author: PER CURIAM: POPOVICH, Judge,

text:
    448 A.2d 1049
    Max A. HANKIN and Janet Hankin, v. Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin R. Shanken and Pauline Shanken, and Estate of Samuel Hankin and Harriet Hankin and Pan American Associates. Appeal of Moe Henry HANKIN, Sabina Hankin, Perch P. Hankin, Gertrude Hankin, Benjamin Shanken, and Pauline Shanken.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed Dec. 18, 1981.
    Petition for Allowance of Appeal Denied May 3, 1982.
    Reargument Denied Aug. 17, 1982.

      Thomas A. Allen, Philadelphia, and Philip D. Weiss, Norristown, for appellants.
    Franklin Poul, Philadelphia, for Max Hankin, etc., appellees.
    Sheldon Bonovitz, Philadelphia, for Samuel Hankin, appellee.
    Theodore R. Mann, Philadelphia, for Harriet Hankin, appellee.

      Stephen G. Yusem, Norristown, for Pan American, appellee.
    Before POPOVICH, WATKINS and VAN der VOORT, JJ.
   PER CURIAM:

This controversy is no stranger to this Court. A full recital of the factual basis of the controversy is set forth in Hankin v. Hankin, 279 Pa.Superior Ct. 179, 420 A.2d 1090 (1980) and will not be repeated in this opinion.

The court below originally entered the following Decree Nisi after extensive hearings, findings of fact and conclusions of law:

“AND NOW this 2nd day of April, 1979, in accordance with the above findings of fact and conclusions of law, IT IS HEREBY DECREED that:
1. No receiver shall presently be appointed to dispose of the assets of the ‘Hankin Family Partnership’.
2. Management and liquidation of the assets of the ‘Hankin Family Partnership’ shall continue as heretofore, under supervision of the Court.
3. In accordance with conclusions of law 15 through 18, supra, the Willow Grove Park properties are to be sold to Pan American Associates pursuant to the existing Agreements. Execution of the required documents to effect such conveyances by a majority of the partners shall be valid and sufficient to complete passage of title.
4. The Option Agreement covering the Valley Forge Golf Course property is valid and binding upon the partnership. In the event said option is exercised by Pan American Associates, execution of the required documents to effect a conveyance thereunder by a majority of the partners shall be valid and sufficient to complete passage of title.
5. The Court will review and act upon requests to approve such additional sales of partnership property as shall from time to time be presented for such purpose. If necessary, hearings will be scheduled to consider the appropriateness of proposed sales.
6. Moe and Perch Hankin shall continue to arrange the payment of federal and state income taxes for the individual partners, as has been the custom of the partnership in the past.
7. The various motions and preliminary objections filed heretofore, being moot by reason of this Adjudication, are so declared and dismissed.
8. The Court will enter such additional orders as are required to effectuate the continuing liquidation of partnership assets, as such are required, from time to time, after due notice to the parties and their respective counsel.
9. An accounting, if required, will abide liquidation of the partnership assets, or further order of the Court.
This Decree shall become final unless exceptions are filed pursuant to Pa.R.C.P. 1518.
BY THE COURT:
/s/ LOUIS D. STEFAN, J.”

This Court affirmed this Decree by opinion filed June 6, 1980 and a Petition for Allowance of Appeal to the Supreme Court of Pennsylvania was denied September 25, 1980.

In November, 1980, a petition for distribution in kind was filed by original complainants and other minority partners, which led the court below to enter a second Decree Nisi as follows:

“DECREE NISI. AND NOW, this 10th day of July, 1981, in accordance with the foregoing, it is hereby DECREED that:
1. On August 17,1981, the Court will hold a hearing to determine the fair market value of each of the remaining partnership assets. To the extent that the partners are not then prepared to stipulate to such values, the Court will hear such expert testimony as to parties then offer, and will judicially determine values based on the evidence. Fees of one appraiser selected by the majority Hankins and one appraiser selected by minority Hankins shall be paid by Hankin Enterprises.
2. Thereafter, the Court will conduct the selection procedure as follows:
(a) The Court will first determine what dollar amount shall be set aside as a reserve to satisfy financial claims including capital account claims among the partners, and to equalize the in kind distribution upon its conclusion.
(b) The five respective partnership interests will then draw numbers from one through five to determine the order of selection.
(c) The order of selection of properties will be: one, two, three, four, five; five, four, three, two, one; and, subject to paragraph (d) below, will then be repeated until all properties except properties totaling in value an amount equal to the reserve, as previously determined by the Court, have been selected.
(d) Each partnership interest shall continue to select properties until that partnership interest has selected properties totaling in value one-fifth of the total valuation minus the reserve.
3. Between now and the completion of the selection process, the operation of the operating properties shall continue as heretofore; provided, however, that no property shall be sold except by mutual consent of all the parties.
This Decree shall become final unless exceptions are filed pursuant to Pa.R.C.P. 1518.
BY THE COURT:
/s/ LOUIS D. STEFAN, J.”

Exceptions of appellants were dismissed by Order dated August 12, 1981. This appeal followed.

As the Chancellor originally found and this Court affirmed, it is to the advantage of all interested parties to have this partnership liquidated in an orderly manner under the direction and control of the court below, within a reasonable time.

The partnership was dissolved in 1977 and at the time was possessed of diverse holdings of a value of 77 million dollars, the nature of which does not lend itself to immediate liquidation. During the intervening time the majority partners, who are charged with the liquidation, have been hindered by the minority partners, either some or all, by litigation at every step of the way. Under all the circumstances it does not appear that the liquidating partners have had a reasonable, unhindered time in which to accomplish an orderly liquidation of such vast holdings and they should be granted another year to accomplish same. The lower court abused its discretion in setting aside its original order at this time. In the meanwhile liquidation shall continue as heretofore under the supervision of the court below.

After a careful study of the long record of this sometimes bitter controversy, it is the opinion of this Court that the liquidation must be accomplished in a careful and orderly fashion. We do not believe that the selection of properties as contained in the opinion of the court below accomplishes this purpose at this time.

However, at the end of - that time, should the liquidation not be complete, the lower court shall then make whatever order is appropriate at the time which best serves the interests of all parties concerned.

The language of the Uniform Partnership Act, 59 Pa.C.S.A. Sec. 360(a) and the general rule favors a liquidation and cash distribution in the absence of an agreement to do otherwise. However, under special circumstances, where the best interests of all concerned will be served by some alternate method we should approve same. Equity in Pennsylvania must never leave a litigant without a remedy which protects a minority interest.

The usual method of a public sale of the assets would be to the disadvantage of the minority parties, the appellees, because of financial considerations; and the drawing as provided in the order of the court below would be clearly to the disadvantage of the majority partners, the appellants, who over the course of the years created the assets being liquidated.

The order of the court below is reversed as to the selection process provided therein and the management and liquidation of the assets of the “Hankin Family Partnership” shall continue as provided in the Decree dated April 2,1979 under the supervision of the court below for a period of one (1) year from the date of this opinion.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

The ruling of the Majority, being based on conclusionary statements unsubstantiated by the record, unduly and unnecessarily protracts an already overdue disposition of the Hankin Family Partnership assets. Thus, I vigorously dissent to the reversal of the lower court’s Order directing that there be a distribution in kind of the partnership property.

The standard to be adhered to in reversing the findings of fact of a Chancellor who hears testimony in a non-jury trial has been oft-stated: “ ‘In the absence of a clear abuse of discretion, matters purely within the discretion of a trial court are not reversible on appeal . .. [and] [t]o justify a reversal, the abuse of discretion must be clearly shown.’ C. E. Williams Co. v. H. B. Pancoast Co., 412 Pa. 166, 170, 194 A.2d 189, 191 (1963) (citations omitted).” Hankin v. Hankin, 279 Pa.Super. 179, 204, 420 A.2d 1090, 1103 (1980); see also Zvonik v. Zvonik, 291 Pa.Super. 309, 435 A.2d 1236 (1981).

The Majority states that where, as here, “it does not appear that the liquidating partners [appellants] have had a reasonable, unhindered time in which to accomplish an orderly liquidation of such vast holdings[,] . . . they should be granted another year to accomplish same.” (Slip Opinion at 5) I do not agree.

