author: WIEAND, Judge:

text:
    613 A.2d 1227
    COMMONWEALTH of Pennsylvania, Appellant, v. Ronald BUJANOWSKI, Sr. and Marvin Gorelick, Appellees.
    Superior Court of Pennsylvania.
    Argued June 1, 1992.
    Filed Aug. 7, 1992.

      Christopher H. Asplen, Asst. Dist. Atty., Doylestown, for Com., appellant.
    John Fagan, Asst. Public Defender, Doylestown, for Bujanowski, appellee.
    Patrick J. Egan, Doylestown, for Gorelick, appellee.

      Before ROWLEY, President Judge, and WIEAND, CIRILLO, OLSZEWSKI, MONTEMURO, POPOVICH, JOHNSON, HUDOCK and FORD ELLIOTT, JJ.
   WIEAND, Judge:

This case is before a court en banc for reargument of a Commonwealth appeal from an order which granted a defense motion in limine to prevent the Commonwealth from using an extrajudicial statement by an unavailable witness as substantive evidence implicating Ronald Bujanowski, Sr. and Marvin Gorelick, appellees, in a series of burglaries committed in Bensalem Township, Bucks County.

Ronald Bujanowski, Jr. was apprehended by Bensalem Township police in connection with three burglaries which had been committed in Bensalem Township during the month of August, 1989. He gave a statement to Detective Bruce Van Zant in which he admitted that he had participated in the burglaries and implicated his father, Ronald Bujanowski, Sr., in the commission of the three burglaries and Marvin Gorelick in the commission of one of the burglaries. Bujanowski, Sr. and Gorelick were thereafter arrested and charged with various offenses related to the three burglaries. At the preliminary hearing, however, the younger Bujanowski recanted his prior statement to Detective Van Zant and testified that his father and Gorelick had had nothing to do with the burglaries. The Commonwealth was then permitted to introduce the statement which the younger Bujanowski had made to Van Zant, and on this basis the charges against Bujanowski, Sr. and Gorelick were returned to court.

When the Commonwealth subsequently attempted to subpoena Bujanowski, Jr. for trial, he could not be found. The parties have agreed and the trial court found as fact that he was unavailable for trial. The prosecutor proposed, therefore, to offer at trial the testimony given by Bujanowski, Jr. at the preliminary hearing. This testimony was exculpatory, and the prosecutor’s sole purpose for offering the same was to provide a foundation for offering the witness’s prior inconsistent statement to Detective Van Zant. The Commonwealth has conceded that it has no means by which it can prove participation by the appellee-defendants except by the statement made by Bujanowski, Jr. to Detective Van Zant and that its case will not survive a demurrer without such evidence. The trial court ruled that the statement could not be used as substantive evidence to implicate the defendant-appellees.

We agree with the Commonwealth that the testimony given by Bujanowski, Jr. at the preliminary hearing is admissible as the prior recorded testimony of an unavailable witness. See: Commonwealth v. Sandutch, 498 Pa. 536, 540, 449 A.2d 566, 567 (1982); Commonwealth v. Scarborough, 491 Pa. 300, 317, 421 A.2d 147, 155 (1980). This evidence, however, will not incriminate the defendant-appellees but will exculpate them. In reality, the Commonwealth is attempting to place before the jury as substantive evidence the extrajudicial statement made by Bujanowski, Jr. to Van Zant. It does so under the guise of attacking the credibility of the witness’s prior testimony by showing an earlier inconsistent statement. This statement, however, is hearsay. We agree with the trial court that the witness’s statement cannot be received as substantive evidence.

“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.” Commonwealth v. Darden, 311 Pa.Super. 170, 175, 457 A.2d 549, 551 (1983). See also: Commonwealth v. Glover, 399 Pa.Super. 610, 614, 582 A.2d 1111, 1113 (1990); Commonwealth v. Cohen, 371 Pa.Super. 558, 564-565, 538 A.2d 582, 585 (1988), appeal dismissed, 488 U.S. 1035, 109 S.Ct 858, 102 L.Ed.2d 983 (1989); Commonwealth v. Cassidy, 315 Pa.Super. 429, 433, 462 A.2d 270, 272 (1983).

When a statement is offered in evidence to prove the truth of a fact asserted therein, the speaker’s credit and the circumstances of the utterance become basic to a proper evaluation of the statement. Therefore, the hearsay rule generally excludes such evidence unless the speaker is on hand to personally testify.

Commonwealth v. DiSilvio, 232 Pa.Super. 386, 391, 335 A.2d 785, 787-788 (1975). See: Commonwealth v. Underwood, 347 Pa.Super. 256, 259, 500 A.2d 820, 822 (1985) (“Hearsay is generally inadmissible as evidence because the competency and veracity of the original speaker are not subject to examination.”). See also: Commonwealth v. Thomas, 372 Pa.Super. 349, 356, 539 A.2d 829, 833 (1988); Commonwealth v. Whiting, 358 Pa.Super. 465, 478, 517 A.2d 1327, 1334 (1986). “The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact.” Commonwealth v. Haber, 351 Pa.Super. 79, 83, 505 A.2d 273, 275 (1986). Therefore, our Supreme Court “has long adhered to the principle that the use of hearsay evidence is to be discouraged, and [the] policy against its use is generally recognized as particularly strong.” Heddings v. Steele, 514 Pa. 569, 574, 526 A.2d 349, 351 (1987) (footnote omitted).

It has been said that “ l[t]he principle reason for excluding hearsay is the danger that the declarant’s credibility cannot be assessed.’ ” Commonwealth v. Sanders, 260 Pa.Super. 358, 366, 394 A.2d 591, 595 (1978), quoting Commonwealth v. Dugan, 252 Pa.Super. 377, 386, 381 A.2d 967, 971 (1977) (Spaeth, J., concurring). In this regard, the Supreme Court has observed:

The predicate supporting the rejection of hearsay evidence is its assumed unreliability because the declarant from which the statement originates is not before the trier of fact and therefore cannot be challenged as to the accuracy of the information sought to be conveyed. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); Stidum v. Trickey, 881 F.2d 582 (8th Cir.1989); Martinez v. Sullivan, 881 F.2d 921 (10th Cir.1989); United States v. Koskerides, 877 F.2d 1129 (2d Cir.1989); United States v. Bentley, 875 F.2d 1114 (5th Cir.1989); Commonwealth v. Galloway, 476 Pa. 332, 382 A.2d 1196 (1978); Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972); Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972). It also offends an essential concept of this nation that an accused has a fundamental right to confront his accuser. Dutton v. Evans, supra; Commonwealth v. Galloway, supra; Ransom, supra.

Commonwealth v. Smith, 523 Pa. 577, 592-593, 568 A.2d 600, 608 (1989). The Supreme Court has elaborated further as follows:

A hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence. Perhaps such a statement’s most telling deficiency is it cannot be tested by cross-examination. According to Dean Wigmore, cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 5 Wigmore, supra, § 1367. Nor is the declarant under oath when the out-of-court statement is uttered. This court has long recognized the oath requirement as a further assurance of reliability. Commonwealth v. Stewart, 1 Serg. & Rawle 342, 344 (1815); Longenecker v. Hyde, 6 Binn. 1, 2 (1813). Out-of-court declarations also deprive the trier of fact of an opportunity to examine the demeanor of the declarant. Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 495-496, 71 S.Ct. 456, 468, 95 L.Ed. 456 (1951). Moreover, an iru-court declarant may be impressed with the solemnity of the proceeding and may be reluctant to lie in the face of the party against whom the statement is directed. Fed.R.Evid. Art. VIII, Hearsay, “Introductory Note: The Hearsay Problem,” advisory committee’s note, reprinted in 56 F.R.D. 183, 288 (1973). The confrontation clauses of the federal and state constitutions, U.S. Const, amend. VI; Pa. Const, art. I, § 9, are manifestations of these beliefs and attitudes.

Heddings v. Steele, supra, 514 Pa. at 573, 526 A.2d at 351. Perhaps the most eloquent explanation of the rationale underlying the hearsay rule was that provided by Justice Musmanno, who said:

The primary object of a trial in our American courts is to bring to the tribunal, which is passing on the dispute involved, those persons who know of their own knowledge the facts to which they testify. If it were not for this absolute sine qua non, trials could be conducted on paper without the presence of a single flesh and blood witness. However, with such a pen-and-ink procedure, there would be no opportunity to check on testimonial defects such as fallacious memory, limited observation, purposeful distortions, and outright fabrication. The great engine of cross-examination would lie unused while error and perjury would travel untrammeledly to an unreliable and often-tainted judgment. Accordingly, nothing is more adamantly established in our trial procedure than that no one may testify to what somebody else told him. He may only relate what is within the sphere of his own memory brought to him by the couriers of his own senses.

