source: Caselaw Access Project

author: SPAETH, President Judge:

license: Public Domain

text:
    485 A.2d 444
    COMMONWEALTH of Pennsylvania v. Steve LEONHARD, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Nov. 30, 1984.
    Petition for Allowance of Appeal Denied May 21, 1985.

      Philip B. Friedman, Erie, for appellant.
    John M. Dawson, Assistant District Attorney, Meadville, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   SPAETH, President Judge:

This is an appeal from judgment of sentence for driving under the influence of alcohol and leaving the scene of an accident involving death or bodily injury. The only issue is whether the trial court’s comments on the evidence in the charge to the jury constituted reversible error. We find that on the particular facts, the error, if any, worked no injustice, and we therefore affirm the judgment of sentence.

On December 31, 1981, appellant, heavily intoxicated, drove his car through an intersection in Meadville, Pennsylvania, and collided with a van driven by John Stroup, who was on his way home from work. Mr. Stroup was thrown from the van by the force of the collision and suffered a fractured skull. He was hospitalized for forty-nine days and was permanently injured. Following the collision, appellant climbed from the window of his car and ran from the scene. The police arrived within five to ten minutes and, following bystanders’ directions, followed appellant’s footprints in the snow. They found him approximately one-quarter of a mile from the accident scene, alternately running, walking, and hitchhiking along a four-lane highway toward Ohio, where he lived. (Transcript at 11a-16a; 64a-70a) After the police arrested appellant, they took him to a nearby hospital where the staff closed a cut on his forehead with four stitches and x-rayed his skull. The x-ray showed no internal injury. (Transcript at 71a, 87-88a)

Appellant was charged with driving under the influence of alcohol and leaving the scene of an accident. At trial, he admitted that he had been intoxicated. (Transcript at 111a) He claimed, however, that his head injury was sufficiently severe to render him unable (independently of the alcohol) intentionally to leave the scene of the accident. (Defense closing statement, Record at 43:21-24) In charging the jury, the trial court told the jurors that they were the sole judges of the credibility of all witnesses and that they must apply the same standard in evaluating the testimony of police officers as they did to that of any other witness. (Transcript at 120-121a, 123a) The court concluded by discussing appellant’s defense that his head injury was the sole cause of his inability to form the required intent:

THE COURT: ... So, what are we down to? The Defendant’s argument is that he doesn’t recall anything about it, he doesn’t recall leaving the scene of the accident, because he theorizes he got a cut or a bump on his head, and that is what prevented him from forming the requisite intent, and the argument seems to be that the alcohol had nothing to do with it.
Well, if you would find from all óf the evidence, and the evidence is- pretty scarce on that point, if you would find from all of the evidence that the reason he left the scene of the accident was because his mind, because of the cut or the bump on his head, because of that, his mind was rendered blank to the point where that — and that alone— prevented him from forming the requisite mental intent to know what he was doing, then you should acquit him.
But, if he didn’t have the mental intent, because he was so drunk or so under the influence of intoxicating liquors, that he couldn’t form the intent, then that’s not a defense. (Transcript at 126a-127a)

After summarizing the evidence on this point, the court concluded:

Well, if he did get such a severe bump on the head, he didn’t know what he was doing, then you may consider that and if that rendered his mind incapable and that alone rendered his mind incapable — The Commonwealth argued strongly there is no evidence of that, get a minor cut on his head that was sewed up, I believe somebody said with four sutures, and he lay on a cot for a while, and I suppose out of abundance of caution the doctor ordered head x-rays, they proved negative, so they released him from the hospital to the police, and they took him to the magistrate’s office, so the testimony of any cut or blow affecting mental capacity is very, very sparse, and it’s only a conjecture on the Defendant’s part. (Transcript at 128a-129a)

The court ended its charge by stating again, upon motion of counsel, that the jurors were “the sole judges of the facts” and that they were to “take your recollection of what you heard and not mine.” (Transcript at 131a) The jury found appellant guilty of both charges.

Appellant argues that the trial court erred in its charge by improperly commenting on the evidence, and that he was thereby deprived of a fair trial. In considering this argument, we must read the challenged language in the context of the charge as a whole. Commonwealth v. Simmons, 482 Pa. 496, 513-14, 394 A.2d 431, 440 (1978); Commonwealth v. DeFrancesco, 481 Pa. 595, 605, 393 A.2d 321, 326 (1978) citing Commonwealth v. Lesher, 473 Pa. 141, 373 A.2d 1088 (1977).

The cases concerning the permissible extent to which a judge may comment on the evidence are not consistent. See Commonwealth v. Ferguson, 289 Pa.Super. 163, 167, 432 A.2d 1103, 1105 (1981), and cases cited therein. Nevertheless, the general principles are clear. On the one hand, the trial court must frame the legal issues for the jury and instruct the jury on the applicable law, while on the other hand, it must not usurp the power of the jury to be sole judge of the evidence. See Commonwealth v. Goins, 457 Pa. 594, 598, 321 A.2d 913, 915 (1974).. Plainly, these principles may conflict with each other, for in order to instruct the jury on the law the court may have to refer to the evidence. The proper balance to be struck will depend heavily on the facts and circumstances of each case. See Commonwealth v. Vernille, 275 Pa.Super. 263, 271, 418 A.2d 713, 717 (1980). However, some general guidelines have been formulated. Thus the court may not comment on, or give its opinion of, the guilt or innocence of the accused. Commonwealth v. Archambault, 448 Pa. 90, 290 A.2d 72 (1972). Nor may it state an opinion as to the credibility of witnesses, nor remove from the jury its responsbility to decide the degree of culpability. See Commonwealth v. McClendon, 478 Pa. 108, 115, 385 A.2d 1337, 1340 (1978); Commonwealth v. Butler, 448 Pa. 128, 134-35, 291 A.2d 89, 92 (1972). See also, 3 American Bar Association Standards for Criminal Justice, Standard 15-3.8(a) (2d ed., 1980). However, the court may summarize the evidence and note possible inferences to be drawn from it. In doing so, the court may “... express [its] own opinion on the evidence, including the weight and effect to be accorded it and its points of strength and weakness, providing that the statements have a reasonable basis and it is clearly left to the jury to decide the facts, regardless of any opinion expressed by the judge.” Commonwealth v. Vernille, supra, 275 Pa.Super. at 270, 418 A.2d at 717 (citations omitted). See also Commonwealth v. Dougherty, 259 Pa. Super. 88, 92, 393 A.2d 730 (1978) (citations omitted); Commonwealth v. Fiorini, 202 Pa.Super. 88, 97, 195 A.2d 119 (1963) (citation omitted).

After applying these principles to the case before us, we have concluded that the trial court’s remarks were not such that we should remand for a new trial. Without question, the court’s remarks were harsh, and its characterization of appellant’s defense as a “theor[y]” and “conjecture” (Transcript at 126a, 129a) might very well, if read alone, constitute sufficient ground to remand for a new trial, particularly given the fact that the remarks were directed toward diminishing the force of the only defense that appellant offered. See Commonwealth v. Goins, 457 Pa. 594, 599-600, 321 A.2d 913, 916 (1974) (in murder trial in which only issue was degree of defendant’s guilt, court impermissibly “expressed] its opinion as to the merit of the only defense offered” when it charged that jury must find defendant guilty of first degree murder if it convicted him at all). Nevertheless, as our Supreme Court has noted, “[ejvery unwise or irrelevant remark made in the course of a trial by a judge ... does not compel the granting of a new trial. A new trial is required when the remark is prejudicial; that is, when it is of such a nature or substance ... that it may reasonably be said to have deprived the defendant of a fair and impartial trial.” Commonwealth v. Goosby, 450 Pa. 609, 611, 301 A.2d 673, 674 (1973) quoting Commonwealth v. Phillips, 183 Pa.Super. 377, 382, 132 A.2d 733, 736 (1957) (citations omitted; emphasis added in Goosby.) Here, the trial court’s remarks, when read in context of the entire charge, did not in our opinion deprive the defendant of a fair trial. The court emphasized in its charge that it was the jury’s exclusive role to rule on credibility, and that the jurors should prefer their recollection of the testimony to the court’s. Moreover, the challenged remarks were made in the context of framing the legal issue of specific intent so that the jury could separate the impermissible excuse of voluntary intoxication from the permissible excuse of injury. In so doing, the court charged the jurors that if they believed appellant, it was their right to acquit him. We do not suggest that the court’s remarks regarding appellant’s defense had no effect on the jury. Nevertheless, we think that considered as a whole, the charge left the jury free to reach its “independent conclusion” as to appellant’s guilt or innocence. Commonwealth v. McClendon, 478 Pa. 108, 114, 385 A.2d 1337, 1341 (1978). While it is true, as appellant urges, that the court characterized appellant’s evidence as “very, very sparse,” it cannot be said that this characterization was without reasonable basis: there was, in fact, no evidence aside from appellant’s own testimony to support his claim that his head injury alone caused his diminished mental capacity. No doubt it would have been better if the court’s language had been less severe, but on balance, we do not believe an injustice was done.

