author: PER CURIAM:

text:
    576 A.2d 1105
    COMMONWEALTH of Pennsylvania v. David W. LYONS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 25, 1990.
    Filed July 3, 1990.

      John B. Mancke, Harrisburg, for appellant.
    Julia A.F. Merl, Asst. Dist. Atty., Harrisburg, for Com.
    Before CIRILLO, Presiding Judge, and CAVANAUGH, ROWLEY, WIEAND, OLSZEWSKI, DEL SOLE, TAMILIA, JOHNSON and HUDOCK, JJ.
   PER CURIAM:

This appeal presents the Court with an issue of first impression, namely, whether a second offense of driving while operating privileges are under suspension, which is punishable by not more than six months imprisonment, pursuant to 75 Pa.C.S. § 6503, is intended by the legislature to be a summary offense or a misdemeanor. Our analysis of the pertinent statutory provisions leads us to find that a second violation of 75 Pa.C.S. § 1543(a) is a summary offense.

Driving while one’s operating privilege is suspended constitutes a summary offense under 75 Pa.C.S. § 1543(a), which provides as follows:

(a) Offense defined.—Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.

However, 75 Pa.C.S. § 6503, as amended by the Act of July 9, 1986, P.L. 544, No. 96, § 3, provides that a person who is convicted of a second or subsequent violation of section 1543(a) “shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both.” Although section 6503 establishes a more severe penalty to be imposed than does section 1543(a), it makes no attempt to classify a second offense as a misdemeanor.

While a first violation of section 1543(a) is made a summary offense, second or subsequent violations of the section come within the parameters of section 6503, and we must determine whether this undesignated offense constitutes a summary offense or a misdemeanor.

Under the pertinent provisions of the Crimes Code, an offense is a summary offense if it is so designated or if a person convicted thereof may be sentenced to a term of imprisonment not in excess of 90 days. 18 Pa.C.S. § 106(c). The Crimes Code also provides that a misdemeanor of the third degree is a crime so designated or one for which a person who has been convicted may be “sentenced to a term of imprisonment, the maximum of which is not more than one year.” 18 Pa.C.S. § 106(b)(8). Second or subsequent violations of section 1543(a) of the Vehicle Code, coming within § 6503, would then seem to be misdemeanors of the third degree.

The legislature, however, has provided expressly in the Vehicle Code that the Crimes Code, “insofar as it relates to fines and imprisonment for convictions of summary offenses, is not applicable to this title.” 75 Pa.C.S. § 6502(c). Instead, the Vehicle Code provides:

It is a summary offense for any person to violate any of the provisions of this title unless the violation is by this title or other statute of this Commonwealth declared to be a misdemeanor or felony.

75 Pa.C.S. § 6502(a). In attempting to ascertain the meaning of a statute, this Court is required to consider the intent of the legislature and is permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). As the language of section 6503, establishing the maximum sentence to be imposed for a second offense, does not declare a second offense to be a misdemeanor or a felony, and as we have discovered no other statute which expressly declares a second conviction for violating 75 Pa.C.S. § 1543(a) is to be deemed a misdemeanor or felony, the provisions of 75 Pa.C.S. § 6502(a) and (c) would seem to declare the legislative intent to be (1) that a violation of 75 Pa.C.S. § 1543(a), whether a first, second or subsequent offense, shall be deemed a summary offense, and (2) that provisions of the Crimes Code establishing summary offenses according to maximum penalties to be imposed are to have no application to violations of 75 Pa.C.S. § 6503. Violations of the Vehicle Code shall be summary offenses unless otherwise expressly classified by statute.

Based on our holding, we consider the facts of the instant case. David Lyons was arrested and a criminal complaint was filed charging him with driving while his operating privileges were under suspension, a second or subsequent offense. The charges were dismissed by District Justice Marlin Strohm after testimony had been presented. Lyons was thereafter re-charged with the same offense, and this time the District Justice, rejecting Lyons’ plea of double jeopardy, returned the case to court for trial. There, a motion to quash on double jeopardy grounds was dismissed, and Lyons was subsequently found guilty. Post-trial motions were denied, and Lyons was sentenced to pay a fine of one thousand ($1,000) dollars. This appeal followed.

Because appellant’s offense was summary in nature, we are constrained to agree that his second trial was held in violation of principles of double jeopardy. Having once been placed on trial in a court having jurisdiction to determine guilt or innocence and the charge having been dismissed, appellant could not thereafter be again placed on trial for the same offense. See Commonwealth v. Grazier, 481 Pa. 622, 630-631, 393 A.2d 335, 339 (1978); In Interest of R.R., 317 Pa.Super. 334, 342, 464 A.2d 348, 352 (1983); Commonwealth v. Mihaltian, 41 D. & C. 3d 270, 272 (1986). It follows that the judgment of sentence imposed against appellant cannot stand.

Judgment of sentence reversed; appellant is discharged.

      . The District Attorney, in the interim, had issued a memorandum stating that such offenses were to be deemed misdemeanors.


source: Caselaw Access Project

author: MONTEMURO, Judge:

license: Public Domain

text:
    576 A.2d 1107
    Thomas T. KOHLER, Appellant, v. McCRORY STORES, Appellee.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed July 3, 1990.

      Allen H. Smith, York, for appellant.
    Steven M. Carr, York, for appellee.
    Before OLSZEWSKI, MONTEMURO and FORD ELLIOTT, JJ.
   MONTEMURO, Judge:

This case comes before us from an Order of the Court of Common Pleas of York County dismissing appellant’s complaint in trespass. We reverse.

Appellant was employed by appellee as a freight handler in June of 1987 when the motorized jack he was operating was rammed from the rear by one David Raymond Christner, another employee of appellee’s who was also operating a jack, and whose dislike of appellant was allegedly the motivation for the attack. Appellant was injured in the incident, and, unable to work, he began receiving Worker’s Compensation from appellee. When, approximately one year later, appellee successfully petitioned for termination of the payments, appellant filed the instant suit, alleging, inter alia, appellee’s negligence in failing to provide him with a place to work, safe from Christner’s attacks.

Appellee’s preliminary objections averred that the court of common pleas was without jurisdiction to hear the case as the action was barred by appellant’s previous acceptance of compensation payments, and by his failure to appeal the termination order. The trial court agreed, and this appeal followed.

Under the Worker’s Compensation Act, recompense is awarded to those who receive injuries “in the course of [their] employment and related thereto.” 77 Pa.S.A. § 411(1). The Act made this remedy an exclusive one, “in place of all other liability to such employees.” 77 Pa.S.A. § 481(a). There is, however, an intentional tort exception to this rule: where the injury is “caused by an act of a third person intended to injure the employe because of reasons personal to him, “77 Pa.S.A. § 411(1) the harm is not compensable as being “in the course of ... employment.”

The trial court, dismissed appellant’s complaint on the basis of the ruling made by the referee of the Compensation Board before which appellee had brought its petition to terminate. Specifically, the referee found that appellant had sustained a work related injury, and had received compensation therefor. The trial court reasoned that because the harm had been ruled compensable, it could not, “by definition have arisen from ill-will. Conversely, if it arises from ill will it cannot be compensable.” (T.C.O. at 10). Appellant now argues that because there was no adjudication on the issue of whether the attack on him was or was not covered by the tort exception provision, his action against appellee is properly brought.

In support of his position, appellant refers us to Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). There the appellant, a police officer, was severely beaten by a local deputy constable who harbored a grudge against the appellant. Mr. Mike received worker’s compensation payments, and sued his employer, claiming, as does appellant herein, that the Borough had failed to provide him with a safe workplace.

We find appellant’s citation to Mike directly relevant to his own situation, since both the fact pattern, insofar as we know it, and the arguments in opposition are similar in many respects. In Mike, the employer claimed that receipt of worker’s compensation payments barred suit in tort, as such payments provided his only avenue of relief. However, in addressing that argument, we found that acceptanee of payments under the Act was not determinative, as any funds received could “be duly credited against any recovery from the ... negligence action.” Id., 279 Pa.Superior Ct. at 393, 421 A.2d at 256. However, the trial court herein read our decision as a misinterpretation of Dolan v. Linton’s Lunch, 397 Pa. 114, 152 A.2d 887 (1959). In that case the appellant, as here, pleaded that he was not covered by the Act, having been removed from its ambit by the personal animosity of his fellow worker/assailant. Our supreme court ruled what no one now disputes, that Worker’s Compensation payments and tort damages are mutually exclusive remedies. In fact, the solution offered by the Mike court is clearly responsive to this notion of exclusivity, since the expectation is that funds received under the Act, which neither Mr. Mike nor the appellant herein requested, would be repaid out of damages obtained in that litigation.

Whether appellant’s injury is subsumed under the rubric “work-related,” whether it is the result of ill will borne him by Mr. Christner, or whether, indeed, it is even an injury at all was never demonstrated by evidence, judgment in this matter having been entered on pleadings alone. We therefore reverse and remand for proceedings consistent with our holding in Mike v. Borough of Aliquippa, supra.

Reversed and remanded. Jurisdiction is relinquished.

      . Because of appellant’s claim that he is not covered by the Act, his failure to appeal the decision of the referee terminating payment is not fatal to his right to bring suit.


author: CERCONE, Judge:

text:
    576 A.2d 1108
    COMMONWEALTH of Pennsylvania v. Nelson C. CLEVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 14, 1990.
    Filed July 3, 1990.

      Blake E. Martin, Public Defender, Chambersburg, for appellant.
    David W. Rahauser, Asst. Dist. Atty., Chambersburg, for Com., appellee.
    Before TAMILIA, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after appellant, Nelson C. Clever, pled guilty to one count of corruption of minors. For the reasons set forth below, we affirm the action of the trial court.

