author: TAMILIA, Judge:

text:
    615 A.2d 416
    COMMONWEALTH of Pennsylvania v. Seth WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1992.
    Filed Oct. 22, 1992.

      Robert N. Tarman, Harrisburg, for appellant.
    Jerry J. Russo, Asst. Dist. Atty., Harrisburg, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge:

Seth Williams appeals from the three (3) to six (6) year judgment of sentence imposed on December 18, 1991 after he was found guilty of possession of a small amount of marijuana, possession of cocaine with intent to deliver and possession with intent to use drug paraphernalia. Appellant was stopped for speeding and, while his license and registration were being checked, the dispatcher received an anonymous tip the car the appellant was driving contained a sizeable quantity of drugs. After a consensual visual inspection of appellant’s car revealed a “roach”, the officers arrested appellant, a search warrant was obtained and executed and quantities of cocaine, marijuana and drug paraphernalia were discovered in the vehicle. Appellant’s pretrial motion to suppress this evidence was denied, the matter proceeded to trial and appellant was found guilty, nonjury, as stated supra. His post trial motions were denied and this appeal followed.

Appellant contends there was insufficient evidence to support his conviction for possession with intent to deliver a controlled substance. He also argues the officers conducted an illegal warrantless search of his vehicle thereby tainting all evidence confiscated. Finally, appellant argues the imposition of a mandatory three year sentence was improper.

In reviewing a sufficiency of the evidence claim we must determine whether the evidence and all reasonable inferences, when viewed in the light most favorable to the Commonwealth as the verdict winner, are sufficient to establish, beyond a reasonable doubt, each element of the crime(s) with which the defendant is charged. Commonwealth v. McCullum, 529 Pa. 117, 602 A.2d 313 (1992). To be convicted of possession with intent to deliver a controlled substance the Commonwealth must establish the defendant possessed the illegal drug and did so with the intent to deliver it. 35 Pa.S. § 780-113(a)(31)(i). When determining whether there was sufficient evidence to sustain a charge of possession with intent to deliver, all facts and circumstances surrounding the possession are relevant and the Commonwealth may establish the essential elements of the crime by wholly circumstantial evidence. Commonwealth v. Ramos, 392 Pa.Super. 583, 573 A.2d 1027 (1990). The record revealed eight small zip-lock plastic baggies of cocaine, the aggregate weight of which was 5.94 grams, all of wMch were contained in one larger bag, were retrieved from the appellant’s vehicle. It was the investigating officer, Gregory Taylor’s testimony, based on his experience as an undercover narcotics investigator, the cocaine packets confiscated were not randomly purchased on the street but rather were representative of common packaging for distribution, the quantities contained known on the street as “sixteenths” (approximately 1.75 grams) (N.T., 8/5/91, pp. 91-92). Taylor also stated the $3,601 retrieved from appellant’s sock by the arresting officer, Robert McCallister, was comprised mostly of $20 bills folded into $100 lots, a very common practice by those involved with trafficking narcotics {Id., pp. 93-94). Although appellant testified the money seized was to be used for car repairs, the jury found this explanation incredible. We agree with the trial court’s finding the packaging of the drugs, the large sum of organized cash and the absence of paraphernalia associated with the personal use of cocaine established, beyond a reasonable doubt, the cocaine was possessed with the intent to deliver.

Next, appellant argues the police conducted a warrantless search of his vehicle thereby requiring suppression of all items seized therefrom. The appellant claims the anonymous call to the dispatcher did not provide sufficient probable cause for the initial search of the defendant, the warrantless search of the vehicle and the subsequent search of the vehicle with a duly executed search warrant.

“[O]ur responsibility upon review is to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Goodwin, 460 Pa. 516, 521, 333 A.2d 892, 895 (1975); Commonwealth v. Grubb, 407 Pa.Super. 78, 595 A.2d 133 (1991). Our standard of review is limited to the evidence of the Commonwealth, and so much of the evidence of the defendant which, as read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Rodriguez, 387 Pa.Super. 271, 564 A.2d 174 (1989). When the factual findings of the suppression court are supported by the evidence. We may reverse only if there is an error in the legal conclusions drawn from those factual findings. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990); see also Grubb, supra. To justify an initial stop, a police officer must rely on specific and articulable facts, which if taken together with rational inferences therefrom reasonably warrant the stop. Commonwealth v. Smith, 396 Pa.Super. 6, 577 A.2d 1387 (1990). A legal arrest without a warrant depends upon probable cause. Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922 (1991), alloc. denied, 528 Pa. 642, 600 A.2d 194 (1991). Probable cause exists if the facts available to a police officer would warrant a man of reasonable caution to believe a search would result in the discovery of contraband. Id. A tip from an anonymous informant can form the basis for probable cause if there is adequate evidence of the informant’s credibility or reliability. Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985), affirmed, 517 Pa. 36, 534 A.2d 469 (1987). The credibility of an informant and the reliability of his information may be determined by independent corroboration of the tip. Id. See also Commonwealth v. Lemanski, 365 Pa.Super. 332, 529 A.2d 1085 (1987). The facts relevant to appellant’s argument follow.

On March 5, 1990, Officer McCallister observed appellant’s brown Camaro being driven at a speed of 55-60 miles per hour in a 35 mile-per-hour zone and effectuated a traffic stop. As McCallister approached the vehicle, the driver rolled down his window and the officer detected the slight smell of marijuana. While McCallister was waiting for the results of the computer check on the vehicle’s registration and appellant’s license, which he did not have in his possession, the dispatcher received a 911 anonymous tip the brown Camaro stopped by the Susquehanna Township Police on Walnut Street contained a sizeable quantity of drugs and was being driven by a man named Seth. The officer requested back-up, asked appellant to exit his vehicle, advised him he was being issued a citation for speeding and then conducted a pat-down search for weapons. See Commonwealth v. Walker, 348 Pa.Super. 207, 501 A.2d 1143 (1985) (Incident to a lawful arrest, a police officer may conduct a warrantless search of the arrestee’s person to protect the officer from weapons to which arrestee may have access). In appellant’s sock McCallister discovered a large sum of cash which was later determined to total more than $3,000. Upon obtaining appellant’s consent to a visual inspection of his vehicle, he opened the car door, detected a strong odor of marijuana and noticed, in plain view, a “roach,” or marijuana cigarette butt, in the ashtray. Appellant was placed under arrest for the possession of drugs and a warrant to search the vehicle was obtained and executed.

When examining a particular situation to determine if probable cause exists,

we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might---- Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial. Commonwealth v. Ellis, 354 Pa.Super. 11, 17-18, 510 A.2d 1253, 1256 (1986) (en banc).

Commonwealth v. Chase, 394 Pa.Super. 168, 172, 575 A.2d 574, 576 (1990) (citations omitted). Based on the above recitation of the facts we find there was sufficient probable cause for the patdown search of the defendant and the subsequent issuance and execution of the search warrant.

Lastly, appellant argues the court erred by imposing a mandatory three-year minimum sentence pursuant to 18 Pa.C.S. § 7508, Drug trafficking sentencing and penalties, which is set forth in pertinent part below:

(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(3) A person who is convicted of violating section 13(a)(14) or (30) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt compound, derivative or preparation of coca leaves ... shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fíne as set forth in this subsection:
(i) upon the first conviction when the amount of the substance involved is at least 2.0 grams and less than ten grams; one year in prison and fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity and, upon conviction for another offense subject to sentencing under this section: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

Id., § 7508(a)(3)® (emphasis added). Appellant contends the prior drug offense upon which the court relied when imposing a mandatory three-year term of incarceration occurred in 1983, prior to the 1988 enactment of this section, did not constitute “an offense subject to sentencing under this section” and, therefore, rendered the sentencing enhancement improper and illegal. In Commonwealth v. Polanco, 395 Pa.Super. 197, 576 A.2d 1111 (1990), alloc. granted, 526 Pa. 654, 586 A.2d 922 (1991), this Court discussed section 7508 and found the legislature intended this mandatory minimum provision to apply if, as here, the defendant, who had previously been convicted under section 780-113(a)(30), Possession with intent to deliver, was convicted a second time under that particular statute.

