author: HOFFMAN, Judge:

text:
    542 A.2d 546
    COMMONWEALTH of Pennsylvania v. Romain KNAPP, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1987.
    Filed May 2, 1988.

      Raymond E. Ginn, Jr., Wellsboro, for appellant.
    James E. Carlson, District Attorney, Wellsboro, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence for involuntary deviate sexual intercourse, statutory rape, corruption of the morals of a minor, and conspiracy. Appellant contends that the trial court erred in (1) precluding a defense witness from testifying by ruling that, if the witness testified, she would be subject to cross-examination concerning “other crimes” committed by appellant; (2) denying appellant’s pro se motion to remove defense counsel; and (3) denying appellant’s motion for the trial judge to recuse himself. In addition, appellant contends that trial counsel was ineffective for failing to (1) object to the testimony of the child victim, who appellant alleges was incompetent to testify; (2) comply with the court’s order directing counsel to present evidence in support of appellant’s motion to change venue; (3) object to the Commonwealth’s introduction of a prior consonant statement made by the victim; (4) object to the testimony of a witness who testified in violation of a sequestration order; and (5) object to references made by the victim regarding appellant’s prior criminal activity. For the reasons that follow, we vacate the judgment of sentence and remand the case to the trial court for an evidentiary hearing on appellant’s final ineffectiveness claim.

On May 8, 1986, appellant was arrested and charged with the above-stated offenses. The charges arose from appellant’s alleged sexual abuse of his girlfriend’s twelve-year-old son. On December 9, 1986, following a jury trial, appellant was found guilty of all charges. Post-trial motions were filed and denied. On April 29, 1987, appellant was sentenced to an eight-to-sixteen-year term of imprisonment on the involuntary deviate sexual intercourse charge, to run consecutively to a sentence appellant was serving for a prior conviction. On the same day, trial counsel was granted leave to withdraw, and present counsel was appointed. This appeal followed.

I. TRIAL ERRORS

Appellant first contends that the trial court erred in precluding a defense witness from testifying by ruling that, if the witness testified, the Commonwealth could cross-examine her with regard to “other crimes” allegedly committed by appellant. At trial, appellant called his wife, Helen Knapp, to the stand. The Commonwealth then requested an offer of proof. During the side-bar discussion on the offer, the court noted that, if Helen Knapp were called to the stand, she might be subject to cross examination with regard to her awareness of attempts made by appellant to convince the victim to commit perjury. N.T. December 9, 1986 at 48. Appellant maintains that “[a]s a result of the trial court’s indication in this regard, the defense decided not to call Mrs. Knapp to the stand.” Appellant further notes that he has never been convicted of subornation of perjury, and thus the court’s ruling that it would allow cross-examination on this issue was erroneous.

Essential to appellant’s argument is an assumption that evidence of his attempt to have the victim perjure himself is relevant and may be offered only if that conduct resulted in a conviction. We disagree with this proposition. In Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972), our Supreme Court noted that

It is undoubtedly true that evidence of a party’s attempt to embrace a juror is admissible to show his unwillingness to rely on the soundness of his cause. Subornation of a witness and proof offlight as an admission of guilt are analogues. Power v. Grogan, 232 Pa. 387, 399, 81 A. 416 (1911); McHugh v. McHugh, 186 Pa. 197, 203, 40 A. 410 (1898); Commonwealth v. Brown, 23 Pa. Super. 470, 502 (1903).

Id., 447 Pa. at 339, 290 A.2d at 250 (emphasis supplied). See also Commonwealth v. Brooks, 352 Pa.Super. 394, 405, 508 A.2d 316, 322 (1986) (court did not err in admitting into evidence letter written by defendant where letter was relevant because it “relate[d] to an issue in the truth determining process; i.e., the guilt or innocence of appellant. The letter bears directly on this question and suggests that the writer was attempting to hide his involvement in the crime by compelling a witness to change her testimony.”). Because evidence relating to appellant’s attempt to have the victim commit perjury was admissible, we conclude that the trial court did not err in ruling that appellant’s wife might be subject to cross-examination in this regard if she took the stand in appellant’s behalf.

Appellant next contends that the trial court erred in denying his pre-trial motion to remove defense counsel. The decision whether to appoint new counsel rests in the discretion of the trial court. See Commonwealth v. Tyler, 468 Pa. 193, 198, 360 A.2d 617, 619 (1976); Commonwealth v. Bell, 328 Pa.Super. 35, 47, 476 A.2d 439, 446 (1984). Although an indigent defendant is entitled to free counsel, he or she is not entitled to free counsel of his or her choice, Commonwealth v. Tyler, supra 468 Pa. at 197, 360 A.2d at 619, and appointed counsel may be rejected only “for good cause shown.” Id. (quoting Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d 805, 807 (1968)); Commonwealth v. Bell, supra. A “mere dissatisfaction” with appointed counsel is inadequate to establish “good cause shown.” Commonwealth v. Bell, supra. If the defendant can show that irreconcilable differences exist between counsel and client, however, a trial court’s refusal to appoint new counsel is an abuse of discretion and the defendant is entitled to a new trial. Commonwealth v. Tyler, supra 468 Pa. at 197-98, 360 A.2d at 619; Commonwealth v. Bell, supra.

Here, appellant does not allege that irreconcilable differences existed between himself and counsel. Instead, appellant alleges only that “[he] and his counsel had a relationship which was ‘strained.’ ” Brief for Appellant at 16. We cannot conclude that such a bald allegation is tantamount to “good cause shown.” Cf. Commonwealth v. Johnson, 309 Pa.Super. 117, 126, 128-29, 454 A.2d 1111, 1115, 1116-17 (1983) (court did not abuse discretion in denying request for new counsel where defendant asserted only that he lacked confidence in counsel). Accordingly, we hold that the trial court did not abuse its discretion in denying appellant’s motion to remove trial counsel.

Appellant next contends that the trial court erred in denying his motion for the trial judge to recuse himself.

The party who asserts that a trial judge must be disqualified bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Furthermore, the “decision by a judge against whom a plea of prejudice is made will not be disturbed except for an abuse of discretion.” Commonwealth v. Kane, 199 Pa.Super.Ct. 89, 91, 184 A.2d 405, 406 (1962).
In general, a “trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.” Commonwealth v. Goodman, 454 Pa. 358, 361, 311 A.2d 652, 654 (1973) (quoting from A.B.A. Standards Relating to the Function of the Trial Judge § 1.7)____

Commonwealth v. Darush, 501 Pa. 15, 21, 459 A.2d 727, 731 (1983). See also Municipal Pub. Inc. v. Snyder, 322 Pa.Super. 464, 481, 469 A.2d 1084, 1092 (1983).

Here, appellant produced no evidence that would tend to establish bias, prejudice, or unfairness necessitating recusal. As the trial court noted in its Opinion in response to appellant’s motion,

A hearing was held August 19, 1986 on the omnibus pre-trial motions filed by counsel and by the defendant pro se.
The defendant filed a motion to recuse the Judge____ At the hearing, the defendant gave as reasons for recusal that the Judge had made statements regarding the defendant. The defendant could not be specific about the statements. It appears that the defendant recalls the Court, when it was District Attorney, made a statement that he ran from me. The defendant was charged with a motor vehicle offense for leaving the scene of an accident in 1977. The Court may have made the statement in arguing the matter to the jury.
The petition states that the Court made degrading statements regarding the defendant. The only statement the Court recalls regarding the defendant are [sic] a matter of record in sentencing at Number 266 Criminal Action, 1980 and Number 265 Criminal Action, 1980.

Trial Court Opinion, August 19, 1986 at 1 (emphasis supplied). On appeal, appellant again fails to specify his reasons for recusal. Appellant merely reiterates that “the trial court, both as District Attorney and presiding Judge has had previous contact with [appellant].” Brief for Appellant at 17. This type of argument was specifically rejected by our Supreme Court in Commonwealth v. Darush, supra:

[W]e have never held and are unwilling to adopt a per se rule that a judge who had participated in the prosecution of a defendant may never preside as judge in future unrelated cases involving that defendant. Absent some showing of prejudgment or bias we will not assume a trial court would not be able to provide a defendant a fair trial based solely on prosecutorial participation.

501 Pa. at 22, 459 A.2d at 731. Because we cannot assume bias or prejudice based upon the court’s prior contacts with appellant, and because appellant has failed to demonstrate in what respect the court was actually biased or prejudiced against him, we conclude that the trial court did not err in refusing appellant’s recusal motion.

II. INEFFECTIVENESS

Appellant next raises five claims of ineffective assistance of trial counsel. The determination whether counsel rendered ineffective assistance is arrived at through a two-prong test. First, we must ascertain whether the issue underlying the claim of ineffectiveness has arguable merit. See Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). This requirement is based upon the principle that we will not find counsel ineffective for failing to pursue a frivolous claim or strategy. See Commonwealth v. Parker, 503 Pa. 336, 341, 469 A.2d 582, 584 (1983). Second, if appellant’s claim does have arguable merit, we must determine whether the “course chosen by counsel had some reasonable basis designed to serve the best interests of the client.” Commonwealth v. Buehl, supra (citing Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967)). If our review of the record reveals that counsel was ineffective, we then must determine whether appellant has demonstrated that counsel’s ineffectiveness worked to his or her prejudice. See Commonwealth v. Pierce, 515 Pa. 153, 157-59, 527 A.2d 973, 975 (1987). To determine whether appellant was prejudiced, our Supreme Court adopted the test announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Commonwealth v. Pierce, supra 515 Pa. at 159-63, 527 A.2d at 976-77. Under Strickland, to prove that counsel’s ineffectiveness resulted in prejudice, an appellant must show the the error was “so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.” Strickland v. Washington, supra 466 U.S. at 687, 104 S.Ct. at 2064.

