author: CAVANAUGH, Judge:

text:
    454 A.2d 1027
    COMMONWEALTH of Pennsylvania v. Louis P. DiNICOLA, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1981.
    Filed Nov. 30, 1982.
    Reargument Denied Feb. 10, 1983.
    Petition for Allowance of Appeal Granted June 24, 1983.

      Harold Gondelman, Pittsburgh, for appellant.
    Shad Connelly, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   CAVANAUGH, Judge:

Appellant, Louis P. DiNicola, was convicted of arson and three counts of murder in the second degree following a jury trial before McClelland, J. Following denial of his motions in arrest of judgment and for new trial he was sentenced to three consecutive life sentences. He has appealed from the judgment of sentence.

Appellant’s first contention is that the evidence is insufficient to sustain his convictions. The test for sufficiency of evidence in a criminal case is whether the evidence admitted at trial is sufficient to prove every element of the crime charged beyond a reasonable doubt. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980). An appellate court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom, upon which, if believed, the factfinder could properly have based its verdict. Commonwealth v. Helm, 455 Pa. 315, 402 A.2d 500 (1979). Further, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence. Commonwealth v. Dumas, 299 Pa.Super. 335, 445 A.2d 782 (1982). Applying these rules, the evidence may be summarized as follows: Appellant was a roofer employed by McCreary Roofing Company. After work on August 30, 1979, he went to the home of his friend, Michael Jefferson, and both men worked on Jefferson’s truck which was parked in a driveway adjacent to his home. During the early evening, Debbie Sweet and her two children arrived home from shopping. She lived in the first floor apartment, in the building where Mr. Jefferson lived on the second floor with his mother and her fiance, Mr. Pitt. Ms. Sweet had only moved into her apartment about a week earlier with her eight year old daughter, Alisa, and four year old son, David. When Ms. Sweet arrived home she spoke to the appellant, whom she had never met before, and to Mr. Jefferson, with whom she had spoken on one previous occasion. She had a case of beer with her as she was having a house-warming party the next day and the appellant helped her carry the beer into her apartment. This was about 8:30 p.m. When Ms. Sweet arrived at her apartment both the appellant and Jefferson were working on the truck and were extremely dirty from their day’s activities as roofers. Both men were drinking beer and smoking marijuana.

Shortly after Ms. Sweet and appellant entered her apartment, Michael Jefferson arrived. The three sat in the kitchen talking and drinking beer for a short time and about 9:00 p.m. Ms. Sweet put her two children to bed. Subsequently, the three smoked strong marijuana in the kitchen and appellant made a pass at Ms. Sweet which she rejected. Later on, Ms. Sweet and appellant went into the living room and Jefferson left. Appellant sat on the floor of the living room as he was still in dirty work clothes. Jefferson returned shortly and was wearing fresh clothing. Appellant asked Ms. Sweet if he could take a shower as he lived a long distance away and Ms. Sweet agreed.

Ms. Sweet and Jefferson then engaged in petting in the living room until she had to go to the bathroom. Appellant was still showering and told her “to come on in, I won’t look.” She used the bathroom facilities and he said to her: “See, I didn’t look” and Ms. Sweet replied “Good, it looks like I could trust you.” After Ms. Sweet left the bathroom she went into her bedroom with Jefferson. She got undressed and got in bed with Jefferson and engaged in sexual activities. Ms. Sweet observed the appellant leave the bathroom and saw him in the hallway outside her bedroom. She testified upon direct examination:

Q. Describe the sounds as you heard them?
A. Well, from the moment I saw him, I heard a continual track of footsteps walk through the kitchen, into the den, into the living room, and then there was a blank pause, and then it walked back into the den, and I heard the door open.
Q. Now, you said you heard these footsteps go in a certain direction and go across certain floors. How could you tell which floor they were crossing?
A. Because the floors—the floors were different in the kitchen, the bathroom, and my bedroom. There was no wax linoleum flooring, which it was one sheet just laid and in the den and in David’s bedroom and in the living room, they were old, real old hardwood floors and they creaked.
Q. Could you tell from the sound where it was?
A. Yes, you could tell. You could tell very easily, it was the door in the den where my coats were.
Q. That would be where?
A. The door at the back of the stairway.
Q. The closet?
A. Yeah, it’s a closet door right here (indicating). You could hear this open and then it shut, and then I heard these footsteps walk across here (indicating), and this door open (indicating), and then there was silence. Then suddenly, the footsteps just right away left.
Q. When you say, and left—
A. Well, it was at a faster pace and I could tell it went out the back door because of the sounds.
Q. What sound was there at the back door?
A. Well, it was our downtown city street sounds that when the door opened, you know, you’re just aware that the back door has opened to the outside.
Q. Did you hear the back door close?
A. No.
Q. Did you remain in the bed after the steps went out the door?
A. Yes.
Q. What occurred in the bed at this time?
A. I was relieved that he left, because I was worried about him walking through my apartment. I was worried about my daughter, my stereo and my belongings. So, I was relieved he left and Michael had finished making love to me and he just laid there. And I just figured I’d get up soon and shut the door, get up soon and lock the door.

Ms. Sweet testified that she then dozed off with Jefferson sleeping on top of her. The next thing she knew she was awakened by noises in the kitchen and her testimony was as follows:

Q. What kind of noises?
A. They were somebody was in the kitchen and I thought it was one of the kids, you know, it was quiet and I thought it was one of the kids and I listened and the noise went—whoever it was went from the kitchen then went into the living room. ■
Q. The living room?
Q. Describe what you heard?
A. They were knocking into things, and at that point, I figured that that couldn’t be one of my kids that were up. See, my kids would get up sometimes. David would get up or Alissa would get up and use the bathroom during the middle of the night or Alissa would get thirsty and get a drink of water and go back to bed. Well, this time instead of one of them walking around and going back to their bed, this person was knocking into things and—
Q. Let me ask you something at this point. From the time that you heard noises in the kitchen, just now you say you heard someone go through knocking into things—from that time until the later events, did you ever hear footsteps running out the back door?
A. No, never.
Q. Or walking out the back door?
A. Never.
Q. Was that the only door in and out of the apartment?
A. That was the only door accessible, yes.
Q. Now, you were willing to tell us about hearing someone walking around and knocking into things. What did you do or what did you continue to hear?
A. I knew there was something wrong and I tried to push Michael and then I heard this noise. Suddenly, there was smoke pouring over my ceiling, pouring through the doorway, it was just flowing in a very fast pace over the doorway. I could see it because the bathroom light was on and you could just see the smoke, it was black and—

Ms. Sweet pushed Jefferson off her and jumped out of bed. The appellant was standing in the living room doorway staring at the fire in the living room which was burning furiously. Appellant stated to Jefferson “Come on, Mike, let’s get out of here.” Ms. Sweet attempted to save her two children but the fire and smoke were so extensive that she was unable to do so and they perished in the fire as well as Mr. Pitt who lived on the second floor. The fire was so severe that by the time the fire department arrived the flames were coming out of the entire front end of the house and also the sides in a blow torch effect. The flames spread to such an extent that they burned the building next door.

A thorough arson investigation was conducted by the state police which began on August 31, 1979. The investigators concluded that the fire was of incendiary origin having been intentionally set and that a flammable liquid had been placed on the floor in Ms. Sweet’s apartment and ignited. The investigators were able to discern a liquid burn pattern and traced the root of the fire. It was also determined that the fire did not have a source in the electrical system nor was the resulting blaze caused by a smoldering fire. Samples of the floor board behind the stereo component were analyzed and determined to contain a flammable liquid known as Stoddard solvent which is a kerosene class product and an accelerant. The investigators concluded that the primary point of origin was the floor in the area near Ms. Sweet’s stereo. Stoddard solvent was kept in large quantities at the premises of McCreary Roofing Company where the appellant worked and was used to clean tar from tools. It was also used by the employees to clean up.

In order to prove arson under the Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. § 3301, the Commonwealth must prove beyond a reasonable doubt (1) a fire (2) which was incendiary in origin and (3) that the defendant was the guilty party. Commonwealth v. Colon, 264 Pa.Super. 314, 399 A.2d 1068 (1979). See also Commonwealth v. Dolan, 287 Pa.Super. 202, 429 A.2d 1171 (1981). The defendant’s guilt may be established by circumstantial evidence, especially in arson cases. Commonwealth v. Nasuti, 385 Pa. 436, 123 A.2d 435 (1956). “Indeed, it is clear that arson, by its very nature, is rarely committed in the presence of others, and a refusal to convict on circumstantial evidence alone would be tantamount to an invitation to commit the crime.” Commonwealth v. Colon, 264 Pa.Super. 314, 325, 399 A.2d 1068, 1073 (1979). See also Commonwealth v. Wisneski, 214 Pa.Super. 397, 257 A.2d 624 (1969). In Commonwealth v. Nasuti, supra, the only evidence to tie the defendant in with a fire of incendiary nature was that a police sergeant observed the defendant, the proprietor of a small restaurant, standing in his restaurant with an unknown woman at about 12:55 in the morning. The officer continued walking his beat and shortly thereafter he heard fire engines and followed them to the source of the fire which was the restaurant. The officer returned to the restaurant at about 1:10 and the building was a mass of flames. Expert testimony established that the fire was incendiary in origin. There was evidence that the business was not very profitable but there did not appear to be any over insurance.on the building fixtures. The court stated at 385 Pa. 444, 445, 123 A.2d 439:

It is not necessary, however, to speculate as to a possible or even probable motive, since it is elementary that, while motive may be an important factor, it is not incumbent on the Commonwealth, in order to make out a case, to prove the existence of any motive, much less of an adequate one: 14 Am.Jur. 786, § 27. All that is required is that, the evidence being circumstantial, the circumstances proved should be such as reasonably and naturally to justify an inference of the guilt of the accused, and of such volume and quality as to overcome the presumption of innocence and satisfy the jury of the accused’s guilt beyond a reasonable doubt: Commonwealth v. Marino, 142 Pa.Super. 327, 334, 16 A.2d 314, 317; Commonwealth v. Bausewine, 354 Pa. 35, 41, 46 A.2d 491, 493; Commonwealth v. Carey, 368 Pa. 157, 163, 164, 82 A.2d 240, 242; Commonwealth v. Kloiber, 378 Pa. 412, 427, 106 A.2d 820, 828.

