author: ROWLEY, President Judge: CIRILLO, Judge,

text:
    621 A.2d 681
    COMMONWEALTH of Pennsylvania v. Mark A. HUTCHINSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1992.
    Filed March 9, 1993.

      Louis M. Dayich, Waynesburg, for appellant.
    David F. Pollock, Dist. Atty., Waynesburg, for Com., for appellee.
    Before ROWLEY, President Judge, and CIRILLO and MONTGOMERY, JJ.
   ROWLEY, President Judge:

Mark A. Hutchinson appeals from the judgment of sentence entered after he was convicted of homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and driving at an unsafe speed. He raises the following issues in this appeal: (1) whether the trial court erred in refusing to allow defense counsel to argue and refusing to instruct the jury that it could find that the decedent legally caused his own death by operating a farm tractor on the highway in violation of the registration requirements of the Motor Vehicle Code; (2) whether trial counsel was ineffective for failing to request an instruction concerning the decedent’s operation of his tractor in violation of the lighting requirements of the Motor Vehicle Code; (3) whether the trial court erred in denying appellant’s motion for curative instructions after the Commonwealth speculated on appellant’s act of drinking a bottle of beer immediately prior to the accident while operating his motor vehicle; and (4) whether trial counsel was ineffective for failing to object to the imposition of consecutive terms of imprisonment for driving under the influence and homicide by vehicle while driving under the influence. After reviewing the record, we vacate the judgment of sentence and remand for a new trial.

We adopt the following statement of facts as set forth by the trial court in its opinion:

On August 12, 1990, just after midnight, the defendant, Mark Hutchinson, was involved in an accident that claimed the life of Douglas Moore. The accident occurred on First Street in the village of Mather, Pennsylvania. The night was foggy and the visibility limited.
The defendant had been drinking at the Third Base Lounge, near Mather, and was travelling through Mather, away from the direction of his home, in his 1979 Chrysler automobile. The decedent was driving his 1947 Model A John Deere tractor and was being followed by his cousin, Chad Moore, driving an Allis-Chalmers tractor, followed by the decedent’s sister, Holly Moore, who was driving a 1989 Chevrolet Cavalier with its four-way flashers in operation. These vehicles were headed home from the Greene County Fairgrounds near Waynesburg.
The Moore party was approaching Mather when the defendant’s automobile approached from their rear. Both Holly Moore and Chad Moore testified that the defendant’s vehicle swerved off and back onto the road. Chad Moore, driving the Allis-Chalmers tractor, and Holly Moore, driving the Chevrolet, both pulled off to the side of the road in order that the vehicle driven by the' defendant could pass due to their fear that he was going to hit them. However, Douglas Moore, who was in front of the other two vehicles, did not pull off the roadway. Holly Moore and Robin Diane Williams, a passenger in Ms. Moore’s vehicle, both testified that the vehicle driven by the defendant passed them at a fast rate of speed. Mr. Hutchinson then hit the decedent’s tractor from behind causing the front wheels of the tractor to become airborne and to veer left across the road, hitting a parked car and a tree before coming to rest. The decedent was thrown from the tractor upon impact and died as a result of injuries sustained.
At trial, the Commonwealth presented expert testimony that the defendant had been travelling at least 44.7 mph[, almost 20 mph over the posted speed limit.] In addition, the state police officer who administered the breathalyzer test testified that the blood alcohol level of the defendant, tested at approximately 2:00 a.m., was 0.162%.

Trial Court Opinion (Grimes, P.J.), 12/5/91, at 1-2 (footnote omitted).

Appellant was convicted after a jury trial of homicide by vehicle, homicide by vehicle while driving under the influence, driving under the influence, and the summary offense of driving at an unsafe speed. After denying appellant’s post-verdict motions, the trial court sentenced him to a term of imprisonment of three to seven years for homicide by vehicle while driving under the influence and a consecutive term of imprisonment of six months to two years for driving under the influence. The trial court imposed no additional term of imprisonment for homicide by vehicle, finding that that charge merged with homicide by vehicle while driving under the influence. This timely appeal was then filed.

In his first two issues, appellant contends that the jury was not properly instructed with regard to the consideration it should give to the decedent’s own conduct in determining the cause of the decedent’s death. He first contends that the trial court erred in refusing to allow defense counsel to argue and refusing to instruct the jury that the decedent was driving his tractor on a public highway in violation of the Motor Vehicle Code’s registration requirements. Although we conclude, for reasons discussed below, that appellant was not entitled to such an instruction, we agree that sufficient evidence was presented to show that the decedent operated his tractor on a public highway in violation of the Vehicle Code’s registration requirements.

Section 1302 of the Vehicle Code, titled “Vehicles exempt from registration,” provides exemption status to:

Any implement of husbandry or trailer determined by the department to be used exclusively for agricultural operations and only incidentally operated upon highways. Vehicles exempt from registration under this paragraph shall be used exclusively upon a farm or farms owned or operated by the owner of the vehicle or upon highways between:
(i) Parts of one such farm.
(ii) Such farms located not more than 25 miles apart.
(iii) Such farm or farms and a place of business located within a radius of 25 miles from the farm for the purpose of buying or selling agricultural commodities or supplies or for delivery, repair or servicing of the vehicle.

75 Pa.C.S. § 1302(2). In the present case, Trooper Joseph Palmer, the state trooper presented as a Commonwealth witness, testified that tractors are not allowed to operate as passenger vehicles on the highways because they are not registered. Trooper Palmer also testified that such a tractor operator would be subject to a citation, depending upon whether the tractor is being used for farm work and whether it is within the legal distances. Upon further questioning, he stated that the decedent’s tractor was not being used for farm work or within the permissible distances. More importantly, it was uncontroverted that the decedent was returning home from a tractor pull at a county fair.

Accordingly, it was inaccurate for the trial court to conclude that there was insufficient evidence that the tractor in question was in violation of the registration requirements of the Vehicle Code. Sufficient evidence was presented considering that a county fair tractor pull is not a part of the decedent’s farm, is not an additional farm of decedent, and is not for the purpose of buying or selling agricultural commodities or supplies or for the delivery, repair or servicing of the vehicle.

Similarly, we have reviewed the record and conclude that there was sufficient evidence that the decedent violated the lighting requirements of the Vehicle Code. Section 4303, titled “General lighting requirements,” provides, in relevant part: “Every vehicle operated on a highway shall be equipped with a rear lighting system including, but not limited to, rear lamps, rear reflectors, stop lamps and license plate light, in conformance with regulations of the department.” 75 Pa.C.S. 4303(b). The following testimony was elicited at trial:

Q. [By defense counsel] What basically does an authorized vehicle for use on the highway need to have by state regulations?
A. [By Trooper Palmer] Red lights to the rear.
* * * 'Jfi * *
Q. Did the tractor have a red light on it?
A. No, sir, it did not.

Reproduced Record at (4)a. Additionally, Trooper Palmer testified that the tractor would not be allowed on the roadway because it was not equipped with proper lighting.

In light of this testimony, we hold that sufficient evidence was presented to support the conclusion that the decedent operated his vehicle in violation of the Vehicle Code. In addition, although we conclude that appellant is not entitled to a new trial on the basis that the trial court erred in refusing to instruct the jury regarding the Vehicle Code’s registration requirements, we hold that trial counsel was ineffective for failing to request an instruction on the lighting requirements.

As the following cases reveal, the decedent’s conduct is not irrelevant in a homicide by vehicle case. Although the decedent’s own actions are not a defense to a criminal action, they may diminish the defendant’s responsibility as the legal cause of the accident. Commonwealth v. Clowser, 212 Pa.Super 208, 215, 239 A.2d 870, 873 (1968).

In Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988), the Supreme Court reversed the defendant’s homicide by vehicle conviction because the trial court improperly excluded evidence of the deceased pedestrian’s intoxication. In so doing, the Court stated, “The causation theory properly applied in criminal eases is not the same as the civil ‘proximate cause’ standard. The defendant’s conduct must be a direct and substantial cause of the injury.” Id. at 540, 544 A.2d at 951. The Court also determined that “[t]he trial court’s refusal to permit the appellant to introduce evidence of the decedent’s intoxication, where the appellant was prepared to support his theory with expert testimony, prevented him from challenging the causal connection between his conduct and the accident, a direct connection that the Commonwealth must prove beyond a reasonable doubt.” Id. at 542, 544 A.2d at 952.

Similarly, in Commonwealth v. Bartolacci, 409 Pa.Super. 456, 598 A.2d 287 (1991), allocatur denied, 530 Pa. 638, 607 A.2d 249 (1992), the defendant sought to admit evidence to prove that the dangerous condition of the roadway where his accident occurred and the location of the utility pole he struck were the cause of the accident. The defendant wanted to offer evidence that the utility pole was removed because it was a dangerous condition and that previous accidents had occurred at the site where the pole was located to demonstrate that a dangerous condition existed. This Court held that it was error to exclude such evidence. The Court stated, “In a criminal trial where the jury has the responsibility of determining the ‘direct cause’ of death in order to decide whether or not to covict [sic] the defendant of homicide by vehicle, evidence of other factors which may have been the direct cause of death is clearly appropriate.” Id. at 462, 598 A.2d at 290.

In the present case, appellant first argues that the jury should have been instructed that they should consider that the decedent was operating the tractor on a public highway in violation of the Vehicle Code’s registration requirements. This argument has no merit. Although it is true that the decedent would not have been driving the tractor on the road if he had complied with the Vehicle Code, his act of driving the tractor on the public road, without more, was not a substantial cause of the accident.

