author: CERCONE, Judge:

text:
    548 A.2d 578
    COMMONWEALTH of Pennsylvania, Appellant, v. David H.G. CULP.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Sept. 26, 1988.

      Robert F. Palermo, Dallastown, for Com., appellant.

      John G. Bergdoll, III, York, for appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This is a Commonwealth appeal from an order by which the lower court granted appellee’s motion to suppress a hospital record containing the results of his blood alcohol test taken immediately following his arrest for driving under the influence of alcohol. Following a hearing on appellee’s omnibus pre-trial motion, the lower court held that the Commonwealth had not met its burden of going forward with the evidence, or the burden of establishing that the evidence was not obtained in violation of the appellee’s rights. As a result, Judge McCullough suppressed the evidence for use at trial.

This case arose from the following facts. On January 30, 1987, Officer Blair of York Township found the appellee, David Culp, in his pickup truck which was stuck in a snow bank. The officer testified that after speaking with appellee he detected a strong odor of alcohol on appellee’s breath, that appellee’s speech was slurred, and that appellee had a difficult time maintaining his balance.

Because of the above factors, Officer Blair arrested appellee, read his Miranda rights, and asked him to submit to a blood alcohol test. Appellee allegedly consented to the test and was taken to Memorial Osteopathic Hospital (hereinafter “hospital”) where he signed a consent form. The test yielded a blood alcohol level of .195% by weight. Appellee was then taken to the police station, read his rights again, and videotaped as he was interviewed and performed field sobriety tests.

On July 31, 1987, appellee filed an omnibus pre-trial motion in which, inter alia, he moved to suppress the results of the blood alcohol test. He challenged the manner in which the test result was obtained and specifically alleged that the result was obtained in violation of his rights under the statutes and laws authorizing such tests and under the constitutions of the United States and the Commonwealth of Pennsylvania. The suppression hearing took place September 3, 1987.

At the suppression hearing, the Commonwealth asked the court to take judicial notice that the laboratory conducting the test was a licensed and approved laboratory under the Clinical Laboratory Act, 35 Pa.S.A. § 2151, et seq., and the attendant regulations of the Department of Health. 28 Pa.Code §§ 5.50 & 5.103. Further, the Commonwealth requested the Court to take judicial notice of a letter from the Department of Health which related that its approval of the lab means that the procedures, equipment, and personnel are properly qualified and approved to do the tests as mandated by the Clinical Laboratory Act. Appellee objected to judicial notice of such letter and the inferences asserted by the Commonwealth. The court sustained the objection. The Commonwealth provided no evidence in response to appellee’s claim other than reference to the Pennsylvania Bulletin, 17 Pa.Bull. 1397, 1398, in which the hospital was cited as a facility approved for specialized blood testing. The Commonwealth presented neither witnesses to testify to the licensing or authorization of the lab or the technicians, nor evidence regarding the laboratory procedures followed in blood testing, or the qualifications of the lab technicians.

The suppression court concluded that the Commonwealth had failed to meet its burden of proof as set forth in Pa.R.Crim.P., Rule 323, 42 Pa.C.S.A.. The lower court reasoned that the Commonwealth had failed to have a custodian or other qualified witness enter the documents into evidence as required by the Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, and, accordingly, granted appellee’s motion to suppress. This appeal followed.

Rule 323, supra, provides:

a) The defendant or his attorney may make a motion to the court to suppress any evidence alleged to have been obtained in violation of defendant’s rights, d) The motion shall state specifically and with particularity the evidence sought to be suppressed, the grounds for suppression, and the facts and events in support thereof.
h) The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant’s rights. The defendant may testify at such hearing, and, if he does so, does not thereby waive his right to remain silent during trial.
i) At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of these rules or any statute, and shall make an order granting or denying the relief sought.

On appeal, the Commonwealth argues that the lower court erred in suppressing the evidence without the allegation or showing of a constitutional violation. While the appellee’s pretrial motion contained allegations of constitutional violation, it centered on the question of whether evidence which has been gathered in derogation of a statutory mandate may be suppressed.

The Vehicle Code, 75 Pa.C.S.A. § 101 et seq., provides statutory requirements for the admissibility of chemical tests taken to determine blood alcohol content. It provides that test results are admissible if conducted with equipment of a type approved by the Department of Health and operated by qualified personnel. Id. § 1547(c). Further:

(2) Chemical tests of blood ... shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as “The Clinical Laboratory Act.” [35 P.S. § 2151 et seq.]

Id. Hospital records are generally admitted at trial as an exception to the hearsay rule under the Uniform Business Records as Evidence Act, supra, to show a fact rather than opinion. See Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979); Commonwealth v. Campbell, 244 Pa.Super. 505, 368 A.2d 1299 (1977). Blood alcohol test results have been deemed fact rather than opinion for admissibility purposes. See Commonwealth v. Seville, supra. However, the act requires that the test results may be admitted only if the custodian or other qualified witness testifies to its identity and the mode of its preparation and, in the court’s discretion, the method and time of preparation.

The Commonwealth contends that the question of the accuracy of the blood test result and its admissibility under the Business Records Act were not properly before the suppression court and were issues to be decided at trial. This claim, is based on its contention that only claims of constitutional violation in the gathering of evidence are the proper subject of a suppression proceeding.

We need look only to the language of and comments to Rule 323, supra, to resolve this issue. Subsection (i) requires the suppression court, at the close of the hearing, to make findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of the rules of procedure or any statute and to make an order granting or denying the relief sought. The comments to Rule 323 reveal that this rule originally extended coverage to violation of the fourth, fifth and sixth amendments of the Constitution of the United States. But, in 1977, the rule was revised to permit use of the suppression motion to test admissibility of evidence where the issue was the method by which the evidence was obtained.

This extension of the use of Rule 323 is logically consistent with constitutional claims as a due process claim may be proven by a showing that the state has failed to follow the rules of procedure or other statutory requirements. Commonwealth v. Povish, 479 Pa. 179, 387 A.2d 1282 (1978); Commonwealth v. Simmons, 295 Pa.Super. 72, 440 A.2d 1228 (1982). Therefore, we find no error on the part of the lower court in entertaining appellee’s challenge to the method used by the Commonwealth in gathering the blood results in this case.

Having thus resolved, we now must determine whether the Commonwealth met its burden of proof at the suppression hearing. Subsection (h) of the rule mandates that the Commonwealth carries the burden of production and persuasion, Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968), to establish by a preponderance of the evidence that the evidence was properly obtained. See also Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Ryan, 300 Pa.Super. 156, 446 A.2d 277 (1982). At the suppression hearing, the Commonwealth merely referred to the Pennsylvania Bulletin to prove that the blood tests were performed by authorized personnel using approved procedures in an approved facility. We agree with the lower court that mere reference to the Pennsylvania Bulletin was not sufficient to satisfy the Commonwealth’s burden. The bulletin merely is dispositive of the fact that the Department of Health approved the hospital’s laboratory for testing purposes. In his pretrial motion, appellee alleged that the blood sample was not taken “at a relevant time,” that the laboratory equipment used “was not properly calibrated and tested for accuracy or in accordance with properly promulgated laws and regulations,” that the testing was not performed by persons licensed and approved, that the manner of testing was not as specified by the laws and regulations of the Commonwealth of Pennsylvania, and that he did not voluntarily consent to the testing. These claims were sufficiently specific to require a more detailed response from the Commonwealth than mere reference to the fact that the hospital where the blood tests were taken was a facility approved by the Department of Health.

The requirement for admissibility of evidence obtained by chemical testing can be compared to the requirements for admitting evidence obtained by search warrant. In determining whether the Commonwealth has gone forward with the evidence this court has stated:

The burden is on the Commonwealth to establish the validity of the search warrant and the burden is not carried by merely introducing the search warrant and affidavit with no supporting testimony because then the only way for the defendant to challenge the veracity of the information is to call witnesses himself and this effectively shifts onto him the burden of disproving the veracity of the information, an almost impossible burden ... [If this was allowed] then policemen could recite in an affidavit as probable cause for the issuance of the warrant any and all statements which they felt were of help in obtaining the warrant, irrespective of the truth ... realizing that such statements would be insulated from defendant’s cross examination ...