Affirmed.

      . 75 Pa.C.S.A. § 3731.

      . 75 Pa.C.S.A. § 3742.

      . This issue was properly raised at trial and by post-trial motion: Transcript at 130a; Motion for New Trial and in Arrest of Judgment, Record at # 17. The trial court dismissed it without discussion, only stating that it was “totally devoid of merit.” Opinion of trial court, Record at 22:2.


author: WIEAND, Judge:

text:
    485 A.2d 447
    Edward RAFFENSBERGER, Richard Muscarello, Arthur Bellamy, Thomas Millard, Warren Stanton, Richard Thieme, Robert Bashore, Brian Burgess, Marlowe Swanson, John Demchak, Nelson Houser, Glenn Ingersoll, Joseph Gambucci, Bruce Parenteau, Arthur Gigantino, Lee Estabrooks, Clint Eshelman, Pat Conway, Horace Drake, Ralph Harris, Thomas Winsor, Harold Yetter, John Teetz, John Nicholson, Jorgen Rasmussen and Joseph Verdier, Appellants, v. Joseph MORAN and Roadway Express, Inc.
    Superior Court of Pennsylvania.
    Argued March 28, 1984.
    Filed Nov. 30, 1984.

      James V. Fareri, Stroudsburg, for appellants.
    George W. Westervelt, Jr., Stroudsburg, for appellee.
    Before BROSKY, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

In this action for libel, the trial court concluded from the pleadings, from pre-trial discovery, and from admissions and affidavits filed by the parties that the statements made by Joseph Moran and alleged to be defamatory of appellants, although capable of a defamatory meaning, were made without malice during a labor dispute. The court, therefore, granted summary judgment dismissing the action. We agree that the remarks were made during a labor dispute and were capable of a defamatory meaning. Because we conclude that the existence of malice was more properly a jury issue, however, we reverse.

On July 7, 1980, Joe Moran, a “relay manager” for Roadway Express, Inc., caused to be sent by telex from Roadway’s facility at Tannersville, Monroe County, to twenty-nine Roadway terminals in seven states the following message:

Terminal Managers cc: Wickham Hassler
Re: The Artists
Listed below are the top thirty (30) men (and I use the term loosely) who have broken down the most since the first of the year. They are the ones who are delaying your inbound or outbound. Spending the corporation’s money. Do not hesitate to give these individuals my fondest regards upon their arrival at your station.
1. Nicholson 11. Bellamy 21. Steele
2. Rasmussen 12. Ingersoll 22. Drake
3. Houser 13. Gagnon 23. Verdier
4. Bashore 14. Eshelmann 24. Simpson
5. Raffensberger 15. Gambucci 25. Swanson
6. Muscarello 16. Millard 26. Demchak
7. Parenteau 17. Harris 27. Winsor
8. Gigantino 18. Thieme 28. Conway
9. Estabrooks 19. Perry 29. Teetz
10. Burgess 20. Stanton 30. Yetter
Joe Moran

All of the named drivers, except four, joined as plaintiffs in a Complaint in Trespass filed May 14, 1981 in which they alleged that Moran had defamed them by implying that they were “breakdown artists.” The term “breakdown artist,” they alleged, is used in the trucking business to suggest that drivers are intentionally “breaking down” while on the road and thereby causing unnecessary expense to the owner in the form of delayed transit, additional wages to the drivers and costs of paying vendors to make repairs. Appellants contended that they had been and were continuing to be “irreparably harmed” and unable to obtain work in the trucking business. Moran, they alleged, knew or should have known that their breakdowns had not occurred by virtue of intentional acts.

Discovery depositions disclosed that Moran had compiled his list of “artists” by reviewing company records to determine which drivers had reported the most breakdowns of trucks and/or equipment during the first six months of 1980. The list of thirty included, according to Moran, all drivers who had reported at least five breakdowns during this period. His motivation in sending the telex message, Moran testified, was to publicize their inordinately frequent breakdowns and to “spur the men on” as part of a strategy to reduce breakdowns. The drivers testified in depositions that “breakdown artist” refers to a driver who intentionally breaks down by abusing his equipment or who refuses to drive for reasons unjustified by malfunction; such a driver, they said, schemes to take his equipment out of service in order to avoid driving and to collect additional wages. Appellants testified that they had been ridiculed and chastised by other truckers who share the same definition of “breakdown artist.”

“Ordinarily, summary judgment should only be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, 292 Pa.Super. 238, 242, 437 A.2d 23, 25 (1981). See also: Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984); Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Pa.R.C,P. 1035(b). In passing upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmerman, 322 Pa.Super. 121, 124, 469 A.2d 212, 213 (1983). “It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried.” Thorsen v. Iron and Glass Bank, supra, 328 Pa.Super. at 141, 476 A.2d at 931; Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 290 (1983). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982).

A communication is defamatory of another’s good name “if it ‘tends so to harm the reputation of [the other] as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ Procedurally, it is the function of the court in the first instance to determine whether the communication complained of is capable of a defamatory meaning. The test is the effect the statement would fairly produce, or the impression it would naturally engender, ‘in the minds of the average persons among whom it is intended to circulate.’ ” Rybas v. Wapner, supra, 311 Pa.Super. at 54-55, 457 A.2d at 110, quoting Corabi v. Curtis Publishing Co., 441 Pa. 432, 441 & 447, 273 A.2d 899, 904 & 907 (1971). The meaning of an allegedly defamatory communication must be ascertained by reading the communication as a whole and in context. Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 305, 483 A.2d 456, 461 (1984); Dunlap v. Philadelphia Newspapers, Inc., 301 Pa.Super. 475, 482 n. 3, 448 A.2d 6, 10 n. 3 (1982). See also: Wilson v. Benjamin, 332 Pa.Super. 211, 223, 481 A.2d 328, 334 (1984) (Wieand, J., dissenting). Its meaning is “that which the recipient correctly, or mistakenly but reasonably, understands that it was intended to express.” Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 430, 480 A.2d 1101, 1109 (1984), quoting Restatement (Second) of Torts § 563 (1977). See generally: Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72.

We agree with the trial court that Moran’s telex message was capable of a defamatory meaning. It was susceptible to an interpretation which suggested that the named drivers were contriving equipment failures and exploiting minor malfunctions dishonestly in order to obtain additional compensation and thereby injure Roadway by causing unnecessary expense. A driver with such a reputation, a jury could find, would be held in low esteem by owners and drivers alike, would be subjected to ridicule by drivers and terminal managers, and would experience increased difficulty in obtaining future work. Because the telex message was capable of a defamatory meaning, it will be for a jury to determine whether it was so understood. Merely because it was also capable of an innocuous interpretation, as appellees contend, does not conclusively defeat appellants’ causes of action. Agriss v. Roadway Express, Inc., supra, 334 Pa.Super. at 308, 483 A.2d at 462.

