author: JOHNSON, Judge:

text:
    495 A.2d 560
    COMMONWEALTH of Pennsylvania v. Arnell THOMPSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1985.
    Filed June 21, 1985.

      Marilyn J. Gelb, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Arnell Thompson, takes this appeal from the order denying his request for relief under the Post Conviction Hearing Act (PCHA). Appellant raises three issues for our consideration:

I. Where appellant was not brought to trial within one hundred and twenty days after his arrival in Pennsylvania pursuant to the Interstate Agreement on Detainers, were trial and appellate counsel ineffective for failure to move to dismiss the indictments and for failure to preserve this meritorious issue on direct appeal?
II. Where conviction of robbery and aggravated assault have arisen out of the same transaction, was appellant’s consecutive sentence on the aggravated assault charge illegal?
III. Where no record of appellant’s sentencing proceeding can be located, and appellant is hereby precluded from raising the issue that the sentencing judge did not state the reasons for his sentence on the record, should appellant be afforded a new sentencing proceeding?

Finding none of these issues to have merit, we affirm.

On April 20,1974, appellant was arrested for the shooting and robbery of a Philadelphia physician, Dr. Ross Noll. Thereafter, appellant absented himself numerous times from the jurisdiction, as we detailed more fully in appellant’s direct appeal. Commonwealth v. Thompson, 262 Pa.Super. 211, 396 A.2d 720 (1978). Ultimately, appellant was located in a New York prison and was returned to Pennsylvania on June 23, 1976 by detainer, as per the provisions of the Interstate Agreement on Detainers Act [IAD]. Trial was set for July 27, 1976. On July 23, 1976, appellant filed a motion to dismiss under Pa.R.Crim.P. 1100(f). Appellant’s case was called for trial on July 27, 1976, but a seven-day continuance was ordered by the court to allow for consideration of appellant’s Rule 1100 petition. On August 3, 1976, appellant’s Rule 1100 motion was denied. On October 26, 1976 a hearing was held on appellant’s motion to suppress. Appellant’s trial commenced on October 27, 1976, one hundred and twenty-seven days after appellant’s return by detainer from New York.

The relevant provision of the IAD reads:

(c) In respect of any proceeding made possible by this article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

42 Pa.C.S. § 9101 Article IV(c).

The supreme court has stated of the IAD that “[t]he purpose sought to be achieved by this act is to promote and foster prisoner treatment and rehabilitation programs by eliminating the uncertainties which accompany the filing of detainers.” Commonwealth v. Fisher, 451 Pa. 102, 106, 301 A.2d 605, 607 (1973). Our court, referring to Fisher, has noted, “When the defendant causes the delay he is not entitled to be discharged. See e.g., People v. Leonard, 18 Ill.App.3d 527, 310 N.E.2d 15 (1974).” Commonwealth v. Wilson, 231 Pa.Super. 451, 454 n. 6, 331 A.2d 792, 794 n. 6 (1974). In Commonwealth v. Washington, 488 Pa. 133, 411 A.2d 490 (1979), the defendant, six days before the running of the IAD period, consented to a continuance of the trial. On the new trial date, trial was again delayed because the defendant filed a motion to dismiss the charges for violation of the IAD. The supreme court found no violation of the IAD under these facts. The court held that the running of the period was tolled either by the defendant’s consent or by his own actions. In so ruling, the court cited to Article VI(a) of the IAD, which provides: “[T]he running of said periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” (Emphasis added). Cf. Commonwealth v. Kripplebauer, 322 Pa.Super. 317, 469 A.2d 639 (1983) (plurality) (Where defendant merely exercised his right under Pa.R.Crim.P. 307 by requesting a period of thirty days after his preliminary hearing in which to file his pre-trial motions, defendant neither voluntarily waived his speedy trial rights nor consented to their waiver per Commonwealth v. Washington, supra.)

Returning to the facts of the instant case we find, in keeping with Washington, supra, that there has been no violation of the IAD. When appellant filed his Rule 1100 motion, the court ordered that trial, set for July 27, 1976, be continued for seven days. Neither appellant nor his counsel objected to this seven-day continuance. See Commonwealth v. Diggs, 334 Pa.Super. 268, 482 A.2d 1329 (1984). As we previously noted, Article IV(c) provides that “for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance” 42 Pa.C.S. § 9101 Article IV(c). On the facts of the instant case, we find that the court properly granted a “necessary and reasonable” continuance “for good cause shown,” occasioned by appellant’s motion to dismiss under Rule 1100(f). When this seven-day continuance is excluded from the time period, it can be determined that appellant’s rights under the IAD were not violated because appellant was tried within 120 days of his return to Pennsylvania by detainer. As for appellant’s claim that trial and appellate counsel were ineffective for having failed to raise this IAD issue, since counsel will not be found ineffective for having failed to raise a baseless claim, we find appellant’s issue to have no merit. Commonwealth v. Blackburn, 328 Pa.Super. 483, 477 A.2d 548 (1984).

Appellant next argues that his double jeopardy rights, under both state and federal constitutions, were denied when he received a consecutive sentence on both the aggravated assault charge and the robbery charge. Appellant asserts that these two charges merge for sentencing purposes. We disagree.

For two crimes to merge for sentencing, one offense must necessarily have involved the other; that is, the essential elements of one must also be essential elements of the other. Commonwealth v. Olsen, 247 Pa.Super. 513, 372 A.2d 1207 (1977). To determine if a merger should be found, a court must examine the facts of the case to determine if there was one, or more than one act and, if more than one, whether these acts were part of a single transaction. Commonwealth v. Buser, 277 Pa.Super. 451, 419 A.2d 1233 (1980). As we said in Commonwealth v. Crocker, 280 Pa.Super. 470, 421 A.2d 818 (1980):

The merger of sentences doctrine is concerned not with conviction but punishment; its purpose is to preclude the imposition of separate punishments for what in practical effect was but a single criminal act. Thus, in merger of sentence cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.

Id., 280 Pa.Superior Ct. at 475, 421 A.2d at 820-21 (emphasis added). See also Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982).

In the instant case the victim, Dr. Ross Noll, testified that appellant entered the doctor’s office and put a sawed-off shotgun to Dr. Noll’s chest. Appellant then demanded all of the doctor’s money and ordered the doctor to get down on the floor, face down. While Dr. Noll was on the floor, an accomplice entered, tied Dr. Noll’s wrists and ankles, and placed a rubber examining glove and hand towel in the doctor’s mouth. A wallet, car keys, and gun were stolen from Dr. Noll’s person. After an interval of at least two or three minutes, during which time appellant and his accomplice searched the doctor’s office, appellant approached Dr. Noll and shot him in the head with the stolen handgun. Mercifully, Dr. Noll did not die from his injury, although he was temporarily blinded.

As set forth in the indictment, appellant was charged under the following subsections of the robbery statute:

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any felony of the first or second degree____

18 Pa.C.S. § 3701.

Appellant was also charged with aggravated assault under the following subsections:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. 18 Pa.C.S. § 2702.

As the previous review of the facts indicates, appellant completed the offense of robbery when he threatened Dr. Noll with a shotgun, bound and gagged the doctor, and then took his wallet, car keys and gun. The aggravated assault occurred afterwards when appellant later shot Dr. Noll. Thus, the facts show that in practical effect appellant committed more than one act. See Commonwealth v. Bryant, 282 Pa.Super. 600, 423 A.2d 407 (1980) (Where victims were not only threatened in the course of the robbery but were also subject to additional attacks by defendant when they were kicked or thrown to the ground, the assaults were separate and distinct acts from the robbery and warranted separate punishments.)

Appellant also argues that his sentence on the aggravated assault charge was illegal because the minimum sentence was more than half of the maximum, a violation of 19 P.S. § 1057. Appellant claims that his sentence on this charge was three to five years. Contrary to appellant’s assertions, the record reflects that appellant was sentenced to a term of three to ten years. Therefore, it is apparent that appellant’s argument has no merit.