Commonwealth v. Iannaccio, 304 Pa.Super. 307, 314, 450 A.2d 694, 698 (1982) (quoting Commonwealth v. Ryan, 296 Pa.Super. 222, 229, 442 A.2d 739, 743 (1982)). Additionally, when the defendant specifically complains of the defects in the warrant or its execution, he thereby alerts the Commonwealth of a particularized burden of proof on those objections. To satisfy that burden the Commonwealth must introduce witnesses subject to the defendant’s cross examination. Commonwealth v. Iacavazzi, 297 Pa.Super. 200, 443 A.2d 795 (1982).

In determining whether publication in the Pennsylvania Bulletin was sufficient to meet the Commonwealth’s burden, we look to the applicable statutes and rules. The Clinical Laboratory Act, supra, was enacted' to ensure clinical laboratory testing is accurately performed by competently supervised professionals. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977). Furthermore, “[t]he Act requires that clinical laboratories obtain permits, operate under a qualified supervisor, and satisfy regulations promulgated by the Department [of Health] regarding the adequacy of equipment, facilities and laboratory procedures.” Bachman, supra, 473 Pa. at 285, 374 A.2d at 520. The foundation necessary to introduce evidence of chemical intoxication tests is: (1) the test is administered by qualified personnel; (2) the equipment used is approved by the Department of Health; and (3) the test is at the direction of a police officer having reasonable grounds to believe the person to have driven while under the influence. Commonwealth v. Sweet, 232 Pa.Super. 372, 375, 335 A.2d 420, 422 (1975). Cf. Commonwealth v. Gilbert, 254 Pa.Super. 579, 386 A.2d 101 (1978) {Sweet test applied to facts of case to determine admissibility of test results).

Applying these standards to the facts before us, we conclude that the Commonwealth failed to meet its burden of production and persuasion at the suppression hearing. Accordingly, the Order of the court below is affirmed.

      . The hospital was listed as an approved facility in the Pennsylvania Bulletin. The contents of the Pennsylvania Bulletin are proper subject of judicial notice. See 45 Pa.C.S.A. § 506 (Special Pamphlet).

      . The Commonwealth’s right to” appeal an adverse suppression order was affirmed in Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    548 A.2d 582
    COMMONWEALTH of Pennsylvania v. Joseph HESS, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 23, 1988.
    Filed Sept. 30, 1988.

      Charles P. Mirarchi, III, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before McEWEN, HOFFMAN and HESTER, JJ.
   HESTER, Judge:

Joseph Hess appeals from the judgment of sentence entered November 10, 1986, in the Court of Common Pleas of Philadelphia County following his conviction by a jury of murder of the second degree, robbery, possession of an instrument of crime, and conspiracy. Appellant was tried with three co-participants. All four were convicted. Appellant was sentenced to a term of life imprisonment for the murder and a consecutive five to ten year term for the conspiracy. He was given a suspended sentence on the charge of possession of instrument of crime, and for purposes of sentencing, robbery merged with murder. In this appeal, appellant raises numerous issues of trial error. Finding no merit to them, we affirm.

Late in the afternoon of January 21, 1985, appellant and co-defendants Ronald Lynch, Stanley Oliver and David Walker gathered in Brenda Walker’s apartment, located in a high-rise government project in Philadelphia. The four men decided to rob David Green, an incense vendor who was selling his wares in the building. Appellant carried a thirty-eight caliber revolver, and he and the three others approached Green in a stairwell between the eighth and ninth floors. Appellant pointed the gun at him, and the conspirators demanded his money. One of the four put his hand in Green’s pocket, attempting to remove cash. Green resisted. At a distance of four feet, appellant discharged the gun, and a bullet struck Green. The conspirators retreated to Brenda Walker’s apartment. Mortally wounded, Green ran to the landing of the seventh floor and collapsed. Lying in a pool of blood, he died within minutes.

At trial, David Smith testified that earlier that afternoon, he visited his girlfriend, Bonnie Clark, who lived on the tenth floor of the high-rise. Smith testified that he rode up the elevator with four men, two of whom he recognized as co-defendants Walker and Oliver, and that later, while he was in Ms. Clark’s apartment, he heard a scuffle and the sound of a gunshot coming from the stairwell. Peering out the door, he saw David Green, the incense vendor, running down the steps with three men in pursuit. Smith recognized two of the men as co-defendants Oliver and Walker. The three men stopped upon seeing Smith and ran back up the stairs. Smith walked to the seventh floor and, upon discovering the body of David Green, summoned police. A short time later, a crowd gathered around the body. Co-defendants Walker and Oliver were among the bystanders. Smith heard Walker say, “Wow, ain’t that a shame.” A third man joined Walker and Oliver, but Smith could not identify him since only his legs were visible as he stood on the stairs. Co-defendant Oliver asked the unidentified man, “What are you going to do?” The man answered, “I’m going home.” He and Oliver ran up the steps.

At trial, a statement given to the police by appellant was read to the jury. The court cautioned the jury that it was not to be used against any defendant except appellant. In the statement, appellant indicated that he and three others conspired to rob Green and that appellant shot Green when Green attempted to take appellant’s revolver from him. Appellant’s statement was redacted to exclude the actual names of the other defendants. Inserted in their places were phrases such as “the other person.”

Co-defendant Lynch’s redacted statement was also read into the record. That statement includes the following:

I was coming down from the 17th floor inside 1515 Hemberger Way and I saw the other persons. They called me over. We went in Brenda Walker’s apartment, No. 1406. We were all smoking a “J”, parenthesis, marijuana cigarette, end of parenthesis, and somebody knocked at the door. It was the Incense Man. They said there [sic] were going to rob the Incense Man. They asked me if I was down with them. I told them I’m not about that stuff. They called me a chicken. Brenda Walker told me I had to leave if I wasn’t down. The other persons walked out of the apartment and I walked out after them. I walked down the 01 side of the fire tower with one of them. The other two walked down the other stairway. The Incense Man was walking down the steps on the other stairway, the same stairway that the other two were walking down. The Incense Man stopped on all the floors trying to sell the incense. He knocked at some of the doors. The one I was with stopped at the 9th floor. I was standing on the steps between the 9th and the 8th floor. One of the others was hiding in the hallway on the 9th floor. I didn’t see where one of the persons went. I think he went down to about the 8th or closer to the 7th floor. The Incense Man went in the stairway to go on the 9th floor landing and one of the persons pulled a gun on the Incense Man. He stuck the gun in the Incense Man’s face. The Incense Man had some lit incense and tried to stick it in his face. The Incense Man was holding the door. Before this he hit the Incense Man in the head with the gun. The Incense Man was holding the door and he was on the other side of the door. The Incense Man ran down the steps and he shot at him one time. Two of the persons went up to an apartment. I walked up a flight behind them. They went in the apartment. I stood in the hallway. He told me that I better not say anything. I went home. I stayed in the house a couple of days. He was looking for me and told me that if I tell on him he was going to get me the same way.

Notes of Testimony (N.T.), 2/2/86, at 141-42.

Appellant first argues that the trial court erred in refusing to allow Valerie Mond to testify on his behalf. He contends that Ms. Mond, a social worker at Holmsburg prison, would have testified that appellant told her that he was beaten by the police when he was arrested. This testimony, according to appellant, should have been admitted to show that the statement which he made to the police was not voluntarily given. We find no merit to this contention.

At a pre-trial suppression hearing, Valerie Mond testified that she first met appellant on March 21, 1985, more than three weeks after his arrest. She stated that “on several occasions [appellant] said that when he was arrested he was beaten by the police____” N.T., 1/30/86, at 5. The court refused to allow this testimony to be repeated at trial, holding that it was hearsay.

Pennsylvania recognizes a “state of mind” exception to the hearsay rule. See e.g., Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1975).

Often a person’s state of mind, knowledge, intent, motive, emotion, competency, or sanity is relevant in a case. That person’s contemporaneous statements are an obvious source of information as to the relevant state of mind, and such statements are admissible under the state of mind exception to the hearsay rule.
There are two reasons which support the admissibility of evidence coming within the state of mind exception. One is the necessity which is said to arise from the fact that state of mind is often impossible to prove in the absence of such statements. The second reason is that such statements are said to be reliable because of their spontaneity — much as spontaneity is viewed as creating reliability for the present sense impression and excited utterance exceptions to the hearsay rule. State of mind is one of the hearsay exceptions that was formerly considered under the res gestae label although it is now recognized as a separate exception.