Johnson v. Peoples Cab Co., 386 Pa. 513, 514-515, 126 A.2d 720, 721 (1956). See also: Semieraro v. Commonwealth Utility Equipment Corp., 518 Pa. 454, 457-458, 544 A.2d 46, 47 (1988); Heddings v. Steele, supra at 574, 526 A.2d at 351-352.

Because hearsay is regarded as unreliable, “[i]t is well settled in our law that hearsay evidence is inadmissible unless it qualifies under one of the recognized exceptions to that rule.” Commonwealth v. Smith, supra at 591, 568 A.2d at 607. See also: Commonwealth v. Wright, 455 Pa. 480, 484-485, 317 A.2d 271, 273 (1974); Commonwealth v. Franklin, 397 Pa.Super. 265, 277, 580 A.2d 25, 31 (1990). “Exceptions to the hearsay rule have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule.” Commonwealth v. Haber, supra at 83, 505 A.2d at 275.

Therefore, in order for [hearsay] testimony to be properly admitted in evidence, the proponent of such testimony must point to some exception to the hearsay rule which would justify the court in departing from the traditional notion that a party should not be deprived of the guaranty of truthfulness resulting from the oath of the declarant and the opportunity to cross-examine the declarant in order to test the accuracy of the observations upon which it was based.

Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 493, 240 A.2d 71, 73 (1968). See: Heddings v. Steele, supra at 574, 526 A.2d at 352 (“To insure a party the guarantees of trustworthiness resulting from a declarant’s presence in court, a proponent of hearsay evidence must point to a reliable hearsay exception before such testimony will be admitted.”).

In the instant case, the Commonwealth asserts that the hearsay statement of Ronald Bujanowski, Jr. is admissible as substantive evidence under the Supreme Court’s holding in Commonwealth v. Brady, 510 Pa. 123, 507 A.2d 66 (1986). In Brady, the Court held that prior inconsistent statements of a non-party witness “may be used as substantive evidence where the declarant is a witness at trial and available for cross-examination.” Id. 510 Pa. at 125, 507 A.2d at 67 (emphasis added). By the express terms of the Court’s holding, Brady makes the presence of the declarant at trial an indispensable prerequisite to the admission of a prior inconsistent statement as substantive evidence. The Court’s analysis leaves no doubt that it is the declarant’s presence in court and availability for cross-examination which lend a sufficient degree of reliability to allow a prior inconsistent statement to be heard by the jury as substantive evidence. Thus, the Brady Court said:

The simple fact is that “the usual dangers of hearsay are largely nonexistent where the witness testifies at trial.” California v. Green, supra at 399 U.S. 155, 90 S.Ct. at 1933. By hypothesis in these situations, the out-of-court declarant is now a witness in-court where he or she is placed under oath, subject to cross-examination and under observation by the finder of fact.... Indeed, the cross-examination to which a recanting witness is subjected will likely be meaningful and vigorous since the witness is already “on the spot” in having to explain the discrepancies between earlier statements and direct testimony, or deny that the earlier statements were made at all.
The availability of cross-examination at trial also assures a meaningful opportunity for the trier of fact to observe the declarant who has been called upon and sworn as a witness and questioned as to the discrepancy between the prior statement and the direct testimony. The trier of fact may bring to bear his or her sensory observations, experience, common sense and logic upon the witness to assess credibility and to determine the truth and accuracy of both the out-of-court declarations and the in-court testimony.

Id., 510 Pa. at 128-129, 507 A.2d at 69. “Thus the important components of the Brady rule are that otherwise admissible prior inconsistent statements be given under highly reliable circumstances and the non-party declarant be subject to cross-examination in the proceeding where the prior statement is to be admitted.” Commonwealth v. Lively, 530 Pa. 464, 469, 610 A.2d 7, 9-10 (1992) (emphasis added).

The Commonwealth’s further reliance upon the decision of a panel of the Superior Court in Commonwealth v. Smith, 880 Pa.Super. 619, 625-627, 552 A.2d 1053, 1056-1057 (1988), is seriously misplaced. Smith has no application to the circumstances of the instant case. A prior inconsistent statement by a non-testifying witness in that case was received solely for impeachment purposes, and the trial court specifically instructed the jury that the prior inconsistent statement could not be considered “as proof of the matter asserted in the statement.” Id., 380 Pa.Superior Ct. at 627, 552 A.2d at 1057. It is not a logical and safe extension of the Smith holding to allow a jury to consider Bujanowski, Jr.’s prior inconsistent statement as substantive evidence.

The fact that the Commonwealth in all likelihood will not be able to establish participation in the burglaries by the defendant-appellees without using the extrajudicial statement made by Bujanowski, Jr. is an inadequate reason for jettisoning the safeguards of the hearsay exclusion. As the Superior Court has observed:

Evidentiary rules, including the hearsay rule, have a raison d’etre. Experience has taught us that trials conducted in accordance with such rules increase the likelihood of a fair and just resolution of the issues by the trier of fact. Otherwise, we would jettison the lot of them.
It is true, of course, that permitting the Commonwealth to introduce the out-of-court assertions ... against the defendant ... would make it easier to convict the guilty. Unfortunately, it would also make it easier to convict the innocent. If such a trade-off is acceptable, why not suspend the hearsay rule entirely when the Commonwealth introduces evidence in a criminal case? More defendants, guilty and innocent alike, would undoubtedly be convicted. The same result would obtain if we allowed the Commonwealth to introduce coerced confessions.
However, such a trade-off is not acceptable. ' It is a fundamental precept of law in Pennsylvania that one charged with crime, be it murder, child abuse, or keeping a public nuisance, comes to trial clothed in the presumption of innocence. If we bear this in mind, we will be less tempted to distort the law of evidence in favor of the Commonwealth in order to increase the conviction rate. The Commonwealth should be bound by the same rules of evidence, including the hearsay rule, as other litigants.

Commonwealth v. Haber, supra 351 Pa.Super. at 83-84, 505 A.2d at 276. The same concerns were expressed by the Supreme Court in the following manner:

Whether or not there is evidence that strongly suggests a finding of guilt, it is the responsibility of the Commonwealth to prove that conduct by legally sufficient evidence. Lest we, as a society, be accused of being barbaric, we must objectively test compliance with our standards before imposing such a penalty. Regardless of personal predelictions (sic), the law must strictly adhere to these fundamental precepts in the decision-making process.

Commonwealth v. Smith, supra 523 Pa. at 596, 568 A.2d at 610. See also: Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), cert. denied, — U.S. —, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991) (Commonwealth cannot establish prima facie case at preliminary hearing by hearsay evidence alone).

The prior inconsistent statement of Ronald Bujanowski, Jr. in the instant case does not qualify as admissible substantive evidence under Commonwealth v. Brady, supra, because the declarant will not be present in court and available for cross-examination. The Commonwealth has not contended, and, indeed, cannot contend, that the statement is admissible as substantive evidence under any other recognized exception to the hearsay rule. It seems abundantly clear, therefore, that the introduction of the extrajudicial statement of Bujanowski, Jr. is barred by the hearsay exclusion.

The Supreme Court has recently placed additional restrictions upon the use of prior inconsistent statements as substantive evidence. Thus, in Commonwealth v. Lively, supra, the Court held:

[A] prior inconsistent statement may be used as substantive evidence only when the statement is given under oath at a formal legal proceeding; or the statement had been reduced to a writing signed and adopted by the witness; or a statement that is a contemporaneous verbatim recording of the witness’s statements.

Id., 530 Pa. at 471, 610 A.2d at 10. See also: Commonwealth v. Burgos, 530 Pa. 473, 479, 610 A.2d 11, 14 (1992). In the instant case, the prior statement given by Bujanowski, Jr. to Detective Van Sant was not given under oath in a legal proceeding, and there is no evidence in the record to suggest that the statement was either contemporaneously recorded or reduced to writing and signed by Bujanowski. For this reason also, the statement would not be admissible as substantive evidence.