In his last argument, appellant contends that his sentence should be vacated and remanded for re-sentencing because the notes of testimony from the sentencing hearing of March 23, 1977 are not part of the record. Appellant argues that this is a violation of the holding of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). We reject this argument.

We first note that although the Riggins case was decided on August 17, 1977, five months after appellant was sentenced, this fact alone does not preclude the applicability of Riggins, for the supreme court has applied the Riggins rule to sentences that antedated Riggins where the appeals from those sentences were “still in the process of litigation when Riggins was decided.” Commonwealth v. Mitchell, 487 Pa. 569, 571, 410 A.2d 758, 759 (1980). See also Commonwealth v. Kosta, 475 Pa. 85, 379 A.2d 884 (1977). In the present case, appellant’s direct appeal was pending when Riggins was decided so, arguably, Riggins might apply. However, appellant raised no issues in his direct appeal challenging his sentence on Riggins grounds. Instead, appellant for the first time raised this issue in his amended PCHA petition, which was filed on November 5, 1982, more than five and one-half years after appellant was sentenced. When this PCHA petition was filed, the notes of appellant’s sentencing hearing could no longer be located and to this date have not been found.

The supreme court has indicated that the PCHA court may consider the length of time between the occurrence of the asserted error and the filing of the PCHA petition, and the explanation for any delay. Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). We relied on Alexander in our decision in Commonwealth v. Jackson, 329 Pa.Super. 293, 478 A.2d 474 (1984). In Jackson, the defendant filed a PCHA petition alleging that he was not informed of his appellate rights and that counsel was ineffective in failing to appeal. The PCHA court dismissed the defendant’s petition without a hearing. We remanded for a hearing since it. could not be determined whether there was any merit to the defendant’s claim. However, we qualified our holding in this way:

We do not mean to infer that a defendant may sit idly by for decades and then seek an appeal from a judgment of sentence which, due to the passage of time, can no longer be supported because of lost records. We share the concern expressed in the Dissenting Opinion, at 3, in [Commonwealth v. Hairston, 323 Pa.Super. 449, 470 A.2d 1004 (1984) (plurality)]. The PCHA was never meant to afford defendants endless opportunities at bombarding the judiciary with frivolous appeals, nor to make a mockery of the concept of judgment finality. Nonetheless, a defendant should be given an opportunity to explain his delay.

Commonwealth v. Jackson, supra, 329 Pa.Super. at 300, 301, 478 A.2d at 478 (footnote omitted) (emphasis added).

In the instant case, appellant offers no explanation whatsoever for his delay. In view of appellant’s failure to explain his delay of more than five and one-half years in raising this issue, we find no error in the PCHA court’s denial of appellant’s petition. Commonwealth v. Courts, 315 Pa.Super. 124, 461 A.2d 828 (1983).

Moreover, appellant’s testimony at his PCHA hearing would seem to indicate that the sentencing judge did offer reasons for his sentence. On this point, appellant testified thusly:

DEFENSE COUNSEL: Do you recall during the course of that sentencing proceeding whether he told you what the reasons were for imposing the sentence he imposed? APPELLANT: No, I don’t.
Q. Do you recall that he told you anything in that courtroom on that day that had to do with why— [The testimony is briefly interrupted at this point, then resumed.]
Q. —with why the particular sentence was actually imposed that day?
A. No, I don’t.
Q. He did not say that on the Record?
A. Why?
Q. Why he imposed the sentence that he imposed? A. I don’t remember. He said a few things. Let me think. If I remember, he mentioned something about he [felt] that I had absconded and I mentioned to him when I wasn’t available at certain Court hearings that I was trying to obtain alibi witnesses.
Q. Mr. Thompson, to the best of your recollection did Judge Smith say anything else or give any other reason for imposing the sentence he did impose?
A. No, I don’t remember.

Finding none of Appellant’s arguments to have merit, we affirm.

Order affirmed.

      . 42 Pa.C.S. § 9541 et seq.

      . 42 Pa.C.S. § 9101.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    495 A.2d 565
    CONTINENTAL BANK, Appellee, v. Sarah FRANK, Appellant.
    Superior Court of Pennsylvania.
    Argued May 24, 1984.
    Filed June 28, 1985.

      Robert A. Hoffa, Philadelphia, for appellant.
    Gary A. Friedberg, Philadelphia, for appellee.
    Before DEL SOLE, MONTEMURO and CAVANAUGH, JJ.
   CAVANAUGH, Judge:

Sarah Frank, defendant below, appeals from the Order of the Philadelphia County Court of Common Pleas dismissing her petition to open a judgment confessed against her, denying her petition to set aside a sheriffs sale and vacating a temporary stay. For the reasons set forth in this Opinion, we affirm the Order of the lower court.

On May 4, 1982, the appellee, Continental Bank, filed a Complaint in Confession against the appellant alleging the following facts: In April of 1981, Continental Bank gave a $200,000.00 commercial real estate loan to the appellant. As security for that debt, the appellant gave to the Bank a mortgage on the appellant’s premises at 2007-2009 Walnut Street, Philadelphia, Pennsylvania. Appellee further alleged that Ms. Frank was in default of the mortgage payments.

Based on the allegations of the Complaint and pursuant to a confession of judgment clause in the mortgage note, the appellee confessed judgment against the appellant in the amount of $227,030.70. On the following day, May 5, 1982, the Bank filed a praecipe for a writ of execution on the judgment. The encumbered property was thereafter scheduled for sheriff’s sale on June 7, 1982.

On May 21, 1982, the appellant filed the instant petition to open and/or strike off the confessed judgment, and at the same time requested a sixty-day stay of all proceedings so that she could take depositions to support the allegations of her petition. The court declined to grant the requested stay.

On June 7, 1982, the date originally scheduled for the sheriffs sale of the attached property, the appellant renewed her request for a stay. The court, upon consideration of Ms. Frank’s motion, postponed the sale until the next available Sheriff’s Sale (July 12, 1982) conditioned on the posting of a one thousand dollar bond. Subsequently, on July 12, the property was sold for $245,000.00 to Jacques Zinman, who has been granted intervention in this action. Appellant did not move for another stay prior to the sheriff’s sale of July 12.

The lower court, per the Honorable Judge Charles A. Lord, unaware that the sale had taken place (Lower Court op. at 1), entered an order on July 22, 1982, that the appellant take depositions on her petition to open by August 20, 1982, and that such depositions be filed by September 15, 1982. The court further ordered that failure to file the depositions would, for the purpose of the disposition of the petition to open, result in the admission of all well pled facts in the appellee’s Answer to the petition to open. See Pa.R.C.P. 209; Phila.R.C.P. 140E.

In reliance on this order, the appellant filed a notice of deposition and request for the production of documents. Appellant also filed a petition to set aside the sheriff’s sale on August 2, 1982.

Appellee responded by filing a petition to strike Judge Lord’s discovery order of July 22 and to stay any further proceedings on the petition to open due to mootness. In Judge Lord’s absence, the Honorable Abraham J. Gafni stayed all proceedings pending the disposition of the Bank’s petition.

By order and opinion of October 18, 1982, Judge Lord disposed of all outstanding matters. The lower court held that satisfaction of the judgment by sale had mooted appellant’s petition to open, and so the petition to open was dismissed without prejudice to appellant to bring any other action for damages. With the petition to open dismissed, the lower court accordingly held that its July 27, 1982, discovery order and the stay ordered by Judge Gafni be vacated. Finally, the lower court looked to the merits of appellant’s petition to set aside the sheriff’s sale and denied that petition.

Appellant has filed this appeal raising the following issues: (1) did the lower court err in failing to grant appellant’s request for a stay pending disposition of the petition to open? (2) did the lower court err in failing to grant appellant’s petition to open? and (3) did the lower court err in failing to grant appellant’s petition to set aside the sheriff’s sale? We address these issues seriatim.