[ W]e interpret the particular language in question to mean that a person, who has been convicted of delivering more than two grams and less than ten grams of cocaine and whose conviction constitutes his first offense under section (3), must receive at least one year imprisonment. If, on the other hand, a person who has been convicted of delivering more than two grams and less than ten grams of cocaine and his conviction constitutes another offense under section (30), must then receive at least three years imprisonment.

Id. (emphasis added). This interpretation, which we adopt with regard to appellant’s argument, is bolstered by the 1990 amendment to section 7508 which is set forth in footnote 4, supra. In the 1990 amendment the language in question was changed to “however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense.” (Emphasis added.) We find it was the legislature’s intent, when imposing sentence under section 7508, to count all violations of section 30 and not just those which have occurred since section 7508’s 1988 amendment.

Having found all appellant’s arguments devoid of merit, we affirm the December 18, 1991 judgment of sentence imposing a three (3) to six (6) year term of incarceration.

Judgment of sentence affirmed.

      . 35 Pa.S. § 780-113(a)(31)(i).

      . Id., § 780-113(a)(30).

      . Id. § 780-113(a)(32).

      . Appellant’s argument is premised upon the 1988 version of this section which is set forth in the body of this Memorandum. On December 19, 1990, the subsection under discussion was amended to exclude that portion of the statute on which appellant’s argument is based. The 1990 revised section is set forth below:
      (i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity____
      18 Pa.C.S. § 7508(a)(3)(i).


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    615 A.2d 421
    In re ESTATE OF Marguerite LONG, Deceased. Appeal of Joseph LONG, Widower.
    Superior Court of Pennsylvania.
    Argued Aug. 13, 1992.
    Filed Oct. 22, 1992.

      Jeffery S. Orchinik, Bensalem, for appellant.
    John E. Brady, Yardley, for Moore, participating party.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   CAVANAUGH, Judge:

This appeal is from an order striking appellant’s election to take against the will of his deceased wife. Appellant and his wife were married in June, 1985. Both were mature persons who owned their own homes and had grown children. In May 1985, they entered into a prenuptial agreement because they wanted to preserve their respective estates for their children. The agreement provided a mutual waiver and release of each party’s right to the other’s estate. At the time of the agreement, appellant was planning to sell his home and move in with his wife. The contract also provided that he would have the right to live in his wife’s residence for the rest of his life should she die first. Unknown to the appellant, the wife was not the sole owner of the house, rather she shared title to the house with her daughter, jointly, with right of survivorship. Thus, the wife was unable to grant a life estate to the property as the contract promised.

Appellant and his wife lived in her home during their marriage until 1989. In September 1989, appellant’s wife and her daughter sold the house and kept the proceeds. Appellant did not object to the sale of the house or seek to share in the proceeds, nor did he demand that his wife obtain another residence for the promised life estate. Appellant and his wife moved into an apartment. They continued to segregate their assets. On June 10, 1990 appellant’s wife died suddenly. Appellant sought to take an elective share of his wife’s estate, and her daughter contested by asserting the prenuptial agreement. The lower court ruled that the appellant is precluded by the terms of the prenuptial agreement from taking an elective share of the estate.

Appellant argues that the prenuptial contract was void ab initio because it contained a misrepresentation about the title of decedent’s residential property. The court held that the decedent’s inability to convey a life estate did indeed constitute a misrepresentation, which rendered the contract voidable by appellant. The court further found that appellant ratified the contract and thereby waived his right to avoid its terms when he had reason to know of the misrepresentation and took no steps to disaffirm.

Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990) is the controlling case in determining the validity of prenuptial agreements. Simeone holds that prenuptial agreements are contracts and subject to the same analysis as other types of contracts. Appellant relies on older cases in which courts would evaluate prenuptial agreements at the time of formation and determine reasonableness of the terms in the absence of full and fair disclosure. See, Estate of Harris, 431 Pa. 293, 245 A.2d 647 (1968) and In Re Estate of Geyer, 516 Pa. 492, 533 A.2d 423 (1987). These cases are no longer controlling on this issue. Prenuptial contracts are no longer an isolated category of contracts. Traditional principles of of contract law provide adequate remedies where contracts are procured through fraud, misrepresentation or duress. Consideration of other factors such as the knowledge of the parties and the reasonableness of the bargain is inappropriate. Simeone, 525 Pa. at 400, 581 A.2d at 165.

The lower court correctly applied traditional contract principles as embodied in the Second Restatement of Contracts Sec. 380(2) regarding ratification and waiver. The law in this area has changed in recent years, and the Simeone case makes such analysis appropriate. Before Símeme a party wishing to nullify a prenuptial agreement had the burden of proving by clear and convincing evidence that the provisions were not reasonable and the absence of full and fair financial disclosure. Hillegass Estate, 431 Pa. 144, 244 A.2d 672 (1968). Under general contract principles, however, a material misrepresentation renders a contract voidable not void. See, Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985). The Restatement simply expounds the well recognized principle that a party to a voidable contract may lose his right to rescind or avoid the contract if he fails to disaffirm or demonstrates an intention to affirm.

The appellant argues that the lower court holding would require that a party wishing to disaffirm a prenuptial agreement do so before the death of the spouse. This is clearly wrong; the court merely holds that a party claiming misrepresentation must act to disaffirm upon learning of the misrepresentation. The holding is consistent with traditional contract principles; failure to act when one knows or has reason to know of a misrepresentation is a ratification of the contract. Appellant knew that decedent wife sold the house and that the proceeds were shared by her and her daughter. He knew after the sale of the house that it would be impossible for him to realize the promised life estate. His precise knowledge of the title of decedent’s residence is not required. Once the house was sold and the proceeds shared by wife and her daughter, he knew he could no longer expect a life estate in it. Appellant’s failure to object or express dissatisfaction with these developments amounts to a ratification of the practical impossibility of performance of the prenuptial agreement. Indeed, appellant’s conduct showed his intention to be bound by the consequences of the actual status of the property.

Appellant and his wife entered into the prenuptial agreement with the expressed intention of maintaining undivided estates. The misrepresentation about the title of decedent wife’s house did not frustrate or hinder this goal in any way. Even considering the misrepresentation, appellant maintained the benefit of his bargain; he segregated his money and kept the proceeds of the sale of his own house for himself. After decedent wife sold her house with her daughter it was apparent that appellant would have no interest in it. Appellant’s failure to act when the misrepresentation was apparent amounts to ratification of the agreement under traditional principles of contract law. It would be fundamentally unfair to allow appellant to conduct himself as if he would honor the contract while his wife was alive and successfully challenge it after her death.

Order affirmed.


author:
WIEAND, Judge:
      OLSZEWSKI, Judge,

text:
    615 A.2d 423
    Janie KELLY, Administratrix of the Estate of Tamar Gist, Deceased and Janie Kelly, in her own right, Appellant, v. RESOURCE HOUSING OF AMERICA, INC., Geriatric & Medical Centers, Inc., Christopher Stone, Laura Cook, Patricia Perry, Jane Walsh and Ronald T. Meltzer, D.O., Appellees.
    Superior Court of Pennsylvania.
    Argued May 12, 1992.
    Filed Oct. 22, 1992.