In this analysis, counsel is presumed to be effective, Commonwealth v. Norris, 305 Pa.Super. 206, 210, 451 A.2d 494, 496 (1982), and appellant bears the burden of establishing that trial counsel was ineffective. Commonwealth v. Jones, 298 Pa.Super. 199, 205, 444 A.2d 729, 732 (1982). Moreover, in Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981) our Supreme Court noted that,

Assertions of ineffectiveness in a vacuum cannot be ineffectiveness. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.

Id., 492 Pa. at 563, 424 A.2d at 1335.

Appellant first contends that the child victim was incompetent to testify, and that trial counsel was ineffective for failing to object to the testimony of this witness. The competency of a witness is a matter for the trial court to determine, and the court’s determination will not be overturned absent an abuse of discretion. Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982); Commonwealth v. Gaerttner, 335 Pa.Super. 203, 214, 484 A.2d 92, 98 (1984).

In order to be testimonially competent, a witness must have the ability to (1) perceive the event with a substantial degree of accuracy, (2) remember it and (3) communicate about it intelligibly (4) mindful of his duty to tell the truth under oath.

Commonwealth v. Goldblum, supra. See also Commonwealth v. Hall, 267 Pa.Super. 204, 209, 406 A.2d 765, 768 (1979).

Appellant focuses his attack here on the fourth criterion listed above, “which we have also described as ‘the moral responsibility to be truthful.’ ” Commonwealth v. Hall, supra, 267 Pa.Superior Ct. at 209-10, 406 A.2d at 768 (quoting Commonwealth v. Mangello, 250 Pa.Super. 202, 203, 378 A.2d 897, 898 (1977)). Appellant maintains that the victim was incompetent to testify because he “could not understand the meaning of the oath nor the distinction between a truth and a lie.” We disagree. In Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978), we noted that,

There is more to a child’s consciousness of the duty to speak the truth than being able to give a clear example of a lie or to understand the concept of an “oath.” In fact, the trial judge’s opportunity to observe the demeanor, alertness, thoughtfulness, and sincerity of a child witness may be more informative than the answers the child gives to questions such as “What is a lie?” and “What will happen to you if you tell a lie?”

Id., 258 Pa.Superior Ct. at 143, 392 A.2d at 725 (citation omitted). See also Commonwealth v. Short, 278 Pa.Super. 581, 588, 420 A.2d 694, 697 (1980).

Here, the child witness, in response to questioning by the prosecutor regarding his responsibility to tell the truth, testified as follows:

Q. All right. Now, Jonathan, just a minute ago, or a moment ago, you were over in front of Mr. Clark and you raised your right hand and you swore to tell the truth. You took an oath. Do you understand what that oath means?
A. No.
Q. You don’t?
A. No.
Q. What do you think it means? Do you remember what Mr. Clark said to you? Do you recall what he said to you, Jonathan? Do you recall swearing to tell the truth?
A. Yes.
Q. Okay. What is the truth to you? Can you tell me what the truth is to you? Can you tell me that?
A. (Shakes head no)
Q. You can’t? Can you tell me the difference between the truth and a lie? Do you know the difference?
A. (Shakes head no)
Q. You don’t know the difference? What if you told your mother a lie? What would that be? Could you tell me that?
A. (Shakes head no)
Q. You can’t tell me that? Let me ask you this. If I told you that it was snowing like crazy outside, would that be a truth or would that be a lie?
A. Truth.
Q. Right now?
A. Oh, no.
Q. If I told you it was 80 degrees out, would that be the truth, or would that be a lie?
A. Alie.
Q. If I told you that my tie was yellow, would that be the truth or would that be a lie?
A. That’s a lie.
Q. If I told you that the Judge wore glasses, would that be the truth or would that be a lie?
A. Truth.
Q. Now, a minute ago you just swore, you placed your hand on the Bible and swore to tell the truth. Do you understand that?
A. Yeh.
Q. Do you understand that that means you aren’t going to lie?
A. Yeh.
Q. What would happen to you if you lied?
A. You get punished for it.
Q. You get punished for it. Do you know how you would get punished if you lied?
Did your mother ever punish you if you lied?
A. Yeh, sometimes.
Q. What would she do to you if she caught you l[y]ing?
A. She put soap in my mouth and stuff like that.
Q. Put soap in your mouth and stuff like that. Did she ever spank your bottom?
A. Yeh.
Q. Do you understand that we are here today for you to tell the truth? Do you understand that?
A. Yeh.
Q. Do you understand that if you don’t tell the truth, you could be in very serious trouble?
A. Yeh.
Q. Do you promise to tell the truth?
A. Yeh.
Q. Do you, the Bible that you just put your hand on, do you know why you put your hand on the Bible? A. No.
Q. Do you understand that God will also punish you if you lie?
A. Yeh.
Q. Did anybody ever teach you that when you were growing up?
A. We went to Sunday School and Church.
Q. Did you? Okay. So you know something about God then?
A. Yeh.
Q. Do you understand that if you lied, you would be punished by not only man but by God also?
A. Yeh.

N.T. December 9, 1986 at 9-11. This testimony reveals that, although the victim was unable to define the word “truth”, or to articulate the distinction between a “truth” and a “lie” as a philosophical matter, he nevertheless was able to recognize and appreciate the distinction when given examples by the prosecutor. Moreover, the victim indicated that he knew that, if he did not tell the truth, there was a possibility that he would be punished. On this record, we conclude that the child witness exhibited a sufficient awareness of his moral responsibility to testify truthfully. See Commonwealth v. Gaerttner, supra; Commonwealth v. Bailey, 322 Pa.Super. 249, 469 A.2d 604 (1983); Commonwealth v. Short, supra. Because the witness was competent to testify, appellant’s claim that trial counsel was ineffective for failing to object to the testimony lacks arguable merit, and appellant is not entitled to relief on this ground.

Appellant next contends that trial counsel was ineffective for failing to present evidence in support of appellant’s pro se motion to change venue. This contention is meritless. Prior to trial, appellant filed a series of pro se motions, including a motion to change venue. In disposing of appellant’s venue motion, the trial court noted that,

The defendant provided the Court with no testimony which would cause the Court to enter [grant?] such a motion. The Court shall direct counsel to submit to the Court an affidavit from the newspaper and the radio station as to any news releases. The Court is unaware of any publicity in this matter. Although the defendant believes he is notorious, it is the opinion of the Court that very few citizens of Tioga County would recognize the defendant’s name or know anything about his activities.

Trial Court Opinion, August 19, 1986 at 2. The court then issued an order stating that “The motion for change of venue or venire is hereby denied. The defense counsel is directed to present what evidence it may have as to pre-trial publicity.”

On appeal, appellant submits that trial counsel failed to comply with the court’s order and, therefore, was ineffective. Appellant, however, neither indicates the type or extent of the pre-trial publicity that allegedly existed, nor does he argue in what respect the publicity was prejudicial. Indeed, appellant has not offered to prove any facts that would support a claim that pre-trial publicity either existed or was prejudicial. As we have noted above, counsel cannot be found ineffective in a vacuum, see Commonwealth v. Pettus, supra, and boilerplate allegations such as these are insufficient to warrant a remand for a hearing on the claim. Id. Accordingly, we must conclude that appellant’s claim that counsel was ineffective for failing to pursue the venue claim does not possess arguable merit.

Appellant next contends that trial counsel was ineffective for failing to object to the Commonwealth’s introduction of prior consonant statements made by the victim. At trial, the Commonwealth called two Children’s Services caseworkers to the stand to corroborate the victim’s testimony. Each caseworker testified with regard to statements that the victim had made during the course of the agency’s investigation; the statements related to sexual acts allegedly performed upon the victim by appellant. The statements that these caseworkers attributed to the victim were consistent with the victim’s trial testimony. Each caseworker also testified that the victim’s version of events remained consistent throughout the investigation. Appellant maintains that the testimony of these caseworkers, relating prior consonant statements made by the victim, was clearly inadmissible, and that trial counsel was ineffective for failing to object to the testimony. We disagree. Commonwealth v. Billig, 264 Pa.Super. 199, 203, 399 A.2d 735, 737 (1979) (emphasis supplied). See also Commonwealth v. Cruz, 489 Pa. 559, 566, 414 A.2d 1032, 1036 (1980).

Ordinarily a witness’ prior statement is not admissible to corroborate or substantiate present testimony. However, as an exception to the hearsay rule it is admissible as a prior consonant statement if it is alleged the present testimony is recently fabricated or that the witness is testifying from corrupt motives. Commonwealth v. Ravenell, 448 Pa. 162, 169, 292 A.2d 365 (1972). It is admissible not as to the truth of the stated facts, but solely to bolster credibility. Commonwealth v. Martin, 124 Pa.Super. 293, 188 A. 407 (1936)....