The circumstantial evidence in the instant case was sufficient to sustain the appellant’s conviction of arson beyond a reasonable doubt.

The appellant contends that his conviction was based on mere suspicion of guilt. Suspicion is never accepted in a court of law as a substitute for proof. Commonwealth v. Long, 470 Pa. 204, 368 A.2d 265 (1977). Further, “before a conviction will be sustained, ‘the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt.’ ... and, where a conviction is based entirely on circumstantial evidence, ‘the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all,’ ”. Commonwealth v. Simpson, 436 Pa. 459, 463-464, 260 A.2d 751 (1970). See also Commonwealth v. Jones, 291 Pa.Super. 69, 435 A.2d 223 (1981). It is also well established that mere presence at the scene of a crime is insufficient to prove involvement. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973).

In the instant case the defendant’s commission of arson was consistent with all the evidence introduced. It was not mere conjecture or guess which tied the appellant to the crime. He was not convicted merely because he was present at the scene. The evidence pointed to the appellant as the perpetrator of the crime of arson which caused the death of three persons. Conviction may properly rest upon circumstantial evidence alone. Commonwealth v. Schilling, 288 Pa.Super. 59, 431 A.2d 1088 (1981). Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981); Commonwealth v. Berrios, 495 Pa. 444, 434 A.2d 1173 (1981).

Appellant, relies on Commonwealth v. Carthon, 467 Pa. 73, 354 A.2d 557 (1976) in which the Supreme Court found that the evidence did not support a conviction for arson and reversed the judgment of sentence. In that case the evidence established that a woman was in her apartment with her boyfriend, the defendant, who had a gasoline can with him. He explained that the gasoline was for a friend’s car. The woman dozed off and when she awoke she discovered the gasoline can lying on the floor in a puddle of gasoline which she directed the defendant to clean up. The woman dozed off again and when she woke up the defendant was standing in front of her. She heard a loud noise and saw the gasoline blaze up behind the defendant. An assistant fire marshall testified that in his opinion the fire was incendiary in nature although he also stated that the gasoline could have been ignited by static electricity. He also admitted that a burning cigarette in a nearby ashtray could have started the fire. Appellant claimed that the gasoline can fell off the table and when he reached for a mop which was in a nearby closet, the gasoline erupted. The Supreme Court held in reversing the judgment of sentence, opinion by Manderino, J. (Jones, C.J., not participating) that the most that could be deduced from the prosecution’s evidence was that the defendant brought the gasoline into the woman’s apartment and that the defendant was the only person near the gasoline when it ignited. The court held that there was insufficient proof that the defendant wilfully and maliciously set fire to the apartment.

The Carthon case is readily distinguishable from our own. In Carthon the evidence was insufficient to establish that the fire was maliciously and wilfully set. In other words, it was not necessarily incendiary in nature. In our case the appellant does not contest that the fire was incendiary in nature, and there was sufficient evidence to establish that it was. The appellant’s contention that the only evidence to establish his guilt is that he was present when the fire started is without merit. There was much more evidence to hold appellant criminally responsible for the fire than his mere presence at the scene. Ms. Sweet heard the appellant leave her apartment; she heard someone return and heard the unusual pattern of that persons movements in her apartment and there was no indication that the person left. Suddenly, smoke was pouring through the bedroom doorway and immediately appellant was observed by Ms. Sweet standing in the living room doorway staring at the fire which at that point was burning furiously. These facts, coupled with appellant’s- access to Stoddard solvent and his sexual rebuff by Ms. Sweet, and the other evidence discussed above justify the jury’s finding that the appellant was guilty of arson.

The appellant further contends that the Commonwealth failed to prove that the solvent used to start the fire came from McCreary Roofing Company’s place of business, and therefore the question of his guilt should not have been submitted to the jury. While the Commonwealth did not prove where the solvent came from, this was not an essential element of its case. It is clear that the appellant as an employee had ready access to the solvent in question and the use of the solvent by the appellant on the night of the fire was completely consistent with his background as a roofer. Guilt need not be proved to a mathematical certainty. Commonwealth v. Herman, 271 Pa.Super. 145, 412 A.2d 617 (1979); Commonwealth v. Williams, 269 Pa.Super. 544, 410 A.2d 835 (1979). Two cases illustrate how far our courts go in allowing the crime of arson to be proved by circumstantial evidence. Commonwealth v. Wisneski, 214 Pa.Super. 397, 257 A.2d 624 (1969), sustained a conviction of arson based solely on circumstantial evidence. The appellant’s home burned down five hours after he was observed moving furniture from the house at eleven o’clock in the evening. Some months before the fire he told his wife that he would burn the property. After the fire he told the fire marshall that he had left Philadelphia where his home was located for Absecon two hours before he was seen removing the furniture. The court stated at 214 Pa.Super. 400, 257 A.2d 626: “The fact that the Commonwealth failed to produce direct evidence placing appellant at the scene of the crime within 5 hours of the time of the fire does not vitiate the conviction.”

In Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976) the evidence established that the defendant and Mike Baltimore were romantically involved and also that Baltimore and Paula Wagner were living together. A witness overheard the defendant make threats to Baltimore and Wagner because Baltimore would not leave Wagner for the defendant. The building in which Wagner had an apartment was deliberately set on fire and Wagner and Steven Johnson died. Baltimore was also injured as a result of the fire and at the hospital the defendant stated that she was responsible for his being there. The court held that this evidence was sufficient to sustain a conviction of murder in the first degree and arson.

Appellant further contends that the court below erred in overruling an objection to part of the Commonwealth’s closing statement which was allegedly based on conjecture and not on any facts relating to motive. The objected to statement by the prosecution was:

Maybe he was upset. Maybe he was upset by the fact that his friend was in bed with his girl and he had just gotten a bath, thinking when he left her in the living room she’d be available to him, thinking that maybe the first pass he made was a little too abrupt, maybe now they’d talk a little.
They sat in here (indicating), smoked a little dope, listened to some tapes and music. Maybe now if he cleaned up things would be different. He comes out the bathroom and sees her. She thinks so much of that stereo that she talks about it—

Counsel for the appellant objected to the remarks and the court overruled the objection but stated to the jury: “It’s all argument, ladies and gentlemen, it’s for you to decide the facts.” Every improper remark made in the course of a trial by counsel does not compel the granting of a new trial. “A new trial is required when the remark is prejudicial; that is when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957). See also Commonwealth v. Goosby, 450 Pa. 609, 301 A.2d 673 (1973); Commonwealth v. Axe, 285 Pa.Super. 289, 427 A.2d 227 (1981) and cases cited therein; Commonwealth v. Perkins, 473 Pa. 116, 373 A.2d 1076 (1977); Commonwealth v. Smith, 289 Pa.Super. 356, 433 A.2d 489 (1981); Commonwealth v. Baranyai, 296 Pa.Super. 342, 442 A.2d 800 (1982). Further, the prejudicial effect of a district attorney’s remarks must be evaluated in the context in which they occurred. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975); Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980). The complained of remarks by the prosecutor in his closing statement were not prejudicial to the appellant to the extent that he was deprived of a fair trial.

The appellant also contends that the court below committed reversible error when it permitted Detective DePaolo to testify for the Commonwealth as follows:

Q. Now, Detective DiPaolo, on October the 2nd, 1979, while you were present in this conversation with the defendant and in the presence of Assistant District Attorney Shad Connelly, did the defendant direct a question to Mr. Connelly in your presence?
A. Yes, sir, he did.
Q. What was that question?
A. The defendant asked him at this time, what did he think about this case.
Q. And in your presence and hearing did the Assistant District Attorney Connelly respond?
A. Yes, sir.
Q. What was his response?
A. He said, “yes, I think you did it.”
Q. What did the defendant respond to Assistant District Attorney Connelly?
A. He told him he was a fucking toad just like us.

Appellant contends that the testimony of Detective DiPaolo was so prejudicial that his conviction must be reversed. We do not agree. All the jury learned was that when the appellant asked the assistant district attorney what he thought about the case the district attorney stated that he thought that the appellant committed the crime. It was the appellant who asked the question and he should not complain that the question was not answered favorably to him. As the court below noted, the fact that the answer was not to the appellant’s liking is not a grounds for complaint. Even if the admission of the assistant district attorney’s answer is deemed to be erroneous, it was harmless error beyond a reasonable doubt. Error is harmless when the record reveals that it did not prejudice the defendant or that the prejudice was so minimal that beyond a reasonable doubt it did not influence the jury. Common wealth v. Stetler, 494 Pa. 551, 431 A.2d 992 (1981). See also Commonwealth v. Adams, 296 Pa.Super. 24, 442 A.2d 277 (1982).

Appellant also contends that the special prosecutor, Bernard L. Siegel, Esquire, engaged in misconduct by attempting to show that the appellant used Ms. Sweet’s car to obtain the stoddard solvent used in the fire. Ms. Sweet testified that before the fire her purse, which contained her car keys, was in the living room and after the fire it was discovered in the kitchen. She also testified that her car was located after the fire in a different place than it had been prior to the fire. The probative value of this evidence was minimal. When asked by the court at side bar what probative value there was in evidence that the car had been moved, the prosecutor replied:

Her purse was in the living room, she finds it in the kitchen, she hadn’t brought it there. She parked her car in one place, and the next day when the police go to photograph the scene, which has been identified as being a few hours later, eight o’clock the next morning, the car is in another location.

The trial court sustained the appellant’s objections to this testimony. Also, defense counsel established in cross-examination of Detective DePaolo that there was no evidence that stoddard solvent had ever been in Ms. Sweet’s car nor were the appellant’s fingerprints located in the car although a search was made for them. Appellant now contends that the prosecution “succeeded in creating [the] illusion ...” that the appellant left the house to get stoddard solvent “in the face of substantial direct evidence to the contrary [and this] is the worst kind of prosecutorial misconduct imaginable”. (Appellant’s brief, page 46). The circumstantial evidence indicates that the appellant did in fact leave Ms. Sweet’s apartment and subsequently returned with an inflammable solvent which he intentionally poured in the area of the stereo and on the floor. It was not illusory that the appellant obtained the solvent, or a similar type of fire accelerant, although we do not know with certainty where or how he obtained it. We find no evidence for prosecutorial misconduct in the circumstances.