In Linn v. United Plant Guard Workers, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966), the United States Supreme Court considered the pre-emptive effect of the National Labor Relations Act (NLRA), as amended, 29 U.S.C. § 151 et seq., on the power of state courts to award remedies in defamation cases arising in the context of “labor disputes.” The Court concluded that, although Congress did not intend to pre-empt labor-related defamation actions entirely, the availability of state remedies for defamatory statements made in the course of a labor dispute should be limited “to those instances in which the complainant can show that the defamatory statements were circulated with malice and caused him damage.” Id., 383 U.S. at 64-65, 86 S.Ct. at 664, 15 L.Ed.2d at 591. The Supreme Court elected to adopt the “actual malice” standards of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) by analogy, rather than under constitutional compulsion, in order “to effectuate the statutory design” of the NLRA. The Court said: “Construing the Act to permit recovery of damages in a state cause of action only for defamatory statements published with knowledge of their falsity or with reckless disregard of whether they were true or false guards against abuse of libel action, and unwarranted intrusion upon free discussion envisioned by the Act.” Linn v. United Plant Guard Workers, supra, 383 U.S. at 65, 86 S.Ct. at 664, 15 L.Ed.2d at 591.

Left undefined in Linn, which involved an allegedly libelous leaflet distributed during a union organization campaign, was a standard by which to determine whether or not a defamatory publication arose in the course of a “labor dispute.” The appellant drivers in this case contend that Linn is to be applied only where the libelous statement is either made in the context of a labor dispute regulated by the NLRA, or where it arguably constitutes either “protected employee activity” under section 7 of the Act, 29 U.S.C. § 157, or an “unfair labor practice” under section 8, 29 U.S.C. § 158.

Clearly, Linn is not limited to situations involving the provisions of sections 7 and 8 of the NLRA. The application of Linn, rather, turns on the scope of judicial definition of a “labor dispute” in the context of a libel case. As defined by Congress in the NLRA, a “labor dispute” is “any controversy concerning terms, tenure or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.” 29 U.S.C. § 152(9). This definition, it has been said, is to be broadly and liberally construed in libel cases. Aarco, Inc. v. Baynes, 391 Mass. 560, 562, 462 N.E.2d 1107, 1110 (1984). The United States Supreme Court sharpened the definitional focus of “labor dispute” in Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, 418 U.S. 264, 94 S.Ct. 2770, 41 L.Ed.2d 745 (1974). There the defendant argued that no “labor dispute” had existed within the meaning of Linn because there had been “no dispute between labor and management,” and because the organizing efforts of the union, which had allegedly defamed non-union workers by referring to them as “scabs,” had been made “neither during the course of a representation election campaign nor directed toward achieving recognition.” The Court countered: “But whether Linn’s partial pre-emption of state libel remedies is applicable obviously cannot depend on some abstract notion of what constitutes a ‘labor dispute’; rather, application of Linn must turn on whether the defamatory publication is made in a context where the policies of the federal labor laws leading to protection of freedom of speech are significantly implicated.” Id., 418 U.S. at 278-29, 94 S.Ct. at 2778, 41 L.Ed.2d at 758-759.

“Labor disputes are ordinarily heated affairs; the language that is commonplace there might well be deemed actionable per se in some state jurisdictions.” Linn v. United Plant Guard Workers, supra, 383 U.S. at 58, 86 S.Ct. at 660-661, 15 L.Ed.2d at 587. “[The] freewheeling use of the written and spoken word ... has been expressly fostered by Congress and approved by the NLRB. Thus, ... there was ‘a congressional intent to encourage free debate on issues dividing labor and management.’ ” Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, supra, 418 U.S. at 272, 94 S.Ct. at 2775, 41 L.Ed.2d at 755 (footnote added). This arises from “ 'a profound ... commitment to the principle that debate ... should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.’” Linn v. United Plant Guard Workers, supra, 383 U.S. at 62, 86 S.Ct. at 663, 15 L.Ed.2d at 590, quoting New York Times Co. v. Sullivan, supra, 376 U.S. at 270, 84 S.Ct. at 721, 11 L.Ed.2d at 701. It is against this backdrop that we determine whether appellees in the instant case are entitled to the protections afforded by Linn.

Depositions reveal that there were occasions on which Moran complained to some of the drivers that their breakdowns had been unnecessary or suspiciously frequent. The drivers, on the other hand, attributed excessive breakdowns to poorly maintained equipment which resulted in loss of lights, broken windshield wipers, loss of engine power and other assorted problems. Although no full-blown controversy or dispute had manifested itself prior to the Moran communique and although many drivers had been unaware of Moran’s expressed complaint that intentional breakdowns had become commonplace among certain drivers, it is apparent that a controversy existed. Moran was of the opinion that frequent breakdowns were being caused by the drivers, while the drivers attributed their inordinate number of breakdown experiences to the age and condition of the trucks and trailers they were required to use. The telex message did not create the controversy or dispute but was a product of that dispute. It brought the dispute to the attention of the accused drivers and also to the attention of other employees of the company. It must be concluded, therefore, that the telex message arose from and was related to a controversy or dispute between management and certain employees. That controversy, it seems clear, pertained to “conditions of employment.” Driving tractor-trailer rigs on public highways without reasonably safe and operational equipment would present a danger to the driver and also to other motorists and pedestrians. A driver who was in fear of accusations that his breakdowns were intentional would logically and understandably be more likely to continue driving with a dangerous but not disabled vehicle. On the other hand, the company was necessarily concerned about careless use or intentional damage that caused its equipment to be removed from the road. Because the dispute was related to a “condition of employment” we hold that it must be deemed a “labor dispute.”

It is “where the policies of the federal labor laws leading to protection of freedom of speech are significantly implicated” that Linn applies. Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin, supra, 418 U.S. at 279, 94 S.Ct. at 2778, 41 L.Ed.2d at 758-759. Those policies are not intended to foster free speech only during organizational campaigns. See: Davis Co. v. United Furniture Workers, 674 F.2d 557, 562 (6th Cir.), cert. denied, 459 U.S. 968, 103 S.Ct. 296, 74 L.Ed.2d 279 (1982). Nor are they designed only for situations in which a labor union is directly involved. But see and compare: Wilson v. Benjamin, supra, 332 Pa.Super. at 217-218, 481 A.2d at 331. Freedom of speech in labor matters is necessary because of the symbiotic and often adversarial relationship between labor and management in the workplace. Labor and management are allies and adversaries at the same time; both employer and employee work together for a common goal — the success of the enterprise in which they are engaged. In the work place, however, the personal goals and values of management are frequently divergent from those of labor and result in antagonism and belligerence born of the vitality of their interests and the extensiveness of their interrelationship. Disagreements between management and labor are often intense; words are carelessly and tactlessly spewn and attacks and accusations hurled. This freewheeling use of words has been fostered by Congress to encourage free debate on those issues which divide labor and management. The issue dividing Moran, who represented management, and the appellant drivers constituted the type of dispute foreseen by Congress to be attended by epithets and accusations. It represented a classic example of the divergent interests of management and labor. Moran perceived a gap in the efficient operation of the business and blamed the driver employees. The drivers, on the other hand, were motivated by what they perceived to be inadequate safety and poor work conditions which they attributed to management’s failure to maintain its equipment properly. Thus, although the bargaining unit had not become directly involved, the controversy from which Moran’s communique arose was no less a “labor dispute” within the Linn rule.

It follows that appellants are not entitled to recover damages in this action unless they can prove with “convincing clarity” that Moran acted with “actual malice.” To show actual malice, the appellant drivers must prove that Moran’s communication was made with knowledge that it was false or with reckless disregard for whether it was false. New York Times Co. v. Sullivan, supra; Corabi v. Curtis Publishing Co., supra; Brophy v. Philadelphia Newspapers Inc., 281 Pa.Super. 588, 595, 422 A.2d 625, 629 (1980). In the record now before us, there is no basis for a finding that Moran’s message was knowingly false. The company’s records confirm that the named drivers experienced a greater number of breakdowns than drivers who were not. named. We focus, therefore, on whether a jury could find that Moran’s accusations were made with a reckless disregard for the truth.