However, appellant’s second contention, that is, that counsel was ineffective for failing to request an instruction concerning the Vehicle Code’s lighting requirements, has merit. In Commonwealth v. Rollins, 525 Pa. 335, 580 A.2d 744 (1990), our Supreme Court set forth the following standard for reviewing an ineffectiveness of counsel claim:

[W]e must first determine whether the issue underlying the claim is of arguable merit. If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial.

Id, at 344, 580 A.2d at 748 (citations omitted).

In the present case, ample evidence was elicited concerning the tractor’s lighting. There was also evidence presented concerning the limited visibility which existed on the night of the accident. Furthermore, appellant testified that he saw the light on the rear of the tractor, but because he saw only a white light, he thought that the vehicle was traveling towards him in his lane.

The jury could have properly considered the evidence concerning the lighting and the effect that lighting had on appellant’s ability to avoid the accident, if the trial court had instructed the jury that it could so consider that evidence. As Uhrinek and Bartolacci reveal, evidence of factors other than the defendant’s violation of the Vehicle Code which may have caused the accident is relevant and admissible. The defendant’s introduction of such evidence, however, would be ineffectual without instructions to the jury regarding the consideration which should be given to that evidence. Accordingly, the issue underlying appellant’s claim of ineffectiveness has merit.

We further conclude that counsel had no reasonable basis for failing to request an instruction on the lighting requirements. By eliciting testimony concerning the tractor’s lighting and the poor visibility on the night in question, counsel apparently intended to present a theory that appellant’s violations of the Vehicle Code were not the legal cause of the accident. Counsel could have had no reasonable basis for failing to request an instruction which would have informed the jury of the relevance of that evidence.

Finally, if the jury, after proper instructions, had concluded that the decedent’s failure to equip the tractor with proper lighting, rather than appellant’s violations of the Vehicle Code, was the direct cause of the accident, appellant would have been found not guilty. The trial court’s instructions, in view of the evidence presented, did not adequately explain the issue of causation to the jury, however. Therefore, counsel’s ineffectiveness prejudiced appellant.

The trial court instructed the jury that in order for them to find appellant guilty, they would have to find that his actions were a substantial factor in causing the accident. Although that instruction was a correct statement of law, it was incomplete as the trial court did not instruct the jury regarding the decedent’s failure to equip the tractor with proper lighting.

In Commonwealth v. Amecca, 160 Pa.Super. 257, 50 A.2d 725 (1947), this Court held that the trial court erred in instructing the jury that if the decedent acted in a negligent and careless manner, it was irrelevant. Rather, the Court held that “the jury should be instructed that the negligence of the deceased is no defense, unless the deceased’s own negligence was a substantial factor (legal cause) in bringing about his own harm, injury and death.” Id. at 262, 50 A.2d at 728 (emphasis in original). Although Amecca was overruled by this Court in Commonwealth v. Root, 191 Pa.Super. 238, 156 A.2d 895 (1959), the Supreme Court reversed this Court’s decision in Root. See Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961). In so doing, the Court determined that the defendant was not the cause of the decedent’s death. Therefore, the jury instructions were not at issue. As a result, this Court’s decision in Root has no precedential effect.

In Commonwealth v. Youngkin, 285 Pa.Super. 417, 427 A.2d 1356 (1981), the defendant was convicted of involuntary manslaughter for prescribing a barbiturate to a patient who died of asphyxiation from aspiration of the contents of her stomach after the drug depressed her gag reflex. On appeal, the defendant argued that the trial court erred in failing to instruct the jury on the meaning of supervening cause. The Superior Court approved the trial court’s charge which informed the jury that in order to find the defendant guilty of involuntary manslaughter they must find that the decedent’s death was the direct result of an act of the defendant, and that the jury should consider whether the decedent’s conduct in any way diminished the defendant’s responsibility with regard to the legal cause of death.

In discussing causation, the Court in Youngkin stated: [I]t has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death. Criminal responsibility is properly assessed against one whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result.

Id. at 425, 427 A.2d at 1359-60 (quoting Commonwealth v. Skufca, 457 Pa. 124, 132-33, 321 A.2d 889, 894 (1974), appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974)).

In Commonwealth v. Britcher, 386 Pa.Super. 515, 563 A.2d 502 (1989), aff'd per curiam, 527 Pa. 411, 592 A.2d 686 (1991), the defendant was convicted of homicide by vehicle and homicide by vehicle while driving under the influence. He argued on appeal that his due process rights were violated at trial when he was required to defend against two mutually inconsistent theories of liability, that is, that the decedent died as a result of the defendant’s reckless speeding and that the decedent died as a result of the defendant’s intoxication. In rejecting the defendant’s argument, the Court stated:

While homicide by vehicle and homicide by vehicle while under the influence each require proof of direct causation of the same death by different causes, the causes need not be ‘mutually inconsistent.’ Multiple causes may all give rise to criminal liability so long as one does not supervene the other and each may properly be considered direct and substantial. Such causes may properly be characterized as substantial concurrent causes.

Id. at 525, 563 A.2d at 506 (citations and internal quotation marks omitted).

In Britcher, unlike the present case, the different causes discussed were both acts of the defendant, each of which could give rise to liability. In the present case, the different causes at issue are the defendant’s violations of the Vehicle Code and the decedent’s alleged negligence, also a violation of the Vehicle Code. Despite this difference, we conclude that the rationale of Britcher is applicable to the present case, and appellant may be found criminally liable if his actions are determined to be a direct and substantial cause of the decedent’s death, even if the decedent’s alleged negligent acts were also substantial.

This conclusion receives further support from the Pennsylvania Standard Jury Instructions. The suggested instruction for homicide by vehicle sets forth, in relevant part, the following:

In order to find the defendant guilty of homicide by vehicle you must find that each of the following elements has been established beyond a reasonable doubt:
1. That the defendant caused the death of [the decedent];
2. That the defendant was (operating) (using) a vehicle in violation of (specify law or ordinance) applying to the ((operation) (use) of a vehicle) (regulation of traffic); (and)
3. That the defendant’s act in violating the law was (a) (the) direct cause of [the decedent’s] death. A defendant’s act in violating the law cannot be a direct cause of a death unless the death would not have occurred but for that act and violation of law. (In this connection you should recognize that legally there may be more than one cause of death but that what is required for a finding of guilty is that the defendant’s actions were one of the direct causes.); (and)
(4. That [the decedent’s] conduct did not diminish the defendant’s responsibility for causing [the decedent’s] death to such an extent that the defendant’s act was not (a) (the) direct cause of [the decedent’s] death.)

Pennsylvania Standard Jury Instruction 17.3732 (Criminal).

In conclusion, we hold that where the defendant argues that the accident was caused by the decedent’s conduct, rather than the defendant’s conduct, the trial court should instruct the jury that it must determine whether the defendant’s conduct was a direct and substantial cause of the accident. Additionally, the trial court should instruct the jury that it must consider whether the decedent’s conduct, rather than the defendant’s conduct, was the cause of the accident. In so doing, however, the trial court should not instruct the jury that there can only be one cause of an accident or that if the decedent’s conduct is substantial, the defendant must be found not guilty, even if the defendant’s own conduct is a substantial cause of the accident.

Because we vacate the judgment of sentence and remand for a new trial on the above issue, we need not address appellant’s remaining issues.

Judgment of sentence vacated and case remanded for a new trial. Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. I would find the evidence of Moore’s alleged vehicular violations insufficiently developed to require a jury charge. I am convinced, as was the trial judge, that the cause of Moore’s death was the reckless and drunken driving by Hutchison.

When we consider whether the trial court erred when it refused to charge the jury regarding the alleged illegality of the operation of a tractor on the highway, we must examine the charge in its entirety against the background of the evidence to determine whether or not the error, if there was one, was prejudicial to the defendant. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978) (emphasis added). Thus, our examination begins with the question of whether the trial court erred in refusing the charge; only if we answer that question in the affirmative do we consider whether the error prejudiced the defendant. Id. If the requested instruction is inapplicable and improper, the court should not charge on it. Commonwealth v. Cottam, 420 Pa.Super. 311, 335-37, 616 A.2d 988, 1000 (1992), citing Commonwealth v. Kyle, 367 Pa.Super. 484, 509-10, 533 A.2d 120, 133 (1987); see also Commonwealth v. Smith, 511 Pa. 343, 356, 513 A.2d 1371, 1377 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).

The first question we must ask about a proposed charge to the jury is whether it is warranted by the evidence presented in the case. Commonwealth v. Mayfield, 401 Pa.Super. 560, 573, 585 A.2d 1069, 1075 (1991), (citing Commonwealth v. Schaller, 493 Pa. 426, 431, 426 A.2d 1090, 1093 (1981)). In this case, the majority holds that the trial court’s failure to charge on the Vehicle Code’s lighting requirements is reversible error.

When charging a jury, the judge must clarify the issues so that the jury understands the questions to be resolved. Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1970). When evidence of a proposed defense is lacking, the judge may not charge on that defense. See Mayfield, supra (holding that when a defendant denies the use of deadly force to defend himself, he may not have a charge to the jury on self-defense).

A trial judge must not charge a jury on issues which are not part of the evidence of the case. Cottam, supra. For that reason, a suggested charge on the Motor Vehicle Code’s lighting requirements would have been properly rejected because the record contains no evidence of the Code’s lighting requirements as applied to farm vehicles. Therefore, I would hold counsel was not ineffective for failing to ask for the charge. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991) (We are first required to determine whether the issue underlying the claim is of arguable merit; if the claim is without merit, our inquiry ends.).

In light of the majority’s holding granting a new trial, I too find it unnecessary to address the question of potential prejudice in the prosecutor’s closing argument.