In addition to the above, the appellant would have us find prosecutorial misconduct on the grounds that the prosecutor indicated that the evidence established that the stoddard solvent was available only at the McCreary Roofing Company. In his closing argument the prosecutor stated:

For example, if you hear an argument that a product can be bought anywhere in the city, that’s an argument from one of the counsel, and you didn’t hear any evidence from the witness stand about that being available any place but one place. Then the facts as you remember it is what counts, that the only evidence is what came frpm the witness stand.
That was that this product, of course what we’re talking about in this case is stoddard solvent. The only evidence you heard is that, at least as far as this case was concerned, it was available at McCreary Roofing. You didn’t hear any evidence, and you may recall this differently from me, but you really didn’t hear any evidence except in argument, that this is available all over town. You can buy it hundreds of places. That was argument, not a fact.
He had access to stoddard solvent. He used it at work. No one said he went to McCreary Roofing that night, but where did it come from? That’s one of these red flags that says detour, folks, we’re going off the road. No one said he went to McCreary Roofing. He didn’t have to go there. No one has proven where he’s gotten it, that’s true. He had access to it. There are a number of ways he could have gotten that stuff.
Remember when he and Jefferson were working on the parts? They were working on what? Parts, transmission, probably needed some cleaning solvent for that. They were dirty, come from work, they could have had some. Could have, you don’t even have to worry there. At home, in a plastic container, on the truck. He didn’t have to drive to McCreary Roofing to get it. There’s no doubt it was stoddard solvent.

The prosecutor did not contend that the solvent necessarily came from McCreary Roofing Company. He argued that “the only evidence you heard is that, at least as far as this case was concerned, it was available at McCreary Roofing.” He also noted “the facts as you remember it [sic] is what counts, that the only evidence is what came from the witness stand.” Reading the argument as a whole we do not find that it constitutes misconduct. The prosecutor did not imply that the only source of the stoddard solvent was at the place of business of McCreary Roofing Company. He argued that there was no evidence to establish that it was available all over town.

Appellant also claims error in that the court below allowed Michael Jefferson to be called as a court witness. The court in its discretion may call a witness as a court witness in the interest of justice. Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552 (1963). See also Commonwealth v. Rhodes, 272 Pa.Super. 546, 416 A.2d 1031 (1979). Mr. Jefferson was hostile to the Commonwealth and had given inconsistent statements to the police. Copies of the various statements were given to the appellant’s counsel before Mr. Jefferson testified. In his testimony as a court witness Jefferson testified that Mr. DiNicola told him that he was sleeping in the apartment and he “heard all kinds of sparking and loud noises and that’s what woke him up.” (N.T. 483). The testimony of Mr. Jefferson exonerated appellant from intentionally setting the fire. The prosecution would not call the appellant on direct examination and be bound by his testimony and it was proper for the trial court in the exercise of its discretion to call Mr. Jefferson as a court witness.

Finally, the appellant contends that the trial court erred in failing to charge on involuntary manslaughter as he requested. It was stipulated at trial that three persons died as a result of the fire, Deborah Sweet’s two children and Eugene Pitt. The evidence further established that the fire was incendiary in nature having been intentionally and maliciously set and the appellant does not contest this. The fire was ignited or spread by means of an accelerant and if the jury found that the appellant participated in these acts they could not rationally acquit him of murder and find him guilty of involuntary manslaughter. The trial court should not instruct the jury on legal principles which have no application to the facts presented at trial. Commonwealth v. Tervalon, 463 Pa. 581, 345 A.2d 671 (1975). As stated in Commonwealth v. White, 490 Pa. 179, 185, 415 A.2d 399, 402 (1980):

To this end and to finally clarify this situation, we now hold that in a murder prosecution, an involuntary manslaughter charge shall be given only when requested, and where the offense has been made an issue in the case and the trial evidence reasonably would support such a verdict.

See also Commonwealth v. Pfaff 496 Pa. 572, 437 A.2d 1188 (1981); Commonwealth v. Keaton, 494 Pa. 566, 431 A.2d 999 (1981). There was no evidence that the fire in this case was caused by negligent or reckless acts, and involuntary manslaughter was not made an issue in the trial. Accordingly, the trial court properly refused to charge on the issue of involuntary manslaughter.

Judgment of sentence affirmed.

      . The testimony of Ms. Sweet concerning the appellant’s overtures was as follows:
      Q. How do you mean he made a pass at you?
      A. He, right after he did it, he—
      Q. Did what?
      A. I went and inhaled the smoke and he then reached out at me and I don’t know, he touched my leg or something. He just pawed at me and right away I jumped back and said, "Wait a minute, mister, I’m not that kind.”
      Q. It wasn’t violent, was it?

        A. No, in fact, after I said that to him, he sat back, and I assumed that, you know, he understood, everything was straight and that was it.

      . Appellant was charged in Commonwealth v. Carthon, with arson under the Act of June 24, 1939, P.L. 872, § 905, 18 P.S. § 4905 and it was stated at 467 Pa. 76, 77, 354 A.2d 558:
      "Whoever, willfully and maliciously, sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any dwelling house ... whether the property of himself or of another, is guilty of arson.” 1939, June 24, P.L. 872, Sec. 905. In order to prove that arson has been committed, the prosecution must establish beyond a reasonable doubt (1) that there was a fire, (2) that it was willfully and maliciously set, and (3) that the defendant was the guilty party.

      . Appellant’s counsel stated in his brief:
      The issue of whether or not the fire was an arson fire was not contested by the defense because the defendant was not charged until March of 1980 and by that time it was too late to attempt to establish whether it was or was not an arson fire.
      Appellant’s counsel further stated:
      With these principles applied to the testimony in this case, it is respectfully submitted that the most the Commonwealth established was (1) there was an arson fire; (2) an accelerant was used with chemical properties similar to Stoddard solvent; (3) the defendant was in the apartment.

      . Circumstantial evidence may be sufficient to permit the inference that the defendant ignited the fire even in the absence of direct evidence that he was at the scene near the time of the fire. Commonwealth v. DeMartini, 125 Pa.Super. 392, 189 A. 564 (1937) and Commonwealth v. Tomaino, 168 Pa.Super. 505, 79 A.2d 274 (1951).

      . It is very questionable whether the appellant has preserved the issue of prosecutorial misconduct for appellate review. Only those issues included in post verdict motions will be considered preserved for review. Commonwealth v. Gravely, 286 Pa. 194, 404 A.2d 1296 (1979). As noted in Commonwealth v. Seeley, 297 Pa.Super. 498, 500, 444 A.2d 142, 143 (1982): "... no specific post verdict motion ever was raised contending that prosecutorial misconduct occurred. Thus, the issue is waived.” In his motion in arrest of judgment and for new trial appellant did not allege prosecutorial misconduct. However, he did allege that the argument of counsel was contrary to facts known to the Commonwealth, and that the prosecutor attempted to convey by inference that the appellant used Ms. Sweet’s car to obtain stoddard solvent. These allegations are related to conduct which the appellant now contends constituted prosecutorial misconduct and we will consider the issue of such misconduct on the merits. Counsel are cautioned that they run a grave risk of waiver of the issue of prosecutorial misconduct unless the issue is specifically raised in post-verdict motions.

      . Ms. Sweet’s testimony concerning her car was as follows:
      Q. Is that car your white car, is that car, in looking at that picture, (Commonwealth’s Exhibit Forty-one) in the same place where you parked it when you came back on August 30th—
      A. "No.”

      . Appellant’s counsel makes serious charges about the conduct of the special prosecutor as follows:
      To first misstate that there was no evidence of stoddard solvent being available elsewhere than McCreary Roofing misled a susceptible court to adopt that untrue statement as its own. But even assuming that the special prosecutor and the court honestly did not recall the evidence, the special prosecutor knew that the contention that the only evidence "from the witness stand” was that stoddard solvent came from McCreary Roofing was a false impression it intentionally created since the Commonwealth knew the impression was not true. Guilt or innocence cannot depend on the whim of a prosecutor contending that a jury may convict on false impressions and arguments.


source: Caselaw Access Project

author: WIEAND, Judge: CIRILLO, Judge,

license: Public Domain

text:
    454 A.2d 1038
    Richard SIMONETTI, a Minor, by his Parent and Natural Guardian, Alberta SIMONETTI, and Alberta Simonetti, in her own right v. SCHOOL DISTRICT OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1982.
    Filed Nov. 30, 1982.
    Reargument Denied Feb. 8, 1983.
    Petition for Allowance of Appeal Granted May 13, 1983.

      Leon A. Mankowski, Philadelphia, for appellant.
    Norman R. Segal, Philadelphia, for appellees.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   WIEAND, Judge:

Richard Simonetti, a fifth grade student, returned to the classroom from recess and was struck in the left eye by a pencil which had been propelled from the hand of a classmate when he tripped. The teacher, an employee of the School District of Philadelphia, was outside the classroom, standing at the door, when Simonetti was injured. There she was engaged in monitoring the return of her students from recess and talking with another teacher. The student who dropped or threw the pencil and two other students had been required to remain in the classroom during recess as punishment for misbehavior at breakfast. They had been talking with the teacher during the recess period and were instructed to take their seats when the teacher stepped outside the classroom to supervise the return of the students from recess.

In an action against the School District, it was contended by Simonetti that the teacher had been negligent in failing to provide adequate classroom supervision. The case was tried without a jury, and damages of $15,000 were awarded to the minor plaintiff and his mother. After the School District’s exceptions had been dismissed and judgment entered on the verdict, this appeal followed.

“ ‘Appellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.’ ” Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 479, 368 A.2d 819, 822 (1976), quoting E.I. duPont de Nemours & Co., Inc. v. Berm Studios, Inc., 211 Pa.Super. 352, 354, 236 A.2d 555, 556 (1967). In reviewing the sufficiency of the evidence we are required to view the evidence in the light most favorable to the verdict winners. Id., 244 Pa.Superior Ct. at 480, 368 A.2d at 822.