“ ‘Reckless disregard,’ it is true, cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-by-case adjudication____” St. Amant v. Thompson, 390 U.S. 727, 730, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262, 267 (1968). The “cases are clear,” however, “that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” Id., 390 U.S. at 731, 88 S.Ct. at 1325, 20 L.Ed.2d at 267. “A showing of no more than negligence, carelessness, bad judgment or inaccuracy in the preparation and publication of an allegedly defamatory [communication] is ... insufficient to show the recklessness needed to prove actual malice.” Brophy v. Philadelphia Newspapers Inc., supra, 281 Pa.Super. at 602, 422 A.2d at 633.

“[T]he summary disposition of [actual malice] defamation cases differs in no way from the manner of disposing of other cases in like procedural posture.” Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, supra, 292 Pa.Super. at 243, 437 A.2d at 26 (footnote omitted). There is no “rule” favoring summary disposition of defamation actions. Braig v. Field Communications, 310 Pa.Super. 569, 588-589, 456 A.2d 1366, 1377 (1983) (allocatur refused June 24, 1983), cert. denied, — U.S. —, 104 S.Ct. 2341, 80 L.Ed.2d 816 (1984), citing Hutchinson v. Proxmire, 443 U.S. 111, 120 n. 9, 99 S.Ct. 2675, 2680 n. 9, 61 L.Ed.2d 411, 422 n. 9 (1979). “If the evidence ... measures up to the New York Times standard, the case is one for the jury____ [T]he function of the trial court [on motion for summary judgment] is not to weigh proof and make independent findings, but rather to determine whether or not the plaintiff has demonstrated a genuine issue of material fact from which a jury, using the appropriate burden of proof — ‘clear and convincing’ evidence — could find publication of a defamatory falsehood with actual malice.” Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, supra, 292 Pa.Super. at 246, 437 A.2d at 27 (emphasis in original), quoting Nader v. deToledano, 408 A.2d 31, 47 (D.C.1978), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980). “The proof of ‘actual malice’ calls a defendant’s state of mind into question, and does not readily lend itself to summary disposition.” Curran v. Philadelphia Newspapers, Inc., 497 Pa. 163, 184, 439 A.2d 652, 662 (1981) (citation omitted), quoting Hutchinson v. Proxmire, supra, 443 U.S. at 120 n. 9, 99 S.Ct. at 2680 n. 9, 61 L.Ed.2d at 422 n. 9. “[A] defendant in a defamation action cannot insure a favorable verdict [merely] ‘by testifying that he published with a belief that the statements were true.’” Id., 497 Pa. at 184-185, 439 A.2d at 662, quoting from St. Amant v. Thompson, supra, 390 U.S. at 732, 88 S.Ct. at 1326, 20 L.Ed.2d at 267 (1971) and applying Nanty Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932). See also: Skowronski v. Bailey, 330 Pa.Super. 83, 88, 478 A.2d 1362, 1365 (1984).

In the instant case, Moran’s information was based upon company records pertaining to the frequency of breakdowns experienced by appellant drivers. Although he denied in depositions that he had a malicious intent, Moran conceded that his purpose was to encourage improved performance. He also conceded that the company’s records did not reveal and he did not know the reasons for the breakdowns experienced by the plaintiff drivers. Under these circumstances, a jury could find that Moran’s statement to the effect that the drivers were dishonestly contriving breakdowns, if such is ultimately determined to be the meaning of the label “breakdown artists,” was made recklessly without regard for the truth of his statement. Because the existence of “actual malice” was a question of fact for a jury, we are constrained to hold that the entry of summary judgment was error.

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

      . The telex is a teletype machine used by Roadway for communication among its terminals.

      . The drivers not participating in the lawsuit are Gagnon, Perry, Steele and Simpson.

      . Drivers are normally paid by the mile, but when their trucks or other equipment prevent them from driving, they are paid $12.75 per hour until their trucks can again be driven.

      . National Labor Relations Board.


text:
    485 A.2d 454
    In re ESTATE OF Eileen Walls CECCHINE. Appeal of John CECCHINE, father and natural guardian of Michael Cecchine, Richard Cecchine, Christopher Cecchine and John Cecchine, Minors.
    Superior Court of Pennsylvania.
    Argued May 9, 1984.
    Filed Nov. 30, 1984.

      Richard H. Anderson, Media, for appellant.
    Michael G. Cullen, Drexel Hill, for participating party.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

This is an appeal from a decree of the Orphans’ Court Division in Delaware County which allowed a claim against a decedent’s estate for legal services allegedly rendered to the decedent during her lifetime. The father and natural guardian of the decedent’s four minor children contends on appeal (1) that the court erred in permitting the claimant to testify to legal services performed during the lifetime of the decedent, and (2) that the competent evidence was insufficient to support the court’s allowance of the claim. There is merit in both contentions. Therefore, we reverse.

Eileen Walls Cecchine died intestate on February 16, 1980, survived by four minor children as her only heirs. Caroline Cecchine, the administratrix of her estate, filed a first and final account showing a balance for distribution in the amount of $6,484.97. The administratrix denied a claim filed by Michael G. Cullen, Esquire, who contended that he was entitled to legal fees in the amount of $3,243.30 for services rendered to the decedent, as well as for costs incurred, from January 19, 1977 to February 16, 1980 in connection with a marital dispute and litigation. At a subsequent hearing on the claim for attorney’s fees, Cullen submitted to the court by stipulation an affidavit by the attorney for the decedent’s former husband (the father of the children and the present appellant) which recited some of the services rendered on behalf of the husband and referred to negotiations and hearings during which the claimant had been present on behalf of the decedent. The claimant was then permitted to testify, over objection, that he had prepared a petition under the Protection From Abuse Act, had prepared a complaint in assumpsit, had been involved in drafting and revising a property settlement agreement, and had represented the decedent in divorce and nonsupport proceedings. He said that he had been paid $673 for services performed prior to June 13, 1977 and had received $350 thereafter. His claim, he said, was for $3,243.30. He conceded that no bill for this amount had ever been sent to the decedent during her lifetime. A review of the record reveals no evidence of time records— the claimant said he had kept none — and no itemization of the services rendered. Moreover, there was no evidence of the fair and reasonable value of the services rendered by the claimant.

The administratrix of the decedent’s estate did not take an appeal from the decree entered by the Orphans’ Court; and the present appeal was filed on behalf of the decedent’s minor children by their father. The first issue to be determined, therefore, is whether the father of the minor heirs has standing to appeal. As a general rule, any interested party who has been aggrieved by a final order or decree of the Orphans’ Court Division may appeal. Pa.R.A.P. 501; D. Hunter, Pennsylvania Orphan’s Court Commonplace Book, Appeals § 1 (2d ed. 1979). In the instant case, it is the children of the decedent who are directly affected by the decree allowing the claim for counsel fees, for the payment thereof will reduce the balance remaining for distribution to them as heirs of the decedent. See: In re Estate of Hain, 464 Pa. 349, 353, 346 A.2d 774, 776 (1975). See also: In re Estate of Patrick, 487 Pa. 355, 358 n. 2, 409 A.2d 388, 390 n. 2 (1979). Because the children are minors, their interests on appeal can be represented by their father and natural guardian. See: Bertinelli v. Galoni, 331 Pa. 73, 75, 200 A. 58, 59 (1938) (any person may act as a minor’s next friend provided he has no interest adverse to the minor he represents).

In Dart Estate, 426 Pa. 296, 232 A.2d 724 (1967), the Supreme Court said:

(1) “Claims of this nature against dead men’s estates, resting entirely in parol, ... presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done[;]” (2) all claims against the estate of a decedent must be proven by evidence which is clear, precise and convincing; (3) [claimant], proceeding on a quantum meruit theory, has the burden of proving (a) the performance of services, (b) the decedent’s acceptance of them, and (c) their value; (4) [claimant] must overcome a presumption that any services rendered were paid for from time to time while they continued, a presumption which will gather strength with each succeeding year ...; and finally, (5) “... the finding of the auditing judge who saw and heard the witnesses is conclusive where there is evidence to support it, and it is not based on a capricious disbelief of the witnesses.”

Id., 426 Pa. at 298, 232 A.2d at 725-726 (citations omitted).