If this Court were to allow the hearsay statement of Ronald Bujanowski, Jr. to be used as substantive evidence, we would thereby sanction a clear violation of appellees’ constitutional right to confront and cross-examine their accuser, as guaranteed by the Sixth Amendment to the Constitution of the United States. See: Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972). See also: Commonwealth v. Crosland, 397 Pa.Super. 622, 626-628, 580 A.2d 804, 806-807 (1990); Commonwealth v. Sanford, 397 Pa.Super. 581, 588, 580 A.2d 784, 787-788 (1990); Commonwealth v. Kravontka, 384 Pa.Super. 346, 351-354, 558 A.2d 865, 867-869 (1989). The relationship between the hearsay rule and the Confrontation Clause was discussed by the United States Supreme Court in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), as follows:

Although we have recognized that hearsay rules and the Confrontation Clause are generally designed to protect similar values, we have also been careful not to equate the Confrontation Clause’s prohibitions with the general rule prohibiting the admission of hearsay statements. See California v. Green, 399 U.S. 149, 155-156, 90 S.Ct. 1930, 1933-1934, 26 L.Ed.2d 489 (1970); Dutton v. Evans, 400 U.S. 74, 86, 91 S.Ct. 210, 218, 27 L.Ed.2d 213 (1970) (plurality opinion); United States v. Inadi, 475 U.S. 387, 393, n 5, 106 S.Ct. 1121, 1125, n 5, 89 L.Ed.2d 390 (1986). The Confrontation Clause, in other words, bars the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. See, e.g., Green, supra, 399 U.S., at 155-156, 90 S.Ct., at 1933-1934; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968); Pointer v. Texas, supra. [380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923.]
In Ohio v. Roberts, we set forth “a general approach” for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. 448 U.S., at 65, 100 S.Ct., at 2538. We noted that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” Ibid. “First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case ..., the prosecution must either produce or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.” Ibid, (citations omitted). Second, once a witness is shown to be unavailable, “his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Id., at 66, 100 S.Ct., at 2539 (footnote omitted); see also Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972).

Id. at 810, 110 S.Ct. at 3146, 111 L.Ed.2d at 651-652.

When the prosecution seeks to introduce hearsay evidence which is not admissible under any firmly rooted exception to the hearsay rule, it bears the burden of proving that such evidence has sufficient indicia of reliability to withstand scrutiny under the Confrontation Clause. Idaho v. Wright, supra. To meet this burden, the prosecution must demonstrate “ ‘particularized guarantees of trustworthiness’ ” which are “drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.” Id. at 821, 110 S.Ct. at 3149, 111 L.Ed.2d at 655-656. “Thus, unless an affirmative reason, arising from the circumstances in which the statement was made, provides a basis for rebutting the presumption that a hearsay statement is not worthy of reliance at trial, the Confrontation Clause requires exclusion of the out-of-court statement.” Id. at 821, 110 S.Ct. at 3150, 111 L.Ed.2d at 656.

In Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the United States Supreme Court considered whether the Confrontation Clause had been violated by the use, as substantive evidence, of an out-of-court confession of an accomplice which had implicated the defendant. The Court found that the confession had been improperly admitted as evidence and held that, absent a showing of “sufficient ‘indicia of reliability* ” to overcome the strong presumption against the admission of uncross-examined hearsay, “there is no occasion to depart from the time-honored teaching that a co-defendant’s confession inculpating the accused is inherently unreliable, and that convictions supported by such evidence violate the constitutional right of confrontation.” Id. at 546,106 S.Ct. at 2065, 90 L.Ed.2d at 529-530 (footnote omitted). The Court stressed the inherent unreliability of and the specific dangers presented by the particular type of hearsay evidence which, the Commonwealth argues, should be admitted in this case. The Supreme Court said:

Our cases recognize that this truthfinding function of the Confrontation Clause is uniquely threatened when an accomplice’s confession is sought to be introduced against a criminal defendant without the benefit of cross-examination. As has been noted, such a confession “is hearsay, subject to all the dangers of inaccuracy which characterize hearsay generally. ... More than this, however, the arrest statements of a codefendant have traditionally been viewed with special suspicion. Due to his strong motivation to implicate the defendant and to exonerate himself, a codefendant’s statements about what the defendant said or did are less credible than ordinary hearsay evidence.” Bruton v. United States, 391 U.S., at 141, 88 S.Ct., at 1631 (White, J., dissenting) (citations omitted).
Thus, in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), we reversed a conviction because a confession purportedly made by the defendant’s accomplice was read to the jury by the prosecutor. Because the accomplice in that case, while called to the witness stand, invoked his privilege against self-incrimination and refused to answer questions put to him, we held that the defendant’s “inability to cross-examine [the accomplice] as to the alleged confession plainly denied him the right of cross-examination secured by the Confrontation Clause.” Id., at 419, 85 S.Ct., at 1077. This holding, on which the Court was unanimously agreed, was premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.
Over the years since Douglas, the Court has spoken with one voice in declaring presumptively unreliable accomplices’ confessions that incriminate defendants. Even Justice Harlan, who was generally averse to what he regarded as an expansive reading of the confrontation right, stated that he “would be prepared to hold as a matter of due process that a confession of an accomplice resulting from formal police interrogation cannot be introduced as evidence of the guilt of an accused, absent some circumstance indicating authorization or adoption.” Dutton v. Evans, 400 U.S. 74, 98, 91 S.Ct. 210, 224, 27 L.Ed.2d 213 (1970) (concurring in judgment).
Our ruling in Bruton illustrates the extent of the Court’s concern that the admission of this type of evidence will distort the truthfinding process. In Bruton, we held that the Confrontation Clause rights of the petitioner were violated when his codefendant’s confession was admitted at their joint trial, despite the fact that the judge in that case had carefully instructed the jury that the confession was admissible only against the codefendant. We based our decision in Bruton on the fact that a confession that incriminates an accomplice is so “inevitably suspect” and “devastating” that the ordinarily sound assumption that a jury will be able to follow faithfully its instructions could not be applied. Bruton, supra, 391 U.S., at 136, 88 S.Ct., at 1628.

Id. at 541-542, 106 S.Ct. at 2062-2063, 90 L.Ed.2d at 526-527 (emphasis added).

The Supreme Court’s decisions in Wright and Lee are controlling of the case now before this Court. The Commonwealth failed to demonstrate any “particularized guarantees of trustworthiness” with respect to the hearsay statement of Ronald Bujanowski, Jr. Indeed, the fact that the declarant promptly recanted his statement when testifying under oath at the preliminary hearing magnifies the inherently unreliable nature of the statement. To allow his statement to be admitted as substantive evidence, as the Commonwealth urges, would not only violate the hearsay rule of evidence but would deny to appellees their constitutional right to confront and cross-examine the only witness who has identified them as participants in the burglaries for which they are to be tried. Therefore, the decision of the trial court to exclude the statement as substantive evidence was correct and must be affirmed.

Order affirmed.

POPOVICH, J., concurs in the result.

      . The Commonwealth has certified that the trial court’s order, if allowed to stand, will substantially handicap its prosecution of the case. The appeal, therefore, is properly before the Court. See: Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992); Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). See also: Commonwealth v. Deans, 530 Pa. 514, 517, 610 A.2d 32, 33-34 (1992).

      . Charges against Ronald Bujanowski, Jr. were disposed of in Juvenile Court. .

      . The trial court in the instant case astutely recognized the necessity for the presence of the declarant in court to allow a prior inconsistent statement to be admitted under Commonwealth v. Brady. The trial court reasoned as follows:
      In the instant matter, the Commonwealth was proposing to offer as substantive evidence an out-of-court admission made to a detective by a witness who was not going to be available to the finder of fact and whose whereabouts were unknown. The Commonwealth proposed to do so by having the witness’ prior recorded testimony read into the record to form the basis for the out-of-court statement. This procedure has none of the safe guards referred to and relied upon by the Supreme Court in Brady and clearly is not covered by that court's holding therein. Without the opportunity to cross-examine Bujanowski, Jr. at trial, his prior statements to Detective Van Zant are therefore inadmissible.
      Trial Court Opinion at 4-5.


source: Caselaw Access Project

author: CIRILLO, Judge: McEWEN, Judge,

license: Public Domain

text:
    613 A.2d 1235
    Luis SANTIAGO and Laura Santiago, Appellants, v. PENNSYLVANIA NATIONAL MUTUAL CASUALTY INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 8, 1992.
    Filed Aug. 20, 1992.