Appellant’s first argument is that the lower court erred in not granting the sixty-day stay request accompanying the petition to open. This issue is without merit. ' Under the Pennsylvania Rules of Civil Procedure, a court may grant a stay of proceedings when presented with a petition to open a confessed judgment:

(a) Relief from a judgment by confession shall be sought by petition____
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings____

Pa.R.C.P. 2959 (emphasis added). Appellant contends that since the petition to open established prima facie grounds for relief, the lower court was obligated to issue both a rule to show cause, and a stay of proceedings. This interpretation is clearly erroneous since the rule specifically provides that if prima facie grounds exist, a rule to show cause is mandatory, while a stay of proceedings is merely discretionary. Appellant has failed to present any arguments to the effect that the lower court abused its discretion in refusing to grant a stay of proceedings. Thus, we find no merit to appellant’s first issue.

Appellant’s second issue is that the lower court erred in failing to grant her petition to open. The lower court did not address the merits of the petition to open, but determined instead that the petition was moot since the property was already sold. Citing Liggett v. Ritter, 54 Pa.Super. 405 (1913), the lower court opined that the payment of a debt has the effect of discontinuing a petition to open the underlying judgment.

While we agree with the disposition reached by the court below, we do so simply on the grounds that, in light of the sale, the opening of the confessed judgment is no longer the appropriate remedy for the appellant.

Notwithstanding authority recognizing that legal title to real property sold at execution does not pass until delivery of the execution deed, it has long been recognized that the purchaser’s interest in the property commences prior to such delivery. Thus, it has been held that when the property is knocked down to the purchaser, he acquires an equitable interest in the property, as well as a right to a deed on complying with the terms of the sale.

13 Standard Pennsylvania practice 2d § 75:47, at 146 (footnotes omitted). See, e.g., Conlen v. Girsh, 358 Pa. 109, 56 A.2d 231 (1948). Therefore, the purchaser of the mortgaged property, Zinman, acceded to his interest in the realty on the date of the execution sale, July 12, 1982. Even if the judgment confessed against the appellant could now be opened, the appellant would not be entitled to repossession of the property. The legislature has expressly provided as follows:

The reversal or modification of any order of a court in a matter in which the court has jurisdiction of the sale, mortgage, exchange or conveyance of real or personal property shall not divest any estate or interest acquired thereunder by a person not a party to the appeal.

42 Pa.C.S.A. § 5105(f) (1981). This has long been the law. See generally 13 Standard Pennsylvania practice 2d § 75:81 (1983); 15 P.L.E., Execution § 147 (1959). The purpose of this rule as well as those which preceded it is to protect the purchaser’s title in the event of a reversal of the judgment under which the sale was made. See Mancine v. Concord-Lib. S. & L. Ass’n, 299 Pa.Super. 260, 274 n. 7, 445 A.2d 744, 751 n. 7 (1982) (Price, J., concurring). Accordingly, it would have been a futile act for the lower court to have considered and, if justified, to have opened the judgment against the appellant since the opening of the judgment would not affect the third party’s right to the premises.

The final issue is whether the lower court erred in failing to grant appellant’s petition to set aside the sheriff’s sale. A petition to set aside a sheriff’s sale is addressed to the sound discretion of the lower court, whose decision will not be reversed absent a clear abuse of discretion. Fidelity Bank v. Pierson, 437 Pa. 541, 264 A.2d 682 (1970); Marine Bank v. Huhta, 279 Pa.Super. 130, 420 A.2d 1066 (1980).

Appellant contends that the lower court abused its discretion in that the sale price was grossly inadequate, and that the lower court’s discovery order was outstanding at the time of the sale.

While mere inadequacy of price is not a sufficient basis for setting aside a sheriff’s sale, Fidelity Bank, supra, it has long been established that gross inadequacy of price is a sufficient basis. Capozzi v. Antonoplos, 414 Pa. 565, 201 A.2d 420 (1964). Here, the property was sold for $245,000, while appellant claims that its value was in excess of $400,000. Appellant failed to support this allegation of value by providing an accurate appraisal by experts or other competent evidence. See Western Savings Fund Society v. Wytish, 68 Pa.D. & C.2d 104 (C.P.Philadelphia 1974), aff'd, 229 Pa.Super. 766, 325 A.2d 817 (1974) (mere assertion of value of property by party is not enough). Furthermore, the outstanding mortgage balance must be considered in determining the adequacy of the sale price. Vend-a-Matic, Inc. v. Frankford Trust Co., 296 Pa.Super. 492, 442 A.2d 1158 (1982). Here, the outstanding mortgage debt including interest, late charges, and attorney’s fees was $227,030.70. Considering this sum plus the costs of execution, we find no abuse of discretion in the lower court’s failure to set aside the $245,000 sale price as grossly inadequate.

Appellant also contends that the sheriff’s sale should have been set aside because the discovery order issued by the court following the sale demonstrated that the lower court found sufficient merit to the allegations contained in the petition to open. The lower court, however, stated that it entered the discovery order as a matter of course and was unaware that the sale had taken place. Furthermore, assuming that the discovery order was entered because the petition to open was viewed as meritorious, we fail to see why it would impact on the execution, since execution may still proceed even where a judgment has been opened. See, e.g., Markofski v. Yanks, 297 Pa. 74, 146 A. 569 (1929). Thus, this contention affords no basis to attack the sheriffs sale.

Order affirmed.

      . This amount included remaining principal of $196,423.54, interest of $19,155.27, late charges of $1,630.72, and attorney’s fees of $9,821.17.

      . Appellant subsequently admitted that she had failed to allege any ground for striking off the judgment. Appellant's Answer to Plaintiff’s New Matter at ¶¶ 13, 14.

      . In her petition to open the confessed judgment, the appellant averred: (1) because of multiple representation by her prior counsel, there existed a conflict of interest and appellant was not fully advised as to all aspects of the loan agreement; (2) she was fraudulently induced to enter the loan agreement because of a scheme between the Bank and her prior counsel; and (3) mortgage payments in excess of $30,000.00 were not reflected in the confessed judgment.

      . We also note that appellant herself could have forced a stay of execution by entering a bond with the prothonotary. See Pa.R.C.P. 3121(a)(2).

      . There is also authority for the proposition “that the interest acquired by an execution purchaser under a deed duly executed, acknowledged, and delivered relates back to the time of the sale....” 13 Standard Pennsylvania Practice 2d § 75:47, at 146 (citing Pennsylvania S.V.R. Co. v. Cleary, 125 Pa. 442, 17 A. 468 (1889); Hardenberg v. Beecher, 104 Pa. 20 (1883); Slater’s Appeal, 28 Pa. 169 (1857); Smith v. Grim, 26 Pa. 95 (1856); Hoyt v. Koons, 19 Pa. 277 (1852)).

      . It has been held that the protection of this law applies only where the underlying judgment is voidable. Where the judgment is deemed void ab initio, the sale confers no title. See Mancine v. Concord-Lib. S. & L. Ass’n, 299 Pa.Super. 260, 445 A.2d 744 (1982). A judgment which is later opened, as opposed to stricken off, is voidable.

      . We note further as did the lower court, that our disposition of this issue is without prejudice to any other remedy which the appellant might have.

      . Pa.R.C.P. 3132 provides for the setting aside of a sheriffs sale: RULE 3132. Setting Aside Sale
      Upon petition of any party in interest before delivery of the personal property or of the sheriff’s deed to real property, the court may, upon proper cause shown, set aside the sale and order a resale or enter any other order which may be just and proper under the circumstances.


author: CAVANAUGH, Judge: BECK, Judge,

text:
    495 A.2d 569
    COMMONWEALTH of Pennsylvania, Appellee, v. Hector RODRIGUEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1984.
    Filed June 28, 1985.