Appellee argues that appellant has no standing to challenge the competency of Cullen’s testimony under the dead man’s rule because appellant does not claim “through the decedent.” He contends that only the administratrix, the nominal representative of the estate, has standing to assert the dead man’s rule. There is no merit in this argument. In the first place, Cullen’s competency was challenged in the court below by the administratrix. The issue, therefore, has been properly preserved for appellate review. Moreover, it is not essential that the party asserting the dead man’s rule be the nominal representative of the decedent; it is required, rather, that he represent the interest of the decedent. Cf. Donsavage Estate, 420 Pa. 587, 601, 218 A.2d 112, 121-122 (1966); Grasso v. John Hancock Mutual Life Insurance Co., 206 Pa.Super. 562, 565-566, 214 A.2d 261, 262 (1965). Where a decedent has died intestate and a claim is made against the estate for payment of services allegedly rendered to the decedent during her lifetime, the heirs represent the interest of the decedent and claim through the decedent.

The dead man’s rule is stated at 42 Pa.C.S. § 5930 in pertinent part as follows:

Except as otherwise provided in this subchapter, in any civil action or proceeding, where any party to a thing or contract in action is dead ... and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ... party, shall be a competent witness to any matter occurring before the death of said party ....

“The purpose of the dead man’s act is to prevent the injustice that would result from permitting a surviving party to a transaction to testify favorably to himself and adversely to the interest of the decedent when the representative of the decedent would be hampered in attempting to refute the testimony by reason of the death of the decedent. The theory is that because the decedent’s representative is unable to present evidence regarding the transaction, the other party to the transaction should be similarly restricted.” Visscher v. O’Brien, 274 Pa.Super. 375, 382, 418 A.2d 454, 458 (1980) (citation omitted). See also: Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358, 1359 (1979). The statutory exclusion pertains not only to testimony of an actual transaction or agreement giving rise to a claim against the decedent, but also to any matter occurring before death which had any bearing on the claim being made. Hendrickson Estate, 388 Pa. 39, 46, 130 A.2d 143, 147 (1957). A surviving party is not permitted to testify as to any relevant matters occurring before the decedent’s death, even though they be independent matters or facts which in no way can be regarded as transactions with, or communications by, the decedent. Lieber v. Eurich, 201 Pa.Super. 186, 188, 192 A.2d 159, 160 (1963). The rule, therefore, renders incompetent the testimony of an attorney who is seeking to recover compensation for legal services rendered during the life of a decedent. His testimonial incompetency is not limited to facts regarding the contract of hiring; it extends also to the nature and value of the services performed during the decedent’s lifetime. See: Hohwieler Estate, 23 Bucks 234 (1973) (attorney making claim for unpaid legal fees arising from representation of decedent in divorce action is incompetent to testify regarding the nature, extent or value of his services).

An exception to the dead man’s rule has been created by the terms of 42 Pa.C.S. § 5933(a), which provide:

In any civil action or proceeding before any tribunal of this Commonwealth, or conducted by virtue of its order or direction, although a party to the thing or contract in action may be dead ..., and his right thereto or therein may have passed, either by his own act or by the act of the law, to a party on record who represents his interest in the subject in controversy, nevertheless any surviving or remaining party to such thing or contract or any other person whose interest is adverse to the said right of such deceased ... party, .shall be a competent witness to any relevant matter, although it may have occurred before the death of said party ..., if and only if such relevant matter occurred between himself and another person who may be living at the time of the trial and may be competent to testify, and who does so testify upon the trial against such surviving or remaining party or against the person whose interest may be thus adverse, or if such relevant matter occurred in the presence or hearing of such other living or competent person.

This exception to the rule of incómpetency does not aid the claimant in the present case. Although some of his services were rendered in the presence of his client’s former husband and the husband’s attorney, neither the husband nor the husband’s attorney testified against him. The husband did not testify, and his attorney gave testimony, in the form of an affidavit, on behalf of the claimant. The claimant could not make himself competent to testify by offering the testimony of a third person to corroborate his testimony. See: Stevenson v. Titus, 332 Pa. 100, 104, 2 A.2d 853, 856 (1938); Cake v. Cake, 162 Pa. 584, 585, 29 A. 797, 798 (1894). Moreover, the surviving party is competent only for the purpose of contradicting the matters testified to by the living witness. Bowman’s Estate, 301 Pa. 337, 342, 152 A. 38, 40 (1930), overruled on other grounds, Dalbey’s Estate, 326 Pa. 285, 192 A. 129 (1937). In the instant case, the claimant was permitted to testify generally about the legal services which he had rendered for the decedent during her lifetime. This was clearly error.

The only competent evidence before the auditing judge was the testimony which came from the husband’s attorney, the surviving witness. This evidence, however, was wholly inadequate to support the claim. Although there was evidence that some legal services had probably been performed, there was no competent evidence to overcome the presumption of periodic payment. Moreover, neither the total hourly involvement of counsel nor the precise nature or complexity of the services rendered can be determined from the competent evidence received. There is not one iota of evidence to substantiate that $3,423.30 was a fair and reasonable charge for the services rendered by the claimant. “Where one person renders personal services to another ...[,] evidence of the value of such services rendered and accepted is sufficient if it affords a basis for estimating with reasonable certainty what the claimant is entitled to.” Seiler Estate, 169 Pa.Super. 359, 363, 82 A.2d 556, 558 (1951). Competent evidence of the value of the services performed must appear of record. Reuss Estate, 422 Pa. 58, 62, 220 A.2d 822, 825 (1966). Reasonable value of services cannot be established by mere conjecture. See: Klemow Estate, 411 Pa. 136, 141-142, 191 A.2d 365, 368-369 (1963). Rather, the evidence must be clear, direct, precise and convincing. Estate of Allen, 488 Pa. 415, 422, 412 A.2d 833, 836 (1980); In re Estate of Hain, supra 464 Pa. at 353, 346 A.2d at 776.

The auditing judge in this case did not make an independent analysis of the value of claimant’s legal services. Rather, the court perfunctorily accepted the full amount of the attorney’s unsupported claim. Compare: Lebo Estate, 403 Pa. 123, 169 A.2d 105 (1961) (hearing court made independent determination of value of services). We are constrained to conclude that this allowance of the claim was error. The competent evidence was entirely inadequate to support appellee’s claim.

Reversed and claim disallowed. Remanded for distribution consistent with the foregoing opinion. Jurisdiction is not retained.

      . Cullen filed the claim on behalf of his law firm, Stapleton, Colden & Cullen.

      . A statement attached as an exhibit to appellee’s appellate brief, which does itemize the services rendered and costs incurred, was not admitted into evidence and is not a part of the record certified to this court. Therefore, we may not consider it. McAllonis v. Pryor, 301 Pa.Super. 473, 475, 448 A.2d 5, 6 (1982).


author: CIRILLO, Judge:

text:
    485 A.2d 459
    COMMONWEALTH of Pennsylvania v. Paul WHITEMAN, a/k/a Paul Whittman a/k/a Paul Wyhiteman, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 4, 1984.
    Filed Nov. 30, 1984.

      Ferris P. Webby, Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CIRILLO, DEL SOLE and POPOVICH, JJ.
   CIRILLO, Judge:

Appellant was tried by jury in the Court of Common Pleas of Luzerne County and found guilty of driving under the influence of alcohol and receiving stolen property. He appeals from the judgment of sentence entered August 8, 1983.

The first question appellant presents for our review is, “Was the finding of guilty on the charges of driving under the influence and receiving stolen property against the evidence, the weight of the evidence and the law?” Ordinarily when this court decides issues on appeal, we restrict ourselves to the Statement of Questions Involved in the appellant’s brief for a definition of the issues to be decided. Pa.R.A.P. 2116(a). In this case we must ask what decidable issue appellant’s first question raises.