In Bottorf v. Waltz, 245 Pa.Super. 139, 369 A.2d 332 (1976), a case in which a student had been burned when melted wax was spilled on his back, this Court defined the standard of care required of a teacher by quoting from 38 A.L.R.3d 830, 843-846, in part, as follows:

What constitutes proper supervision depends largely upon the circumstances attending the event. Thus, the fact that supervisory personnel present when an accident occurs could conceivably have prevented its occurrence does not necessarily render the school agency liable if the supervisory personnel was competent and acted reasonably under all the circumstances.
There is no liability predicated on lack or insufficiency of supervision where the event in connection with which the injury occurred was not reasonably foreseeable.... The courts frequently state that a teacher is not required to anticipate the myriad of unexpected acts which occur daily in and about school, to guard against all dangers inherent in the rashness of children, or to watch all movements of children.
Where injury results from an unforeseen, sudden, impulsive, or spontaneous act of another pupil, such act has been held the intervening proximate cause of the injury notwithstanding lack, or possible inadequacy, of supervision. Thus, it has been said that failure of supervision is not that proximate cause of an accident where injury results from an unanticipated act of a fellow pupil, since the teacher cannot be expected to watch all movement of pupils in the absence of anything to place the teacher on notice to guard against the occurrence.

Id., 245 Pa.Superior Ct. at 143, 369 A.2d at 334.

Although there is a paucity of Pennsylvania decisions, cases from other jurisdictions illustrate the application of these principles. In Ohman v. Board of Education of City of New York, 300 N.Y. 306, 90 N.E.2d 474 (1949), the facts were remarkably similar to those of the instant case. There, a thirteen year old student sustained injury when struck in the eye by a pencil. The pencil had been thrown by one student to another, and when the boy for whom it was intended ducked, the pencil hit the minor plaintiff. The accident occurred while the teacher in charge of the classroom was temporarily absent for the purpose of sorting and storing supplies in a corridor closet. The court held that the teacher’s absence from the room was insufficient to impose liability upon the Board of Education, saying:

[A] teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances. Proper supervision depends largely on the circumstances attending the event but so far as the cases indicate there has been no departure from the usual rules of negligence.

Id. at 309, 90 N.E.2d at 475.

In Swaitkowski v. Board of Education of the City of Buffalo, 36 A.D.2d 685, 319 N.Y.S.2d 783 (1971), the Court held that the Board of Education was not liable for injuries sustained by a student who, upon returning to his seat, sat on the point of a pencil placed on the seat by another student while the teacher was absent from the classroom for a short period to assist another teacher locate books in a bookroom 1072 feet away with the doors open. The Court said:

Nor can respondents prevail on their claim of inadequate supervision by the teacher in leaving the classroom unattended for the short space of time she was required to be absent. As in Ohman v. Board of Educ. of City of N. Y., 300 N.Y. 306, 90 N.E.2d 474, the injury' resulted from “the act of an intervening third party which under the circumstances could hardly have been anticipated in the reasonable exercise of the teacher’s legal duty toward the plaintiff” (p. 309, 90 N.E.2d p. 475) and which act was “one of those events which could occur equally as well in the presence of the teacher as during her absence” (p. 310, 90 N.E.2d p. 475). We are, of course, mindful of the proposition that a school board is not the insurer of the safety of students (Ohman v. Board of Educ. of City of N.Y., supra; Cambareri v. Board of Education of City of Albany, 246 App.Div. 127, 284 N.Y.S. 892, affd. 283 N.Y. 741, 28 N.E.2d 968) and that a school or teacher may be charged only with reasonable care such as a parent of ordinary prudence would exercise under comparable circumstances (Lawes v. Board of Educ. of City of N. Y., 16 N.Y.2d 302, 305, 266 N.Y.S.2d 364, 366, 213 N.E.2d 667, 668).

Id. at 686, 319 N.Y.S.2d at 784.

In Morris v. Ortiz, 103 Ariz. 119, 437 P.2d 652, 35 A.L.R.3d 747 (1968), a student in an auto mechanics class was injured when another student jumped on a car top which the former student was holding. The trial court directed a verdict in favor of the teacher and school district. In affirming, the Arizona Supreme Court said:

To hold that [the teacher] had to anticipate [the student’s] act and somehow circumvent it is to say that it is the responsibility of a school teacher to anticipate the myriad of unexpected acts which occur daily in and about schools and school premises, the penalty for failure of which would be financial responsibility in negligence. We do not think that either the teacher or the district should be subject to such harassment nor is there an invocable legal doctrine or principle which can lead to such an absurd result.

Id. at 121, 437 P.2d at 654, 35 A.L.R.3d at 752.

In Butler v. District of Columbia, 417 F.2d 1150 (D.C. Cir.1969), a seventh grade student was struck in the left eye by a sharp piece of metal when he entered a printing classroom. The teacher was then absent because he had been assigned as a hall or cafeteria supervisor. The plaintiff’s case was based on alleged negligent supervision of the classroom after the teacher and principal had prior knowledge that “horseplay” and throwing had occurred in the classroom. In holding that there could be no recovery, the Court took note of the district’s dilemma of balancing “the need for a teacher to supervise several hundred students milling about the corridors and the cafeteria against the need to supervise fourteen students in a certain classroom for a period of time.” Id. at 1153.

From these decisions it can safely be concluded that momentary absence from a classroom is not negligence. This is particularly true where, as in the instant case, the absence was for the authorized and compelling reason of monitoring the return of about thirty students from recess. The teacher, it may confidently be observed, could not have been at two places at the same time. With equal confidence, it can be said that it was not negligence for the teacher to give priority to an entire class of approximately thirty students returning from recess rather than to remain in the classroom to supervise three students who had been required to stay in the classroom during the recess period.

It is common knowledge that children may indulge in horseplay. They may throw a pencil, shoot a paper clip or snap a rubber band when a teacher is absent or turns his or her back. In the instant case, the teacher attempted to guard against any horseplay by instructing the three students who were in the classroom to return to their seats and remain there. While these students were capable of free spirits and were even being punished for unrelated misconduct at breakfast, there is no evidence that they were hellions who required constant custody.

To require the teacher to anticipate the events which occurred while she was outside the classroom door would be to hold that a teacher is required to anticipate the myriad of unexpected acts which occur daily in classrooms in every school in the land. This is not the law, and we perceive no good reason for imposing such an absolute standard on teachers and school districts.

The judgment is reversed and is now entered for the appellant.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. The majority begins its discussion by pointing out the proper standard of review for this Court as follows:

“Appellate review of the record of a trial before a judge without a jury is limited to a determination of whether the findings of fact of the court below are supported by competent evidence and whether or not the lower court committed error of law.” Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 479, 368 A.2d 819, 822 (1976), quoting E.I. duPont, de Nemours and Co., Inc. v. Berms Studios, 211 Pa.Super. 352, 354, 236 A.2d 555, 556 (1967). In reviewing the sufficiency of the evidence, we are required to view the evidence in the light most favorable to the verdict winners. Id., 244 Pa.Superior Ct. at 480, 368 A.2d at 822.

Rather than applying this standard though, the majority takes a neutral view of the evidence and begins comparing the instant case with similar cases in other jurisdictions and reaches the overly simplistic conclusion that momentary absence from a classroom by a teacher is not negligence. Since I do not believe that the majority presented the evidence in the light most favorable to the verdict winner, as required, I will begin by stating the facts as I feel they should be viewed in this appeal.

The teacher, Mrs. Powell, remained in the classroom with three children during recess period while the other children were outside playing. The three children were not at recess because they were being punished by the teacher for their misbehavior earlier in the day. At least one of the three children had been a persistent behavior problem since he began school. Mrs. Powell went outside the classroom, following the recess period, to monitor the other thirty children who were returning. Mrs. Powell positioned herself in the hall in such a way that she could not see the classroom, which was filling up with children returning from recess and in which the three discipline-problem children were sitting. Because she could not see into the classroom from where she stood, she was not aware that there were children running around with sharp pencils in their hands. She also could not hear the “hollering” or “yelling” going on inside the classroom. Not only was Mrs. Powell not in a position to see or hear what was happening in the classroom during this rukus, but she was busy talking to another teacher. In fact, she was so engulfed in conversation that following the incident in question, the minor plaintiff, who was crying, had to go into the hall and interrupt the two teachers to get Mrs. Powell’s attention. Based on these facts, we must determine whether there is evidence in the record to justify the trial court’s findings of negligence. Courts v. Campbell, 245 Pa.Super. 326, 330, 369 A.2d 425, 426 (1976).

Besides failing to apply the proper standard of review, the majority attempts to find support for their position by citing non-Pennsylvania cases, all of which are factually distinguishable from the instant case. All of those cases involved a teacher who left the classroom unattended to do another assigned task. While the teacher was absent, a student was injured through some mishap. The majority concludes that these cases support the conclusion that “momentary absence from a classroom is not negligence.” While I agree that momentary absence alone is not sufficient to support a finding of negligence, I do believe that additional factors coupled with momentary absence could support a finding of negligence. The majority does not consider questions such as why the teacher left the room, how long she was gone, and what she did while she was out, as being important in determining negligence. I believe these facts are essential in distinguishing our case from those cited by the majority.

In the case at bar, while Mrs. Powell may have been authorized to stand outside the classroom to monitor those coming in from recess, this did not relieve her of the duty to supervise the children as they entered the classroom, especially when she knew the behavior-problem children were in the room; nor did it free her to strike up conversations with fellow teachers in the hallway. Unlike the cases cited by the majority, the teacher could have done both tasks, i.e., monitor those in the hallway and watch those in the classroom at the same time by positioning herself in the doorway so she had a view of the inside of the classroom and that of the hallway. Moreover, the distraction of talking to other teachers when she was supposed to be supervising her thirty students is another factor which should be considered in determining whether there was sufficient evidence for the trial court to find negligence. These additional facts, which are absent in the cases relied upon by the majority, are sufficient to qualify the “momentary absence” of the teacher and support a finding of negligence. Therefore, I would affirm the finding of negligence by the lower court because it was supported by competent evidence.

      . The trial court properly treated appellant's motions for new trial and for judgment n.o.v. as exceptions. See: Pomerantz v. Goldstein, 479 Pa. 175, 387 A.2d 1280 (1978); Karpe v. Borough of Stroudsburg, 290 Pa.Super. 559, 561, 434 A.2d 1292, 1293 (1981); Norris Van Tops, Inc. v. Kopitsky, 278 Pa.Super. 77, 419 A.2d 1365 (1980); Pa.R.C.P. 1048, 1038(d). See also: In re Tax Claim Bureau, German Township, Mt. Sterling 54½ Acres, Miscellaneous Buildings, 496 Pa. 46, 436 A.2d 144 (1981).