      Gerald W. Spivak, Philadelphia, for appellant.
    Robert Sachs, Philadelphia, for Meltzer, appellee.
    Before WIEAND, OLSZEWSKI and KELLY, JJ.
   WIEAND, Judge:

On or about May 2, 1989, Janie Kelly caused her mother, Tamar Gist, to be admitted to the Care Pavilion, a nursing home in Philadelphia. Mrs. Gist remained at Care Pavilion until her death on July 27, 1989. Alleging that Care Pavilion had provided inadequate care and had failed to respond to her mother’s medical needs, Kelly commenced wrongful death and survival actions as administratrix of her deceased mother’s estate and made a claim in her own right for the infliction of emotional distress. Named as defendants were Care Pavilion of Walnut Park Plaza, Inc.; Resource Housing of America (owner, manager, and operator of Care Pavilion); Geriatric & Medical Centers, Inc.; Total Care Development Corporation; Christopher Stone (administrator of Care Pavilion); Laura Cook (director of nursing at Care Pavilion); Patricia Perry (nurse at Care Pavilion); Jane Walsh (director of quality control at Care Pavilion); and Ronald Meltzer, D.O. (the treating physician). After Kelly had filed a second amended complaint, the defendants filed preliminary objections. All preliminary objections were overruled, except that the trial court dismissed Counts III and IV of the Second Amended Complaint with prejudice. Plaintiff appealed. The trial court filed a memorandum opinion suggesting that the appeal was interlocutory but providing no further insight into the reason for its ruling.

The first count of the Second Amended Complaint, filed by Kelly in her capacity as administratrix, asserted a wrongful death action for pecuniary losses suffered by the decedent’s heirs, as well as reimbursement for medical, hospital and nursing home costs, together with funeral and other expenses. The second count was in the nature of a survival action and sought to recover pecuniary losses sustained by the decedent’s estate. The third count attempted to state a wrongful death action premised upon an alleged breach of contract. The fourth and final count asserted a cause of action on behalf of Kelly, in her own right, for the alleged intentional, reckless or negligent infliction of emotional distress.

In a trio of cases decided by en banc panels, the Superior Court conducted a comprehensive analysis of the type of orders which will be deemed “final” for appealability purposes. In Garofolo v. Shah, 400 Pa.Super. 456, 583 A.2d 1205 (1990), the Court stated:

Generally, an appeal will lie only from a final order unless otherwise permitted by statute or rule of court. Pugar v. Greco, 483 Pa. 68, 72-73, 394 A.2d 542, 544 (1978). An order is interlocutory and not final unless it puts a litigant out of court. Allesandro v. State Farm Mutual Auto Ins. Co., 487 Pa. 274, 281, 409 A.2d 347, 351 (1979); Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980). In Praisner v. Stocker, 313 Pa.Super. 332, [337-338], 459 A.2d 1255, [1258] (1983), the Court reviewed the applicable law and said:
As a general rule, an order dismissing some but not all counts of a multi-count complaint is interlocutory and not appealable. Gordon v. Gordon, [293 Pa.Super. 491, 499, 439 A.2d 683, 686-687] (1981); Stengena v. Madden, 291 Pa.Super. 364, 366, 435 A.2d 1269, 1270 (1981); Mitchell v. Center City Cadillac, [287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981) ]; Bagshaw v. Vickers, 286 Pa.Super. 246, 249, 428 A.2d 664, 666 (1981); Giannini v. Foy, supra 279 Pa.Super. at 556, 421 A.2d at 339. An examination of the cases so holding discloses that the basis upon which this general rule is founded is that in most instances when one count of a multi-count complaint has been dismissed, the plaintiff is not out of court and is not precluded from presenting the merits of his cause of action. In these eases the courts have adhered to a policy which seeks to avoid piecemeal litigation. Following the general rule, this Court has ... held that an appeal will not lie from an order granting partial summary judgment. See: Swift v. Milner, 296 Pa.Super. 463, 467, 442 A.2d 1144, 1146 (1982); Rohr v. Keystone Insurance Co., 294 Pa.Super. 179, 182, 439 A.2d 809, 811 (1982); Ruminant Nitrogen Products Co. v. J & M Machinery Co., Inc., 294 Pa.Super. 144, 439 A.2d 791 (1982); Inselberg v. Employers Mutual Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981); Shaefer v. American States Insurance Co., [272 Pa.Super. 67, 414 A.2d 672 (1979) ].

Id., 400 Pa.Super. at 458-459, 583 A.2d at 1206.

Fundamental to Praisner is the definition of a cause of action. A cause of action has been defined as “the fact or facts which give a person a right to judicial relief; the legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts which would entitle a party to sustain action and give him the right to seek a judicial remedy in his behalf.” Black’s Law Dictionary, 5th Ed. (1979). In many cases, a separate cause of action can be distinguished from an alternate theory of recovery by looking at the relief requested. Alternate theories of recovery are different means for obtaining the same relief for the same harm caused by the same party. A plaintiff cannot recover on all the alternate theories, as this would constitute a duplicative recovery.
On the contrary, a separate cause of action requests different relief for different harms. A party may potentially recover complete relief on each of the separate causes of action. In close cases, additional factors must be considered in determining whether a party has alleged separate causes of action or multiple theories of recovery for a single cause of action.

Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa.Super. 432, 438-439, 583 A.2d 1193, 1196 (1990) (citation omitted).

An examination of the Second Amended Complaint in this case discloses clearly that the third count is merely an alternate theory for recovering some or all of the damages alleged in Count I. The third count, being a claim of wrongful death for appellant’s mother, seeks to recover only damages previously alleged in the first count because of appellees “failure to render the quality of care required by their contractual obligations.” Because appellant is not “out of court” on her wrongful death action, the trial court’s order dismissing the third count is interlocutory, and we will not review it further.

Count IV, however, contains a separate cause of action. It asserts a claim by Kelly, in her own right, for the infliction of emotional distress upon herself. It is the only count of the complaint which asserts a separate claim on behalf of Kelly. The order dismissing this cause of action, therefore, is a final order which is immediately appealable. See: Fink v. Delaware Valley HMO, 417 Pa.Super. 287, 612 A.2d 485 (1992); Halliday v. Beltz, 356 Pa.Super. 375, 514 A.2d 906 (1986); Cloverleaf Development, Inc. v. Horizon Financial, 347 Pa.Super. 75, 500 A.2d 163 (1985).

The standard for review of an order sustaining preliminary objections in the nature of a demurrer was recited in Abadie v. Riddle Memorial Hospital, 404 Pa.Super. 8, 589 A.2d 1143 (1991), as follows:

Preliminary objections in the nature of a demurrer admit the truth of the factual averments of the Complaint, but not conclusions of law, as well as all reasonably deducible inferences therefrom. The demurrer must be dismissed if the averments of the Complaint set forth a cause of action which, if proven, would entitle the party to relief. If the Complaint fails to set forth a cause of action, the demurrer must be sustained. Crivellaro v. Pennsylvania Power & Light Co., 341 Pa.Super. 173, 491 A.2d 207 (1985); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 437 A.2d 1236 (1981), citing Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979).

Id., 404 Pa.Super. at 10-11, 589 A.2d at 1144.

The tort of outrageous conduct causing severe emotional distress is outlined at the Restatement (Second) of Torts, § 46, as follows:

§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The gravamen of the tort is outrageous conduct. Abadie v. Riddle Memorial Hospital, supra, 404 Pa.Super. at 13, 589 A.2d at 1145. The tort has not been adopted and made a part of the law of Pennsylvania. Kazatsky v. King David Memorial Park, 515 Pa. 183, 197, 527 A.2d 988, 995 (1987). As a threshold requirement, in any event, there must be physical injury or harm. Id. A plaintiff must allege physical harm to sustain an action for the infliction of emotional distress. Love v. Cramer, 414 Pa.Super. 231, 240, 606 A.2d 1175, 1179 (1992). “Given the advanced state of medical science,” the Supreme Court explained, “it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s ‘outrageousness’ without expert medical confirmation that the plaintiff actually suffered the claimed distress.” Kazatsky v. King David Memorial Park, supra. See also: Ford v. Isdaner, 374 Pa.Super. 40, 542 A.2d 137 (1988).

In the instant case, appellant’s claim of emotional distress is based upon her presence in the room while her mother’s dressings were removed, revealing a spreading gangrenous infection. She alleged that she was overwhelmed by the odor of decomposing flesh and became upset, nauseous and ill “at the scene.” There are no averments that appellant’s discomfort continued after she left the room or for a longer period of time. There is no averment of injury other than a momentary nauseous reaction.