As a reading of the record unerroringly reveals, the liquidating efforts of the appellants, over a period of some two (2) years, have resulted in less than Vi of the properties held by the partnership being sold. (RR 215a-229a) Such figure, based on this writer’s perusal of the evidence, is not linked to appellees’ efforts to protect their share in the partnership assets. Rather, the evidence more logically points to appellants’ insistence on selling the holdings of the partnership as a package to prospective buyers, instead of attempting to sell them in parcels, as a contributing factor to the paucity of sales. More particularly, given the depressed realty market and the sky-rocketing interest rates on loans, appellants’ approach to liquidating the assets was ill-advised. On this point, the lower court aptly stated:

“It was particularly by reason of the unique nature of a number of the[ ] [partnership’s] properties, and the assertions by [appellants] that it was essential to preserve their status as a chain of properties, on the basis of the whole being more valuable than the aggregate of the parts, that the Court earlier refused [appellees’] request for appointment of a receiver. [Appellants] were adamant in asserting that the motel properties could be sold within a reasonable time; that it would be detrimental financially to break the set, and dispose of the motels on an individual basis; and that these assets were producing substantial income for the benefit of the partnership, rather than wasting or facing injury or diminution in value. Although the Court accepts the documented assertions of [appellants] that they have, indeed, vigorously engaged in selling efforts, pursuant to their representations, the fact is that the motels remain unsold. [Appellants] now ask for additional time, based upon their continuing assertions of confidence, in which to attempt to effectuate a sale; to which the [appellees] rightfully reply that the [appellants] have had their opportunity, and that the time has come to change.
Much has happened in the intervening two years since the date of the original Adjudication. Interest rates have risen drastically; financing real estate sales has become increasingly difficult by reason of the volatility of interest rates; .. . . ” (Lower Court Opinion at 2 & 3)

The lower court went on to opine:

“By reason of the various changes in circumstances which have ensued since the date of the original Adjudication by this Court; and, considering that, in fact, [appellants] have controlled the show since that date, with results that can be described only as disappointing; and, because a continuing delay in allowing [appellees] finally to enjoy possession of their interests in the Hankin [Family Partnership] property would manifestly be unjust; the Chancellor has concluded that the within case represents such special situation as would justify a decree directing distribution in kind of the remaining partnership assets. The debts of the partnership are insignificant as a result of the proceeds of those sales which have been accomplished being applied toward their retirement. The failure of the [appellants] to dispose of the seven motels after all this time indicates that, for whatever reason, there is no strong market for acquisition of the entire chain. To allow the long delay which resulted from the well-intentioned assurances of the [appellants], that they would liquidate the real estate, to work against [appellees] over whose protests the [appellants] were given their day, would be unjust.” Id. at 5-6.

I agree with the sentiments espoused by the Chancellor, set forth supra.

The instant litigation has had an extended run in the courts, i.e., since August of 1977. During this entire period, Judge Stefan, as noted by this Court in Hankin v. Hankin, supra, has done “an admirable job in handling the very large record in this case.” He has presided over numerous hearings, in which each side has presented a voluminous amount of evidence. For example, records were submitted and testimony was elicited as to the energy expended by all interested parties as to the expeditious liquidation of the partnership holdings. Based on such evidence, the Chancellor made detailed findings of fact and conclusions of law in deciding that the most equitable method by which the partnership property could be disposed of, without impairing the interests of the respective parties, would be by ordering a distribution in kind.

I find, from my reading of the record, that because there is no evidence that the lower court “ ‘ “abused its discretion or that the court’s findings lack evidentiary support or that the court capriciously disbelieved the evidence[,]” ’ ” Zvonik v. Zvonik, supra, 291 Pa.Super. at 309, 435 A.2d at 1238, the Order below should be affirmed. Thus, the Majority’s ruling being to the contrary, I must dissent.

      . Such findings consisted of the following:
      “FINDINGS OF FACT
      1. At the time of this Court’s Adjudication on April 2, 1979, when this Court evaluated all of the partnership properties at more than $72,000,000., the following properties had been sold and closed or were under agreements of sale which subsequently closed:
      l/6th interest in lot......$110,000 (Property #42)
      Baker’s Country Club......$175,000 (Property #46)
      Pancake House $250,000 (Property #22)
      Willow Grove Park .... $7,717,430 (Property #17, 18)
      TOTAL $8,252,430
      2. The following properties have been sold and closed since this Court’s Adjudication:
      Tarrytown $375,000 (Property #37)
      Cranberry Township.....$2,251,000 (Property #35)
      Davisville Road $400,000 (Property # 14)
      Knock-on-Wood ......$460,000 (Property #32)
      4.74 Acres, Upper Moreland . . .$237,000 (Unidentified by property number)
      Davisville Road lot ...... $ 10,000
      TOTAL $3,733,000
      3. The following properties are now under agreements of sale which have not yet closed:
      Evans Products $200,000
      6.4 Acres, Warner & .....$1,100,000* Gulf Roads
      Valley Forge Golf Course . . $13,700,000*
      Beotoll ......$ 80,000
      TOTAL $15,080,000
      * Settlement on these properties is conditioned upon zoning approvals from Upper Merion Township. As of this date, such approvals have not been obtained.”
      (Lower Court Opinion at 6-7)
      4. The balance of partnership properties remain unsold.

      . Such conclusions consisted of the following:

        “CONCLUSIONS OF LAW
      1. Liquidation by [appellants] has not in a period of almost four years succeeded in liquidating the bulk of partnership assets into cash.
      2. The partnership debt is insignificant in relation to partnership assets.
      3. If the Court ordered either an auction or the appointment of a receiver, the proceeds received in liquidation would suffer as a result.
      4. By reason of their remaining in exclusive control of the partnership properties during the liquidation period requested by them; and, by reason of the death of Dr. Samuel Hankin [—one of the appellees]; [appellants] would have a clear and distinct advantage over [appellees] in any auction.
      5. Equity and justice in this matter militate strongly in favor of a distribution of assets in kind.”
      (Lower Court Opinion at 7-8)


source: Caselaw Access Project

author: MONTEMURO, Judge: BROSKY, Judge,

license: Public Domain

text:
    448 A.2d 1054
    Donald Frederick ASHMAN and Starr Inez Ashman, Husband and wife v. SHARON STEEL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed May 21, 1982.
    Reargument Denied Aug. 13, 1982.
    Petition for Allowance of Appeal Denied Feb. 28, 1983.

      P. Raymond Bartholomew, Sharon, for appellant.
    Charles F. Gilchrest, Sharon, for appellees.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is a trespass action brought by Donald Frederick Ashman, truck driver, and his wife, Starr Inez Ashman, the appellees, for injuries he sustained while working on the property of the Sharon Steel Corporation, the appellant. Appellant raised the defense of the bar of the Pennsylvania Workmen’s Compensation Act in its Answer, and, by stipulation of counsel, a bifurcated trial was held, with testimony on this threshold issue taken before the trial judge alone on September 17,1979, resulting in an order September 20,1979 which found that appellant was not protected from a common-law negligence action. Thereafter trial was held on issues of liability and damages, and a jury returned a verdict in favor of appellees in the amount of $151,000.00.

Appellant appealed to this court on several grounds: whether the bar of the Workmen’s Compensation Act applied; whether there was a breach of duty to support liability on its part; whether the verdict was excessive. We affirm the verdict of the court below.

HISTORY

The facts of the instant matter are generally not in dispute. The jury resolved the single factual dispute in favor of appellees and the resume of the facts was found as follows:

Appellant and Williams Brothers Trucking [hereafter Trucking Co.] have had a long-term relationship in which the Trucking Co. rents a portion of the appellant’s property for its business and also contracts to supply trucking services to the appellant on a regular basis.

The contract in force between appellant and Trucking Co. at the time the instant injury took place, provided for leasing of trucks along with their operators for a single hourly rate to do a variety of jobs. The rate varied depending upon the type of vehicle used, but in every case it included use of the truck, services of a driver, fuel, insurance, and all other expenses.

An employee of the appellant called the Trucking Co. daily to order the number and type of trucks and to designate the jobs to be done, the number of regular hours and the amount of overtime. In the month in which the instant accident occurred, the “Euclid” vehicles and their drivers clocked 1,332 hours of work for appellant; other types of vehicles clocked an additional 377.5 hours.

The drivers were teamsters, and had been trained in the operation of their vehicles by the Trucking Co. Each man was responsible to report early and check out his vehicle at the Trucking Co. before going on his assignment for the day. A man might be assigned to appellant for work, or he might be sent on other business, hauling “over the road” for other customers. Drivers who went onto appellant’s property had complete responsibility for their vehicles but took direction from appellant’s employees as to such matters as where to place the truck for loading or where to dump their loads.

On one occasion, appellee had refused to load drums onto his vehicle when requested, and the appellant complained to the Trucking Co. He was repremanded by the owner of the Trucking Co. for not being cooperative, and for a time was taken off assignment to work on the appellant’s property.

On the date of the accident, plaintiff drove his “Euclid” to the site of the scale pit at appellant’s plant pursuant to his morning instructions from the Trucking Co. He waited for a crane to arrive, and he backed his truck into position as indicated by the crane operator before leaving the vehicle as a safety precaution.

The bucket of the crane refused to work and repair was necessary. The bucket was set on one side of the pit while the crane operator worked on the cables. As he was finishing, the operator told appellee, “Get that cable and bolt and put it in the bucket and we will get this damn show on the road.” (N.T.29)

Appellee, remembering that his previous refusal to do anything other than teamster’s work had been ill-received, attempted to follow these instructions. Although the crane operator had climbed the other side of the bucket earlier, appellee found he was unable to do so unaided. He therefore placed a wooden pallet against the side of the bucket as a rudimentary ladder and proceeded to climb the “rungs.” The bucket shifted in the pebbly soil and flipped appellee onto a railroad track, where his left arm hit the ties and sustained permanent damage.