Here, the victim was the first witness to testify at trial. On cross-examination, the following exchange occurred between the victim and appellant’s trial counsel:

Q. Jonathan, this isn’t the first time you have testified in this court room is it?
A. No. It was one time before.
Q. And you have testified before that this did not happen, didn’t you?
A. Yeh. Because they threatened me about killing my Dad.
Q. You were under oath at that time also, weren’t you? You took an oath and swore to tell the truth?
A. Yeh.
Q. And your testimony is now that you lied at that time, is that right?
A. Yeh.
Q. You had told a number of different people that Romain [appellant] never abused you and never touched you, didn’t you?
A. Yeh.
Q. You wrote letters telling people that that didn’t happen, didn’t you?
A. Yeh. Because Mom made me.
Q. How many times did you talk to Jill Maier [one of the Children’s Services Caseworkers] before the time you told her that Romain had actually touched you, and done these things to you?
A. A couple, because Mom was standing there.
Q. She also talked to you at school before, hadn’t she? Just you and Jill?
A. Once.
Q. And you told her then that nothing was happening? Didn’t you? Nothing happened?
A. Yeh.
Q. Your testimony today, you have talked to a number of people about what you were going to say, didn’t you? Did anyone tell you what to say today? A. No.
Q. Did you talk to Mr. Carlson [the prosecutor] before today about what you were going to testify about? A. Yeh.
Q. Did you talk to Jill Maier about it?
A. Jill Maier ain’t here right now.
Q. She is not here right now?
A. No.
Q. Who else did you talk to about what you were going to say in court today?
A. Just Carl.
Q. Mr. Carlson?
A. Yeh.
Q. The District Attorney? The man over here?
A. Yes.
Q. After you told Jill these things that you have just testified to, do you recall talking to your Mom and telling your Mom it was all a lie?
A. No.
Q. Do you remember telling other people that it was a lie, that you were just doing what Jill told you to say?
A. Jill didn’t tell me anything to say.

N.T. December 9, 1986 at 24-25. After this cross-examination, the Commonwealth called the two Children’s Services caseworkers.

The obvious thrust of the cross examination excerpted above was to suggest that the victim had recently fabricated his trial testimony. By advancing a recent fabrication claim, trial counsel opened the door for the Commonwealth to bolster the victim’s credibility through the introduction of testimony—like that of the two Children’s Services caseworkers—that would tend to rebut the inference of recent fabrication, and thereby bolster the victim’s credibility. See Commonwealth v. Cruz, supra; Commonwealth v. Billig, supra. Because the prior consonant statements at issue here were admissible, appellant’s claim that trial counsel was ineffective for failing to object to their introduction does not possess arguable merit.

Appellant next contends that trial counsel was ineffective for failing to object to the testimony of a witness who testified in violation of a sequestration order. “The decision of whether or not to sequester a witness is within the province of the trial judge and, absent a clear abuse of discretion, will not be reversed.” Commonwealth v. Albrecht, 510 Pa. 603, 619, 511 A.2d 764, 772 (1986). “ ‘The purpose of sequestration of witnesses is to reduce the possibility that a witness may, from what he hears in the courtroom, improperly mold his testimony to fit some plan not riveted to the standards of truth.’ ” Commonwealth v. Fawcett, 297 Pa.Super. 379, 382, 443 A.2d 1172, 1173-74 (1982) (quoting Commonwealth v. Smith, 424 Pa. 9, 14, 225 A.2d 691, 694 (1967)).

Here, at the beginning of trial, the court granted, over appellant’s objection, a Commonwealth motion to sequester all witnesses. N.T. December 9, 1986 at 8. Notwithstanding this sequestration order, the Commonwealth called as a rebuttal witness the victim’s grandmother, Eugenia Farnham, who had been present in court during the testimony of prior witnesses. Id. at 52. Appellant’s trial counsel did not object to Mrs. Farnham’s testimony.

Although it appears that Mrs. Farnham testified in violation of the sequestration order, appellant does not allege in what respect Mrs. Farnham’s presence in the courtroom improperly influenced her testimony. Indeed, appellant does not identify any prejudice that resulted from the violation of the sequestration order. Moreover, we note that the sequestration order was granted not for appellant’s benefit, but at the Commonwealth’s request, and to ensure that appellant’s witnesses did not “improperly mold” their testimony in an untruthfull manner. The reason for the sequestration order was explained as follows:

BY [THE PROSECUTOR]: The Commonwealth at this time would move to sequester all witnesses.
BY THE COURT: All right.
BY [APPELLANT’S COUNSEL]: I don’t think it’s necessary in this case. Particularly since all of these people have testified at numerous other trials here, and each knows what each other will testify to.
BY [THE PROSECUTOR]: The Commonwealth’s witnesses have been. But not the defense witnesses.
BY THE COURT: He is requesting it because of this.

Id. at 8. Because appellant has failed to allege facts that would tend to show that the violation of the sequestration order was prejudicial to him, we must conclude that an objection to Mrs. Farnham’s testimony would have been baseless. See, e.g., Commonwealth v. Albrecht, supra 510 Pa. at 620, 511 A.2d at 773 (defendant not entitled to relief absent showing of specific damage occurring as result of violation of sequestration order); Commonwealth v. Fawcett, supra 297 Pa.Super. at 383, 443 A.2d at 1174 (in absence of prejudice to defendant, no abuse of discretion will be found in trial court’s ruling on sequestration issue). Accordingly, appellant’s contention that trial counsel was ineffective for failing to raise such an objection does not possess arguable merit.

Appellant finally contends that trial counsel was ineffective for failing to object to the Commonwealth’s introduction of evidence concerning prior crimes committed by appellant. It is well-established in this Commonwealth that reference to prior criminal activity of the accused, either expressly or by reasonable implication, is impermissi-

le. Commonwealth v. Percell, 499 Pa. 589, 592, 454 A.2d 542, 544 (1982); Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972); Commonwealth v. Green, 351 Pa.Super. 170, 176, 505 A.2d 321, 325 (1986).

The purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually strip him of the presumption of innocence.

Commonwealth v. Allen, supra 448 Pa. at 182, 292 A.2d at 375 (quoting Commonwealth v. Trowery, 211 Pa.Super. 171, 173-74, 235 A.2d 171, 172 (1967)). See also Commonwealth v. Carroll, 275 Pa.Super. 241, 244, 418 A.2d 702, 704 (1980); Commonwealth v. Durant, 268 Pa.Super. 191, 194, 407 A.2d 1311, 1312 (1979). When such a reference is made, the operative question becomes whether the jury could reasonably infer from the facts presented that the accused engaged in prior criminal activity. Commonwealth v. Groce, 452 Pa. 15, 19-20, 303 A.2d 917, 919 (1973) cert. denied 414 U.S. 975, 94 S.Ct. 290, 38 L.Ed.2d 219 (1973), If the jury can reasonably make such an inference, then prejudicial error has been committed and a new trial is warranted. Id., 452 Pa. at 20, 303 A.2d at 920. See also Commonwealth v. Allen, supra.

Here, at trial, the victim testified on direct examination as follows:

Q. Johnathan, do you like Romain [appellant]?
A. Not now.
Q. Did you like him at one time?
A. Yeh. When he did good stuff.
Q. Why don’t you like him now?
A. Because he did it to me and stuff like that. And then he told me he did it to other kids. Because other guys did it to him when he was little.
Q. What’s this now?
A. Other guys did it to him when he was little. And he said he run out of sperm so he does it to kids. He did it with other kids too.
Q. Who told you that?
A. Romain.
Q. When did he tell you that?
A. One day down in the cellar.

N.T. December 9, 1986 at 22-23. Appellant’s trial counsel failed to object to this line of questioning.

The testimony of the victim clearly makes reference to prior criminal activity by appellant. More specifically, statements that appellant “did it to other kids” give rise to an inference that appellant engaged in other sexual assaults on children. Accordingly, we conclude that appellant’s claim that trial counsel was ineffective for failing to object to this questioning is meritorious.

Moreover, a review of the record convinces us that counsel’s failure to object worked to appellant’s prejudice, and was serious enough to raise a question about the reliability of the verdict. The victim was the primary Commonwealth witness, and the only eyewitness to the sexual assaults in question. In light of this, evidence that the accused participated in similar activity in the past is particularly prejudicial, as it could provide the jury with an independent reason to credit the victim’s otherwise uncorroborated account of the assaults. Thus, there existed a danger that the jury concluded that appellant was likely to have committed the instant assault simply because he had committed similar offenses in the past. Such a danger improperly strips the accused of the presumption of innocence, see Commonwealth v. Allen, supra, and permits the accused to be convicted not on the basis of evidence related to the charge at issue, but on evidence of past conduct. We therefore conclude that appellant was prejudiced by his counsel’s failure to object to the testimony.

Our inquiry does not end here, however, because there has been no evidentiary hearing on appellant’s ineffective assistance of counsel claims. Accordingly, trial counsel has not had an opportunity to explain whether her decision not to object to this testimony had a reasonable basis designed to effectuate her client’s best interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 605, 235 A.2d 349, 353 (1967). Although it is unlikely that a reasonable basis exists for counsel’s inaction, “we must consider that possibility.” Commonwealth v. Gray, 339 Pa.Super. 385, 390, 489 A.2d 213, 216 (1985). In such circumstances, rather than finding counsel ineffective now and remanding for a new trial, the “better course” is to remand the case for an evidentiary hearing at which counsel will have an opportunity to explain the reasons for the course chosen. See Commonwealth v. Spotts, 341 Pa.Super. 31, 36, 491 A.2d 132, 135 (1985). See also Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976); Commonwealth v. Gray, supra.

For the foregoing reasons, we vacate the judgment of sentence and remand the case to the trial court for a hearing to determine whether trial counsel had a reasonable basis for failing to object to the introduction of testimony regarding appellant’s prior criminal activity. If the trial court finds that no reasonable basis exists for counsel’s actions, a new trial must be granted. Otherwise, the judgment of sentence shall be reinstated.

Judgment of sentence vacated and case remanded for evidentiary hearing on counsel’s effectiveness. Jurisdiction is relinquished.

      . Appellant raises several other ineffective assistance of counsel claims in a pro se brief that was filed with counsel’s brief. Because appellant is represented by counsel, we will not address the pro se arguments. See Commonwealth v. Henry, 341 Pa.Super. 146, 150 n. 2, 491 A.2d 193, 195 n. 2 (1985); Commonwealth v. Moore, 321 Pa.Super. 1, 9-10 n. 4, 467 A.2d 862, 866-67 n. 4 (1983).