I would, however, take this opportunity to consider the question of the merger of sentences for the guidance of the trial court, should Hutchison once again be convicted of both driving under the influence and homicide by vehicle while under the influence.

When we review the merger or non-merger of offenses for the purposes of sentencing, we defer to the sound discretion of the trial court and will reverse only upon a showing of manifest abuse or error of law. Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989).

The jurisprudence of merger is in flux. The most recent reasoning of the Pennsylvania Supreme Court is expressed in a plurality opinion, which, while not precedential exemplifies the debate. There, Justice McDermott wrote for the plurality that:

[I]n the context of simultaneous convictions of multiple offenses, pursuant to guilty pleas or trial verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary ... [I]f the Legislature intends that certain crimes be subsumed by, or merged into, other crimes that intention will be expressly stated.

Commonwealth v. Burkhardt, 526 Pa. 341, 347, 586 A .2d 375, 377-78 (1991).

The Burkhardt reasoning for judging merger is at variance in words, at least, from the Pennsylvania Supreme Court’s holding in Commonwealth v. Leon Williams, 521 Pa. 556, 564, 559 A.2d 25, 29 (1989) which abolished merger except for lesser included offenses. Mr. Justice Flaherty’s concurring opinion in Burkhardt points out the difficulty of returning the problem to the legislature because it is possible in the meantime that a defendant could be sentenced twice for robbery and theft charges arising out of a single criminal act.

This court held in Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), aff'd 529 Pa. 571, 605 A.2d 1222 (1992) that driving under the influence was a lesser included offense in homicide by vehicle while driving under the influence; therefore, the sentences should merge. That decision was affirmed per curiam without decision after both Burkhardt and Leon Williams (Erie) were decided, but the Superior Court opinion was filed before Burkhardt. Voshall, therefore, does not help us resolve any conflict between the Burkhardt reasoning of legislative intent and the Williams (Erie) standard of merging only lesser included offenses.

I would reconcile the apparently divergent tests articulated in Leon Williams (Erie) and Burkhardt by holding that when the legislature makes a crime a lesser included offense the demand for clear legislative command is satisfied. In determining whether a crime is a lesser included offense of the primary charge, the sentencing judge need only determine if any of the crimes necessarily involve each other. Voshall, supra. Crimes necessarily involve each other when the only basis upon which a conviction may be predicated is the commission of the other crime. Weakland, supra.

Hutchinson appeals the failure to merge driving under the influence into homicide by vehicle while driving under the influence. The statutory prohibition against driving under the influence, 75 Pa.C.S.A. § 3731 reads in pertinent part:

§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
He Sjc 5{C ij« sj* Sj«
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

The offense of homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, is defined by the Motor Vehicle Code as follows:

§ 3735. Homicide by vehicle while driving under the influence
(a) Offense defined.—Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating § 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of not less than three years.

The trial court sentenced Hutchinson separately on the conviction of driving under the influence and merged for sentencing purposes the conviction of homicide by vehicle while driving under the influence and homicide by vehicle. Since the statutory definition of homicide by vehicle while driving under the influence includes specific reference to and is predicated on a violation of the statute prohibiting driving under the influence, 75 Pa.C.S. § 3735, supra, I would find that the crimes necessarily involve each other. Voshall, supra; Weakland, supra. I would further conclude that this is a case in which driving under the influence is a lesser offense included in the greater and thus excepted from the abolition of the doctrine of merger. Leon Williams, supra.

      . In Williams, the Pennsylvania Supreme Court defined a lesser included offense as a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense. The court gave the example of theft as a lesser included offense of robbery. Williams, 521 Pa. at 561, n. 2, 559 A.2d at 28, n. 2.

      . This court, en banc, wrestled with the question of what lesser included offenses are recently in Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) and Commonwealth v. Wood, 417 Pa.Super. 264, 612 A.2d 474 (1992). In both cases the court divided five to four on the question of whether aggravated assault is a lesser included offense of attempted murder. The majority held that the two should not merge for purposes of sentencing on grounds that the mental state of the actor is necessarily different to create criminal culpability in aggravated assault and in attempted murder. The majority reasoned that attempted murder was an inchoate crime and, under the facts of the case, the aggravated assault was a completed crime. Attempted murder and aggravated assault each requires a different specific intent. Id. at 222-24, 610 A.2d at 1052 (emphasis in original). The dissent argued that since the law is clear that aggravated assault is a lesser included offense in murder, it follows that it must be a lesser included offense in attempted murder. Id. at 228-30, 610 A.2d at 1055.

      . In fact, Hutchinson argues that it was ineffective assistance of counsel which led to the failure to object to separate sentencing on the two offenses. Since his claim goes to the legality of the sentence, failure to raise it in the trial court is not fatal to his appeal. Commonwealth v. Dixon, 344 Pa.Super. 293, 295, 496 A.2d 802, 802 (1985).


source: Caselaw Access Project

author: POPOVICH, Judge.

license: Public Domain

text:
    621 A.2d 689
    Jannac JENKINS, Appellant, v. CITY OF PHILADELPHIA, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 9, 1992.
    Filed March 12, 1993.
    Stuart A. Carpey, Philadelphia, for appellant.
    Alan C. Ostrow, City Sol., Philadelphia, for appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   POPOVICH, Judge.

We are asked to review the June 10, 1992, order of the Court of Common Pleas of Philadelphia granting the preliminary objections in the nature of a demurrer of the City of Philadelphia against the plaintiff/appellant, Jannac Jenkins. We affirm.

In reviewing the grant of preliminary objections, the standard of review is well-settled; to-wit:

A preliminary objection in the nature of a demurrer admits every well-pleaded fact and all inferences reasonably deducible therefrom. It tests the legal sufficiency of the challenged complaint and will be sustained only in cases where the pleader has clearly failed to state a claim for which relief may be granted. If there is any doubt as to whether a claim for relief has been stated, the trial court should resolve it in favor of overruling the demurrer.

Bester v. Essex Crane Rental Corp., 422 Pa.Super. 178, 619 A.2d 304, 305-06 (Citations omitted).

The facts, examined under the applicable standard of review, indicate that the plaintiff was injured in a motor vehicle accident while in the course of his employment for the City of Philadelphia. The plaintiff settled his claim against the driver (Rudolph McNelly) of the vehicle involved in the accident for the $15,000.00 policy limits of the driver’s insurance policy.

Because the plaintiff did not own a motor vehicle or reside with anyone who did own a vehicle, he applied to the defendant, City of Philadelphia, for underinsured motorist benefits. The City of Philadelphia refused to pay any underinsured motorist benefits on the ground that the plaintiffs claim was barred by the Pennsylvania Supreme Court decision in Hackenberg v. SEPTA 526 Pa. 358, 586 A.2d 879 (1991). The court agreed and entered an order granting the defendant’s preliminary objections. This appeal followed.

The sole issue posed for our consideration is whether an employee may recover both Workmen’s Compensation and underinsured motorist benefits from his self-insured employer?

It is the plaintiffs position that the defendant and the court relied upon case law (Hackenberg, supra) which was superseded by legislation preceding and applicable to the date of his injury, i.e., 75 Pa.C.S. § 1737 was enacted February 7, 1990, and effective July 1, 1990, and, thus, was applicable to his July 2, 1990, accident date. In particular, the plaintiff argues that “[i]t is absolutely clear” that new Section 1737 was promulgated to afford employees the right to recoup un/underinsured and workmen’s compensation benefits. We disagree with the plaintiffs interpretation of the statute and case law on the subject.

To begin with, in Hackenberg, supra, our Supreme Court was concerned with consolidated appeals: Hackenberg v. SEPTA and Dyll v. Bell Telephone Co., both of which dealt with whether the self-insured employers (SEPTA and Bell Telephone Co.) were insulated from liability (for uninsured benefits in the case of SEPTA and underinsured benefits in regard to Bell Telephone Co.) to their employees (Hackenberg and Dyll, respectively) other than for worker’s compensation benefits pursuant to the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701 et seq.

As is herein applicable, the Supreme Court wrote:

The general scheme of insurance contemplated by the MVFRL as it applies to this case is that each motor vehicle registrant is required to certify that the registrant is financially responsible, 75 Pa.C.S. § 1786, and that such responsibility can be established either through the purchase of insurance coverage or by certification of self-insurance coverage or by certification of self-insurance, 75 Pa.C.S. § 1782(a).
If a registrant wishes to be self-insured, it must file with the Department of Transportation evidence of sufficient financial resources, arrangements, deposits or commitments, and it must satisfy the department that it will:
1. Provide the benefits required by section 1711 (relating to required benefits), subject to the provisions of Subchapter B (relating to motor vehicle liability insurance first party benefits), except the additional benefits and limits provided in section 1712 (relating to availability of benefits) and 1715 (relating to availability of adequate limits).
2. Make payments sufficient to satisfy judgments are required by section 1774....
3. Provide uninsured motorist coverage up to the limits set forth in section 1774.
75 Pa.C.S. § 1787(a) (emphasis added). Both employers in the present case have filed evidence of reliable financial arrangements and are “self-insurers” as defined by section 1787.
Section 1787 is the only section of the MVFRL which defines the benefits for which a self-insured entity is liable. In fact, the MVFRL defines the term “self-insurer” as “an entity providing benefits and qualified in the manner set forth in section 1787.” It is to section 1787, then, that we must look to determine what benefits a self-insurer must pay under the MVFRL.
While section 1787 requires the provision of uninsured benefits, it make no mention of underinsured benefits. The Dylls’ claim for underinsured benefits, therefore, was properly denied, for Bell was not required to provide undeñnsured coverage.

