author: MONTEMURO, Judge:

text:
    516 A.2d 1207
    EAST COAST PROPERTIES, INC., Appellee, v. The HARFORD MUTUAL INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1986.
    Filed Oct. 27, 1986.

      Ronald D. Ashby, Media, for appellant.
    Michael P. Dignazio, Media, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of the Delaware County Court of Common Pleas, which followed the denial of appellant’s motion for “post-verdict” relief. Because appellant failed to file a timely notice of appeal, we must quash for lack of jurisdiction.

Appellee, East Coast Properties, Inc. (East Coast), brought this action on on an insurance policy issued by appellant, the Harford Mutual Insurance Company (Harford Mutual), to recover damages that resulted from the theft of East Coast’s automobile. Florida police had recovered the automobile in October of 1982, but, according to East Coast’s complaint, “the vehicle at the time of its recovery was worth only $500.00, its salvage value.”

A panel of arbitrators awarded $3,500.00 to East Coast, and Harford Mutual appealed to the court of common pleas. Immediately prior to trial before a jury, the court granted East Coast’s oral motion in limine, which prohibited Harford Mutual from offering evidence on the salvage value of the recovered automobile because Harford Mutual had failed to plead salvage in new matter as an affirmative defense. The parties then agreed to forego trial and submit the controversy to the court as a case stated. In their case stated agreement, they set forth a concise statement of the facts and concluded by agreeing to the entry of judgment as follows:

If the Court is of the opinion that the actual cash value of the aforesaid vehicle on the date of the theft, September 18, 1982 be [sic] Four Thousand Dollars ($4,000.00) then judgment is entered in favor of the Plaintiff and against the Defendant in the sum of Four Thousand Dollars ($4,000.00), but if the Court be of the opinion that the vehicle was of a lesser value then judgment be entered in favor of the Plaintiff for the lesser value.

Upon consideration of this submission, the court, by order of June 17, 1985, entered a “special verdict in the sum of Four Thousand Dollars ($4,000.00) in favor of the Plaintiff and against the Defendant.” The court filed the order on June 19, 1985.

In response, Harford Mutual filed a motion for post-verdict relief on June 29, 1985, which the court denied by order of August 2, 1985, filed August 5. On August 30, 1985, Harford Mutual filed a notice of appeal “from the special verdict entered on June 17, 1985.”

Before this court, Harford Mutual contends that East Coast’s sale of the recovered automobile before Harford Mutual could inspect it and appraise its salvage value so prejudiced Harford Mutual’s rights under the insurance contact that Harford is excused from performance. We find, however, that Harford Mutual should have appealed within 30 days after the trial court entered its “order for special verdict” on June 17, 1985. By failing to do so, it deprived this court of jurisdiction to hear its case. We therefore must quash the appeal.

The parties elected to present their controversy to the trial court in the unique form of a case stated. We recognize that the case stated is an effective means of resolving a legal dispute expeditiously and inexpensively when the parties agree on the underlying factual issues. Nonetheless, the stream-lined procedure can backfire on those unwary litigators who are used to more cumbersome devices. In order to submit a case stated, the parties must agree on all of the material facts “so that the court may have nothing to do but to pronounce the law arising out of them.” Bertram v. Petrovsky, 49 Pa.Super. 426, 429 (1912). More importantly, for our purposes here, the parties to a case stated must submit their agreed statement of the facts for the final judgment of the court. They cannot seek a mere decision, upon which the prothonotary enters judgment only after the court has disposed of all timely motions for post-trial relief. See Clearfield Bank and Trust Co. v. American Manufacturers Mut. Ins. Co., 344 Pa.Super. 588, 497 A.2d 247 (1985); County of Allegheny v. Allegheny County Prison Employees’ Independent Union, 53 Pa.Commw.Ct. 350, 417 A.2d 864 (1980). The court therefore does not have to “file [a] decision and give the parties notice thereof and a specified number of days after service of such notice in which to file exceptions to the decision of the court, as it [must] on the trial of a case by a court without a jury.” 7 Standard Pa.Practice 2d § 43.17 (1982). Once entered, the judgment in a case stated is final and immediately appealable. No post-trial motions are necessary. See Clearfield Bank and Trust, 344 Pa.Super. at 592, 497 A.2d at 249; Frankel v. Reliance Mutual Life Ins. Co., 199 Pa.Super. 295, 184 A.2d 305 (1962).

In this case, the court rendered an “order for special verdict,” not a “judgment.” Nonetheless, we have disregarded similar defects of nomenclature when the trial court and all parties concerned treat the proceedings as a case stated. See Clearfield Bank and Trust, 344 Pa.Super. at 592, 497 A.2d at 249 (parties had asked for the court’s “decision” rather than its “judgment”). Certainly form should not prevail over substance. In their case stated agreement, the parties sought the entry of “judgment” on the facts as stipulated. Moreover, throughout the proceedings below, and in their briefs and oral arguments on appeal, both East Coast and Harford Mutual have characterized this case as a case stated. We therefore conclude that the June 17, 1985 “order for special verdict” was a final and immediately appealable judgment.

Both the parties and the trial court appear to have assumed that Harford Mutual acted properly in filing for “post-verdict” relief instead of appealing directly to this court from the June 17 “order for special verdict.” The parties and the court followed post-trial procedure as they would have in an ordinary nonjury case, see Pa.R.C.P. 227.1. Nonetheless, the June 17 order, unlike the “decision” that a trial court usually renders in a nonjury case, was final and immediately appealable. This court has held that “the filing of ‘exceptions’ to such an order, a practice neither authorized nor recognized by any rule of procedure, cannot extend the original thirty-day appeal period provided for by Pa.R.A.P. No. 903(a).” Kennedy & Carter Construction Company, Inc. v. Barkley, 321 Pa.Super. 348, 351, 468 A.2d 513, 515 (1983). See also United States National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985); Scoumiou v. United States Steel Corp., 293 Pa.Super. 254, 438 A.2d 981 (1981).

Kennedy & Carter Construction and Scoumiou involved interlocutory orders that were immediately appeal-able under Pa.R.A.P. 311(a). Rather than appeal the order within 30 days, the appellant in each of these cases filed “exceptions” with the trial court and perfected timely appeals only from the denial of these exceptions. In Scoumiou, we noted that if “every litigant aggrieved by an appealable interlocutory order could unilaterally extend the appeal period merely by filing exceptions ... that, of course, would amount to an impermissible assault on orderly appellate procedure.” 293 Pa.Super. at 259, 438 A.2d at 983. By requiring the appellant in Scoumiou to appeal the initial appealable order, rather than pursue the matter further in the trial court, we sought to discourage the use of “dilatory tactics as a strategy.” Id. (quoting Provident National Bank v. Rooklin, 250 Pa.Super. 194, 201, 378 A.2d 893, 896 (1977)). These considerations apply with equal force to this case. Harford Mutual cannot extend the time within which it can seek appellate review of a final and appealable judgment merely by filing for relief in the trial court. It perhaps could have petitioned the court to reconsider the judgment, but that would not have tolled the appeal clock. See Boden v. Tompkins, 306 Pa.Super. 494, 452 A.2d 833 (1982). Once the 30 day period following June 17, 1985 had lapsed, the court’s judgment in this case became res judicata. See United States National Bank in Johnstown v. Johnson, supra.

Because the appellant, Harford Mutual Insurance Company, failed to file its notice of appeal within 30 days of the filing of the June 17, 1985 “Order for Special Verdict,” we lack jurisdiction to consider this case on the merits and accordingly must quash the appeal.

Appeal quashed.

      . Appellant filed its notice of appeal prior to entry of judgment in this case. Appellee, therefore, filed a motion to quash the appeal, which a single motions judge of this court denied on October 4, 1985. In light of our decision here, we see no reason to reconsider the motion to quash.

      . The slender record in the case reflects some confusion, on the part of all concerned, over the exact effect of the trial court’s ruling. At some places in its opinion, for example, the lower court apparently feels that the grant of East Coast’s motion in limine precluded Harford Mutual from introducing any evidence on the issue of actual prejudice. At other places, the court seems to feel that it precluded only evidence on the issue of the recovered automobile’s salvage value. The transcript of the proceedings at which the court granted East Coast's motion is similarly ambiguous. We note only that although a defendant-insurer bears the burden of pleading and proving both "actual prejudice” and “salvage value," those terms are not interchangeable. In Brakeman v. Potomac Insurance Co., 472 Pa. 66, 371 A.2d 193 (1977), the supreme court required that a defendant-insurer, in order to avoid liability on a contract of insurance, must show "actual prejudice” above and beyond mere failure of an express condition in the contract. On the other hand, a defend-insurer pleads "salvage value” not to avoid liability altogether, but to mitigate the amount it will owe to its insured. See Judge v. Celina Mutual Ins. Co., 303 Pa.Super. 221, 449 A.2d 658 (1982); 8 Blashfield Automobile Law and Practice § 333.3 (F. Lewis ed. 1966). Significantly, the parties in their stated case agreement of May 2, 1985 characterized the court’s action as a prohibition only against evidence of salvage value, and we so regarded it for purposes of our review. None of this, however, bears upon our ultimate disposition of this appeal.