In the trial court, in support of his post-verdict motions in arrest of judgment and for a new trial, appellant offered the selfsame broad and general attacks on the verdict as comprise his first “issue” on appeal. The trial court construed the motions as alleging that the evidence was insufficient to support the verdicts, and accordingly addressed the sufficiency of the evidence in its opinion denying the motions. In the Argument portion of his brief to this Court, appellant contests the sufficiency of the evidence, apparently satisfied that this is the issue raised in his Statement of the Questions Involved. However, the only relief appellant requests of this Court is that we grant him a new trial. If, indeed, the evidence were insufficient to support the verdicts a new trial would be not only inappropriate, but constitutionally impermissible. When a verdict of guilty is overturned on insufficiency of the evidence grounds, the double jeopardy clause of the Fifth Amendment to the United States Constitution precludes retrial. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981). A new trial is a proper remedy when the verdict is found to be against the weight of the evidence. See Commonwealth v. Graeff, 296 Pa.Super. 480, 483-84 n. 3, 442 A.2d 1153, 1154 n. 3 (1982).

Sufficiency of the evidence and weight of the evidence are discrete inquiries____ In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt____
A motion for new trial on grounds that the verdict is contrary to the weight of the evidence concedes that there is sufficient evidence to sustain the verdict but contends, nevertheless, that the verdict is against the weight of the evidence. Whether a new trial should be granted on grounds that the verdict is against the weight of the evidence is addressed to the sound discretion of the trial judge, and his decision will not be reversed on appeal unless there has been an abuse of discretion____ The test is not whether the court would have decided the case in the same way but whether the verdict is so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail.

Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1229-30 (1984); accord, Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983) (allocatur denied); see also Commonwealth v. Miller, 303 Pa.Super. 504, 450 A.2d 40 (1982).

Quite obviously, appellant has missed the “crucial” distinction between evidentiary weight and sufficiency, see Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, — U.S. —, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984), and hence has muddled the weight of the evidence claim raised in his issue statement with the sufficiency of the evidence, claim pursued in his argument.

This lapse in appellate advocacy leads us to comment that the form in which the first issue involved in this appeal is stated, that the verdict was “against the evidence, the weight of the evidence, and the law,” should be avoided scrupulously by the criminal defense bar. In former times, our courts accepted such “boiler plate” attacks on the verdict as invitations to examine the entire record to determine whether the jury’s verdict was supported by the evidence and entered in accordance with the charge of the trial court. However, more recently the Supreme Court of Pennsylvania repeatedly has condemned “boiler plate” post-verdict motions, and held them inadequate to preserve more specific issues for appellate review. See Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Common wealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980); Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); cf. Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983). See also Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). These decisions merely extend the rationale of the Pennsylvania Rules of Criminal Procedure, that issues not specifically raised before the trial court are waived on appeal. See Pa.R.Crim.P. 1123(a), (c)(3).

The same considerations which render boiler plate allegations objectionable when offered in support of post-verdict motions also make them unfit to serve in an appellate brief as statements of the issues involved on appeal. See Commonwealth v. Waters, 477 Pa. 430, 384 A.2d 234 (1978) (specific post-verdict motions enhance the quality of review; encourage professional advocacy; discourage pursuit of frivolous claims; and promote judicial economy). We have here a case in point. By stating the first issue involved in this appeal in boiler plate fashion, appellate counsel has confused himself and us about the legal standards and relief appropriate to his claims.

After appellant’s post-verdict motions were filed, but well before the filing of the appellate briefs in this case, the Superior Court en banc in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) comprehensively reviewed the state of the law regarding boiler plate post-verdict motions. The Court determined that thenceforth general allegations that “the evidence was insufficient” or the verdict “against the weight of the evidence” would be held inadequate to preserve any issues for appellate review. Post-verdict motions now must allege in what particular respect(s) the evidence was insufficient to prove the elements of the crime(s), or in what particular respect(s) the weight of the evidence was such that the verdict should be overturned and a new trial granted. Id.

Holmes followed the similar holding of Commonwealth v. Neely, 298 Pa.Super. 328, 444 A.2d 1199 (1982), but overruled Neely because the en banc Court believed the rule announced in Neely, and reaffirmed in Holmes, should have prospective application only in order to assure full notice to the bar. The Holmes Court decreed a sixty-day grace period, before the expiration of which “boiler plate” weight or sufficiency claims could still be made in post-verdict motions. Appellant’s post-verdict motions receive the benefit of the grace period declared in Holmes.

We will deign to reach the merits of appellant’s argument that the evidence was insufficient to support the verdicts, in accordance with what we said in Commonwealth v. Cardona, 316 Pa.Super. 381, 386-89, 463 A.2d 11, 14-15 (1983):

Appellant’s boiler plate post-verdict motions, reproduced in the first paragraph of this opinion, alleged only that the verdict was contrary to the evidence, the weight of the evidence, and the law____ However, in his brief to this court appellant’s argument is that the evidence was insufficient to support the verdict____ We will treat the allegation in appellant’s post-verdict motions that the verdict was “contrary to the evidence” as a challenge to the sufficiency of the evidence, and hold that that challenge has not been waived. However, we point out that just such complications as these have contributed to the frustration of the appellate courts of this State in dealing with boiler plate post-verdict motions, and to the waiver decisions detailed earlier in this opinion.

(Footnote omitted).

In light of the appropriate standard for reviewing insufficiency of the evidence claims, quoted from Taylor, supra, the evidence establishes that on March 3, 1982 in Plains Township, appellant’s car crossed the center line of Hudson Road at an S-turn, forcing a policeman’s vehicle off the road; the policeman followed the car, which twice more crossed the center line of the road in the next three-tenths of a mile. After pulling appellant over, the officer observed that appellant staggered when he got out of his car, had difficulty returning his key to the ignition after having removed it to fish for identification in his glove compartment, and failed a roadside sobriety test administered by the officer. The officer noticed that appellant smelled slightly of alcohol.

Appellant was arrested and taken to the police station. There he staggered some more, laughed inappropriately, rambled and slurred his speech, and on the whole behaved in a manner consistent with drunkenness. When appellant’s rights were read to him he refused to sign a form acknowledging those rights, claiming he could neither read nor write. He admitted having had four beers at a bar. Both the arresting officer and the officer on duty at the station were convinced appellant was drunk and incapable of safe driving.

Appellant attacks the sufficiency of the evidence by impugning the reliability of Breathalyzer test results showing his blood-alcohol level to have been 0.15%. He maintains that he was improperly precluded at trial from proving the unreliability of the test results. Appellant’s argument is unavailing and, moreover, irrelevant at this point. The other evidence in the case was overwhelmingly sufficient to convict appellant of driving under the influence of alcohol as that crime is defined in 75 Pa.C.S. § 3731; Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982). The Breathalyzer results were merely proof of the punch. Appellant’s argument, directed in essence to the weight and admissibility of one particular piece of evidence, merits no consideration in an assessment of the general sufficiency of the evidence. See generally Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). As far as concerns appellant’s objection to the Breathalyzer evidence per se, the opinion of the trial court completely disposes of the issue.

The evidence on the charge of receiving stolen property showed that the arresting officer removed a Texaco credit card from appellant’s coat pocket while inventorying his property pursuant to normal police procedure. The officer thought nothing of the card until appellant saw it on the table and began to make a “fuss” over it, saying it was his and the police could not take it. As this demonstration roused the officer’s suspicion, he picked the card up and noticed it was issued to Nicholas Trucking Company. Further investigation disclosed that the card had been reported stolen in October of 1981 by the vice president of the trucking company after unauthorized charges started turning up on the card account. The truck driver who was authorized to use the card had noticed it missing sometime in August or September of 1981.

The police impounded the credit card before releasing appellant. Several days later appellant telephoned the arresting officer and said he had found the card and had intended to turn it in for a reward. At trial, appellant testified that he had borrowed the card from one Jay Nicholas in a bar the night before his arrest, and that later Jay Nicholas had told him the card was no good and to turn it in for a reward.

The offense of receiving stolen property is defined in the Crimes Code at 18 Pa.C.S. § 3925:

(a) Offense defined. — A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.
(b) Definition. — As used in this section the word “receiving” means acquiring possession, control or title, or lending on the security of the property.