      . The dissenting opinion contends that the teacher was negligent because she positioned herself so that she could neither see nor hear what was transpiring in the classroom. This is not in accord with the facts found by the trial judge and recited in his opinion. Even the minor plaintiff testified that the teacher was but a few feet from the classroom door. Despite her position outside the door, she heard nothing to suggest a "rukus.” The trial court also made no finding that there had been "yelling” or “hollering” in the classroom. This is understandable. The minor plaintiff, who at one point in his testimony used those words, immediately changed his testimony to “talking loudly.” The trial judge did find that the boy with the pencil had been running in the classroom. Specifically, he was running up the aisle at the time the minor plaintiff was struck in the eye with the pencil.


author: VAN der VOORT, Judge:

text:
    454 A.2d 1042
    Thomas S. CHRISTO and Blanche Greenberger v. TUSCANY INC., a Corporation, Brittany Inc., a Corporation, Phoebe M. Rennekamp, William A. Rennekamp, Antoinette S. Tchirkow and Antoinette B. Tchirkow, Executrix of the Estate of Edgar G. Tchirkow, Deceased, Appeal of TUSCANY INC., Brittany Inc., and Antoinette B. Tchirkow.
    Superior Court of Pennsylvania.
    Argued Nov. 12, 1980.
    Filed Nov. 30, 1982.
    Reargument Denied Feb. 11, 1983.
    Petition for Allowance of Appeal Denied May 16, 1983.

      Maurice A. Nernberg, Jr., Pittsburgh, for appellants.
    James W. Daub, Pittsburgh, for appellees.
    Before HESTER, BROSKY and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

On October 18, 1976, plaintiffs Thomas S. Christo and Blanche Greenberger filed a Complaint in Equity and Petition for Preliminary Injunction against the defendants. Preliminary objections in the nature of a demurrer were filed on behalf of defendants Tuscany Inc., Brittany Inc., Antoinette B. Tchirkow, and Antoinette B. Tchirkow, Executrix of the Estate of Edgar G. Tchirkow, Deceased, on either November 4, 1976 (according to the docket entry appearance sheet) or November 5, 1976 (according to the stamp on the pleading). On December 3, 1976, the defendants were ordered by the lower court to deposit $80,000 in an interest-bearing account as security. On February 23, 1979, the preliminary objections were denied, and on March 19, 1979, an answer, containing new matter and a counterclaim, was filed. A Motion to Dissolve Injunction or Require Bond was presented to the lower court, evidently on March 27, 1979. The motion was denied by order dated April 2, 1979. On April 23, 1979, well within thirty days of the date of the order being appealed from, as required by Pa.R.A.P. 903(a), defendants Tuscany Inc., Brittany Inc., and Antoinette B. Tchirkow filed a notice of appeal. Appellants argue on appeal that the lower court erred in dismissing their motion to dissolve injunction or require bond.

Before proceeding to the merits of appellants’ argument, we must consider whether the order of April 2, 1979 is appealable. On April 22, 1979, section (a)(4) of Pa.R.A.P. 311 took effect, providing for the appealability of an order granting, continuing, modifying, refusing, or dissolving an injunction, or refusing to dissolve or modify an injunction. Appellees argue that since section (a)(4) took effect after the date of the order being appealed from, the order is not appealable. We disagree. The Supreme Court order of November 30, 1978, published in the December 23, 1978 issue of the Pennsylvania Bulletin, specifically provided for section (a)(4) to take effect 120 days after publication, or on April 22, 1979. A rule of court which relates only to procedure and does not affect substantive rights of the parties is applicable to future procedure in pending litigation. Laukhuffs Estate, 39 Pa.Superior Ct. 117, 119 (1909). As evidence of the Supreme Court’s intent with respect to the effect of new rules or amendments on pending litigation, we note that section (c) of Pa.R.C.P. No. 52, effective July 1, 1982, provides: “Unless the Supreme Court specifies otherwise, a rule or an amendment to a rule shall apply to actions pending on the effective date.” This recent amendment to Rule 52 would seem to be a restatement of a long-standing legal principle. Since in the case before us the order became appealable within the time prescribed for taking the appeal, and since the appeal was filed within thirty days of the order appealed from, the matter is properly before us.

We turn now to the merits of the appeal. Pa.R.C.P. No. 1531(b) provides that a preliminary or special injunction shall be granted only if the plaintiff files a bond conditioned that if the injunction is dissolved because improperly granted, the plaintiff shall pay to any injured person the damages sustained by reason of granting the injunction. This rule was in effect at the time the proceedings took place in the lower court. We find that the lower court erred in failing to follow the rule. Accordingly, we vacate the lower court’s order of April 2, 1979, and remand for compliance by the lower court and the plaintiffs with Pa.R.C.P. No. 1531(b). We do not retain jurisdiction.

Remanded with instructions.

      . The original motion was apparently never filed, as it does not appear in the official record. A copy of the motion is contained in appellants’ brief and reproduced record. Since no party has objected to the absence of the original motion, and since the lower court issued an order denying the motion, we will treat it as having been properly filed.

      . Pa.R.C.P. No. 127 provides: "(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court .... (c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters ... (5) the prior practice, if any .... ”

      . It should be noted that the parties and the lower court were not prevented by Pa.R.A.P. 1701(a) from proceeding with the case while the appeal was before our court. Pa.R.A.P. 311(e) provides that Rule 1701(a) does not apply to a matter in which an interlocutory order has been appealed under 311(a)(4).


author: PRICE, Judge: BROSKY, Judge,

text:
    454 A.2d 1044
    MOTOR COILS MANUFACTURING CO., a corporation v. The AMERICAN INSURANCE COMPANY, a corporation, and Fireman’s Fund American Insurance Company, a corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued April 15, 1980.
    Filed Dec. 23, 1982.

      James A. Mollica, Jr., Pittsburgh, for appellants.
    Charles Gibbons, Pittsburgh, for appellee.
    Before PRICE, BROSKY and MONTGOMERY, JJ.
   PRICE, Judge:

This appeal is from a judgment granted upon the whole record in favor of Motor Coils Manufacturing Company (“Motor Coils”), which brought an action in assumpsit to recover the proceeds of a liability insurance policy from appellants Fireman’s Fund American Insurance Company and the American Insurance Company (“Fireman’s Fund”).

Motor Coils is a Pennsylvania corporation in the business of repairing diesel electric locomotive equipment. The business requires the shipping of such equipment between various railroad companies around the nation and Motor Coils’ repair shop in Braddock, Pennsylvania. On or about January 10, 1974, Motor Coils purchased a three year term Comprehensive Liability Policy from Fireman’s Fund.

Included in the policy issued was an optional coverage entitled “Bailee’s Customers Property Floater”, (“Floater”), selected by Motor Coils’ president on the recommendation of Fireman’s Fund agent James Smith because of the nature of Motor Coils’ operation. (R. 163). The Floater provided insurance against damage to Motor Coils’ customers’ property while such property was on Motor Coils’ premises, and “while in transit on vehicles owned or operated by” Motor Coils. (R. 2a).

At the time the policy was issued, Motor Coils transported train parts to and from customers’ places of business on trucks leased from National Car Rental System and driven by employees of Motor Coils. In March of 1974, Motor Coils terminated its lease agreement with National Car Rental System, and entered into an oral agreement to lease four trucks from Clauzell Trucking Company (“Clauzell”) on an exclusive basis. Clauzell, rather than Motor Coils, supplied drivers for the trucks, and each shipment was confirmed with a “Proof of Lease Agreement” in the possession of the Clauzell driver. Also under the new arrangement, Motor Coils: paid for any necessary state permits; advanced money to Clauzell to pay the drivers (without deducting social security or withholding taxes); instructed the drivers as to when and where equipment was to be collected and delivered, but not as to specific routes or the manner of driving the truck. Motor Coils’ name appeared on the doors of the truck cabs.

On July 25, 1976 a truck owned by Clauzell and carrying property of a Motor Coils customer under the above lease arrangement was en route from a Motor Coils’ Shop to Atlanta, Georgia. The truck was involved in an accident on the Pennsylvania Turnpike which resulted in extensive damage to the property of a Motor Coils customer. Motor Coils submitted a claim to Fireman’s Fund under the Bailee’s Customers Property Floater section covering damage to customers’ property “while in transit on vehicles owned or operated by the insured.” The claim was denied for the stated reason that the truck used to transport the property was not “owned or operated by” Motor Coils, but was owned (not in dispute) and operated by Clauzell Trucking Co., so that Motor Coils’ policy did not cover the damage resulting from the accident.

Motor Coils filed a complaint in assumpsit, and after Fireman’s Fund’s demurrer to the complaint was overruled, damages were stipulated by the parties at $49,000. At the close of Motor Coils’ case, Fireman’s Fund’s motion for a compulsory non-suit was denied; at the close of Fireman’s Fund’s case, Motor Coils’ motion for a directed verdict was also denied.' Both parties then requested binding jury instructions which were refused by the court.

The court instructed the jury, first, that the contract term requiring that vehicles be “operated by” the insured is ambiguous as a matter of law “in that there is no definition of [the] key word within the agreement; and, therefore, the language of the contract must be interpreted in favor of the insured and a broad definition given to the undefined word.” (R. 395-96). Second, the jury was charged to resolve the question of who operated “[i]n other words ... maintained direction and control” of the truck, Motor Coils or Clauzell. (R. 399).

Following approximately eight hours of deliberation, the jury reported it was unable to reach a verdict and was dismissed. Both Motor Coils and Fireman’s Fund then moved for judgment upon the whole record pursuant to the Act of June 3, 1971, P.L. 125, 12 P.S. § 684. Judgment upon the whole record was entered for Motor Coils after the trial court found the evidence at trial to be irrelevant to interpretation of the policy term “operated by”, leaving no question of fact for the jury to resolve. The court examined the contract and determined that in using the term “operated by”, the parties to the insurance policy contemplated Motor Coils’ use of carriers or bailees for hire, such as Clauzell.

In this appeal, Fireman’s Fund contends the court below erred in deciding an issue that was properly reserved to the jury. We disagree and hold that the court below correctly granted judgment upon the whole record by itself, after determining the intended meaning of the term “operated by the insured” from the policy itself.