      . The cover sheets on the briefs and reproduced record that the parties have filed with this court list this proceeding as an appeal “from the Order of the Honorable Clement J. McGovern, Jr., dated August 2, 1985, and from Judgment of September 3, 1985.” (emphasis added). We note that on September 17, 1985, Harford Mutual filed a motion to amend its notice of appeal to reflect that the appeal was from the order of August 3, which denied Harford Mutual's motions for "post-verdict” relief, not the June 17 "order for special verdict.” A single motions judge of this court denied the motion to amend on October 4, 1985. In light of our decision here, however, we would have to quash regardless of whether Harford Mutual's appeal lies from the June 17 order or the August 2 order.

      . For an exhaustive treatment of the case stated, see 7 Standard Pa.Practice 2d § 43:1 et seq. (1982).

      . We note that even if Harford Mutual had filed a timely appeal, we would not have addressed the issue it raises. In a case stated, the parties must expressly reserve in their agreement the right to appeal. Otherwise, the judgment is final and all appeals are waived. See Clearfield Bank and Trust Co. v. American Manufacturers Mut. Life Ins. Co., 344 Pa.Super. 588, 497 A.2d 247 (1985); 7 Standard Pa.Practice 2 § 43.19 (1982). In the case stated agreement between Harford Mutual and East Coast, Harford Mutual reserved only “the right to take an appeal to the Superior Court on the pre-trial ruling of the Court that the Defendant, Harford Mutual Insurance Company, by failing to plead salvage value as an affirmative defense in New Matter is prohibited from admitting any evidence on that issue.” Harford Mutual concedes in its brief that it had so limited its right to take an appeal. We fail to see how the "actual prejudice" arguments that Hartford Mutual raises on appeal constitute a challenge to the propriety of the trial court’s pre-trial ruling. Because Harford Mutual did not reserve the “actual prejudice” issues for appeal, we could not have considered them.


source: Caselaw Access Project

author: KELLY, Judge:

license: Public Domain

text:
    516 A.2d 1211
    COMMONWEALTH of Pennsylvania, Appellant, v. Keith WHITE, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Joseph CRUMP, Appellee.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Oct. 23, 1986.

      Susan V. Kahn, Assistant District Attorney, Philadelphia, for Com., appellant.
    Donald Bronstein, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and WICKER8HAM and KELLY, JJ.
   KELLY, Judge:

This case involves an appeal by the Commonwealth of an order granting the appellees’ motion to suppress. The trial court found that the appellees, Joseph Crump and Keith White, had been arrested without probable cause and that all physical evidence and statements gained as a result of the illegal arrest must be suppressed. Upon review, we find that the appellees were subjected to a reasonable investigatory detention and then properly arrested when a brief investigation led to the discovery of additional facts which established probable cause for a valid arrest. Accordingly, we reverse the suppression order.

It is well settled that when a suppression motion is granted, and when the Commonwealth asserts in good faith that the granting of the motion substantially impairs or effectively terminates the prosecution because of lack of evidence, the Commonwealth has the right to appeal the suppression order. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984). The suppression order in the instant case meets the standard for appealability in that the Commonwealth has alleged in good faith and it is readily apparent from the record that suppression of the physical evidence and statements would substantially impair the prosecution of the appellees.

Our scope of review is limited primarily to questions of law. See Commonwealth v. Swint, 256 Pa.Super. 169, 389 A.2d 654 (1978); Commonwealth v. Chinea, 246 Pa.Super. 494, 371 A.2d 944 (1977). We are bound by the suppression court’s findings of fact, if those findings are supported by the record. Commonwealth v. James, 506 Pa. 526, 486 A.2d 376 (1985); Commonwealth v. Brown, 341 Pa.Super. 138, 491 A.2d 189 (1985). In determining whether the findings of fact are supported by the record, we are to consider only the evidence of the appellees and so much of the evidence of the appellant which, as read in the context of the record as a whole, remains uncontradicted. See Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). It is for the suppression court as the trier of fact, rather than the reviewing court, to determine credibility. Commonwealth v. Bonasorte, 337 Pa.Super. 332, 486 A.2d 1361 (1984).

However, we are “not bound by findings wholly lacking in evidence.” Hamlin, 503 Pa. at 215, 469 A.2d at 139, citing Commonwealth v. Hall, 475 Pa. 482, 380 A.2d 1238 (1977). Nor are we bound by the suppression court’s conclusions of law. Commonwealth v. Lark, 505 Pa. 126, 477 A.2d 857 (1984); Commonwealth v. Scatena, 332 Pa. Super. 415, 481 A.2d 855 (1984).

A suppression hearing was conducted before the Honorable Albert W. Sheppard on November 4, 1985. The sole witness to testify at this hearing was Officer David Mar-mien. At the close of the hearing, Judge Sheppard specifically stated that he determined Officer Marmien “to be a credible officer.” (N.T. 11/4/85 at 24-27). On February 27, 1986, Judge Sheppard filed an opinion in which he summarized the salient facts as follows:

On February 28, 1985, at 2:30 in the afternoon, Philadelphia Police Officers Marmien and Derein received a radio assignment to investigate males removing property from 2138 West Columbia Avenue (N.T. 8-9, 24). Within two minutes, the officers arrived at a vacant lot at 22nd and Nicholas Streets — a position one-half block south and one-half block west of the subject location — where they observed the two defendants walking west and carrying four, 4 ft. by 8 ft., formica sheets (N.T. 9-11).
The officers pulled their cars to the curb on 22nd Street, exited the vehicles, approached and stopped the males in the middle of 22nd Street (N.T. 12). They asked the defendants where they had gotten the sheets, and defendants replied that they were contractors and had bought the sheets in the 22 (twenty-two) hundred block of Columbia Avenue (N.T. 13-14).
At that point the officers placed defendants in one of the police cars (N.T. 14) in the custody of Officer Derein (N.T. 21), while Officer Marmien went to investigate the subject premises (N.T. 14-15). Some time later, when Officer Marmien returned to the police vehicles, he encountered a female who identified herself as the property owner (N.T. 16), and who identified the formica sheeting as belonging to her (N.T. 17).
On this record, this Court determined that, in fact, the defendants were arrested and that probable cause for that arrest did not exist.

Suppression Court Opinion at 2-3.

Upon review of the transcript of the suppression hearing, and in light of the suppression court’s specific determination that Officer Marmien’s testimony was credible, we are compelled to make two important corrections to the suppression court’s summary of the salient facts.

First, the credible and uncontradicted testimony of Officer Marmien was that he and Officer Derein first observed the appellees in the vacant lot at a point ten to twenty feet from the fence surrounding 2138 Columbia Avenue, and twenty to thirty-five feet from the building at 2138 Columbia Avenue, which was formerly known as Eddy’s Barbeque Chicken. To the extent that the suppression court’s general findings may conflict with this testimony, the findings are “wholly lacking in evidence” and must be rejected. Hamlin, supra.

Secondly, the suppression court inaccurately characterized the length of the appellees’ detention in the police car. Although the suppression court assigned no specific time interval to Officer Marmien’s investigation of the premises at 2138 Columbia Avenue, the suppression court’s opinion states:

Furthermore, the defendants were held, without their consent, in police custody for that period of time that it required Officer Marmien to walk to, and inspect the premises, and return to the police vehicles — a period of time not described in the record, but realistically not inconsiderable in duration.

Suppression Court Opinion at 5. The credible and uncontradicted testimony of Officer Marmien on this issue was as follows:

Q. How much time, from the time that you arrived at the scene initially, after responding to the radio call, to the time you placed the handcuffs on the defendant, how much time would you say elapsed, total?
A. Less than five minutes.

(N.T. 11/14/85 at 17). Thus the suppression court’s characterization of the length of the detention is not only wholly lacking in support, but is also contrary to the credible, uncontradicted testimony of Officer Marmien on the issue. Hamlin, supra.

We now turn to our review of the legal conclusions drawn by the trial court. The suppression court, relying on its interpretation of Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1983), cert. denied 459 U.S. 1178, 103 S.Ct. 803, 74 L.Ed.2d 1025 (1983), concluded that the appellees were placed under arrest when they were directed to sit in the police car, and that at that time probable cause did not exist for an arrest. We cannot agree.

In Lovette, our Supreme Court held that placing defendant and his companions in a police vehicle and transporting them to the scene of an offense, without their consent and without exigent circumstances, constituted an illegal arrest without probable cause and that evidence gained as a result of the arrest must be suppressed notwithstanding the Commonwealth’s contention that the seizure was intended to serve investigative purposes rather than to arrest and charge the suspect. See Lovette, 498 Pa. at 675-677, 450 A.2d at 980-81.

The majority in Lovette rejected the Commonwealth’s contention that the transportation of the defendant and his companions was a valid investigative detention pursuant to the exception to the probable cause requirement announced by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Our Supreme Court explained:

The Terry exception has been most frequently applied in instances involving merely an involuntary detention, see e.g. Commonwealth v. Anderson, 481 Pa. 292, 392 A.2d 1298 (1978); Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977); Commonwealth v. Mimms, 471 Pa. 546, 370 A.2d 1157 (1977); Commonwealth v. Bailey, 460 Pa. 498, 333 A.2d 883 (1975); Commonwealth v. Richards, [458 Pa. 455, 327 A.2d 63 (1974)]; Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973); Betrand Appeal, 451 Pa. 381, 303 A.2d 486 (1973); Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972); Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969). Here we have the added element of a transportation of the suspects from the place of the initial encounter without exigent circumstances to support that action. The police had the option of detaining the suspects at the site of the initial encounter and either bringing the complainant to the site for his identification of the questioned articles or taking those items to him. Either situation would present a much stronger case for the position the Commonwealth presently urges. The Commonwealth stresses the limited area traversed in the transportation of appellant. This fact only highlights the ease with which the identification could have been made without the movement of the suspects, which increased the intrusiveness of the encounter.