DISCUSSION

Appellant argues strongly that it occupies the position of “employer” toward appellee both under the language of the Workmen’s Compensation Act and under the Master Servant relationship in common law. Alternatively, it argues that appellee was a trespasser on its property or at most was a “business-invitee” of a lower order, and that it did not breach any duty of care owed to appellee and cannot be liable for his damages. Finally, appellant argues that the combined verdicts awarded husband and wife appellees were excessive.

Whether appellant qualified as an employer under statutory language or under common law will be the first question considered. We affirm the holding of the lower court that it was not, but on different reasoning.

The Statutory Language

There are three applicable sections of the Workmen’s Compensation Act to be examined for an analysis of the statutory language as to the employer-employee relationship. Section 52 originally defines liability in the instant circumstances.

Employers’ liability to employee of employee or contractor permitted to enter upon premises.

An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employe or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employe or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employe. 1915, June 2, P.L. 736, art. II, § 203; 1937, June 4, P.L. 1552, § 1; 1939, June 21, P.L. 520, § 1.

Were this wording our only guide, we would have to say that under the clear meaning of the terms, the present facts would fit the statutory criteria. Appellant permitted appellee, who was hired by the Trucking Co.-contractor which did its hauling, to enter premises “occupied by” it and “under its control.” Testimony established that the driver controlled the vehicle entirely, but was subject to direction from appellant’s employees while on that property.

Contrary to the opinion of the lower court, we also find that the work done on appellant’s grounds by appellee was clearly part of its “regular business.” Section 22, containing the definition of “employe”, also has wording that opposes “regular course of business” with “casual in character” in describing the employment itself; in pertinent part, that section provides as follows:

§ 22. “Employe” defined
The term “employe”, as used in this act is declared to be synonymous with servant, and includes—
All natural persons who perform services for another for a valuable consideration, exclusive of persons whose employment is casual in character and not in the regular course of the business of the employer, . . . (Emphasis supplied).

Common sense asserts that the services of the Trucking Co. employes, running to nearly two thousand hours a month on appellant’s property, were far from “casual” and were indeed vitally necessary to the smooth functioning of that company. The court in Dews v. Shmukler, 199 Pa. Super. 417, 185 A.2d 607 (1962) distinguished these terms as follows:

Employment is not “casual” even if only for single or special jobs, if it is not of emergency or incidental nature but represents a planned project, and tenure of service necessary to complete it and for which employment is to continue is of fairly long duration.

Appellee was employed for valuable consideration as part of a well-planned long term enterprise essential to appellant’s business. We must, therefore, disagree with the analysis of the court below which excluded the appellant from the status of statutory employer on the grounds that the services for which it hired appellee were not part of its regular business. Under the wording of § 52, without more, plaintiff would appear to be an “employe” of defendant. However, both case law and later statutory definition prevent that result.

In 1972 the Act was amended to include the definition of “contractor” in Section 25, as set forth infra.

§ 25. “Contractor” defined.
The term “contractor” as used in article two, section two hundred and three, and article three, section three hundred and two (b), shall not include a contractor engaged in an independent business, other than that of supplying laborers or assistants, in which he serves persons other than the employer in whose service the injury occurs, but shall include a sub-contractor to whom a principal contractor has sublet any part of the work which such principal contractor has undertaken. (Emphasis supplied).

This wording excludes from consideration any contractor “engaged in an independent business ... in which he serves persons other than the employer in whose service the injury occurs.” The Trucking Co. serves companies other than appellant, which places it in the “independent business” category and takes it out of the definition of “contractor” in § 52.

The term “contractor” does, however, by definition at § 25, include contractors in the business of “supplying laborers or assistants.” Even assuming that a teamster whose services are rented out on an hourly basis falls into the category of “laborer or assistant”—a matter which we need not decide—plaintiff here was supplied in conjunction with the equipment he drove. Under Pennsylvania law, this is a significant distinction, see discussion infra.

Additionally, “contractor” at § 25 also includes a “subcontractor” to whom a “principal contractor” has sublet some portion of the work the principal contractor has undertaken. Appellant is not a “principal contractor,” but an owner of the property. Our courts have held that this distinction is significant; an independent contractor’s employe is not ordinarily considered to become an “employe” of the owner of the property for Compensation Act purposes. Brooks v. Buckley & Banks, 291 Pa. 1, 139 A. 379 (1927); Freeny v. William Penn Broadcasting Co., 180 Pa.Super. 434, 118 A.2d 275 (1955).

Therefore, under the instant facts, we find that contrary to appellant’s argument, appellant, under the relevant statutory language of the Workmen Compensation Act, is not the “employer” of the appellee. To recapitulate in brief, he remains the employe of the Trucking Co. for the following reasons: (1) the Trucking Co. supplies a number of customers besides appellant; (2) it is also in the business of leasing equipment and operators in a single package; (3) it leased the equipment and services of its operator directly to the appellant itself, the property “owner,” and not to a “principal contractor” subleasing a part of the work to be done on an owner’s property.

COMMON LAW MASTER-SERVANT RELATIONSHIP

This disposition under statutory language does not entirely dispose of the matter. Case law should also be examined in the determination of a master-servant relationship, a concept that existed in common law long before the Workmen’s Compensation Act was drafted and which is specifically incorporated into the wording at § 22, see citation supra. The classic test determining the “true” master when a servant has been loaned to another is by examination of the right of control:

The crucial test in determining whether a servant furnished by one person to another becomes the employe of the person to whom he is loaned is whether he passes under the latter’s right of control with regard not only to the work to be done but also to the manner of performing it. [citation omitted]
A servant is the employe of the person who has the right of controlling the manner of his performance of the work, irrespective of whether he actually exercises that control or not. [Citations omitted; emphasis in original], Mature v. Angelo, 373 Pa. 593, 97 A.2d 59 (1953).

Although opinions considering the matter frequently mention such items as which employer actually hired the servant, and which paid his wages, and which issued his W-2 Form, these are peripheral matters and are not controlling. English v. Lehigh Co. Authority, 286 Pa.Super. 312, 428 A.2d 1343 (1981) and cases cited therein.

The true measure remains the common law definition of the master-servant relationship “. .. whether ... he continues liable to the direction and control of his master, or becomes subject to that of the party to whom he is lent or hired.” Puhlman v. Excelsior Express and Standard Cab Co., 259 Pa. 393, 103 A. 218 (1918), accord, English v. Lehigh County Authority, supra. Our question then becomes whether control or right of control lay with the Trucking Co. or the appellant.

We have discussed, supra, the fact that the work done byappellee in conjunction with his equipment and for which he was permitted entry on appellant’s property was not “casual,” a matter which is determined in law. Barnett v. Bowser, 176 Pa.Super. 17, 106 A.2d 457 (1954). It was not for a “single” or “special” job, see quotation from Dews v. Shmukler, cited supra, nor was it work undertaken as a “volunteer,” Stewart v. Uryc, 237 Pa.Super. 258, 352 A.2d 465 (1975), or “for the fun of it,” Harris v. Seiavitch, 336 Pa. 294, 9 A.2d 375 (1939).

Certainly the appellant did exercise certain controls over the appellee and other Trucking Co. employes while they were engaged in appellant’s work. The Trucking Co. also retained large measures of control over the men and equipment it leased. The strong interrelationship between these two companies in particular tends to blend the lines of command. Case law, however, has recognized the problem as a common one, and does supply some guidance.

In Mature v. Angelo, supra, the Supreme Court found the “borrowing” employer of a dirt-loader leased with its operator not liable in tort to an injured third party, but that the owner and lessor of the vehicle with its operator was responsible. In that instance the loaned employee and vehicle had been engaged in regular business on the borrowing employer’s site for some months; the equipment was handled only by its skilled operator, but the daily work was at the direction of the foreman of the borrowing company.

While the loader was actually performing work on the site, the operator suddenly backed over a workman’s foot. The court in that instance made the following analysis:

The above recital of facts obviously reveals that this is an ordinary, typical case of the renting of a machine with an operator specially skilled for the purpose from one who is in the business of renting out such machines and operator, where neither the person renting such machine and operator, nor his own employes, are competent to run such a machine and merely direct the operator concerning the work to be done,—not the manner of performing it. Of course, anyone who engages the service of a technician or specialist for the performance of a particular job must of necessity indicate to him from time to time the work that he wishes done and for which he has engaged him; in accordance, however, with the foregoing statement of the applicable legal principle, the giving of such directions does not bring the hired servant into his employ and make him responsible for the performance of the work. Id., 373 Pa. 600-01, 97 A.2d at pp. 62-63 (Emphasis in original)

We may assume, therefore, that had the driver in the instant action been a tort-feasor rather than an injured party, he would have been the agent of the Trucking Co. There seems to be no sensible distinguishing characteristic that would impel this court to focus on the master-servant relationship differently depending on whether the servant is the perpetrator or the victim of the accident. The common law of master and servant focuses on the control of the servant, not on whether he or another is the injured party. When several months of continuous service on a borrowing employer’s property, working at his direction, did not sever the relationship of master-servant under the facts of Mature, supra, it should not do so in the present case. Certainly, as to the work that brought appellee onto appellant’s property, and which he performed with the equipment he controlled, we find no unusual exercise of power by the appellant which would place it in the master’s position when the property owner in Mature did not occupy that position.