526 Pa. at 365, 586 A.2d at 882.

We read Hackenberg to preclude the recoupment of both underinsured motorist benefits and workmen’s compensation from a self-insured employer by an employee injured in a work-related automobile accident. Cf. Clark v. State Farm Auto. Ins. Co., 410 Pa.Super. 300, 599 A.2d 1001, 1004 (1991) (“The Hackenberg Court held that § 1735 prevails over § 303(a) in cases concerning employers who have purchased policies of insurance, but is not applicable to self-insured employers.” (Citation omitted; footnote omitted)).

At bar, SEPTA is “self-insured”, and, as such, the law does not permit the plaintiff/employee to recover both workmen’s compensation and underinsured motorist benefits. The plaintiff argues to the contrary, and, in doing so, relies upon new Section 1737 of the MVFRL. See note 1, supra.

We interpret Section 1737 to permit an employee injured on the job to collect workmen’s compensation, uninsured and underinsured motorist benefits from an employer “who is covered by a motor vehicle insurance policy” See Hackenberg, supra, 526 Pa. at 361 n. 3, 586 A.2d at 880 n. 3. Such is not the case here, however, with a self-insured/CITY, who, under the law, is only required to provide uninsured coverage and not underinsured benefits. Id. at n. 7; 75 Pa.C.S. § 1787(a).

Therefore, we affirm the court’s order granting the defendant’s preliminary objections against the plaintiff.

Order affirmed.

      . New Section 1737 of the Motor Vehicle Financial Responsibility Law reads:
      Notwithstanding anything contained in the act of June 2, 1915 (P.L. 736, No. 338), known as The Pennsylvania Workmen’s Compensation Act, no employee who is otherwise eligible shall be precluded from recovery of uninsured or underinsured motorist benefits from an employer’s motor vehicle policy under this chapter or the act of August 14, 1963 (P.L. 909, No. 433) entitled "An act requiring, with limitations, that insurance policies insuring against loss, occurring in connection with motor vehicles provide protection against certain uninsured motorists [the Uninsured Motorist Act].
      Act of February 7, 1990, P.L. 11, No. 6, § 12, 75 Pa.C.S. § 1737 (Emphasis added).

      . Although there may have been a change in the law, i.e., new Section 1737 of the MVFRL, allowing an employee to recover un/underinsured motorist benefits from an employer for a loss occurring on the job while operating a motor vehicle, Section 1787(a) still only requires a self-insured to provide uninsured motorist coverage.
      Double recovery (workmen’s compensation and un/underinsured benefits) is permitted under new Section 1737 of the MVFRL where the employer has a motor vehicle policy instead of being self-insured.
      The city being self-insured, meaning it did not carry a motor vehicle policy with an insurer, required it to carry only an uninsured motorist policy and not underinsured motorist coverage. See Hackenberg, supra; 75 Pa.C.S. §§ 1737, 1787(a).


author: WIEAND, Judge:

text:
    621 A.2d 692
    Jeffrey SCHMOYER, a minor, by his parents, Richard and Joan SCHMOYER and Richard and Joan Schmoyer, in their own right, Appellants, v. MEXICO FORGE, INCORPORATED and Markley Farms Swim Club and Raymond Hale, Additional Defendant v. ZENITH LABORATORIES, INC. Jeffrey SCHMOYER, a minor, by his parents, Richard and Joan SCHMOYER and Richard and Joan Schmoyer, in their own right v. MEXICO FORGE, INC., and General Recreation, Inc. and Markley Farms Swim Club. Appeal of MEXICO FORGE, INC.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1992.
    Filed March 12, 1993.

      Peter C. Gardner, Philadelphia, for Schmoyer’s.
    Audrey L. Jacobsen, Philadelphia, for Mexico Forge & Markley Swim Club.
    Warren F. Sperling, Philadelphia, for Hale.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   WIEAND, Judge:

The sole issue in this appeal is whether a Spin Around, which is permanently installed on a concrete base as a playground amusement ride for children, is an improvement to real estate for purposes of applying the twelve (12) year statute of repose contained in 42 Pa.C.S. § 5536. The trial court held that it was an improvement to real estate and that an action for injuries sustained by a child more than seventeen (17) years after installation could not be maintained on the basis that the equipment had been defectively designed or manufactured. Therefore, the court directed a verdict in favor of the manufacturer. After careful review, we affirm.

A Spin Around is a platform, similar to a carousel, which rotates when pushed manually and on which children can ride. The top of the platform contains steel bars which can be held by persons who sit upon or push the carousel. While playing on a Spin Around at the Markley Farms Swim Club, Jeffrey Schmoyer sustained injuries in August, 1983. In an action against the Swim Club and Mexico Forge, Inc., which had designed and manufactured the Spin Around, Schmoyer, acting through his parents and natural guardians, alleged that he had been injured when his legs became wedged between the metal bars of the Spin Around and his friend, Raymond Hale, with whom he had been playing. He contended, inter alia, that the manufacturer of the equipment had been negligent, had been guilty of a breach of warranty and was strictly liable for a defective Spin Around.

The Spin Around had been purchased and installed by the Swim Club in 1966. The installation was described by Ron Markley, the owner of the Swim Club, as follows:

We followed the specific instructions in the Mexico Forge catalogue including the concrete anchors in the ground to hold it in the ground, the concrete anchor at the pedestal type thing that goes in the center and the pedestal is then bolted to the concrete base in the ground and the thing was kept at the proper level. The platform was at the proper level to the ground and we followed all the instructions right to the “T.”

Thus, it is clear that the Spin Around was firmly and solidly attached to the playground surface. Schmoyer’s injury occurred seventeen (17) years thereafter.

On the third day of trial, a settlement was reached between Schmoyer and Markley Farms Swim Club. Thereafter, the trial court entered a directed verdict in favor of Mexico Forge and also in favor of Raymond Hale, who had been joined as an additional defendant. Post-trial motions were denied, and Schmoyer appealed from the directed verdict entered in favor of Mexico Forge, the manufacturer. Mexico Forge appealed from the entry of a directed verdict in favor of Hale. It pursues this appeal only if the directed verdict in its favor is reversed.

The legislature, at 42 Pa.C.S. § 5536(a), has enacted a statute of repose as follows:

(a) General rule.— ... a civil action or proceeding brought against any person lawfully performing or furnishing the design, planning, supervision or observation of construction, or construction of any improvement to real property must be commenced within 12 years after completion of construction of such improvement to recover damages for:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.

A statute of repose “does not merely bar a litigant’s right to a remedy, as a statute of limitations does, but [it] completely abolishes and eliminates the cause of action itself.” Mitchell v. United Elevator Co., Inc., 290 Pa.Super. 476, 486, 434 A.2d 1243, 1248 (1981). See also: Misitis v. Steel City Piping Co., 441 Pa. 339, 343, 272 A.2d 883, 885 (1971). The statute applies where the party moving for its protection shows that: (1) what was supplied was an improvement to real estate; (2) more than twelve years elapsed between the completion of the improvement and the injury; and (3) the activity of the moving party was within the class which is protected by the statute. McConnaughey v. Building Components, 401 Pa.Super. 329, 333, 585 A.2d 485, 487 (1990), allocatur granted, 527 Pa. 667, 593 A.2d 842 (1991).

Appellant argues that the Spin Around was a product and not an improvement to real estate. In McCormick v. Columbus Conveyor Co., 522 Pa. 520, 564 A.2d 907 (1989), the Supreme Court adopted a definition of “improvement” from Black’s Law Dictionary as follows:

[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes----

Id. at 524, 564 A.2d at 909. Therefore, the Court held as a matter of law, a coal delivery system was an improvement to real estate. Consistently therewith, the Superior Court has held that the following were improvements to real estate: (1) wooden roof trusses, McConnaughey v. Building Components, supra; (2) a weld and side trim machine at a steel plant, Radvan v. General Electric Co., 394 Pa.Super. 501, 576 A.2d 396 (1990), allocatur denied, 527 Pa. 602, 589 A.2d 692 (1991); (3) electrical panel board, Goodrich v. Luzerne Apparel Manufacturing Corp., 356 Pa.Super. 148, 514 A.2d 188 (1986); (4) elevator in private home, Fetterhoff v. Fetterhoff, 354 Pa.Super. 438, 512 A.2d 30 (1986), allocatur denied, 514 Pa. 624, 522 A.2d 50 (1987); (5) acrylic skylight or skydome, Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985); (6) elevator in apartment building, Mitchell v. United Elevator Co., Inc., supra. See also: Freezer Storage v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978) (insulation material in ceiling of low temperature warehouse); Keeler v. Commonwealth, Department of Transportation, 56 Pa.Commw. 236, 424 A.2d 614 (1981) (highway guardrails, lights, signs and directional signals). Compare: Ferricks v. Ryan Homes, Inc., 396 Pa.Super. 132, 578 A.2d 441 (1990), allocatur denied, 527 Pa. 617, 590 A.2d 757 (1991) (multipurpose product such as plywood is not an improvement to real estate merely because it is used as a component part of a fixture); Noll v. Paddock Pool Builders, Inc., 416 Pa.Super. 284, 611 A.2d 219 (1992) (swimming pool starter blocks may be improvement to real estate if parties affixing the same so intend.)

Under the decided cases, we conclude that the Spin Around in this case was an improvement to real estate within the Pennsylvania statute of repose. The Spin Around manufactured by Mexico Forge was clearly an improvement to the swim club’s real estate. It had been anchored in concrete and imbedded in the earth, where it remained for more than seventeen (17) years.