      Stephen M. Older, Philadelphia, for appellants.
    Michael P. McKenna, Philadelphia, for appellee.
    Before McEWEN, CIRILLO and CERCONE, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Montgomery County granting the defendant/Pennsylvania National Mutual Casualty Insurance Company’s preliminary objections and dismissing the complaint filed by plaintiffs Luis and Laura Santiago, husband and wife. We affirm.

Luis Santiago was employed as a Quality Control Technician at United Contamination Control. On October 13, 1986, Santiago suffered a work-related injury to his left wrist. He was diagnosed as having a ganglion cyst on his wrist. After surgery was performed upon his wrist, Santiago began a physical therapy program. Santiago received weekly disability benefits pursuant to the Workmen’s Compensation Act [the Act], and continues to receive these benefits.

As a result of his injury, Luis Santiago developed a psychiatric condition known as Reflex Sympathetic Dystrophy (RSD). In his complaint, Luis Santiago alleges that RSD is usually caused by a direct injury to a nerve and is accompanied by varying “psychological and psychiatric conditions” including emotional instability, anxiety, and social withdrawal. Santiago sought psychiatric care in 1987. In September of 1989, Santiago left his wife in order to deal with his condition outside the pressures of marriage.

Since 1987, Santiago’s psychiatric reports have indicated depression and chronic suicidal thoughts, apparently aggravated by Santiago’s physical pain, his inability to work, and his sense of frustration and helplessness. On several occasions, beginning in July of 1989, Santiago was hospitalized for psychiatric care.

Santiago’s employer maintained workmen’s compensation insurance coverage through Pennsylvania National Mutual Casualty Insurance Company [Pennsylvania National]. Pennsylvania National paid for Santiago’s psychiatric treatment until August of 1989, at which time Pennsylvania National terminated payment. As a result of termination of payment for psychiatric care, Santiago filed a claim petition with the Workmen’s Compensation Bureau on February 26,1990. This petition is currently pending before Workmen’s Compensation Referee Carol A. Mickey.

In their complaint, Mr. and Mrs. Santiago allege that Thomas Murray [Murray] of Ringler Associates, Inc., informed their counsel, Robert H. Black, Esq., [Black] that he had been “commissioned by the Defendant [Pennsylvania National] to work out a structured settlement for wages for Plaintiff, Luis Santiago.” (Complaint, ¶ 46). Black and Murray entered into settlement negotiations in February of 1990. Negotiations continued for approximately three weeks.

During all times relevant hereto, Murray was acting as an authorized agent ... of Defendant and had informed Black that he had authority to settle the wage claim. During the negotiating period ... Murray presented several offers made by Defendant for proposed settlements concerning Plaintiff, Luis Santiago’s wages, but at no time discussed the issue of psychiatric bills____ At the end of the negotiating period ... Plaintiff, Luis Santiago, accepted an offer made by Defendant. Black informed Murray that the proposed settlement was acceptable to Plaintiff. Murray reconfirmed to Black that he had authority to settle, that he had full approval from Defendant and that he would begin final paperwork on the settlement. Black informed Plaintiff that the settlement ... had been reached and would be final, subject to the approval of the Court. Soon thereafter, [Michelle] Baker represented to Black that Murray did not have authority to settle, and therefore, the settlement agreement ... would not be acceptable to Defendant unless plaintiff would voluntarily agree to waive any claim for present and future psychiatric treatment.

(Complaint, ¶¶ 47-51).

Black advised Santiago of the terms of the agreement and Santiago accepted the settlement offer. Thereafter, Black was advised by Pennsylvania National’s representative, Michelle Baker, Esq., that Murray did not have authority to settle the claim and that Pennsylvania National would honor the agreement only if Santiago agreed to the waiver. Santiago believed this condition rendered the agreement impracticable, and Black informed Pennsylvania National that Santiago was unable to accept the offer with this condition.

In March of 1990, Santiago sought emergency medical care at Lower Bucks Hospital for the pain in his arm. While there, Santiago attempted to hang himself behind a door to an empty room. As a result of attempting to take his own life, Santiago was immediately admitted to Montgomery County Emergency Services for psychiatric care. He was discharged approximately one month later. In his discharge summary, Dr. Oscar D. Saldana noted that Santiago

claim[ed] that all his emotional problems would not exist if it weren’t for the excruciating pain he felt continuously on his left shoulder.... His depression seems to have lasted for at least four years following the accident that gave way to his present medical condition.

Luis and Laura Santiago filed this action against Pennsylvania National. Santiago alleges that the suicide attempt was the result of exacerbated depression caused by the collapse of the anticipated settlement agreement with Pennsylvania National. Luis Santiago alleged fraud, misrepresentation, negligent infliction of emotional distress and intentional infliction of emotional distress. He also alleges that Baker’s representations that Murray lacked authority to settle the claim were made with the intent to deceive Santiago, and that the insurance carrier exhibited bad faith in the handling of this claim. Santiago requested punitive damages for Pennsylvania National’s bad faith conduct. Laura Santiago claimed loss of consortium.

Pennsylvania National filed preliminary objections to the complaint. The Honorable Joseph A. Smyth sustained the objections and dismissed the complaint. On appeal, the issue presented is whether the trial court erred in finding the causes of action alleged were barred by the exclusive remedy provisions of the Pennsylvania Workmen’s Compensation Act. We are presented with the question of whether a plaintiff may assert causes of action sounding in intentional tort against a worker’s compensation insurance carrier based upon the improper handling of a worker’s compensation claim. The parties do not dispute the principle that worker’s compensation is the employee’s sole remedy and that under section 303(a) of the Act, 77 P.S. § 481(a), the employer is statutorily protected from common law tort claims. Further, the parties do not dispute that the employers’ immunities and protections under the exclusivity provision of the Act extend to the compensation insurance carrier. The confusion arises in the wake of the Pennsylvania Supreme Court’s decision in Martin v. Lancaster Battery Co. Inc., et al., 530 Pa. 11, 606 A.2d 444 (1992), and its effect, if any, on the application of the exclusivity provision in an action against the compensation insurance carrier when the carrier is acting, as Santiago alleges in his complaint, in bad faith and with the intent to deceive.

In an appeal from an order sustaining preliminary objections in the nature of a demurrer, the appellate court applies the same standard employed by the trial court; all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom are admitted as true for purposes of review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Guinn v. Alburtis Fire Co., 134 Pa.Cmwlth. 270, 577 A.2d 971 (1990); Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985).

In reviewing preliminary objections, only facts that are well pleaded, material, and relevant will be considered as true, together with such reasonable inferences that may be drawn from those facts, and preliminary objections will be sustained only if they are clear and free from doubt. Ohio Casualty Group Ins. Co. v. Argonaut Ins. Co., 92 Pa.Cmwlth. 560, 500 A.2d 191 (1985). A preliminary objection should be sustained only where it appears with certainty that, upon the facts averred, the law will not allow the plaintiff to recover. International Union of Operating Engineers, Local No. 66, AFL-CIO v. Linesville Construction Co., 457 Pa. 220, 322 A.2d 353 (1974).

Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint. See Pa.R.C.P. 1019; 4 Standard Pennsylvania Practice § 21:32; see also Pike County Hotels Corporation v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677 (1978) (at a minimum, the pleader must set forth facts upon which his cause of action is based). When ruling on preliminary objections, a court must generally accept as true all well and clearly pleaded facts, but not the pleader’s conclusions or averments of law. See 5 Standard Pennsylvania Practice § 25:8. See also Keirs v. Weber National Stores, Inc., 352 PaJSuper. 111, 507 A.2d 406 (1986).

Santiago argues that Pennsylvania National initiated settlement negotiations and had knowledge of his fragile psychological state. He further claims that through Murray’s representations, and later through Baker’s representations that Murray had no authority, he was induced to settle his claim on less than favorable terms. Additionally, Santiago avers that Pennsylvania National knew or should have known that the breakdown in the settlement agreement would aggravate his condition. Santiago seeks redress for injuries which he claims he suffered as a result of Pennsylvania National’s fraudulent and bad faith conduct, conduct which is outside the scope of the Act, for which the Act provides no remedy, and which resulted in aggravating his work-related injury.

Santiago argues that the injuries averred in his complaint are not work-related and did not arise in the course of his employment. Santiago contends, therefore, that this sufficiently places his claim outside of the scope of the Act, and that he consequently should be entitled to pursue this common law claim against the carrier. We cannot agree.