DUTY OF CARE TO TRESPASSER OR INVITEE

Appellant argues that as to the events of the accident itself, appellee was a trespasser, and that even if he was a business invitee, the duty owed to him by appellant was not such as would make it liable to him for his harm. The crane operator, appellant’s agent, denied in his testimony that he ever gave any order to appellee as to hooking up the bucket, and also denied seeing appellee drag over the pallet and begin the climb that ended in the injury. The jury heard both versions of the story of the injury and obviously determined that appellee’s was the true one. They were there to decide questions of credibility; that was their province, and there was certainly testimony to support their conclusion. This court will not disturb their determination of the facts. Therefore, we need not examine any argument as to care due a trespasser.

Appellant also argues that the duty of the landowner to employes of an independent contractor is not so stringent as that accorded business invitees in public places such as stores, and he supports this argument well. However, this is not a case of a “business invitee” in either the category of independent contractor’s employe or the category of a shopper wandering into visible or hidden, known or unknown dangers.

TORT LIABILITY TO A CASUAL EMPLOYEE

We do, however, find a sufficient basis to sustain tort liability against appellant, although on a basis not clearly articulated below.

The facts present us with an employe of an independent contractor standing aside from his vehicle for safety purposes, ordered to do a job outside of his ordinary expertise by the agent of the appellant. Appellee sprang to obey. Why? Because the last time he refused to “lend a hand” he had been reprimanded and shifted to over-the-road-work for other customers for a while. On this occasion he considered refusal to be impolitic, and did his best to get “this damn show on the road” as ordered.

Here at last we see a “casual” employment. The appellee engaged in a “single,” “special” job, of “incidental” nature, and his motive was not remuneration. He was a teamster and he operated vehicles for his “valuable consideration.” His experience was that he would be lectured and perhaps shifted to work that was physically harder and required travel. He assisted the crane operator for the simple motive of avoiding trouble—a motive as trivial as that of the boy in Harns, supra, who undertook to ride the rear of a truck “for the fun of it.”

Casual employment, trivial in nature and not undertaken for valuable consideration does not place the kind of “control” in an employer that brings with it the responsibility contemplated by the Workmen’s Compensation Act. It does, however, leave the employer open to liability under traditional tort principles.

Therefore the holding of the lower court that appellee was not an employe of appellant for purposes of the bar of the Workmen’s Compensation Act was correct, and we affirm. We turn now to the results of the jury trial in this bifurcated matter, and examine the liability and the damages.

BREACH OF DUTY OF CARE

Reviewing the record and the opinion of the court below, as we must, in the light most favorable to appellees, and awarding them every favorable inference to be deduced therefrom, Harris v. Seiavitch, supra, 336 Pa. 296, 9 A.2d at 376, we find that appellant’s agent requested a man who was overweight and not accustomed to climbing a crane bucket to do a job that he was untrained for and physically ill-equipped to perform. Appellant’s agent knew the soil was loose and pebbley, and watched the makeshift ladder being laid to the side of the bucket. There is evidence on the record to support negligence on the part of the agent, for the jury could easily find that the agent should have known that the circumstances of the poor soil, the leverage of the pallet climbed by an overweight man, the height and weight of the bucket, and the lack of training of the teamster-appellee was a combination that could lead to an accident.

The appellant presented conflicting testimony for the jury’s review, but where the jury has evidence to support its findings, we are not inclined to disturb those findings, especially when the trial judge did not. 9 Standard Pa. Practice, p. 433 and cases cited therein.

AW£RD OF DAMAGES

Having determined that a breach of duty had occurred, the jury also heard evidence as to the amount of disability suffered by the plaintiff. The testimony contained evidence that the appellee’s injuries to his left arm became increasingly painful over time, that an operation did not improve the situation, and that his abilities as a teamster were so impaired that he has been unable to continue that employment. He has been unsuccessful in his efforts to retrain to another type of job, in large part because of his limited education. Limiting his work to the easier job of driving the “Euclids” did not work either. He has suffered physically from the pain and mentally from the depression that ensued from being unemployable.

There was testimony as to his loss of earnings also, and we agree with the lower court that the jury would have been justified in projecting appellee’s future earning capacity in a figure “considerably in excess of the amount awarded him.” We assume that the relative paucity of the figure involved takes into account the various factors introduced into evidence by appellant to show that appellee was not the most reliable of employes and not in the best of health, independent of the injury to his arm. We cannot say, however, upon review of the evidence, that it was insufficient to support this verdict.

Therefore, the order of the court below is affirmed.

BROSKY, J., files concurring opinion.

BROSKY, Judge,

concurring:

I agree with the majority generally that Sharon Steel Corporation does not qualify as a statutory employer under the Workmen’s Compensation Act. 77 P.S. § 52. I also share the view that a relationship existed between Donald Ashman and Sharon Steel such that a duty of care arose resulting in Sharon Steel’s liability to Ashman for damages resulting from Sharon’s negligence if that duty of care was breached. I believe somewhat more discussion on this point is helpful. Finally, I wish to address the issue raised by Sharon Steel that the damages awarded were excessive.

A business invitee is defined in the Restatement 2d of Torts, § 332(3) as:

§ 332. Invitee Defined
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.

The Comment to Subsection (3) states in relevant part:

e. Two classes of business visitors. Business visitors fall into two classes ....
The second class includes those who come upon land not open to the public, for a purpose connected with business which the possessor conducts upon the land, or for a purpose connected with their own business which is connected with any purpose, business or otherwise, for which the possessor uses the land. Thus a truck driver from a provision store who enters to deliver goods to a private residence is a business visitor; and so is a workman who comes to make alterations or repairs on land used for residential purposes.

Thus because Ashman was employed to perform certain tasks which benefitted Sharon Steel on Sharon Steel’s property, he was a business invitee. The fact that Ashman was injured while performing a task for which he was not specifically hired I do not believe affects his status as a business invitee. Ashman, after all, was commanded by an agent of Sharon Steel to assist in the repair of a crane which was vital to the loading of Ashman’s truck.

It is beyond cavil that the duty of care owed to a business invitee by a property owner is stated in Restatement of Torts 2d §§ 341A and 343.

§ 341A Activities Dangerous to Invitees
A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it.

Section 343 indicates what dangers a possessor of land is expected to know or discover.

§ 343 Dangerous Conditions Known to or Discoverable by Possessor
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Liability is limited, however, in § 343A. The possessor is not liable to the invitee for injuries which result from “any activity or condition on the land which is known or obvious to them, ...” id.

In McKenzie v. Cost Bros. Inc., 487 Pa. 303, 309-310, 409 A.2d 362, 365 (1979), our Supreme Court said in its discussion of the standard of care owed an invitee:

This was also aptly pointed out by Professor Prosser in his treatise.
The amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it. W. Prosser, Handbook of the Law of Torts (4th ed.1971) p. 180.
Two comments to section 343 are particularly germaine to the instant discussion. Comment (d) provides:
d. What invitee entitled to expect. An invitee is entitled to expect that the possessor will take reasonable care to ascertain the actual condition of the premises and, having discovered it, either to make it reasonably safe by repair or to give warning of the actual condition and the risk involved therein. Therefore an invitee is not required to be on the alert to discover defects which, if he were a mere licensee, entitled to expect nothing but notice of known defects, he might be negligent in not discovering. This is of importance in determining whether the visitor is or is not guilty of contributory negligence in failing to discover a defect, as well as in determining whether the defect is one which the possessor should believe that his visitor would not discover, and as to which, therefore, he must use reasonable care to warn the visitor.
Restatement (Second) of Torts, § 343, Comment (d) (1965). Comment (e) provides in pertinent part:
(e) Preparation required for invitee. In determining the extent of preparation which an invitee is entitled to expect to be made for his protection, the nature of the land and the purposes for which it is used are of great importance.
Restatement (Second) of Torts, § 343, Comment (e) (1965).

Accordingly, Sharon Steel owed Ashman a reasonable standard of care to protect him from dangers which, quite naturally were associated with the procedure of loading trucks, and about which Ashman would be unaware. I would hold that it was reasonably foreseeable that Ashman would aid a Sharon Steel employee in the process related to loading his truck if he was asked to do so. Thus, Sharon Steel owed a duty of reasonable care to Ashman to assure that he not be injured by equipment in need of repair. Clearly, that duty was breached and Sharon Steel was properly found to be negligent.