Appellants argue that the manufacturer of a product, such as Mexico Forge, is not entitled to protection under the statute of repose because the statute was intended only to have application to and benefit persons in the building and construction profession such as architects, engineers and contractors. However, this issue was addressed and rejected by the Superior Court in McConnaughey v. Building Components, supra. There, the Court held that protection was given by the statute to the manufacturer of preconstructed roof trusses used in the construction of plaintiffs barn. The Court reasoned as follows:

In Leach v. Philadelphia Savings Fund Society, 234 Pa.Super. 486, 340 A.2d 491 (1975), our court addressed a claim that an almost identical statute of repose then in effect was intended to extend protection to a limited class of persons. In rejecting this approach, we stated:
The statute is not limited to persons performing professional or licensed services, and a court cannot supply such an omission to statutory language. Neither is the protected class identified by profession or occupation. The Pennsylvania statute identifies its class not by the status or occupation of its members but rather by the contribution or acts done in relation to the improvement to the real property. Thus the statute immunizes from liability after 12 years any person lawfully performing or furnishing such activities. The word any is generally used in the sense of all or every and its meaning is most comprehensive.
Id., 234 Pa.Superior Ct. at 490, 340 A.2d at 493 (citations omitted).
This broad interpretation of the statute was discussed in some detail in Catanzaro v. Wasco Products, Inc., 339 Pa.Super. 481, 489 A.2d 262 (1985), where our court found the statute of repose applicable to a defendant who manufactured and sold a skylight which was incorporated into a building. The plaintiff in the case had fallen through the skylight while working on the roof in which it was placed. He claimed the skylight was defectively designed and constructed. Our court rejected an argument by the plaintiff that the statute of repose should not shield mere manufacturers, who only design or construct real property improvements. In holding that the statute protected the defendant skylight manufacturer, our court declared that following the decision in Leach v. Philadelphia Savings Fund Society, supra, the statutory protection was judicially extended to include manufacturers who had designed, planned or constructed improvements to real property.
Further, in Catanzaro, our court rejected the plaintiffs contention that the statute should be read restrictively to have application only to a supplier who had to customize the product to the real estate and had to assist in its installation. In doing so, we pointed out that a similar argument was rejected in Mitchell v. United Elevator Company, Inc., supra. In Mitchell, the trial court determined that a manufacturer of an elevator was not protected by the statute of repose because construction of an elevator was “like supplying a ready made item that was merely incorporated into the building.” 290 Pa.Super. at 488, 434 A.2d at 1249. Such a narrow application of the act was denounced by our court, and it was pointed out that the fact that the basic design of the improvement may be identical in different buildings does not render it any less an improvement to real estate, to which the statute applies.

Id. at 334-335, 585 A.2d at 488.

The Pennsylvania statute of repose does not impose heedless restrictions upon application of the products liability law in this Commonwealth. It merely abolishes causes of action for defective planning or design of improvements to real estate after twelve years. The legislative intent is clear. After twelve years, an improvement which has stood the test of time will no longer be subject to a claim that it was designed or manufactured defectively.

The Spin Around manufactured by Mexico Forge was attached to and became an improvement to real estate. When, seventeen years later, the minor plaintiff was injured while playing on the equipment, he will not be heard to say that the equipment was defectively designed when manufactured and installed. Therefore, the order of the trial court directing a verdict in favor of Mexico Forge will be affirmed.

Only Mexico Forge has challenged the trial court’s order directing a verdict in favor of Raymond Hale. Our decision that the action against Mexico Forge is barred by statute makes it unnecessary that we decide the issues raised by the Mexico Forge appeal.

The order entering a directed verdict in favor of Mexico Forge is affirmed.

      . In Noll v. Paddock Pool Builders, Inc., a majority of a Superior Court panel analogized an improvement to real estate under 42 Pa.C.S. § 5536 to “real property” under the governmental immunity exception at 42 Pa.C.S. § 8542(b)(3) and concluded that whether starting blocks attached to a swimming pool were improvements was to be determined by the intention of the parties. This prompted a dissent by Judge Popovich, and it is too early to tell whether the reasoning of the panel majority will be followed in future appellate decisions interpreting the Pennsylvania statute of repose. In the instant case, in any event, the equipment was solidly anchored to concrete embedded in the earth, where it remained affixed for seventeen (17) years before the plaintiff was injured during its use; and it is eminently clear from its history and from the depositions taken from the owner of the swim club that the equipment was intended to be a permanent improvement to the real estate.

      . We acknowledge that the federal courts have placed a different interpretation on the statute. See: Luzadder v. Despatch Oven Company, 834 F.2d 355, 359 (3rd Cir.1987), cert. denied, 485 U.S. 1035, 108 S.Ct. 1595, 99 L.Ed.2d 909 (1988) ("Application of § 5536 to manufacturers would cut the heart out of Pennsylvania’s product liability law, by immunizing any manufacturing company fortunate enough to have its product turned into an improvement to real property.”); Springman v. Wire Machinery Corporation of America, 666 F.Supp. 66, 69 (M.D.Pa. 1987); Vasquez v. Whiting Corp., 660 F.Supp. 685, 688 (E.D.Pa.1987) (“There is no legislative history ... that suggests the statute of repose would bar suits against manufacturers.”).


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    621 A.2d 996
    Ernest A. COLLINS, Appellant, v. Guy PARK, M.D. and Rolling Hill Hospital, Appellees.
    Superior Court of Pennsylvania.
    Argued Aug. 13, 1992.
    Filed Jan. 25, 1993.
    Reargument Denied April 1, 1993.

      David W. Waties, Philadelphia, for appellant.
    H. Coleman Switkay, Philadelphia, for Park, appellee.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

In this medical malpractice action, the trial court dismissed the complaint against Guy Park, M.D., because of improper service upon him. Ernest Collins, the plaintiff, appealed.

Collins commenced the present action by writ of summons issued on March 13, 1989. The sheriff attempted to serve the writ on Park by leaving a copy with the receptionist at the Rolling Hill Hospital on March 14, 1989. Dr. Park, however, had terminated his relationship with the hospital on February 22, 1988; and he did not thereafter maintain an office or place of business at the hospital.

On September 22,1989, Collins filed a complaint in which he charged Park with negligence during a surgical procedure performed at Rolling Hill Hospital on October 9, 1986. This complaint was not immediately served and was reinstated on April 18, 1990. The sheriff attempted to serve the reinstated complaint on the same day by leaving a copy with a nurse on duty in the intensive care unit (I.C.U.) of the hospital, where Dr. Park was a patient.

Preliminary objections raising questions of jurisdiction were filed on Dr. Park’s behalf, in which it was asserted that defective service had resulted in the court’s failure to acquire jurisdiction over Dr. Park’s person. The trial court agreed and dismissed the complaint against Park. The plaintiff appealed.

Proper service is a prerequisite to the court’s jurisdiction over the person of a defendant. Frycklund v. Way, 410 Pa.Super. 347, 351-352, 599 A.2d 1332, 1334 (1991). See also: Martin v. Gerner, 332 Pa.Super. 507, 516, 481 A.2d 903, 907 (1984). In determining whether proper service has been effected, we require strict adherence to the rules. The rule applicable to service in this case is Pa.R.C.P. 402, which provides as follows:

RULE 402. MANNER OF SERVICE. ACCEPTANCE OF SERVICE
(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an adult member of the family with whom he resides; but if no adult member of the family is found, then to an adult person in charge of such residence; or
(ii) at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which he resides; or
(iii) at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.

Plaintiffs attempted service of the writ of summons was defective. Because Dr. Park was not affiliated with the hospital at which service was attempted, it seems clear that the hospital cannot be deemed his “office” or “usual place of business.” In Martin v. Gerner, supra, the sheriff had attempted to serve a complaint upon the defendant physician by handing a copy of the complaint to the person in charge of the hospital where defendant was an inactive staff member. The defendant physician did not have a proprietary or managerial interest in the hospital, did not admit patients to the hospital and did not maintain an office there. The Court held that the Rules of Civil Procedure did not authorize service on the defendant physician by handing a copy to an employee of the hospital. The hospital was neither the “office” nor “usual place of business” of the defendant physician. Service, therefore, was improper.

Similarly, in the instant case, Dr. Park did not have a proprietary interest in the hospital and, at the time of serving the writ of summons, was not affiliated with the hospital in any capacity. The service of the summons attempted by the sheriff, therefore, was defective and did not confer upon the court jurisdiction to act against the person of Dr. Park.

The conclusive nature of a sheriffs return is applicable only to facts stated in the return of which the sheriff presumptively has knowledge. It does not apply “(a) to facts stated in the return of which the sheriff cannot be expected to have personal knowledge and which are based upon information obtained through hearsay or statements made by third persons or (b) to conclusions based upon facts known to the sheriff only through statements made by others.” Hollinger v. Hollinger, 416 Pa. 473, 477, 206 A.2d 1, 3 (1965). Contrary to appellant’s argument, there is no reason to give to the sheriffs return in this case a conclusive effect regarding service of the writ of summons upon a person at the Rolling Hill Hospital.

The service of the complaint was also inadequate to confer jurisdiction over Dr. Park’s person. A copy of the complaint was left with a nurse at the intensive care unit of the hospital, where Dr. Park was then a patient. Pa.R.C.P. 402(a)(2)(ii) authorizes service by handing a copy of the complaint “at the residence of the defendant to the clerk or manager of the hotel, inn, apartment house, boarding house or other place of lodging at which [the defendant] resides.” The intensive care unit of a hospital, however, cannot be deemed the patient’s place of residence, nor can it be said that the patient resides there. The term “residence” means an actual residence and not a place where a person is located temporarily while he or she is being treated for illness. Dr. Park did not voluntarily leave his place of residence to establish a new residence at the hospital. In our judgment, moreover, a nurse employed in an intensive care unit of a hospital cannot be deemed a clerk or manager of a place of lodging.