      John P. Cotter, Philadelphia, for appellant.
    Janet McGarry, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, BECK and TAMILIA, JJ.
   CAVANAUGH, Judge:

In this case, Hector Rodriguez appeals from the judgment of sentence entered against him after he was found guilty by jury of Involuntary Deviate Sexual Intercourse, 18 Pa. C.S. § 3101. Appellant alleges that the trial court erred in several respects and requests that we order a new trial or dismiss the charge. We find appellant’s contentions to be without merit.

The evidence viewed in the light most favorable to the Commonwealth as verdict winner reveals that the complaining witness, a fourteen year old boy named Pedro Falu, went to the apartment of his uncle, the appellant, Hector Rodriguez, on Friday, March 26, 1982, for purposes of “running away” with him to New York. That evening, appellant committed the sexual assault which is the basis of this appeal. Pedro stayed with appellant until the following Tuesday, when appellant and two others took him to an abandoned factory, robbed him, tied him up atop a boiler some six feet above the ground, and departed, leaving the boy there alone for an undetermined period of time. After loosening the gag that had been placed over his mouth, young Pedro’s cries for help were eventually heard and he was taken to a hospital.

Appellant’s first contention is that the court below erred in admitting the prior inconsistent statement of a defense witness, Max Cross. On the stand, Mr. Cross denied any participation in the robbery of Pedro Falu. The prosecutor, in an attempt to impeach Cross’ testimony, introduced a statement Cross had made to the police wherein he admitted his participation in the robbery. Appellant now alleges it was error to admit this prior inconsistent statement because the prosecutor in fact knew that Cross had not participated in the robbery. Importantly, appellant does not argue that Cross never made the prior statement, nor does he argue that there is no inconsistency between the two statements. Rather, he argues that a prosecutor may not knowingly introduce false evidence. In support of this, appellant cites Commonwealth v. Moehring, 445 Pa. 400, 285 A.2d 487 (1971). Unlike the instant case, Moehring dealt with a prosecutor who knowingly introduced false evidence as part of his case-in-chief and the Commonwealth’s case against the defendant rested on this evidence. Appellant has not proven that the prosecutor “knew” the prior statement was false nor has he briefed any reasons substantiating this allegation. Moreover, appellant has not asserted that the Commonwealth’s case rested on this “evidence.”

Our review of the record reveals that, even before Cross took the stand at the behest of the defense, the defense anticipated the impeachment that subsequently ensued. Appellant assumed the risk of the impeachment when he decided to have Cross testify.

As a matter of policy, our courts admit prior inconsistent statements in order to call into question a witness’ credibility in general and to alert the jury of the potential for error in his testimony. See Commonwealth v. Woods, 275 Pa.Super. 392, 418 A.2d 1346 (1980). The prior statement in the instant case was not offered to prove the truth of the matter asserted; it was offered to cast doubt on the witness’ trustworthiness. The basis of this manner of impeachment lies in the inconsistency of the statements and it matters not if the prosecutor believed that the prior statement reflected the truth less accurately than the statement made on the stand. We shall defer to the jury’s inherent ability for judging the character of witnesses, and we hold that the prior inconsistent statement was properly admitted as a tool to that end. See Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1982).

Appellant next contends that the mother of the complaining witness should not have been permitted to testify as to what her son, Pedro Falu, told her at the hospital on April 1, 1982.

On Wednesday night, after being taken to the hospital, Pedro Falu spoke with his mother, Mrs. Rosa Rodriguez. On this first meeting with his mother after he had run away the previous Friday, Pedro told his mother about the sexual assault perpetrated upon him. In Commonwealth v. Freeman, 295 Pa.Super. 467, 441 A.2d 1327 (1982), we wrote:

Appellant further contends that the court improperly admitted testimony by the victim that she reported the alleged rape to others and also statements by the victim’s sister-in-law confirming that the victim related the incident to her immediately following its occurrence. The lower court held, and we believe properly so, that such testimony was admissible to show a “prompt complaint” of the alleged crimes. Of course, the fact that a victim made a prompt complaint is no longer required to sustain a rape conviction, See 18 Pa.C.S.A. § 3105. It is nonetheless competent evidence, properly admitted when limited to establish that a complaint was made and also to identify the occurrence complained of with the offense charged. Commonwealth v. Green, 487 Pa. 322, 328, 409 A.2d 371, 374 (1979); Commonwealth v. Pettiford, 265 Pa.Super. 466, 468, 402 A.2d 532, 533 (1979); Commonwealth v. Sanders, 260 Pa.Super. 358, 365, 394 A.2d 591, 594 (1978). See generally 4 Wigmore, Evidence §§ 1134-1140 (Chadbourn rev. 1972).
* * * * * *
In a prosecution for rape, fresh complaints made by the alleged victim, consistent with her testimony at trial, benefit from a special evidential rule that makes evidence thereof admissible in the Commonwealth’s case in chief. The rationale for this rule is best understood by reference to its background.
Evidence of the alleged victim’s “hue and cry” following rape has long been admissible at common law. Hue and cry is thought to follow rape like smoke follows fire. Proof of the former is circumstantial evidence of the latter. Conversely, unexplained lack of evidence of hue and cry that one might expect to ensue from rape casts doubt on the existence of the rape itself.
Fresh complaints of rape, undetailed, are a particular form of hue and cry that provides significant circumstantial support for the alleged victim’s subsequent testimony that she was raped. Such fresh complaints are classified evidentially as prior consistent statements. Freeman, 295 Pa.Super at 475-76, 441 A.2d at 1331-32. Even though Pedro did not run home shortly after the incident on the previous Friday to report it to his mother, we hold that Mrs. Rodriguez’s testimony concerning what Pedro told her in the hospital is admissible because it contains sufficient indicia of reliability. Pedro had run away from home and feared returning because he thought he might be placed in a “boys’ home” if he did. The statement to his mother was made not long after the last in a series of indignities inflicted upon him by his uncle, and it was made in the setting of a hospital where Pedro had been taken following his ordeal at the abandoned factory. He had shown initial reluctance to tell his mother what had happened, until she reminded him of her great love for him. Tearfully, he confided in her and reported the Friday night assault without going into excessive detail. If, during Mrs. Rodriguez’s testimony, she had failed to state that Pedro told her of the incident during their tearful hospital reunion, it may have cast some doubt in the minds of some jurors about whether the criminal incident at issue actually occurred. It was as natural for Pedro to confide in his mother as it is that smoke follows fire and, thus, it was not error to allow this testimony.

Appellant’s third and fourth contentions relate to the judge’s instruction to the jury. First, appellant maintains that the judge should have used appellant’s suggested instruction rather than his own as it gave a better definition of reasonable doubt, and also because it would have instructed the jury that the defense is not required to show motive to lie.

A trial judge need not charge the jury pursuant to every request made of him. Nor is there an exact formula that must invariably be followed in charging the jury as to reasonable doubt. Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974); Commonwealth v. Dozier, 294 Pa.Super. 249, 439 A.2d 1185 (1982). Our review of the instruction convinces us that the judge adequately guided the jury as to its duty.

Appellant’s other contention concerning the charge relates to the language used by the judge when he told the jury that a positive unqualified identification of one witness is sufficient for conviction. Appellant argues that the judge should have used the word “maybe” (may be?) instead of “is”. We are not prepared to agree that there is necessarily a substantive difference between the two choices. Nevertheless, this claim is without merit. In Commonwealth v. Kloiber, 378 Pa. 412, 424, 106 A.2d 820, 824 (1954), our Supreme Court stated: “A positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.” (Emphasis added.) See also Pennsylvania Suggested Jury Instructions (Crim) § 413B. We are therefore constrained to accept this portion of the charge as a proper statement of the law. Moreover, it is not proper to isolate selected portions of the charge in this manner; we must look at the charge as a whole to see if it fairly guided the jury. Kloiber, supra. Our review of the charge reveals that the jury was fairly guided.