L. Packel & A. Poulin, Pennsylvania Evidence § 803.3 (1987). If statements to a third party tend to show state of mind only circumstantially, they are not hearsay. Commonwealth v. Williams, 307 Pa. 134, 160 A. 602 (1932); Commonwealth v. England, 474 Pa. 1, 375 A.2d 1292 (1977). However, even statements which are not barred by the hearsay rule may be inadmissible if they were made at a time so remote from the incident to which they purportedly pertain that their probative value is de minimis. Commonwealth v. England, supra. As the authorities cited above suggest, state of mind evidence, whether hearsay or not, is admissible if it is probative of the speaker’s mind at the time of the pertinent incident.

In the instant case, regardless of whether the statements which appellant made to Ms. Mond should technically be regarded as hearsay, we find that the trial court did not abuse its discretion in excluding them. The court noted that the statements were made too remote in time from the alleged beating to be probative of appellant’s state of mind.

Whether proffered evidence is too remote to be probative is a determination left to the trial court’s discretion. Commonwealth v. Gibson, 363 Pa.Super. 466, 526 A.2d 438 (1987). There is no rigid rule as to the length of time before which evidence may be said to have lost its probative value. Commonwealth v. Ulatoski, 472 Pa. 53, 371 A.2d 186 (1976). Instantly, more than three weeks passed from the time of the alleged beating and the time that appellant first could have reported it to Ms. Mond. The state of mind which appellant alleges was induced by the beating, i.e., fear and coercion, could hardly have persisted up to the time he made the statements to Ms. Mond. It is more than likely that the powers of reflection and deliberation returned to him, negating any reasonable chance that the statements were a spontaneous report of his state of mind at the time of the beating. Therefore, we find no abuse of discretion in the trial court’s refusal to admit the testimony.

Appellant next argues that the trial court erred in preventing a witness from answering a question which, again, was designed to show appellant’s state of mind at the time he gave his statement to the police. Appellant’s counsel called Chuck Stone, a columnist for a Philadelphia newspaper, to the stand. Appellant had turned himself into Mr. Stone to be arrested on the instant charges. At trial, Mr. Stone was asked by appellant’s counsel, “Did you ever receive any correspondence from Mr. Hess thereafter?” N.T., 2/5/86, at 22. The prosecution objected and the court refused to allow Mr. Stone to answer. Appellant argues on appeal that he wrote to Stone and complained of being beaten by the police when he was arrested. He claims that Stone’s testimony concerning the correspondence would have tended to prove the involuntariness of the statement that he made to the police at the time of his arrest.

Appellant’s brief fails to specify when this alleged correspondence to Chuck Stone was written. The trial court treated this argument the same as the previous contention with respect to Ms. Mond’s testimony — that is, the evidence was too remote to be admitted. Appellant’s failure to specify the time when the letter was written precludes us from reviewing the merits of the contention. As explained supra■, the timeliness factor is crucial in a state of mind analysis. It is most unlikely that appellant composed a letter to Stone while still experiencing the fear and coercion which he suggests accompanied the arrest. This contention does not merit relief.

Appellant also contends that the following remarks by the prosecution in closing constitute reversible error:

But Mr. Mirarchi [appellant’s counsel] said in his opening statement he was going to call Mr. Hess. Now, understand that in this case four defendants are charged with murder. They have all elected to remain silent. You cannot, you must not, under the law, infer anything adverse to them. But did you really think when Mr. Mirarchi said that to you in his opening that he ever intended to allow Mr. Hess to take the witness stand and be cross-examined by me? But that’s what he told you in his opening.

N.T., 2/10/86, at 114.

Appellant contends that these remarks improperly referred to the fact that he chose to exercise his right to remain silent. Moreover, he complains that the remarks were made despite the court’s earlier admonition that the prosecution should not refer to the fact that the defendants did not testify. Id. at 3-4. Appellant is not entitled to relief on the basis of this contention.

The comments about which appellant complains were made in fair response to comments made by his own counsel in his opening to the jury. Appellant’s counsel stated to the jury that appellant would testify, and he proceeded to relate what appellant would say:

The defense, according to Mr. Hess, will show that a month after the incident information was gotten to Mr. Hess, Mr. Hess voluntarily surrendered. In fact, he turned himself into Daily News’ Chuck Stone, I believe. He realized, as I said, there was a warrant. He had nothing to hide. He turned himself in and let the matter evolve in the court system. A statement was given with regard to someone who said they were an eyewitness to the police. I can tell you right now, that statement given to the police names people, gives descriptions of the person and/or persons who they saw commit the crime. Neither Joseph Hess, nor any of these defendants, were named in that statement. There’s a statement signed by the defendant, Joseph Hess. Joseph Hess will tell you that Joseph Hess did not make a voluntary statement to the police or anyone else. He’ll tell you what happened. He’ll tell you that yes, that is his signature that appears at the bottom of the statement, but he did not give any answers to any questions. In fact, he’ll state no questions were asked. He was asked to sign the statement. He refused. He was pressured into signing the statement. He still refused. It wasn’t until he was struck repeatedly, that because he wanted the beating to stop, did he then sign the confession. If he wanted to confess he could have confessed to Chuck Stone. But he didn’t. He’ll tell you the manner in which it happened. If you put it together with the fact that a month before that a statement was given that someone else did it, we have to look real close as to why. As I said, you’ll hear from the defendant as to why his name gets on the bottom of the statement.

N.T., 1/31/86, at 69-71.

It is well-settled that a prosecutor may not comment adversely on the defendant’s refusal to testify. Commonwealth v. Crawley, 514 Pa. 539, 526 A.2d 334 (1987); Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Commonwealth v. Torres, 329 Pa.Super. 38, 477 A.2d 1350 (1984). However, our courts have long recognized the principle of “fair response” — that the prosecution may properly respond to defense arguments. Commonwealth v. Torres, supra (where prosecution’s statements reflected adversely on defendant’s failure to testify, one of factors cited to support holding of insufficient prejudice to warrant new trial was that comments were response to defense assertion); Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1977) (defendant’s fifth amendment rights not violated where prosecution elicits testimony concerning defendant’s post-arrest silence so long as the reference to silence is not designed to infer guilt but is advanced to counter misleading or improper impression created by defense). See also Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); Commonwealth v. Barren, 501 Pa. 493, 462 A.2d 233 (1983); Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986); Commonwealth v. D’Amato, 514 Pa. 471, 526 A.2d 300 (1987); Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1987); Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913 (1987).

The comments by the prosecution were advanced to counter the inaccurate statement made by appellant’s counsel at the start of trial. That comment, quoted supra, not only asserted that appellant would testify but detailed what he would say. In fact, appellant did not testify. Therefore, it was entirely proper for the prosecution to comment on appellant’s failure to testify, and we agree with the trial court’s reasoning in refusing to exclude the prosecutor’s comments:

[N]ot allowing the prosecutor to comment on this would have given the defense an unfair advantage____ To prohibit such comments would open the door for a whole new style of defense, i.e., have defense counsel say what his client is going to say but then don’t call him. In other words, a way for defense to get testimony in without cross examination.

Trial court opinion at 9-10. This argument does not entitle appellant to relief.

Appellant also claims that in commenting on appellant’s election not to testify, the prosecution disparaged the defense strategy and implied that the defense had something to hide. Moreover, he claims that in discussing the testimony of defense witness Leroy Crawford, the prosecutor disparaged the defense strategy and indicated his own opinion of defense witnesses. This assertion is without merit.

In assessing appellant’s contentions, we are mindful that a prosecutor must limit his statements to the facts introduced at trial and the legitimate inferences therefrom. Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985) (plurality opinion). Moreover, the Commonwealth is afforded reasonable latitude in fairly presenting its version of the case to the jury. Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986). The Pennsylvania Supreme Court recently reaffirmed the “unavoidable prejudice test” as articulated in Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975), is to be used in determining the impact of prejudice in closing arguments.

[Wjhere the language of the district attorney is intemperate, uncalled for and improper, a new trial is not necessarily required. Commonwealth v. Crittenton, 326 Pa. 25, 31, 191 A. 358 (1937); Commonwealth v. McHugh, 187 Pa.Super. 568, 577, 145 A.2d 896 (1958). The language must be such that its 'unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.’ Commonwealth v. Simon, 432 Pa. 386, 394, 248 A.2d 289, 292 (1968). See also, Commonwealth v. Meyers, 290 Pa. 573, 139 A. 374 (1927). The effect of such remarks depends upon the atmosphere of the trial, Commonwealth v. Dickerson, 406 Pa. 102, 110, 176 A.2d 421 (1962); Commonwealth v. Del Giorno, 303 Pa. 509, 519, 154 A. 786 (1931), and the proper action to be taken is within the discretion of the trial court. Commonwealth v. Silvis, 445 Pa. 235, 237, 284 A.2d 740 (1971); Commonwealth v. Simon, supra.