The statutory basis for judgment on the whole record is found in the Act of April 20, 1911, P.L. 70, § 1, as amended, Act of June 3, 1971, P.L. 125, No. 6, § 1, 12 P.S. § 684, which provides that:

Whenever upon the trial of any issue a point requesting binding instructions has been reserved or declined, and the jury have disagreed, the party presenting the point may, within the time prescribed for moving for a new trial, or within such other or further time as the court shall allow, move the court to have all the evidence taken upon the trial duly certified and filed so as to become part of the record, and for judgment in his favor upon the whole record; whereupon it shall be the duty of the court, unless it shall be of opinion that the case should be retried, to so certify the evidence, and to enter such judgment, if any, as under the law should have been entered upon that evidence at the time of trial, at the same time granting to the party against whom the judgment is rendered an exception to the action of the court in that regard. From the judgment thus entered the party against whom it is entered may appeal.

In considering Fireman’s Fund’s appeal from the grant of judgment on the whole record, we note that:

[j]udgment can be entered on the whole record only if the evidence, viewed in the light most favorable to the non-moving party, [here Fireman’s Fund] resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor.

DeGregoris v. Stockwell Rubber Co., Inc., 235 Pa. Superior Ct. 71, 73, 340 A.2d 570, 571 (1975). Accord, Bahoric v. St. Lawrence Croation No. 13, 426 Pa. 90, 230 A.2d 725 (1967). Viewing the record from this perspective, we conclude that judgment on the whole record was properly granted in the instant case.

To decide whether Motor Coils and Fireman’s Fund anticipated Motor Coils’ “operation by” use of a carrier such as Clauzell, we first look to the contract. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 290, 398 A.2d 1378, 1385 (1979).

The cardinal rule of contract construction is that the intent of the parties at the time they contracted is controlling. [T]he intent of the contracting parties is exclusively determined from the written instrument if its words are clear and unambiguous.

Spatz v. Nascone, 283 Pa.Superior Ct. 517, 424 A.2d 929, (1981), quoting, Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1271 (3d Cir.1971) (citation omitted). Accord, Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Litwack v. Litwack, 289 Pa.Superior Ct. 405, 433 A.2d 514 (1981);

Here, however, the language of the written agreement, requiring vehicles to be “operated by the insured” in order to be covered under the policy, was found by the court below and agreed by the parties to be ambiguous. First, the term “operated by,” standing alone, does not have a single “generally prevailing meaning.” The Restatement (Second) of Contracts (Rev. ed. 1981) in Section 201, comment (a), provides that “[ujnless a different intention is shown language is interpreted in accordance with its generally prevailing meaning.” Regarding the word “operate”, however, the United States Supreme Court has stated:

The word “operate” has varying meanings according to the context. One may operate singly with his own hands, or jointly with another, or through one or more agents.

State Farm Mutual Automobile Insurance Company v. Coughran, 303 U.S. 485, 491, 58 S.Ct. 670, 672, 82 L.Ed. 970 (1938) (citation omitted). The term’s meaning is not determined in a vacuum. When interpreting a contract to ascertain the intention of the parties, effect must be given to all the provisions of the contract. Robert F. Felte, Inc. v. White, 451 Pa. 137, 302 A.2d 347 (1973). A reading of the entire Floater policy does not, however, reveal the meaning of the ambigous term. Moreover, a “Perils Excluded” section of the policy prohibits narrowing the scope of “operation” of vehicles by the insured to include only physical control by company employees. The “Perils Excluded” provisions exclude coverage of otherwise protected property when damage results from, e.g., dishonesty, theft or unexplained disappearance, “except in the custody of carriers or other bailees for hire.” (R. 2a, 3a) (emphasis added). Reading these clauses in conjunction with the requirement that vehicles be “operated by” the insured does not eliminate the ambiguity, but allows the conclusion that the parties contemplated the insured’s “operation by” use of carriers or bailees for hire.

Because the contractual term was found to be ambiguous, extrinsic evidence was properly admitted in an attempt to resolve the ambiguity. Spatz v. Nascone, 283 Pa.Superior Ct. 517, 424 A.2d 929 (1981). Although the intent of the parties to a contract is normally a question for the court, Gonzalez v. United States Steel Corp., 484 Pa. 277, 290, 398 A.2d 1378, 1385 (1981), it becomes a jury question if it is ambiguous and its resolution depends on the credibility of extrinsic evidence or on a choice among reasonable inferences to be drawn from extrinsic evidence. Id.

Here, extrinsic evidence was admitted to ascertain whether the Motor Coils—Clauzell leasing arrangement was contemplated in the policy term requiring operation of vehicles by Motor Coils.

The bulk of the evidence admitted at trial was undisputed and referred to the details of the relationship between Motor Coils and Clauzell, outlining which party was responsible for driving, routing, instructing drivers as to destinations, etc. This evidence is not helpful, however, to the fundamental question of what Motor Coils and Fireman’s Fund intended by the term “operated by”; there was no evident contact or understanding between the parties regarding coverage of such an arrangement. An understanding of that intent was prerequisite to determining the significance of the Motor Coils—Clauzell leasing arrangement. A review of the record reveals that the balance of the evidence presented, was also of no benefit in deciding what the parties contemplated by the term. The record does make it clear that Motor Coils was covered as “operating” vehicles while its own employees drove trucks leased from National Car Rental, as the sale of the policy while that arrangement existed was approved by Fireman’s Fund. (R. 196, 243).

Beyond this, neither Motor Coils nor Fireman’s Fund presented any evidence as to their intention for the scope of coverage under the term “operated by the insured”, save the testimony of a Fireman’s Fund underwriting supervisor, Vincent McGowan. McGowan testified that the “carrier or bailee for hire” clauses of the policy did not apply to the coverage of property “in transit operated by the insured,” but only to other coverages in the Floater which were not purchased by Motor Coils. The policy contained no such express limitation on the applicability of the “carrier or bailee for hire” language, however, and McGowan’s personal belief is irrelevant to the issue of the meaning intended by the parties to the contract:

Section 230 of the first Restatement states specifically that oral statements by parties of what they intended written language to mean should be excluded. This is so because the intention of a party relevant to the formation of a contract is the intention manifested by him rather than any undisclosed intention. Thus, it was the documentary evidence of [the party’s] words and conduct before, during, and after the transaction that was relevant, not his testimony of what his undisclosed intention was at the time he wrote those words ...

Spatz v. Nascone, 283 Pa.Superior Ct. 517, 543, 424 A.2d 929, 942, (1981). Thus the trial court properly disregarded the testimony of McGowan, in considering the motions for judgment on the whole record, and correctly concluded that the testimony at trial “[did] not shed light on the meaning of the undefined term. Therefore, there was nothing for the jury to resolve.” (Op., Brief of Appellant at 33). Cf. Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979) (extrinsic evidence sufficient for jury question of whether use of certain equipment was contemplated in demolition contract.)

Because there was insufficient extrinsic evidence to enable a jury to clarify the parties’ intent as to the ambiguity, the issue was properly decided by the court, which construed the ambiguity against Fireman’s Fund, as the drafter of the policy. Where extrinsic evidence fails to clarify an ambiguous instrument, the ambiguity is construed most strongly against the drafter of the instrument. Burns Manufacturing Co., Inc. v. Boehm, 467 Pa. 307, 313 n. 3, 356 A.2d 763, 766 n. 3, (1976). See In re Estate of Breyer, 475 Pa. 108, 116, 379 A.2d 1305, 1310 (1977).

Judgment on the whole record is properly granted only if binding instructions should have been given at the trial. Hogan v. Bryn Mawr Hospital, 250 Pa.Superior Ct. 109, 116, 378 A.2d 477, 481 (1977). Binding instructions are appropriate where there is no question of fact properly submissible to the jury. Id.; Lambert v. Pittsburgh Rys. Co., 405 Pa. 364, 367, 175 A.2d 870, 872 (1961). In order to conclude there is no factual question properly submissible to the jury, the evidence, viewed in the light most advantageous to the non-moving party must be such that it would not justify a verdict and judgment for the non-moving party. Hogan v. Bryn Mawr Hospital, supra; DeGregoris v. Stockwell Rubber Co., 235 Pa.Superior Ct. 71, 340 A.2d 570 (1975). In the instant case, the extrinsic evidence admitted did not elucidate the intended meaning of the ambiguous policy term “operated by the insured.” The record shows that the parties agreed to insure Motor Coils’ shipping of customers’ property, which at the time the policy was issued involved the use of leased trucks driven by Motor Coils drivers. “[Gjreat weight is placed on the principal purpose of the parties if this purpose is ascertainable.” Spatz v. Nascone, 283 Pa.Superior Ct. 517, 539, 424 A.2d 929 (1981). There was no evidence that Motor Coils’ coverage ceased when it began to lease both trucks and drivers. The trial court thus properly construed the policy against its drafter in finding that Motor Coils’ coverage included “operation” of vehicles by using “carriers or bailees for hire.”

In the instant case, the factual question of the intended meaning of “operated by the insured” in light of the evidence on the record was properly the subject of binding instructions. Therefore, judgment on the whole record was properly granted for appellee.

Judgment affirmed.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring:

I concur in the majority opinion.

I will make only one observation supporting the conclusion the majority has reached here.

The majority opinion states: “Where extrinsic evidence fails to clarify an ambiguous instrument, the ambiguity is construed most strongly against the drafter of the instrument.” While the application of this general principle was not inapropos, there is a more particular rule of law which should be brought to bear here.

... exceptions to the general liability of the insurer are to be strictly construed against the insurance company.

Frisch v. State Farm Fire & Casualty Co., 218 Pa.Super. 211 at 214, 275 A.2d 849 at 851 (1971) (Montgomery, J.). See also Miller v. Prudential Insurance Co. of America, 239 Pa.Super. 467 at 471, 362 A.2d 1017 at 1020 (1976).

The rule stated in Frisch is on point and should form part of the basis for our decision here.

I concur.

      . For shipments passing through the state of Virginia, such as the shipment during which the accident occurred, the name of Motor Coils’ agent, McDonald Railway Supply, appeared on “Proof of Lease Agreements” and state permits as the designated carrier.

      . The policy’s coverage limit under the applicable section was $50,000, with a deductible amount of $1,000.

      . This section was repealed by the Judicial Code, effective after this action was brought.

      . The motions for judgment on the whole record were considered en banc by the Honorable Marion K. Finkelhor and the Honorable Emil E. Narick of the Court of Common Pleas of Allegheny County.