Lovette, 498 Pa. at 676, 450 A.2d at 980. (Emphasis added).

In the instant case, the appellees were detained at the site of the initial encounter and not transported. Thus, according to the majority in Lovette, the Commonwealth has presented a much stronger case in the instant case than was presented to our Supreme Court in Lovette.

There is no question that constitutional protections apply in the instant case. If a police officer accosts a person on the street and restrains his freedom to walk away, the officer has “seized” that person, and if the officer merely explores just the outer surface of that person’s clothing there is a “search;” such search and seizure are within the purview and protection of the United States and Pennsylvania Constitutions. Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969).

The issue in the instant case is whether the seizure of the appellees was reasonable. The essence of state and federal constitutional provisions as to search and seizure is reasonableness. In re Gartley, 341 Pa.Super. 350, 491 A.2d 851 (1985). A policeman who lacks the precise level of information necessary for probable cause is not required to simply shrug his shoulders and allow a crime to occur or a criminal to escape. Commonwealth v. Woodard, 307 Pa. Super. 293, 453 A.2d 358 (1982). Even in the absence of probable cause, an individual may be stopped and briefly detained, providing the investigating officer can point to specific and articulable facts which, in conjunction with the natural inferences deriving therefrom, reasonably warrant the intrusion. Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992 (1981); Commonwealth v. Webster, 291 Pa.Super. 271, 435 A.2d 1217 (1981). An investigative detention may properly ripen into an arrest based on probable cause when additional information confirming the earlier suspicions is uncovered. See Commonwealth v. Palm, 315 Pa.Super. 377, 462 A.2d 243 (1983).

This Court has stated that:

“In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [appellees]. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second guessing.”

Commonwealth v. Mayo, 344 Pa.Super. 336, 341-342, 496 A.2d 824, 826 (1985), quoting United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 1575-76, 84 L.Ed.2d 605, 615-16 (1985) (citations omitted).

In the instant case, the police received a radio assignment “to investigate males removing property from 2138 Columbia Avenue." (N.T. 11/4/85 at 24). About two minutes later, Officer Marmien and Officer Derein arrived at the scene in separate police cars. (N.T. 11/4/85 at 9). The officers observed the appellees walking across the vacant lot behind and adjacent to the property at 2138 Columbia Avenue carrying four sheets of formica measuring four feet by eight feet. When first observed, the appellees were approximately ten to twenty feet from the fence surrounding 2138 Columbia Avenue. They were walking westward toward the 2200 block of Columbia Avenue. (N.T. 11/4/85 at 9-11).

The police officers stopped the appellees and asked them whether they owned the formica sheeting and where they had purchased it. The appellees responded that they had purchased it from another person on the 2200 block of Columbia Avenue. (N.T. 11/4/85 at 13). However, the appellants were walking towards and not away from that block. Officer Marmien then directed the appellees to sit in the police car while he went to make a quick check of the property at 2138 Columbia Avenue. At the property he discovered signs of illegal entry. (N.T. 11/4/85 at 14-15). He then returned to the police car. As he returned, he was met by Barbara Smith who identified herself as the owner of the property at 2138 Columbia Avenue and as the person who had called the police. She then identified the formica boards as her property. Officer Marmien then directed the appellees to exit the police vehicle in order to handcuff the appellees and place them under arrest. Less than five minutes had elapsed since the police officers’ arrival at the scene. (N.T. 11/4/85 at 15-17).

Upon review, we find no violation of the appellees’ state or federal constitutional rights. It was reasonable for the police officers to question the appellees regarding the property they were transporting. Although the suppression court emphasized that the police did not receive a call that a crime was in progress, see Suppression Court Opinion at 3-4, the relevant inquiry is whether as a result of the radio assignment the officers had a reasonable suspicion that criminal activity may be afoot. See Prengle, supra; see also Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982). We find that they did.

Although the suppression court characterized the appellees response as “plausible,” we find that the appellees’ doubtful explanations to the officers heightened rather-than allayed the officers’ reasonable suspicions. The appellees’ statements were in apparent conflict with the officers’ observation of the appellees carrying the boards from 2138 Columbia Avenue toward the 2200 block of Columbia and not away from the 2200 block as the appellees’ statements rationally implied. Thus a brief detention was warranted in order to check the premises at 2138 Columbia Avenue.

As a result of this brief investigation, Officer Marmien discovered evidence of an illegal entry. Upon returning, Officer Marmien encountered Miss Smith who identified herself as the owner of Eddie’s Barbeque Chicken. She then identified the formica boards as her property. At this point, probable cause clearly existed to arrest the appellees at this point.

The most troublesome aspect of this case is the fact that the appellees were directed to sit in one of the police cars while Officer Marmien went to Eddie’s Barbeque Chicken to investigate. Officer Marmien explained that the appellees were directed to sit in the police car because of his concern that it was not safe for Officer Derein to guard both of the appellees without back-up while he left to investigate. (N.T. 11/4/85 at 14).

The suppression court found that by placing the appellees in the police car, the police demonstrated an intent to subject the appellees to the actual control and will of the officers. The suppression court then concluded that the appellees were therefore under “arrest” and reasoned that probable cause was required to justify this detention. We cannot agree.

While we do not approve of the use of excessive restraints upon a person subjected to investigative detentions, we note that every Terry stop involves both a stop and a period of detention during which the suspect is not free to leave but is subject to the control of the police officer. Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), cert. denied, 435 U.S. 947, 98 S.Ct. 1533, 55 L.Ed.2d 546 (1977). In United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), the Supreme Court stated that “the brevity of the invasion on the individual’s Fourth Amendment interests is an important factor in determining whether the seizure is so minimally intrusive as to be justified on reasonable suspicion.” Id. at 709, 103 S.Ct. at 2645. The detention in the instant case was less than five minutes, a very brief period of time.

We do not find that the brief detention in the police car transformed an otherwise proper investigative detention into an illegal arrest. The encounter occurred on a public street in the middle of the afternoon. Officer Marmien was understandably reluctant to leave Officer Derein to guard both the appellees without back-up. In order to maintain the status quo, and to ensure the safety of Officer Derein, Officer Marmien asked the appellees to sit in the police car.

In determining the reasonableness of the detention “we cannot blind ourselves to the need for law enforcement officers to protect themselves.... ” Commonwealth v. Anderson, supra, 481 Pa. at 295, 392 A.2d at 1300. Nor should we indulge in unrealistic second guessing. Common wealth v. Mayo, supra, 344 Pa.Superior Ct. at 342, 496 A.2d at 826. We note that the appellees were not frisked, handcuffed, or formally placed under arrest. The police did not draw their weapons nor did they transport the appellees from the scene of the encounter, thus Lovette does not control.

Under the circumstances, we cannot say that the officers’ actions were unreasonable. Therefore, we find no violation of the appellees’ state or federal constitutional rights, and no reason to suppress the evidence or statements in question.

Based upon the foregoing analysis, the suppression order is Reversed and the case is Remanded. Jurisdiction is Relinquished.

      . In its summary of the salient facts, the suppression court described the location of the vacant lot generally, but did not actually place the appellees within the lot in terms of their proximity to 2138 Columbia Avenue.

      . In Sharpe, the Supreme Court expressly declined to adopt the Court of Appeal’s per se rule that a 20-minute detention is too long to be justified under the Terry doctrine. 470 U.S. at 686, 105 S.Ct. at 1575, 84 L.Ed.2d at 615.

      . At the suppression hearing, the Officer testified regarding the access to the property. Although not necessary to our decision, we note that at the preliminary hearing Officer Marmien testified that his initial investigation revealed that a door was off its hinges, a window was removed with its remains below it, and on the ground outside there were pots and cutting boards, apparently left behind. (N.T. 3/28/85 at 5).

      . We note that the definition of "plausible” is: "seemingly true, acceptable, etc.: often implying disbelief. ” Webster’s New World Dictionary, Second College Edition, at 1091 (World Publishing Co. 1978).

      . Merely because a suspect's activity may be consistent with innocent behavior does not alone make a detention and limited investigation illegal. See United States v. Forero-Ricon, 626 F.2d 218, 221-23 (2d Cir.1980). This is so because the reasonable suspicion standard is less stringent than the probable cause standard and permits an investigatory stop where facts within the officer’s knowledge and his reasonably drawn inferences support a fair suspicion that criminal activity may be afoot. See United States v. Veatch, 596 F.Supp. 1327, 1331 (W.D.Pa.1984). We note that none of the creative explanations offered on appeal to explain the conflict between the officer’s observations and the appellee’s doubtful statements to the officers were made to the officers at the time of the initial encounter.


author: CIRILLO, President Judge: OLSZEWSKI, Judge,

text:
    516 A.2d 1217
    Lawrence SULECKI, Appellant at No. 1993 Philadelphia 1984, v. SOUTHEAST NATIONAL BANK, Appellant at No. 2061 Philadelphia 1984.
    Superior Court of Pennsylvania.
    Argued Feb. 24, 1986.
    Filed Oct. 28, 1986.