Appellant’s fifth contention is that the complaining witness, Pedro Falu, should not have been permitted to testify as to his prior sexual encounters with the appellant. This claim must fail as well. While, generally, evidence that a defendant has committed other crimes is not admissible because of the prejudice such admissions would likely engender in the minds of the jurors, Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976), this court has held that the Commonwealth may introduce evidence of prior incestuous relations between an appellant and victim.

The general rule in Pennsylvania is that “evidence of criminal activity not charged in the indictment or information on which the defendant is being tried cannot be introduced at trial except in certain limited circumstances. . . ” Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694 (1978) (citations omitted) (emphasis added). In Commonwealth v. Bell, 166 Pa. 405, 31 A. 123 (1895), our supreme court ruled that a prosecution for incest was such an exception. The court there held that in such a case it is “competent for the Commonwealth to introduce evidence of illicit relations between the parties prior to the specific offenses laid in the indictment.” Id., 166 Pa. at 411, 31 A. at 123 (emphasis added).

Appellant’s reliance on Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944 (1976) is misplaced. Bradley simply adheres to the long held view that evidence of similar sexual crimes committed on or with persons other than the victim of the crime then being prosecuted is inadmissible to show a propensity for illicit conduct. See, e.g., Commonwealth v. Leppard, [271] Pa.Super. [317], [319], 413 A.2d 424, 425 (1979) (Spaeth, J., concurring). Accordingly, in the instant case, as in Leppard, we find Commonwealth v. Bell, supra, controlling and “ ‘conclude ... that it was proper for the Commonwealth to introduce evidence of prior illicit relations between the parties although such evidence disclosed other indictable offenses of like nature which were barred by the statute of limitations.’ 166 Pa. at 412, 31 A. at 123, 124.” Commonwealth v. Leppard, [271] Pa.Super. [317], [319], 413 A.2d 424, 425 (1979).

Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980).

Appellant’s sixth contention is that he should have been permitted to introduce certain polygraph evidence. Appellant acknowledges that the law at present does not permit this defense, see Commonwealth v. Pfender, 280 Pa.Super. 417, 421 A.2d 791 (1980), but he raises it in the event a petition for allowance of appeal to the Supreme Court becomes appropriate. While it is a commendable effort to preserve an argument, we are constrained to forbid the use of such evidence as there is a decided lack of precedent finding that polygraphic evidence is scientifically reliable. Thus, we forbid its introduction even where the defense and prosecution stipulate that it be submitted into evidence Commonwealth v. Pfender, supra.

Appellant’s seventh and final contention is, once again, that the judge’s instruction was erroneous. When commenting on the involvement of a co-defendant in the robbery, the judge allegedly said “there is no question as to whether the act was committed or not.” The judge states that this was a typographical error and that what he in fact said was “and there the question is whether the act was committed or not. . . .” (Lower Court Op. at 5). As no objection was made at the time, even if there had been no typographical error, the issue has been waived. See Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978). Furthermore, we reiterate that the jury charge must be viewed as a whole. See Commonwealth v. Kloiber, supra. A fair reading of the charge compels us to hold that this statement, even if made as appellant alleges it was, did not cause the jury’s truthfinding vessel to be steered off its course on the sea of justice.

Judgment of sentence affirmed.

BECK, Judge,

concurring:

I concur in the result. I, however, would find testimony of prior incestuous activity which occurred nine years before the incident complained of inadmissible as not relevant. Although testimony of prior incestuous relations between the parties is admissible under some circumstance, testimony of isolated acts remote in time should not be admitted.

As the majority indicates, the Pennsylvania Supreme Court, in Commonwealth v. Bell, 166 Pa. 405, 412, 31 A. 123 (1895), held admissible testimony of prior incestuous acts. The Bell court underscored that such evidence is “admissible if it is one of a series of acts indicating contin-uousness of sexual intercourse. ” (emphasis added).

Similarly, in Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980), testimony of prior incestuous acts was held admissible. The victim’s testimony painted a picture of sexual intercourse with her stepfather that had become routine pattern for a period of nine years. In Niemetz, unlike the case sub judice, the nine-year-old sexual act testified to was one link in a continuous chain of sexual assaults.

Testimony of prior incestuous acts was admitted in Commonwealth v. Leppard, 271 Pa.Super. 317, 413 A.2d 424 (1979). Once again, however, the victim testified to repeated sexual acts over a period of several years.

In contrast with these cases, the testimony offered in the instant case concerned acts which occurred nine years before. The past acts did not indicate a pattern of sexual intercourse in a series. Rather, the crime charged and the prior acts were isolated events. The prior acts were too remote and therefore not relevant as to whether the appellant was guilty of the act complained of.

Given the overwhelming evidence of appellant’s guilt of the crime charged, I would find the admission of the testimony of prior sexual acts harmless error.

      . We feel it incumbent upon us to note that even the implication of prosecutorial wrongdoing similar to that committed in Moehring is a very serious allegation that should never be invoked lightly.

      . In Commonwealth v. Quartman, 312 Pa.Super. 349, 458 A.2d 994 (1983), we held the Pennsylvania sexual offense provisions to be "gender neutral”. Thus, the analysis employed in Freeman where the victim was a female, should apply with equal force to the instant case where the victim is a fourteen year old male.

      . The crime in question appears to fall within the incest statute, 18 Pa.C.S. § 4302, as appellant was Pedro’s uncle. Caution demands us to note that even if appellant was not Pedro’s uncle by whole blood as the incest statute requires, we find the rationale in Niemetz to be applicable here. We do not find the issue of whether the appellant was of whole or half-blood to be important in the context of this case.

      . In Commonwealth v. Campbell, 342 Pa.Super. 438, 493 A.2d 101 (1985), appellee was found guilty of perpetrating statutory rape and incest upon his daughter. However, the lower court granted a new trial, and this court affirmed, because the court erroneously admitted evidence of a single sexual assault committed by appellee on his daughter approximately a-year-and-a-half prior to the criminal incident which was the basis of the trial. While we do not necessarily agree with Campbell, we find that the instant case is clearly distinguishable. In the instant case, Pedro testified three times that his uncle told him he "used to” perform the illicit act on Pedro when Pedro was younger, and his uncle also said that when Pedro was younger, he was a "faggot.” This clearly indicates that the acts testified to were not merely isolated incidents but constituted a series of illicit acts. The Bell court, supra, sought to guard against evidence of isolated acts by holding that such evidence is "admissible if it is one of a series of acts indicating continuous sexual intercourse.” Commonwealth v. Bell, 166 Pa. 405, 412, 31 A. 123 (1895).
      We further note that the testimony was admissible as an admission on the part of the appellant and that appellant spoke the words in an attempt to persuade Pedro to willingly submit to further illicit abuse. Although the acts testified to were remote, they were not isolated. Thus, neither Bell nor Campbell forbids their admission.


author: WIEAND, Judge: DEL SOLE, Judge,

text:
    495 A.2d 575
    Douglas BROOKS, Individually and as Guardian Ad Litem for Christopher D. Brooks, Appellant, v. Ann Widmann DECKER and Sue Carol Decker, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1984.
    Filed June 28, 1985.
    Petition for Allowance of Appeal Granted Nov. 12, 1985.

      Henry A. Goodall, Jr., Bellefonte, for appellant.
    James M. Horne, State College, for appellees.
    Before WICKERSHAM, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Christopher Brooks was riding a bicycle when he was struck by a vehicle owned by Sue Decker and operated by Ann Decker. Douglas Brooks, the father of Christopher, commenced an action on his own behalf and as guardian ad litem for his son to recover damages from both the owner and operator of the offending vehicle. The complaint contained three counts. The first count stated the minor’s claim for personal injuries; the second count stated a claim for medical expenses incurred by the father; and the third count stated a separate claim for the father’s mental distress. The third count averred that Douglas Brooks had not seen the accident occur but had arrived at the scene of the accident and observed his injured son before the son had been removed by ambulance to the hospital. The first count was settled with court approval for $50,000.00. The second count was settled by payment of medical bills to the father. The defendants filed preliminary objections in the nature of a demurrer to the father’s separate cause of action for his own mental distress. The trial court sustained these preliminary objections and dismissed the third count of the complaint because Douglas Brooks had not witnessed the accident which injured his son and also because the father’s action for his own injuries was barred by his failure to meet the statutory threshold requirements of section 301(a)(5) of the Pennsylvania No-fault Motor Vehicle Insurance Act of July 19, 1974, P.L. 489, 40 P.S. § 1009.-301(a)(5). Brooks appealed. We affirm.