      . As the Pennsylvania Supreme Court has noted, the allocation of functions between judge and jury does not necessarily involve a "fact-law” distinction:
      It has long been accepted in contract law that an ambiguous written instrument presents a question of fact for resolution by the finder-of-fact, whereas the meaning of an unambiguous written instrument presents a “question of law” for resolution by the court. As the authorities in the field of contracts make clear, however, the latter exercise is also in actuality a factual, not a legal, decision. For a variety of reasons the common law has long thought it best to leave to the court rather than to the jury the essentially factual question of what the contracting parties intended. This fact-finding function exercised by the court is denominated a “question of law," therefore, not because analytically it is a question of law but rather to indicate that it is the trial judge, not the jury, to whom the law assigns the responsibility for deciding the matter. All questions of interpretation of written instruments and agreements, in other words, are questions of fact, some in ordinary civil litigation resolved by the jury (ambiguous writings) and others resolved by the trial judge (unambiguous writings).

        Commonwealth College of Beaver County v. Society of Faculty, 473 Pa. 576, 375 A.2d 1267 (1977).

      . Motor Coils’ president testified that he notified James Smith, agent for Fireman’s Fund, of the change to the new lease arrangement, and that Smith did not recommend a change in Motor Coils’ transit insurance. (R. 41). Smith did not, however, have the power under his particular contract to act on behalf of Fireman’s Fund under the circumstances, without Fireman’s Fund's approval. (R. 195).

      . The Restatement (Second) of Contracts § 206 (Rev. ed. 1981) states:
      Where one party chooses the term of a contract, he is likely to provide more carefully for the protection of his own interests than for those of the other party. He is also more likely to have reason to know of uncertainties of meaning. Indeed, he may leave meaning deliberately obscure, intending to decide at a later date what meaning to assert. In cases of doubt, therefore, so long as other factors are not decisive, there is substantial reason for preferring the meaning of the other party. The rule is often invoked in cases of standardized contracts and in cases where the drafting party has the stronger bargaining position, but it is not limited to such cases.

        Id. at comment a.
      Moreover, insurers are more likely than insureds to participate in drafting prescribed forms and to review them carefully before putting them into use.

        Id. at comment b.

      . Much of Fireman’s Fund’s attention in its appellate brief has been devoted to an asserted illegality (involving Interstate Commerce Commission regulations) in the Motor Coils-Clauzell relationship. We do not believe such illegality, if proven, would nullify the insurance coverage. See Mohn v. American Casualty Co., 458 Pa. 576, 326 A.2d 346 (1974); Eisenman v. Hornberger, 438 Pa. 46, 264 A.2d 673 (1970). See generally 17 Am.Jur.2d § 159. ("In general, unless a contract necessarily contemplates an illegal act it is not unenforceable.”) Nor do we believe any intent of Motor Coils to avoid I.C.C. regulation would reflect on the intended meaning of the ambiguous term.


text:
    December 10, 1982.
    454 A.2d 148
    Aluminum Co. of Amer. v. Kemper International Insurance. Appeal of Kemper International Insurance Company. Alcoa, etc., et al., v. Kemper Insurance Co. Appeal of: Factory Mutual Insurance Company. Alcoa, et al., v. Kemper Insurance Co., et al. Appeal of: Industrial Risk Insurers.

      Argued March 17, 1982.
    Harding A. Orren, for appellants; Robert Walter Doty, for appellees.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   Affirmed.


text:
    454 A.2d 148
    Alley v. Alley, Appellant.
    Submitted April 23, 1982.
    Frederick S. Wolf, for appellant; Bernard A. Buzgon, for appellee.
    Before WICKERSHAM, BROSKY and WIEAND, JJ.
   Order affirmed.


text:
    454 A.2d 148
    Arnold, Jr. v. Suski, Appellant.
    Submitted September 15, 1982.
    James W. Harris, for appellant; Gilbert G. Malone, for appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    454 A.2d 149
    Brooks, Appellant v. Brooks.
    Submitted May 22, 1981.
    Steve P. Leskinen, for appellant; Gerald R. Solomon, for appellee.
    Before PRICE, MONTGOMERY and VAN der VOORT, JJ.
   Order affirmed.


text:
    454 A.2d 149
    Chang, et ux., Appellants v. Rheem Textile Sys. Inc., et al.
    Petition for Allowance of Appeal Denied March 2, 1983.
    Argued December 16, 1981.
    James P. McEvilly, Jr., for appellants; Richard A. Kraemer, for appellee.
    Before WICKERSHAM, BECK and POPOVICH, JJ.
   Order affirmed.


text:
    454 A.2d 149
    Columbia Gas v. Higbee Corp., Appellant.
    Petition for Allowance of Appeal Denied March 14, 1983.
    Argued March 17, 1982.
    J. Frank McKenna, for appellant; Duane A. Dudik, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the court is affirmed.


text:
    454 A.2d 149
    Commonwealth v. Baker, Appellant.
    Submitted May 4, 1981.
    Elaine DeMasse, Assistant Public Defender, for appellant; Gaele McLaughlin Barthold,- Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and CAVANAUGH, JJ.
   The order of the lower court is affirmed.


text:
    454 A.2d 150
    Commonwealth v. Barclay, Appellant.
    Petition for Allowance of Appeal Denied April 4, 1983.
    Submitted December 9, 1981.
    William P. Fedullo, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, MONTGOMERY and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 150
    Commonwealth v. Barnhart, Appellant.
    Submitted June 24, 1981.
    Francis M. Socha, Assistant Public Defender, for appellant; Marion E. MacIntyre, First Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   Judgment of sentence dated February 15, 1980 affirmed.


text:
    454 A.2d 150
    Commonwealth v. Blair, Appellant.
    Petition for Allowance of Appeal Denied March 29, 1983.
    Argued June 16, 1982.
    Richard Alan Peterson, for appellant; Harry A. Penich, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 151
    Commonwealth v. Brown, Appellant.
    Petition for Allowance of Appeal Denied March 21, 1983.
    Argued September 28, 1982.
    Larry D. Feldman, for appellant; James B. Jordan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 151
    Commonwealth v. Canady, Appellant.
    Argued March 3, 1982.
    Marc Alan Krefetz, for appellant; Garold Tennis, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and HOFFMAN, JJ.
   Judgment of sentence affirmed.

WIEAND, J., concurred in the result.


text:
    454 A.2d 151
    Commonwealth v. Dodd, Appellant.
    Submitted September 15, 1982.
    William John Fulton, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 151
    Commonwealth v. Drewery, Appellant.
    Submitted September 8, 1982.
    Margaret M. Boyce, for appellant; Alan Sacks, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Affirmed.


text:
    454 A.2d 152
    Commonwealth v. Eberhardt, Appellant.
    Submitted April 14, 1982.
    George W. Bills, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 152
    Commonwealth v. Eperjesi, Appellant.
    Submitted May 19, 1982.
    Alphonse P. Lepore, Jr., Assistant Public Defender, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 152
    Commonwealth v. Eubanks, Appellant.
    Submitted September 21, 1982.
    John M. Glace, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 153
    Commonwealth v. Garland, Appellant.
    Petition for Allowance of Appeal Denied March 4, 1983.

      Submitted February 23, 1982.
    Abraham T. Needleman, for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and BECK, JJ.
   Order affirmed.

SPAETH, J., concurred in the result.


text:
    454 A.2d 153
    Commonwealth v. Gordon, Appellant.
    Petition for Allowance of Appeal Denied March 22, 1983.
    Submitted October 19, 1981.
    Roland J. Atkins, for appellant; Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WATKINS and HOFFMAN, JJ.
   Judgment of sentence is affirmed.


text:
    454 A.2d 153
    Commonwealth v. Hayes, Appellant.
    Submitted November 6, 1981.
    Joseph J. Shafle, Jr., for appellant; Mark S. Gurevitz, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BECK and LIPEZ, JJ.
   Order affirmed.


text:
    454 A.2d 153
    Commonwealth v. Hodge, Appellant.
    Submitted March 16, 1982.
    John P. Liekar, for appellant; Grayce R. Kovacs, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The order of the court is affirmed.


text:
    454 A.2d 154
    Commonwealth v. Jackson, Appellant.

      Submitted October 13, 1981.
    John H. Corbett, Jr., Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    456 A.2d 665
    Commonwealth v. Kaiser, Appellant.
    Submitted December 7, 1981.
    James R. Protasio, Assistant Public Defender, for appellant; Dean N. Livermore, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgments of sentence affirmed.


text:
    454 A.2d 154
    Commonwealth v. Long, Appellant.
    Submitted January 14, 1981.
    Richard A. Peterson, for appellant; Charles S. Hersh, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.


text:
    454 A.2d 154
    Commonwealth v. Malcom, Jr., Appellant.
    Petition for Allowance of Appeal Denied July 11, 1983.
    Argued April 14, 1982.
    William Lewis Garvin, for appellant; James T. Davis, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 154
    Commonwealth v. Nielson, Appellant.
    Submitted April 29, 1981.
    Denise L. Jones, for appellant; Michael Veshecco, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., BROSKY and HOFFMAN, JJ.
   Order affirmed.


text:
    454 A.2d 155
    Commonwealth v. Oliver, Appellant.
    Argued May 4, 1982.
    Madaline B. Tomlinson, for appellant; Andrew S. Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 155
    Commonwealth v. Pfahler, Appellant.
    Petition for Allowance of Appeal Denied March 29, 1983.
    Argued June 16, 1982.
    John Woodcock, Jr., Public Defender, for appellant; Gary A. Caldwell, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 155
    Commonwealth v. Reeder, Appellant.
    Submitted September 15, 1982.
    Kenneth C. Myers, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and MONTEMURO, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 156
    Commonwealth v. Smith, Appellant.
    Petition for Allowance of Appeal Denied April 15, 1983.
    Argued September 21, 1981.
    John J. O’Brien, for appellant; Joseph J. Hylan, Assistant District Attorney, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 156
    Commonwealth v. Sparks, Appellant.
    Submitted April 28, 1982.
    Thomas Albert Bowlen, for appellant; Gerald R. Solomon, District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., BECK and MONTEMURO, JJ.
   Order affirmed.


text:
    454 A.2d 156
    Commonwealth v. Thomas, Appellant.
    Submitted March 15, 1982.
    David P. Truax, for appellant; Donald E. Lewis, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The judgments of sentence of February 28, 1978 are affirmed.


text:
    454 A.2d 156
    Commonwealth v. Thomas, Appellant.
    Argued February 16, 1982.
    Janet Weaver Mason, Assistant Public Defender, submitted a brief on behalf of appellant; Joseph W. Carroll, Assistant District Attorney, for Commonwealth, appellee.
    Before JOHNSON, MONTEMURO and MONTGOMERY, JJ.
   Judgments of sentence affirmed.


text:
    454 A.2d 157
    Commonwealth v. Tobery, Jr., Appellant.
    Submitted March 16, 1982.
    Timothy M. Carland, Public Defender, for appellant; Edward J. Tocci, District Attorney, for Commonwealth, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The judgment of sentence is affirmed.


text:
    455 A.2d 727
    Frailey, etc., et al., Appellants v. Zimmerman.
    Reargument Denied Feb. 23, 1983.
    Petition for Allowance of Appeal Denied June 24, 1983.
    Argued December 8, 1981.
    Christopher M. Patterson, for appellants; J. Michael Flanagan, for appellee.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Order affirmed.


text:
    454 A.2d 157
    Honsaker v. Krkovich, et al., Appellants.
    Submitted April 14, 1981.
    Robert L. Webster, Jr., for appellants; Harry J. Cancelmi, Jr., for appellee.