      Robert T. Seiwell, Media, for appellant in No. 1993 and appellee in No. 2061.
    John T. Salvucci, Plymouth Meeting, for appellant in No. 2061 and appellee in No. 1993.
    Before CIRILLO, President Judge and CAVANAUGH, BROSKY, WIEAND, MCEWEN, OLSZEWSKI, DEL SOLE, MONTEMURO and TAMILIA, JJ.
   CIRILLO, President Judge:

Plaintiff and defendant have both appealed from an order of the Court of Common Pleas of Delaware County. Plaintiff sued defendant on theories of defamation and interference with business relations. The jury was asked by way of special interrogatories whether defendant did defame plaintiff and interfere with its business relations, and the jury answered in the affirmative. Despite this, no compensatory damages were awarded. However, the jury did award plaintiff $75,000.00 in punitive damages. The trial court found this award shocking and ordered remittitur to $35,000.00.

Defendant contends it was privileged to make the statements which formed the basis for plaintiffs cause of action. Essentially, defendant, a bank, informed prospective borrowers that plaintiff, an automobile dealer, sold such inferi- or automobiles that no car loans would be made to anyone insistent upon buying a vehicle from plaintiff. Defendant characterizes its statements as true and made in the ordinary course of business. Plaintiff has maintained from the outset that defendant sought purposely to drive it out of business.

The trial court expressly recognized the existence of a privilege. We must therefore determine whether that privilege was exceeded. As we reiterated in Chicarella v. Passant, 343 Pa.Super. 330, 494 A.2d 1109 (1985), a privilege is abused when the subject statements are activated by negligence or malice, or are beyond the scope of that which is necessary to accomplish the purpose for which the privilege exists. The jury was properly charged to that effect. Through its verdict and interrogatory answers, the jury clearly found that in fact defendant did exceed its privilege. We find no basis for disturbing this finding on appeal in light of the evidence presented at trial.

Defendant also attacks the award itself as contrary to law. The trial court, reading from the Pennsylvania Suggested Standard Jury Instructions (Civil) § 14.02, Subcommittee Draft (September 26, 1976), instructed the jury that no reasonable relationship need exist between compensatory and punitive damages. Defendant failed to object to this charge at trial but now maintains that such a reasonable relationship must exist. It claims that the jury’s award must be set aside because no punitive award can bear a reasonable relationship to a compensatory award of zero.

In Kirkbride v. Lisbon, 357 Pa.Super. 322, 516 A.2d 1 (1986), we re-affirmed the longstanding rule that a jury’s award of punitive damages must bear a reasonable relationship to the compensatory award. However, the more pointed question presented here is whether any punitive award can bear a reasonable relationship to a zero compensatory award. This issue has already been settled in Pennsylvania. In Hilbert v. Roth, 395 Pa. 270, 276, 149 A.2d 648, 652 (1959), our Supreme Court held that in order to recover punitive damages, the plaintiff must first prove actual compensatory damage. See also Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243 (1983); Emerick v. U.S. Suzuki Motor Corp., 750 F.2d 19 (3d Cir.1984). Therefore, punitive damages may not be imposed in cases of zero compensatory awards. Since punitives are not allowable, the issue of proportionality should never arise.

The defendant now recognizes that under Pennsylvania law, as expressed in Hilbert, punitive damages cannot be imposed unless compensatory damages are awarded. Therefore, he asserts that we must reduce the final award of $35,000 in punitive damages to zero in order to comply with the above cited precedent. However, the defendant failed to object at trial when the trial judge incorrectly instructed the jury on this point.

Specifically, the trial court said:

Now, members of the jury, the amount that you would assess as punitive damages need not bear any relationship to the amount you choose to award as compensatory damages. It’s not necessary that you award compensatory damages to plaintiff in order to assess punitive damages against the defendant as long as you find in favor of the plaintiff....

We must decide therefore, the effect of the defendant’s failure to object to this instruction where, in reliance thereon, the jury awarded punitive damages even though the plaintiff had failed to prove actual damages.

In Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974), the Supreme Court did away with the rule of basic and fundamental error in connection with post-trial review of jury instructions. Thereafter, the court said, a specific objection would have to be taken to preserve an allegedly erroneous instruction for later review. In the instant case, the defendant did not object to the trial court’s erroneous instruction that the jury could award punitive damages even though the plaintiff had sustained no actual damage. The error in the trial court’s instructions, therefore, was waived. The appellant agreed to the court’s instruction that punitive damages could be awarded even if there were no compensatory damages, and the bank will not now be allowed to complain that the jury followed the instructions of the trial court.

Defendant also contends that the $35,000 award was excessive. It argues that its failure to object to the incorrect jury charge does not affect its right to now argue the separate issue of “excessiveness.” However, it asserts that the punitive award of $35,000 is excessive because it lacks a reasonable relation to the compensatory award of zero. This is merely a restatement of the issue disposed of in Hilbert and discussed above. No matter what language it chooses to express itself, defendant cannot alter the fact that it has waived this issue and we will not consider it.

Plaintiff also takes issue with the final award. He argues that a jury’s award should be virtually sacrosanct and that the trial court erred in ordering remittitur from $75,000.00 to $35,000.00. However, we recognized in Daley v. John Wanamaker, Inc., 317 Pa.Super. 348, 464 A.2d 355 (1983), that it is largely within the discretion of the trial court to reduce a punitive award which it finds excessive. This is not to suggest that the trial court’s authority to reduce an award is without constraints. Indeed, the law is clear that the court may not declare an award excessive simply because it might have awarded a lesser amount sitting in place of the jury. The award must be shocking to the court’s sense of justice before remittitur can be deemed appropriate. Id.; See generally Marcone v. Penthouse International, Ltd., 577 F.Supp. 318 (1983), rev’d on other grounds, 754 F.2d 1072, (3rd Cir.1985), certiorari denied — U.S. —, 106 S.Ct. 182, 88 L.Ed.2d 151.

Typically, to consider whether a punitive award shocks one’s sense of justice, the court must look to the nature of the conduct engaged in by the defendant, the purpose that punitive damages are intended to achieve, the amount of the award and its likely effect as punishment for the defendant’s outrageous conduct as well as the relationship between the punitive and compensatory awards. See Feld v. Merriam, 314 Pa.Super. 414, 434-38, 461 A.2d 225, 235-37 (1983) rev’d other grounds, 506 Pa. 383, 485 A.2d 742 (1984).

The trial court’s comprehensive opinion considers each of these factors. It states in pertinent part:

The purpose of assessing punitive damages is to punish the wrongdoer for malicious, wanton and reckless conduct and to deter future wrongdoing both by the Defendant and others by setting an example for the public in general. In determining the size of a punitive award sufficient to serve these purposes, the acts of the wrongdoer, the motives of the wrongdoer and the relationship between the parties are all to be considered. (Citation omitted) Moreover, consistent with the rule hereinabove adopted which establishes a cause of action as the sole prerequisite for a punitive award, one of the factors to be considered in determining the reasonableness of the punitive award should be the relationship of the punitive award to the harm or injury to the plaintiff and the cause of that harm or injury. (Citations omitted)
There is no question but that an award of punitive damages was proper in this case. As discussed above, the Defendant-Bank, through its employees acting within the scope of their employment, slandered Plaintiff in his business as a used car salesman and abused its power in adversely affecting Plaintiffs relationship with his customers. An award of punitive damages, under the circumstances, was proper to punish the Bank and to deter the Bank and others from similar outrageous conduct. Nevertheless, an award of $75,000 in punitive damages was not necessary to accomplish this goal.
The record in this case reveals that the Defendant-Bank is a corporation which operates through its agents or employees. The outrageous conduct of the Bank in this instance resulted from a personal hostility or dislike of the Plaintiff by one of the Bank’s employees, the senior-vice president in charge of consumer lending, Earl McBride. The testimony indicates that it was this individual who sent out the directive to the other Bank employees that Plaintiff’s customers were not to be given financing by the Bank and it was this individual who indicated that he intended to run the Plaintiff out of business. Although McBride at this time was acting within the scope of his employment, there is no indication in the record that the corporate officers of the Bank or its shareholders or board of directors condoned this conduct or even knew about it. Nor is there any indication that the Bank ever conducted itself in a similar fashion with any of its other customers. It is apparent that this is a case where a Bank employee, because of his personal dislike of the Plaintiff, used his position with the Bank to attempt to harm the Plaintiff....
We do not believe that it is necessary or proper, under these circumstances, to impose a penalty of $75,000 on the Defendant-Bank in order to punish or deter such activity.

This finding and determination by the trial judge which led to the remittitur of the punitive damage award is amply supported by the record, presents a correct analysis of the law and was a proper exercise of the discretion of the trial court in directing a remittitur. Therefore, we must reject plaintiffs assertion that the court erred in reducing the jury’s award.