Commonwealth v. Johnson, 516 Pa. 527, 530-32, 533 A.2d 994, 997 (1987). The Johnson court went on to state, “Under this test, we are required to judge whether the mental bias of the jury has been so ‘fixed’ as to implicate the truth-finding function itself.” Id.

Instantly, as indicated supra, the prosecutor’s comments with respect to appellant’s silence were in fair response to his counsel’s earlier remarks.

With respect to the other comments by the prosecutor, we note that Leroy Crawford had testified for the defense that the men on trial were not guilty and that he had given the police a statement to that effect, signaling out two other men as the perpetrators.

In fact, Crawford had given police information to the effect that they had arrested the wrong men and that certain others had actually committed the crime. Crawford was subsequently arrested in connection with giving the police false information and charged with hindering apprehension. Crawford pled guilty to the charge.

In the instant trial, Crawford repeated his claim that the police had arrested the wrong men. The prosecutor, in summation, attempted to attack this testimony by referring to the fact that Crawford had pled guilty to hindering apprehension:

But the important thing about Mr. Crawford is not only what he said and how he said it and about his background. There’s only one thing that is really necessary that you understand and I can’t say this clear enough or enough times. Here is a man who gave a statement on the 25th and went before a Judge, as he told you, and pled guilty saying that the statement I gave was not true, and he pled guilty and he received one and a half to three years, and he told you about a recantation. That was the first question I asked, what is a recantation, and he knew. I didn’t find out until I was ten years into my career, and I’ve been doing this for 20 years, what actually a recantation was. But Mr. Crawford knew because he researched it in the law library. But Mr. Crawford pled guilty, admitted to another Judge at another time, in another courtroom that what he said in that statement was a lie. What can be clearer than that? When he comes in front of you and if he makes any other statement, his appeal that he told you he had, why did he plead guilty? Because he had an incompetent lawyer. But that’s why he pled guilty. That’s why he admitted it was a lie. If he makes any other statement, he can kiss good-bye any appeal that he might have. You will recall Mr. Crawford—
MR. MIRARCHI: Objection.
THE COURT: The jury will receive the law from me.
MR. SAGEL: You will recall Mr. Crawford was on the stand for maybe a half hour of direct-examination, on the stand for maybe an hour, an hour and 15 minutes on cross-examination. You will recall that I had not completed my cross-examination and that we recessed on whatever day it was at 4:00. Then the next day you came in. That was the day we had to sit around, as you know. You came into court. I don’t remember the time. But it was well after 3:00. Mr. Crawford was sitting on the stand and then later you were excused. Then the next day, without my cross-examination being finished, Mr. Crawford went poof, he no longer was on the stand. So I didn’t even get into the recantation.

N.T., 2/10/86, at 120-22. The court cautioned the jury that no negative inference should be drawn from the fact that Crawford’s cross-examination had not been completed. Id. at 124.

We cannot say that the prosecutor’s remarks, confined to an isolated portion of a lengthy and heated trial, so swayed the passions of the jurors that they could not deliberate fairly. This argument merits no relief.

Appellant next argues that a new trial should be granted on the basis that a juror, Charlotte Silver, lied during voir dire when she indicated that she was not familiar with the defendants or with the neighborhood where the incident occurred. After the verdict was entered, Ms. Silver approached defense counsel and informed them that she had known two of the four co-defendants for some time. She declined to comment further, and the court subsequently conducted several hearings to determine whether Ms. Silver’s knowledge of the co-defendants affected the verdict. The court concluded that “[i]t cannot be said from all the testimony taken that Charlotte Silver harbored any bias or prejudice against any of these defendants.” We agree.

At one of the hearings on the matter, Ms. Silver stated that she had owned and operated a store two blocks from the scene of the incident from 1971-1979. N.T., 4/16/86, at 16. She testified as follows concerning her previous relation with the defendants:

THE COURT: When we went through the jury selection process, I know that I asked you whether you knew or had any close relationship with any of the four defendants who were here in the Court today.
MISS SILVER: I believe at that time that I probably answered no, because I didn’t have a close relationship with any of these defendants and it is quite possible that I did not see the defendants because perhaps I concentrated upon your question or I concentrated upon the lawyers or the prosecutor or I just stared into empty space. I kind of think that it is my fault, also.
THE COURT: Are you suggesting that you had ever seen any one of these four defendants, you had spoken to, or knew any of the defendants before their trial?
MISS SILVER: Yes. When I was in my story [sic] I recognized the young man who was a customer of mine.
MISS SILVER: It is quite possible that there is a second young man here, but I will not say yes or no. The young man that I do recognize was a customer of mine and it would be Mr. Walker.
THE COURT: The other person?
MISS SILVER: I did not know his name. I do not recognize Mr. Hess. I do not recognize Mr. Oliver. Or the third young man, who is nameless. It is quite possible this young man came into my store and at the time that he came in he would have been much younger, he would have been approximately 14 or 15 years old.
THE COURT: So you’re saying that you possibly know Mr. Lynch?
MISS SILVER: That’s right. Mr. Lynch did not purchase anything from me more than possibly a pack of chewing gum, but he came into my store to see the butcher who worked in the back of the store.
BY MR. MYERS:
Q. But you said that while you were sitting in the jury box before there was a decision, there was a possibility in your mind that you had to wrestle with that you may have known the defendants — I mean the two of them, Lynch and Walker, there was possibility you may have known them?
A. I said that I wrestled with myself about Walker. Q. What about Lynch?
A. I didn’t wrestle about Lynch. I looked at him from time to time. He’s the same little cry baby that came into Parker’s Meat Market.
Q. Was that the same guy that came in that when he came in you went to the cash register when he walked in, fearing that he might rob you?
Q. I never said — I said when Lynch came I worked behind — I stood behind the counter and my cash register. Lynch walked passed me and each time he did he gave me a dirty look and he went to the back of the store to talk to Robert Rice, my butcher.

Id. at 18-20, 68-70. The reference to co-defendant Lynch being a “cry baby” presumably referred to the fact that he was crying after the verdict was entered.

Ms. Silver stated that she had known co-defendant Walker when he was a teen-ager. “[H]e was a nice fellow,” she said. “I never had any difficulty with Mr. Walker____ I would have, hired Mr. Walker to work for me.” Id. at 22. When asked about Lynch, she stated:

MISS SILVER: Mr. Lynch is of a different nature than Mr. Walker. Mr. Lynch, when he was 15 years old, 14 or 15, used to enter my store and walk up my aisle where I stood. We faced each other. I stood behind the counter and operated the cash register. Mr. Lynch used to give me a dirty look each time he entered my store and walked to the rear to talk to Robert Rice, our butcher. When Mr. Lynch left the store, he in turn came right down the same aisle and gave me another dirty look and went out the front door. However, I will say in behalf of Mr. Lynch that I do not consider Mr. Lynch a thief, but a conversationalist with my butcher.
THE COURT: Did you have any reason to know or did anyone tell you that Mr. Lynch had ever been involved in any criminal activities at all?
MISS SILVER: I think Mr. Lynch smoked pot.

Id. at 24. Ms. Silver stated that she had not seen either Walker or Lynch for approximately seven years. Id. at 33. When asked if she followed the law and the evidence as the court gave it to her, she stated, “I tried to.” Id. at 35. Moreover, she stated that she never told any of the other jurors that she might have known Walker or Lynch. Id. at 35. She testified as to why she did not approach the court during the trial to advise it that she might have known Walker.

MISS SILVER: .... I wrestled with that question. I wrestled, yes, I did. Because I am known to be fair. I am known to be honest. I have nothing to be afraid of. I did wrestle with that question for many, many days. I think if I am going to approach Judge Halbert, I think that I should have damned well have had correct information.

Id. at 47-48.