Sharon Steel’s final contention is that the damages awarded to the Ashmans was excessive. In Kravinsky v. Glover, 263 Pa.Super. 8, 25-26, 396 A.2d 1349, 1358 (1979), we said:

Turning to appellant’s contention that the verdict is excessive we note that in Skoda v. West Penn Power Co., 411 Pa. 323, 338, 191 A.2d 822, 830 (1963), our Supreme Court stated:
“Appellate courts are properly reluctant to interfere with jury verdicts in personal injury cases, which verdicts are supported by the opinion and approval of the trial judge and the court en banc. Roadman v. Bellone, [379] 479 Pa. 483, 108 A.2d 754 (1954). The granting of refusal of a new trial because of excessiveness is preculiarly within the discretion of the court below and we will not interfere, absent a clear abuse of discretion. Hall v. George, 403 Pa. 563, 170 A.2d 367 (1961). We will not hold that a verdict is excessive unless it is ‘so grossly excessive as to shock our sense of justice.’ Kane v. Scranton Transit Co., 372 Pa. 496, 94 A.2d 560 (1953), and cases cited therein.” In Robert v. Chodoff, [259] Pa.Super. [332], [366], 393 A.2d 853, 871 (1978), we outlined some of the factors relevant in determining whether a verdict is excessive.
“(1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of plaintiff’s out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.” (footnote omitted.) See Kemp v. Philadelphia Transportation Co., 239 Pa.Super. 379, 361 A.2d 362 (1976). Mere disparity between the amount of the verdict and out-of-pocket expenses is not in itself sufficient grounds to disturb a verdict. In Carminati v. Philadelphia Transportation Company, 405 Pa. 500, 176 A.2d 440 (1962), our Supreme Court upheld an award of $79,500 although medical expenses were less than $200. Similarly, we have sustained a verdict of $25,000 although medical expenses totalled only $549.60. Simmons v. Mullen, supra, 231 Pa.Super. [199] at 215, 331 A.2d [892] at 901.

Applying the above standard to the instant case, we find that, Mr. Ashman has suffered a permanent disability to his left arm affecting his ability to rotate his arm. This malady will affect his ability to continue his employment as a truck driver. While he can continue to drive a vehicle, he will not be able to operate the kind for which he was trained. This will result in substantial lost earnings. Furthermore, Mr. Ashman continues to suffer pain associated with the injury and evidence was submitted that his pain in all likelihood will persist. Testimony also supports Ms. Ashman’s award for loss of consortium. While Mr. Ashman has suffered only nominal out-of-pocket expenses for his injuries, I would hold that his loss of earnings, his pain and Ms. Ashman’s loss of consortium when considered together justify the award. I do not find the award so excessive as to shock my sense of justice. I cannot find, under these circumstances, that the trial court clearly abused its discretion.

I concur in the opinion of the majority to affirm the order of the court below.

       Section 52 of this title.

       Section 462 of this title.

      . I am satisfied specifically that Ashman was not a “loaned employee” to Sharon Steel thereby qualifying Sharon Steel as a statutory employer. Lane v. Schucht, 260 Pa.Super. 68, 393 A.2d 1015 (1978).

      . Pennsylvania courts have adopted § 323 as the law in Pennsylvania. See Restatement 2d of Torts, Appendix § 332.


author: MONTEMURO, Judge:

text:
    448 A.2d 1064
    COMMONWEALTH of Pennsylvania v. Charles H. KEELER, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1981.
    Filed July 2, 1982.

      Robert G. Kochems, Mercer, for appellant.
    Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before PRICE, BROSKY and MONTEMURO, JJ.
   MONTEMURO, Judge:

The matter before us involves two separate appeals which by stipulation were consolidated.

On July 16,1979, appellant was arrested and charged with aggravated assault, criminal attempt to commit rape, and simple assault. During the time appellant was awaiting trial on these charges in the Mercer County jail he was involved in an incident with a guard and on October 9,1979, he was charged with aggravated assault and assault by a prisoner.

Appellant was convicted by a jury of criminal attempt to commit rape and indecent assault. The jury found him not guilty on the charge of aggravated assault and his demurrer to the charge of indecent assault was sustained by the trial judge, the Honorable Albert E. Acker. Thereafter, appellant’s motion for a new trial and in arrest of judgment was denied and Judge Acker sentenced him to five (5) to ten (10) years on the attempted rape and one (1) to two (2) years for simple assault, the sentence to be served concurrently but consecutively to any sentence he was then serving.

Following his conviction before Judge Acker, by way of plea bargain, he pled guilty to the charge of simple assault by a prisoner before the Hon. John Q. Stranahan. After he had been sentenced by Judge Acker, Judge Stranahan sentenced him to two and one-half (2V2) years to five (5) years to be served at the conclusion of Judge Acker’s sentence.

We shall first address appellant’s appeal from his plea of guilty to assault by a prisoner. Appellant does not challenge the legality of the sentence imposed by Judge Stranahan nor does he challenge the propriety of, the sentencing procedure. He would have us reverse on the ground that his sentence of two and one-half (2lh) years to five (5) years was excessive. We do not agree.

We have examined the entire record and find that the sentence imposed by Judge Stranahan was within the statutory limits and was not so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Straw, 238 Pa.Super. 535, 361 A.2d 427 (1976). We affirm.

Turning next to appellant’s appeal from his jury conviction of attempted rape and simple assault, appellant assigns as error the denial of his motion for a change of venue, the denial of his motion for a mistrial and that the evidence was insufficient to sustain a verdict of guilty of attempted rape. We shall consider his claims seriatim.

On July 17, 1979, the day following appellant’s arrest for attempted rape, two newspapers of general circulation in Mercer County where the crime was committed reported the crime.

We have repeatedly held that an application for change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Smith, 290 Pa.Super. 33, 434 A.2d 115 (1981); Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). “In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant’s] guilt or innocence as a result of the pre-trial publicity.” Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 287 (1976). In Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973) our Supreme Court held that one who claims that he was denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empanelling of the jury. However, this rule is subject to an important exception. In Commonwealth v. Casper, supra, the court decided that:

In certain cases there, “can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice,” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Commonwealth v. Rolison, supra [473 Pa. 261, 374 A.2d 509]; Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975), citing American Bar Association Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1968); Commonwealth v. Pierce, supra [451 Pa. 190, 303 A.2d 209].6 It is this exception that we must discuss here. It is trite but true to note that a presumption of prejudice pursuant to this exception requires the presence of exceptional circumstances. Similarly, generalizations in this area are difficult because “each case must turn on its special facts.” Commonwealth v. Pierce, supra, 451 Pa. at 198 n.3, 303 A.2d at 213 n.3, quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250, 1252 (1959). Nonetheless, there are certain factors which this Court has identified as relevant to a determination of whether prejudice should be presumed.

Id., 481 Pa. at 151, 392 A.2d at 291.

Clearly then, the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Instead, the court will consider the following factors in assessing whether a trial judge abused his discretion in denying a change of venue motion based on pre-trial publicity: “(1) the length of time between the publicity and the trial; (2) the nature and extent of the publicity (whether inflammatory or basically factual and how pervasively the information has been disseminated); (3) the degree to which the information is attributable to police or prosecution sources; (4) the community atmosphere; (5) the trial court’s efforts to insulate the jury against and/or diminish the impact of the publicity; and (6) the probable efficacy of a change of venue.” Commonwealth v. Richardson, 476 Pa. 571, 586, 383 A.2d 510, 518 (1978), cert. denied, 436 U.S. 910, 98 S.Ct. 2248, 56 L.Ed.2d 410 (1978) (Citations omitted.)

Here the appellee concedes that the two newspaper articles were inflammatory, that they revealed the appellant’s criminal record and that the news content was obtained from the police and the prosecuting officer. Even so, unless the publicity has been so extensive, sustained and pervasive, without sufficient time between publication and trial for the prejudice to dissipate, so that the “community must be deemed to have been saturated with it,” we will not find an abuse of discretion in a denial of a motion to change venue. Commonwealth v. Casper, supra.

The trial judge wrote a comprehensive and accurate analysis of appellant’s change of venue claim. The trial judge pointed out that during the selection of the jury, individual voir dire examination was used. Twenty-seven (27) names were drawn from the jury selection box in the selecting of the twelve (12) jurors. Further, out of an abundance of caution, the jurors were sequestered throughout the entire trial until the jury returned its verdict. Each juror was inquired of as to whether he had knowledge from any source concerning the case. Those few who read or heard of the case previously were asked if they could set aside an information previously obtained. All prospective jurors that either appellant or appellee wanted removed were in fact excused.

We agree with the lower court that the statements contained in the two newspaper articles, although regrettable, did not result in a presumption of prejudice, nor was there a showing that the jury was unable to render a fair and impartial verdict based solely on the evidence introduced during the trial.

We hold that there was no evidence of actual prejudice, nor was the pre-trial publicity so extensive, pervasive and sustained so as to justify a presumption of prejudice. Accordingly, there was no error in denying appellant’s motion for a change of venue.

Next, appellant contends that when the appellee elicited from a police officer testimony concerning an inculpatory statement made by appellant, which was not made available to appellee until the day of trial, but which was never made available to appellant despite an agreement by the prosecutor to make all such statements available, the lower court erred in not granting appellant’s motion for mistrial or to strike the elicited testimony.

On September 7, 1979, appellant sought certain items of discovery from the Commonwealth. Pursuant to Pa.R. Crim.P. 305B(l)(b), appellant requested:

Any statements of the defendant given to any agent of the Commonwealth in connection with the subject matter of this case; and, whether or not the Commonwealth presently intends to call that agent at trial and whether or not the statement is oral or written.

Pa.R.Crim.P. 305 D provides:

If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.