To prove this offense it was incumbent upon the Commonwealth to show that the card was stolen, that appellant was in possession of it, and that he knew or had reason to know it was stolen. Commonwealth v. Deemer, 316 Pa.Super. 28, 462 A.2d 776 (1983). Appellant argues that the Commonwealth failed to prove either that the card was stolen or that he knew or should have known it was stolen.

Given the nature and uses of credit cards, it is often difficult to prove directly that one has been stolen. Commonwealth v. Houmis, 227 Pa.Super. 573, 307 A.2d 339 (1973) (allocatur denied). However, circumstantial evidence alone may be sufficient to prove that a credit card has been stolen or taken feloniously. Id.; Commonwealth v. Elam, 221 Pa.Super. 315; 293 A.2d 103 (1972). Here the evidence showed that unlawful use was being made of the card soon after its rightful possessor discovered it missing. Appellant argues that the card may have been lost, in which event he could not be convicted of receiving stolen property. See Commonwealth v. Elam, supra. However, the truck driver who was authorized to use the card testified that he did not think he had lost it, since he had not used it for months prior to its disappearance and he had kept it with other oil company cards which he still had at the time of trial.

There also was sufficient circumstantiál evidence of appellant’s consciousness of guilt to establish the element of knowledge or belief that the card was probably stolen. See Commonwealth v. Simmons, 233 Pa.Super. 547, 336 A.2d 624 (1975). When the officers found the card appellant became upset and claimed the card was his; later he tried to convince them he had found the card; at trial he promulgated yet a third story, that the card had been given him by a Jay Nicholas.

An inference that the accused knew property in his possession to be stolen may be gathered from evidence of his conduct at arrest, Commonwealth v. Williams, 468 Pa. 357, 362 A.2d 244 (1976), as well as from the fact that his possession was unexplained or unsatisfactorily explained. Id.; Commonwealth v. Randall, 287 Pa.Super. 479, 430 A.2d 991 (1981) (allocatur denied); Commonwealth v. Plath, 267 Pa.Super. 1, 405 A.2d 1273 (1979). Of course, in determining whether possession is unexplained or unsatisfactorily explained, the jury may believe all, part, or none of the defendant’s evidence. See Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981).

Appellant’s explanation at trial for his possession of the credit card bore clear marks of contrivance. What he told the jury was not what he had told the police. There was too suspicious a similarity between the names of the alleged card donor and the actual card owner. Moreover, credit cards are not items so casually loaned among barroom acquaintances as to lend appellant’s story the least bit of credibility. See Commonwealth v. Allen, 227 Pa.Super. 157, 324 A.2d 437 (1974) (ease with which stolen items may assimilate into legitimate commerce relevant to whether possessor knew they were stolen). Other factors for the jury to consider were appellant’s failure to produce Jay Nicholas as a witness, see Commonwealth v. Poteete, 274 Pa.Super. 490, 418 A.2d 513 (1980); Commonwealth v. Phillips, 258 Pa.Super. 109, 392 A.2d 708 (1978); and appellant’s lack of any relationship to the corporation whose name clearly appeared on the property, see Commonwealth v. Grabowski, 306 Pa.Super. 483, 452 A.2d 827 (1982).

We hold that the evidence was sufficient to prove the crime of receiving stolen property beyond a reasonable doubt.

Appellant next contends that because the charges were originally filed in separate complaints, it was improper for the court to consolidate the charges for trial. Appellant cites Pa.R.Crim.P. 131(b), which states “When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.” The new trial appellant requests however, is not the appropriate remedy for a failure to abide by Rule 131(b). The proper remedy, as stated in Rule 131(c), is forfeiture of the costs taxed to the defendant by the issuing authority.

As for the action of the trial court to consolidate, the propriety of consolidating separate charges for trial is a matter within the sound discretion of the trial judge, whose decision will not be disturbed absent clear prejudice and injustice to the defendant. Commonwealth v. Hill, 479 Pa. 346, 388 A.2d 689 (1978); Commonwealth v. Webster, 323 Pa.Super. 164, 470 A.2d 532 (1983). Here we are unable to find that appellant suffered prejudice depriving him of a fair trial.

Moreover, if the separate charges arose “from the same incident” as that phrase is used in Rule 131(b), then it would also seem they arose “from the same criminal episode.” If so, the prosecution was compelled to try the charges together. 18 Pa.C.S. § 110; Commonwealth v. Griffin, 310 Pa.Super. 39, 456 A.2d 171 (1983) (allocatur denied); but see Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984). In any case, we hold that the trial court did not abuse its discretion in consolidating the charges.

Finally, appellant argues that his mistrial request should have been granted when the arresting officer testified that appellant was unemployed and receiving welfare benefits. This testimony came out as the officer explained why he was suspicious about appellant’s possessing a corporate credit card. The trial court immediately sustained a defense objection and instructed the jury to disregard the testimony as having nothing to do with the case.

The decision whether to declare a mistrial is another matter left to the sound discretion of the trial court. Where, as here, the prejudicial effect of information erroneously placed before the jury is minimal, and the court promptly moves to cure any prejudice with cautionary instructions, we will not reverse the court’s decision not to abort the trial. Commonwealth v. Miller, supra; Commonwealth v. Stokes, 279 Pa.Super. 361, 421 A.2d 240 (1980).

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge:

text:
    485 A.2d 466
    Richard R. PRICE, Jr. and Catherine Price, Appellants, v. JOHNS-MANVILLE CORPORATION, Bell Asbestos Mines, Ltd., Asten-Hill Company, Raybestos-Manhatten, Asbestos Corporation, Ltd., Amatex, Cassiar a/k/a Brinco, National Gypsum Company.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed Nov. 30, 1984.

      Robert E. Paul, Philadelphia, for appellants.
    Fredric Goldfein, Philadelphia, for appellees.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

Appellants, Richard arid Catherine Price, filed a complaint in trespass on August 22, 1979 against appellee, Bell Asbestos Mines Ltd., alleging personal injuries due to Mr. Price’s exposure to asbestos during his employment as a weaver of dryer felts sold by Asten-Hill, Inc.. On November 13, 1979 Bell joined Amatex, Asbestos Corporation, Raybestos-Manhatten, National Gypsum, Cassiar Asbestos and Asten-Hill as additional defendants. On August 1, 1983 the lower court granted appellees-’ motion for summary judgment based upon the expiration of the statute of limitations.

Mr. Price was employed by the Asten-Hill Company from 1947-1961 as a weaver. Part of his duties included weaving asbestos fibres into asbestos cloth. On November 12, 1964 Mr. Price filed for workman’s disability compensation and was represented by Barton Post, Esquire. After hearings, the referee determined that Mr. Price had partial disability from asbestosis. On appeal to the Workmen’s Compensation Appeal Board, Mr. Price argued that his disability from asbestosis was total. The appeal was dismissed by the Board. The instant complaint in trespass was filed in August, 1979. On February 19, 1982 Mr. Price died. Mrs. Price filed a suggestion of death and substitution of party. On August 2, 1983 the lower court granted appellees’ motion for summary judgment and this appeal followed.

Appellant raises three issues in support of his argument that summary judgment was improperly granted by the court below. First, he argues that the lower court erred in applying the discovery rule defined in Volpe v. Johns-Manville, 323 Pa.Super. 130, 470 A.2d 164, 4 Phila. County Reporter 290 (1980), to the facts of this case. We hold that the lower court properly applied the Volpe rule as the law of Pennsylvania at the time this case was decided. Further, we hold summary judgment would have been appropriate under the discovery rule defined in Cathcart v. Johns-Manville, 324 Pa.Super. 123, 471 A.2d 493 (1984).

The short answer to appellant’s argument is that the motion for summary judgment in this case was granted in August, 1983. At that time appeals were pending before this Court in Cathcart (opinion filed January 13, 1984) and in Volpe (opinion filed December 23, 1983). Therefore the lower court did not err in applying the three-step Volpe test to determine when the statute of limitations commenced to run on appellant’s claim.