We note that Ms. Silver did not recognize appellant. As the excerpts above indicate, Ms. Silver’s previous but limited acquaintance with two of the co-defendants when they were customers in her store can hardly be said to have biased her against them. Therefore, we do not believe that the court abused its discretion in refusing to declare a mistrial.

Appellant next argues that the court erred in allowing a Commonwealth exhibit, a diagram, to be circulated among the jurors. The diagram was drawn by appellant in connection with the statement he gave the police and depicted the scene of the crime with markings indicating the places where the actors stood. We find no merit to this contention.

The decision to admit a chart or diagram is left to the sound discretion of the trial court. Commonwealth v. Cullen, 340 Pa.Super. 233, 489 A.2d 929 (1985). Such aids to the jury are admissible where they assist in clarifying facts. Id. “If the trial court could properly conclude that the exhibit would be helpful to the jury, the decision to admit the exhibit will likely be upheld.” L. Packel & A. Paulen, Pennsylvania Evidence § 416.3 (1987).

Instantly, appellant’s argument that the diagram was prejudicial is posited without specificity. We find no abuse of discretion in admitting it as it served the useful purpose of illustrating what might have been confusing evidence concerning the physical layout of the crime scene.

Finally, appellant argues that the court erred in denying his motion for severance. He contends, again without specificity, that severance was necessitated by the complexity of the evidence, the fact that evidence admissible against a co-defendant was not admissible against appellant, and that appellant and a co-defendant had antagonistic defenses. This argument merits no relief.

It is well-settled that defendants may be tried together if they are alleged to have participated in the same act or transaction or series of acts or transactions. Pa.R.Crim.P. 1127(A)(1)(b); Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985); Commonwealth v. Jackson, 451 Pa. 462, 303 A.2d 924 (1973). This court consistently has held that the decision whether to sever trials is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of discretion. See Commonwealth v. Morales, supra. It is well-established that in a trial involving a conspiracy, the co-conspirators generally should be tried together. Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). In order to sustain the burden of showing that the trial court committed a manifest abuse of discretion for failing to order separate trials, a defendant must demonstrate that the defenses were conflicting and irreconcilable and that there existed a danger that, solely on the basis of the conflict, the jury unjustifiably inferred that the defendants were guilty. Commonwealth v. Orlowski, 332 Pa.Super. 600, 481 A.2d 952 (1984). “The defenses must conflict at the core; mere divergence on peripheral matters or mere hostility between co-defendants, does not require severance.” Commonwealth v. Bennie, 352 Pa.Super. 558, 566-67, 508 A.2d 1211, 1215 (1986).

Instantly, appellant’s argument is so general that it precludes effective appellate review. We do not find that the evidence was so complex that severance was the proper remedy. See our recitation of the facts, supra. Nor do we find persuasive the argument that evidence admitted against a co-defendant would have been inadmissible against appellant if he were tried alone. Assuming this assertion refers to the admission of co-defendant Lynch’s statement, we note that this statement was redacted to eliminate the actual names of the co-defendants. This court has held that it is improper to find a co-defendant prejudiced by the admission of the other defendant’s redacted statement if the statement itself does not tend to identify the co-defendant as a participant in the crime. Commonwealth v. Rawls, 276 Pa.Super. 89, 419 A.2d 109 (1980).

In Commonwealth v. Council, 355 Pa.Super. 442, 513 A.2d 1003 (1986), we recognized that a trial court may deny severance where a co-defendant’s statement has been redacted to eliminate reference to the other co-defendants. The interests of judicial economy commend redaction over severance in a joint trial of co-conspirators.

With respect to the assertion that appellant and co-defendant had antagonistic defenses, we note, again, that the lack of specificity in this assertion precludes effective appellate review. We do not believe that co-defendant Lynch’s statement, which was redacted to exclude appellant’s name, constituted “conflicting” defense since it did not refer to appellant by name.

As the excerpts above indicate, Ms. Silver’s previous but limited acquaintance with two of the co-defendants when they were customers in her store can hardly be said to have biased her against them. Therefore, we do not believe that the court abused its discretion in refusing to declare a mistrial.

Judgment of sentence affirmed.

      . Our supreme court’s decision in Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986), does not mandate a different result. There, defendant and co-defendant Floyd were tried together for robbery and conspiracy. Another co-participant, Rita Hatten, died before trial. Ms. Hatten had testified at three preliminary hearings, implicating defendant and Floyd each time. Hatten’s statements from the hearings were read at the trial of defendant and Floyd. The statements were redacted; the one from Floyd’s preliminary hearing was edited to exclude defendant’s name, and the one from defendant’s hearing excluded Floyd’s name, inserting in place the phrase "the other person.” Defendant was convicted. On appeal, he challenged as prejudicial the admission of Hatten’s redacted statement from Floyd’s preliminary hearing. Our supreme court found no error.

        The court noted with approval the rule set forth in Commonwealth v. Rawls, supra, that in order to determine whether a redacted statement is prejudicial to a co-defendant, it should not be viewed in the context of other evidence. However, the court did not rest its holding this basis, noting that in the “unique circumstances” of the case, Hatten’s redacted statement from Floyd’s preliminary hearing unavoidably provided cumulative testimony against defendant. "[Hatten’s] testimony against each co-defendant was strikingly similar, although not identical, and the jury could not have failed to understand that [defendant] was ‘the other person’ referred to in the testimony implicating Floyd, especially since it had already heard the testimony against [defendant].” Id., 511 Pa. at 174, 512 A.2d at 605. The court proceeded to discuss the assertion in terms of a harmless error analysis. It found that the statement provided only cumulative evidence against defendant; the other evidence against him was strong, untainted, and uncontradicted.

        Chestnut does not compel us to analyze the instant assertion of error by using a harmless error test. In Chestnut, it was only reasonable for the jury to regard all of Ms. Hatten’s statements together. As such, it was obvious that she was referring to defendant in the statement she made at Floyd’s hearing even though defendant’s name was excised therefrom. The effect was as if defendant's name had not been excised and was tantamount to permitting Ms. Hatten to testify against defendant without being cross-examined.
      Instantly, unlike the redacted statement in Chestnut, co-defendant Lynch’s redacted statement did not emanate from the same source as other evidence clearly linking appellant to the crime. We find Commonwealth v. Rawls, supra, controlling, and need not resort to a harmless error test.


author: POPOVICH, Judge:

text:
    548 A.2d 592
    COMMONWEALTH of Pennsylvania, Appellee, v. Mary DRATMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 20, 1988.
    Filed Sept. 30, 1988.
    Louis Lipschitz, Philadelphia, for appellant.
    Jeffrey Heilman, Assistant District Attorney, Philadelphia, for Com.

      Before MONTEMURO, BECK and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence (a fine of $338.00) for leaving the scene of an accident (75 Pa.C.S. § 3743(a)) by the appellant, Mary Dratman. We affirm.

The facts, viewed in a light most favorable to the verdict-winner (the Commonwealth here) and drawing all reasonable inferences therefrom, reveal that at approximately 6:00 p.m. on the 3rd day of June, 1986, Madelene Hanewinkel was driving in the passing lane on West River Drive, with the intention of making a right-hand turn onto and across the Falls Bridge in the City and County of Philadelphia.

Because traffic was stopped along the bridge, Ms. Hanewinkel had stopped her vehicle half-way into her right-hand turn. The appellant, in a Cadillac Eldorado, was traveling in the same direction as Ms. Hanewinkel. She was driving in the curb lane and, like Ms. Hanewinkel, was making a right-hand turn onto the Falls Bridge.

As the appellant was making her turn onto the bridge, as told by Ms. Hanewinkel, the front, left fender of the appellant’s vehicle struck her passenger door and also her right fender. In between the two collisions, Ms. Hanewinkel saw the appellant operating the Eldorado, but was unable to get her to pull off the roadway. However, when the traffic light changed to red, the appellant was forced to stop. When this happened, Ms. Hanewinkel exited her vehicle, beeped her horn, stood on her driver’s door sill and called for the appellant to stop. Nonetheless, when the light changed to green, at the end of Falls Bridge, the appellant drove-off in a direction unknown to Ms. Hanewinkel. She was unable to catch-up with the appellant.