Even if the decedent received negligent care which causally contributed to Mrs. Gist’s suffering and ultimate death, appellees’ treatment of Mrs. Gist will not be deemed outrageous conduct which gives rise to a separate cause of action for the intentional, reckless, or negligent infliction of emotional distress upon a daughter who voluntarily chose to be present and observe the treatment being given to her mother. The services by nursing home personnel were being rendered in the normal course of treating and caring for appellant’s mother. They were not calculated to induce emotional distress to bystanding members of the patient’s family and did not constitute the type of outrageous conduct referred to by the Restatement. If the decedent’s treating physician or the nursing home personnel were negligent in their treatment of appellant’s mother, the law provides a remedy. That conduct, however, does not give rise to a separate cause of action in favor of members of the patient’s family for outrageous conduct.

The appeal from the order dismissing the third count of the Second Amended Complaint is quashed. The order dismissing the fourth count of the Second Amended Complaint is affirmed.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring.

I agree with the majority’s decision to quash the appeal from the trial court’s order dismissing Count III of the complaint. I, however, concur only in the result of the majority’s decision to affirm the dismissal of Count IV.

As the majority noted, the order sustaining the demurrer and dismissing Count IV is a final and appealable order. See Trackers Raceway, Inc. v. Comstock Agency, Inc., 400 Pa.Super. 432, 438-439, 583 A.2d 1193, 1196 (1990).

Appellant’s Count IV is a claim for infliction of emotional distress. I agree with the majority’s reasoning and legal support for affirming the dismissal of the claim of intentional infliction of emotional distress. However, I think the majority discussion of emotional distress is inadequate because it commingles intentional and negligent concepts. Therefore, I am writing this concurrence.

A cause of action for negligent infliction of emotional distress will lie if three factors are present:

(1) plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it;
(2) the shock resulted from a direct emotional impact on plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and
(3) plaintiff and the victim were closely related as contrasted with an absence of any relationship or the presence of only a distant relationship.

Love v. Cramer, 414 Pa.Super. 231, 233, 606 A.2d 1175, 1177 (1992) (citations omitted). Additionally, Pennsylvania law requires that plaintiff allege a physical harm in order to sustain an action for negligent infliction of emotional distress. Id. (citing Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672 (1986)). The law, however, does not specify the amount of harm that must be alleged. Id.

Similar to the case at bar, the plaintiff in Love brought an action for negligent infliction of emotional distress against her deceased mother’s physician. Plaintiff alleged that the doctor’s negligence led to her mother’s death. The day that her mother died, plaintiff had been resting beside her mother’s side and was forced to witness the death. Plaintiff claimed that as a result she suffered ongoing depression, nightmares, stress and anxiety, all resulting in a need for psychological treatment.

The Love Court noted, without speaking to the ultimate merits of the case, that plaintiffs “observance of the lack of medical care, along with her observance of her mother’s heart attack is enough to sustain her claim for negligent infliction of emotional stress.” Id. 414 Pa.Super. at 236, 606 A.2d at 1178. We did not find the passage of time between the doctor’s alleged negligence and the time of the actual injury to be a handicap in plaintiffs case. In addition, this Court concluded that plaintiff had alleged sufficient physical manifestations of emotional suffering to survive a demurrer. Id., 414 Pa.Super. at 238, 606 A.2d at 1179. As a result, we reversed the trial court’s order which sustained the demurrer.

Similarly, appellant claims that the nursing home’s negligence caused her mother to suffer and eventually die from a gangrenous infection. Appellant witnessed this spreading infection because she was present when her mother’s dressings were removed. She alleged that this caused her to become “extremely upset, nauseous and violently ill at the scene.” (Second amended complaint at para. 55).

Following Love, I believe that appellant’s observance of her mother’s spreading infection would be sufficient to sustain a cause of action for negligent infliction of emotional distress. A crucial variation from Love, however, is that appellant here did not sufficiently allege a physical injury. Plaintiff Love asserted that she suffered continuing depression, nightmares, stress and anxiety. In contrast, appellant only claimed to have become upset, ill and nauseated at the scene of the unwrapping. Her injuries are not of the same magnitude that prompted this Court’s decision in Love. See Id. For this reason, the order sustaining the demurrer should be affirmed.

In my opinion, it is imperative to distinguish the torts of intentional and negligent infliction of emotional distress and differentiate the ways that appellant respectfidly failed to satisfy the requirements of each. Therefore, I concur only in the majority’s result.

      . Appellant lumps her claims for intentional and negligent infliction of emotional distress into one count. Since these are different causes of action, she should have pled them separately. Pa.R.C.P. § 1020, 42 Pa.C.S.A. Despite appellant’s failure to do so, the majority addresses both claims and so will I.


author: CIRILLO, Judge:

text:
    615 A.2d 428
    Sara WEISMER and Dory Weismer, Minors by Their Parents and Natural Guardians, Ruth WEISMER and Murray Weismer, and Ruth Weismer and Murray Weismer, h/w on Their Own Behalf and Shari Gist, a Minor, by Her Parent and Natural Guardian Candace Gist and Candace Gist on Her Own Behalf and Guillermo Garcia, a Minor, by His Parent and Natural Guardian Linda Lederer and Linda Lederer on Her Own Behalf, Appellants, v. BEECH-NUT NUTRITION CORPORATION.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1992.
    Filed Oct. 26, 1992.

      Mitchell A. Kramer, Jenkintown, for appellants.
    Ira P. Tiger, Philadelphia, for appellee.
    Before CIRILLO, POPOVICH and HOFFMAN, JJ.
   CIRILLO, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying a motion for class certification. We affirm.

Four minor children, through their parents as guardians, commenced this action on behalf of all children residing within the Commonwealth of Pennsylvania who suffer from “nursing bottle syndrome” (NBS). NBS is a dental condition characterized by widespread cavities and decay of primary teeth, and sometimes secondary teeth, and is caused by infants falling asleep with a bottle of milk, formula or juice in their mouths. This action was directed solely against Beech-Nut Nutrition Corporation (Beech-Nut), which is a major manufacturer of infant and baby foods and drinks. The parents assert that Beech-Nut is one of the manufacturers of apple juice that caused the NBS in their children.

The parents sought certification of a class consisting of: all children residing in the Commonwealth of Pennsylvania who have suffered dental injuries as a result of nursing bottle syndrome, who sustained those injuries within the Commonwealth and whose claims for such injuries are not time-barred.

The parents allege that Beech-Nut is liable to the proposed class in negligence and in strict liability for failing to place warnings about NBS on the glass jars containing the apple juice.

The trial court denied certification. In its opinion, the trial court stated that it denied class certification because “individual facts as to what may have caused the development of this condition predominate over common issues of law and fact.” The trial court found that it would be overly burdensome to require the trier of fact to make a determination in each case as to whether the parent(s) knew of the existence of NBS, and if so, to what extent. The trial court also concluded that the claims could be handled more expeditiously and fairly in separate causes of action. The parents filed this timely appeal.

We are now asked to consider the following question:

[ w]hether class certification should have been granted in this case involving a predominance of common questions of law and fact and in light of the fact that the separate claims of individual class members are insufficient in amount to support the expense of separate actions?

A trial court’s decision concerning class certification is a mixed finding of law and fact. Cribb v. United Health Clubs, 336 Pa.Super. 479, 480, 485 A.2d 1182, 1183 (1984). A trial court is vested with broad discretion in defining the class based on the commonality of the issues and the propriety of maintaining the action on behalf of the class. Hayes v. Motorists Mutual Insurance Co., 370 Pa.Super. 602, 604, 537 A.2d 330, 331 (1987). On appeal, we will not disturb the trial court’s order denying class certification unless the court failed to consider the requirements of the rules of civil procedure or abused its discretion in applying them. Id.

Pennsylvania Rule of Civil Procedure 1702, entitled “Prerequisites to a Class Action” provides:

One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in rule 1709; and
(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.

Pa.R.C.P. 1702. (emphasis added). Thus, each of the five elements must be met before a class can be certified. Moreover, the burden of proof is upon the party seeking certification. Janicik v. Prudential Insurance Co., 305 Pa.Super. 120, 128, 451 A.2d 451, 454 (1982).