The prevailing view, in other jurisdictions, is that a hospitalized person continues to reside during hospitalization at the place of residence to which he will return upon completion of his hospitalization. See: 62B Am.Jur.2d, Process § 21, citing Havens v. Havens, 17 Conn.Supp. 432 (1952). This, in our judgment, is the correct view. Not only can service be made at a person’s place of residence, but if he or she is absent, service can be made by handing a copy to an adult member of the family; and if no adult member of the family is found, then to an adult person in charge of the residence. Pa.R.C.P. 402(a)(2)(i). For these reasons we agree with the trial court that valid service was not effected by leaving a copy of the complaint with a nurse at the intensive care unit of the hospital where Dr. Park was a patient.

Where service of process is defective, the proper remedy is to set aside the service. In that event, the action remains open, but it cannot proceed against a defendant unless the plaintiff can thereafter effect service on such defendant which is sufficient to vest jurisdiction in the court. Frycklund v. Way, supra at 353, 599 A.2d at 1335. See: Nicolosi v. Fittin, 434 Pa. 133, 135-136, 252 A.2d 700, 701 (1969); Trzcinski v. Prudential Property & Casualty Insurance Co., 409 Pa.Super. 114, 119-120, 597 A.2d 687, 690 (1991). In the instant case, the trial court dismissed the action against Dr. Park for lack of service. It may be, as has been suggested, that the action is barred by the statute of limitations. The statute of limitations, however, is an affirmative defense to be pleaded by Dr. Park or his estate in the event that jurisdiction can be obtained. It does not affect our decision that service should be stricken without dismissing the action.

The order dismissing the action is vacated. Service of the writ of summons and service of the complaint, however, are stricken, and the case is remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.

CAVANAUGH, J., files a concurring and dissenting opinion.

CAVANAUGH, Judge,

concurring and dissenting:

I concur in the result reached by the majority, that is, that the order dismissing the action should be vacated. However, I dissent from the majority’s reasoning and would find that the service effectuated on April 18, 1990 upon the nurse in charge of the intensive care unit at Rolling Hill Hospital was adequate service under the applicable rules of civil procedure. It seems to me that what appellant did was best calculated to effect proper service under the extraordinary circumstances presented by the facts of this case. I would find that the service was proper under 402(a)(1) since Dr. Park was, at the time, in the intensive care unit of a hospital and service upon the nurse in charge of that unit is a de facto compliance with 402(a)(1) since to require more would demand a most undesirable requirement of physical intrusion by the sheriff into the intensive care facility of a hospital.

In the alternative, I would conclude that service upon the intensive care unit nurse on duty was service upon Dr. Park at his “residence” under 402(a)(2)(i) by serving an adult person in charge of that residence. Under the unfortunate facts of this case, Dr. Park may be deemed a resident of the hospital by reason of the fact that he was undergoing a terminal admission which ended in his death on April 27, 1990, nine days after the effectuation of service.

      . The Rolling Hill Hospital, another defendant, is not a party to and has not participated in the present appeal.

      . Dr. Park died on April 27, 1990.


author: OLSZEWSKI, Judge:

text:
    621 A.2d 999
    Rachel GREER, Individually and as Administratrix of the Estate of Monique Greer, Deceased v. Harvey BRYANT, D.O. and Philadelphia College of Osteopathic Medicine. Appeal of: PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1992.
    Filed Jan. 27, 1993.
    Reargument Denied March 31, 1993.

      R. Bruce Morrison, Philadelphia, for appellant.
    Richard P. Abraham, Philadelphia, for appellee.
    Before OLSZEWSKI, TAMILIA and HESTER, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order denying the defendant hospital’s motion for a judgment notwithstanding the verdict and other post-trial relief. After a lengthy medical malpractice trial, a jury found the hospital (“PCOM”) 41% negligent in causing the death of Rachel Greer’s newborn child. We find that the trial court did not err in denying the relief and affirm.

While she was pregnant, Rachel Greer (“Rachel”) was under the care of Dr. Bryant. The doctor diagnosed Rachel as having a condition known as pre-eclampsia. Pre-eclampsia is characterized as a condition caused by high blood pressure in the mother which poses risk to an unborn child during the final trimester of pregnancy. Such risks manifest themselves in “fetal distress,” which is often identified by low or irregular fetal heartbeats. Once fetal distress is apparent, the doctors are alerted that immediate care for the child is necessary, and delivery is often necessary.

During the final months of her pregnancy, Rachel was admitted as an outpatient to PCOM on several occasions. Protocol in these situations dictates that the medical residents and interns of the hospital, physicians themselves, perform certain tests and communicate the results to the patient’s doctor. The doctor then advises the residents/interns how to proceed. In this case, the evidence established that Rachel began displaying symptoms of “fetal distress” on September 20, 1991. During her visit to PCOM on that date, the residents/interns administered tests which showed that the fetus suffered from “decelerations,” a periodic lowering of the heart rate. Although it is disputed whether the residents communicated this to Dr. Bryant, it is undisputed that Rachel was sent home and told to return on September 23.

During the September 23 visit, the residents diagnosed Rachel’s fetus as having “poor beat to beat variability.” Nonetheless, Rachel was again sent home, being advised to visit on September 27. On September 26, Rachel suffered from severe pains. She called PCOM’s emergency room employees, who told her that she should wait to be admitted until her appointment the next day. On that day, however, Rachel received a phone call from a PCOM employee cancel-ling her appointment due to inclement weather. Finally, at the insistence of her sister, Rachel was admitted to the University of Pennsylvania Hospital for delivery on September 27. The child was delivered with a condition known as “severe meconium aspiration.” In essence, the child inhaled its own fecal matter in útero. The matter filled the child’s lungs to the point where she could only muster a quiet whimper at birth. She unfortunately died of the condition several days later.

Rachel sued Dr. Bryant and PCOM individually and on her deceased daughter’s behalf. Dr. Bryant offered a settlement which Rachel accepted. The case went to trial against PCOM and a jury found PCOM 41% liable to Rachel. The crux of Rachel’s negligence claim is that she should not have been sent home on September 23. The child should have been delivered by Dr. Bryant on that date, given the symptoms revealed in the tests on the fetus. Rachel’s case against PCOM was based on her factual allegations that the residents did not communicate to Dr. Bryant the results of the pre-natal tests conducted on September 20 and 23. Alternatively, Rachel attempted to establish that even if the results of the tests were communicated to Dr. Bryant and Dr. Bryant insisted on sending Rachel home, the residents should have known that the baby was in danger. They furthermore should have sought Rachel’s admission to the hospital and the child’s delivery by reporting the incident to their superiors.

PCOM now claims that the trial court erred in denying a judgment n.o.v. in its favor because: (1) there was no evidence to establish that the residents did not communicate the test results to Dr. Bryant, and (2) the trial court allowed Rachel’s expert to testify beyond the fair scope of her report in rendering an opinion that the residents should have gone over Dr. Bryant’s head to seek delivery of the child. PCOM also argues that the trial judge erroneously admitted evidence of a “productivity factor” to determine the deceased infant’s earning capacity. Finally, PCOM claims that it was prejudiced by the trial judge’s inaccurate summary of the evidence during his instructions to the jury. We disagree with all of these arguments and affirm.

I. Was the evidence of PCOM’s negligence sufficient to withstand a motion for judgment n.o.v.?

PCOM argues that the trial judge should have granted its motion for a judgment notwithstanding the verdict. It argues that there was no competent evidence on which the jury could base its finding that PCOM’s employees failed to communicate test results to Dr. Bryant. We disagree.

A judgment notwithstanding the verdict should be granted only in a clear case where no two reasonable minds could fail to agree that the verdict was improper. Robertson v. Atlantic Richfield, 371 Pa.Super. 49, 537 A.2d 814, alloc. denied, 520 Pa. 590, 551 A.2d 216 (1987). On review, we must consider only the evidence which supports the verdict and give the verdict winner the benefit of any doubt and any inference deducible from the evidence. Id. We will reverse only if the trial court abused its discretion. Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984).

PCOM argues that the evidence conclusively establishes that its employees communicated all relevant information to Dr. Bryant. This argument rests on PCOM’s assertion that its residents “emphatically” testified that they called Dr. Bryant on many occasions. Also, PCOM cites Dr. Bryant’s testimony, which asserted that had the residents failed to contact him, he would have made an effort to contact the hospital. Since Dr. Bryant made no such effort, PCOM concludes, the residents must have provided the doctor with all critical information. Moreover, PCOM cites Dr. Bryant’s testimony that delivery of the child was a last resort and that “repositioning” the mother while she lay in bed might control the fetus’ heart rate. Dr. Bryant acknowledged that this “repositioning” did cure the fetus’ irregular heart rate on one occasion. Thus, PCOM argues that this establishes that the hospital and the doctor were in constant communication.

PCOM’s argument simply overlooks the fact that no one, either the residents or Dr. Bryant, could testify regarding the content of the phone conversations between PCOM’s employees and Dr. Bryant. Indeed, Dr. Bryant testified that he could not recall receiving any phone calls. R.R. 191A. Although a PCOM intern testified that she called Dr. Bryant, she could not recall the substance of the conversation. R.R. 732A. Moreover, a PCOM intern’s records acknowledged that she called Dr. Bryant on September 23, but she could not recall the conversation. R.R. 596A-597A. Clearly, it was then for the jury to consider the credibility of the witnesses and determine whether the critical information was communicated during the calls. Dr. Bryant testified that he would have ordered delivery of the child had he been informed of the fetus’ decelerated heart rate. R.R. 154A. This evidence •clearly allows the inference that the phone conversations between PCOM and Dr. Bryant did not disclose the severity of the fetus’ condition to him. The trial judge was required to accept that the jury made that inference when ruling on the judgment n.o.v. and we will not disturb his ruling.