The record in the instant case discloses that appellant was initially charged, in connection with acts he perpetrated on his children, with one count each of involuntary deviate sexual intercourse, indecent assault, corruption of minors, endangering the welfare of children, and with two counts of simple assault. Because the victims, appellant’s daughters, did not wish to testify against their father, the lower court accepted a negotiated plea agreement under which appellant pled nolo contendere to one count of corruption of minors and the Commonwealth nol-prossed the remaining charges. On September 27, 1989, appellant was sentenced to a term of incarceration of between two and one-half (2V2) and five (5) years to be served in a state correctional institution. Appellant’s motion for modification of sentence was denied October 11, 1989 and the instant timely appeal followed on October 27, 1989.

Appellant has raised one issue for our consideration: whether the sentence imposed was so manifestly excessive that it constituted an abuse of discretion by the trial court. The gravamen of appellant’s complaint is that he was sentenced to a term of incarceration in excess of that recommended by the Sentencing Guidelines, that he would have preferred to serve his sentence in the county jail rather than in a state institution, and that the trial court did not properly explain the rationale for the sentence imposed. Although appellant does not contend that the sentence imposed was beyond the statutory range for the crime charged, he nevertheless argues that the sentence was illegal in his case because the sentencing court failed to provide a contemporaneous written statement explaining the reasons for deviating from the Sentencing Guidelines.

Appellant challenges the discretionary aspects of his sentence and his brief correctly includes a separate statement which attempts to demonstrate that a substantial question exists regarding the appropriateness of the sentence imposed as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). The determination of whether a particular issue constitutes a substantial question must be evaluated on a case by case basis. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987). “However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” Id. We find that appellant’s averments advance at least a colorable argument that the fundamental norms underlying the sentencing process have been compromised in his case. We may therefore consider the merits of appellant’s claim.

Sentencing is a matter vested in the sound discretion of the trial court and the lower court’s judgment of sentence will not be disturbed by an appellate court absent an abuse of discretion. Commonwealth v. Green, 494 Pa. 406, 431 A.2d 918 (1981); Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987), allocatur denied 516 Pa. 632, 533 A.2d 91 (1988). To constitute an abuse of discretion, a sentence must either exceed the statutory limits or be patently excessive. Commonwealth v. White, 341 Pa.Super. 261, 491 A.2d 252 (1985); Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). When reviewing sentencing matters, we must accord the sentencing court great weight as it is in the best position to view the defendant’s character, displays of remorse, defiance or indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 362 Pa.Super. 163, 167, 523 A.2d 1134, 1135 (1987), allocatur denied 515 Pa. 619, 531 A.2d 427 (1987).

Appellant argues, inter alia, that the lower court failed to provide an appropriate contemporaneous written statement explaining the reasons for sentencing outside the Guidelines as required by Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984). Contrary to appellant’s contentions, however, the record certified on appeal contains a copy of a contemporaneous written statement completed by the sentencing court at the time the sentence was imposed. Although the written explanation for departure from the Sentencing Guidelines and the order imposing sentence were not filed by the lower court clerk on the same date, both were signed and dated by the lower court judge on September 27, 1989. Furthermore, the requirement of a contemporaneous written statement explaining any deviation from the Sentencing Guidelines is satisfied when the sentencing judge states the reasons for his actions on the record and in the defendant’s presence. Commonwealth v. Smith, 369 Pa.Super. 1, 6, 534 A.2d 836, 838 (1987), citing Commonwealth v. Chesson, 353 Pa.Super. 255, 509 A.2d 875 (1986) and Commonwealth v. Royer, supra. The record of the sentencing hearing shows that the lower court provided such an explanation to appellant on the record. We therefore conclude that appellant is not entitled to relief on this basis.

In the case sub judice, the sentence imposed is within the statutory limits and cannot on this ground be considered inordinate. Our supreme court has recently ruled that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant information regarding a defendant’s character along with mitigating statutory factors. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988) . In the instant case, the record clearly indicates that the lower court had the benefit of a pre-sentence report. Further, the sentencing judge conducted a lengthy verbal exchange with appellant at the sentencing hearing during which the pre-sentence report and the sentencing rationale employed were thoroughly discussed. The requirement that the lower court explain the rationale for the sentence imposed as set forth in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and clarified by Devers, supra, has been more than satisfied. We find that appellant has not received manifestly excessive punishment and that the sentencing court provided an adequate explanation for the sentence imposed.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 6301.

      . Although Royer was decided under the former Sentencing Guidelines, the current Guidelines also contain a provision requiring the sentencing court to provide a “contemporaneous written statement of the reason or reasons" for the deviation from the Guidelines. 204 Pa.Code § 303.1(h) (1989). See 42 Pa.C.S.A. § 9721 (reproducing the current provisions of the Sentencing Guidelines).


author: FORD ELLIOTT, Judge:

text:
    576 A.2d 1111
    COMMONWEALTH of Pennsylvania v. Manuel POLANCO, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 18, 1990.
    Decided June 15, 1990.

      John R. Gailey, Jr., York, for appellant.
    Gerald A. Lord, Asst. Dist. Atty., York, for Com., appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

Appeal is taken from the judgment of sentence of a mandatory three to six years imprisonment for the delivery of cocaine. Appellant alleges that the trial court erred in its application of the mandatory provisions of 18 Pa.C.S. § 7508(a)(3)©. We affirm.

On October 11, 1988, two complaints were filed by the York City Police Department charging appellant with having delivered 0.96 grams of cocaine on September 15, 1988, and 5.65 grams of cocaine on September 29, 1988, to an undercover agent. The two complaints were combined, along with a conspiracy count, in a single criminal information by the District Attorney’s Office. Appellant pleaded guilty to the three counts, and on June 1, 1989, and was sentenced as follows:

(1) with respect to count number three where appellant was charged with delivery of drugs on September 15, 1988,—imprisonment for not less than one nor more than two years;
(2) with respect to count number one where appellant was charged with delivery of drugs on September 29, 1988,—imprisonment for not less than three nor more than six years and a $5000.00 fine, because it is a second offense.
(3) with respect to the conspiracy count,—imprisonment for not less than three nor more than six years. All sentences were to run concurrently. A timely motion to reconsider the sentence was filed, and on June 15, 1989, that

motion was denied. This appeal followed.

Appellant argues that the trial court improperly applied the mandatory minimum penalty provisions of 18 Pa.C.S. § 7508(a)(3)(i) in sentencing him to three to six years imprisonment on the September 29, 1988 delivery conviction. The relevant portion of § 7508(a)(3)(i) is as follows:

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

(Emphasis supplied). Appellant contends that the mandatory minimum sentence of three years imprisonment applies under subsection (3)(i) only where the first conviction was also at least two grams and less than ten grams; and, therefore, since the court is relying on the September 15, 1988 delivery of less than one gram of cocaine as a first conviction under (3)(i), he has in effect been improperly sentenced.

We disagree with appellant’s interpretation.

Initially we note that the right to appellate review of the issue of whether the trial court improperly complied with this section is more properly left to the Commonwealth under § 7508(c) and (d):

(c) Mandatory sentencing.—There shall be no authority in any court to impose on an offender to which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supercede the mandatory sentences provided herein____
(d) Appellate review.—If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

(Emphasis supplied).

Having expressed our concern with appellant’s ability to challenge the application of this statute on appeal as a matter of right, we will nonetheless address the issue presented by appellant because the trial court in applying § 7508, felt that it was without discretion to sentence appellant to any term less than the mandatory minimum.

The mandatory minimum penalties provided by § 7508 were designed by the legislature to compel trial courts to impose at least a minimum period of confinement for violations of section (30) of The Controlled Substance, Drug, Device and Cosmetic Act. The clear intent of the legislature in enacting these provisions was to punish drug dealing and drug trafficking with mandatory terms of imprisonment. A court, within its discretion, may always sentence to more than the mandatory minimum. The statutory maximum sentence for a violation of section (30) for a first or subsequent conviction, regardless of the amount of the substance involved, is imprisonment for up to fifteen years and a $250,000 fine or both.

Appellant contends that the language of § 7508(a)(3)(i) “upon conviction for another offense subject to sentencing under this section” implies that in order to bring the mandatory sentence for another offense into play, the appellant had to have a prior conviction of at least two grams or more. We find this to be an incorrect reading of the statute.

In ascertaining the meaning of a statute, “we are required to consider the intent of the legislature and are permitted to examine the practical consequences of a particular interpretation. Commonwealth v. Stewart, 375 Pa.Super. 585, 544 A.2d 1384 (1988). We are to presume that the General Assembly did not intend a result that is absurd or unreasonable. Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229 (1989).” Commonwealth v. Lisboy, 392 Pa.Super. 411 at 415, 573 A.2d 222 at 223 (1990).

In line with this mandate, we interpret the particular language in question to mean that a person, who has been convicted of delivering more than two grams and less than ten grams of cocaine and whose conviction constitutes his first offense under section (30), must receive at least one year imprisonment. If, on the other hand, a person who has been convicted of delivering more than two grams and less than ten grams of cocaine and his conviction constitutes another offense under section (30), must then receive at least three years imprisonment. It is whether there was a prior conviction for violating section (30)—regardless of the amount of drugs involved—that determines the term of the mandatory minimum sentence.

In the instant case, appellant had a prior conviction for violating Section (30). This violation consisted of the September 15, 1988 delivery of cocaine. Appellant was then convicted of another violation of Section (30). This violation consisted of the September 29, 1988 delivery of 5.65 grams of cocaine. Since the amount involved was more than two grams and less than ten grams, and since appellant had a prior conviction for violating Section (30), the trial court was compelled to sentence appellant to at least three years imprisonment. Though it could have sentenced appellant to a longer period of incarceration, the trial court deemed the mandatory minimum sentence to be sufficient.