      . On the remaining charges, appellant was sentenced to terms of imprisonment of two-and-one-half-to-five-years for statutory rape, one-to-two-years for corruption of the morals of a minor, and two- and-one-half-to-five-years for conspiracy. These terms were to be served concurrently to the sentence imposed for involuntary deviate sexual intercourse.

      . We note that, even if the court erred in determining that this evidence was admissible, appellant has made no showing that he was prejudiced by his wife’s failure to testify. Indeed, a review of the side-bar discussion on the offer of proof reveals that trial counsel recognized that Mrs. Knapp’s testimony was not helpful:
      BY MISS WALRATH [appellant’s counsel]: I have been ordered by my client to get her [Mrs. Knapp] on the stand. My client is indicating he wants her on the stand.
      BY THE COURT: All right, if he insists, all right. It’s against your advice? Is that correct?
      BY MISS WALRATH: Right. My advice is not to call her. That she has nothing to offer.
      N.T. December 9, 1986 at 48.

      . Appellant nevertheless maintains that he is entitled to relief under the standard announced in Commonwealth v. Rimmel, 221 Pa.Super. 84, 289 A.2d 116 (1972). In Rimmel, we granted a new trial based on our finding that a colloquy conducted of two young girls, aged seven and eight, was inadequate to establish competency. During that colloquy, the witnesses, in response to questions regarding the duty of truthfulness, responded only that they knew they would be "hollered at” or "beaten" if they did not tell the truth. Id., 221 Pa.Superior Ct. at 86-87 & nn. 1 & 2, 289 A.2d at 117-18 & nn. 1 & 2. Moreover, we note that Rimmel has since been criticized and confined to its facts. See

        Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977). See also Commonwealth v. Bailey, supra; Commonwealth v. Short, supra; Commonwealth v. Hall, supra. Rimmel, however, is distinguishable on its facts from the case at bar. As we noted in Short, in Rimmel “[t]here was no further attempt to elicit the girls’ conception of moral responsibility or divine retribution nor of their comprehension of the difference between truth and falsehood.” 278 Pa.Super. at 589, 420 A.2d at 698. Here, as we have noted in the text above, the child witness did indicate his ability to distinguish between truth and falsehood, and did indicate his awareness of the possibility of divine moral retribution should he tell a lie.

      . We note that in his brief on appeal, appellant realizes the weakness of this claim, as he states that "quite frankly, we would submit that the record is somewhat deficient to justify a change of venue or venire under the [appropriate] test." Brief for Appellant at 16.

      . We note that appellant does not claim that trial counsel was ineffective for questioning the victim with regard to his prior statements, and thus raising the recent fabrication theory that allowed for the introduction of the victim’s prior consonant statements.

      . In a related argument, appellant contends that trial counsel was ineffective for failing to object to the Commonwealth’s repeatedly asking the victim whether he was telling the truth. Appellant maintains that this questioning, which occurred on direct examination, was designed to "rehabilitate and reinforce” the victim’s testimony, even though the victim had not yet been cross examined. Appellant has cited no authority in support of his assertion that this line of questioning was inappropriate. Moreover, we note that when, as here, a witness is under fourteen years of age, the court must make a finding with regard to that witness’s competency to testify. Commonwealth v. Gaerttner, 335 Pa.Super. 203, 214, 484 A.2d 92, 98 (1984). As we have noted in the text above, the trial court, in determining whether a witness is competent, must find that he or she is aware of the duty to tell the truth. See, e.g., Commonwealth v. Goldblum, supra. At trial, appellant attempted to establish that the victim was unaware of his duty to tell the truth and was unable to distinguish between a truth and a falsehood. The disputed questions were directed precisely at this central issue, and were, at worst, merely cumulative to questions already asked, in the presence of the jury, regarding the witness’s competency to testify. Because appellant has failed to show in what respect these questions were either objectionable or harmful, we conclude that his ineffective assistance of counsel claim does not possess arguable merit.

      . Exceptions to this rule exist when evidence of other crimes tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; (5) the identity of the person charged with the commission of the crime on trial; or (6) that the evidence is part of the same transaction as the case on trial. Commonwealth v. Green, 351 Pa.Super. 170, 176, 505 A.2d 321, 324 (1986).
      We note that the Commonwealth has not filed a brief in this matter. Accordingly, there is no suggestion that any of the above exceptions apply to the instant case. Moreover, it does not appear from the record that any of the exceptions apply.

      . In addition, we note that the prosecutor pursued the reference to appellant’s prior conduct by further questioning the victim. Thus, the damaging testimony did not result from an unsolicited response to the Commonwealth’s questioning.


source: Caselaw Access Project

author: CAVANAUGH, Judge: CIRILLO, President Judge, BROSKY, Judge,

license: Public Domain

text:
    542 A.2d 557
    Frances G. HOLDEN, Appellee, v. Diane HOLDEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 18, 1987.
    Filed May 10, 1988.

      James F. Geddes, Jr., Wilkes-Barre, for appellant.
    Steven A. Bergstein, Allentown, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, ROWLEY, McEWEN, OLSZEWSKI, MONTEMURO, POPOVICH and JOHNSON, JJ.
   CAVANAUGH, Judge:

The issue in this case is whether a court in Pennsylvania may exercise in personam jurisdiction over the appellant, Diane Holden, in a civil action where all of the conduct by the appellant took place in Texas. If such jurisdiction does not exist, the court below erred in refusing to open a default judgment entered against the appellant and the complaint against her must be dismissed.

The appellee, Frances G. Holden, and Dr. Stanley Holden, who is not a party to this litigation, were divorced in Luzerne County, Pennsylvania, following extended and complex proceedings. A property settlement agreement was entered into between the parties to the divorce action which provided inter alia for alimony for Frances G. Holden during her lifetime. Subsequently, Dr. Holden married Diane Holden, the appellant herein, who has been a resident of the State of Texas at all times relevant to this action.

The appellee commenced the present action in Luzerne County. The complaint was served on Diane Holden at her residence in Humble, Texas on November 6, 1985. She did not file a responsive pleading and on December 18, 1985 a notice of intention to take default judgment was sent to her. On January 13, 1986 default judgment as to liability was entered against the appellant who filed a petition to open the default judgment on May 7, 1986. The petition to open alleged lack of personal jurisdiction over the appellant. The court below denied the petition and this appeal followed.

The basis for jurisdiction over Diane Holden, if it exists, would be found in the Pennsylvania Long Arm Statute which provides in part at 42 Pa.C.S. § 5322(a)(4):

(a) General rule.—A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

The appellant has had no contact with Pennsylvania at all. The settlement agreement was reached in Pennsylvania between the appellee and Stanley Holden, but Diane Holden was not a party to the divorce proceedings or the settlement agreement. The complaint alleges factually that “Defendant [Diane Holden] has induced Stanley J. Holden to breach said contract by threatening to dissolve her marriage to Stanley J. Holden if he complied with said contract.” The other allegations are that the appellant “induced” Stanley Holden to breach his contract and prevented him from complying with the terms of the settlement agreement, and has “interfered with the contractual relationship” between Stanley Holden and Frances Holden. The complaint also alleges that appellant has negligently inflicted emotional distress upon the appellee. None of the allegations set forth any activities by the appellant in Pennsylvania.

The Pennsylvania Long Arm Statute does not permit our courts to extend their jurisdiction to persons beyond the boundaries of this Commonwealth except in limited circumstances. Beginning with International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), innumerable cases have stated that in order for a state to fulfill the requirement of due process, it may exercise personal jurisdiction over a non-resident defendant only if there are “minimum contacts” between the defendant and the forum state so that the exercise of jurisdiction does not offend traditional notions of fair play and substantial justice. The defendant’s conduct must be such that it is reasonable and fair to require him to defend his actions in a foreign state. Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978). The Supreme Court of the United States has noted that there are “territorial limitations on the power of the respective states.” Hanson v. Denckla, 357 U.S. 235, 251, 78 S.Ct. 1228, 1238, 2 L.Ed.2d 1283, 1296 (1958).

In the case before us, the appellant performed no acts in Pennsylvania, but it is alleged that she interfered in Texas with performance of a contract made in Pennsylvania. The complaint seeks to embroil the appellant in the long continued and bitter dispute between appellee and her former husband, Dr. Stanley Holden. The predecessor to the current Long Arm Statute was found at 42 Pa.C.S. § 8305, (Purdon Supp.1974-75), which was repealed in 1976. Chief Justice Nix discussed conduct by a defendant occurring outside of the state which has a harmful effect upon one within Pennsylvania in the context of 42 Pa.C.S. § 8305 in Kenny v. Alexson Equipment Company, 495 Pa. 107, 116-117, 432 A.2d 974, 979 (1981) stating:

Section 8305 "... requires that (1) the non-resident [shall] have acted outside of Pennsylvania, (2) his action [shall] have caused ‘any harm’ within Pennsylvania, and (3) the cause of action [shall] have arisen out of the conduct causing the harm” B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1098 (E.D.Pa.1977). This section is a formulation of what has been termed the “effects test” of extra-territorial jurisdiction. Under the “effects test,” derived from the American Law Institute’s Restatement (Second) of Conflict of Laws § 37 (1971):
A state has power to exercise judicial jurisdiction over an individual who causes effects in the state by an act done elsewhere with respect to any cause of action arising from these effects unless the nature of the effects and of the individual’s relationship to the state make the exercise of such jurisdiction unreasonable.