Also, the evidence established only that Rachel was “repositioned” in an effort to control the fetus’ heart rate on September 20. R.R. 733-734A. Since many of the critical events occurred on September 23, the jury could have determined that PCOM’s employees’ crucial non-feasance occurred on that date. Again, we must assume that the jury drew this inference. We find no abuse of discretion. There were ample grounds on which the jury could have found PCOM negligent. II. Did the expert testify outside the fair scope of her report ?

PCOM argues next that plaintiff offered a “new theory” at trial. This theory attempted to establish that even if Dr. Bryant told PCOM’s employees that Rachel’s condition did not warrant delivery of the child, PCOM’s employees should have sought admission of Rachel on their own and arranged for the child’s delivery. PCOM argues that the only evidence supporting this theory was through the opinion testimony of Rachel’s expert. Since the expert’s report contained no such opinion, PCOM claims that it was unfairly surprised by this opinion at trial. Therefore, PCOM argues, the opinion should have been disallowed and the jury should not have been allowed to consider this new theory.

First, we note that in seeking a judgment n.o.v. on these grounds, PCOM is seeking the incorrect relief. “Judgment n.o.v. ... does not lie for correction of errors in admission or exclusion of evidence. Such errors are properly the subject of a motion for a new trial.” Hoffmaster v. Allegheny County, 121 Pa.Commw. 266, 273, 550 A.2d 1023 (1988) (citing Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259 (1970)). Our Supreme Court has held that only the evidence received, whether properly or erroneously admitted, may be considered when ruling on a motion for judgment n.o.v. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1960). Here, Rachel’s expert testified that it was below the standard of care for the residents of PCOM to send Rachel home on September 23, given the facts known to the residents at that time. R.R. 467A. Since the evidence established that the residents made no such effort, the jury could logically infer that the residents were negligent. The motion for judgment n.o.v. was properly denied.

PCOM does argue, albeit in the alternative, that it is entitled to a new trial. We therefore must consider whether the expert testimony was properly admitted. We find that it was.

The trial judge has wide discretion to allow the admission of expert testimony into evidence, and we will not reverse unless there has been a clear abuse of discretion. Bowser v. Lee Hospital, 399 Pa.Super. 332, 582 A.2d 369 (1990), alloc. denied, 527 Pa. 614, 590 A.2d 755 (1990). Rule 4003.5(c) of the Pennsylvania Rules of Civil Procedure provides that an expert witness may not testify on direct examination concerning matters which are either inconsistent with or go beyond the fair scope of matters testified to in discovery proceedings or included in a separate report. Id. We have stated that it is often a difficult task to discern whether an expert’s testimony exceeds the “fair” scope of her report. Wilkes-Barre Iron v. Pargas of Wilkes-Barre, 348 Pa.Super. 285, 502 A.2d 210 (1985). In Wilkes-Barre Iron, we concluded that while each case is unique, we must examine whether admission of an expert’s testimony will disserve the purpose of Rule 4003.5. The rule promotes disclosure of all relevant information to parties and prevents a party from being unfairly surprised by enabling him to prepare a meaningful response to the expert testimony. Id. at 289, 502 A.2d at 212. We cannot hold that PCOM was unfairly surprised by plaintiffs expert’s testimony.

Rachel proffered Dr. Mary Gabrielson as her expert medical witness. Dr. Gabrielson filed three reports during discovery, all of which are acknowledged by PCOM. Dr. Gabrielson testified at trial that in her opinion, if hospital personnel did not communicate the information regarding the test results to Dr. Bryant, the hospital’s conduct would be below the standard of care. This opinion was a nearly verbatim recitation of her -written report of January 22, 1991. R.R. pp. 22-23. Dr. Gabrielson also proffered at trial that an intern should have sought Rachel’s admission by consulting a hospital superior even if Dr. Bryant told the intern to send Rachel home. R.R. 468A. PCOM argues strenuously that this new “failure to override [Dr. Bryant’s possible orders to send Rachel home] theory” was not contained in the reports and that they were unfairly surprised by the opinion. We disagree.

In her report of January 12,1988, Dr. Gabrielson responded to questions posed by Rachel’s counsel. The report included the following questions:

3. Ms. Greer was sent to Osteopathic Hospital on 3 occasions for non-stress and contraction stress testing. On the second occasion, September 20, 1985, it was noted that the baby’s heart rate showed poor variability ... Could you explain the significance of this finding with regard to the' health and well-being of the fetus.
A. The episode of bradycardia observed on September 20 was a very ominous sign and very suggestive of cord compression probably resulting from olighydramnios. This would result in fetal distress with meconium passage and aspiration. It could also result in sudden intrauterine fetal death.
4. Once the fetal distress was detected, did the hospital act appropriately by sending Ms. Greer home?
A. No.
5. What measures, if any, should have been taken to ensure the health and well-being of the fetus?
A. Ms. Greer should have been admitted and delivered.

R.R. 12A-21A.

Dr. Gabrielson’s report clearly states that, in her opinion, the hospital employees should not have sent Rachel home after observing her condition on September 20. Her report does not contain any qualification of this opinion, but is couched in rather absolute language. Questions regarding whether the interns should have sent Rachel home even if Dr. Bryant asked the interns to do so are a fair corollary to her opinion. Indeed, it seems that upon reading the report, the natural response to Gabrielson’s assertion would be “was the hospital acting inappropriately even if Dr. Bryant wanted Rachel to be sent home?” Put another way, the essential question in this case is whether PCOM was negligent in sending Rachel home. The expert’s report opines that PCOM’s conduct in doing so was below the standard of care. It is only natural to seek a qualification of that statement. Therefore, the qualification of the statement is within the report’s “fair” scope. PCOM’s decision to send Rachel home was contemplated by the report and counsel should have anticipated that the “failure to override theory” was looming.

Since Dr. Gabrielson’s testimony was within the fair scope of her report, her testimony was permissible. The trial judge did not abuse his discretion.

III. Was the “productivity” factor implemented properly?

PCOM argues that the judge improperly allowed expert testimony which used a 1.1% “productivity factor” to calculate the deceased child’s potential earning capacity. PCOM claims that since the child was not old enough at her death to exhibit tangible objective factors that would demonstrate the child’s earning potential, the expert had no foundation on which to base his 1.1% figure. We disagree.

By now, it is well-settled that in order to determine lost wages vis-a-vis a plaintiffs potential earning capacity, the use of a productivity factor is proper to estimate a plaintiffs potential productivity increase. Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980). A “productivity factor” takes into account an individual’s ability to influence his rate of income earning power over time by considering objective criteria such as age, maturity, education, and skill. Id. at 573, 421 A.2d at 1033. The basis for sanctioning the use of a productivity factor is the progressive notion that while damages are never capable of precise mathematical computation, the inherently speculative nature of damages should not justify the exclusion of reliable economic theory from the jury’s consideration. Id. at 574-575, 421 A.2d at 1034. PCOM argues that the Supreme Court’s holding in Kaczkowski requires a “proper foundation” for the introduction of a productivity factor. Thus, since Rachel was unable to identify any of the objective criteria normally involved in a productivity analysis (ie., age, maturity, prior work experience, etc.) for her newborn child, no “proper” foundation had been laid for the factor. This argument is specious. We do not read Kaczkowski’s proper foundation requirement as one that must be rigidly applied. Rather, Kaczkowski is premised on the notion that although every victim is entitled to full compensation, calculation of damages is inherently speculative. Reliance on economic data is helpful in aiding the factfinder and reducing the amount of guesswork that naturally exists when determining damages. Thus, the “proper foundation” for the admission of a productivity factor can only be determined on a case by case basis, taking into account plaintiffivictim’s personal circumstances.

In this case, the economic expert calculated the newborn child’s 1.1% productivity factor based on the objective criteria demonstrated by the child’s mother. As the trial court noted, in a case where an infant is entitled to uncertain future loss damages, a reasonable basis with which to calculate the factor is with the mother’s objective criteria. The only alternative, precluding an infant from proving such damages in the context of a survival action brought by her parents, would ignore the economic reality that that child possessed potential earning capacity. Projecting that child’s productivity potential on a plane equal to that of her parent is certainly more “proper” than ignoring that potential altogether.

The trial judge did not abuse his discretion in allowing the economic expert to apply a productivity factor based on the deceased child’s mother’s experiences.

IV. Did the trial judge’s summary of the evidence prejudice the defendants? ■

PCOM argues last that the trial judge’s summary of the evidence was inaccurate and that it was prejudiced by his “slanted” mischaracterizations. We disagree.

A trial judge may summarize the evidence presented to a jury. Noecker v. Johns-Mansville, 355 Pa.Super. 463, 513 A.2d 1014 (1986). The trial judge must also caution the jury that they should not consider anything he says, for his characterization of the testimony is not evidence. This cautionary instruction may cure any potential prejudice caused by inconsistencies in the court’s summary. Id.

Our review of the trial judge’s instructions to the jury indicate that any prejudice that may have been caused by the alleged inconsistencies were cured by the court’s cautionary instructions. Indeed, the court exhaustively instructed the jury on no less than six occasions that they may not accept his recollection of the evidence as fact. The trial judge demonstrated ample caution.