The order sustaining preliminary objections in the nature of a demurrer to the third count of the complaint was consistent with the present state of the law in this Commonwealth. A parent does not have a legally recognized cause of action for negligently inflicted emotional distress caused by injuries to a child inflicted by an accident which the parent did not observe. See: Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). See also: Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981) (affirming by evenly divided court the decision of the Superior Court reported at 286 Pa.Super. 626, 427 A.2d 247 (1980)). Accord: Vattimo v. Lower Bucks Hospital Inc., 59 Pa.Cmwlth. 1, 428 A.2d 765 (1981), aff'd in part and rev’d in part, 502 Pa. 241, 465 A.2d 1231 (1983) (recovery for emotional distress not at issue in appeal to Supreme Court). See generally: Annot., 5 A.L.R.4th 833 (1981). If, as appellant contends, the law should now be changed to allow such a cause of action, that change must come from the Supreme Court.

In this case, moreover, a separate action to recover for appellant’s emotional distress was barred by Section 301 of the No-fault Motor Vehicle Insurance Act, supra, 40 P.S. § 1009.301, which abolishes tort liability for injuries arising from the maintenance or use of a motor vehicle unless certain threshold requirements are met. In the instant case, the averments of the complaint disclose that the appellant-father did not meet those threshold requirements. Therefore, a separate action for his mental and emotional distress cannot be maintained. In holding as we do, we reject appellant’s argument that he can rely upon the fact that the separate claim of his son met threshold requirements sufficient to allow a tort action for his injuries. The father’s claim for emotional distress is a separate cause of action; it is not derivative of the son’s right to recover for his injuries. To maintain a tort action for the father’s alleged injuries, it was necessary that he establish independently that his claim was allowed by the No-fault Motor Vehicle Insurance Act.

We conclude on review, therefore, that the order of the trial court was correctly entered.

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent.

In my view, the time has arrived when Pennsylvania courts should recognize a cause of action for emotionally-based physical injuries caused from harm or threatened peril to a third person with whom the plaintiff holds a special relationship, whether or not the plaintiff actually witnesses the accident or comes upon the scene shortly thereafter.

Looking to other jurisdictions, the majority of courts do deny recovery in these, cases. However, several jurisdictions have recognized the need to allow a cause of action for such tortious conduct and resulting harm.

Prior to 1968, nearly all courts in the U.S. denied recovery for emotionally initiated physical injury which was caused by concern over a third person where the plaintiff looked on from a point of safety and was not threatened himself. W. Prosser, Torts § 54, at 334 (4th ed. 1971). What emerged was the “Zone of Danger” test and worked to deny recovery for bodily harm “caused by emotional distress arising solely from harm or peril to a third person, unless the negligence of the actor has otherwise created an unreasonable risk of bodily harm to the ... [plaintiff].” Restatement (Second) of Torts § 313(2) (1965). California broke from tradition by permitting an action on behalf of a mother who was standing out of danger and witnessed her minor child’s death in an auto accident caused by defendant’s negligent conduct thereby resulting in the mother’s emotional disturbance, nervous shock and physical harm. Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 (1968). Pennsylvania followed suit by abandoning the zone of danger test and recognizing an action by a mother seeking to recover for physical and emotional injuries incurred when she saw, from a point of safety, her minor child struck by an auto. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1972). Foreseeability of harm was considered central in whether or not to allow recovery. The Dillon Court set forth several factors to be considered in determining forseeability which were adopted by Pennsylvania in Sinn. They were:

1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.
2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident from others after its occurrence.
3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship. Dillon v. Legg, 68 Cal.Rptr. at 80, 441 P.2d at 920 Sinn v. Burd, 486 Pa. 146, at 171, 404 A.2d 672, at 685.

The Sinn Court limited its holding: “Where the bystander is a mother who witnessed the violent death of her small child and the emotional shock emanated directly from personal observation of the event, we hold as a matter of law that the mental distress and its effects is a forseeable injury.” Sinn, 486 Pa. 146, at 173, 404 A.2d 672, at 686.

Here, the majority declines to consider the claim based on its belief that the present law does not recognize plaintiffs claim and that any change must come from the Supreme Court. What the majority fails to recognize, however, is that the language of the Supreme Court in Sinn, limited its holding by means of a footnote. The Court said:

[W]e need not here consider the case where the mother is notified of the accident by another. Nor do we consider the situation where the relationship between the plaintiff-bystander an the accident victim is more remote. These are questions which may properly be left for another day. Jurisprudentially, the remote and unexpected can best be excluded by reaching these issues on a more appropriate record. Id., 486 Pa. 146, at 173 n. 21, 404 A.2d 672, at 686 n. 21.

Leaving the issue clearly open, the Supreme Court next decided the case where a father sought to recover damages for negligent infliction of emotional distress from the driver of the auto which struck and killed his son and where the father neither witnessed the accident nor was in the immediate vicinity thereof but instead came to the scene after the son was taken to the hospital. In denying recovery, the Court carefully framed the issue:

The father did not witness his son’s accident, nor was the father in the immediate vicinity; of the accident scene. After being informed of the accident, the father hurried to the scene only to learn that his son had already been taken to the hospital. Yandrich v. Radic, 495 Pa. 243, 245, 433 A.2d 459, 460 (1981) (affirming by evenly divided court the decision of the Superior Court reported at 286 Pa.Super. 626, 427 A.2d 247 (1980)).

The Supreme Court noted that the facts did not meet the first two of the three forseeability factors adopted in Sinn.

We are here presented with a case which would decide a question clearly left unresolved by the Supreme Court. I would entertain the issue.

In Dziokonski v. Babineau, 375 Mass. 555, 380 N.E.2d 1295 (1975), the Massachusetts Supreme Court considered a case factually similar to the present one. A child alighted from a vehicle which was being operated as a school bus and, as the child was crossing the street, defendant’s vehicle struck and fatally killed the child. The child’s mother, who lived close by, came to the accident scene, and died while accompanying her daughter to the hospital. In ruling in favor of a cause of action for emotional distress damages caused by the defendant’s negligence, the Court approved the reasoning of a California court stating: “Manifestly, the shock of seeing a child severely injured immediately after the tortious event may be just as profound as that experienced in witnessing the accident itself.” Archibald v. Braverman, 275 Cal.App.2d 253, 79 Cal.Rptr. 723 (1963), See: Dziokonski v. Babineau, 380 N.E.2d at 1300. The Court found that the mother’s injuries were compensable if proved. The father also alleged emotionally based physical harm, but he did not state in his pleading the circumstances of his injury. The Court allowed a cause of action for the father if his claim was substantiated.

In Corso v. Merrill, 406 A.2d 300 (New Hampshire, 1979), the New Hampshire Supreme Court permitted the parents of an 8-year-old child to proceed to trial for emotional distress damages resulting from the sensory observation of an auto accident which permanently crippled the child. While in the kitchen, the child’s mother heard a “terrible thud” outside and then observed the injured child on the ground. The father heard his wife scream and followed her to aid the child. The court ruled that even though the mother did not actually see the accident, “[h]er auditory perceptions and her immediate observance of the accident are sufficient facts to meet the test of forseeability and state a cause of action.” Corso, 406 A.2d at 307. Also, the father was found to have alleged a compensible injury “because he heard his wife scream and immediately saw his daughter seriously injured, it can be said that he contemporaneously perceived the accident for he ‘was brought so close to the reality of the accident as to render [his] experience an integral part of it.’ ” Corso, 406 A.2d at 307; Landreth v. Reed, 570 S.W.2d 486, 490 (Tex.Civ.App.1978).