The jury awarded punitive damages in the amount of $75,000.00. The trial court determined that these damages were excessive and granted a new trial unless the plaintiff agreed to a remittitur to $35,000.00. Given the unchallenged instructions to the jury which prompted an award of punitive damages, we find no abuse of discretion with respect to the manner in which the trial court controlled the amount thereof.

Therefore, we affirm the judgment of the trial court.

OLSZEWSKI, J., files a concurring opinion.

OLSZEWSKI, Judge,

concurring:

I concur in the result of this case, but write separately to address the majority’s obiter dictum, on the relationship between punitive and compensatory damages. Since no exceptions were taken to the trial court’s charge that there need be no relationship between compensatory and punitive damages, this issue was not reserved for appellate review.

I must disagree with the obiter dictum in this case and its reliance on the holding in Kirkbride v. Lisbon, 357 Pa.Super. 322, 516 A.2d 1 (1986). This decision would adopt the rule that a jury’s award of punitive damages must bear a reasonable relationship to the compensatory award. I believe that the better course would be to acknowledge the different purpose served by each type of damages and to adopt the view of the Second Restatement of Torts. The Restatement’s section on punitive damages reads:

(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future. (2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.

Restatement (Second) of Torts Sec. 908. Comment c to that section states that “it is not essential to the recovery of punitive damages that the plaintiff should have suffered any harm, either pecuniary or physical.” Id. comment c.

The considerations given by the Restatement for assessment of punitive damages provide ample means by which punitive awards may be scrutinized. The utility of this approach is illustrated in the instant case in which the trial court ordered remittitur to prevent an excessive award of punitive damages. The rule allowed the punitive and deterrent purposes of this type of damages to be fulfilled in a situation where it was clear that the jury found the wrongdoer’s conduct to warrant an award of punitive damages against it. Thus, the Restatement view provides flexibility without abandoning stability.

      . As the trial court opined, it may have been that the jury simply lumped a compensatory award with the punitive figure to arrive at a single, tidy amount. In any event, the interrogatory answers make clear that plaintiff sustained his cause of action despite the zero compensatory damage figure. See Agriss v. Roadway Express, Inc., 334 Pa.Super. 295, 483 A.2d 456 (1984) (special damages need not be proven in libel case).

      . These instructions appear to be based upon panel decisions of this Court in Rhoads v. Heberling, 306 Pa.Super. 35, 451 A.2d 1378 (1982) and Laniecki v. Polish Army Veterans Association, 331 Pa.Super. 413, 480 A.2d 1101 (1984). These panel decisions, however, are in conflict with Hilbert v. Roth, supra, and other Supreme Court decisions.


author: OLSZEWSKI, Judge:

text:
    516 A.2d 1222
    COMMONWEALTH of Pennsylvania v. Joseph MORETTI, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed Oct. 28, 1986.

      Jeffrey P. Garton, Langhorne, for appellant.
    Christopher J. Serpico, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

Appellant Joseph Moretti was found guilty of, inter alia, two counts of homicide by motor vehicle, 75 Pa.Cons.Stat. Ann. Sec. 3732 (Purdon’s Supp.1986). Appellant’s post-trial motions were denied without opinion, and appellant was sentenced to a term of imprisonment. Appellant now appeals the imposition of sentence, raising three claims: (1) the evidence was insufficient to support the conviction; (2) several inflammatory photographs of the victim were admitted into evidence; and (3) trial counsel was ineffective. Finding that appellant’s claims lack merit, we affirm the judgment.

Before reaching the merits of appellant’s claims, we note the unusual stature of this case. Although appellant technically appeals from the imposition of sentence, the basis of this appeal is the trial court’s denial of appellant’s post-trial motions in arrest of judgment and for new trial. Because a ruling in appellant’s favor would have affected the sentencing decision, appellant now advances the arguments made in his post-trial motions.

This anomaly arose because the trial judge, the Honorable Edmund V. Ludwig, assumed a seat on the federal bench after ruling on the motions but before an opinion in support of the decision could be written. The case was reassigned and appellant was sentenced by the Honorable Isaac S. Garb. Although proper procedures would have required that appellant now raise claims of error regarding his sentence, we will address the merits of appellant’s arguments because of the unique circumstances present here. While we do not have the benefit of the reasons supporting Judge Ludwig’s denial of appellant’s motions, we are aided by the exhaustive statement of the case made by Judge Garb pursuant to Pa.R.Crim.P. 1925.

Appellant contends the evidence was insufficient to support the guilty verdict and the denial of the motion in arrest of judgment for the two counts of vehicular homicide. Viewing the evidence in a manner most favorable to the Commonwealth and giving the Commonwealth the benefit of all reasonable inferences, Commonwealth v. Maldonado, 343 Pa.Super. 154, 158, 494 A.2d 402, 404 (1985), we find the evidence presented at trial was sufficient to establish appellant’s guilt on both counts.

The evidence produced at trial established that the decedent, Darryl Oliver, was struck and killed by an automobile while he was walking along the side of a busy highway. The Commonwealth’s witness, Stephen Dunkleberger, testified that he and the decedent were walking about eight feet from the roadway along a grass bank. Dunkleberger also testified that traffic was heavy and that they were not hitchhiking. He stated that the decedent might have been a little behind him, but that he never saw the decedent step onto the highway. Dunkleberger did not see the car which struck the victim.

A second witness, Thomas Lenich, testified that immediately prior to the accident, he had stopped his car at a traffic light when he was almost struck by appellant’s vehicle. At the time, Lenich was 100 to 150 yards from the place where the decedent was walking. Lenich recalled that appellant’s car had at least two wheels off the road when it passed him. Lenich also testified that he followed appellant’s car and that it again had at least two wheels off the road. The witness recalled seeing two people walking on the shoulder of the road along the grass bank with their backs toward traffic at about the same time he saw appellant’s erratic driving. Lenich testified that he turned onto a road and stopped for a traffic light. He next saw appellant’s car pulled off to the side of the road near the victim. Although Lenich did not see the actual moment of impact, he stated that he had a clear view of the area just prior to impact.

Linda Zehel, a passenger in the appellant’s vehicle at the time of the accident, testified that because of her short stature (4T1"), she could barely see above the car’s dashboard. She recalled, however, hearing a thud at about the same time that the appellant had reached for a pack of matches located in the middle of his car’s dashboard. Zehel also testified that appellant was not speeding and was not driving in an erratic manner.

Dr. Halbert Fillinger, the Commonwealth’s forensic pathologist, opined that the victim was initially struck from the right side and slightly to the rear. Appellant’s expert witness, Dr. Isadore Mihalakis, agreed that the impact was to the right side of the decedent.

The jury also heard testimony from two police detectives. Detective Koszarek testified that there was no physical evidence at the scene when he arrived and that the area was not carefully examined because traffic was heavy. He further stated he took a statement from appellant on the day after the accident, in which appellant stated that the victim turned to his left as if to hitchhike and struck the right-hand mirror on appellant’s car. During that interview, appellant told Detective Koszarek that, after hitting the decedent, appellant stopped, backed up, briefly talked to the decedent’s companion, and then drove to a nearby service station and called the police. Appellant’s statement further alleged that appellant attempted to return to the scene but, when he saw the traffic and people around the scene, he panicked and left the area. Detective Koszarek also stated that at no time during the interview with appellant did the latter mention that his view was obstructed by a truck.

Another investigator, Detective Van Sant, stated that he examined appellant’s car and found damage to the right-front headlight, bumper, and windshield, but no damage to the car’s right-hand mirror. Detective Van Sant also testified that particles of blue jeans were removed from the damaged area of the car and sent for comparison tests. There is nothing in the record as to the results of those tests.

Finally, appellant took the stand and stated that he and Linda Zehel were driving in the far right-hand lane and that there was a truck in front of him. Appellant further stated: “And everything happened so fast, in a split second I saw a figure turning to face me and walk into the front, like just stepped right into the side, not even the front, into the side of the car and spun and that was it. I hit the brakes ... I stopped the car ... I looked back and I said, ‘we hit somebody.’ ” (N.T. 165). Appellant recalled that the decedent stepped onto the road as if to hitchhike and that he hit the right-hand mirror of appellant’s car.

The Commonwealth must prove three elements in order to support a conviction of vehicular homicide: (1) defendant drove in a manner which violates the Motor Vehicle Code; (2) defendant knew or should have known that his conduct was in violation of the law; and (3) the death was a probable result of the Motor Vehicle Code violation. Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980). We find the circumstantial evidence was sufficient to satisfy these elements and support the jury’s verdict.

The testimony established that appellant’s car was traveling with at least two tires off the road and onto the shoulder for an undetermined distance as the car neared the location where the decedent was struck. Further testimony-placed the decedent and Ms companion off the roadway and at least eight feet onto the shoulder of the road. Appellant’s companion recalled hearing a thud at about the time appellant was reaching for a pack of matches. Further, the testimony of the expert witnesses indicating that the decedent was struck on the right side supports the Commonwealth’s contention that the decedent was turning to his right at the time of impact. In our view, the evidence and the reasonable inferences taken therefrom establish that appellant had driven recklessly in violation of 75 Pa.Cons.StatAnn. Sec.3714, and had driven off the roadway in violation of 75 Pa.Cons.Stat.Ann. Sec. 3309.