The judgment is affirmed.


text:
    621 A.2d 1005
    Frank IAFRATE, Appellant, v. Pat HADESTY and Morning Call, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed Jan. 29, 1993.
    Reargument Denied April 8, 1993.

      Richard J. Orloski, Allentown, for appellant.
    Malcolm J. Gross, Allentown, for appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge:

In this action to recover damages for defamation, the trial court held that the plaintiff, Frank Iafrate, was a public figure and entered summary judgment in favor of Morning Call, Inc., the defendant newspaper, because plaintiff could not show that the newspaper had acted with malice. On appeal, the sole issue is whether the trial court properly determined that plaintiff was a public figure.

The defamation action is based on an article appearing in the Morning Call on June 19, 1990. The article discussed plans for a party to be held July 4th on a rural tract of land owned by Iafrate near Slatington, in Lehigh County. The party was intended to be for between 150 and 200 guests, was to be catered, and featured three bands. Quoted in the news article was another defendant, Pat Hadesty, a neighbor, who expressed her concerns about the party. The article was, in pertinent part, as follows:

“We’re talking traffic, garbage, drugs, who knows,” said a worried Pat Hadesty, whose property abuts Iafrate’s. “They’re calling it a private party, but its going to be a noise nuisance.”

These statements, Iafrate contends, were false and defamatory.

Iafrate is employed as a pilot by United Airlines. He resides in Slatington and is currently in the process of developing Valley View Estates, a 24 lot development of land in rural Lehigh County. His son, Frank, serves as the caretaker for the development and lives in a farmhouse on one of the lots. The son is a musician and uses the barn across the street from the farmhouse several times a week for rehearsals by his band. The band was planning to participate in the July 4th party. Iafrate intended to invite his neighbors to attend the party, but all guests were expected to buy individual tickets at a price of ten ($10.00) dollars to help defray the cost of the party. When Hadesty learned of the party, she called the Morning Call to express her concerns and to state her intent to seek township intervention. Apparently she exaggerated the number of guests anticipated, as well as the number of bands participating.

After the article had appeared in the Morning Call, Iafrate began to receive telephone calls from township officials. As a consequence thereof, he canceled the party. Thereafter, the Morning Call published additional stories, none of which are alleged to be defamatory. Iafrate has stipulated that he is unable to prove that the Morning Call acted with malice.

A summary judgment can properly be granted only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Dibble v. Security of America Life Insurance Co., 404 Pa.Super. 205, 207, 590 A.2d 352, 353 (1991). To establish a cause of action for defamation, the plaintiff must establish: “(1) the defamatory character of the communication; (2) its publication by the defendant; (3) a reference to the plaintiff; (4) a recipient’s understanding of the communication’s defamatory character and its application to plaintiff; (5) special harm resulting from the publication; and (6) abuse of any conditional privilege.” Smith v. Wagner, 403 Pa.Super. 316, 321, 588 A.2d 1308, 1311 (1991). See: 42 Pa.C.S. § 8343(a). See also: Marcone v. Penthouse Int’l Magazine, 754 F.2d 1072, 1077-1078 (3d Cir.1985), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985).

In New York Times v. Sullivan, 376 U.S. 254, 279-280, 84 S.Ct. 710, 726, 11 L.Ed.2d 686, 706 (1964) and Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111 (1967), the Supreme Court mandated that public officials and public figures must prove “actual malice” in order to recover damages in a defamation action against the media, that is, “that the defamatory statements were made with knowledge of their falsity or with reckless disregard of the truth.” Avins v. White, 627 F.2d 637, 646 (3d Cir.1980), cert. denied, 449 U.S. 982, 101 S.Ct. 398, 66 L.Ed.2d 244 (1980). Subsequently, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), cert. denied, 459 U.S. 1226, 103 S.Ct. 1233, 75 L.Ed.2d 467 (1983), the Court identified two classes of public figures:

In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.

Id. 418 U.S. at 351, 94 S.Ct. at 3013, 41 L.Ed.2d at 812.

A person may become a limited purpose public figure if he “thrust[s] himself into the vortex of the discussion of pressing public concerns.” Rosenblatt v. Baer, 383 U.S. 75, 86 n. 12, 86 S.Ct. 669, 676 n. 12, 15 L.Ed.2d 597, 606 n. 12 (1966). Such a person uses “purposeful activity” to thrust “his personality” into a “public controversy.” Curtis Publishing Co. v. Butts, supra, 388 U.S. at 155, 87 S.Ct. at 1991, 18 L.Ed.2d at 1111 (1967). He becomes a limited purpose public figure because he invites and merits “attention and comment.” Gertz v. Robert Welch, Inc., supra, 418 U.S. at 346, 94 S.Ct. at 3009, 41 L.Ed.2d at 808 (1974). A person may become a limited purpose public figure if he attempts to have, or realistically can be expected to have, a major impact on the resolution of a specific public dispute that has foreseeable and substantial ramifications for persons beyond its immediate participants. Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1292 (D.C.Cir.1980), cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). “A private individual,” however, “is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.” Wolston v. Reader’s Digest Assoc., 443 U.S. 157, 167, 99 S.Ct. 2701, 2707, 61 L.Ed.2d 450, 460 (1979).

It is the function of the court to ascertain in the first instance whether the plaintiff is a public or private figure. Smith v. A Pocono Country Place Property Owners Assoc., Inc., 686 F.Supp. 1053, 1056 (M.D.Pa.1987). “The classification of a plaintiff as a public or private figure is a question of law to be determined initially by the trial court and then carefully scrutinized by an appellate court.” Id., quoting Marcone v. Penthouse Int’l Magazine, supra at 1081 n. 4. See also: Wolston v. Reader’s Digest Assoc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979).

We agree with the trial court that Frank Iafrate was not a public figure for all purposes. After careful study, we conclude also that he was not a public figure for any limited purpose relevant to this action.

Mere newsworthiness alone does not create a public controversy. Marcone v. Penthouse Int’l Magazine for Men, supra, 754 F.2d at 1083.

A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. The Supreme Court has made clear that essentially private concerns or disagreements do not become public controversies simply because they attract attention.
To determine whether a controversy indeed existed ... the judge must examine whether persons actually were discussing some specific question. A general concern or interest will not suffice. The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment.... If the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy, (citations omitted)

Waldbaum v. Fairchild Publications, Inc., supra 627 F.2d at 1296-1297.

Appellant did not inject himself into an issue of public interest, concern or controversy. He did no more than make plans for a private party. The fact that these plans may have formed the basis for a neighbor’s ire or that the neighbor elected to call the newspaper and complain did not render appellant a public figure. As the court observed in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 591 (1st Cir.1980), “Gertz’s requirement that in order for [private] individuals ... to merit public figure status, they must ‘have thrust themselves to the forefront of particular public controversies’ [seems] to imply a pre-existing controversy.” Moreover, “those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 2688, 61 L.Ed.2d 411, 431 (1979).

Here, there was no public controversy whatsoever until after Hadesty had called the Morning Call and the newspaper published an article repeating her fears and concerns. The fact that Hadesty had not received an invitation to the party and may have learned of it by rumor or hearsay does not alone suggest a public issue or concern. Similarly, that neighbors had previously objected to the noise resulting from band practice in the barn, if such was the case, did not render appellant a public figure. Indeed, prior band rehearsals by appellant’s son were irrelevant to appellant’s status as a public figure with respect to the party which he planned as a Fourth of July celebration.

The record is also clear that there was no public debate prior to the appearance of the newspaper’s story. Appellant had not been contacted by public officials about the party and had received no public complaints about the planned party until after Hadesty complained and the Morning Call published her complaints. Clearly, if there was any dispute in this case, the dispute was private and not public. It did not have any consequences beyond those persons in the immediate neighborhood where Iafrate lived.

Similarly, Iafrate did not become a public figure because the Morning Call published statements, made in response to questions asked by the Call’s reporter, by which Iafrate defended himself against his neighbor’s complaints. The newspaper could not, by its handling of the story, create a public issue where there existed, in fact, only a private dispute between neighbors. By speaking with the Call’s reporter, Iafrate did not thrust himself into a public controversy or make himself a public figure. Any other result would make public figures of all persons requested by the media to answer inquiries or make statements on matters deemed newsworthy by the media. This is not the law. See: Waldbaum v. Fairchild Publications, supra at 1298 n. 31 (“responding to press inquiries or attempting to reply to comments on oneself through the media does not necessarily mean that a person is attempting to play a significant role in resolving a controversy.”).

In Avins v. White, supra, the Court of Appeals for the Third Circuit offered as reason for the policy granting public figures less protection against false statements than private persons the fact that public figures have voluntarily chosen to involve themselves in public controversy and have thereby assumed the risk of increased injury from defamatory remarks. They are also more resilient to public criticism and generally have greater access to channels of effective communication which can counteract false assertions by the media. Here, appellant was not a public figure. He did not have available other channels of defending himself against published accusations. He did not become a public figure merely because during an interview requested by a Call reporter he rebutted the accusations which had been made by his neighbor. Appellant did not thereby thrust himself into a public debate or choose to involve himself in public controversy. He was not made a public figure merely because he was the subject of a neighbor’s private complaint or because he agreed to be interviewed by and was quoted by a reporter for the Morning Call in response thereto.

Finally, appellant was not a public figure merely because he was attempting, at or about the same time, to develop and sell lots from the land which he owned. Any other rule would make public figures of all who engaged in business and commerce.

We do not decide that appellant was defamed or that he should be entitled to recover in this action. We hold only that he was not a public figure. The trial court erred, therefore, when it entered summary judgment in favor of the newspaper merely because appellant conceded that he could not prove malice.

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