Pa.R.Crim.P. 305 E provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

The testimony of the Commonwealth’s witness, Patrolman Paul Michael Zarecky, on direct examination, which gave rise to this claim of error, was as follows:

Q. Now did you inquire of him as to any wearing apparel that he might be missing?
A. Yes at the scene we read his rights and back again at the station we read his rights and I was with Officer Shelfont and he acknowledged the understanding of his rights and we asked if he would talk to us and he said, “I might as well” or something to that affect [sic], okay.
Q. All right and did you notice anything—did you ask him about anything as far as wearing apparel that he might be missing?
A. Yes the watch there, the exhibit there was returned to our station and it was found at the same exact location where the glasses, the broken glasses of Mrs. Cooper were laying.
Q. All right.
A. And I asked him, I said, “Do you have a watch?” and he said, “Yea I have a watch” and then for a minute he went like this and then he said, “No I don’t have a watch.”

At this point appellant’s counsel asked for permission to approach the bench; permission was given and the following sidebar conference took place:

(SIDEBAR CONFERENCE)
MR. WHERRY: May we have an offer? Your Honor sometime ago we filed a petition to compel disclosure of all evidence favorable to the defendant and one of the matters was any and all statements made by the defendant and this was not offered at the preliminary hearing nor was it offered by the Commonwealth at anytime any statement that that man made.
THE COURT: Did they tell you he didn’t make any statements?
MR. WHERRY: They didn’t tell us anything about the statement one way or the other.
THE COURT: All right.
MR. WHERRY: I don’t think. ..
THE COURT: What else if [sic] he going to say if anything.
MR. KARSON: That’s it.
THE COURT: No other statements?
MR. KARSON: No.
THE COURT: Let’s look here.
MR. KARSON: I think Mr. Wherry can inquire of the fact that this is not in the report of this patrolman that was available to you. It wasn’t in a report and I found out about it today.
MR. WHERRY: Okay.
THE COURT: So you’re saying that really wasn’t a statement in the sense it was.. .
MR. KARSON: I don’t think it’s particularly a statement in terms of what the nature of that is required.
MR. WHERRY: Let me get this straight. Is this something that was in no report and you found out from Zarecky. He told you today?
MR. KARSON: That’s exactly right.
MR. WHERRY: Because we certainly weren’t furnished any statement and Zarecky never hit the stand at preliminary or any other time.
THE COURT: All right what is to be done then?
MR. KARSON: I might just continue for your sake of disclosure that I believe that my understanding is that the Officer will continue to testify that he did look at the wrist of Mr. Keeler and he noted like a suntan, you know how it leaves a suntan around a watch.
MR. WHERRY: I think he can testify to anything he saw the only problem I have is I have a statement that probably had we known that there was a statement we probably would at least put in a motion of some nature to suppress it.
THE COURT: Well I don’t take this to be statement in the popular sense and I think that if you want any and all matters that he may have even though not reduced to writing you would have a right to ask for that but reading the motion it asked for any and all statements. It may be a question of interpretation.
MR. WHERRY: Take a look at No. 7 down here Your Honor.
THE COURT: Any indictment given to any agent or in connection with subject matter. ..
MR. WHERRY: I think if you go to the next side it’s. . . It says whether oral or written.
THE COURT: All right we have a problem. What do you want to do about it?
MR. WHERRY: We move for a motion to strike and we move for a mistrial.
THE COURT: Both denied.
MR. WHERRY: Thank you Your Honor.

(SIDEBAR CONFERENCE CONCLUDED)

Patrolman Zarecky then completed his testimony in chief concerning the watch as follows:

Q. Patrolman Zarecky did you make any personal observations as to the hand or wrist of Mr. Keeler? A. Yes I did.
Q. All right and in looking at his hand or wrist area would you describe to the Court and jury what if anything you saw on his wrist?
A. Okay the wrist in the normal position of where a watch would be worn was of a lighter color, a whiter color and the hand around the area was of a suntan or darker skin color and it appeared in my opinion that he recently had been wearing a watch on that hand.

Following the testimony of Patrolman Zarecky, including cross-examination by appellant’s counsel concerning the watch, the court sua sponte asked for a sidebar conference, which was as follows:

(SIDEBAR CONFERENCE)
THE COURT: All right I’m somewhat concerned about the introduction into evidence of the question concerning the watch and the statements made by the defendant and the watch. It would be admissible under certain—merely by the fact it was found and the man had a watch but the statements bother me. Under Pennsylvania Rule of Criminal Procedure 305 dealing with disclosure by the Commonwealth that’s mandatory. It says that any written confession or inculpatory statement or the substance of any oral confession or inculpatory statement is something which is required to be disclosed if there is a demand and it appears that the demand is here. Now the reason it has to be disclosed I presume is so that the defendant can file a motion to protect himself in the event that it’s improperly obtained and we’re going to cure that or attempt to cure it by having a hearing of suppression tomorrow morning at 9:15 as if it had been filed properly as if notice had been given and under this Rule 305 and as if it is attacked on the grounds of both that warnings were not adequately given and that through some form of compulsion or duress the statement had been obtained and on any other basis that the defendant desires to advance. Do you know of any others at this time?
MR. WHERRY: No Your Honor. I haven’t discussed it with him about any statement.
THE COURT: We’ll have Officer Zarecky present and any other witnesses that the Commonwealth wishes to call on that subject. In addition any witnesses that the defense wishes to call on that subject and we’ll receive the testimony and determine whether or not adequate warnings were given and all the rest and see if the statement can stand. If the statement cannot stand then we have a real problem of what to do about it and we’ll face that when we get to it. The motion for mistrial will stand and the motion to instruct the jury will stand and we’ll see what we’re going to do on that. Is there anything further that the defense attorney desires to have done?
MR. WHERRY: No Your Honor I think the Court’s covered the problem adequately.
MR. KARSON: I would give my apology both to the Court and—I misinterpreted the thing and that was my fault. I bent it very strongly in favor of the Commonwealth.

The Commonwealth conceded that it violated Rule 305B(l)(b).

The statement elicited from Patrolman Zarecky was clearly inculpatory and the Commonwealth concedes that it violated Pa.R.Crim.P. 305B(l)(b). The statement did not appear in any written reports and it would appear that the lower court accepted as true the statement of the prosecutor that he did not come into possession of the statement until the day it was elicited. We have no reason to disturb that finding.

The threshold question in this assignment of error is whether the court acted properly in conducting a suppression hearing with reference to the statement concerning the watch or whether it committed error in denying appellant’s motion for mistrial or to strike.

“Under Section E of Pa.R.Crim.P. 305, when it becomes apparent that a party has failed to comply with the provisions of the Rule, the trial court has broad discretion in choosing an appropriate remedy.” Commonwealth v. Parente, 294 Pa.Super. 446, 440 A.2d 549 (1982). The court may order the offending party to permit discovery or inspection, or it may grant a continuance, or it may prohibit the use of the testimony not disclosed, or it may enter such other order as it deems just under the circumstances. Pa.R.Crim.P. 305 E (Emphasis supplied).

In this case the jury already heard the inculpatory statement and, therefore, it was not feasible for the court to permit discovery or inspection or to prohibit the use of the testimony. The appellant never requested a continuance; to the contrary, appellant argues in his brief that the granting of a continuance would not have provided an adequate remedy. With reference to Patrolman Zarecky’s further testimony, appellant’s counsel stated at the first sidebar conference, supra at p. 1068:

I think he can testify to anything he saw the only problem I have is I have a statement that probably had we known that there was a statement we probably would at least put in a motion of some nature to suppress it.

At the conclusion of Patrolman Zarecky’s testimony the lower court at sidebar conference indicated its concern that Pa.R.Crim.P. 305 B(l)(b) had been violated. The court then opined that the reason for the disclosure rule was to put the appellant on notice of any incriminating statement so that he would then have an opportunity, if he so wished, to file a motion to prevent its use by the Commonwealth. The court then stated that it would hold a suppression hearing the following morning out of the presence of the jury, as if the motion had been properly filed, and as if notice had been given. Appellant was given leave to attack the statement on the grounds that the proper warnings were not given to appellant or that the statement was obtained from appellant by some form of compulsion or duress or on any other basis that appellant desired to advance. (Emphasis supplied).

Historically, and almost universally, in a criminal prosecution, the accused had no right to discovery.

In Commonwealth v. McQuiston, 56 D. & C. 533 (1946), the defendant sought to compel the district attorney to turn over to him for inspection a statement he had made to the district attorney. The court held that since no statute in Pennsylvania covered the question it would have to be decided by the common law. The court then cited Wigmore on Evidence, Vol. 3, § 1859g, for the proposition that in criminal cases: “At common law, no right of inspection of documents before trial was conceded to the accused.” And in 2 Wharton’s Criminal Evidence 1311, 1312, the court stated that it was there set forth that: “The general rule is that the accused has no right of inspection or disclosure before trial of evidence in the possession of the prosecution.”

The same question arose in Commonwealth v. Smith, 67 D. & C. 598 (1949), and the court, relying upon the rationale in Commonwealth v. McQuiston, supra, denied defendant’s request to compel the district attorney to turn over to him his own statement and that of his wife. The court went on to say:

We might add that under the Act of January 28, 1777, 1 Sm.L. 429, § 2, 46 P.S.Sec. 152, the English common law became the law of this Commonwealth and that we also have neither found nor been referred to any statute which gives to the accused the right to inspection or disclosure before trial of documents or evidence in possession of the prosecutor.