The Workmen’s Compensation Act [the Act] is the sole and exclusive means of recovery against employers for all injuries arising out of accidents occurring within the course of employment. 77 P.S. § 481(a). The exclusivity provision of the Workmen’s Compensation Act essentially “bars tort actions flowing from any work-related injury.” Kline v. Arden H. Verner Co., 503 Pa. 251, 256, 469 A.2d 158, 160 (1983). See also Alston v. St. Paul Ins. Companies, 389 Pa.Super. 396, 401, 567 A.2d 663, 666 (1989), affirmed, 531 Pa. 261, 612 A.2d 421 (1992).

In Alston, supra, a plurality of this court held that the employer’s workmen’s compensation insurer was entitled to the same immunity from suit as the employer in an action involving the processing of the compensation claim. Alston was injured and his employer’s compensation insurance carrier, St. Paul Insurance Companies (St. Paul) began paying benefits. St. Paul contracted with Vocational Services to obtain Alston’s medical records and monitor his recovery. Janet Rohrer, a rehabilitation nurse employed by Vocational Services, met with Alston and indicated that she would schedule an appointment for Alston to meet with John T. Williams, M.D., whom she characterized as a “miracle worker.” Id., 389 Pa.Superior Ct. at 397, 567 A.2d at 664.

Dr. Williams examined Alston, without the benefit of Alston’s medical records or x-rays, and told Alston that he was ready to return to work. Dr. Williams notified Ms. Rohrer that he would sign an affidavit of recovery. Having secured an affidavit of recovery, St. Paul approached Alston regarding a lump sum settlement of his compensation benefits. Alston rejected the offer as insufficient and St. Paul filed a petition to terminate benefits. Alston’s benefits were discontinued for nineteen months, at which time a referee denied St. Paul’s petition. Alston’s benefits were reinstated and he was awarded counsel fees. On appeal, the W.C.A.B. affirmed the benefits award but reversed the award of attorney’s fees on its finding of “reasonable contest.” Id.

Alston filed a civil action against St. Paul, Vocational Services, and Dr. Williams, alleging in his complaint that the defendants engaged in a course of tortious conduct through which they conspired to fraudulently deny Alston’s benefits due under the Act. Alston alleged that this conspiracy was advanced by the defendants’ negligent and intentional misrepresentations. Id. Summary judgment was granted in favor of the defendants and this court affirmed, stating: “The legal immunity which is afforded to employers and their compensation insurers extends not only to acts of negligence, but also to claims based on intentional, wanton and willful misconduct, such as those advanced in the case before us today.” Id., 389 Pa.Superior Ct. at 403, 567 A.2d at 667. See also Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 573-74, 521 A.2d 49, 50-51 (1987), allocatur granted 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed 517 Pa. 460, 538 A.2d 495 (1988) (“In the absence of the injury, there would have been no workmen’s compensation proceedings out of which the instant civil action arose.... The appellee has failed to state a cause of action in her complaint as all of the allegations have as the ultimate basis an injury compensable under the Workmen’s Compensation Act and her claims must be considered within the framework of the Act.”)

An appeal was taken to the Pennsylvania Supreme Court, which affirmed. The Court that held the exclusivity provisions of the Workmen’s Compensation Act “prohibit a tort action against the agents of the insurance carrier for injuries allegedly caused by their actions in handling the employee’s compensation claim.” Alston, 531 Pa. at 262, 612 A.2d at 421. The Court also stated that its holding in Kuney “encompasses those individuals or entities who perform or assist in performing the functions of the insurance carrier in handling workmen’s compensation claims as agents or employees of the carriers.” Id. at 423. “An employer’s liability and the liability of its compensation carrier are exclusively governed by the Workmen’s Compensation Act.” Id. at 424.

Here, as in Alston, the action was brought against the employer’s compensation carrier for tortious conduct in the course of handling the worker’s compensation claim. In both cases the plaintiffs sought compensatory and punitive damages for negligent and intentional misrepresentation, and in both cases the actions were dismissed on the basis of the exclusivity provisions of the Act. A distinction does exist with respect to the “lump sum” settlement negotiations in each case. In Alston, the settlement offer was refused as insufficient, prompting the carrier to file a petition to terminate benefits and providing the basis for Alston’s claim. Here, the settlement offer was initially accepted but later rejected when a waiver was added to the terms of the agreement, prompting a weakening of Santiago’s psychological health and his attempt at suicide, and forming the basis of Santiago’s claim. We are unable to discern a significant distinction between the action precluded in Alston and that precluded by Judge Smyth in this case. However, the supreme court decided Martin in the interim, and we must determine whether Martin affects the application of the exclusivity provision in this case.

In Poyser v. Newman & Co., Inc., 514 Pa. 32, 522 A2d 548 (1987), our supreme court held that the exclusivity provision bars a common law action against an employer to recover damages for an intentional tort. The court stated:

The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act [77 P.S. § 481(a) ] an exception the legislature did not see fit to put in.

Id., 514 Pa. at 38, 522 A.2d at 551. This reasoning was reiterated in Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 555 A.2d 766 (1989): “This Court has never acknowledged or recognized [an intentional tort] exception to the exclusivity provisions of our workmen’s compensation statute.” Id., 521 Pa. at 37, 555 A.2d at 771. In Martin, supra, the Pennsylvania Supreme Court held that where an employee alleges fraudulent misrepresentation on the part of the employer which caused an aggravation of a work-related injury, the employee is not barred from pursuing a common law claim against the employer. An employer is not insulated under the Act for “flagrant misconduct.” Martin, 606 A.2d at 448. The employer in Martin was charged with the responsibility of monitoring the level of lead in the employee’s blood. The employer intentionally withheld and altered Martin’s blood test results, causing aggravation of Martin’s injury and resulting in his common law claim against Lancaster Battery. Refusing to apply the exclusivity provisions of the Act, our supreme court reasoned that certain actions amounting to flagrant misconduct were never intended to fall within the protections and immunities of the Act:

Clearly, when the Legislature enacted the Workmen’s Compensation Act in this Commonwealth, it could not have intended to insulate employers from liability for the type of flagrant misconduct at issue herein by limiting liability to coverage provided by the Workmen’s Compensation Act. There is a difference between employers who tolerate workplace conditions that will result in a certain number of injuries or illnesses and those who actively mislead employees already suffering as the victims of workplace hazards, thereby precluding such employees from limiting their contact with the hazard and from receiving prompt medical attention and care.

Mart,in, 606 A.2d at 448; see also McGinn v. Valloti, 363 Pa.Super. 88, 525 A.2d 732 (1987), alloc, denied, 517 Pa. 618, 538 A.2d 500 (1988) (employee’s allegations that defendant’s intentional fraudulent misrepresentation that she would be fired from her job if she sought independent medical advice was outside the scope of the protection guaranteed the employer under the Worker’s Compensation Act).

We interpret our supreme court’s holding in Martin and its order denying allocatur in Valloti as allowing a limited exception to the application of the exclusivity provisions of the Act. We are reluctant, however, to extend that exception to the circumstances in this case. In both Martin and Valloti, the employer concealed, altered, or intentionally misrepresented information related to the work-related injury which resulted in aggravation of the injury. Neither case concerned the improper handling of the claim on the part of the employer’s carrier, as was the case here and in Alston, swpra. This, too, was the case in Kuney v. PMA Insurance Co., 525 Pa. 171, 578 A.2d 1285 (1990).

In Kuney, the Pennsylvania Supreme Court addressed an issue similar to the one before us: whether an employer’s immunity from tort actions, guaranteed by the Pennsylvania Workmen’s Compensation Act, protects the employer’s insurance carrier if it is alleged that the carrier engaged in fraud and deceit to deprive an injured employee of his compensation benefits. Kuney sustained an injury on the job and sought benefits from PMA, his employer’s compensation insurance carrier. PMA contested the claim. A referee determined that Kuney’s injury was a compensable work-related injury and that he was entitled to total disability benefits. The referee also determined that PMA had no reasonable basis to contest the claim, and therefore awarded Kuney interest on all past-due compensation, litigation expenses, and counsel fees. PMA appealed the referee’s decision to the Workmen’s Compensation Appeal Board [W.C.A.B.]. The W.C.A.B. reversed in part, concluding that PMA did have a reasonable basis to contest the claim. Kuney appealed, and the Commonwealth Court reversed the decision of the WCAB and reinstated Kuney’s award. Kuney v. Workmen’s Compensation Appeal Board, 127 Pa.Cmwlth. 628, 562 A.2d 931 (1989).