Additionally, appellant argues that, for sentencing purposes, his conduct of delivering cocaine on two separate occasions should be considered as a single criminal episode or transaction. This court discussed this issue in Commonwealth v. Fries, 362 Pa.Super. 163, 523 A.2d 1134 (1987). The standard to be used in determining whether crimes constitute a transaction for sentencing purposes is whether the acts of a defendant are temporally continuous and part of the same episode. Crimes which have items of similarity, identity, and repetitiveness but which are separated by periods of non-criminal behavior are not equated with a single transaction or episode. In this case, there were two distinct deliveries of cocaine separated by a span of two weeks. The trial court, following the legislative intent and mandate, properly sentenced appellant as a repeat offender of section (30).

Judgment of sentence affirmed.

      . We are aware of House Bill No. 1274, Session of 1989, which inter alia, proposes a change in 18 Pa.C.S. § 7508(a)(3)(i). The amended clause would state that, “[upon the first conviction] when the [amount of] aggregate weight of the compound or mixture containing the substance involved is a least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity [and, upon conviction for another offense subject to sentencing under this section]; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;" (Emphasis in original).
      This bill has been in the House Rules Committee since December 13, 1989 and remains there at the time of this writing. This proposed amendment has no effect on our disposition of the instant case.


text:
    576 A.2d 1114
    The ARCADIA COMPANY, INC., a Pennsylvania Corporation v. Peter P. PELES, Jr. and Carol D. Peles his Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Decided June 19, 1990.

      John A. Hanna, Indiana, for appellants.
    Beverly A. Gazza, Indiana, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment entered following a bench trial in which plaintiff/appellee, Arcadia Company, Inc. (“Arcadia”) was granted relief in an action in ejectment brought against defendants/appellants, Peter P. Peles, Jr. and Carol D. Peles (“the Peleses”). For the reasons set forth below, we affirm.

The record reveals that Arcadia purchased a four hundred sixty (460) acre tract of land located in Indiana County from the heirs of Asa White in 1980. However, appellants contend that they have title to and own a portion of the land claimed by Arcadia. Specifically, appellants claim ownership of thirty-three and sixty-one one-hundredths (33.61) acres of land located partially in Banks and partially in Montgomery Townships. As a result of the ownership dispute, appellants filed an action to quiet title. On July 11, 1988, Arcadia responded by instituting an action in ejectment and filing a petition for intervention in the quiet title proceeding. The two causes of action were consolidated for trial by order’ dated March 1, 1989.

At a bench trial held April 26, 1989, Arcadia presented evidence of a chain of title establishing record ownership to that portion of the land in question which is located in Banks Township (hereinafter the “disputed premises”). Arcadia also offered evidence to establish record ownership to the larger tract of land in Banks Township of which the disputed premises is a part. The Peleses countered by introducing evidence that their predecessor in title acquired the relatively small portion of the 33.61-acre tract located in Montgomery Township at a tax sale in 1965. Arcadia does not, however, claim ownership of any land in Montgomery Township. The Peleses argue that they acquired the disputed premises because they have continually utilized the entirety of the 33.61-acre tract, of which the disputed premises is a part, for twenty-nine (29) years, in a manner consistent with a claim to title by adverse possession.

On June 28, 1989, the lower court ruled that Arcadia is the owner of the disputed premises in Banks Township. Specifically, the lower court found that the Peleses failed to demonstrate that they openly and notoriously possessed the disputed premises for the requisite term of years. The Peleses’ exceptions to the decree nisi were denied on August 1, 1989. No praecipe for entry of judgment in favor of Arcadia and against the Peleses was docketed until October 18, 1989. The Peleses did, however, file a notice of appeal on August 30, 1989. We note that an appeal is more properly taken after a decree nisi has been reduced to judgment as required by Pa. R.A.P., Rule 301, 42 Pa. C.S.A. Nevertheless, a case in which the notice of appeal was filed prior to the entry of judgment is still validly before the appellate court. See Pa. R.A.P., Rule 905(a), 42 Pa. C.S.A. See also McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989) (iquoting Commonwealth v. Allen, 278 Pa.Super. 501, 504-05 n. 3, 420 A.2d 653, 654 n. 3 (1980), “in the interests of judicial economy, we shall ‘regard as done that which ought to have been done’ ”).

The case sub judice raises four issues for our review: (1) whether the lower court erred in finding that the Peleses did not acquire title to the disputed premises by adverse possession; (2) whether the Peleses and their predecessors in possession obtained legal title to the disputed premises through the payment of taxes on the whole of the contested tract of land and by using the entire area in question through the prescriptive period; (3) whether the Peleses and their predecessors in possession acquired constructive possession of the disputed premises under the legal doctrine of “color of title”; and (4) whether adverse possession of the surface for twenty-one (21) years will confer title to the underlying coal reserves where the mineral estate has not been severed from the surface estate. We note initially that the factual findings of a trial judge sitting without a jury carry the same weight as a jury verdict, and we will not disturb those findings on appeal absent an error of law or abuse of discretion. Pato v. Cemuska, 342 Pa.Super. 609, 612, 493 A.2d 758, 759 (1985). We must accept the findings of the court below with respect to the credibility of witnesses. Bigham v. Wenschhof 295 Pa.Super. 146, 149, 441 A.2d 391, 392 (1982).

Appellants first contend that they acquired title to the disputed premises in Banks Township through adverse possession. Mindful of the standard of review set forth above, we have scrutinized the parties’ briefs and the record on appeal. Finding that the lower court’s discussion and resolution of the argument concerning appellant’s first claim is both clear and concise, we affirm with regard to this issue on the basis of the lower court opinion filed June 28, 1989.

Next, appellants argue that through a different form of adverse possession, they and their predecessors in possession obtained legal title to the entire 33.61-acre tract through the payment of taxes, and through their occupation and use of parts of the disputed premises during the prescriptive period. In support of this claim, appellants cite Criswell v. Altemus, 7 Watts 565 (1838), as well as several other cases from the mid-1800's, for the following proposition: an intruder may enter an unseated tract of land without color of title, and work a disseisin so as to ultimately vest possession of and title to the entire tract in himself. This is accomplished by exercising such acts of ownership as erecting buildings, occupying the land and improving parts of the tract, coupled with paying the taxes assessed on the entire tract for a period of twenty-one years. Id. at 580. McCaffrey v. Fisher, 4 Watts & Serg. 181, 182 (1842) imposes the additional requirement that the taxes must be paid with the acquiescence of the owner of record. While we agree with appellants’ interpretation of Criswell and its progeny, we find that the record does not provide verification for appellants’ factual allegations in support of their claim to the disputed premises.

The record indicates that Indiana County Tax Assessment No. 35-15-111 is the designation for the entire four hundred sixty (460) acre tract located in Banks Township of which the disputed premises is a part. N.T. 4/26/89 at 28-29. This is the property to which Arcadia holds legal title of record. The forty-seven (47) acres in Montgomery Township which the Peleses’ predecessor in interest acquired by tax sale is identified by a different tax assessment number. Id. at 29. From 1967 until 1984, no part of the disputed premises was ever assessed to appellants or to their predecessors in title, id. at 39, and it was the understanding of the Indiana County Tax Assessment Office that the northern boundary of the Peleses’ property was congruent with the Banks Township line. Id. at 48. In 1984, however, the tax assessment map was changed so that the disputed premises may have been taxed to both the Peleses and to Arcadia. Id. at 36-39.

Although the record thus contains some support for appellant’s contentions that they have paid taxes on the disputed premises, appellants have provided no documentation that such taxes were paid on the entire disputed premises for the requisite twenty-one (21) year period. Even if appellants did pay taxes on the disputed premises, they have failed to demonstrate that they did so with the acquiescence of Arcadia. Testimony indicated that Arcadia would not have been given notice of the change in the tax records that occurred in 1984. Id. at 39. Further, appellants have introduced no evidence showing that Arcadia ceased at any time to pay the taxes on the disputed premises and permitted appellants to shoulder this burden in their stead. Consequently, we cannot find that appellants have acquired title to the land in Banks Township under the rule set forth in Criswell v. Altemus and McCaffrey v. Fisher, supra.

The third claim raised by appellants is that they and their predecessors in possession acquired “constructive possession” of the entire disputed premises under the legal doctrine of “color of title.” An entry is by “color of title” when it is made under a bona fide, and not pretended, claim to title which actually exists in another. Dice v. Reese, 342 Pa. 379, 382, 21 A.2d 89, 91 (1941). “Color of title” is merely the appearance of title without its reality, saving its possessor only from the imputation of being a naked trespasser. Id. Although it contributes nothing to the fiber of title as affecting the adverse character of possession, id., a disseisor who enters upon and cultivates part of a tract for the limitations period (i.e., for twenty-one years), may thereby hold constructive possession of the whole tract if his entry was by color of title. Ege v. Medlar, 82 Pa. 86, 99 (1876).

Our law is clear, however, that the possession of one who has a colorable title is co-extensive with the boundaries of the instrument under which he claims only in the absence of any actual possession by the true owner. Cluggage v. Duncan, 1 Serg. & Rawle 111, 118 (1844). In a case where both parties claim to be seised of the same parcel of land,

[and where one party] enters upon unoccupied land, under a deed or title, and holds adversely, his possession is construed to be coextensive with his deed or title, and the true owner will be deemed to be disseised to the extent of the boundaries described in that title. Still, his possession beyond the limits of his actual occupancy is only constructive. If the true owner be at the same time in actual possession of part of the land, claiming title to the whole, he has the constructive possession of all the land not in the actual possession of the intruder, and this though the owner’s actual possession is not within the limits of the defective title.

Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 159-60, 360 A.2d 209, 213-14 (1976), quoting Hunnicutt v. Peyton, 102 U.S. 333, 368, 26 L.Ed. 113 (1880).

Despite their contentions to the contrary, the record clearly indicates that appellants never obtained color of title to the disputed premises. The 1965 tax deed on which appellants rely for their assertion of color of title applies only to land situated in Montgomery Township. The disputed premises is located in Banks Township and is simply not included under the Peleses’ tax deed. The record shows that there is some confusion as to whether the deed executed in 1984 conveying land to the appellants from Margaret Peles included the disputed premises. However, appellants have not been in possession of this land for the requisite twenty-one year period.

While appellants have produced no evidence demonstrating that the disputed premises was ever out of Arcadia’s possession within the meaning of the caselaw cited above, Arcadia has made an ample showing to refute appellants’ contentions in this regard. Between 1972 and 1977, Arcadia collected tonnage royalties from several different coal companies which were authorized either to mine coal on the disputed premises, or to haul coal across the land. N.T. 4/26/89 at 69-70. In 1982, Consolidated Gas Company paid Arcadia for a right-of-way across the property in question. Id. at 69. Arcadia produced a survey at the trial showing that the pipeline crossed the disputed premises. Id. at 70.

Appellants have thus failed to substantiate their claim to constructive possession under color of title. As appellants have not succeeded in demonstrating their right to title by adverse possession under any of the three theories raised in this appeal, we need not address their fourth contention to determine whether they acquired the mineral rights to the disputed premises by adverse possession.

The judgment entered October 18, 1989 is affirmed.

      . See McArthur, et al. v. Kitchen, 77 Pa. 62, 70 (1874); Baker v. Findley, 20 Pa. 163, 169 (1852); Fitch v. Mann, 8 Pa. 503, 507 (1848); Bishop v. Lee, 3 Pa. 214, 216 (1846); McCaffrey v. Fisher, 4 Watts & Serg. 181, 182 (1842).


author: CAVANAUGH, Judge:

text:
    576 A.2d 1118
    HARSCO CORPORATION, Appellant, v. Richard A. KLEIN and The Burke Company, Appellees.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Decided June 20, 1990.

      J. Robert Kirk, Washington, D.C., for appellant.
    Dennis J. Lewis, Pittsburgh, for appellees.
    Before CAVANAUGH, DEL SOLE and HUDOCK, JJ.
   CAVANAUGH, Judge:

This issue in this case is whether the court below properly denied the motion for a preliminary injunction filed by the appellant, Harsco Corporation.

In July, 1970, Richard A. Klein, one of the appellees herein, commenced working for Patent Scaffolding Company, a subdivision of Harsco Corporation which conducts business on a world-wide basis. Patent Scaffolding Company is engaged in the business of marketing concrete shoring and forming systems as well as scaffolding systems and related products and services. Patent Scaffolding has branch offices located throughout the United States, including a branch in Pittsburgh.

Mr. Klein resides in Allegheny County and was hired at the Pittsburgh branch office as a sales engineer, originally working as a salesman of concrete forming products. Klein was promoted from salesman to branch manager of Patent Scaffolding’s Pittsburgh office in January, 1974. In February, 1983 he was promoted to regional manager in charge of Patent Scaffolding’s central region which covered a large multi-state area. Finally, in January, 1989 he was assigned the position of national sales manager and was one of only two national sales managers employed by Patent Scaffolding in the United States. As national sales manager, Klein’s position included the exploration of new markets for the products and services provided by his employer.

Mr. Klein became dissatisfied with his employment in 1989 because his salary was not increased, although his responsibilities as national sales manager were. In addition, he disagreed with senior management as to the direction that a new sales program was to take. On July 31, 1989 Klein retired from the company where he had worked for some nineteen years. At that time he was fifty-seven years old. Shortly thereafter, he started working for The Burke Company, also an appellee herein, which is in direct competition with the appellant in the Pittsburgh area where Klein was to work. Mr. Klein confirmed his employment with Burke by letter dated August 4, 1989.

The dispute between the parties has its genesis in an employment agreement between Patent Scaffolding and Klein dated September 8, 1970, although Klein signed it on July 19, 1970. He started working for Patent Scaffolding on July 16, 1970. In the employment contract Mr. Klein agreed, inter alia:

To forebear, during my employment and for all future times subsequent thereto, from disclosing to any person, firm or corporation any confidential information or trade secrets pertaining to the business methods or procedures, apparatus or methods of manufacture or otherwise used by my Employer in conducting its business and that I will not use same on my own behalf except in the course of my employment with my Employer.
For a period of two and one-half years after the termination of my employment with Employer, I will not, within a radius of 100 miles of Pittsburgh, Pa. (being part of the area in which the Employer is conducting its business) directly or indirectly own, manage, operate, control, be employed by, participate in or be connected in any manner with the ownership, management, operation or conduct of any business similar to that engaged in by the Employer. During the period herein above stated, I will not divert or attempt to divert from the Employer, any customers or accounts, or hire any of the Employer’s employees. In the event I violate or threaten to violate the provisions of this paragraph, the Employer may enjoin such violation or threatened violation. I represent to the Employer that the restrictions recited above are reasonable both to time limitations and geographical areas because of my knowledge of the nature of the Employer’s business and the marketing areas óf its products.

The agreement expressly stated that the parties intended to be legally bound by its terms.

In August, 1989 appellant filed a complaint in equity against Richard A. Klein and The Burke Company, alleging a breach of contract and breach of fiduciary duty by Klein and tortious interference with contractual business relations by Klein and Burke, and alleging an unlawful conspiracy by Klein and The Burke Company. The action also sought:

to enjoin immediate and irreparable harm now being suffered by Plaintiff, the HARSCO Corporation (“HAR-SCO”), by virtue of the employment of Defendant Richard A. Klein by one of HARSCO’s major competitors, Defendant The Burke Company (“Burke”), and by Defendant Klein’s communication, or threat of communication, of sensitive trade secrets to Burke, all in direct violation of covenants and duties owed by Defendants Klein and Burke to HARSCO.

On August 17, 1989, the court below entered an order granting the appellant a special injunction before a hearing was held. Following a hearing before Martin, J. the court entered an order on September 15, 1989 denying the appellant’s motion for a preliminary injunction and vacating the prior order granting a temporary injunction. It is from this order that an appeal has been taken to this court.

Our scope of review from an order denying a preliminary injunction is very narrow. Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984). An appellate court will interfere with the decision of the chancellor only if it is clear that no grounds exist to support the decree or that the rule of law relied upon was patently erroneous or misapplied. Intraworld, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316 (1975). “In order to sustain a preliminary injunction, the plaintiffs right to relief must be clear, the need for relief must be immediate, and the injury must be irreparable if the injunction is not granted.” Zebra v. Pittsburgh School District, 449 Pa. 432, 437, 296 A.2d 748, 750 (1972). See also, Bell Fuel Corp. v. Cattolico, 375 Pa.Super. 238, 544 A.2d 450 (1988); appeal denied by Bell Fuel Corp. v. Cattolico, 520 Pa. 612, 554 A.2d 505 (1989).

The Supreme Court noted in Hospital Association v. Commonwealth, Department of Public Welfare, 495 Pa. 225, 233-4, 433 A.2d 450, 454 (1981):

“[A] preliminary injunction is somewhat like a judgment and execution before trial ...” Herman v. Dixon, 393 Pa. 33, 36, 141 A.2d 576, 577 (1958). Thus, although an application for such relief is addressed to a court’s equitable discretion, the relief should issue only where
“there is an urgent necessity to avoid injury which cannot be compensated for by damages and should never be awarded except when the rights of the plaintiff are clear. Also, it should in no event ever be issued unless greater injury will be done by refusing it than in granting it.”
Id., 393 Pa. at 36-37, 141 A.2d at 577.
Despite these stringent standards, a party seeking appellate relief from a decree granting (or refusing) a preliminary injunction, instead of “waiting for a final determination on the merits,” incurs what has been termed an “additional burden.” Parker v. Philadelphia, 391 Pa. 242, 247, 137 A.2d 343, 346 (1958).

Our task is to scan the record to determine if the denial of the appellant’s request for preliminary injunction was based upon apparently reasonable grounds. We are guided in our determination of the existence of reasonable grounds for denying the injunction by the rule that the plaintiff must satisfy the following rigorous standards before an injunction may issue: (1) it is necessary to prevent immediate and irreparable harm which could not be compensated by damages; (2) greater injury would result by refusing it than by granting it; (3) it properly restores the parties to their status as it existed immediately prior to the alleged wrongful conduct; and (4) the activity sought to be restrained is actionable and an injunction is reasonably suited to abate that activity. Blair Design and Construction Co. v. Kalimon, 366 Pa.Super. 194, 530 A.2d 1357 (1987).

The court below properly refused to issue a preliminary injunction. The court determined, inter alia, that there was no likelihood of immediate irreparable harm to Harsco Corporation by refusing the injunction. Mr. Klein was the sales manager of a large company dealing in products and services used in the building industry. The record does not indicate any uniqueness in Patent Scaffolding’s product or services that could be characterized as confidential in nature. While Mr. Klein was national sales manager when he resigned from Patent Scaffolding, he was not at that time dealing directly with customers and in any event, the customers in the building trade would be generally known to all of the firms in the same business as the appellant.