Fortunately, a woman (Ms. Robin McClea), driving directly in front of Ms. Hanewinkel, saw what occurred in her rear view mirror. As told by Ms. McClea:

... as she [the appellant] began her turn onto the bridge, the very front left of her car struck the middle passenger side of the car [of Ms. Hanewinkel] behind me. I heard [a medium loud] noise and I also saw [Ms. Hanewinkel’s] car jerk because it had been hit. * * * Then the right lane cleared some, and the [appellant] continued her turn. As she continued her turn, she again struck the right front fender of [Ms. Hanewinkel] behind me. * * * * The car jerked, and there was a loud noise.

Further, Ms. McClea corroborated Ms. Hanewinkel’s accounting of stopping her vehicle, getting out and screaming and waving to get the appellant’s attention, all to no avail.

Once Ms. Hanewinkel and the witness got to the other side of the bridge, they spoke to a police officer. He, in turn, issued a citation to the appellant via the Traffic Court for leaving the scene of an accident in violation of Section 3743.

When the appellant took the stand, she did not recall being involved in any accident on the Falls Bridge on the 3rd of June, 1986. Nor did her passenger remember any such collision(s), or Ms. Hanewinkel beeping her horn or yelling at the appellant to stop. It was not until the appellant received a “request to come in and explain her case to the Accident Investigation Services” of the Philadelphia Police Department that she examined her vehicle and found no evidence of damage to her left, front fender. The passenger in the vehicle, who lived with the appellant at the time, would have corroborated the absence of damages.

Following the presentation of closing arguments, the Court of Common Pleas entered a verdict of guilty and imposed sentence. Thereafter, post-trial motions were argued and denied and the fine of $338.00 was re-imposed. This timely appeal ensued and raises the sole issue of whether the Commonwealth establishing that the appellant was the driver of a vehicle involved in an accident in which “damage” was sustained, as called for by Section 8748(a).

As noted by the trial court, the essence of the appellant’s argument consists of the contention that because there was no testimony as to damage(s) to Ms. Hanewinkel’s property the letter of the law (Section 3743(a)) was not violated.

It must be kept in mind, however, that the standard of review for evaluating a challenge to the sufficiency of the evidence is “ ‘whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.’ ” See Commonwealth v. Stover, 372 Pa.Super. 35, 36, 538 A.2d 1336, 1337 (1988), quoting Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984).

Such a standard was utilized by this Court in holding ■ that, where the victim of a vehicular accident had his truck “struck” by the defendant, who, herself, had sustained damage to her hood and windshield, proof of contravening Section 3743(a) had been established in that the “truck sustained damage, however slight, as a result of the accident.” Id., 372 Pa.Superior Ct. at 38, 538 A.2d at 1338. This was so even though no testimony was presented by the Commonwealth as to the actual damage incurred by the truck driver to his vehicle.

Instantly, as in Stover, we had no direct testimony as to the damages suffered by the victim’s vehicle when struck by the defendant’s automobile. Nonetheless, from the totality of the circumstances (i.e., the “medium loud” noise of the accident, the “jerking” of the victim’s vehicle from the impact of the appellant’s Eldorado making contact) one can legally infer the incurment of damages by the victim to her vehicle, “however slight, as a result of the accident.” To hold otherwise, would be to ignore the realities of the situation surrounding the accident and discounting the likelihood (reasonably inferable from the facts) that, given the size of the appellant’s vehicle, the placement of the point of contact (the victim’s passenger door) and the force exerted to cause a “jerking” of the victim’s vehicle upon impact, any damage resulted. We refuse to take such a myopic view of the facts and the reasonable inferences to be drawn therefrom.

Further, we agree with the sentiments of the trial court, expressed in its opinion at pages 3-4; to wit:

Common sense dictates the conclusion that where a vehicle, the size of a Cadillac in this case, strikes another automobile twice causing enough noise to alert the attention of a person in a vehicle not involved in the accident some property damage must have resulted. Nonetheless, this argument begs the question. The question is whether Mary Dratman had the duty to stop under Section 3734 when she knew, or in the exercise of reasonable care should have known, that her vehicle had been involved in an accident. We think the answer is positive.

Judgment of sentence affirmed.

      . Section 3743(a) provides:
      (a) General rule. — The driver of any vehicle involved in an accident resulting only in damage to a vehicle or other property which is driven or attended by any person shall immediately stop the vehicle at the scene of the accident or as dose thereto as possible but shall forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
      75 Pa.C.S. § 3743(a).


author: WIEAND, Judge:

text:
    548 A.2d 594
    Althea OSWALD, Executrix of the Estate of Arthur F. Unangst, Deceased and Althea Oswald, Individually and on Behalf of all Other Survivors of Arthur F. Unangst, Appellant, v. Cynthia L. HAUSMAN, Elva E. Hausman, Herbert F. Hausman, Ronald Werley, Lillian Werley, Ralph H. Kressley, Pauline A. Kressley and Lowhill Township, Appellees.
    Superior Court of Pennsylvania.
    Argued April 26, 1988.
    Filed Oct. 4, 1988.

      Richard P. Focht, Allentown, for appellant.
    John W. Ashley, Allentown, for Werley, appellee.
    Mark S. Sigmon, Bethlehem, for Kressley, appellee.
    Denise G. Ryan, Orefield, for Lowhill, appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

At or about 4:30 p.m. on January 28, 1984, Arthur Unangst, age 74, arose from his rocking chair, left his home in Allentown, and went for a drive through rural Lehigh County. He did not return to his home that night and was reported missing on the following day by the female companion who shared his home. Unangst was found dead on January 31, 1984. His death had been caused by hypothermia. He had frozen to death as he sat behind the wheel of his car on the snow-covered, unpaved portion of a private driveway leading from Legislative Route 39048 in Lowhill Township, Lehigh County, to a farmhouse. Apparently, the vehicle had been immobilized by ice and snow, and Unangst had been unable to extricate it. For reasons which do not clearly appear, but possibly because of poor respiratory health, Unangst elected to remain in his automobile rather than walk an approximate city block to a nearby home.

Althea Oswald, the executrix of Unangst’s estate, commenced wrongful death and survival actions against Lowhill Township and various property owners whose lands abutted the private roadway or who had an interest therein. She alleged generally that the roadway had been maintained negligently and specifically that the private roadway had been inadequately marked to inform motorists of a dangerous condition which had been created by the snow-covered driveway.

The private roadway was paved for a short distance after leading away from the township road with which it intersected. The paved part of the private roadway was 33 feet in width, and all snow had been removed therefrom by plowing. Lillian Werley and Elva and Herbert Hausman owned lands adjacent to the paved and snow-free portion of the private road. They also had an easement over the entire length of the road. Cynthia Hausman owned the land at the end of the paved roadway. Here, the roadway became a dirt road which narrowed gradually to a twelve (12') feet wide lane as it crossed her land to the farm of Ralph and Pauline Kressley, who also had a right of way over the entire roadway. These parties were named as defendants in the instant action. Also named as a defendant was Ronald Werley, who resided elsewhere, but who allegedly owned an undivided one-half (V2) interest, together with his sister, Elva Hausman, in the fee underlying the roadway. There was no evidence of an express agreement among the various abutting land owners regarding the duty of maintaining the private roadway. The paved portion had been blacktopped during the 1960s by Clayton Werley, who had been the common grantor, and had been repaved by him and also by Lillian Werley. There were no warning signs to alert travelers that the roadway was private or that the roadway had no outlet. However, there was a “No Trespassing” sign which had been posted at the end of the paved portion of the roadway on property owned by Cynthia Hausman.

The trial court entered summary judgment in favor of all defendants; and the plaintiff appealed.

The law pertaining to summary judgments was stated in Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 476 A.2d 928 (1984) as follows:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). See also: Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 172, 452 A.2d 269, 270 (1982). In passing upon a motion for summary judgment, the court must examine the record in the light most favorable to the nonmoving party. Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 82-83, 468 A.2d 468, 470 (1983); Zimmerman v. Zimmer man, 322 Pa.Super. 121, 124-125, 469 A.2d 212, 213 (1983); Wilk v. Haus, 313 Pa.Super. 479, 482, 460 A.2d 288, 289-290 (1983). It is not part of the court’s function to- decide issues of fact but solely to determine whether there is an issue of fact to be tried. Wilk v. Haus, supra, 313 Pa.Superior Ct. at 482, 460 A.2d at 290; Tom Morello Construction Co. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 334, 421 A.2d 747, 750 (1980). Any doubt must be resolved against the moving party. Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 38 (1982); First Pennsylvania Bank, N.A. v. Triester, 251 Pa.Super. 372, 378, 380 A.2d 826, 829 (1977).