      Before CERCONE, P.J., CAVANAUGH and JOHNSON, JJ.
   The order of the lower court is affirmed.

CAVANAUGH, J., filed a memorandum dissenting statement.


text:
    454 A.2d 157
    In the Matter of Wilson. Appeal of Elizabeth Coyle.
    Argued May 24, 1982.
    Charles C. Shainberg, for appellant; David 0. Williams, for Wilson, participating party; Alton G. Grube, for Children, participating party.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    454 A.2d 158
    In the Matter of Robinson, Appellant.
    Argued October 12, 1982.
    Carmela Presogna, Assistant Public Defender, for appellant; William A. Dopierala, for Children’s Services, participating party.

      Before CERCONE, P.J., WIEAND and BECK, JJ.
   Appeal dismissed as moot.


text:
    454 A.2d 158
    Kropf, et al. v. Schubert, et al., Appellants.
    Petition for Allowance of Appeal Denied March 22, 1983.
    Argued December 9, 1981.
    William G. Malkames, for appellants; Michael E. Riskin, for appellees.
    Before CAVANAUGH, McEWEN and BECK, JJ.
   Judgment affirmed.


text:
    454 A.2d 158
    Lehr v. Lehr, Appellant.
    Submitted May 25, 1982.
    Earl H. Lehr, appellant, in propria persona; Albert B. Wrigley, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.


text:
    454 A.2d 158
    Medleycott, Appellants v. Harris, Esq., et al.
    Petition for Allowance of Appeal Denied April 4, 1983.
    Argued May 5, 1981.
    Gary Green, for appellants; Frederick Smith, for appellees.
    Before CERCONE, P.J., SPAETH and CAVANAUGH, JJ.
   The order of the lower court is affirmed.

SPAETH, J., concurred in the result.

CAVANAUGH, J., filed a memorandum concurring and dissenting statement.


text:
    454 A.2d 159
    North Branch, Inc. v. Boland, et al., Appellants.
    Submitted December 16, 1981.
    Roger S. Simon, for appellant; John Kocsis, for appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   The order of the learned Bradford County President Judge Evan S. Williams is affirmed.


text:
    454 A.2d 159
    Richberg, Jr. v. Richberg, Appellant.
    Petition for Allowance of Appeal Denied March 1, 1983.
    Submitted September 28, 1982.
    S. Fineman, for appellant; Paul A. Liebman, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   Judgment affirmed.

SPAETH, J., concurred in the result.


text:
    454 A.2d 159
    Sisman, Appellant v. Sisman.
    Argued September 29, 1982.
    John T. Dooley, for appellant; Robert John, for appellee.
    Before SPAETH, WICKERSHAM and CIRILLO, JJ.
   Order affirmed.


text:
    454 A.2d 159
    Soifer v. Soifer, Appellant.

      Argued September 9, 1982.
    Donald E. Wydrzynski, for appellant; George P. Noel, for appellee.
    Before BROSKY, ROWLEY and MONTGOMERY, JJ.
   Appeal quashed.


text:
    454 A.2d 160
    Wicker, Appellant v. Esposito.
    Argued May 26, 1982.
    Robert F. Fortin, for appellant; William James Salerno, for appellee.
    Before BROSKY, WIEAND and BECK, JJ.
   Order affirmed.

BECK, J., filed a memorandum dissenting statement.

Judgment reversed, 500 Pa. 457, 457 A.2d 1260.


text:
    December 17, 1982.
    454 A.2d 160
    Allegheny Valley School District, Appellant v. Anderson.
    Argued November 10, 1980.
    Charles M. Means, for appellant; John J. Kirk, for appellee.

      Before PRICE, CAVANAUGH and HOFFMAN, JJ.
   Judgment affirmed.


text:
    454 A.2d 160
    Commonwealth v. Austin, Appellant.
    Submitted February 22, 1982.
    Lee Barry Balefsky, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, BROSKY and ROWLEY, JJ.
   Order affirmed.


text:
    455 A.2d 1238
    Commonwealth v. Bergan, Appellant.
    Reargument Denied March 2, 1983.
    Affirmed in Part, Reversed in Part Oct. 19, 1983.

      Argued December 14, 1981.
    James D. Crawford, for appellant; Joseph Hyland, Assistant District Attorney, for Commonwealth, appellee.
    Before McEWEN, JOHNSON and WATKINS, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 160
    Commonwealth v. Bob, Appellant.
    Petition for Allowance of Appeal Denied June 1, 1983.
    Argued April 14, 1982.
    Howard K. Hilner, for appellant; Kenneth J. Benson, Assistant District Attorney, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   The order of April 15, 1981 is hereby affirmed.


text:
    454 A.2d 161
    Commonwealth v. Brooks, Appellant.
    Submitted June 23, 1981.
    William J. Fulton, Assistant Public Defender, for appellant; Marion E. MacIntyre, First Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   Judgment of sentence is affirmed.


text:
    454 A.2d 161
    Commonwealth v. Bruce, Appellant.
    Submitted September 21, 1982.
    Lawrence A. Kalikow, Assistant Public Defender, for appellant; William A. Behe, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 161
    Commonwealth v. Clark, Appellant.
    Submitted May 20, 1982.
    David G. Metinko, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before ROWLEY, MONTEMURO and VAN der YOORT, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 162
    Commonwealth v. Cooper, Appellant.
    Petition for Allowance of Appeal Granted April 5, 1983.
    Submitted May 4, 1982.
    Elaine DeMasse, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   Judgment of sentence affirmed.

ROWLEY, J., filed a memorandum concurring opinion.

SPAETH, J., filed a memorandum dissenting opinion.


text:
    454 A.2d 162
    Commonwealth v. Daniels, Appellant.

      Submitted June 22, 1981.
    James L. Goldsmith, for appellant; Marion E. MacIntyre, First Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   The judgment of sentence dated December 12, 1979 is affirmed.


text:
    454 A.2d 162
    Commonwealth v. Demby, Appellant.
    Submitted March 29, 1982.
    John Packel, Chief, Appeals, Assistant Public Defender, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   The judgments of sentence are affirmed.


text:
    454 A.2d 162
    Commonwealth v. Derrickson, Appellant.
    Petition for Allowance of Appeal Denied March 8, 1983.

      Argued January 6, 1982.
    John W. Nails, for appellant; Andrew S. Kovach, Assistant District Attorney, for Commonwealth, appellee.
    Before SPAETH, CAVANAUGH and MONTEMURO, JJ.
   The judgment of sentence is affirmed.


text:
    454 A.2d 163
    Commonwealth v. Fischio, Appellant.
    Submitted October 13, 1982.
    John A. Halley, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 163
    Commonwealth v. Gavel, Appellant.
    Argued April 7, 1982.
    F. Fitzpatrick, Jr., for appellant; Joseph Hylan, Assistant District Attorney, for Commonwealth, appellee.

      Before HESTER, CAVANAUGH and CIRILLO, JJ.
   Judgment of sentence affirmed.

CAVANAUGH, J., dissented.


text:
    454 A.2d 163
    Commonwealth v. Gilliam, Appellant.
    Submitted January 25, 1982.
    Richard W. Hoy, for appellant; Jane Cutler Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and POPOVICH, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 164
    Commonwealth v. Griffith, Appellant.
    Argued March 16, 1982.
    Roy Ogburn, for appellant; George B. Kaufman, Assistant District Attorney, for Commonwealth, appellee.

      Before SPAETH, JOHNSON and HOFFMAN, JJ.
   The judgments of sentence of the lower court are affirmed.


text:
    454 A.2d 164
    Commonwealth v. Hager, Appellant.
    Submitted March 25, 1981.
    Blake E. Martin, Public Defender, for appellant; John F. Nelson, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., WIEAND and LIPEZ, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 164
    Commonwealth v. Hileman, Appellant.
    Submitted June 23, 1981.
    Peter J. O’Donnell, for appellant; William A. Helm, District Attorney, for Commonwealth, appellee.
    Before PRICE, BECK and JOHNSON, JJ.
   The order denying P.C.H.A. relief is affirmed.


text:
    454 A.2d 164
    Commonwealth v. Hill, Appellant.
    Petition for Allowance of Appeal Denied Sept. 7, 1983.
    Submitted January 20, 1982.
    Lawrence S. Rubin, for appellant; Frank T. Hazel, District Attorney, for Commonwealth, appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   The order of the trial court is affirmed.


text:
    454 A.2d 165
    Commonwealth v. Kelly, Appellant.
    Petition for Allowance of Appeal Denied March 14, 1983.
    Submitted April 21, 1981.
    Richard N. Beltzner, for appellant; George C. Yatron, District Attorney, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   Order affirmed.


text:
    454 A.2d 165
    Commonwealth v. Kelly, Appellant.
    Submitted October 13, 1982.
    David G. Metinko, Assistant Public Defender, for appellant; Robert L. Eberhardt, Deputy District Attorney, for Commonwealth, appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   Judgment of sentence affirmed.


text:
    454 A.2d 165
    Commonwealth v. Kidd, Appellant.
    Submitted January 14, 1981.
    John J. Morgan, for appellant; Robert F. Hawk, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P.J., SPAETH and MONTGOMERY, JJ.
   The judgment of sentence of the lower court is affirmed.

SPAETH, J. filed a memorandum concurring statement.