We reach the same result under the two-pronged test defined by Cathcart. This Court, en banc, has modified the Volpe test to hold that the statute of limitations in asbestos cases begins to run when a plaintiff “knows, or reasonably should know, that he has been injured and that his injury has been caused by another party’s conduct.” Cathcart, 324 Pa.Super. at 136-137, 471 A.2d at 500. Applying this test to the instant case, there is no question that Mr. Price knew of his injury in 1964, fifteen years before he filed his complaint. In his November, 1964 petition, accompanied by a sworn affidavit, under the Pennsylvania Occupational Disease Act, Act of June 21, 1939, P.L. 566, as amended, 77 P.S. § 1201 et seq., Mr. Price declared that the disability for which he was seeking compensation resulted from his employment in an occupation having an asbestos hazard. Mr. Price further stated: “I have had continual physical problems since August of 1963, and it is only recently that I discovered I had asbestosis.” After a hearing on Mr. Price’s claim, the referee found that he had asbestosis, but that his disability was partial. Mr. Price’s appeal from the referee’s decision, signed with a sworn affidavit, stated: “The Referee was correct in his finding that claimant has asbestosis but should have found that the disability from the asbestosis was total.” Applying Cathcart, it is clear that Mr. Price knew he had asbestosis as early as November, 1964 and that the injury was caused by his exposure to asbestos at his place of work.

Appellant asserts that Cathcart requires that a claimant must know, or reasonably should know, that his injury was caused by another party’s tortious conduct. This argument is founded in a misinterpretation of the following language:

... [I]t should be clear that ... a plaintiff’s claim for all injuries arising out of the same tortious conduct of a defendant must be brought within two years of the time that the plaintiff knows, or in the exercise of reasonable diligence should know, of his initial injury and that the injury was caused by someone’s wrongful conduct.

324 Pa.Super. at 149, 471 A.2d at 507.

Appellant would have us interpret “wrongful conduct” in a manner which would toll the statute of limitations until a plaintiff reasonably should know that he had grounds for a cause of action in negligence. Cathcart does not venture this far.

The test defined in Cathcart requires only that a plaintiff reasonably should know “that his injury has been caused by another party’s conduct.” 324 Pa.Super. at 137, 471 A.2d at 500. Applying this test, the court there held “it is enough that the appellant-husband knew that his asbestosis was caused by the inhalation of asbestos dust emanating from asbestos products at the work site.” Id,, 324 Pa.Superior Ct. at 138, 471 A.2d at 501, quoting Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 288-9, 450 A.2d 681, 685 (1982). In the instant case, Mr. Price’s disability compensation form states unequivocally that he knew that he had asbestosis and that he knew that it was caused by his work with asbestos fibres at the work site.

This Court has previously rejected the argument that a plaintiff must know that he has a legal cause of action, before the statute of limitations begins to run. See Staiano, 304 Pa.Super. at 287, 450 A.2d at 684; Anthony v. Koppers, 284 Pa.Super. 81, 425 A.2d 428, rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). Nevertheless, appellants ask us to reconsider this rule in light of recent holdings in other jurisdictions. After thorough review of those cases cited by appellants, we conclude that there is no clear trend to toll the statute of limitations until a plaintiff determines that he has a legal cause of action against a third party. Indeed, appellants’ principal case, Nolan v. Johns-Manville, 85 Ill.2d 161, 52 Ill.Dec. 1, 421 N.E.2d 864 (1981), comports with our holding today. In Nolan, the Supreme Court of Illinois adopted a definition of the discovery rule which would toll the statute of limitations until a plaintiff was aware that his injury was “wrongfully” caused. The Court then states:

We wish to emphasize that the rule we announce is not the same as a rule which states that a cause of action accrues when a person knows or should know of both the injury and the defendant’s negligent conduct. Not only is such a standard beyond the comprehension of the ordinary lay person to recognize, but it assumes a conclusion which must properly await legal determination ____ Such a rule would allow a person to delay far beyond a reasonable time.

Id., 85 Ill.2d at 170, 52 Ill.Dec. at 5, 421 N.E. at 868 (citation omitted).

The discovery rule as defined by Cathcart must stand. Cathcart imposes a duty of diligent inquiry on the plaintiff since it states that the statute begins to run when the plaintiff reasonably should know that his injury was caused by another party’s conduct. The Cathcart Court en banc did not insert the adjective “wrongful” before “conduct” in its formulation of the discovery test. Tolling the statute of limitations until a plaintiff ascertained that his or her injury was the result of someone’s tortious conduct would create an impossible standard of proof and defeat the very purpose of the statute. See Gravinese v. Johns-Manville, 324 Pa.Super. 432, 440, 471 A.2d 1233, 1237 (1984).

Appellants remaining arguments assert that the lower court erred in granting summary judgment based on the evidence presented. We hold that summary judgment was properly granted.

Appellants assert that the lower court improperly interpreted Mr. Price’s 1964 Workman’s Compensation form. Nevertheless, contrary to appellants’ assertion, the court below simply did not create a per se irrebutable presumption that completion of a workman’s compensation form demonstrated that Mr. Price possessed all the elements of knowledge sufficient to start the statute of limitations. Instead, the lower court examined all evidence on file, including the form, before concluding that there was no genuine issue of fact that Mr. Price knew in 1964 of the nature and cause of his injury. Lower court opinion at 3; Pa.R.Civ.P., Rule 1035, 42 Pa.C.S.; see also Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978). The quality of Mr. Price’s knowledge, in 1964, is distinguished from those cases cited by appellants in which the evidence was equivocal as to the knowledge possessed by the claimants. See Culp Industrial Insulation v. Workmen’s Compensation Appeal Board, 57 Pa.Commw. 616, 426 A.2d 1263 (1981); Republic Steel v. Workmen’s Compensation Board, 492 Pa. 1, 421 A.2d 1060 (1980). In the instant case appellants were able to muster only a statement by Mr. Price’s former counsel that it was his belief that Mr. Price did not understand the cause of his injury and that no doctor had determined that Mr. Price had asbestosis. This statement, unaccompanied by affidavit, based on personal recollection after sixteen years did not create an issue of material fact sufficient to contradict Mr. Price’s compensation form accompanied by a sworn affidavit.

Finally, appellants argue that summary judgment was improperly granted upon a finding of matter of law that Mr. Price knew of his injury in 1964. This argument is disingenuous in light of Mr. Price’s clear statement in his workman’s compensation form that the disability for which he was seeking compensation resulted from his employment in an occupation having an “asbestosis” hazard. Further, he stated, “I have had continued physical problems since August of 1963, and it has only been recently discovered that I had asbestos.”

The Order is affirmed.

      . On June 18, 1980 Bell joined additional defendants, Johns-Manville, Southern Asbestos, Caroline Asbestos, Porter, Asten-Hill and National Asbestos.

      . Prior to Cathcart, this Court has adopted Judge Takiff s formulation of the discovery rule as commencing the statute of limitations when a plaintiff: has knowledge of an injury; knowledge of the operative cause of the injury; and knowledge of the causative relationship between the injury and the operative conduct. Volpe v. Johns-Manville, 323 Pa.Super. 130, 470 A.2d 164 (1983).

      . Appellants have similarly misinterpreted the holdings of Ballew v. A.H. Robins, 688 F.2d 1325 (11th Cir.1982) (statute of limitations runs when plaintiff knew of injury and its relation to the cause of injury); Dawson v. Eli Lilly, 543 F.Supp. 1330 (D.D.C.1982) (no requirement of knowledge of legal significance of defendant’s actions); Nelson v. A.H. Robins, 515 F.Supp. 623 (N.D.Cal.1981) (knowledge of facts, not of legal theory). Several cases cited by appellants are too unclear to support appellants’ argument. See Louisville Trust Co. v. Johns-Manville, Ky., 580 S.W.2d 497 (1979); Raymond v. Eli Lilly, 117 N.H. 164, 371 A.2d 170 (1977); Lopez v. Swyer, 62 N.J. 267, 300 A.2d 563 (1973). Therefore appellants cite only Ohler v. Tacoma, 92 Wash.2d 507, 598 P.2d 1358 (1979) to require that a plaintiff must know of all the essential elements of a cause of action before the statute of limitations will run.