Texas has recently recognized a cause of action for mental anguish by the mother of a minor child injured when his motorcycle collided with a pickup truck although the mother did not witness the accident. Instead, the mother came to the hospital and caught glimpses through a cracked door of her child’s bloody legs while physicians were attending him. Sanchez v. Schindler, 651 S.W.2d 249 (Tex. 1983).

Lastly, Massachusetts has extended recovery to cases in which the plaintiff rushed to the hospital where the injured loved one is being treated. Ferriter v. Daniel O’Connell’s Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980). The court reasoned that:

A plaintiff who rushes onto the accident scene and finds a loved one injured has no greater entitlement to compensation for that shock than a plaintiff who rushes instead to the hospital. So long as the shock follows closely on the heels of the accident, the two types of injury are foreseeable. Ferriter, 413 N.E.2d at 697.

Most recently, however, the Massachusetts Appellate Court denied recovery to a mother who suffered emotionally-based injuries when she rushed to the scene of an accident mistakenly believing that the child injured was hers. Forseeability, the Court found, did not extend to this situation. Barnes v. Geiger, 15 Mass.App. 365, 446 N.E.2d 78 (1983).

Based on the fact that a father, approaching vicinity of his home, sees an ambulance speed by and then notices his son’s bicycle lying in the street and finally observing his injured child at the accident scene, I would hold that he may have suffered emotional trauma as if he’d witnessed the accident. I would permit the Appellant to proceed to trial. The father’s injuries, if proved, were forseeable in light of the negligence of Appellees. This would be a natural extension of the principles established in Sinn.

I would also find that Appellant’s claim is not barred for reasons of failing to qualify in his own right for the threshold damage requirements established under the No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.301. Because the father’s injuries were caused by and dependent upon his son’s injuries, the son’s damages should apply for the purposes of meeting the requirements of No-Fault. It is similar to spousal claims for loss of consortium. I do not find that the Act was intended to preclude emotionally-based physical injuries such as this if the threshold was otherwise met. For these reasons, I respectfully dissent.


author: DEL SOLE, Judge: SPAETH, President Judge,

text:
    495 A.2d 579
    SOLVENT MACHINERY AND FILTER SYSTEMS, INC., Appellee, v. TEAMSTERS LOCAL NO. 115 Affiliated With the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, an Unincorporated Association on Behalf of Itself and All Its Members and John P. Morris, Individually and as Secretary-Treasurer of Teamsters Local No. 115 and James Oliver, Individually and as Organizing Representative of Teamsters Local 115 and Thomas LaHart and Eric Buxbaum and John Doe and Jane Doe, Pickets, Appellants.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1985.
    Filed June 28, 1985.

      Norton H. Brainard, III, Philadelphia, for appellants.
    Before SPAETH, President Judge, and DEL SOLE and JOHNSON, JJ.
   DEL SOLE, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County which issued a preliminary injunction on October 14, 1982 against Teamsters Local 115, and certain named union officials and defendant pickets unnamed in the order. The president and owner of Solvent Machinery and Filter Systems, Inc., Appellee, had announced on October 11, 1982 that the plant had been sold and would be closed immediately for the purpose of taking inventory. The following day, on October 12, 1982, a picket line was established by Appellants to protest the termination of their employment. The employer then sought an injunction in the Court of Common Pleas by filing a Complaint in Equity. On October 14, 1982, a hearing was held at which witnesses for both sides testified. The court issued an injunction from which order this appeal was taken. Appellants seek reversal of the order, and they seek damages for the losses incurred, legal costs and reasonable counsel fees, arguing that the trial court lacked the authority to issue the injunction under the Labor Anti-Injunction Act, 43 Pa.C.S.A. § 206a et seq.

The trial court found that the Labor Anti-Injunction Act did not apply under the circumstances of this case, citing § 206d(d) which provides that the Act does not apply in cases:

[w]here in the course of a labor dispute as herein defined, an employee, or employees acting in concert,, or a labor organization, or the members, officers, agents or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.

43 Pa.C.S.A. § 206d(d).

Upon review of the record, we find that the trial court’s application of the law to the facts in this case is erroneous. The section of the statute quoted above requires that employees or their organization seize, hold, damage or destroy property with the intention of compelling the employer to accede to their demands [emphasis added]. In this case, there was no evidence that property was seized. There was minimal evidence of property damage presented at the hearing, and no evidence that the defendants perpetrated the property damage. There was absolutely no evidence presented by either side which linked the property damage to an intention to compel the Appellee to do anything — in fact, the record does not reveal precisely what the Appellants’ demands were. We find therefore that this case is governed by the Labor Anti-Injunction Act.

We turn then to § 206i of the Act which sets forth the conditions under which an injunction may be issued. This section provides that an injunction may only be issued when the court finds:

(a) That unlawful acts have been threatened and will be committed unless restrained, or have been committed and will be continued unless restrained, but no temporary or permanent injunction or temporary restraining order shall be issued on account of any threat or unlawful act, excepting against the person or persons, association or organization, making the threat or committing the unlawful act, or actually authorizing or ratifying the same after actual knowledge thereof.
(b) That substantial and irreparable injury to complainant’s property will follow unless the relief requested is granted.
(c) That, as to each item of relief granted, greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by granting of relief.
(d) That no item of relief granted is relief which is prohibited under section six of this act.
(e) That complainant has no adequate remedy at law; and
(f) That the public officers charged with the duty to protect complainant’s property are unable to furnish adequate protection.
43 Pa.C.S.A. § 206i.

There was no evidence offered at the hearing that the public officers were unable to furnish adequate protection. Evidence was offered that the police were called and that they made a brief appearance on the scene. No testimony was offered to support the proposition that there were events taking place that were of such a magnitude that the local police could not handle the situation. No arrests were made. No patrol of the premises was established. We find therefore that the trial court lacked the statutory basis to issue the preliminary injunction.

Because we find that the court erred in issuing the injunction, we do not reach the Appellants’ arguments that the trial court’s order was unconstitutionally broad.

The statute provides that upon the denial of any injunc-tive relief sought in an action involving or growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee. 43 Pa.C.S.A. § 206q. We reverse the order of the trial court and remand for proceedings consistent with the statute and this opinion.

Order reversed.

Case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

SPAETH, President Judge, files a dissenting opinion.

SPAETH, President Judge,

dissenting:

The trial court, in my view, was correct in holding the Pennsylvania Labor Anti-Injunction Act, 43 Pa.C.S. § 206a et seq. inapplicable to this case. The majority’s conclusion that “there was no evidence that property was seized,” at 580 is not supported by the record.

The Pennsylvania Labor Anti-Injunction Act limits the jurisdiction of state courts over labor disputes. A court may issue an injunction in a labor dispute only upon “strict compliance” with the statute. 43 Pa.C.S. § 206d. See id. § 206i (detailed bill of particulars to be filed; trial court to make specific findings of fact before injunction may be issued). The statute does not apply in certain circumstances, which are set forth in Section 206d. Here, the initial issue is whether the statute applies, for if it does not, compliance with the pleading and procedural requirements was not necessary. Only if the statute does apply, as appellant argues and the majority holds, or stated differently, only if Section 206d does not apply, need we inquire whether, for example, the trial court’s order was accompanied by findings of fact. See Fountain Hill Underwear Mills v. Amalgamated Clothing Workers’ Union of America, 393 Pa. 385, 143 A.2d 354 (1958) (if labor dispute falls within exclusion of Section 206d, compliance with procedural requirements of pleading and proof not prerequisite to issuance of injunction). Compare DeWilde v. Scranton Building Trades and Construction Council, 343 Pa. 224, 22 A.2d 897 (1941) (if exception contained in Section 206d does not apply, compliance with statute is required).