In Kenny v. Alexson Equipment Company, supra, the Supreme Court dismissed a complaint by a Pennsylvania resident against a non-resident individual, Mr. Piracci, Sr., who never did business nor maintained an office in Pennsylvania. Mr. Piracci sold a hoist in Maryland which was eventually used in Philadelphia, Pennsylvania. Allegedly, the hoist caused injuries because of a defect in it. The court stated at 495 Pa. at 117, 432 A.2d at 980:

... the issue of whether Piracci, Sr. can be subjected to the jurisdiction of the courts of this Commonwealth does not end with a finding that his activities allegedly come within the literal language of the Long-Arm Statute.
The analysis of whether a state may exercise jurisdiction over a non-resident individual must be tested against both statutory and constitutional standards. The due process clause of the Fourteenth Amendment imposes a limit on the state’s exercise of jurisdiction over a non-resident defendant. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957).

As noted above, the due process requirements as set forth in International Shoe Company v. Washington, supra are that there must be minimum contacts with the forum state and this necessitates an examination of the facts in each case. Vacu-Maid, Inc. v. Covington, 530 P.2d 137 (Oklahoma Appellate Division 1974). In the instant case, the acts complained of occurred in Texas and consisted principally of the appellant threatening to leave her husband if he complied with the terms of the agreement between her husband and his former wife. The appellant, at most, only indirectly harmed the appellee. It was the appellant’s husband who caused direct harm, if any, to the appellee by not carrying out the terms of the settlement agreement. In any event, the alleged conduct by the appellant set forth in the complaint is too tenuous to invoke the jurisdiction of our courts under the Long-Arm Statute as the appellant had no contact with the Commonwealth of Pennsylvania.

Our case is analogous to DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986) in which the plaintiff brought suit against a New Jersey defendant, alleging negligence in an automobile accident which occurred in New Jersey. The plaintiff suffered pain while recuperating in Pennsylvania. The defendant, though served, did not file a responsive pleading and default judgment was entered against him. A petition to open the judgment was denied and an appeal was taken to this court. We stated at 352 Pa.Super. at 411, 508 A.2d at 325:

Before considering the merit of appellant’s argument in favor of opening the default judgment, we must necessarily address appellant’s contention that the court lacks personal jurisdiction over him because he is a New Jersey resident and the automobile accident occurred in New Jersey.

We further stated at 352 Pa.Super. 413, 508 A.2d 326:

[plaintiff’s] suffering of residual harm in [Pennsylvania was] not sufficient to satisfy the constitutional requirement of minimum contacts.

The default judgment in DeFay, supra, was vacated for lack of jurisdiction. In the case before us, the harm alleged is residual and not direct. Similarly, in McDaniel v. Joseph, 409 F.Supp. 1003 (W.D.Pa.1976) it was determined that a Pennsylvania court did not have jurisdiction over an Ohio resident who was alleged to have engaged in a meretricious relationship with the plaintiffs husband outside of Pennsylvania. The court concluded that the exercise of jurisdiction over the individual alleged to have been interfering with the spousal relationship would confer jurisdiction beyond constitutional limits as “The record in this case does not establish any contact by the defendant with the Commonwealth of Pennsylvania on which jurisdiction can be based.” 409 F.Supp. at 1004.

The dissenting opinion’s and appellant’s reliance on Rusack v. Harsha, 470 F.Supp. 285 (M.D.Pa.1978) to establish jurisdiction over the appellant, is misplaced. In Rusack, supra, the defendant who resided outside of Pennsylvania, sent defamatory letters to the plaintiff’s employer in Mechanicsburg, Pennsylvania. It was alleged that the publication of the defamatory material caused the plaintiff harm in Pennsylvania. The court held that there was a sufficient minimum contact to allow the exercise of jurisdiction, but stated at footnote 5, page 290: “This is a different situation from that where harm is caused outside the state and residual effects are felt inside the state.” The court further stated at 470 F.Supp. 290-291:

The “minimum contacts” test does not allow for mechanical application. Also, since International Shoe involved the issue of under what circumstances a state eould assert personal jurisdiction over an out-of-state corporation and since many of the subsequent cases dealt with a commercial setting, it is somewhat difficult to apply the reasoning of many of the cases considering the “minimum contacts” test to the case currently before the court. Nevertheless, the “minimum contacts” test is the standard to be applied here. See Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978).

It is true today that the vast majority of long-arm statute cases in Pennsylvania deal with commercial transactions or involve a non-resident defendant who transacts business or otherwise acts in Pennsylvania. Hester J. summarized this in Pecot, Inc. v. Sirianni, 295 Pa.Super. 462, 467, 441 A.2d 1324, 1327 (1982):

Long-arm statutes were designed to provide an effective and convenient means of redress for resident plaintiffs who happen to experience the adverse effects of a non-resident defendant’s interstate activities; they were designed to warn non-resident defendants that they could not escape the consequences of litigation in a jurisdiction where they voluntarily chose to act. (Emphasis added.)

Nevertheless, our courts may not reach out and extend jurisdiction over a defendant who has no contact with Pennsylvania and whose acts at best have a residual effect upon one in Pennsylvania. The concepts of fair play and substantial justice would be subverted if we allowed a Pennsylvania court to exercise jurisdiction over a Texas resident in circumstances such as those before us. The dissenting opinion focuses on the domicile of the plaintiff rather than on the defendant’s non-resident status and lack of meaningful contacts with Pennsylvania. The minimum contact requirement with the forum state also guarantees that individual states do not exceed the limits placed on them by their status as co-equal sovereigns under our federal system. World-Wide Volkswagen v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

As noted above, most cases dealing with the Pennsylvania Long Arm Statute are in a commercial context, and contacts or lack thereof, with the forum state, are readily discernible. We are dealing in this case with a complaint that alleges a psychological tort involving a family relationship. A plaintiff may not create a cause of action by alleging tortious interference with a contract arising from a settlement agreement in a divorce case, where the facts establish that the defendant is not subject to the jurisdiction of the court. Untold mischief could be caused by drawing a party into a dispute that is before the courts of this Commonwealth, where that party is outside the Commonwealth and has no contact with Pennsylvania. In this case before us, a prolonged and bitter dispute has ensued between Frances G. Holden and her former husband, Dr. Stanley Holden. We may not extend the jurisdiction of our courts to embroil Diane Holden in this dispute.

Order of the court below is set aside and the judgment is opened.

CIRILLO, President Judge, files concurring opinion joined by ROWLEY, MONTEMURO and JOHNSON, JJ.

BROSKY, J. files dissenting opinion.

CIRILLO, President Judge,

concurring:

Because I disagree with the majority’s disposition of this case, I respectfully concur.

As this court held in DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986), a procedurally identical case, where a Pennsylvania court lacks personal jurisdiction over an out-of-state defendant, a default judgment entered against such a defendant is a nullity and, therefore, we need not reach the merits of appellant’s argument in support of opening the default judgment. Id., 352 Pa.Superior Ct. at 413, 508 A.2d at 326. When a court is powerless to enter a judgment, any judgment entered by that court is invalid at its inception and a subsequent petition to open that judgment is similarly outside the jurisdiction of that court. See In re Patterson’s Estate, 341 Pa. 177, 19 A.2d 165 (1941) (an adjudication of a court without jurisdiction is void).

The majority correctly finds that Pennsylvania does not have personal jurisdiction over Diane Holden and that, therefore, the chancellor had no power to enter a default judgment against her. It then resolves this case by opening that judgment. When this court reverses the denial of a petition seeking to open a judgment, we are, in essence, saying that the chancellor erred in not having granted it. We cannot say both that there was no jurisdiction for him to act and that he should have granted the relief sought. Opening the judgment is clearly an exercise of the jurisdiction over this defendant which we have said the court below lacked. The majority’s disposition tacitly acknowledges the jurisdiction of our courts over Diane Holden even while declaring that no such jurisdiction existed. This is logically inconsistent.

For the foregoing reasons, I would vacate the default judgment for lack of jurisdiction, set aside the order denying the petition to open that judgment as moot, and dismiss the underlying complaint.

ROWLEY, MONTEMURO and JOHNSON, JJ., join.

BROSKY, Judge,

dissenting:

I respectfully dissent. I would affirm the order denying appellant’s petition to open default judgment.

Initially, I cannot concur in the majority’s determination that “the alleged conduct by the appellant set forth in the complaint is too tenuous to invoke the jurisdiction of our courts under the Long-Arm Statute.” This conclusion involves a misunderstanding of both the nature of the tortious conduct alleged, as well as the situs of the harm flowing from the alleged conduct.

The majority begins its analysis by asserting that Frances Holden’s complaint does not allege any contact with Pennsylvania, or activities in Pennsylvania, by Diane Hoiden that would make it fair or reasonable to subject her to suit in a foreign forum. This ignores the clear gravamen of what Frances Holden is pleading: a tortious interference by Diane Holden with the contractual relationship between Frances and Stanley G. Holden forged in Pennsylvania.

To set forth a cause of action in Pennsylvania for intentional interference with a contractual relationship, four elements must be pled:

(1) the existence of a contractual relation between the complainant and a third party;
(2) purposeful action on the part of the defendant, specifically intended to harm the existing relation;
(3) the absence of privilege or justification on the part of the defendant; and
(4) the occasioning of actual legal damage as a result of the defendant’s conduct.

See Pelagatti v. Cohen, 370 Pa.Super. 422, 536 A.2d 1337, 1343 (1987); see also Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466, 471 (1979).