When a class is narrowly and precisely drawn and there are still so many potential class members that joinder is impracticable or impossible, the class is sufficiently delineated to meet the numerosity requirement. Cribb, 336 Pa.Super. at 481, 485 A.2d at 1184 (1984). Conversely, where the class definition is so poorly established that the court cannot even discern who the potential class members are, the numerosity criterion has not been met. Id.

In the instant case the parents have broadly defined the class as “all children residing in the Commonwealth ... who have suffered dental injuries as a result of nursing bottle syndrome.” Although only Beech-Nut is named as a defendant in the proposed class action, the definition of the class does not even specify that each potential member must have used Beech-Nut. products or must have used them in a particular manner so as to render Beech-Nut liable for the alleged failure to warn of a particular use that might lead to NBS. Consequently, we find that the plaintiffs have failed to satisfy the numerosity requirement for class certification. See Pa.R.C.P. 1702(1).

The parents contend that there are sufficient common questions of law and fact to warrant class certification. We do not agree. While the existence of individual questions of fact is not necessarily fatal, it is essential that there be a predominance of common issues, shared by all the class members, which can be justly resolved in a single proceeding. Hayes, 370 Pa.Super. at 606, 537 A.2d at 332. In determining liability, this court has stated that “the common question of fact” means precisely that — the facts surrounding each plaintiffs claim must be substantially the same so that proof as to one claimant would be proof as to all. Allegheny County Housing Authority v. Berry, 338 Pa.Super. 338, 341, 487 A.2d 995, 997 (1985).

There is a significant difference, however, between individual factual questions regarding damages and individual questions of fact concerning liability. Cook v. Highland Water & Sewer Authority, 108 Pa.Cmwlth. 222, 231, 530 A.2d 499, 504 (1987). Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification. Id. “However, where there exist various intervening and possibly superseding causes of damage, liability cannot be determined on a class-wide basis.” Id.

Here, there are various possible intervening or superseding causes of the NBS. The trial court found that breastfeeding, the prolonged use of a nursing bottle filled with milk, juice or formula at nap or bedtime, or the individual feeding practices followed by the parents could have caused the NBS. In addition, there are at least two manufacturers in addition to Beech-Nut that market apple juice for infants; any of the three manufacturers could be liable for the NBS. Moreover, critical issues such as product usage, parental knowledge of NBS, dental hygiene, extent of injury, and the application of the statute of limitations vary by plaintiff and, consequently, require individual inquiry. Thus, in the instant case proof as to one plaintiff cannot suffice as proof as to all. Allegheny County Housing Authority, supra. Since liability cannot be determined on a class-wide basis, the common issues of law and fact cannot be held to predominate. Cook, supra.

The parents next contend that the trial court erred in denying class certification because it failed to consider that the value of the claims of the individual class members is insuffident to cover the cost of filing separate causes of action. We cannot agree. The fifth prerequisite for certification, that the class action will provide a fair and efficient method for resolving the controversy, refers the reader to Pennsylvania Rule of Civil Procedure 1708, which sets forth the elements which must be considered in determining whether a class action would, in fact, be fair and efficient. See Pa.R.C.P. 1702, supra. “[W]hether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions” is one element listed in rule 1708. Pa.R.C.P. 1708(a)(6). However, the trial court was not obligated to weigh the considerations of rule 1708 because the parents had failed to establish the first four of the mandatory prerequisites for class certification delineated in rule 1702.

Here the trial court determined that the parents had failed to establish even the first two requirements, numerosity and common questions of law and fact. Pa.R.C.P. 1702. Consequently, it was unnecessary for the trial court to consider the remaining three elements. While we are cognizant of the policy of this Commonwealth that “decisions in favor of maintaining a class action should be liberally made,” we simply cannot afford relief when it is clear from the record that the parents have failed to meet their burden of proof in seeking class certification. Janicik, 305 Pa.Super. at 126, 451 A.2d at 454 (citations omitted).

The trial court properly considered the requirements of the applicable rules of civil procedure for class certification and did not abuse its discretion in applying them. Hayes, supra. We, therefore, affirm the order denying the motion for class certification.

Order affirmed.

      . We note, parenthetically, that the parents neglected to include a copy of the trial court opinion in their brief, as required by Pennsylvania Rule of Appellate Procedure 2111. While the parents did include a copy of the trial court opinion in the reproduced record, we remind the parents that the rule specifically states: “There shall be appended to the brief a copy of any opinions delivered by any court....” Pa.R.A.P. 2111(b) (emphasis added).

      . The trial court properly noted, however, that the overly broad definition of the potential class was not fatal, in and of itself. Had it chosen to do so, the court could have modified the definition of the class to include, for example, only those children who had used Beech-Nut's apple juice during nap or bed time.


author: HUDOCK, Judge: BROSKY, Judge,

text:
    615 A.2d 432
    COMMONWEALTH of Pennsylvania, Appellee, v. Jeffrey HANAWALT, Appellant.
    Superior Court of Pennsylvania.
    Argued June 17, 1992.
    Filed Oct. 27, 1992.

      Gerald P. Deady, Wilkes-Barre, for appellant.
    Scott Gartley, Asst. Dist. Atty., Wilkes-Barre, for Com.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the order denying Appellant Jeffrey Hanawalt’s Motion in Limine. For the reasons which follow, we vacate the order of the trial court and remand for proceedings consistent with this opinion.

The facts and procedural history are as follows: On February 8, 1990, Appellant picked up his four-year-old daughter at approximately 8:00 a.m., and returned her to her mother at Noon the same day. Upon returning home, the child complained to her mother that her bottom hurt. The mother made an appointment with the child’s doctor for the following day; however, because the child continued to complain about the pain and began crying, the mother took her to see the doctor at 2:30 p.m. that afternoon.

A physical examination performed on the child by Dr. Jean Tory revealed that there were two bruises, one on each side of the top of the buttocks. The examination further revealed a very marked redness in and around the vaginal area. The vagina was shiny, caused by swelling, and there were red striations at the opening of the vagina. There were no markings or redness on the inside of the thighs or on the buttocks area. A slight amount of mucus was found on the outside of the vagina. When Dr. Tory questioned the child, in the presence of her mother, about what had happened, she responded: “My daddy stuck his pee pee in my pee pee.” On February 12, 1990, the child and her mother were interviewed by Trooper William J. Bevan, Jr. of the Pennsylvania State Police, Wyoming, Pennsylvania. During this interview, the child stated, “My daddy stuck his pee pee in my pee pee. Then he peed on me.”

Subsequently, Appellant was charged with rape, statutory rape, indecent assault and incest. A preliminary hearing was held on April 3, 1990. At the conclusion of the preliminary hearing, Appellant was bound over for trial on all charges. The case was scheduled for trial in February 1991. Prior to trial, Appellant filed a motion in limine which sought to preclude the Commonwealth from introducing the statements made by the child. On February 19, 1991, the court conducted an in-camera examination of the child, first with Appellant present and then, with Appellant’s waiver of his right to be present, outside the presence of Appellant. In both instances, the child would not repeat her prior statements. At the conclusion of the proceeding, the trial court determined that the child was incompetent to testify and therefore unavailable as a witness. On March 1, 1991, the trial court denied Appellant’s motion in limine and ruled that the Commonwealth would be allowed to introduce the hearsay statements of the child pursuant to 42 Pa.C.S. § 5985.1 (Purdon Supp.1992) (Tender years exception to the hearsay rule), infra. On March 28,1991, the trial court amended its order to include a statement that it was of the opinion that its order denying Appellant’s motion in limine involved a controlling question of law to which there was substantial grounds for difference of opinion, and that an immediate appeal from the order may materially advance the ultimate determination of the matter. Subsequently, Appellant petitioned this Court for allowance to appeal from the amended order, which was granted August 2, 1991. It is this appeal which is now before the Court.