Commonwealth v. Smith, supra at p. 602. Former Chief Justice Horace Stern cited both McQuiston and Smith with approval in Commonwealth v. Wable, 382 Pa. 80, 114 A.2d 334 (1955). Later, our Supreme Court in DiJoseph Petition, 394 Pa. 19, 145 A.2d 187 (1958), while saying that it was not adopting a new discovery rule, stated:

However, a trial court having jurisdiction of an alleged offender possesses discretionary power to permit a defendant, in appropriate circumstances, to examine and inspect in advance of trial physical or documentary evidence in the hands of the prosecution. (Emphasis supplied).

The DiJoseph Petition court reaffirmed the long-held view that an accused was not entitled to disclosure as a matter of right; the trial judge in each case and on each application for disclosure would determine what should be done in the interest of justice and the only question for consideration by an appellate court would be whether the lower court properly exercised its discretion. See Commonwealth v. Hoban et al., 54 Lackawanna Jurist 213, 218 (1952) (not reported in the state reports).

The Supreme Court of the United States relaxed the hard and fast rule of non-disclosure to an accused by its pronouncement in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) that the withholding of evidence that would exculpate an accused or reduce the penalty constituted a violation of the accused’s due process rights.

On June 30, 1965, the Supreme Court of Pennsylvania, exercising its general supervisory powers over all courts in the Commonwealth, adopted Pa.R.Crim.P. 310 which essentially set forth what the court had been saying in cases presented to it on appeal, namely, that absent exceptional circumstances and compelling reasons an accused has no right to inspection and disclosure of Commonwealth evidence prior to trial. Commonwealth v. Stafford, 450 Pa. 252, 299 A.2d 590 (1973), cert. denied, 412 U.S. 943, 93 S.Ct. 2775, 37 L.Ed.2d 404 (1973); Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963). At the same time, Rule 310 gave the lower court the discretion to order the attorney for the Commonwealth to permit the defendant to inspect and copy or photograph any written confessions and written statements made by the defendant. (Emphasis supplied).

In Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974), the court, although finding that there had been no showing of exceptional circumstances and compelling reasons, and thus affirming the lower court’s refusal to order pretrial disclosure, unanimously expressed support for more liberal discovery procedures in the trial of criminal cases.

In 1977 Rule 310 was amended by the promulgation of Pa.R.Crim.P. 305, and in one quantum leap the Supreme Court adopted the more liberalized standards of pretrial discovery found in the ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial, § 1.2 et seq. (Approved Draft 1970). The new rule corrected the deficiency of Rule 310 in its omission of the Brady v. Maryland requirement, supra, 305 B(1)(a) and in addition pretrial disclosure was also mandated in the following areas: written or oral inculpatory confessions and statements (305 B(1)(b)); defendant’s prior criminal record (305 B(1)(c)); circumstances and results of any identification of defendant (305 B(1)(d)); results or reports of scientific tests (305 B(1)(e)); tangible objects (305 B(1)(f)) and transcripts and recordings of electronic surveillance (305 B(1)(g)). Rule 305 C provides for disclosure by the defendant; Rule 305 D provides for a continuing duty to disclose; Rule 305 E provides a remedy for failure to disclose; Rule 305 F provides for the issuance by the court of protective orders and Rule 305 G sets forth the nondisclosure provision applicable to work product.

As indicated above, instantly the Commonwealth/appellee conceded that it should have informed appellant of the incriminating statement which was elicited from Patrolman Zarecky and that in not doing so it violated Pa.R. Crim.P. 305 B(l)(b). We cannot say that the lower court’s decision to conduct a suppression hearing on the improperly elicited testimony was not a proper exercise of discretion, or, to put it another way, that it constituted an abuse of discretion. The court did exactly what appellant says he would have done had he known about the testimony concerning the “watch” before it was elicited. Further, our review of this entire record convinces us that the procedure adopted by the lower court did not unconstitutionally deny the appellant a fair trial. See Concurring and Dissenting Opinion of Mr. Justice Roberts in Commonwealth v. Smith, 417 Pa. 321, 342, 208 A.2d 219, 230 (1965). Finding neither an abuse of discretion nor prejudice to appellant, the second allegation of error is dismissed.

Finally, appellant claims that the evidence was insufficient to sustain a verdict of guilty for attempted rape.

Viewing the evidence in the light most favorable to the Commonwealth, as we must, Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976), the facts are as follows:

On July 16,1979, Barbara L. Cooper, a young married woman, was wheeling her baby carriage along a secondary road near a field in the Borough of Greenville. She was en route to her sister’s house from her father’s house. Her baby was fourteen months of age. It was in the early evening hours. She passed within ten feet of a person who was drawn to her attention because he was wearing a shirt very similar to one she had recently purchased for her brother-in-law. At this time, she observed his general appearance. Within minutes a shirt was thrown over her head. Thinking it was a joke, she said, “What’s going on?” or words to that effect. The assailant replied, “I’m going to rape you.” He then pushed her to the ground, punched her, and kicked her in the stomach. During the struggle, her glasses were broken. She screamed and grabbed her assailant on the neck and dug in her fingernails. He immediately jumped up and put the shirt over his face up to his eyes. During all of this the victim was on the ground screaming and yelling. It was broad daylight. The victim noticed the appellant’s clothing consisted of blue jeans and tennis shoes. The stroller with the baby inside was in the middle of the road. The victim was ten to fifteen feet away in the field. She immediately ran screaming to her child and then to her sister’s home. She was met prior to reaching it by her relatives. The police were on the scene within several minutes, and a police officer saw the appellant within a block or two of the incident. As the appellant saw the officer as they approached each other upon a bridge, the appellant turned to walk away from the officer but the officer stopped him. The appellant had scratch marks on his neck similar to those described by the victim, and his attire matched the victim’s description.

Clearly, on these facts alone, there was sufficient evidence to support the jury’s verdict of guilty of attempted rape.

For all of the foregoing reasons, the order and judgments of sentence are affirmed.

      . The notes of testimony of the suppression hearing were never transcribed and, consequently, they are not available to us. The suppression motion was denied; however, appellant is not contesting that denial on appeal.

      . Pa.R.Crim.P. 310—Pretrial Discovery and Inspection provided:
      All applications of a defendant for pretrial discovery and inspection shall be made not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances, and compelling reasons. The order shall specify the time, place and manner of making discovery or inspection and may prescribe such terms and conditions as are necessary and proper. In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth. It should be noted that Rule 310 was adopted before the disclosure requirement of all evidence favorable to the accused enunciated in Brady v. Maryland, supra, reached constitutional stature and thus the Rule failed to set forth that requirement.


author: HOFFMAN, Judge:

text:
    448 A.2d 1073
    WM. B. TENNY, BUILDER AND DEVELOPER, Appellant, v. DAUPHIN DEPOSIT BANK & TRUST CO.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1982.
    Filed July 2, 1982.
    Reargument Denied Aug. 24, 1982.

      William B. Tenny, Camp Hill, appellant, in pro. per.
    James D. Flower, Carlisle, for appellee.
    Before CAVANAUGH, McEWEN and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order granting summary judgment because the applicable statutes of limitations had expired. For the following reasons, we affirm as to counts two and three of appellant’s complaint, but reverse and remand as to count one.

I.

Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R. Civ.P. 1035(b). The evidence must be viewed in the light most favorable to the non-moving party and all doubts must be resolved against the moving party. Petraglia v. American Motorists Insurance Co., 284 Pa.Superior Ct. 1, 3, 424 A.2d 1360, 1361 (1981), aff’d mem., 498 Pa. 33, 444 A.2d 653 (1982). Summary judgment can only be granted in the clearest of cases. Id., citing Schachter v. Albert, 212 Pa.Superior Ct. 58, 239 A.2d 841 (1968). “Moreover, in passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.” Juarbe v. City of Philadelphia, 288 Pa.Superior Ct. 330, 334-35, 431 A.2d 1073, 1075 (1981), quoting Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa.Superior Ct. 341, 350, 361 A.2d 676, 680 (1976) (emphasis in original). Applying these principles, we must determine whether the lower court properly concluded that appellant had not timely commenced this action.

II.

In count one, appellant alleged the following facts: Appellee held itself out to the general public as a provider of “competent, experienced, knowledgeable, and trustworthy business advi[ce],” and that its “professional services were available to [him] in consideration for [his banking] business and [his] securing business for [appellee].” (R. 2a-3a.) Appellant “maintained a banking relationship with [appellee], referred bank transactions to [it], and paid in excess of $100.00 interest and other fees to [appellee].” (Id. at 3a.) On June 12,1972, appellant sought appellee’s advice concerning the financing of a particular project. One week later, appellee “advised [him] that [it] would give a mortgage loan ... ‘of whatever it takes to complete the work and pay off the existing mortgage’ but that [he] should do as much of the work ... as possible using his own operating money and credit . . . before the mortgage money would be advanced.” (Id.) Relying upon that advice, appellant contracted with the project’s owner, undertook performance, and, for approximately one year, incurred costs for labor and materials. In July, 1973, the owner requested a $118,000 loan from appellee “to complete the work and pay off the existing mortgage.” In late November, 1973, appellant called upon appellee to fulfill its promise by lending the owner $106,000 for the project. On July 16, 1974, appellee refused to grant either request, but, instead, gave the owner an $80,000 mortgage. Because the loan was insufficient, the owner did not pay appellant approximately $38,000 outstanding on the construction contract. Appellee denied that it had agreed to provide financial advice, but alleged that appellant had merely maintained a normal customer-bank relationship pri- or to the loan requests.