Rollins Protective Services v. Shaffer Co., 383 Pa.Super. 598, 557 A.2d 413 (1989) involved an employment contract which contained a restrictive covenant prohibiting the defendant from engaging in competitive employment for two years within a fity-mile radius of Pittsburgh in the event he left the plaintiff’s employment. The defendant terminated his employmént and accepted a position with a competing security company. The chancellor found the employment contract to be valid but refused to issue a preliminary injunction as there was no proof of irreparable harm. The record established that the employer had not “stolen” Rollins’ customers and had not knowingly solicited Rollins’ customers. We affirmed, holding that the appellant failed to prove any harm resulting from violation of the non-competition clause of the employment agreement. Del Sole, J. filed a concurring opinion setting forth his view that before a preliminary injunction may issue there must be actual proof of irreparable harm.

The appellant relies on Boykins v. City of Reading, 128 Pa.Cmwlth. 154, 562 A.2d 1027 (1989) to support its view that the court below based its decision on a palpable error of law. In Boykins, the owners and operators of a club in Reading, sought to enjoin the City of Reading, the mayor and chief of police from enforcing a local ordinance. The court below refused to issue the injunction on the grounds that the plaintiffs had not shown irreparable harm which could not be compensated by damages. The Commonwealth Court overruled the court below as it overlooked the Political Subdivision Tort Claims Act which granted immunity to the city, mayor and chief. In the instant case, monetary damages to the appellant are not precluded. Although we hold that the appellant is not entitled to a preliminary injunction, we do not reach the question of the validity of the employment contract or the issues of tortious misconduct by the appellees.

The appellant stresses that it had a protectable and legitimate business interest in the non-competition agreement which it claims was enforceable by a preliminary injunction. In Boldt Machinery & Tools, Inc. v. Wallace, 469 Pa. 504, 366 A.2d 902 (1976), on which the appellant relies, Mr. Boldt sought to restrain competition from a former salesman who had agreed not to sell similar goods in the same territory during a period of five years after his separation from Boldt. Shortly after his separation, defendant went to work for a competitor selling similar goods in the territory. The court below enjoined the defendant’s conduct in violation of his promise not to compete. In affirming the order, the Supreme Court held that the restrictive covenant was to be interpreted “in light of its obvious purpose, the protection of Boldt against loss of customers and business as a result of Wallace’s efforts on behalf of another seller of industrial machinery.” 469 Pa. at 511, 366 A.2d at 905. See also, Sidco Paper Co. v. Aaron, 465 Pa. 586, 351 A.2d 250 (1976).

Even if it were established that the appellant had a legitimate business interest to protect, all four factors must coalesce before a court is justified in issuing a preliminary injunction. Rollins Protective Services Co. v. Shaffer Co., supra. Clearly, in the matter before us, there was absent the essential factor of irreparable damages. There were reasonable grounds for refusal to issue the injunction and we will not interfere with the court’s exercise of discretion.

One final word must be directed to the appellant’s arguments that the court below erred in failing to acknowledge Klein’s common-law fiduciary duty to Harsco Corporation and The Burke Company’s common-law duty not to interfere with the contractual relationship between Harsco Corporation and Richard A. Klein. We point out that any causes of action based on alleged violations of duty by the appellees continue. It remains to be adjudicated whether Klein has violated his employment contract or whether The Burke Company has tortiously interfered with the contractual relationship between Harsco Corporation and Klein. In reviewing the refusal to issue a preliminary injunction, we do not inquire into the merits of the controversy, but only examine the record to determine if there were any reasonable grounds for the action of the court below. Willman v. Children’s Hospital of Pittsburgh, 505 Pa. 263, 479 A.2d 452 (1984).

Order affirmed.

      . Mr. Klein testified that during the first seven months of 1989, he received only his base salary. He had asked for an increase of $10,000.00 and received nothing. In years prior to 1989, he always received a raise without asking. He further testified:
      Q. Did you receive any review at all or any raise at all in May of 1989 in this new position of national sales manager?
      A. No. I was promised in January I would get it in May. I did not.
      Q. You said that you felt, in your other testimony by the plaintiffs, that you were being set up for a scapegoat. Would you explain why you felt that way?
      A. Patent has developed a posture in the last two or three years where they have sacrificed a few people for numbers and I felt that if the resources were withheld to make this plan work, and it was clear to us who were trying to manage the program that resources were being withheld, that sooner or later there had to be somebody to take a fall. We were the obvious ones. We were in our 50’s and that seemed to be getting to be a bad time to be a scapegoat.
      Q. What prompted you to consider leaving Patent Scaffolding?
      A. That was one of the major reasons.
      Q. Were there any other reasons?
      A. Yes.
      Q. What are they?
      A. I felt that I was cut out of the mainstream. I had been a manager since 1974. Now I had the name of a manager and no authority to get a job done that I was charged to do, absolutely no authority. I managed very well and very profitably for Patent Scaffolding for 15 years. I made them millions of dollars in profit. They gave me a bigger job and with greater responsibility, no raise and no authority to accomplish it at all.

      . An appeal may be taken as of right from an order denying an injunction. Pa. R.A.P. 311(a)(4).

      . 42 Pa.C.S. §§ 8541 and 8546.

      . Appellees, in their brief, make several references to the alleged invalidity of the restrictive employment contract because of lack of consideration. Without deciding the issue, it appears that the contract containing the restrictive covenant is prima facie valid. The fact that it was not signed until a few days after Mr. Klein started to work for Patent Scaffolding in July, 1970, does not per se make it invalid for lack of consideration. The Supreme Court has held that an employment contract containing covenants not to compete signed a few days after employment commences, may be ancillary to the underlying employment contract and valid. Beneficial Finance Co. of Lebanon v. Becker, 422 Pa. 531, 222 A.2d 873 (1966).

      . It appears that when The Burke Company hired Mr. Klein, it was fully aware of the contractual relationship between Harsco Corporation and Mr. Klein, as The Burke Company agreed in its employment contract with Klein:
      It is understood by Burke Scaffolding, Inc. that there may be difficulty caused by your present employer relevant to a restrictive employment covenant that you have signed. In the évent that legal actions are taken against you because of this covenant, Burke Scaffolding will underwrite all costs of defending your actions and our own. You shall be held harmless of any consequence of such actions, and the terms of this employment agreement shall apply regardless of any adverse outcome of such actions.


author: HOFFMAN, Judge:

text:
    576 A.2d 1123
    Madeleine P. MacGREGOR, Appellant, v. MEDIQ INC. and Kenneth Parker Associates, Inc. and Allstate Insurance Company.
    Superior Court of Pennsylvania.
    Argued May 3, 1990.
    Decided June 27, 1990.

      Robert Gosner, Philadelphia, for appellee.
    Nicholas Poduslenko, Philadelphia, for appellant.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order dated June 30, 1989, granting appellee Kenneth Parker Associates’ (KPA) preliminary objections in the nature of a demurrer to count II of appellant’s complaint. Appellant contends that the trial court erred in (1) dismissing the count, without leave to amend, on the technical basis that several causes of action had been pleaded under one count in violation of Pa.R.Civ.P. 1020(d)(1); (2) finding that the complaint did not set forth sufficient facts to justify recovery for either punitive damages or emotional distress; and (3) raising, sua sponte, a defense which served as an alternate basis for dismissing the entire cause of action against KPA. For the reasons set forth below, we agree with appellant that the trial court erred in granting KPA’s preliminary objections and, accordingly, we reverse the order below and remand for proceedings consistent with this opinion.

Beginning in January of 1985, appellant was employed at KPA as a staff designer. On February 16, 1986, appellant enrolled both herself and her husband under an insurance policy written by defendant Allstate Insurance Company (Allstate), and made available to her by defendants Mediq Inc. (Mediq) and KPA. This action arose when the defendants refused to pay life insurance proceeds upon appellant’s husband’s death.

On February 7, 1989, appellant filed a complaint in three counts against KPA, Mediq, and Allstate, alleging breach of contract, negligence, estoppel, and fraud. The counts of the complaint were very similar except for the identity of the named defendant: count I was against Mediq, count II was against KPA, and count III was against Allstate. On March 29,1989, Mediq and KPA filed preliminary objections requesting that counts I and II of appellant’s complaint be dismissed. In seeking dismissal, KPA and Mediq alleged that appellant violated Pa.R.Civ.P. 1020(d)(1) because she had failed to set forth her causes of action for trespass, contract, estoppel and fraud in separate counts. Further, they alleged that appellant had failed to aver facts sufficient to support a claim for punitive damages and emotional distress in a contract action. In her response to the preliminary objections, appellant asserted that her complaint was not in violation of Rule 1020(d)(1) and should not be dismissed. In the alternative, she maintained that if the trial court did find that she had failed to comply with Rule 1020(d)(1), it should grant her request for leave to amend her complaint. In addition, appellant attached her proposed amended complaint to her response. On June 30, 1989, the trial court issued an order sustaining KPA’s preliminary objections, and completely striking count II of the complaint, thereby dismissing KPA from the case. The trial court, however, overruled the same preliminary objections made as to count I against Mediq and ordered it to file an answer within thirty days. On August 18, 1989, appellant filed an appeal from the trial court’s June 30, 1989 order, and on December 11,1989, the trial court issued its opinion. In that opinion, the trial court reasoned that a demurrer to count II was sustainable because (a) count II was improperly pleaded in that it presented several causes of action under one count, (b) to the extent appellant sought punitive and emotional distress damages, the count was defective in that it did not set forth distinct claims for negligence and fraud, and (c) KPA was immune from liability, in that it hired Mediq as an independent contractor for the purposes of administering the insurance plan. Moreover, the trial court went on to state that Mediq’s preliminary objections to count I had been inadvertently overruled. Finally, the trial court noted that, had appellant filed a motion for reconsideration, leave to amend would have been granted in order to file a single cause of action for breach of contract against KPA. See Trial Court Opinion at 1-3.