Id., 328 Pa.Superior Ct. at 140-141, 476 A.2d at 930-931.

Lowhill Township did not have a duty to maintain the private roadway or post warning signs with respect thereto. Even if such a duty could be said to exist, the township nevertheless would be immune from liability by virtue of the Political Subdivision Tort Claims Act, 42 Pa.C.S. § 8541. Contrary to appellant’s contention, the exception to governmental immunity pertaining to traffic control signals under the care, custody, or control of a political subdivision, as set forth in 42 Pa.C.S. § 8542(b)(4), is inapplicable. See: Mindala v. American Motors Corp., 90 Pa.Commw. 366, 495 A.2d 644 (1985), aff'd, Mindala v. American Motors Corp., 518 Pa. 350, 543 A.2d 520 (1988); Rinaldi v. Giblin, 70 Pa.Commw. 253, 452 A.2d 1126 (1982). Under the present law, no other exception to immunity is applicable. We conclude, therefore, that the trial court did not err by granting summary judgment in favor of Lowhill Township.

It is also quite evident under present law that the trial court correctly entered summary judgment in favor of Ronald Werley, whose only connection with this litigation was his alleged ownership of a one-half interest in the fee underlying the private roadway in question. “Liability for negligence does not depend on title, and ... the owner of land will not be held liable for a defective condition therein which arises while he is neither in possession nor control thereof; liability for maintenance of the land follows its possession and control, regardless of title.” 27 P.L.E. Negligence § 58. Here, the possession and right of control were in the persons who had a right of way over the roadway and whose land abutted thereon. In the absence of an agreement to the contrary, there was no duty on Ronald Werley, the absent alleged co-owner of the underlying fee, to maintain the surface of the roadway.

With respect to a private right of way over which an abutting property owner enjoys an easement, it is generally the owner of the dominant estate which has the duty to perform necessary maintenance and repair. Where there are multiple owners of an easement, however, the general rule is that, in the absence of a contrary agreement, each owner is responsible for the maintenance and repair of the portion of the private right of way which abuts his or her land. See: Mscisz v. Russell, 338 Pa.Super. 38, 487 A.2d 839 (1984); Borgel v. Hoffman, 219 Pa.Super. 260, 280 A.2d 608 (1971).

In the instant case, there was no agreement which imposed upon each owner of the dominant tenement a duty to maintain the entire right of way. Therefore, each landowner had a duty to maintain only the portion of the right of way which abutted his or her land. See: Mscisz v. Russell, supra; Borgel v. Hoffman, supra. With respect to the owners whose lands abutted the paved portion of the roadway, there has been neither averment nor evidence that they negligently maintained the paved portion of the roadway. This portion of the roadway had been cleared of ice and snow and did not contribute to the decedent’s predicament. To impose upon them nevertheless a duty to warn that a possible danger existed on another part of the roadway, further along and on a more remote part of the easement, “would be most unreasonable, inconvenient, and inequitable.” Id., 219 Pa.Superior Ct. at 265, 280 A.2d at 610.

Appellant relies upon and argues that we should adopt Section 367 of the Restatement (Second) of Torts, which provides as follows:

A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.

However, even if we were to adopt this section of the Restatement as a part of the law of this Commonwealth, it would not establish a basis for imposing liability on Lillian Werley and Elva and Herbert Hausman. The Restatement rule, as the comment to section 367 makes clear, imposes upon one who has misled others into believing that a part of his premises is a public highway a duty of using care to provide “security similar to that which [others] would be entitled to expect were the land actually a highway.” Restatement (Second) of Torts § 367, comment a. However, it does not impose absolute liability. In the instant case, the owners and possessors of the land abutting the paved roadway had complied with the duty which the law imposed upon them. The roadway abutting their properties, as appellant concedes, had been plowed and was free of ice and snow; and appellant’s decedent was able to negotiate the same without any difficulty. We conclude, therefore, that summary judgment was properly entered in favor of Lillian Werley and Elva and Herbert Hausman.

Similarly, there is no issue as to the liability of Ralph and Pauline Kressley. They are the owners of fields which lie at the far end of the private road. A narrow dirt lane connects their property with the paved roadway. The Kressleys used the lane only on occasion for farm purposes. It is undisputed that the decedent did not reach the Kressleys’ farm or a part of the roadway which immediately abutted their land. Nor is there an evidentiary basis for finding that in some way they had incurred a duty to maintain the roadway which crossed Cynthia Hausman’s land. Therefore, the trial court did not err in entering summary judgment in favor of the Kressleys.

When the decedent left the paved roadway which had been cleared of ice and snow, he entered the land of Cynthia Hausman. There, he continued down a narrowing, snow-covered dirt lane until his vehicle became stuck and he could go no further. Not only did he leave a roadway which had been paved and cleared of snow, but he passed a “No Trespassing” sign as he went from the paved portion of the right of way onto the dirt lane. The trial court declined to apply Section 367 of the Restatement (Second) of Torts to the facts of this case, and determined as a matter of law that the decedent was a trespasser.

A trespasser is one who enters the land of another without any right to do so or who goes beyond the rights and privileges which he or she has been granted by license or invitation. 27 P.L.E. Negligence § 48. See also: Porreca v. Atlantic Refining Co., 403 Pa. 171, 168 A.2d 564 (1961); Koerth v. Borough of Turtle Creek, 355 Pa. 121, 49 A.2d 398 (1946). As a general rule, the owner or occupier’s duty to a trespasser is to refrain from willfully or wantonly injuring the trespasser. Krivijanski v. Union R.R. Co., 357 Pa.Super. 196, 201, 515 A.2d 933, 935 (1986); Antonace v. Ferri Contracting Co., 320 Pa.Super. 519, 522, 467 A.2d 833, 835 (1983). However, foreseeable trespassers may, under certain circumstances, be entitled to greater protection. Frederick v. Philadelphia Rapid Transit Co., 337 Pa. 136, 140, 10 A.2d 576, 578 (1940).

Appellant argues that he is either a licensee or a foreseeable trespasser. A “licensee” is a person whose entry upon or use of the premises in question is by express or implied permission of the owner or occupier. 27 P.L.E. Negligence § 42. A licensee enters upon the land of another solely for his own purposes; the invitation extended to him is given as a favor by express consent or by general or local custom, and is not for either the business or social purposes of the possessor. Fanning v. Apawana Golf Club, 169 Pa.Super. 180, 186, 82 A.2d 584, 586 (1951). The duty which a possessor of land owes to a licensee has been stated as follows:

“A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he (a) knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and (b) invites or permits them to enter or remain upon the land, without exercising reasonable care (1) to make the condition reasonably safe, or (2) to warn them of the condition and the risk involved therein____ The liability of a possessor of land who invites or permits gratuitous licensees to enter his land, is not based upon his duty to maintain it in safe condition. It is based upon his duty to disclose to them the risk which they will encounter if they accept his invitation or permission. He is required to exercise reasonable care either to make the land as safe as it appears or to disclose the fact that it is as dangerous as he knows it to be.”

Rushton v. Winters, 331 Pa. 78, 80, 200 A. 60, 61 (1938), quoting Restatement of Torts § 342 and comment d thereto. See also: Felix v. O’Brien, 413 Pa. 613, 199 A.2d 128 (1964); 27 P.L.E. Negligence § 43.

After a careful analysis of the facts, we conclude that the trial court properly determined the decedent to be a trespasser on lands owned by Cynthia Hausman. Although he may have entered the Hausman land by accident, it is nonetheless clear that he was not there by permission.

“In determining whether the person who enters or remains on land is a trespasser within the meaning of this Section, the question whether his entry has been intentional, negligent, or purely accidental is not material, except as it may bear upon the existence of a privilege to enter____ So far as the liability of the possessor of the land to the intruder is concerned, however, the possessor’s duty, and liability, will be the same regardless of the manner of entry, so long as the entry itself is not privileged. The determining fact is the presence or absence of a privilege to enter or remain on the land, and the status of an accidental trespasser is still that of a trespasser.”

Restatement (Second) of Torts § 329, comment c.