The sole issue on appeal is whether 42 Pa.C.S. § 5985.1 (which provides that the hearsay statements of a child sexual abuse victim or witness who is twelve years of age or younger are admissible if, inter alia, the victim is unavailable) violates the defendant’s right to confront and cross-examine witnesses pursuant to the Pennsylvania and United States Constitutions. We find it does not.

42 Pa.C.S. § 5985.1 specifically provides:

(a) General rule. — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing indecent contact, sexual intercourse or deviate sexual intercourse performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal proceeding if:
(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability.
(2) The child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness and there is corroborative evidence of the act.
(b) Notice required. — A statement otherwise admissible under subsection (a) shall not be received into evidence unless the proponent of the statement notifies the adverse party of the proponent’s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement.

Initially, we note that a statute is presumed constitutional when it is lawfully enacted and will only be considered unconstitutional if it clearly, palpably and plainly violates the constitution. Commonwealth v. Leib, 403 Pa.Super. 223, 234, 588 A.2d 922, 928 (1991), alloc. den., 528 Pa. 642, 600 A.2d 194. Furthermore, a party challenging the constitutionality of an act of the General Assembly has a “heavy burden” of persuasion to sustain his claim. Bethenergy Mines, Inc. v. W.C.A.B., 524 Pa. 235, 239, 570 A.2d 84, 86 (1990).

The Confrontation Clause of the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides, “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Likewise, the Pennsylvania Constitution provides that in all criminal prosecutions the accused has a right to meet the witnesses against him “face to face”. Pa. Const. Art. 1 § 9 (Purdon Supp.1992).

Although a literal reading of the constitutional provisions would prohibit all hearsay statements, the Supreme Court of the United States has rejected that view as “unintended and too extreme.” Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 3145, 111 L.Ed.2d 638, 651 (1990). The Confrontation Clause, however, does operate to bar the admission of some evidence that would otherwise be admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. at 814, 110 S.Ct. at 3145, 111 L.Ed.2d at 651. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court framed a general rule to determine when hearsay statements, admissible under an exception to the hearsay rule, also satisfy the requirements of the Confrontation Clause. The Supreme Court subsequently summarized the rule in Idaho v. Wright, supra, as follows:

We noted[, in Ohio v. Roberts,] that the Confrontation Clause “operates in two separate ways to restrict the range of admissible hearsay.” ... “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.” ... 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.” (Citations omitted.)

Idaho v. Wright, 497 U.S. at 815-16, 110 S.Ct. at 3146, 111 L.Ed.2d at 651-652. Thus, when a witness is unavailable, in order for the evidence to be in accord with the Confrontation Clause and meet the “indicia of reliability” standard, the hearsay statement must either fall within a firmly rooted hearsay exception or it must be supported by a showing of particularized guarantees of trustworthiness.

Firmly rooted hearsay exceptions satisfy the Confrontation Clause mandate of reliability “because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements.” Id., 497 U.S. at 817, 110 S.Ct. at 3147, 111 L.Ed.2d at 653. In other words, firmly rooted hearsay exceptions have become such because the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would add little to its reliability. Likewise, “ ‘particularized guarantees of trustworthiness’ required for admission under the Confrontation Clause must ... be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief.” Id, 497 U.S. at 818-19, 110 S.Ct. at 3148, 111 L.Ed.2d at 655-656.

In evaluating the constitutionality of 42 Pa.C.S. § 5985.1 by the standards enunciated in Ohio v. Roberts, supra, and clarified in Idaho v. Wright, supra, we find that the Pennsylvania statute is in conformity with constitutional mandates. However, because the statute is a relatively new creation in this Commonwealth, it is not accorded the longstanding judicial and legislative experience of a firmly rooted hearsay exception. Thus, for 42 Pa.C.S. § 5985.1 to pass muster under the Confrontation Clause, the evidence admitted under section 5985.1 must possess “particularized guarantees of trustworthiness” as adduced from the totality of the circumstances surrounding the out-of-court statement made by the child victim. The language of 42 Pa.C.S. § 5985.1, specifically “(1) The court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability ” (emphasis added), clearly fulfills these mandates. Accordingly, we find that 42 Pa.C.S. § 5985.1 mirrors the requirements asserted by Ohio v. Roberts, supra, and, as such, does not violate the Sixth Amendment Confrontation Clause of the United States Constitution nor the Confrontation Clause of the Pennsylvania Constitution.

Nevertheless, Appellant maintains that the holdings of Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986) and Commonwealth ex rel. Buchanan v. Verbonitz, 525 Pa. 413, 581 A.2d 172 (1990), cert. den., sub nom. Stevens v. Buchanan, — U.S. —, 111 S.Ct. 1108, 113 L.Ed.2d 217 (1991), control the disposition of this case. In Commonwealth v. Haber, two mothers, during trial, related stories of sexual abuse told to them by their children, and identified appellant as the molester. This Court held that the admission of statements made by the two child victims violated the hearsay rule. The Commonwealth, in that case, asked this Court to create a new exception to the hearsay rule for out-of-court assertions of children pertaining to sexual abuse. We declined to do so, reasoning that such hearsay was too untrustworthy to be considered by the trier of fact. Judge Olszewski dissented, finding a need existed for implementation of a tender-years exception, and that such an exception would provide ample opportunity to test the reliability of the evidence, and, therefore, withstand constitutional scrutiny under the Confrontation Clause of the Sixth Amendment. Appellant asserts that the majority’s reasoning in that case is applicable to the within situation. We disagree.

Since the decision in Commonwealth v. Haber, the legislature of this Commonwealth has directly responded to this situation and has created 42 Pa.C.S. § 5985.1, which requires a “sufficient indicia of reliability” before such statements can be admitted in evidence as an exception to the hearsay rule. In Commonwealth v. Haber, this Court merely declined to judicially create an exception to the hearsay rule. We, at that time, were not presented with a legislative enactment, designed with safeguards for truthfulness. Therefore, we find Appellant’s reliance on this case misplaced.

In Commonwealth ex rel. Buchanan v. Verbonitz, supra, the issue presented was whether hearsay testimony presented at a preliminary hearing regarding a seven-year-old victim’s account of an alleged criminal incident, which was the sole evidence presented by the Commonwealth, was sufficient to establish a prima facie case. On June 24,1987, appellant was arrested and charged with statutory rape, corruption of a minor and endangering the welfare of a child. At the preliminary hearing, the Commonwealth presented the hearsay testimony of the investigating police officer, who recounted the alleged criminal incident as it was allegedly related to him by the victim. The victim did not testify, nor was any other evidence presented at the preliminary hearing. Appellant was bound over for trial. Subsequently, appellant filed a writ of habeas corpus in the court of common pleas, which writ was denied. Certification of the issue was also denied by the trial court. Appellant then petitioned this Court for review. When his petition was denied, appellant petitioned the Supreme Court for allowance of appeal. Allocatur was granted. Upon review, our Supreme Court held that the Pennsylvania Constitution mandates a criminal defendant’s right to confrontation and cross-examination at the preliminary hearing. It further found that the testimony of the police officer was clearly hearsay and inadmissible. Accordingly, our Supreme Court held that the Commonwealth had failed to establish a prima facie case and dismissed the charges.

Appellant argues that, because our Supreme Court recognized “ ‘in all criminal prosecutions’ the accused has a right to meet the witnesses against him — ‘face to face’ ”, Id., 525 Pa. at 419, 581 A.2d at 175 (emphasis in original), citing Pa. Const. Article 1 § 9, a statute which authorizes the introduction of hearsay statements of a sexually abused child victim would be unconstitutional, denying the accused the right to confront and cross-examine the witnesses against him. Essentially, Appellant suggests that Commonwealth ex. rel. Buchanan v. Verbonitz, supra, stands for the proposition that all hearsay statements violate the Confrontation Clause. We agree with the United States Supreme Court in Idaho v. Wright, supra, that this view is too extreme. Furthermore, although the statute in question was in effect at the time of the decision of our Supreme Court in Commonwealth ex. rel. Buchanan v. Verbonitz, the preliminary hearing at issue in that case took place before enactment of the statute (1987). Accordingly, the statute had no application to that case. Thus, Commonwealth ex. rel. Buchanan v. Verbonitz, supra, is clearly distinguishable from the present case. Moreover, even if 42 Pa.C.S. § 5985.1 would have been applicable to the situation in Commonwealth ex. rel. Buchanan v. Verbonitz, we note that the case was a plurality opinion, which is not binding authority on this Court.