In holding this count time-barred, the lower court stated:

Section 5525(3) of the Judicial Code . . ., 42 Pa.C.S. § 5525(3), provides that “[a]n action upon an express contract not founded upon an instrument in writing” must be commenced within four years and § 5502 of the Judicial Code provides that “the time within which a matter must be commenced shall be computed . . . from the time the cause of action accrued.” An action on a contract accrues when the contract is breached. 22 P.L.E., Limitation of Actions § 54. See also A. J. Aberman, Inc. v. Funk Bldg. Corp., 278 Pa.Superior Ct. 385, 420 A.2d 594 (1980). Here the cause of action accrued on July 16, 1974, when the breach occurred. By the literal terms of § 5525(3), the period within which to bring the action expired on July 15, 1978; however, because the breach occurred prior to the effective date of § 5525 and because § 5525 reduces the previous six-year period of limitations found in the Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31, to four years in the case of oral contracts, the plaintiff is given an additional one year from the effective date of the Judicial Code within which to commence his action. See § 25(a) of the Act of July 9, 1976, P.L. 586, No. 142. The Judicial Code became effective on June 27, 1978. Accordingly, [appellant] had until June 26, 1979, to commence his action. Because the action was not commenced until June 17, 1980, Count I is time barred.

Opinion at 3-4. The lower court thus accepted appellee’s contention that the relevant contract, the June 19, 1972 oral promise to lend a sufficient amount of money, was breached on July 16, 1974 when appellee refused to make the requested loan. Appellant alleged, however, that appellee agreed to provide sound business advice in return for his own banking business and his solicitation of others. Appellant alleged also that pursuant to that contract, he sought appellee’s advice concerning the financing of this project, and appellee misadvised him. Thus, appellant alleges the breach of a continuing personal services contract.

In general, the statute of limitations does not run against a contractual cause of action which is a continuing one. On a continuing contract which is entire, the statute of limitations begins to run only from the time when the breach occurs or the contract is in some way terminated. The test of continuity, so as to take the case out of the operation of the statute of limitations, is to be determined by the answer to the question whether the services were performed under one continuous contract, whether express or implied, with no definite time fixed for payment, or were rendered under several separate contracts.
If the services are rendered under an agreement which does not fix any certain time for payment or for the termination of the services, the contract will be treated as continuous, and the statute of limitations does not begin to run until the termination of the contractual relationship between the parties.

Thorpe v. Schoenbrun, 202 Pa.Superior Ct. 375, 378, 195 A.2d 870, 872 (1963) (citation and quotations omitted). See generally 54 C.J.S. Limitations of Actions § 151 (1948); 2 Standard Pennsylvania Practice 2d § 13:64 (1981). Thus, if appellant’s version of the facts is correct, the parties have a contract for financial advice, which because of its silence as to duration, is deemed to be continuous. Appellee, as noted above, denies that it had contracted to provide financial advice, but contends that it may have breached a promise to lend money. By agreeing with appellee, the lower court engaged in the fact-finding function prohibited by the summary judgment procedure. See Juarbe v. City of Philadelphia, supra. Because there is a factual dispute as to the very essence of the underlying contract, and that issue is material to the determination of the statute of limitations question, we must reverse the lower court and remand for further proceedings on count one of appellant’s complaint.

III.

In count two, appellant reiterated his contractual relationship with appellee and alleged that: it had negligently advised him concerning the financing of the project; he relied upon the advice in agreeing to perform, in undertaking performance of, and bearing the expenses of, the construction; and had incurred damage to his business reputation and credit as well as other consequential damages. See Restatement (Second) of Torts § 323(b) (1965) (negligent performance of undertaking to render services). The timeliness of appellant’s cause of action depends upon when his claim accrued. We have found no cases considering the issue of when an action for negligent financial advice accrues, but there are numerous decisions involving other species of professional malpractice claims. Absent fraud or concealment, a claim for legal malpractice accrues, and the statute of limitations begins to run, as of the breach of duty regardless of the fact that the plaintiff later sustains some special damage as a consequence of the negligence. See, e.g., Moore v. Juvenal, 92 Pa. (11 Norris) 484 (1880); Rhines’s Administrators v. Evans, 66 Pa. (16 P. F. Smith) 192 (1870); McCoon v. Galbraith, 29 Pa. (5 Casey) 293 (1857); Campbell’s Administrator v. Boggs, 48 Pa. (12 Wright) 524 (1855); but see Skyline Builders, Inc. v. Kellar, 50 Pa.D. & C.2d 19 (C.P. Lehigh County 1970) (WIEAND, J.) (reevaluating legal malpractice cases in light of developing statute of limitations principles); 2 Standard Pennsylvania Practice 2d, supra § 13:101 (same). Accord, Guarantee Trust & Safe Deposit Co. v. Farmers & Mechanics National Bank, 202 Pa. 94, 51 A. 765 (1902) (negligent loan transfer agent); Taylor v. Hammell, 201 Pa. 546, 51 A. 316 (1902) (conveyancer negligently failed to verify lot location and to compare names of record owner to that of mortgagor): Owen v. Western Savings Fund, 97 Pa. (1 Outerbridge) 47 (1881) (recorder of deeds issued false certificate of search); Commonwealth v. Donnelly, 36 Pa.Superior Ct. 619 (1908) (recorder negligently recorded mortgage under wrong name). More recently, however, medical malpractice cases have established that the statute of limitations begins to run, absent fraud or concealment, when the plaintiff knows, or in the exercise of reasonable diligence, should have known of his injury. See, e.g., Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959); Wallace v. Horvath, 283 Pa.Superior Ct. 179, 423 A.2d 1047 (1980). Cf. Schwab v. Cornell, 306 Pa. 536, 160 A. 449 (1932) (conveyancer negligently certified property clear of liens). Assuming, arguendo, that appellant’s cause of action accrued when he knew or reasonably should have known that he had been misadvised, the lower court properly concluded that count two was untimely. “While the question of reasonableness is normally left for the jury, that issue may be taken from a jury when the court concludes that fair and reasonable persons could not differ in their conclusions based on the available facts.” Wallace v. Horvath, supra 283 Pa.Super. at 181, 423 A.2d at 1048 (citations omitted). Accord, A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Superior Ct. 385, 398-400, 420 A.2d 594, 600 (1980). There can be no doubt that appellant should be charged with knowledge as of July 16, 1974. On that date, appellee informed him that the requested loans would be denied but that a smaller loan would be granted. By that time, appellant had already utilized all of his available working capital and had incurred considerable unreimbursed costs. Therefore, he reasonably should have known as of that date that the project would encounter serious financial difficulty as a result of appellee’s misadvice. The applicable statute of limitations would be two years, 42 Pa.C.S.A. § 5524(3), but because that period would have expired and the Judicial Code reduced the period from six years, see Act of March 27, 1713, 1 Sm.L. 76, § 1, 12 P.S. § 31 (repealed), appellant had one year from the effective date of the Judicial Code (June 27, 1978) in which to commence his action, Act of July 9, 1976, P.L. 586, No. 142, § 25(a). Because appellant commenced this cause of action beyond that one year grace period, count two of his complaint was untimely.

IV.

In count three, appellant claims that appellee converted the proceeds of a $11,758 check that he had delivered on September 5, 1974 for deposit in a passbook savings account. Although appellant alleges that he demanded the money as recently as June and July of 1979, it is clear from depositions taken in another matter and incorporated by reference in the motion for summary judgment, see Pa.R.Civ.P. 1019(g), that a demand had been made as early as June 14, 1977. A claim for conversion of a bank account accrues, and the statute therefore begins to run, when a demand is made and the bank refuses to release the funds. See, e.g., Mifflin County National Bank v. Fourth Street National Bank, 199 Pa. 459, 462, 49 A. 213, 214 (1901). Accord, Waring v. Pennsylvania Railroad Co., 76 Pa. (26 P. F. Smith) 491 (1875) (conversion of three carloads of crude oil). As with count two, the applicable statute of limitations would be two years, 42 Pa.C.S.A. § 5524(3), but because that, too, would have expired and is a reduction from six years, see 12 P.S. § 31, appellant had one year from the effective date of the Judicial Code in which to commence his action, Act of July 9, 1976, P.L. 586, No. 142, § 25(a). Because appellant did not file his action during that one year grace period, count three of his complaint was untimely.

V.

Order as to count one of the complaint is reversed and the matter remanded. Order as to counts two and three is hereby affirmed.

       Because of our disposition of this matter, we need not decide whether appellant’s cause of action accrued when appellee first advised him on this project or on some interim date when appellant acted in reliance upon the misadvice.