Our scope of review in considering a challenge to a trial court’s decision granting preliminary objections in the nature of a demurrer is well-settled:

A demurrer can only be sustained where the complaint is clearly insufficient to establish the pleader’s right to relief. Firing v. Kephart, 466 Pa. 560, 353 A.2d 833 (1976). For the purpose of testing the legal sufficiency of the challenged pleading a preliminary objection in the nature of a demurrer admits as true all well-pleaded, material, relevant facts, Savitz v. Weinstein, 395 Pa. 173, 149 A.2d 110 (1959); March v. Banus, 395 Pa. 629, 151 A.2d 612 (1959), and every inference fairly deducible from those facts, Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970); Troop v. Franklin Savings Trust, 291 Pa. 18, 139 A. 492 (1927). The pleader’s conclusions or averments of law are not considered to be admitted as true by a demurrer. Savitz v. Weinstein, supra.
Since the sustaining of a demurrer results in a denial of the pleader’s claim or a dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. Schott v. Westinghouse Electric Corp., 436 Pa. 279, 259 A.2d 443 (1969); Botwinick v. Credit Exchange, Inc., 419 Pa. 65, 213 A.2d 349 (1965); Savitz v. Weinstein, supra; London v. Kingsley, 368 Pa. 109, 81 A.2d 870 (1951); Waldman v. Shoemaker, 367 Pa. 587, 80 A.2d 776 (1951). If the facte as pleaded state a claim for which relief may be granted under any theory of law then there is sufficient doubt to require the preliminary objection in the nature of a demurrer to be rejected. Packler v. State Employment Retirement Board, 470 Pa. 368, 371, 368 A.2d 673, 675 (1977); see also Schott v. Westinghouse Electric Corp., supra [436 Pa.] at 291, 259 A.2d at 449.

County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); see also Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524-25, 543 A.2d 1092, 1093-94 (1988). With this standard in mind, we turn to appellant’s contentions.

First, appellant contends that the trial court erred in dismissing, without leave to amend, count II of her complaint on the basis that several causes of action were pleaded under one count in violation of Pa.R.Civ.P. 1020(d)(1). Appellant does not dispute that she violated this rule by raising several causes of action in one count. However, she argues that the violation was merely technical in nature and did not warrant a dismissal of the entire cause of action against KPA. Instead, appellant argues that the proper course was to grant her leave to amend her complaint pursuant to Pa.R.Civ.P. 1033.

Rule 1033 provides in relevant part that:

A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his [or her] pleading.

Pa.R.Civ.P. 1033. It has long been the law in this Commonwealth to liberally grant leave to parties to amend their pleadings. Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025 (1984). Although the decision of whether to grant leave to amend a pleading is a matter of judicial discretion, such amendments should be allowed at any stage of the proceedings to secure a decision on the merits, unless they violate the law or unfairly prejudice the rights of the other party. Soxman v. Goodge, 372 Pa.Super. 343, 347, 539 A.2d 826, 828 (1988). Thus, if no prejudice results, pleadings may be amended “after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom.” Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025-26 (1984) (citations omitted). “The fundamental purpose of this rule is to prevent cases from turning on purely technical defects.” Id., 330 Pa.Superior Ct. at 521, 479 A.2d at 1026. Moreover, prejudice, in turn, must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party. Carpitella by Carpitella v. Consolidated Rail Corp., 368 Pa. 153, 157, 533 A.2d 762, 764 (1987).

Here, we find that to the extent the trial court granted KPA’s preliminary objections and refused to allow appellant to amend her complaint based on the Rule 1020 defect, it abused its discretion. Appellant’s failure to set out each cause of action against KPA in a separate count is clearly a technical error, which in no respect affects the substance of the pleading. See Commonwealth ex rel. Specter v. Bauer, 437 Pa. 37, 40 n. 2, 261 A.2d 573, 574 n. 2 (1970) (no reason to dismiss complaint where captioning incorrect, as such defect is easily correctable by amendment); Mancine v. Concord-Liberty Sav. & Loan Ass’n, 299 Pa.Super. 260, 269-70, 445 A.2d 744, 749 (1982) (right to amend should be liberally granted and fact that plaintiff erroneously labeled action as assumpsit of no importance). Moreover, appellees are unable to show how they have been or will be prejudiced by appellant’s request to amend her complaint. See Carpitella by Carpitella v. Consolidated Rail Corp., supra; Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983). In this case, appellant simply sought to amend her complaint so as to reorganize the pleadings into separate counts. Such an amendment clearly would remedy the defect, would help to focus the issues and ensure that the case is not decided on a technical error. In light of the fact that the technical error could easily have been corrected by amendment, see R.P. Clarke Personnel v. Commonwealth Nat’l Bank, 384 Pa.Super. 524, 535, 559 A.2d 560, 566 (1989), and because a demurrer is proper only “in cases that clearly and without doubt fail to state a claim for which relief may be granted,” see County of Allegheny v. Commonwealth, supra, we hold that the trial court abused its discretion in sustaining the demurrer and refusing to grant appellant such leave to amend her complaint. We find further support for our conclusion by noting that a contrary holding would require a disingenuous reading of Rule 1020. The primary purpose of Rule 1020(d)(1) is to ensure that causes of actions arising out of the same transaction or occurrence are tried together in the same suit. In fact, if a plaintiff fails to properly plead all such causes of action, the cause not pleaded is waived. See Pa.R.Civ.P. 1020(d)(1), Historical Note. Incidental to this principal purpose, is the requirement that these causes of action should be set out in different counts. Appellee would have us latch on to this rule, which primarily relates to mandatory joinder, and hold that it mandates the extreme sanction of dismissal for a mere failure to list the separate causes of action under separate counts. This we refuse to do.

Appellant also takes issue with the court’s ruling on her claim for emotional distress and punitive damages. Appellant maintains that the trial court based this decision on a misunderstanding of the causes of action and the corresponding damages requested in the original complaint. Appellant suggests that the court erroneously believed that because the various causes of action were brought within the same count, the negligence and fraud claims were merely alternative theories of liability based on the underlying breach of contract cause, and not separate causes of action. This misunderstanding, in turn, led to the court’s conclusion that appellant failed to set forth a claim for punitive damages or emotional distress.

A review of appellant’s original complaint reveals that although all three claims (negligence, fraud, and breach of contract) are contained in one count, the facts as set forth in the complaint establish the essential elements of each cause of action. Moreover, appellant’s claims for negligence and fraud are set out in separate paragraphs and are distinguishable from her claim for breach of contract. Appellant’s prayer for relief in the form of punitive and emotional distress damages are not requested until after her claims for negligence and fraud. These types of damages, of course, are recoverable under these two theories of liability. See Restatement (Second) of Contracts, § 355, at 154 (1981) (punitive damages are not recoverable in action for breach of contract but are recoverable in tort action brought in conjunction with action for breach of contract); Restatement (Second) of Torts, § 908 comment b, at 464 (1977) (same). Thus, in admitting as true all well-pleaded material facts, and every inference deducible from those facts, we find that count II set forth facts sufficient to state a claim for relief under negligence and fraud as well as breach of contract, and thus, appellant should be afforded the opportunity to request punitive and emotional distress damages.

Appellant finally contends that the trial court erred by raising, sua sponte, a defense which served as an alternative basis for dismissing the entire cause of action against KPA. Appellant notes that the trial court, sua sponte, found that KPA, as appellant’s employer, was immune from liability because it had hired Mediq, an independent contractor, for purposes of implementing the insurance policy in question. Appellant maintains that it was a clear error for the court to raise this supposed immunity defense, sua sponte, as a basis for dismissing the entire cause of action against KPA. We agree.

It is inappropriate, of course, for a trial court to act as an advocate and raise a defense on behalf of a party. See Wojciechowski v. Murray, 345 Pa.Super. 138, 142, 497 A.2d 1342, 1344 (1985) (trial court had no authority to sua sponte employ Political Subdivision Tort Claims Act as basis for dismissing claim against defendant who had not raised defense); see also Travers v. Cameron County School District, 117 Pa.Commw. 606, 544 A.2d 547 (1988); Gubernick v. City of Philadelphia, 85 Pa.Commw. 397, 481 A.2d 1255 (1984). In this case, a review of the preliminary objections raised by KPA reveal no reference to a defense based on the theory that KPA hired Mediq as an “independent contractor.” Instead, as we noted above, the preliminary objections raised only the questions regarding the Rule 1020 defect and whether the averred facts supported a claim for emotional distress and punitive damages. Under the Rules and the case law, it is clear that matters not raised in preliminary objections may not be considered by the court sua sponte. See Pa.R.Civ.P. 1032; Wojciechowski v. Murray, supra. Accordingly, because the defense was not raised by appellee, the court’s granting of preliminary objections is not sustainable on this ground.

For the foregoing reasons, we reverse the order below and remand for proceedings consistent with this opinion.

Order reversed and case remanded. Jurisdiction relinquished.

      . Allstate did not file preliminary objections; accordingly, it is not a party to this appeal.

      . Pa.R.Civ.P. 1020(d)(1) provides that:
      If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.

        Id.

      . The June 30, 1989 order was not entered on the docket until July 20, 1989. Thus, appellant’s appeal was timely filed. Moreover, the trial court’s refusal to grant appellant leave to amend her complaint so as to cure the technical errors is a final and appealable order because it effectively puts appellant out of court as to KPA. See Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987).