At oral argument, counsel for Appellant referred this Court to Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991), where our Supreme Court held that the use of closed-circuit television testimony by an alleged child victim violates the Confrontation Clause of the Pennsylvania Constitution. Appellant argues that Article I, § 9 of the Pennsylvania Constitution guarantees an accused the right to meet his accuser, and that the statute in question here violates this guarantee by the use of hearsay testimony. The constitutional provision in questions provides: “In all criminal prosecutions the accused has a right to be heard ... to meet the witnesses face to face ...” (Emphasis added). Our Supreme Court, while invalidating the closed-circuit television procedure, made it clear that this right to face-to-face confrontation, like any right, is not absolute. The court pointed out that it had permitted the prosecution to use preliminary hearing testimony of a witness at trial, when that witness was unavailable, Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977), and that it had countenanced the prosecution’s use of a video-taped deposition of a witness unavailable for trial. Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). Indeed, to accept Appellant’s position that an accused has the right to face-to-face confrontation with the declarant in all testimony offered against him would invalidate all well-recognized exceptions to the hearsay rule, such as the co-conspirators exception or the excited utterance exception. Our Supreme Court has expressly ruled that the co-conspirators exception does not violate the holding of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the seminal case on the problem of hearsay in the confrontation right context. See Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). While Coccioletti was decided under the confrontation right contained in the Sixth Amendment to the United States Constitution, our Supreme Court gave no indication that the result would have been different under the Pennsylvania Constitution. It is of no moment that the parties did not raise the state constitutional guarantees in Coccioletti, supra, for the Supreme Court could have decided the state constitutional question even though not raised by the parties. In Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), our Supreme Court decided that there was no “good faith” exception to the exclusionary rule governing searches and seizures under Article I, § 8, of the Pennsylvania Constitution, contrary to the view of the U.S. Supreme Court in U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), interpreting the similar provision of the Fourth Amendment to the United States Constitution. Our Supreme Court decided the issue of state constitutional law, even though it had never been raised by the Appellant in the trial or in this Court on appeal. Appellant chose to rely only upon the Sixth Amendment to the United States Constitution. We thus conclude that our Supreme Court in Ludwig, supra, did not intend to invalidate all exceptions to the hearsay rule as violative of the Confrontation Clause of the Pennsylvania Constitution. As in Coccioletti, supra, such exceptions to the hearsay rule do not violate either the federal or state constitutional confrontation right.

Having determined that 42 Pa.C.S. § 5985.1 does not violate the Confrontation Clause of the Sixth Amendment to the United States Constitution, nor Article 1 § 9 of the Pennsylvania Constitution, we vacate the order of the trial court denying Appellant’s motion in limine and remand the case to the court in order that it may make a factual determination as to whether the statements of the child victim comport with statutory regimens, specifically whether the statements in question contain the indicia of reliability necessary to permit them as evidence in the within criminal proceeding.

On remand, we direct the trial court’s attention to the following guidelines enunciated in Idaho v. Wright> supra, for determining whether hearsay statements made by a child sexual abuse victim possess the requisite indicia of reliability to be admissible. Although the Supreme Court declined to endorse a mechanical test for determining when hearsay statements made by a child witness in child sexual abuse cases possess “particularized guarantees of trustworthiness” under the Confrontation Clause, it did provide that the main consideration in making such a determination is whether the child declarant was particularly likely to be telling the truth when the statement was made. Id., 497 U.S. at 818, 110 S.Ct. at 3148, 111 L.Ed.2d at 656: The Supreme Court then identified a non-inclusive list of factors to consider when making such a determination. Such factors include, but are not limited to: 1) the spontaneity and consistent repetition of the statement(s); 2) the mental state of the declarant; 3) the use of terminology unexpected of a child of similar age; and, 4) the lack of motive to fabricate. Id. We suggest that the trial court, in the present case, consider these factors, among others, in arriving at its determination under the statute.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

BROSKY, J., files a concurring opinion.

BROSKY, Judge,

concurring.

I concur with the majority in concluding that, to the extent 42 Pa.C.S. § 5985.1 is interpreted and applied in a fashion that does not offend the concepts espoused in the United States Supreme Court’s decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), the statute in question should be regarded as constitutionally acceptable.

I note also that subsection (a)(2)(h), which appears to validate a statement where the child declarant “is unavailable as a witness and there is corroborative evidence of the act” would seem to offend the decision in Idaho v. Wright; at least to the extent the statement is not otherwise accompanied by the “particularized guarantees of trustworthiness” sufficient to satisfy the confrontation clause. With this particular exception, and in reliance upon the decision in Idaho v. Wright, I would agree that the statute in question does not compromise the accused’s constitutional rights under the confrontation clause.

      . 18 Pa.C.S. § 3121(4) (Purdon Supp.1992).

      . 18 Pa.C.S. § 3122 (Purdon 1983).

      . 18 Pa.C.S. § 3126(a)(3) (Purdon Supp.1992).

      . 18 Pa.C.S. § 4302 (Purdon Supp.1992).

      . Although the parties do not contest the unavailability of the child on appeal, we note that the trial court properly determined that when a child is incompetent to testify, he is unavailable as a witness. There is no distinction between unavailability due to lack of presence and unavailability due to incompetence. In both cases the lips of the child are equally sealed.

      . The Pennsylvania Supreme Court, likewise, made no mention of 42 Pa.C.S. § 5985.1 in its decision in Commonwealth ex. rel. Buchanan v. Verbonitz, supra.

      . We note that, even if the child’s statements do not meet the guidelines of 42 Pa.C.S. § 5985.1, the trial court may nevertheless find the statement made to the mother and Dr. Tory admissible pursuant to the excited utterance and medical treatment exceptions to the hearsay rule. See Commonwealth v. Sanford, 397 Pa.Super. 581, 580 A.2d 784 (1990), alloc. den., 527 Pa. 586, 588 A.2d 508 (1991).


author: MONTEMURO, Judge:

text:
    615 A.2d 438
    PITTSBURGH LIVE, INC. v. Edward B. SERVOV and Bethel Mart Associates, a Partnership, Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 27, 1992.
    Filed Oct. 28, 1992.

      John E. Quinn, Pittsburgh, for appellants.
    Joseph W. Conway, Sarver, for appellee.
    Before MONTEMURO, KELLY and BROSKY, JJ.
   MONTEMURO, Judge:

This is an appeal from a final decree in equity that imposed a constructive trust on a 1.3 acre tract of land; directed appellants to convey the tract to appellee within sixty days; and, ordered appellants to pay to appellee the sum of $23,970 which represents $6,000 in compensatory damages, $7,970.78 in counsel fees, plus $10,000 in punitive damages. On appeal, appellants assert that the chancellor erred by: (1) concluding that appellee had been fraudulently induced into transferring the tract of land; (2) awarding counsel fees to appellee; and, (3) awarding punitive damages. After review of the record, we affirm the transfer of the property and the award of compensatory damages; however, we reverse the award of counsel fees and punitive damages.

Appellant, Bethel Mart Associates (BMA), which is a limited partnership, is the former owner of a shopping center situated in Bethel Park, Pennsylvania. During the time that it owned the shopping center, BMA attempted to locate a tenant who would lease a portion of the shopping center for the purpose of establishing a high volume business such as a restaurant or nightclub. For various reasons, BMA was initially unable to find such a tenant.

Appellant, Edward Servov, Esq., BMA’s general partner and also one of its limited partners, discussed BMA’s inability to find a suitable tenant with his long time business associate, Raymond Seitz, D.D.S.; who is also a limited partner in BMA. During their discussion, Dr. Seitz and Attorney Servov decided to resolve BMA’s problem by forming appellee, Pittsburgh Live, Inc., for the express purpose of establishing a nightclub in the shopping center. Appellee and Dr. Seitz then jointly leased a portion of the shopping center from BMA.

