the matter heard by the judge. If a party objects, the hearing shall be conducted by the judge.

      . The lower court’s error is also considered harmless in light of the fact that at the Master’s hearing, the appellant presented a defense in which he and his brother testified as to their understanding of the events of the day in question. (Notes of Testimony, p. 42, et seq., June 24, 1981) In ruling on the demurrer, the court, therefore, did not deprive the appellant of his right to be heard. However, had this been a situation wherein the appellant did not raise a defense, a rehearing would have been mandatory before the judge could have issued further orders.

      . See n. 8, supra.

      . Notes of Testimony, p. 18, June 24, 1981. Mrs. Smith had warned appellant that her daughter would be home at any moment. Throughout her testimony, she had indicated that the appellant and his brother were in a hurry. See e.g. notes of testimony, p. 21, June 24, 1981.