From the testimony, it is also clear that appellant “knew or should have known” that his conduct was in violation of the law and that death was a probable consequence of his violations. We find that it was careless for appellant to permit his car to leave the roadway and to drive on an area unmarked as a roadway. Moreover, appellant’s failure to observe pedestrians who were walking some eight feet from the roadway was reckless behavior. Appellant should have been aware that such driving conduct endangers the safety of pedestrians.

Although this is a close case, we leave it to the jury to evaluate appellant’s credibility and to reject or reconcile discrepancies in the testimony and the evidence. Further, we note that since appellant fled the scene, the jury was free to infer a guilty conscience.

In sum, the evidence presented was sufficient to support the jury’s findings of guilt on both counts of vehicular homicide. Accordingly, appellant’s motions in arrest of judgment and for new trial were properly denied.

Appellant also argues that the trial court improperly admitted three inflammatory photographs taken of the victim during the autopsy. We do not believe the photographs are prejudicial. Rather, we find that they fairly and accurately depicted the decedent’s injuries and were necessary to aid the testimony of the forensic pathologist.

Finally, appellant argues that trial counsel was ineffective for failing to object to statements made by the prosecuting attorney. In his closing argument, the assistant district attorney stated:

Now, the disputable (sic) fact is that despite whatever the outcome of your verdict is, the tragedy is, of course, we can’t bring Darryl Oliver back to life. I know that and so do you and so does his family. But I ask you to bring to your deliberations the solemnity and the solemness that his family would expect and that the defendant would expect.
And I ask you to approach this case, to approach your deliberations as if your verdict is capable of restoring Darryl Oliver to life; the very capability of restoring and maintaining his family’s belief in our system of justice. I ask you to approach it that way.

(N.T. 243.)

Appellant contends that the above statements were designed to prompt the jury to act out of sympathy for the victim. We find the prosecutor’s statements do not warrant the grant of a new trial.

A prosecutor’s summation should be limited to the facts in evidence and all reasonable inferences derived therefrom. Commonwealth v. Hassine, 340 Pa.Super. 318, 344, 490 A.2d 438, 452 (1985) (citations omitted). The failure to object to improper statements does not render the assistance of counsel ineffective unless the effect on the jury is to fix a bias and hostility toward the defendant. Id. The duty of the reviewing court is to determine whether the prosecutor’s statements so influenced the jury that they could not have reached a verdict based upon the evidence. Id. Reading the first statement by the prosecutor in context, we believe counsel was reminding the jury of its solemn duty to reach a verdict based upon the evidence presented at trial — regardless of whether the verdict was favorable to the Commonwealth or to appellant.

Counsel’s request that deliberations be conducted in such a way that the verdict could bring the decedent back to life was improper. The remark, however, was extremely short and limited; the prosecutor did not “attempt to focus the jury’s attention on issues not before them or to invite them to render an unreasoned verdict.” Commonwealth v. Clark, 280 Pa.Super. 1, 11, 421 A.2d 374, 379 (1980), aff'd, 501 Pa. 393, 461 A.2d 794 (1983). Further, the trial court cured any possible prejudice due to this remark with the following instruction:

So members of the jury, you’re going to be going back to the jury room shortly. Approach the case from an unemotional standpoint, from the standpoint in an exercise in reason and good judgment. Disregard any feeling of sympathy or resentment toward either side or toward any witness. Look solely to the testimony and the exhibits that were received into evidence.

(N.T. 271-72.) See Commonwealth v. Gilliard, 300 Pa.Super. 469, 446 A.2d 951 (1982) (court’s instructions cured arguably improper statement by counsel). Accordingly, we find this argument meritless.

Judgment of sentence affirmed.

      . The record indicates that appellate counsel was appointed prior to the denial of post-trial motions.


author: WIEAND, Judge:

text:
    516 A.2d 1226
    Rhea Jean THOMPSON and Lee Thompson and Piper Aircraft Corporation v. MOTCH & MERRYWEATHER MACHINERY COMPANY, a corporation, and Canron, Inc., a corporation. Appeal of Rhea Jean THOMPSON and Lee Thompson.
    Superior Court of Pennsylvania.
    Argued March 26, 1986.
    Filed Oct. 22, 1986.

      Paul E. Moses, Pittsburgh, for appellants.

      Stephen M. Houghton, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

Rhea Jean Thompson sustained injuries to her arm and hand when it became caught between dies of a power press while she was at work. She commenced an action seeking to impose strict liability for a defectively designed press against Canron, Inc. (Canron), the manufacturer, and Motch & Merryweather Machinery Co. (Motch), who had sold the press to her employer. The jury which heard the evidence returned a verdict for the defendants. A motion for new trial was denied, and judgment was entered on the verdict. This appeal followed by Mrs. Thompson and her husband.

Mrs. Thompson was employed as a power press operator by Piper Aircraft Corporation (Piper), an airplane manufacturer. Throughout her employment by Piper, she had worked on a press manufactured by Canron and sold to Piper by Motch. The press was equipped with a hydraulically-operated ram, to which a die could be fitted. When the ram was lowered, the die would exert pressure against an opposing die attached to the bed of the machine. The machine was used by Piper primarily for the purpose of flattening and forming various sizes of metal sheets for use as airplane parts.

The press could be operated in one of two ways: (1) by pressing dual hand buttons; or (2) by depressing a foot pedal. The mode of operation could be determined by the operator by turning a key located near the hand buttons. In order to operate the press by use of the hand buttons, both buttons had to be depressed simultaneously. Use of the hand button control system prevented the operator from placing his or her hands between the dies while the machine was in operation. When the foot pedal was used, however, it was possible for an operator to put his or her hand in the work area while operating the press.

During the operation of the machine, it was not uncommon for objects being pressed to become dislodged from the die. The press, as designed and manufactured by Canron and sold to Piper, had contained no device to prevent the dislodged pieces from falling from the rear of the die to the floor. To retrieve these fallen objects, an operator would be required to walk around the press and pick up the material from the floor. Seeking to avert this inconvenience, Piper welded a metal apron onto the rear of the press sometime after purchase. The apron effectively prevented pieces from falling from the die to the floor. An operator using the machine as modified by Piper, therefore, was able to reach across the work area of the press to retrieve material which had fallen from the die onto the apron.

On May 4, 1978, Mrs. Thompson was operating the press by foot pedal, while using it to flatten quarter-sized metal discs. After each application of the ram, she would clear the die and reload it with her hands. While she was operating the machine, the ram descended on her right hand and wrist, inflicting injuries for which she claimed damages in the instant suit.

It was Mrs. Thompson’s contention at trial that the press had been defectively designed because it lacked a guard or device which would protect against injury to the operator’s hands while the ram was being activated by the foot pedal. To support this contention, she offered the testimony of Morton Markowitz, a mechanical engineer, who testified that there existed feasible devices which could have been employed to make safer the operation of the press via foot pedal. Inasmuch as it lacked one of these devices, he opined, the press was defective in design.

This testimony was rebutted by Peter Barrosso, a mechanical engineer called as an expert witness to testify on behalf of appellees. After testifying to the safety, efficiency, and cost limitations pertaining to each of the designs suggested by Thompson’s expert witness, Barrosso said that in his opinion no other safety feature would have made the press safer than it was. He concluded that the machine was not defective as designed and manufactured by Canron and sold by Motch.

If the power press were unsafe, the manufacturer and seller contended, the condition had been caused by Piper’s installation of the metal apron. Defendants contended during trial that the addition of the metal apron had been a substantial change to the press which relieved them of liability for the injury suffered by Mrs. Thompson, who allegedly had attempted to reach material on the apron while the press was being operated by foot pedal. Circumstantial evidence demonstrated this possibility, because after the accident Thompson’s hand and wrist were observed extending between the upper and lower die at the right rear corner of the press. From this evidence the jury was asked to infer that Mrs. Thompson had been attempting to reach around or over the die in order to retrieve fallen discs from the apron while the ram was descending.

At the conclusion of the trial, the trial judge instructed the jury on the issue of substantial change as follows:

The seller is responsible only for such defects as exist at the time the product leaves his control. The seller is not liable for defective conditions created by substantial changes in the product occurring after the product has been sold.
I think the contention is here that there may have been some kind of an apparatus put in the back of the press which the defendant contends may have caused the accident and this is a substantial change. This is up to you to determine whether there was a substantial change or whether there was not.
... The seller is responsible only for such defects as exist at the time the product leaves his control.
Again, he is not reasonable [sic] for any substantial changes made in the product after the product has been sold. If you find that there was an alteration or substantial change in the product, you must determine whether the seller and the manufacturer could have reasonably foreseen or expected such a change in alteration. Change or alteration. If the change is unexpected or unforeseen, then you should find the defendants not liable for injuries to the plaintiff.

N.T. at 1103, 1110. Following the completion of the charge, counsel for appellants noted two objections with respect to the court’s instructions on substantial change:

The only exception I have, only two I have, number one, I except to the Court’s charge concerning the defense of substantial change for the reason one, there isn’t any evidence of any substantial change. Secondly, any such substantial change would have to be the legal cause of the harm.