During this time, Kuney instituted a civil action against PMA, seeking damages for injuries allegedly sustained as a result of PMA’s fraudulent mishandling of his claim. PMA filed preliminary objections. The trial court sustained the objections on the basis that Kuney’s sole remedy for the injuries stemming from PMA’s conduct was provided in the Act. A panel of this court reversed, Kuney v. PMA Ins. Co., 379 Pa.Super. 598, 550 A.2d 1009 (1988), and held that the Act did not provide immunity from civil actions where the claimant alleged the insurer acted in bad faith in refusing the claim and that the injuries suffered as a result of the insurer’s conduct were separate and apart from the work-related injury.

The Pennsylvania Supreme Court reversed the panel’s decision, explaining that the Act provided for specific remedies for the injuries Kuney had alleged, including ten percent interest on due and unpaid compensation, 77 P.S. § 717.1, as well as for penalties up to ten percent for violations of the act, for violations of rules and regulations promulgated thereunder, or for violations of rules of procedure. The Act further provides that penalties may be increased to twenty percent in cases of unreasonable or excessive delay. 77 P.S. § 991. Moreover, the statute allows attorneys fees and costs to be assessed against an insurer which contests a compensation claim without a reasonable basis. Kuney, 525 Pa. at 175, 578 A.2d at 1287.

Quoting Kline v. Arden H. Verner Co., 307 Pa.Super. 573, 576, 453 A.2d 1035, 1036 (1982), aff'd 503 Pa. 251, 469 A.2d 158 (1983), our supreme court stated:

When an employee sustains injuries which bring him within the Workmen’s Compensation Act, the amount he is to be compensated depends upon the provisions of the Act. That compensation is his exclusive remedy. Its exclusivity is not destroyed and the employee does not acquire additional remedies merely because the provisions of the Act fail to provide what he deems to be adequate or full compensation for injuries sustained.

525 Pa. at 175, 578 A.2d at 1287.

For actions claiming fraud in the carrier’s handling of the compensation claim, the Act provides remedial provisions. See 77 P.S. §§ 701-797. In Kuney, the Pennsylvania Supreme Court relied heavily upon the fact that the Act itself provided remedies for the injuries Kuney alleged to have suffered as a result of PMA’s fraudulent denial of his claim. The court stated:

One salient feature of the statute is its statutory penalty provisions. The appellant argues that permitting a tort action would be inconsistent with the fact that the compensation statute provides a comprehensive system for adjudicating workers’ compensation disputes, including specific remedies for the alleged injury.

Kuney, 525 Pa. at 175, 578 A.2d at 1286-87. Our supreme court has clearly indicated that inasmuch as an employee’s claim is ultimately based upon an injury compensable under the Act, as is the case here,

he is limited to the remedies provided within the framework of the act. The exclusivity provisions of the workers’ compensation law prohibit a tort action against the insurance carrier for damages caused by the insurer’s allegedly intentional mishandling of the injured employee’s compensation claim.

Kuney, 525 Pa. at 177, 578 A.2d at 1288.

Recently, in Taras v. Wausau Insurance Companies, 412 Pa.Super. 37, 602 A.2d 882 (1992), this court illustrated the fine distinctions between actions arising as a result of the carrier’s mishandling of claims which have as their ultimate basis the underlying work-related claim, and actions which are not based upon an injury compensable under the Act and seek redress for a separate injury. There, Taras was involved in an automobile accident during the course and scope of his employment. Taras suffered physical injuries, as well as anxiety and depression. Wausau, the employer’s compensation carrier, provided benefits for Taras and coordinated his medical treatment. Id. at 38, 602 A.2d at 883.

In the course of coordinating medical treatment, an agent of Wausau insisted that Taras undergo electro-convulsive therapy. This treatment, Taras alleged, caused direct psychological damage and exacerbated his underlying condition, post traumatic stress disorder — “A condition which, according to [Taras’s] allegations, has its ultimate basis in Taras’s participation in the Vietnam War, and not in the underlying work-related accident, as [the carrier] contends.” Id. at 44, 602 A.2d at 887-88 (emphasis added). The Taras court explained the difference between this claim and those presented in Kuney and Alston:

The damages which appellants seek, therefore, are not the type which fall within the ambit of the administrative remedies provided for in the Act, nor are they otherwise compensable under the Act. Thus, the rationale behind Kuney and Alston for applying the exclusivity provision of the Act so as to provide immunity to carriers from suits by claimants, is inapplicable in this instance.

Id.; see also Tropiano v. Travelers Insurance Co., 455 Pa. 360, 319 A.2d 426 (1974) (injuries caused by medical treatment administered at the direction of the carrier are not the type of injuries for which the carrier should be immune from liability).

The damages which Santiago seeks are more analogous to those sought in Kuney and Alston. The instant case is factually and legally distinguishable from Martin, Tropiano, and Taras, and is reconcilable with Kuney and Alston. In Taras, the court explained the critical distinction as follows:

While the tortious acts of the carriers in [Kuney and Alston ] may have come after the original injury, they were not independent of it. Rather, in Kuney and Alston, the tortious acts of the carriers were completely intertwined with the original injury, as their tortious acts related to the fraudulent denial of benefits for the original injury.

Taras, 412 Pa.Super. at 45, 602 A.2d at 889. It is sufficiently clear in this case that the allegedly tortious acts of Pennsylvania National are “completely intertwined” with Santiago’s original compensable injury. Santiago avers in his complaint that his psychological deterioration was a result of his physical injury. Further, he avers that his depression and suicidal ideations occurred prior to the breakdown of the settlement agreement in February of 1990, in fact as far back as 1987. Although the alleged tortious acts of the carriers occurred after Santiago’s work-related injury, they were not independent of it. Taras, swpra.

Following the holdings in Kuney and Alston, we find the exclusivity provisions of the Act apply in this case and provide immunity to Pennsylvania National. Unlike the direct injury resulting from the carrier’s administration or coordination of medical treatment in Tropiano and Taras, Santiago’s averments concern the handling of his claim and his remedy is specifically addressed by the provisions of the Act. Santiago, therefore, must operate within the framework of the statute and is precluded, under the exclusivity provision, from seeking redress in tort against the insurance carrier. Kuney, supra.

We conclude that the law states with certainty that Santiago’s claims are barred under the exclusivity provision of the Workmen’s Compensation Act. International Union, supra. We, therefore, affirm the trial court’s order sustaining Pennsylvania National’s preliminary objections and dismissing the complaint.

Order affirmed.

McEWEN, J., files a concurring opinion.

McEWEN, Judge,

concurring:

While I join the majority Opinion, disquiet compels this expression. The Pennsylvania Supreme Court has made abundantly clear that the statutory declaration of the exclusivity provisions set forth in the Workmen’s Compensation Act precludes the presentation of any claim by an employee against the employer beyond the remedy afforded the employee by the Act. That Court has further decided that the exclusivity provision precludes the presentation of a common law tort claim by the employee against the employer even when the injury to the employee is caused by a deliberate and wanton disregard of the employer for the safety of its employees. Poyser v. Neuman and Co., Inc., 514 Pa. 32, 522 A.2d 548 (1987). The Act itself extended the immunity and exclusivity benefits enjoyed by the employer to the employer’s workmen’s compensation insurance carrier. It remained for the Supreme Court, however, to confer upon the workmen’s compensation insurance carrier immunity from tort liability even though the insurer was alleged to have engaged in fraud and deceit so as to deprive the injured employee of his workers’ compensation benefits. Kuney v. PMA Insurance Co., 525 Pa. 171, 578 A.2d 1285 (1990). And, most recently the Supreme Court extended the immunity of the employer and of the employer’s insurance carrier to parties who serve the interest of the insurance carrier when the employer and its carrier are confronted with a claim under the Act. Alston v. St. Paul Insurance Companies, et al., 531 Pa. 261, 612 A.2d 421 (1992).

The economic disparity between the employer and the employee in the form, inter alia, of availability of resources and immediacy of need — colloquially described as “the employer has the hammer” — was a basic consideration of the legislature when it designed the workmen’s compensation law. As a result, the legislature proceeded on the one hand to relieve an employee of the need to prove fault, and, on the other hand, to restrict the remedies of the employee against the employer and to limit the recovery from the employer. The legislature thereby effected what it viewed as an equitable adjustment of the disparate economic positions of the employer and the employee.