Now that a suitable tenant was found, Dr. Seitz and Attorney Servov had to address one of the major hurdles that prevented a nightclub from opening in the shopping center; specifically, the lack of adequate parking facilities. To acquire additional parking, Dr. Seitz and Attorney Servov contacted an adjoining landowner, Mrs. Elma May Connelly, to ascertain whether she would be willing to sell a portion of her property to appellee. Eventually, Mrs. Connelly agreed to sell a 1.3 acre tract of land to appellee for the sum of $35,000.00. Dr. Seitz then paid Mrs. Connelly $1,000.00 in earnest money from his own bank account and a sales agreement (Agreement) was executed memorializing the terms of the proposed sale.

Several years later, BMA ran into financial difficulty and filed for bankruptcy under Chapter 11 of the Bankruptcy Code of 1978,11 U.S.C. § 101 et seq. Pursuant to Chapter 11, BMA filed various plans for reorganization with the bankruptcy court. Under the terms of court approved plan, BMA would sell its assets to a single purchaser. Following the sale, the proceeds would then be used to satisfy the claims of BMA’s numerous creditors. Appellee and Mrs. Connelly were identified as creditors of BMA whose claims were to be satisfied from the sale proceeds.

The purchaser of BMA’s assets made the sale contingent upon the termination of appellee’s lease and any other agreements then existing between appellee and BMA. To satisfy these conditions, BMA entered into an agreement with appellee, whereby appellee agreed to terminate the lease for $1.00 and other good and valuable consideration. Apparently, the other good and valuable consideration contemplated by the parties was appellee’s receipt of the residual of the bankruptcy estate. The sale was then consummated and the proceeds distributed to the creditors including appellee who received $287,115.73. In addition, $40,000.00 was set aside so BMA could complete the sale with Mrs. Connelly.

According to Attorney Servov, Mrs. Connelly was identified as a creditor of BMA because appellee had assigned the Agreement to BMA on January 3, 1986. Dr. Seitz disputes Attorney Servov’s assertion that there was a valid assignment of the Agreement. It is Dr. Seitz’s contention that he was fraudulently induced into assigning the Agreement. The chancellor agreed.

Before the chancellor, Dr. Seitz alleged that Attorney Servov told him that in addition to the lease termination, the purchaser of BMA’s assets required that the signatures on the Agreement correspond with the signatures on the lease. Because Dr. Seitz was an individual tenant under the lease, he added his individual signature to the Agreement. Dr. Seitz claims that Attorney Servov subsequently added words of assignment to the Agreement.

Despite Dr. Seitz’s protestation that the Agreement had not been assigned, Attorney Servov closed on the property paying Mrs. Connelly the balance due on the $35,000.00 sale price and retaining approximately $6,000.00. Appellee then brought a suit in equity, wherein it alleged that it had been fraudulently induced into assigning the Agreement and asked the chancellor to order appellants to convey the property to appellee, pay compensatory and punitive damages, and counsel fees. After a hearing, the chancellor entered a decree nisi granting the requested relief. This appeal followed the entry of the final decree.

Preliminarily, we note that our scope of review in this matter is particularly limited. We must accept the chancellor’s findings of fact and we will not reverse the chancellor’s determination absent a clear abuse of discretion or error of law. Gurenlian v. Gurenlian, 407 Pa.Super. 102, 595 A.2d 145 (1991); Werner v. Werner, 393 Pa.Super. 125, 573 A.2d 1119 (1990), alloc. denied, 527 Pa. 668, 593 A.2d 843 (1991). “[W]here the chancellor’s findings are largely dependent upon the credibility of witnesses, [as is the case here,] the findings are entitled to particular weight, as the chancellor had the opportunity to observe the demeanor of the witnesses.” Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987).

Appellants first argue that the evidence is insufficient to conclude that appellants had fraudulently induced the assignment of the Agreement. In support of this argument, appellants direct our attention to a litany of facts which they argue impeach the credibility of Dr. Seitz and show that the assignment was not fraudulently induced. In essence, appellants argue that the chancellor erred by not accepting their factual history of the dispute.

Before addressing this claim, we note that “[f]raud consists of anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.” Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 107, 464 A.2d 1243, 1251 (1983). The elements of an action for fraud consist of: (1) a misrepresentation, (2) a fraudulent utterance thereof, (3) an intention by the maker that the recipient will thereby be induced to act, (4) justifiable reliance by the recipient upon the misrepresentation, and (5) damage to the recipient as the proximate result. Id., 318 Pa.Super. at 108, 464 A.2d at 1252-53 (quoting Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 285, 285 A.2d 451, 454 (1971)). Each of the aforementioned elements must be proved by clear and convincing evidence. Gerfin v. Colonial Smelting & Refining Co., Inc., 374 Pa. 66, 67, 97 A.2d 71, 72 (1953).

For the evidence to be clear and convincing, the witnesses must be credible. This means that the witnesses must both distinctly remember the facts to which they testify, and narrate the details exactly. Id., 374 Pa. at 72, 97 A.2d at 74. If the witnesses testimony fails to meet this exacting standard, an action for fraud cannot be maintained.

Here, we find that appellee’s evidence met this exacting standard. Dr. Seitz clearly and distinctly set forth the events which led to his signing of the Agreement. There was no deviation in his testimony or lapse in his memory. However, appellants assert that we should disregard Dr. Seitz’s testimony because it was successfully impeached. We disagree.

Both parties presented an abundance of evidence in support of their respective version of the facts. To resolve this dispute, the chancellor had to determine whose witnesses were credible. Here, the chancellor chose to believe the testimony of Dr. Seitz and disregard the testimony of Attorney Servov. Because the chancellor had the opportunity to observe the demeanor of both men and assess their credibility, we find that chancellor did not err by finding Dr. Seitz to be credible and disregarding the testimony of Attorney Servov. Accordingly, we affirm that portion of the decree which concludes that appellee was fraudulently induced into assigning the Agreement and the award of compensatory damages.

Appellants also argue that the chancellor erred by awarding counsel fees to appellee. We agree.

It is well established that a litigant is responsible for his own counsel fees absent an agreement by the parties or some other established exception. Shanks v. Alderson, 399 Pa.Super. 485, 488, 582 A.2d 883, 885 (1990), alloc. denied, 528 Pa. 638, 598 A.2d 994 (1991). Unfortunately for appellee, there is no established exception which permits recovery of attorney fees in an action for fraud. Id., 399 Pa.Super. at 488, 582 A.2d at 885. Accordingly, we reverse the award of counsel fees.

Finally, appellant contends that the chancellor erred by awarding punitive damages. Here, appellee may recover punitive damages if there are aggravating circumstances beyond those that justified the award of compensatory damages. Smith v. Renaut, 387 Pa.Super. 299, 309, 564 A.2d 188, 193 (1989). However, when fraud is the basis of compensatory damages, the same fraudulent conduct is not sufficient to base an award of punitive damages without more. Id., 387 Pa.Super. at 309, 564 A.2d at 193. To justify the award of punitive damages, there must be acts of malice, vindictiveness and a wholly wanton disregard of the rights of others. Id., 387 Pa.Super. at 309, 564 A.2d at 193. Here, there was no such evidence and therefore, the award of punitive damages cannot be affirmed.

Decree affirmed in part and reversed in part. Case remanded for entry of a decree consistent with this opinion. Jurisdiction is relinquished.

      . At the time of incorporation, Mr. Servov was appellee’s attorney and Dr. Seitz its president. According to Dr. Seitz, he is also appellee’s sole shareholder. Attorney Servov disputes this assertion and contends that appellee is owned equally by Dr. Seitz and Attorney Servov’s wife.

      . BMA’s creditors were divided into various classes. Based on their class assignment, BMA’s creditors received either full or partial payment on their claims.

      . Although Attorney Servov had structured the reorganization to provide appellee with $500,000, additional creditors asserted claims against BMA thereby reducing the monies available for distribution to appellee.