In issuing the preliminary injunction here, the trial court relied on 43 Pa.C.S. § 206d(d), which provides:

[T]his act shall not apply in any case—
(d) Where in the course of a labor dispute as herein defined, an employe, or employes acting in concert, or a labor organization, or the members, officers, agents, or representatives of a labor organization or anyone acting for such organization, seize, hold, damage, or destroy the plant, equipment, machinery, or other property of the employer with the intention of compelling the employer to accede to any demands, conditions, or terms of employment, or for collective bargaining.

The record reveals the following evidence in support of the trial court’s order.

Picketing at the plant began on October 12, 1982, the day after management announced the plant closing. At the hearing on appellee’s petition for a preliminary injunction, on October 14, 1982, there was testimony that the picketing had continued throughout October 13, 1982, with between five and thirty-five pickets marching in the plant parking area and driveways, and that some but not all of the pickets had been employees of appellee. There is no dispute that representatives of the union were involved in the picketing.

On the first day of picketing, four delivery trucks were stopped, pickets talked to the drivers, and the trucks then turned away, without making their pick-ups or deliveries. One of the drivers was told that if he came in the driveway, the picketers would follow him “back to Ohio.” During the morning it was discovered that locks on three of the four doors to the plant had been tampered with, so that the keys would not work in the locks.

Ronald Roberts, an employee who drove appellee’s tractor-trailer, testified that when he arrived at the plant with his truck on the first day of picketing, he was forced to drive up on the pavement to avoid hitting the pickets who were then blocking the driveway. When Roberts began backing up to the loading dock, a picket stopped him and asked whether he “was going to be a hero.” The picket, with fist raised and shouting obscenities, followed Roberts as he left the truck and walked back to the loading dock. Someone later threatened Roberts: “Wait until you have to go home tonight.” When he left the plant that afternoon, Roberts was followed by two cars, “which [he] was able to lose.” Two former company employees were in one of the cars; Roberts did not recognize the occupants of the second. Roberts left the tractor-trailer at the plant overnight and upon his return the next morning its tires had been deflated. Later in the day he went to pick up a container that was to have been delivered by one of the trucks that turned away the previous day.

The question we must decide is whether this evidence showed that the union or its representatives “seize[d], h[e]ld, damagefd], or destroyed] the plant, equipment, machinery, or other property of the employer [appellee]____” 43 Pa.C.S. § 206d(d). In considering this question, we are to keep in mind our standard of review:

“... on an appeal from a decree which refuses, [or] grants ... a preliminary injunction we will look only to see if there were any apparently reasonable grounds for the action of the court below, and we will not further consider the merits of the case or pass upon the reasons for or against such action unless it is plain that no such grounds existed or that the rules of law relied on are palpably wrong or clearly inapplicable.”
Wilkes-Barre Independent Company v. Newspaper Guild, Local 120, 455 Pa. 287, 289, 314 A.2d 251, 253 (1974), quoting Minit-Man Car Wash Corp. v. Building and Construction Trades Council, 411 Pa. 585, 589, 192 A.2d 378, 380 (1963).

Applying this standard here, I am satisfied that we should not disturb the trial court’s order. The fact that as a result of the pickets’ confrontations with the drivers, four trucks turned away and did not make scheduled deliveries or pick-ups, was sufficient evidence that the plant was “seized” or “held” by the actions of employees or the union, and provided “apparently reasonable grounds for the action of the court below.” Moreover, while no evidence directly linked the union or employees with the broken plant locks or the deflated tires on the company’s tractor-trailer, such evidence was not necessary; the trial court could reasonably infer that “machinery or other property of the employer” had been “damage[d] or destroyed]” as a result of the union’s activities. In Capital Bakers, Inc. v. Local Union No. 454 of the Bakery and Confectionary Workers International Union, 281 Pa.Super. 384, 422 A.2d 521 (1980), quoting the United States Supreme Court, we said:

“it is true ... of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondent superior.”
Id., 281 Pa.Superior Ct. at 389, 422 A.2d at 524, quoting Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, 312 U.S. 287, 295, 61 S.Ct. 552, 556, 85 L.Ed. 836 (1941).

I recognize that in other cases in which labor injunctions have been upheld on the basis of Section 206d(d) the interference with company operations was more severe and the property damage more widespread than that which occurred here. See, e.g., Altemose Construction Co. v. Building & Construction Trades Council of Philadelphia, 449 Pa. 194, 296 A.2d 504 (1972), cert. denied 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973); Westinghouse Electric Corp. v. International Union of Electrical, Radio and Machine Workers, 262 Pa.Super. 315, 396 A.2d 772 (1978); Capital Bakers, supra. Here, however, the plant was relatively small, employing only about twenty-five persons, and the interference was sufficient to support the trial court’s order; the court was not obliged to await open, as compared with threatened, violence, or further damages, for picketing that denies access to a plant is a seizure under Section 206d(d). See Link Belt Co. v. Local Union No. 118 of American Federation of Technical Engineers, 415 Pa. 122, 202 A.2d 314 (1964); Westinghouse Electric Corporation v. United Electrical, Radio and Machine Workers of America, 383 Pa. 297, 118 A.2d 180 (1955); Carnegie-Illinois Steel Corp. v. United Steelworkers, 353 Pa. 420, 45 A.2d 857 (1946); Westinghouse Electric Corporation v. International Union, supra.

In Frankel-Warwick Ltd. v. Local 274, 334 Pa.Super. 47, 482 A.2d 1073 (1984), we overturned a labor injunction issued on the basis of Section 206d(d). There, striking pickets were stationed outside the entrance to the Warwick Hotel in Philadelphia, making passage of guests into the hotel difficult. We stated: “Mere difficulty of passage of the hotel’s guests owing to the large number of pickets absent an intent to prevent their entrance and egress cannot be termed ‘seizure’ of the hotel. ... While the presence of the pickets may have made travel on the sidewalk somewhat difficult, we do not perceive from the record any instance of threats, intimidation or physical restraint to constitute a seizure.” Id., 334 Pa.Superior Ct. at 53, 482 A.2d at 1076. In contrast to Frankel-Warwick, here there was more than “[m]ere difficulty of passage;” several truck drivers chose not to enter the plant after discussion with the pickets, and one of them was threatened. In addition, Roberts, an employee, was threatened and followed. The trial court was entitled to regard this as sufficient evidence of “threats, intimidation or physical restraint to constitute a seizure.”

Appellant’s argument that the injunction issued by the trial court was unconstitutional is without merit. The order of the trial court should be affirmed.

      . We disagree with the Dissent’s interpretation of testimony that some truck drivers refused to cross the picket line as evidence of “seizure”. To establish a picket line and to encourage the public to honor it is a lawful exercise of first amendment rights. We note that the employer and his staff took inventory on October 12 and 13, and were free to enter and leave the plant at will.

      . Albert Jacobson, Executive Vice President of appellee, testified over objection as to what one of the truck drivers had told him. No further objection was made to this testimony.

      . It may be noted that Frankel-Warwick was an appeal from an order granting a permanent injunction. There, quoting Neshaminy Contractors, Inc. v. Philadelphia Building and Construction Trades Council, 303 Pa.Super. 420, 423, 449 A.2d 1389, 1390 (1982), we noted that while the standard of review of an order granting or denying a preliminary injunction is whether "any reasonable grounds" exist for the trial court’s action, an abuse of discretion standard applies in the review of a permanent injunction. Frankel-Warwick, supra, 334 Pa. Super, at 48, 482 A.2d at 1074.

      . The trial court's order did not prohibit picketing. Instead, it limited the number of pickets at entrances to the plant to three pickets, restricted the area of picketing, and prohibited physical interference with or intimidation of persons entering or leaving the plant. The order further provided that “nothing contained herein shall enjoin a picket from asking persons attempting to enter plaintiff’s premises not to enter because of the strike or from otherwise expressing their right to strike.”