N.T. at 1120. Thereafter, the court gave additional, corrected instructions to the jury as follows:

I talked to you about substantial change and I have been asked to charge you. I [will] do that[.] [I]f you do find there is a substantial change, you have to find that that is a legal cause of the injury to the plaintiffs. A substantial factor. If you find that there is a substantial change after the machine was delivered, then you have to find that there was a substantial factor in causing the injury also.

N.T. at 1127. These additional instructions were apparently deemed satisfactory, for no further objection was made.

During its deliberations, the jury requested the trial court to clarify its charge concerning “Manufacturer[’]s liability on safety features at time of delivery.” Accordingly, the court reiterated much of its charge on the issue of liability, including the following instructions on substantial change, which were given without objection:

A seller or manufacturer is responsible only for such defects as exist at the time the product leaves his control. The seller or manufacturer is not liable for substantial changes in the product occurring after the product has been sold. If you find an alteration or substantial change in the product, you must determine where the manufacturer, whether the manufacturer-seller could have reasonably foreseen or expected such a change or alteration. If the change is unexpected or unforeseen, then you should find the defendants not liable for injuries to the plaintiff.
In addition to finding a substantial change, you have to find that this was a substantial factor or legal cause also in that connection.

Appellants argue on appeal that the trial court erred in charging the jury on the issue of substantial change. We disagree. The evidence showed unequivocally that a change had been made to the press after it had been sold. If the alteration could not reasonably have been foreseen by the manufacturer and if it were a superseding cause of the user’s injury, the manufacturer would be relieved of liability even if there had been design defects existing at the time the press was delivered to the purchaser. 63 Am.Jur.2d, Products Liability, § 267. See: Philadelphia National Bank v. Dow Chemical Co., 605 F.Supp. 60, 64 (E.D.Pa.1985); Dennis v. Ford Motor Co., 332 F.Supp. 901, 903 (W.D.Pa.1971), aff'd, 471 F.2d 733 (3d Cir.1973); Burch v. Sears, Roebuck and Co., 320 Pa.Super. 444, 453, 467 A.2d 615, 620 (1983). Where the evidence on this issue is conflicting, the manufacturer’s liability for injuries caused by an altered product is for the jury. 63 Am.Jur.2d, Products Liability, § 267. See: Mazzi v. Greenlee Tool Co., 320 F.2d 821, 826 (2d Cir.1963); Ford Motor Co. v. Mahone, 205 F.2d 267, 269 (4th Cir.1953); D’Antona v. Hampton Grinding Wheel Co., 225 Pa.Super. 120, 125, 310 A.2d 307, 310 (1973). The trial court in this case did not err by submitting the issue of substantial alteration to the jury.

With respect to the substance of the court’s jury instructions, any errors therein have been waived. After an initial objection to the jury instructions, the court accepted plaintiffs’ suggested addition and instructed the jury further that an alteration of the press would not relieve the manufacturer from liability unless the alteration had been a substantial factor in causing the injury. No objection was made to the court's corrected instructions, and none was taken to the reiteration of those instructions in response to the jury’s request for additional instructions.

The Supreme Court has warned that counsel will not be permitted to “sit idly by, tak[ing] his [or her] chances with instructions given at trial, and then, having lost the case, seek a new trial and second opportunity on the ground that the charge was prejudicial to his client.” Reardon v. Meehan, 424 Pa. 460, 468, 227 A.2d 667, 672 (1967) quoting Lobalzo v. Varoli, 422 Pa. 5, 9, 220 A.2d 634, 635 (1966). See: Enfield v. Stout, 400 Pa. 6, 13-14, 161 A.2d 22, 26 (1960); Lyons v. Wargo, 386 Pa. 482, 485, 126 A.2d 411, 412 (1956). The failure of Thompson’s counsel to object to the court’s corrected instructions on the issue of substantial alteration of the press effectively precluded Thompson from assigning the court’s instructions as a basis for a new trial. See: Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Appellants’ contention that the verdict was contrary to the weight of the evidence must also be rejected.

[T]he decision to either grant or deny a motion for new trial [on grounds that the verdict was against the weight of the evidence] is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion.... Our Supreme Court has held that a new trial should be granted only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). A new trial should not be granted where the evidence is conflicting and the jury might have found for either party, nor where the trial judge would have reached a different conclusion on the same facts.
Myers v. Gold, 277 Pa.Super. 66, 69, 419 A.2d 663, 664 (1980). See: Austin v. Ridge, 435 Pa. 1, 255 A.2d 123 (1969); Brown v. McLean Trucking Co., 434 Pa. 427, 256 A.2d 606 (1969); Carroll v. Pittsburgh, 368 Pa. 436, 84 A.2d 505 (1951); Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984); Mattox v. City of Philadelphia, 308 Pa.Super. 111, 454 A.2d 46 (1982); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

Hawthorne v. Dravo Corp., Keystone Division, 352 Pa.Super. 359, 365, 508 A.2d 298, 301 (1986).

The evidence in the instant case was more than adequate to support the jury’s verdict. Indeed, the defendant-manufacturer and the seller presented substantial evidence by way of expert testimony that the power press had not been defective or unsafe for its intended use at the time of its design and manufacture by Canron and its sale by Motch. Although this testimony was contradicted by the opinion testimony of Thompson’s expert, the conflict was for the jury to resolve. The manufacturer’s evidence was adequate to permit the jury to find that the press had not been defectively designed or manufactured when sold to Piper. A reviewing court will not disturb the verdict of the jury merely because, in light of conflicting expert testimony, a different result might have been reached. In addition to evidence regarding the design of the press and the alteration made by the purchaser, evidence was presented which, if believed, permitted the jury to find that the press was being misused at the time Thompson sustained her injuries. In particular, the foreman on duty at the Piper plant on the day Mrs. Thompson was injured testified that the distance between the upper and lower dies of the press had been improperly adjusted, and that Mrs. Thompson had been using the foot pedal to operate the ram despite specific instructions to the contrary by her employer. In light of all of the evidence, we perceive no abuse of discretion in the trial court’s determination that the verdict was not contrary to the weight of the evidence.

Judgment affirmed.

      . Mrs. Thompson’s husband had asserted a derivative claim for loss of his wife’s consortium.


author: TAMILIA, Judge:

text:
    516 A.2d 1231
    Timothy W. DENGLER, a minor by Joan K. DENGLER, his mother v. Donald J. CRISMAN, Jean H. Crisman and Neal B. Crisman, Appellants.
    Superior Court of Pennsylvania.
    Submitted June 4, 1986.
    Filed Oct. 22, 1986.

      Rabe F. Marsh, III, Greensburg, for appellants.

      Vincent J. Quatrini, Jr., Assistant District Attorney, Greensburg, for appellees.
    Before CIRILLO, President Judge, and TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

Timothy W. Dengler, minor/appellee, was injured in an automobile accident on January 28, 1982, when he ran out into the highway, against the traffic signal, and was struck by a vehicle operated by Donald J. Crisman. His mother, appellee Joan K. Dengler, commenced suit on his behalf against appellants on January 25, 1984. After a writ of summons was issued, but before a complaint was filed, appellees filed, inter alia, a Petition to Enforce Settlement alleging that a settlement agreement had been reached between appellees and the appellants’ insurance carrier, the Hartford Insurance Co., in the amount of $10,000.

Appellants filed an Answer to the Petition alleging that since appellees had failed to accept the offer of settlement within the prescribed time, the settlement offer made by the Hartford Company had been withdrawn. Appellants further contended that a settlement of the action could not be enforced because Mrs. Dengler, as a parent, had no authority to bind the estate of her minor son absent prior court approval, pursuant to Pa.R.C.P. 2039.

On November 26, 1984, a hearing was held before Judge Daniel J. Ackerman wherein evidence was submitted on the matters raised in the aforementioned Petition and Answer. The lower court determined that: (1) on April 1, 1984, an agreement was entered into by appellees and the Hartford Company to settle appellee’s claim for $10,000 and (2) between the date of the agreement and prior to the submission of the matter to the court for approval, the Hartford Company rescinded.

The court then instructed the parties to submit briefs on the issue of whether the Hartford Company had the legal right to rescind the agreement.

On January 22, 1985, the lower court entered an Order wherein it found the agreement was not voidable by the Hartford Company prior to approval of the settlement by the court. Accordingly, the court granted appellee’s petition to enforce the settlement and directed her to submit a petition pursuant to Pa.R.C.P. 2039. An immediate appeal was taken from the court’s Order but was quashed as interlocutory by this Court’s Per Curiam Order of April 30, 1985. See Dengler v. Crisman, No. 241 Pittsburgh, 1985. Thereafter, by Order dated September 19, 1985, the lower court approved the compromise and settlement of the minor’s claim in the amount of $10,000.

The instant appeal was then taken from the October 22, 1985 judgment entered on the January 22, 1985 Order and the October 17, 1985 judgment entered on the September 19, 1985 Order.