      . We note that, on appeal, KPA filed an appellate brief in conjunction with Mediq. However, despite the trial court’s pronouncement in its December 11, 1989 opinion, the record contains no appealable order as to Mediq. Thus, we will review only the propriety of the demurrer as to count II of the complaint.

      . Appellee argues that the trial court was well within its discretion in refusing to grant appellant leave to amend her complaint because appellant, "having failed to utilize the various procedural remedies available to her to correct a defect in her complaint at the trial level, has waived her right to amend her complaint." Appellee Brief at 7. This claim is meritless. Appellant requested leave to amend her complaint at the trial level in her response to appellees’ preliminary objections. She also attached a copy of her proposed amended complaint to her response. Thus, the trial court was aware of appellant’s informal request to amend her complaint at the trial level. Moreover, the trial court, recognizing that appellant had requested leave to amend her complaint, stated in its opinion that had appellant filed a formal motion to reconsider, the court would have granted her leave to amend her complaint.

      . This ruling alone is not enough to warrant sustaining preliminary objections to the whole count.

      . We need not determine whether the defense raised by the trial court was appropriate in light of the factual circumstances of this case. However, we do note that the complaint is devoid of any information leading to the conclusion that KPA hired Mediq as an independent contractor. In fact, appellant alleges in her complaint that "at all applicable times, defendant KPA was a wholly-owned subsidiary corporation of defendant Mediq.” See Appellant’s Complaint, R.R. at 5a.


author: KELLY, Judge: DEL SOLE, Judge,

text:
    577 A.2d 194
    COMMONWEALTH of Pennsylvania v. Bernard POWERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 13, 1989.
    Filed May 16, 1990.
    Reargument Denied July 26, 1990.

      A. Charles Peruto, Jr., Philadelphia, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for the Comm., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

Appellant appeals from judgment of sentence imposed following his conviction of several offenses relating to his sexual abuse of his granddaughter while he was baby-sitting her for her parents. We affirm.

The relevant facts and procedural history have been accurately set forth in the trial court opinion. They will be repeated here only as necessary to address the issues raised on appeal.

On appeal, appellant contends the evidence is insufficient to establish that the crimes occurred within the applicable statute of limitations period; counsel was ineffective in failing to seek dismissal of one of the charges on statute of limitations grounds; one of appellant’s other granddaughter’s was improperly permitted to testify in rebuttal regarding similar but uncharged bad acts expressly denied by appellant during cross-examination; and, the trial court erred in failing to give a requested instruction on the relevance of the absence of a prompt complaint by the child victim. We find no merit in the contentions.

Appellant’s first statute of limitations challenge is plainly without merit. Review of the record reveals that the trial court specifically instructed the jury that in order to convict appellant, they had to decide that the offense charged occurred between March 21, 1986 and September 4, 1986. (See N.T. 9/15/88 at 382). The victim testified to a pattern of sexual abuse occurring between January 1983 and September 4, 1986. (See N.T. 9/12/88 at 22-46). This evidence was sufficient to sustain the conviction. See Commonwealth v. Bethlehem, 391 Pa.Super. 162, 171, 570 A.2d 563, 568 (1989); Commonwealth v. Allem, 367 Pa.Super. 173, 181-82 nn. 2-3, 532 A.2d 845, 849 & nn. 2-3 (1987); Commonwealth v. Niemetz, 282 Pa.Super. 431, 422 A.2d 1369 (1980). The existence of evidence of a continuing course of similar sexual abuse throughout a period which extends into the applicable limitations period, coupled with an unequivocal instruction as to the parameters of the limitations period, distinguishes this case in factually material respects from the scenario presented in Commonwealth v. Thek, 376 Pa.Super. 390, 402-03, 546 A.2d 83, 90 (1988), wherein a superficially similar claim was found to be meritorious. We reject appellant’s first claim.

Appellant’s related claim of ineffective assistance of counsel for failure to pursue a pre-trial motion to quash on statute of limitations grounds is likewise without merit. Assuming, arguendo, that a claim could have been presented pre-trial, based upon the lack of specificity with which the charges were drawn, nonetheless, there was no prejudice to appellant in this case.

While appellant vigorously denied the charges and attempted to discredit the victim’s testimony in several respects, he freely conceded that he had acted in loco parentis for the victim’s absent parents at the times when the victim testified that the abuse occurred. We conclude that as an adult baby-sitter for absent parents, appellant was acting as “a person responsible for the child’s welfare” within the meaning of the phrase in 42 Pa.C.S.A. § 5554(3) which provides in pertinent part:

§ 5554. Tolling of statute
... the period of limitation does not run during any time when:
(3) a child is under 18 years of age, where the crime involves injuries to the person of the child caused by the wrongful act, or neglect, or unlawful violence, or negligence of [ ...] a person responsible for the child’s welfare.

(Emphasis added).

In Commonwealth v. Bethlehem, supra, this Court stated:

We do not believe that in the context of this statute the phrase, “person responsible for the child’s welfare,” was intended by the legislature to apply to an uncle visiting the victim’s parents’ home. Without precluding application of this portion of the tolling provision to such a relative under different circumstances, at least when, as here, the parents were at home and in the next room when the sexual assault occurred, it was the parents and not the visiting relative who remained the “person(s) responsible for the child’s welfare” within the meaning of the provision in question. We construe the provision to apply to persons under whose permanent or temporary custody and control the parent(s) or legal guardian(s) have placed a child, in other words, those who stand in loco parentis to the child. See 1 Pa.C.S.A. § 1903(b). The Commonwealth made no showing of such responsibility being vested in Bethlehem at the time of the assaults. Hence, we must conclude that this portion of the tolling statute could not properly be applied to the circumstances of this case.

570 A.2d at 566. (Emphasis added). Here, the babysitting grandfather, unlike the visiting uncle, had been placed temporarily in loco parentis by the absent parents when the assaults occurred. Hence, in accordance with the reasoning set forth in Bethlehem, we conclude that appellant was “a person responsible for the child’s welfare” within the meaning of 42 Pa.C.S.A. § 5554(3).

Appellant’s status as a “person responsible for the child’s welfare” at the time of the offense was committed triggers the tolling of the applicable statute of limitations period from the effective date of the provision through the victim’s eighteenth birthday (a date after the filing of the charges in this matter). Thus, the proper cut-off date for the applicable limitations period was September 8, 1983, rather than March 21, 1986. See Commonwealth v. Thek, supra, 546 A.2d at 89 & nn. 8-9.

Had the trial court been called upon to determine the precise cut-off date of the limitations period, the jury properly could have been informed that September 8, 1983, rather than March 21, 1986, was the appropriate limitations cut-off date. Thus, there was an objectively reasonable basis for competent counsel to avoid that subject. More importantly, appellant was advantaged, rather than prejudiced by counsel’s avoidance of this issue pre-trial, in light of the eventual issuance of an overly favorable instruction to the jury on this issue by the trial court.

It is, of course, entirely irrelevant whether counsel’s conduct was actually deft, or merely fortuitous. Counsel cannot be found ineffective for doing the right things for wrong reasons, or for no apparent reasons. There was, in fact, an objectively reasonable basis for competent counsel to pursue the precise course of conduct challenged, and there was no actual prejudice. Hence, the second claim must fail. See Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987).

Appellant next contends that the trial court improperly permitted the Commonwealth to rebut appellant’s testimony on cross-examination that he had never shown his x-rated video tapes to any of his grandchildren, with testimony of another grandchild that he had shown his x-rated movies to her. We find no merit in the contention.

Evidence of prior bad acts is admissible in rebuttal to dispel false inferences raised by the defendant or the defendant’s witnesses. See Commonwealth v. Saxton, 516 Pa. 196, 532 A.2d 352 (1987); Commonwealth v. Trignani, 334 Pa.Super. 526, 483 A.2d 862 (1984). The fact that the false inferences may have arisen through testimony on cross-examination does not alter the analysis. See Commonwealth v. Smith, 490 Pa. 380, 390, 416 A.2d 986, 990-91 (1980); Commonwealth v. Hickman, 453 Pa. 427, 432, 309 A.2d 564, 567 (1973). Appellant plainly “opened the door” to the rebuttal evidence with his answer on cross-examination that he never exhibited his x-rated video tapes to any of his grandchildren.

Moreover, the rebuttal evidence, rather than indicating an isolated and unrelated prior bad act, indicated an event which formed a part of a pattern of sexual abuse of the young female relatives placed in appellant’s care by the children’s unsuspecting parents. Such evidence was relevant to show design, and was highly corroborative of the victim’s testimony regarding the continuing and escalating course of sexual abuse committed. See Commonwealth v. Claypool, 508 Pa. 198, 204, 495 A.2d 176, 181 (1985) (Hutchinson, J., concurring); Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949); Commonwealth v. Dunkle, 385 Pa.Super. 317, 335, 561 A.2d 5, 14 (1989) (Kelly, J., dissenting) (collecting cases and authorities). We note that the rebuttal evidence here involved identical conduct (exhibition of x-rated tapes during baby-sitting) toward another granddaughter of similar age after the period which the victim testified the continuous course of escalating abuse occurred and was virtually indistinguishable from the similarly corroborative evidence of the victim herself regarding similar acts occurring outside the limitations period.

Finally, appellant claims the trial court erred in refusing to instruct the jury specifically that the absence of a prompt complaint by the victim must be considered in determining her credibility. We find no merit in this contention.

Appellant relies principally on Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246 (1989). Reliance upon that case for the proposition that the jury instruction requested was required, was misplaced.