The Restatement (Second) of Torts defines “actual damages” for interference with a contract as follows, at § 774A:

§ 774A. Damages.
(1) One who is liable to another for interference with a contract or prospective contractual relation is liable for damages for
(a) the pecuniary loss of the benefits of the contract or the prospective relation;
(b) consequential losses for which the interference is a legal cause; and
(c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference____

An even cursory glance at Frances Holden’s allegations indicates that a cause of action for intentional interference with a contract is precisely what she has pled: she is alleging that Diane Holden took purposeful action, in the form of threats of marital dissolution, with the specific intent of inducing Stanley Holden to breach his Pennsylvania settlement agreement with Frances Holden, thereby causing Frances Holden actual legal damage, including pecuniary loss and emotional distress. This, clearly, is a contact of sorts with Pennsylvania. It therefore remains to be determined whether the allegations, if presumed true, permit our courts to assert jurisdiction over Diane Holden, under the “minimum contacts” test established by International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and its progeny.

As noted by the majority, the “minimum contacts” test is not to be applied mechanically, but requires an examination of the facts in each case. In its discussion, the majority places reliance upon, primarily, three Pennsylvania decisions, and concludes that Diane Holden’s actions, at best, have caused “indirect” or “residual” harm to Frances Holden, thereby making any exercise of jurisdiction by Pennsylvania a subversion of fair play and substantial justice. As I find all three decisions relied upon by the majority to be distinguishable, I disagree.

The first, Kenny v. Alexson Equipment Co., 495 Pa. 107, 432 A.2d 974 (1981), concerns an elevator hoist, which was originally sold in Maryland, to a New Jersey retailer, and eventually shipped to Pennsylvania, where it injured a Pennsylvania resident. The Pennsylvania resident brought suit against the New Jersey retailer, who then attempted to join the Maryland seller as an additional defendant, based upon the predecessor statute to the current Long Arm Statute. The Supreme Court held that in personam jurisdiction could not be extended to subject the Maryland seller to suit in Pennsylvania.

In its analysis of Kenny, the majority focuses upon the Maryland manufacturer’s failure to maintain an office or do business in Pennsylvania, and analogizes this to Diane Holden’s commission of the complained of interference exclusively within Texas, and concludes that, under Kenny, her behavior has at best resulted in indirect extra-territorial harm too attenuated to invoke Pennsylvania jurisdiction. This, however, ignores a crucial part of the Kenny holding:

We therefore hold that when an individual seller, not doing business within the Commonwealth, transacts an isolated sale outside the Commonwealth to an unrelated buyer, the causing of a harmful effect in itself, within the Commonwealth or the mere entry of that single product into the stream of commerce within the Commonwealth, in the absence of purposeful participation by the seller in a continuous distributive chain of such product is insufficient to satisfy the minimum contacts requirement of due process and such seller cannot be found amenable to in personam jurisdiction pursuant to Pennsylvania’s Long-Arm Statute____

Id., at p. 984. (Emphasis supplied.)

In holding the Maryland seller beyond the jurisdiction of the forum state, the Supreme Court, in its analysis of the seller’s contacts with Pennsylvania, did not rely solely upon the number of contacts (one), or the location of the seller and his business activities (Maryland): it was the lack of any purposeful activity, calculated to impact upon the forum, that was the key to the Court’s holding that the transaction in question had been too attenuated to justify an assertion of jurisdiction.

The issue of purposeful, as opposed to chance or random, activity, is not of little consequence. As our Court noted in Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616, 621 (1986):

... if the efforts of [an actor] are “purposefully directed toward residents of the forum state, the absence of the actor’s physical contacts with the forum cannot defeat an assertion of personal jurisdiction in that state, (cite omitted). Indeed, even a single act by a foreign defendant within the forum state may support jurisdiction, though that act will not be sufficient if its nature and the quality of the circumstances of its commission create only an “attenuated” affiliation with the forum, (cite omitted) Once it has been decided that a defendant purposefully established minimum contacts with the forum State, these contacts may be considered in light of other factors to determine whether the assertion of personal jurisdiction would comport with “fair play and substantial justice.” (cite omitted).
Factors to be considered include “the burden on the defendant,” “the forum State’s interest in adjudicating the dispute,” “the plaintiff’s interest in obtaining convenient and effective relief,” “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” and the “shared interest of the several States in furthering fundamental substantive social policies.” (cites omitted).
These considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required. On the other hand, where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable____”

Id., citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (Emphasis supplied.)

In the matter sub judice, Frances Holden is alleging very purposeful activity on the part of Diane Holden, calculated to have a direct impact upon a Pennsylvania resident. She is not averring that, by mere chance or happenstance, Diane’s threats indirectly caused Stanley to harm Frances, but that Diane deliberately made those threats with the specific intent of inducing Stanley to neglect his Pennsylvania contractual obligations, and that the harm to Frances directly resulted from Diane’s purposeful interference.

As the Kenny holding is conditioned in part upon a finding of non-purposeful activity, it would not appear controlling in this case, in the absence of any meaningful evaluation of other factors pertinent to a determination of personal jurisdiction, such as the policy considerations delineated in Skinner, supra. As I am of the view that the complaint alleges purposeful activity, in the form of an intentional tort, I believe the remaining question of pertinence to a finding of “minimum contacts” is a determination of the situs of the harm resulting from the intentional tort. It is at this point that a discussion of the latter two decisions relied upon by the majority, is warranted.

The majority cites as analogous to the matter before us, the case of DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986). In DeFay, a Pennsylvania resident was injured in a New Jersey automobile accident. The other driver was a New Jersey resident. Upon returning home to recuperate, the Pennsylvania resident filed a negligence suit against the New Jersey resident. In holding that the New Jersey resident did not have sufficient “minimum contacts” with Pennsylvania for our courts to exercise jurisdiction, our Court, citing to Hilferty v. Neesan, 506 F.Supp. 218 (E.D.Pa.1980), noted the following:

... the mere fact that a plaintiff may have some residual pain and suffering while recuperating in the forum state from an accident which occurred entirely out of the state is not the type of harm ‘caused in the Commonwealth’ which is contemplated by the long arm statute____
____The sole contact appellant has with the forum in the instant action is appellee’s suffering of residual harm in the forum. This is not sufficient to satisfy the constitutional requirement of minimal contacts. Thus, under both statutory and constitutional analysis, the court did not have personal jurisdiction over appellant at the outset of this action.

DeFay, supra, at p. 326.

DeFay is clearly distinguishable, and in fact supports a finding that the harm to Frances Holden was not residual to the forum, but actually suffered in the forum. In DeFay, the harm to the plaintiff was inflicted by the accident in New Jersey, at the situs of the accident; upon returning home to recuperate, she merely “carried her harm”, so to speak, back to the forum state. Such harm, clearly, was at best residual harm within the borders of Pennsylvania.

By contrast, the harm suffered by Frances Holden did not occur at the situs of. the tort. While Diane Holden’s alleged tortious behavior took place in Texas, the resultant harm included, as set forth in the complaint: (1) the termination of utility services to Frances Holden’s home; (2) the incurring of loan and legal expenses; (3) the loss of alimony; (4) the interruption of the children’s college educations; (5) the loss of insurance protection; and (6) emotional pain and suffering, including harm to reputation. These harms did not take place in Texas; they were incurred by Frances Holden and her children within Pennsylvania. They were not merely “carried home” to Pennsylvania, as were the plaintiff’s injuries in DeFay. Hence, contrary to the majority’s reading, I find DeFay supportive of an extension of in personam jurisdiction in this matter: the case defines residual harm, inter alia, to be that harm which is incurred by a complainant in one state, and brought into the forum solely due to the complainant’s residency in the forum. The harm pled by Frances Holden simply does not fall within the parameters of this definition.

The majority finds another analogous decision in McDaniel v. Joseph, 409 F.Supp. 1003 (W.D.Pa.1976), in which the district court granted a motion to dismiss due to a lack of in personam jurisdiction over the defendant. In that case, a Pennsylvania plaintiff filed suit against an Ohio defendant, alleging that the defendant had engaged in meretricious relations with the plaintiffs husband. The plaintiff conceded that the relations had occurred in Ohio and West Virginia, and not in Pennsylvania.

However, in holding that the defendant had no “minimum contacts” with Pennsylvania, the court neglected to discuss the nature or situs of the harm alleged in its rationale. In point of fact, the decision is, at best, sketchy on its recounting of the operative facts. In the absence of a more detailed rationale in support of its decision, I fail to find the district court’s disposition in McDaniel to be even marginally persuasive, and find the majority’s reliance upon its holding to be misplaced.

A more persuasive opinion is that of Rusack v. Harsha, 470 F.Supp. 285 (M.D.Pa.1978), which the majority has found inapplicable sub judice. In Rusack, a Washington, D.C. resident had sent defamatory letters to the plaintiff’s employer in Pennsylvania. In upholding the long-arm jurisdiction of Pennsylvania over the defendant, the court noted that the harm to plaintiff had occurred upon publication of the letters in Pennsylvania, and was thus distinguishable from those situations “where harm is caused outside the state and residual effects are felt inside the state.” Id., at p. 290.

I find Rusack to be directly on point. In both Rusack and the matter before us, the precipitating tortious conduct occurred outside the forum state: the defamatory letters in Rusack were written in, and mailed from, Washington, D.C., while the contractual interference of Diane Holden took place in Texas. In both cases, however, the conduct did not result in harm until its fruits came to rest in Pennsylvania. Rusack was not harmed by the defamatory-letters until they reached Pennsylvania, and Frances Holden did not have a cause of action until she failed to receive the appropriate payments, and suffered pecuniary and emotional hardships in Pennsylvania. Unlike the majority, I do not find appellant’s reliance upon the well-reasoned Rusack to be so misplaced.

Based on the foregoing, I feel that Frances Holden has alleged purposeful tortious activity on the part of Diane Holden, intended to disrupt a Pennsylvania contract, and resultingly cause direct harm to a Pennsylvania resident, and has thus satisfied the “minimum contacts” test of International Shoe so as to permit our courts to assert in personam jurisdiction over Diane Holden.