As a result of judicial decision, the following principle has been impressed upon the workmen’s compensation law as enacted by the legislature:

The employer and the compensation carrier of the employer and the agents or representatives of the carrier are immune from tort liability to an employee however flagrant and willful their behavior in causing the injury or in handling the claim for compensation.

However readily one might reject as Molly Maguire rhetoric the cry that the decisions confer upon the employer the license of oppressor, and while one would deny with dispatch the claim that the employer has been awarded a permit for flagrant and willful mistreatment, it does not seem unreasonable to conclude that the decisions go far beyond mere adjustment of the economically disparate positions of the employer and employee. Thus it is that I echo the call in Alston of the eminent Justice Ralph J. Cappy for corrective legislation because of his concern that this “well-intentioned interpretation may lead not only to absurdity but also to injustice”.

      . 77 P.S. §§ 1 at seq.

      . Employer immunity from tort liability has been extended to worker’s compensation insurers:
      Every employer liable under the act to pay compensation shall insure the payment of compensation in the State Workmen’s Insurance Fund, or in any insurance company ... authorized to insure such liability in this Commonwealth.... Such insurer shall assume the employer’s immunities and protection hereunder____
      77 P.S. § 501 (emphasis added). See Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971) (employer’s workmen's compensation insurer was included within term "employer” as used in immunity provisions of Workmen's Compensation Act and shares employer’s immunity from common-law liability); see also Brown v. Travelers Insurance Co., 434 Pa. 507, 254 A.2d 27 (1969) (listing policy considerations indicating the legislature’s intent that the insurance carrier would share in the employer’s immunity).

      . Section 481(a) provides in part:
      The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employe, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (1) or occupational disease as defined in section 108.
      77 P.S. § 481(a).

      . The lead opinion authored by President Judge Cirillo was joined by Judges Olszewski, Tamilia and Popovich. Judge Johnson and Judge Rowley filed dissenting statements in which Judge Melinson joined. Judge Brosky filed a concurring and dissenting statement. Judge McEwen did not participate in the decision.

      . In dissent, Justice Larsen stated that the conduct alleged by Kuney went beyond "unreasonable,” and therefore was outside of the Act. Id., 525 Pa. at 179, 578 A.2d at 1289. Kuney had alleged fraud, intentional infliction of emotional distress, misrepresentation and bad faith — conduct not addressed by the Act. He concluded, therefore, that the Act did not apply "to the economic and emotional harm suffered by a claimant due to the intentionally wrongful, obdurate, and fraudulent behavior of a workmen’s compensation carrier occurring after the employee has been separated from his place of employment." Id. at 177, 578 A.2d at 1288.

      . 77 P.S. § 481(a).

      . 77 p.s. § 501.

      . The sanctions provided by the Act are arguably rather meager penalties for flagrant and willful misbehavior by the employer or the carrier.


author: HOFFMAN, Judge.

text:
    613 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Nancy Evette ROSARIO, Appellant.
    Superior Court of Pennsylvania.
    Argued June 23, 1992.
    Filed Sept. 3, 1992.
    Reargument Denied Sept. 17, 1992.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    Joseph C. Madenspacher, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before JOHNSON, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from the order entered on August 21, 1991, which denied appellant’s motion to dismiss on double jeopardy grounds. Appellant raises the following contentions:

A. Whether the continued prosecution of the defendant for first and second degree murder is barred by the double jeopardy clauses of the United States and Pennsylvania Constitutions when the guilty plea tendered by the defendant was unequivocally accepted by the lower court and then was subsequently ordered to be withdrawn for no good cause?
B. Whether the continued prosecution of the defendant for first and second degree murder is barred by the statutory principles of double jeopardy embodied in 18 Pa.C.S.A. § 109 and § 110?
C. Whether the Commonwealth’s motion to quash appeal should be dismissed when the present cases involve non-frivolous appeals from final orders of the lower court rejecting the defendant’s double jeopardy claims?

Appellant’s Brief at 3. For the following reasons, we affirm.

On December 7, 1990, appellant was charged with criminal homicide and criminal conspiracy. After arraignment, appellant filed pre-trial motions, which were denied on May 6, 1991.

On May 13, 1991, pursuant to a negotiated plea agreement, appellant pled guilty to third degree murder. After an on-the-record colloquy, the plea was accepted. Sentencing was postponed pending the completion of a pre-sentence investigation. The pre-sentence investigation was completed, and on July 1, 1991, the Honorable Michael J. Perezous entered an order, in which he directed that appellant’s guilty plea be withdrawn. In his memorandum supporting the order, he cited a lack of factual basis as the reason warranting a withdrawal of the plea.

Appellant then filed a motion for reconsideration on July 11, 1991, contending that her continued prosecution for first and second degree murder constituted double jeopardy in violation of the Fifth and Fourteenth Amendments of the United States Constitution. On July 17,1991, appellant’s motion was denied. Appellant filed a notice of appeal on July 17, 1991. This appeal was docketed at No. 2623 Phi 1991.

On August 21, 1991, appellant filed an additional pretrial motion which contained, inter alia, a motion to dismiss on grounds of double jeopardy. That same day the lower court entered an order denying appellant’s motion to dismiss on double jeopardy grounds and stating that the Commonwealth may prosecute appellant for first and second degree murder. Appellant timely appealed this denial and her appeal was docketed at No. 2878 Phi 1991.

On May 12, 1992, our court granted a Commonwealth motion to quash the appeal filed at No. 2623 Phi 1991 (appellant’s first appeal), and denied the Commonwealth’s motion to quash the appeal docketed at No. 2878 Phi 1991 (appellant’s second appeal). Appellant first contends that her continued prosecution for first and second degree murder is barred by the double jeopardy clauses of the United States and Pennsylvania Constitutions because jeopardy attached when her guilty plea to third degree murder was unequivocally accepted by the lower court and then was subsequently ordered to be withdrawn without good cause or manifest necessity. We disagree, and find that this is the first time that appellant has been placed in jeopardy for first and second degree murder.

I. FEDERAL DOUBLE JEOPARDY

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” In a jury trial, jeopardy attaches when the jury is empaneled and sworn; in a non-jury trial jeopardy attaches when the court begins to hear evidence. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975). Thus, the prohibition of double jeopardy is irrelevant until jeopardy has once attached, that is, “until a defendant is ‘put to trial before the trier of facts, whether the trier be a jury or a judge.’ ” Id. at 388, 95 S.Ct. at 1064, 43 L.Ed.2d 265 (1975) (quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971)).

Federal case law has held that where a defendant is charged with one offense, pleads guilty to a different offense, the plea is withdrawn and defendant is then prosecuted on the original charge there is no violation of double jeopardy. The rationale of these holdings is that jeopardy has not attached for the original charge because the defendant was never put before a trier of fact on that charge. For example, in Gilmore v. Zimmerman, 793 F.2d 564 (3rd Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986), the court held that the double jeopardy clause did not bar a trial court from striking a guilty plea to involuntary manslaughter due to a lack of factual basis and requiring the defendant to stand trial for the original charge of criminal homicide. The court found that jeopardy had never attached on the original charge of criminal homicide because the charge had never been presented to a trier of fact. The court noted that, “[t]he interests protected by the Double Jeopardy Clause’s prohibition against successive prosecutions for the same offense simply are not implicated in the situation currently before us.” Id. at 570. See Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966, 970 (1981) (no violation of double jeopardy where defendant charged with first degree murder, pled to third degree murder, plea vacated by PCHA court and first degree charge reinstated; charge of first degree murder never reached a trier of fact).

In the instant case, although appellant was originally charged with criminal homicide which is classified as murder, voluntary manslaughter, or involuntary manslaughter, 18 Pa. C.S.A. § 2501(b), the charges of first and second degree murder were never submitted to a trier of fact. Appellant’s federal double jeopardy claim fails because she was never, in constitutional terms, placed once in jeopardy on the charges of first degree and second degree murder.

II. PENNSYLVANIA DOUBLE JEOPARDY

The relevant language of the double jeopardy provision in Article 1, section 10 of the Pennsylvania Constitution is essentially identical to that found in the United States Constitution. See Commonwealth v. Hogan, 482 Pa. 333, 342, 393 A.2d 1133, 1137 (1978). Pennsylvania’s courts have not given its citizens broader double jeopardy protection than that provided by the United States Supreme Court interpreting the federal constitution. Commonwealth v. Marconi, 340 Pa.Super. 463, 472 n..8, 490 A.2d 871, 876 n. 8 (1985).