The thrust of appellants’ first argument is that until the court gives approval to a settlement, any prior agreement as to a settlement figure formed by the parties is voidable at the election of either party. The compromise or settlement of a minor’s action is governed, in part, by Pa.R.C.P. 2039, which provides that, “[n]o action to which a minor is a party shall be compromised, settled, or discontinued except after approval by the court pursuant to a petition presented by the guardian of the minor.” Pa.R.C.P. 2039(a). Unquestionably, the purpose of Rule 2039 is to protect the rights of minors in the settlement of their claims and, accordingly, “[t]he court is given wide discretion in such cases, subject to the primary interest of protecting the minor.” Wilson v. Bensalem Township School District, 27 Pa.Cmwlth. 609, 367 A.2d 397, 398 (1976). This principle was also addressed by our Court in Klein v. Cissone, 297 Pa.Super. 207, 443 A.2d 799 (1982) wherein we stated:

At the outset, it must be pointed out that in all actions involving a minor, the best interests of that child are of paramount and controlling importance to this court. The minor litigant’s interest must be protected above all other conflicting interests. In order to effectuate this deeply ingrained fundamental concept, Pa.R.C.P. 2039 was promulgated.

Id., 297 Pa.Superior Ct. at 213, 443 A.2d at 802.

We find appellants’ argument, that a settlement in a minor’s action is not binding on them until court approval is obtained, to be in direct contravention with the purpose of Pa.R.C.P. 2039. Without Pa.R.C.P. 2039, there is no question that a settlement would be binding on behalf of the minor, as long as the appropriate guardian represented his interest. The intent of that rule could not be to lessen the validity of such settlement, but only to add an additional layer of protection for the minor. Such a settlement is binding on the negotiators but voidable as to the minor, pursuant to Rule 2039. Once the court approves the settlement negotiated by the parties, the agreement then becomes binding on the minor. This course of action allows the guardians of a minor to effectively negotiate a settlement while at the same time protect the minor’s interest by requiring court approval before the settlement can have a binding effect on the minor. We fail to see how allowing the insurance carrier to repudiate the settlement agreement will advance the purpose of the rule. Normally, where a party enters into a settlement agreement, the agreement is binding and enforceable without court approval. Pa.R.C.P. 2039 adds a requirement of court approval for the sole purpose of protecting the minor’s rights. See Wilson, supra. The agreement to settle in a minor’s action comes into existence prior to the court’s approval and it is only the court’s disapproval of the terms of the agreement to settle that would permit a party to be released from its obligations thereunder.

Appellants further contend that the minor plaintiff’s mother, as natural guardian, had no power or capacity to bind the estate of her child since she is not a proper guardian under the Probate, Estates, and Fiduciaries Code.

Appellants’ reliance on the P.E.F. Code is misplaced since this is not a question concerning distribution of a minor’s estate subject to the P.E.F. Code, 20 P.S. § 5111 et seq. That Code and section applies to the governance of estates that have come into existence and those within the jurisdiction of the Orphans’ Court. It stands to reason that no estate exists until the settlement is approved and payment made, at which time Pa.R.C.P. 2039(b) provides for distribution. We are concerned at this stage with an action of law which is governed by the Rules of Civil Procedure, involving minors as parties, under Pa.R.C.P. 2026 et seq.

Rule 2026. Definitions, provides as follows:

“action” means any civil action or proceeding at law or in equity brought in or appealed to any court of record which is subject to these rules;

Civil actions, in which minors are parties, are governed by the above rules and are not in conflict with 20 P.S. § 5111, supra. The Orphans’ Court Rule 12.5 et seq., providing for the appointment of a guardian for the estate or person of a minor, under Orphans’ Court practice is distinguishable, in many respects, from actions at law or in equity and provides procedure unique to that aspect of the law. To require all actions, civil or otherwise, in which a minor is involved, to first proceed in Orphans’ Court for appointment of guardian of the minor, would place an abnormal burden on that court and be entirely redundent in view of the procedures detailed by the Rules of Civil Procedure for that purpose.

Civil actions, involving a minor, must have a guardian on behalf of that minor to represent his interests. Rule 2028 provides:

Rule 2028. Actions by and against Minors. Averments in Plaintiffs Pleading
(a) An action in which a minor is plaintiff shall be entitled “A, a Minor, by B, his Guardian”, against the party defendant.
Note: Under the above rule, the representative of a minor plaintiff is termed a “guardian” regardless of whether under prior practice he would be termed a legal guardian or a next friend.
(b) The initial pleading filed in behalf of a minor plaintiff shall state the name and address of his guardian and his relationship, if any, to the subject matter of the action or to any of the parties thereto. In case the person selected as guardian is a guardian appointed by any court of competent jurisdiction or by a will duly probated, the initial pleading shall contain a reference to the record of the appointment.
(c) An action in which a minor is the defendant shall be commenced against the minor by name in the manner in which a like action is commenced against an adult. While this action was initially brought by the mother,

Joan K. Dengler, and Timothy W. Dengler, a minor, leave to amend the caption was granted to permit the mother to bring this action as guardian pursuant to the above rule. This corrected any error that might have resulted in the proceeding. It also complied with the joinder requirements of Rule 2228 infra. The rules provide for ease of obtaining the requisite guardianship, exercise of some control by the minor in selection of the guardian and power in the court to assure that the guardian is appropriate and in the case where one is not designated, to provide one as needed. (See Rule 2031 infra). It cannot be questioned that the most appropriate and preferred guardian would be a parent of the child. The rules have superseded statutory procedures created under the Married Womens Act, 48 P.S. § 91, Mother to have same power and control over minor child as father; right of action for injuries to child. There it provided in part:

... The father and mother shall have a joint right of action for injuries to their minor child, for the loss of its services and expenses incidental thereto, and either the father or mother shall have the right to sue therefor in the name of both. In case the father and mother live apart the action shall be maintained by the parent having the custody of the child and the control of its services.

1895, June 26, P.L. 316, § 1; 1925, May 13, P.L. 638 § 1.

These provisions were suspended absolutely by Pa.R.C.P. 2250. Supplanting 48 P.S. § 91, Rule 2228, Joinder of Related Plaintiffs, provides:

(b) If an injury, not resulting in death, is inflicted upon the person of a minor, and causes of action therefor accrue to the minor and also to the parent or parents of the minor, they shall be enforced in one action brought by the parent or parents and the child. Either parent may sue therefor in the name of both; but if the parents live apart the action shall be brought by the parent having the custody of the child and the control of its services. Adopted June 7, 1940, effective Feb. 5, 1941. Amended and effective April 18, 1975; June 24, 1976.

Thus it is clear that the parent has the natural and primary right to bring an action, as guardian, on behalf of his or her child, subject only to the condition that claims by the individual parents on their own behalf and that of the child must be joined.

The manner of proceeding when the interest of a minor is involved is detailed in Rule 2028, supra. Rule 2031 then provides for the manner of selection of a guardian; it provides:

Rule 2031. Selection and Appointment of Guardians
(a) A minor plaintiff may select his guardian, but such selection shall not bar the court from removing the guardian for cause in accordance with these rules.
(b) If a minor party to an action is not represented, the court shall appoint a guardian for him either upon its own motion or upon the petition of (1) the minor party, (2) a guardian of the minor appointed by any court of competent jurisdiction, or by a will duly probated, (3) any relative of the minor, or (4) any other party to the action.
(c) The petition shall state the name and address of the person proposed as guardian, and his relationship, if any, to the subject matter of the action or to any of the parties thereto. In case the person proposed as guardian is a guardian appointed by any court of competent jurisdiction or by a will duly probated, the petition shall contain a reference to the record of such appointment.
(d) When the petition is filed by the minor the court may make the appointment ex parte.
(e) When the petition is filed by a person other than the minor, the court shall direct a rule to be served upon the minor or upon such other person as the court may designate to show cause why the prayer of the petition should not be granted.
Adopted Feb. 14, 1939, effective Sept. 4, 1939. Amended and effective April 18, 1975.

Thus it is evident that this action was brought by a proper guardian, which was acknowledged by the court in permitting amendment of the caption, in compliance with Rule 2028, Actions by and against minors, Rule 2228, Joiner of Related Plaintiff (mother’s claim and child’s claim) and Rule 2031, Selection and Appointment of Guardian. Any defect in joinder of the mother’s claim and the claim of the child through and by the guardian, which might have presented a problem under Rule 2232, Defective Joinder Change of Parties, was corrected by the court’s Order granting leave to amend the caption. Finally, the mother, as guardian, was fully competent to negotiate and enter into agreement on behalf of the minor, pursuant to Rule 2027 which provides:

Rule 2027. Guardian to Represent Minor
When a minor is party to an action he shall be represented by a guardian who shall supervise and control the conduct of the action in behalf of the minor.
Adopted Feb. 14, 1939, effective Sept. 4, 1939. Amended and effective April 18, 1975.

Once the settlement has been approved, distribution of the fund can be made pursuant to Pa.R.C.P. 2039(b) which permits payment in full to the guardian of the estate, if one exists or is appointed by the court, otherwise an amount up to $10,000 may be paid to the guardian of the person, natural guardian, or person or agency by whom the minor is maintained. That issue is not before the Court here.

We, therefore, conclude the mother was the proper guardian of the child in this civil action, and as such, was empowered to enter into a settlement on his behalf, which would be binding and not unilaterally revocable by the carrier, subject only to approval by the court pursuant to Rule 2039.

Judgment affirmed.

      . It goes without saying that an action may be instituted by summons, pursuant to Pa.R.C.P. 1007, Commencement of Action:
      An action may be commenced by filing with the prothonotary
      (1) a praecipe for a writ of summons,
      (2) a complaint, or
      (3) an agreement for an amicable action. $10,000.