Having resolved the jurisdictional question in appellee’s favor, it is necessary to determine whether appellant has satisfied the criteria for the opening of default judgment. Those criteria are well settled, and require a petitioner to demonstrate: (1) that the petition to open was timely filed; (2) that there exists a reasonable explanation or excuse for default; and (3) that there exists a meritorious defense to the allegations of the complaint. Wolfskill v. Egan, 350 Pa.Super. 223, 504 A.2d 326, 327 (1986). Upon review of the record below, I am in accord with the trial court’s finding that the criteria have not been satisfied, most notably the second criterion pertaining to the excuse for default.

Both below and on appeal, Diane Holden’s excuse for default has been that she relied upon her husband’s attorney to handle the matter for her. However, it has previously been held that a defendant’s belief that his interests are being protected ceases to be justifiable when the defendant is somehow alerted to a possible problem, such as in the receipt of a Rule 237.1 ten-day notice letter. See Autologic, Inc. v. Christinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362, 1363 (1984) (held: purpose of Rule 237.1 requirement of service of ten-day notice letter upon party as well as counsel, is to alert party to potential problem, and permit party to take appropriate action prior to entry of default).

In the matter sub judice, appellant has admitted to both receiving the ten-day notice letter, and to making no attempt to protect her interests prior to the entry of default. She cannot now be heard to cry that her deliberate inaction was “reasonable”.

As I find no abuse of discretion in the trial court’s finding that the second criterion for opening default has not been met, I would affirm the trial court’s denial of appellant’s petition to open. Hence, I respectfully dissent.

      . In footnote 1, the dissenting opinion posits that we are deciding a question not before this court in ruling on the sufficiency of the complaint. When the appeal is from an order refusing to open judgment, we must rule on the sufficiency of the complaint as to appellant to determine if the court below had jurisdiction over the appellant and if it did not, then the default judgment was a nullity and must be set aside. DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986).

      . The dissenting opinion interprets Kenny v. Alexson Equipment Company, supra, in a manner to support its theory that the court had jurisdiction over the appellant in our case. The dissent overlooks the basic principle that our courts do not have jurisdiction over persons beyond the boundaries of our Commonwealth, except where it is granted by statute. The dissent would seek to extend rather than restrict jurisdiction. In Kenny, which dealt with a commercial rather than a family matter, the court refused to extend jurisdiction even where the injury occurred in Pennsylvania. As noted in the dissenting opinion in our case, the Supreme Court stated in Kenny at 495 Pa. 126, 432 A.2d 984, that jurisdiction would not be extended over a non-resident seller "in the absence of purposeful participation by the seller in a continuous distributive chain of such product ...” The dissent reasons that the appellant engaged in purposeful activity calculated to cause harm in Pennsylvania. In order to be subject to in personam jurisdiction, one outside the state must have some minimum contact with Pennsylvania. In our case, the appellant’s conduct was directed toward her husband. What he did might impact on his former wife in Pennsylvania, but the harm to plaintiff by appellant would have been indirect at best. Kenny, supra, would appear to be a stronger case for imposing jurisdiction than our own.

      . The dissenting opinion relies on Skinner v. Flymo, Inc., 351 Pa.Super. 234, 505 A.2d 616 (1986) to support its proposition that Pennsylvania has a compelling interest in extending jurisdiction over the appellant. In Skinner, supra, the plaintiff was injured in Pennsylvania by a rotary lawn mower which had been certified by the defendant, a non-resident, as meeting certain standards. We held that Pennsylvania courts had no jurisdiction over defendant. We stated at 351 Pa.Super. 240, 505 A.2d 619, 620:
      The critical question in determining whether the defendant has purposefully directed his activities at residents of the forum is not whether it was foreseeable that defendant’s activities would have an injurious effect in the forum state, but whether the defendant’s conduct and his connection with the forum state were such that he could reasonably anticipate being ",haled” into court there. (Citing cases). This question, in turn, must be resolved by examining the defendant’s contacts with the forum state. (Emphasis added.) Again, we are directed, as we must be, to the contacts, if any, which
      defendant had with the forum state.

      . The dissenting opinion finds DeFay v. McMeekin, supra, distinguishable from the instant case. Certainly, the facts are different, but DeFay focused on the point that although the plaintiff endured pain and suffering in Pennsylvania, the tort occurred in New Jersey and the effect in Pennsylvania was residual.

      . 42 Pa.C.S. § 8305.

      . Provided a showing of "minimum contacts” is made, this situation would appear one in which, under Skinner, Pennsylvania has compelling policy interests in resolving the controversy. Taking the complaint as true, Diane Holden has thoroughly disrupted the performance of a Pennsylvania agreement, intended to resolve matters of alimony, property, and educational support of the Holden children, in a Pennsylvania divorce, thereby bringing financial and emotional hardship upon a Pennsylvania resident. It cannot be seriously averred that Pennsylvania would have no significant interests in assuring that the behavior of non-residents does not nullify Pennsylvania contracts. To aver otherwise would be the equivalent of implying that legally enforceable Pennsylvania contracts may be disregarded at will, as meaningless verbiage, by non-residents.

      . Moreover, had the McDaniel court chosen to delineate its rationale, it would not necessarily be dispositive. Decisions of lower federal courts, albeit instructive, are not binding on state courts, even though a federal question is involved. See Cianfrani v. John-Manville Corp., 331 Pa.Super. 1, 482 A.2d 1049, 1051 (1984); Commonwealth v. Rundle, 203 Pa.Super. 419, 201 A.2d 615, 623 (1964).


author: PER CURIAM:

text:
    542 A.2d 567
    GENERAL PUBLIC UTILITIES, Metropolitan Edison Co., Pennsylvania Electric Co., Babcock and Wilcox, J. Ray McDermott Co., and Catalytic, Inc., Appellants, v. GLASS KITCHENS OF LANCASTER, INC., Cherry Lane Motor Inn Corp., Continental Inns of America, Inc., t/a Continental Inn, James Cosgrove d/b/a Revere Tavern and Best Western Revere Motor Inn, Noah N. Martin, Co., Pentidatillo Corp., d/b/a Italian Villa East, Richard M. Rutt, d/b/a Rutt’s Tours, Earl Realty, Inc., the Amish Homestead, Inc., One Room Schoolhouse, Inc., Homestead Gift Shop, Inc., Two Twenty-Two Corporation, Thomas E. Strauss, Inc., Trifon N. Skiadas, Nandas N. Skiadas, George N. Skiadas, Peter N. Skiadas and Harry Keares, t/a Skiadas Bros. Enterprises, Family Style Restaurant, Inc., and Host Enterprises, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Jan. 22, 1988.
    Filed May 10, 1988.

      Alfred H. Wilcox, Philadelphia, for appellants.
    Laurence S. Berman, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.
   PER CURIAM:

This is an appeal by permission from a certified interlocutory order denying appellants’ motion for summary judgment.

The instant case was originally filed by appellees in the United States District Court for the Middle District of Pennsylvania but was transferred to the Court of Common Pleas of Lancaster County following the decision of the Third Circuit Court of Appeals in Stibitz v. General Public Utilities Corp., 746 F.2d 993 (3d Cir.1984), cert. den. 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). In Stibitz, the Third Circuit raised the issue of subject matter jurisdiction sua sponte and held that “plaintiffs’ state law claims do not arise under the Price-Anderson Act” and their “federal law claims are ‘wholly insubstantial’ and provide no basis for federal jurisdiction.” Id. at 996-997.

Appellees are corporations associated with the Pennsylvania Dutch tourist industry. Appellees’ cause of action concerns the “nuclear incident” which occurred in March of 1979 at the Three Mile Island nuclear facility (hereinafter “TMI”) located in Dauphin County, Pennsylvania. Appellees’ tourist businesses are located in Lancaster County and are more than twenty-five (25) miles from TMI. Appellees allege that the TMI nuclear incident caused a diminution in the number of tourists who visited Lancaster County. As a result, appellees’ seek damages for economic loss. Appellees contend that the TMI nuclear incident was caused by the following actions of appellants:

(a) negligent, reckless, willful or wanton misconduct in the design, manufacture, construction, installation, operation, and maintenance of TMI and its reactors, machinery, equipment and facilities;
(b) negligent, reckless, willful or wanton misconduct in responding to and handling such accident, nuclear incident, and related series of events;
(c) defective manufacture, construction, design, and installation of the nuclear reactor, machinery, equipment and facilities at TMI;
(d) miscarriage of an ultrahazardous activity to wit, the operation of a nuclear facility;
(e) creation of an actionable nuisance; and
(f) violation of the terms and conditions of the license issued by the Nuclear Regulatory Commission for TMI, which license was intended to protect and benefit individuals and businesses within the vicinity of such facility, including Plaintiffs.

R.R. at 25a.

On November 15, 1985, appellants filed a motion for summary judgment. Appellants based this motion on the contention that there was no genuine issue of fact as to whether any of the appellees suffered actual physical injury or actual property damage. Appellants filed three affidavits with this summary judgment motion. Mr. Sydney W. Porter Jr.’s affidavit describes the data collected following the TMI nuclear incident and includes Mr. Porter’s opinion that “there was no contamination of the area of Lancaster County in which the (appellees’) businesses ... are located caused by the Three Mile Island accident.” R.R. at 95a. Mr. Keith Woodward’s affidavit contains his opinion that “from March 26, 1979 through April 30, 1979, cumulative exposure to noble gases released from TMI, in the area of Lancaster County more than 25 miles from Three Mile Island, was not more than 0.1 millirem per person ... in that same period persons in that area would have received more that fifty times as much exposure from natural background radiation.” R.R. at 102a.