In Commonwealth v. Metz, 425 Pa. 188, 228 A.2d 729 (1967), the defendant originally entered a negotiated, general plea of guilty to murder. Id., 425 Pa. at 189-90 n. 1, 228 A.2d at 729 n. 1. In return, the prosecutor was to advise the court that the crime rose no higher than second degree murder. The court accepted defendant’s plea, but because of testimony adduced at a subsequent hearing, the court ordered the plea withdrawn on grounds that it was not entered knowingly and voluntarily. Defendant was then brought to trial on charges of first degree murder and convicted.

On appeal to our Supreme Court, Metz claimed that his trial for first degree murder violated his right not to be placed in jeopardy twice for the same offense. Our Supreme Court first cited Pa.R.Crim.P. Rule 320, which states: “[a]t any time before sentence, the court may in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.” Id., 425 Pa. at 191, 228 A.2d at 730. The court then held that Metz had not been placed in jeopardy twice for the charge of first degree murder. “Accordingly, the discontinuance of appellant’s plea hearing was not by itself a sufficient reason for sustaining a plea of prior jeopardy.” Id., 425 Pa. at 193, 228 A.2d at 731.

More recently, in Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787 (1980), our Supreme Court held that where a defendant had been charged with first degree murder, pled guilty to third degree murder, the plea was set aside and defendant was then tried on charges of first degree murder, there was no violation of Pennsylvania’s guarantee against double jeopardy. The court based its holding on the rationale espoused in Metz, supra, finding that jeopardy had not attached. Id., 425 Pa. at 255-56, 405 A.2d at 889.

In the instant case, appellant was never placed in jeopardy for the crime of first degree murder. The Commonwealth’s attempt to now prosecute appellant on this charge constitutes the first time she has been placed in jeopardy for this charge. In light of our Supreme Court’s holdings in Metz and Klobuchir, we find that the Pennsylvania Constitution’s double jeopardy provision does not bar the prosecution of appellant for first degree murder.

III. STATUTORY CLAIMS

Appellant next claims that her continued prosecution for first degree murder is barred by the statutory principles of double jeopardy embodied in 18 Pa.C.S.A. §§ 109 and 110. This claim is meritless.

Section 109 of the Crimes Code states in pertinent part:

When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(3) The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two cases failure to enter judgment must be for a reason other than a motion of the defendant.
(4) The former prosecution was improperly terminated •after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.

18 Pa.C.S.A. § 109 (emphasis added). Section 109(3) only applies if a plea of guilty is “accepted by the court”. If this section of the Crimes Code means that a guilty plea is accepted when it is tendered and the court says, “The guilty plea is accepted,” then it appears to be in conflict with Pa.R.Crim.P. Rules 319 and 320. Rule 319(a) mandates judicial caution in accepting a guilty plea, saying:

The judge may refuse to accept a guilty plea and shall not accept it unless he determines after inquiry of the defendant that the guilty plea is voluntarily tendered.

42 Pa.C.S.A. Rule 319(a). Rule 320 provides: •

At any time before sentencing the court may in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

42 Pa.C.S.A. Rule 320. These rules clearly permit a court to set aside a guilty plea prior to the imposition of sentence in the exercise of its proper discretion.

We interpret section 109 of the Crimes Code to refer only to former prosecutions which resulted in a plea of guilty which continues to stand accepted by the court. Such a reading harmonizes with the meaning of the entire subsection 3 of section 109 and with the Comments to the Model Penal Code which form the basis for section 109.

In other words, where the judgment of conviction, guilty verdict or accepted plea of guilty continues to stand, there is a conviction for the purposes of the statute. But, if there is a reversal or vacation of the judgment, a setting aside of the verdict or the striking of the guilty plea, there is no conviction for purposes of the statute.

The Comments to section 1.09 of the Model Penal Code refer to judgments of conviction and guilty pleas still standing as barring further prosecution. “A plea of guilty accepted by the court has the same effect and the same qualifications as a verdict of guilty. So long as it stands and is capable of supporting a judgment, the defendant cannot be reprosecuted for the same offense or a greater offense ...” (emphasis added).

The above reading of section 109(3) eliminates the apparent conflict with Rule 320 and better harmonizes with the intent of the drafters of the Model Penal Code and the language of the entire subsection.

In short, we hold that where section 109 of the Crimes Code speaks of “a guilty plea accepted by the court,” it is speaking of a plea that stands and has not been stricken and does not speak to the power of the court to strike a guilty plea before sentence.

In the instant case, appellant’s plea was accepted and then withdrawn due to a lack of factual basis to support the plea. In light of the above discussion, we find that appellant’s plea was not “accepted by the court” as those terms are defined in section 109. Thus, appellant is not entitled to relief under 18 Pa.C.S.A. § 109(3).

Appellant also contend that section 109(4) applies because the “former prosecution” was “improperly terminated.” This claim is meritless.

The Pennsylvania Rules of Criminal Procedure grant the trial court broad discretion in the acceptance and rejection of plea agreements.

At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

42 Pa.C.S.A. Rule 320 (emphasis added). A trial judge is justified in ordering that a plea be vacated if he discovers that there is insufficient factual basis to support the plea. Gilmore v. Zimmerman, 619 F.Supp. 859, 864 (E.D.Pa.1985), affd 793 F.2d 564 (3rd Cir.1986), cert. denied 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 405 (1986); United States v. Hecht, 638 F.2d 651, 653 (3rd. Cir.1981).

In the instant case, the trial judge ordered that the plea be stricken due to an insufficient factual basis for the plea. The trial court was acting within its discretion and in compliance with 42 Pa.C.S.A. Rule 320. Consequently, we find that the. former prosecution was not “improperly terminated” and appellant is not entitled to relief under 18 Pa.C.S.A. § 109(4).

Further, appellant claims that she is entitled to relief under 18 Pa.C.S.A. § 110. We disagree.

Section 110 of the Crimes Code states in pertinent part: Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in Section 109 of this title ... and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(3) The former prosecution was improperly terminated, as improper termination is defined in Section 109 of this title ... and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

18 Pa.C.S.A. § 110 (emphasis added). In light of our previous determination that appellant’s former prosecution did not result in a conviction and that the former prosecution was not improperly terminated, we find that appellant is not entitled to relief under 18 Pa.C.S.A. § 110(1) or (3). For the foregoing reasons, we affirm the order of the trial court.

Order affirmed.

      . 18 Pa.C.S.A. § 2501.

      . 18 Pa.C.S.A. § 903.

      . Because of this court’s prior disposition of the Commonwealth’s motions to quash appellant’s appeals, we will not address appellant’s third issue. Accordingly, the only issues before this court are those raised in appellant’s appeal docketed at No. 2878 Phi 1991. An appeal from an order denying a defendant’s motion to bar retrial on double jeopardy grounds is immediately appealable. Commonwealth v. Simons, 342 Pa.Super. 281, 285, 492 A.2d 1119, 1121 (1985), appeal granted, 509 Pa. 492, 503 A.2d 929 (1986), aff'd, 514 Pa. 10, 522 A.2d 537 (1987).

      . Appellant relies on the District Court opinion in Gilmore v. Zimmerman, 619 F.Supp. 859, 864 (1985), for the proposition that a guilty plea may be vacated and double jeopardy not offended where there exists a reason of manifest necessity and that in the instant case this manifest necessity did not exist. However, this is no longer the appropriate standard. See Gilmore v. Zimmerman, 793 F.2d 564, 571 (3rd Cir.1986) (finding of “manifest necessity” not required forjudge to order vacation of a plea).

      . In addition, the Court cautioned against manipulation and abuse of the provisions against double jeopardy by defendants if it held in favor of Metz. "[A] defendant in Metz’s position might be able to prevent a first degree conviction by pleading guilty to murder generally and later giving testimony inconsistent with his plea.” Id., 425 Pa. at 192, 228 A.2d at 731. On the other hand, a court might refuse to permit a plea to be withdrawn solely because of fear of the consequences (i.e. losing all possibility of a conviction). “Neither solution to the court’s dilemma would be in the public's best interest.” Id.., 425 Pa. at 192 n. 9, 228 A.2d at 731 n. 9.