In Lane, our Supreme Court held that a new trial was required when a juror was improperly excluded for cause based on answers on voir dire that the prospective juror would have difficulty believing that an eight year-old raped by an acquaintance who lived with her mother’s friend would wait as long as had been indicated to report the offense, if the offense had occurred as alleged. 555 A.2d at 1248-49. Our Supreme Court reaffirmed that the defendant was entitled to present, and the jury was entitled to consider, evidence of the absence of a prompt complaint by the victim. 555 A.2d at 1250-51. Nowhere in Lane, however, is there the faintest suggestion that the jury instruction requested here was required.

The form and content of jury instructions is left to the sound discretion of the trial court. Commonwealth v. Alvin, 357 Pa.Super. 509, 519, 516 A.2d 376, 381 (1986). The charge given here adequately covered the general issue of credibility. To have given the charge requested would have given undue weight to a single factor in the jury’s complex credibility analysis. Consequently, we conclude that the trial court acted within its discretion in rejecting the proposed instruction.

Based upon the foregoing, Judgment of Sentence is Affirmed.

DEL SOLE, J., filed a dissenting opinion.

DEL SOLE, Judge,

dissenting:

I dissent from the Majority’s Opinion affirming the Judgment of Sentence because I believe that it misapplies or misinterprets the law regarding all three issues addressed.

My first disagreement concerns the Majority’s conclusions regarding the applicability of the tolling provision of 42 Pa.C.S.A. § 5554(3) to the facts of this case. The Majority concludes that Appellant, who was babysitting his granddaughter, was “a person responsible for the child’s welfare,” and therefore the period of limitations did not run during the time when the child was under 18 years of age. In support of its decision the Majority cites to Commonwealth v. Bethlehem, 391 Pa.Super. 162, 169, 570 A.2d 563, 566 (1989). The Bethlehem court refused to find that tolling provisions were applicable to an uncle who was visiting at the victim’s parents’ home. The court construed the phrase “person responsible for the child’s welfare” “to apply to persons under whose permanent or temporary custody and control the parent’s(s) or legal guardian(s) have placed in the child, in other words, those who stand in loco parentis to the child. See 1 Pa.C.S.A. § 1903(b).” 570 A.2d at 566. With regard to the status of one “in loco parentis,” this court has in the past stated:

Pennsylvania courts recognize that a person may ‘put himself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption. This status, [known as ‘in loco parentis’] embodies two ideas; first, the assumption of a parental status, and second the discharge of parental duties.’

Spells v. Spells, 250 Pa.Super. 168, 378 A.2d 879, 881-882 (1977). citing Commonwealth ex rel. Morgan v. Smith, 429 Pa. 561, 565, 241 A.2d 531 533 (1968).

I believe the legislature in tolling the statute of limitations for those who are “responsible for the child’s welfare” was, as the Bethlehem court found, referring to those standing “in loco parentis.” In my view the legislature did not seek to extend the statute to those situations where a child was being cared for by a baby-sitter, regardless of whether the sitter was a relative. Section 5554(3) seeks to extend the statute of limitations where a child has been abused by one who occupies such a position in the child’s life that it may be impossible for the child to reveal the abuse. In the situation where abuse occurs by a parent, a paramour of the child’s parent, an individual with whom the child resides or one “responsible for the child’s welfare” the child may not have anyone to turn to in order to report the abuse. It is children in these situations which § 5554(3) seeks to protect by extending the statute of limitations. Absent specific statutory language, I do not believe the tolling provisions were meant to apply to temporary babysitters.

The Majority also rules that no error occurred when the Commonwealth was permitted to rebut appellant’s testimony on cross-examination that he had never shown his x-rated video tapes to any of his grandchildren, with the testimony of a granddaughter who testified that she was shown such tapes. The Majority first finds that this testimony was properly admitted as “rebuttal” since appellant “plainly ‘opened the door’ ” to its admission.” Majority slip opinion at 5. The Majority also finds that this rebuttal testimony was relevant to show “design.” To support this ruling the Majority cites only to a concurring opinion by Justice Hutchinson’s in Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176, 181 (1985); the author, Judge Kelly’s, dissenting opinion in Commonwealth v. Dunkle, 385 Pa.Super. 317, 561 A.2d 5 (1989); and a case of questionable authority, Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348 (1949). My examination of the law in this area leads me to conclude that the granddaughter’s testimony of unrelated “bad acts” was wrongly admitted.

Evidence of other unrelated crimes or “bad acts” is generally not admissible to prove the crime charged. “One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant.” Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833, 836 (1978). Citing Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955). Certain exceptions to this general rule have been identified. One such special circumstance exists where the evidence of the other crime tends to prove “a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others.” Id. Even where this exception applies, a balancing test must be employed determining whether the need for the evidence outweighs its potential prejudice. Id.

Upon review I find that the Majority errs in finding that the evidence of this unrelated bad act was evidence of “design”. I also note that the Majority neglects to take the necessary second step in analyzing this evidence to balance its need against the potential prejudice it may have caused. The Majority, relying on the authority of Kline, supra, permits the admission of this testimony because it involved sexual conduct which it found similar to the sexual abuse committed upon the victim in this case.

As the Majority states in a footnote, the Kline decision was expressly overruled in a opinion in the case of Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981). Since the Shively decision was joined by only one justice, with two justices concurring in the result and two justices dissenting its language regarding the Kline decision may not be controlling. However, there are other cases interpreting Kline which provide guidance to its applicability. In Commonwealth v. Bradley, 243 Pa.Super. 208, 364 A.2d 944, 947 (1976), this court commented:

In Kline, the Pennsylvania Supreme Court stated that,: The word ‘design’ implies a plan formed in the mind. That an individual who commits or attempts to commit abnormal sex offences is likely to have such a mental ‘plan’ finds recognition in the fact that when a defendant is charged with the commission of a sexual offence the law is more liberal in admitting as proof of his guilt evidence of similar sexual offences committed by him than it is in admitting evidence of similar offences when a defendant is charged with the commission of non-sexual crimes____ In Kline, however, the defendant was charged with a rape occurring on October 20, 1946, and another witness testified that defendant exposed himself to her sometime late in October. “There was thus a close relationship in time, with the probability that the events occurred within a week of each other and the possibility that they occurred the same day:” Commonwealth v. Boulden, [179 Pa.Super. 328, 116 A.2d 867 (1955)] 179 Pa.Super. at 347, 116 A.2d at 876. We agree with Judge Woodside’s opinion in Boulden that the rule of the Kline case should not be extended beyond its facts to permit evidence of events occurring more than one year prior to the offense charged.

(emphasis added.)

In a footnote to this passage the Bradley court explained its rationale for utilizing a narrow interpretation of Kline as suggested by Boulden. The court stated: “Unless a discriminating analysis is utilized, a trial court may fall into the trap of admitting evidence of other crimes when, in fact, the only purpose of the evidence is to show depravity or propensity.” Id.

The testimony of Appellant’s viewing an X-rated video tape with his granddaughter concerned an action which occurred more than two years after the abuse which was the subject of the case. As noted by the Majority, the victim testified to a pattern of sexual abuse occurring between the years 1983 and 1986. The incident relayed by the granddaughter concerning the video tape was said to have occurred in February of 1988. I believe this two year time span alone was sufficient reason for the court to refuse the admission of this testimony. It’s relevance to the case was not clear, and when weakened even further by the time span, the inevitable prejudice it produced certainly outweighed any probative value it may have had. Thus, in my mind, an error was committed when this evidence was admitted at trial.

Finally, I must also briefly add that I believe the Majority incorrectly concludes that the trial court properly refused to instruct the jury specifically that the absence of a prompt complaint by the victim is a matter to be considered in determining her credibility. Although as the Majority suggests, the absence of a prompt complaint may be common in child sexual abuse cases, it nevertheless remains a proper factor for consideration. As stated in Commonwealth v. Lane, 521 Pa. 390, 555 A.2d 1246, 1250 (1989), “Unquestionably, a prompt complaint is a factor which must be assessed with all of the other pertinent evidence bearing upon the question of credibility of the complaining witness.” Since Appellant requested an instruction on the correct state of the law in. this Commonwealth, I believe it was error to refuse this request.

For the above reasons I would vacate the Judgment of Sentence in this case and remand the matter for a retrial.

      . In Commonwealth v. Shively, 492 Pa. 411, 424 A.2d 1257 (1981), there is language purporting to expressly overrule Commonwealth v. Kline in this respect. 424 A.2d at 1259-60. The opinion was joined by one justice, two justices concurred in the result only, and two justices dissented. Consequently, the lead opinion of the plurality had no precedential authority and Commonwealth v. Kline must be deemed to remain precedential. No subsequent decision by our Supreme Court has embraced the dictum of the lead opinion of the Shively ■ plurality.

      . We note that in Lane, our Supreme Court also stated, "the inference of insincerity is only justified where the facts of the case fail to disclose a reasonable explanation for the challenged time lapse prior to the complaint.” 555 A.2d at 1250; cf. Commonwealth v. Willis, 380 Pa.Super. 555, 574-75, 552 A.2d 682, 691-92 & n. 5 (1989) (noting the limited relevance of the absence of a prompt complaint generally, and especially in cases involving child victims of non-violent intrafamilial sexual abuse; collecting authorities); Commonwealth v. Stohr, 361 Pa.Super. 293, 311-12, 522 A.2d 589, 598-99 & n. 4 (1987) (Kelly, J., concurring; McEwen, J., joins) (same). The absence of a prompt complaint in non-violent child sexual abuse cases is common. See e.g. Commonwealth v. Bethlehem, supra, 570 A.2d at 566 n. 2; Commonwealth v. Slocum, 384 Pa.Super. 428, 436 & n. 4, 559 A.2d 50, 54 & n. 4 (1989) (noting authorities).