Appellees, in answering the motion for summary judgment, contended that genuine issues of material fact existed as to whether appellees suffered property damage or physical injury as a result of the TMI nuclear incident. In support of this contention, appellees filed two affidavits of their co-counsel, Mr. Arnold Levin. In one affidavit, which had been previously filed in federal court, Mr. Levin stated that “[pjlaintiff will utilize the resources mentioned in this Affidavit as well as the report of Dr. Gofman ... and the reports of other experts in the related personal injury litigation to prove at a trial of this action the actuality of radiation contamination and the actuality of a significant threat of contamination of plaintiffs property in the period of the accident.” R.R. at 183a. The “resources” attached to Mr. Levin’s affidavit included a report by Mr. Stephen Ray Chin which espouses the view that the testing of radiation contamination following the TMI nuclear incident may have been unsatisfactory. In Mr. Levin’s second affidavit, Mr. Levin states that a Public Health Fund Report, published August 15, 1984, “[unquestionably ... confirms radiation doses delivered to the population located within 50 miles from the TMI accident.” R.R. at 243a. The record in the instant case contains a third affidavit filed by Mr. Levin on February 19, 1986 which relies on Pa.R. C.P. 1035(e) and includes the following statements:

At the present time, plaintiffs cannot present facts, other than through this affidavit and my affidavits filed in the federal cases, which are essential to justify their opposition to defendants’ motion for summary judgment ... because defendants have not responded to plaintiffs’ merits discovery in this matter. In related litigation, however, defendants supplied other plaintiffs with discovery which was utilized by various experts in connection with their preparation of expert reports and was utilized by various public and private authorities in connection with the preparation of reports. Copies of such reports were attached to my affidavits in the federal cases and are a part of this record.

Brief of Appellees, Exhibit A at 3-4.

On October 3, 1986, the Trial Court denied appellants’ motion for summary judgment. We have carefully reviewed the Court’s Opinion in this matter. The Court stated that “[i]t is axiomatic that summary judgment can only be granted in the clearest of cases both as to the facts and as to the law. Since neither is clear in this case, we decline to grant the extreme remedy of summary judgment.” Op. of Trial Court at 5. The Court concluded that a genuine issue of fact existed as to whether the appellees had suffered physical injury from the TMI nuclear incident. Id. at 3. The Court then cited Moore v. Pavex, Inc., 356 Pa.Super. 50, 514 A.2d 137 (1986), for the proposition that in the context of nuclear accidents, “it may not be necessary to actually sustain physical injuries or property damage in order to recover economic losses.” Op. of Trial Court at 4.

On March 30,1987, the Trial Court, in accordance with 42 Pa. C.S.A. § 702(b), certified for permissive interlocutory review its Order denying summary judgment. Appellants then filed a petition for permission to appeal pursuant to Pa.R.A.P. 1311. Appellants’ petition for permission to appeal was granted by a per curiam order of this Court dated July 30, 1987. The trial court certified the following controlling question of law for our review:

Where plaintiffs waive the right to seek damages their properties might have suffered from contamination after a nuclear accident, are such accidents at nuclear power plants an exception to the general tort rule that a plaintiff must sustain personal injury or property damage as a prerequisite for recovery of economic loss?

In Aikens v. Baltimore & Ohio R.R., 348 Pa.Super. 17, 501 A.2d 277 (1985), this Court expressly adopted the well-established rule that “no cause of action exists for negligence that causes only economic loss.” Id., 348 Pa.Superior Ct. at 21-22, 501 A.2d at 279. In doing so, we reasoned as follows:

... we note that allowance of a cause of action for negligent interference with economic advantage would create an undue burden upon industrial freedom of action, and would create a disproportion between the large amount of damages that might be recovered and the extent of the defendant’s fault. See Restatement (Second) of Torts Sec. 766C, comment a (1979). To allow a cause of action for negligent cause of purely economic loss would be to open the door to every person or business to bring a cause of action. Such an outstanding burden is clearly inappropriate and a danger to our economic system. Accordingly, we decline to adopt the reasoning of the California Supreme Court in J’Aire Corp. v. Gregory, 24 Cal.3d 799, 157 Cal.Rptr. 407, 598 P.2d 60 (1979), and to extend negligence liability to embrace purely economic loss. Such an extension would clearly lead to problems in consistency and foreseeability, and could be harmful in scope.

Id. We decline to adopt a different rule of law under the specific facts of the instant case and to hold that economic losses are recoverable by these appellees, absent proof of any physical injury or property damage. The concerns we recognized in Aikens apply with equal weight to appellees’ claims even though their claims arise from a nuclear generating facility accident. Our opinion in Moore v. Pavex, Inc., 356 Pa.Super. 50, 514 A.2d 137 (1986) does not dictate a different result. In Moore, a construction worker using a jackhammer had ruptured a city water main and suit was brought to recover for economic loss suffered as a result of the rupture. The trial court had dismissed the action, concluding that there could be no recovery for economic loss by the plaintiffs who did not suffer physical harm to property in which they had a proprietary interest. This Court affirmed, stating that “if any of the class had suffered direct damage to property as a consequence of the rupture of the water main (such as flooding, destruction of property or personal injury),” economic harm would have been actionable. Id., 356 Pa.Superior Ct. at 54, 514 A.2d at 139. Importantly, then, Moore reaffirmed the general rule of law that economic losses may not be recovered in tort absent any physical injury or property damage. See Aikens, supra.

In Moore, this Court did discuss, in dicta, tort liability in the context of a nuclear incident. Specifically, we noted the case of Commonwealth v. General Public Utilities, 710 F.2d 117 (3d Cir.1983) wherein the plaintiffs had asserted a claim for damages for “lost work time” as a result of the TMI nuclear incident. Id. at 122. Although the plaintiffs were seeking to recover for economic loss only, plaintiffs had also alleged in their pleadings that “increased radioactivity and radioactive materials emitted during the nuclear incident permeated the entire area, and thus rendered the public buildings unsafe for a temporary period of time, and constituted a physical intrusion upon the plaintiffs’ properties. This intrusion, plaintiffs argue, is a sufficient showing of physical harm or injury to permit plaintiffs to recover for damages flowing from such harm, including damages for the wages paid to workers who remained away from work but were nevertheless paid.” Id. at 122-123. Although the Third Circuit Court of Appeals declined to express an opinion on whether plaintiffs’ theory of damages would ultimately prevail on the merits, the Court did hold that “plaintiffs should be permitted to develop the facts upon which these contentions may be tested.” Id. at 123. The Court therefore concluded that a summary judgment in favor of the defendants was not warranted.

In our opinion in Moore, we made the following statements:

Chernobyl has forever put to rest any question that radiation or fallout from a meltdown of a nuclear plant does not directly cause injury to persons or property with which it comes into contact. The injury, while not always immediately ascertainable is direct and predictable, and for persons not to move immediately from a fallout zone to avoid possible incredible consequences, is folly and unsupportable. Any economic loss resulting from such a scenario is directly attributable to the meltdown. The meltdown is predictable and hopefully preventable and entirely within the control of superspecialists to whom we have entrusted our environment and our lives. This is no mere rupture of a waterpipe. It is clearly distinguishable.

Moore, supra 356 Pa.Super. at 55-56, 514 A.2d at 140 (emphasis added). Contrary to arguments advanced by appellees, this language from Moore is consistent with the rule of law we announced in Aikens. These statements recognize that persons or property who have come into contact with radiation or fallout will suffer a direct and predictable actual injury, despite the fact that this injury may not be immediately visible to the naked eye. This fact does not relieve the burden which rests upon the appellees instantly to prove that the TMI nuclear incident has resulted in actual physical injury or property damage in order for appellees to state a cause of action for economic loss.

The trial court expressly found that a material issue of fact exists as to whether the TMI nuclear incident caused the appellees to suffer physical injury. Op. of Trial Court at 3. In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83, 468 A.2d 468, 470 (1983). It is not part of the court’s function to decide issues of fact to be tried but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 290 (1983). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982). With these principles in mind and with the recognition that we are expressing no opinion on the merits of appellees’ cause of action, we find no error in the order of the trial court denying appellants’ motion for summary judgment.

Order affirmed.

      . Appellees defined "nuclear incident” in their pleadings as “an occurrence within the United States causing, inter alia, loss of or damage to property, or lost use of property, arising or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or by-product material.” See 42 U.S.C. § 2014(q).

      . In Mr. Porter’s affidavit, he states that he is "a certified health physicist with over 29 years of experience in the fields of health physics, radiological environmental monitoring, emergency planning, nuclear engineering and radiochemistry.” R.R. at 91a.

      . Mr. Keith Woodward states in his affidavit that he is employed as a Senior Consultant by a “consulting/engineering firm specializing in reactor siting, safety, emergency planning, accident analysis and probabilistic risk assessment____” R.R. at 103a.

      . From the record before us, it appears that Mr. Chin is a statistician, with experience in the area of environmental releases of radioactive materials from nuclear installations. R.R. at 239a-240a.

      . The test results questioned by Mr. Chin are the same test results which Mr. Porter and Mr. Woodward refer to in their affidavits. R.R. at 94a and 113a. For example, Mr. Chin questions the accuracy of the thermoluminescence dosimetry ("TLD") radiation monitoring program. R.R. at 232a-235a.

      . This report, “A Review of Dose Assessments at Three Mile Island and Recommendations for Future Research”, is included in the record before us. We note that this report also questions the reliability of the radiation testing which was undertaken following the TMI nuclear incident and also questions the accuracy of the analysis of the test results.

      . We need not decide whether a different rule of tort law will ever be applied in the context of a nuclear incident. Hopefully, after the alarming experience of the accident at TMI, future nuclear accidents will be preventable. In any event, we have determined that as to these parties, the traditional rules of our tort law are applicable.