Appellant argues that her decedent’s permission to enter upon the Hausman land arose by implication because the right of way was maintained in a manner whereby motorists could reasonably believe that it was a public street. If the decedent was misled thereby, it is argued, he would not be a mere trespasser but a licensee or, at least, a trespasser whose presence could have been foreseen. See: Restatement (Second) of Torts § 367, Reporter’s Special Note. This argument must be rejected. If the decedent was misled by the paved surface of the private roadway from which ice and snow had been removed, he could not reasonably have believed that he was still on a public road when he came to the end of the paved surface, passed a “No Trespassing” sign, and drove onto a snow-covered, dirt, country lane. For him to believe that he was still on a public road, if such was the case, would have been wholly unreasonable.

Because the decedent was a trespasser, the only duty owed to him by the possessor of the land was to refrain from willfully or wantonly injuring him. There is neither allegation nor evidence that Cynthia Hausman was guilty of willful or wanton misconduct.

Moreover and in any event, Cynthia Hausman was a landlord who was out of possession. Her land had been leased to David Drummer, who was in possession of the entire tract and who had the right to exercise control over the same. As a general rule, a landlord out of possession is not liable for injuries sustained by persons on his or her property unless the landlord has retained the right to control the portion of the premises on which the injury occurred. See: Dinio v. Goshorn, 437 Pa. 224, 228-229, 270 A.2d 203, 206 (1969); Craig v. Ryan, 201 Pa.Super. 307, 312, 191 A.2d 711, 713 (1963). See also: Restatement (Second) of Torts § 356 (with certain exceptions, “a lessor of land is not liable to his lessee or to others on the land for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession.”) In the instant case, there is no evidence to support a finding that Cynthia Hausman retained any control over the land which she had leased to Drummer or the dirt lane which crossed the demised premises. Thus, it would be wholly unreasonable to impose upon her a duty of clearing the private, farm lane of snow or of giving warning that it had not been cleared to motorists who, without permission, drove their vehicles onto the obviously snow-covered, private land. Therefore, even if the decedent were to be deemed a licensee, there would be no liability on the part of Cynthia Hausman.

This is a case which does not merit further consideration by the judicial system. The trial court properly entered summary judgment in favor of the defendants.

AFFIRMED.

      . Not named as parties were Harold Wenner, whose property abutted the paved portion of the roadway and who had voluntarily removed the snow from the paved portion of the roadway, and David Drummer, who was the tenant who occupied Cynthia Hausman’s property and who, allegedly, was responsible for clearing the snow from the roadway over that property.

      . None of the parties to this appeal have objected to the jurisdiction of the Superior Court on grounds that issues of governmental immunity are more properly taken to the Commonwealth Court. See: 42 Pa.C.S. § 762(a)(7). Therefore, our jurisdiction has been perfected, and we may proceed to decide the case ourselves. See: Pa.R.App.P. 741(a); Overstreet v. Borough Of Yeadon, 327 Pa.Super. 291, 475 A.2d 803 (1984); Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983); Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 406 A.2d 1133 (1979). It is especially appropriate for us to retain jurisdiction in the instant case because the issue of immunity is but a single issue concerning one party in a complicated case with many issues and multiple parties. Moreover, our decision of this issue rests upon precedent and will not conflict with other decisions of the Commonwealth Court.


author: KELLY, Judge:

text:
    548 A.2d 600
    Gladys GORDON, Appellant, v. PENNSYLVANIA BLUE SHIELD, Appellee.
    Superior Court of Pennsylvania.
    Argued June 30, 1988.
    Filed Oct. 4, 1988.

      Joel M. Lieberman, Philadelphia, for appellant.
    Don P. Foster, Philadelphia, for appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   KELLY, Judge:

This is an appeal from the Order of January 2, 1988 in which defendant’s preliminary objections to plaintiff’s complaint were granted. The trial court ordered Counts II through V stricken from plaintiff’s complaint. Plaintiff appeals. We affirm.

On December 10, 1985, plaintiff/appellant, Gladys Gordon, was operating a motor vehicle when she was struck from behind by another vehicle. As a result of this accident, Gordon sustained injuries. At the time, Gordon maintained automobile insurance with Erie Insurance Company for liability and no-fault benefits; Gordon maintained medical insurance with Philadelphia Blue Cross and Pennsylvania Blue Shield (Blue Shield) by virtue of her membership in her employer’s group medical plan.

Gordon claimed total medical bills from the automobile accident of $12,339.55. After exhausting her $10,000.00 no-fault benefits through Erie, Gordon submitted a secondary claim to appellee Blue Shield for the balance of $2,339.55. Blue Shield denied payment. Gordon then filed a five count complaint against Blue Shield alleging in Count I, breach of contract; in Count II, misrepresentation and deceit; in Count III, violation of the Unfair Trade Practices and Consumer Protection Law; in Count IV, punitive damages; and in Count V, class action status. Blue Shield filed preliminary objections to Gordon’s complaint which were granted by the trial court. The trial court ordered Counts II through V of appellant’s complaint stricken. Gordon now appeals to this Court and raises the following issue:

Does plaintiff, Gladys Gordon, have the private right to bring a cause of action against an insurance carrier for the violation of the Unfair Trade Practices and Consumer Protection Law?

(Appellant’s Brief at 3).

Our standard of review of such cases has been set forth in Pekular v. Eich, 355 Pa.Super. 276, 513 A.2d 427 (1986):

With respect to preliminary objections which are sustained by the trial court: In determining whether the lower court properly dismissed the complaint, we must take as true ‘every well pleaded material fact set forth in the pleading ..., as well as the inferences reasonably deducible therefrom.’ Furthermore, we must bear in mind
the rule that preliminary objections should be sustained and a complaint dismissed only in cases which are clear and free from doubt. To sustain preliminary objections in the nature of a demurrer, it must appear with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff. Where any doubt exists as to whether or not the preliminary objections should be sustained, that doubt should be resolved by refusing to sustain the objections.

Pekular, 355 Pa.Superior Ct. at 280, 513 A.2d at 429 (citations omitted).

“Ordinarily, no point will be considered which is not set forth in the statement of questions involved or suggested thereby.” Pa.R.A.P. 2116(a). In this case, we note that although the trial court struck Counts II, III, IV and V of appellant’s original complaint, the issue now raised by appellant on appeal encompasses only the dismissal of Count III. This Court will address only the issue set forth in appellant’s statement of questions presented, regardless of any other argument raised in appellant’s brief. Thus, all arguments relating to the striking of Counts II, IV and V or the merits of any argument relating to those counts are waived. First Seneca Bank v. Greenville Distributing Co., 367 Pa.Super. 558, 533 A.2d 157 (1987); Von Moschzisker, A Time Saving Method of Stating in Appellate Briefs, The Controlling Question for Decision, 34 Yale L.J. 287 (1924-25), reprinted in Von Moschzisker, Stare Decisis, Res Judicata, and Other Selected Essays, 207-25 (1929) (explaining the origin, purpose, and application of the rule requiring a brief statement of the questions presented).

I.

Our first task is to determine whether this appeal is properly before this Court. See Hardy v. Pennock Insurance Agency, Inc., 365 Pa.Super. 206, 529 A.2d 471 (1987), quoting Cloverleaf Development, Inc. v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985). Appellant’s cause of action for breach of contract was the sole claim not stricken from appellant’s complaint by the court below. Count III of appellant’s complaint, which was dismissed, alleged that Blue Shield violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., by violating the Unfair Insurance Practices Act, 40 P.S. § 1171.1, et seq.

This Court stated in Hardy:

Reiterating the rule set forth in Cloverleaf, if the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final and appealable as to those causes of action dismissed. Cloverleaf, 347 Pa.Superior Ct. at 82, 500 A.2d at 166.
******
Count IV (in trespass) alleges the existence of unfair or deceptive acts or practices under the Unfair Insurance Practices Act and/or the Pennsylvania Unfair Trade Practices and Consumer Protection Law. This claim is not present in Count I of appellants’ complaint. It is a separate and distinct cause of action based upon statutory law. Therefore, the dismissal of Count IV, like Count III, was a final and appealable order, and may now be presented to this Court for consideration.

365 Pa.Superior Ct. at 212, 529 A.2d at 475. Thus, the dismissal of appellant’s Unfair Trade Practices and Consumer Protection Law claim in Hardy was properly appealed.

In this case, Count III of appellant’s complaint involves appellee’s alleged violation of the Unfair Trade Practices and Consumer Protection Law. This claim is likewise separate and distinct from appellant’s remaining breach of contract claim at Count I. Therefore, the order of the court below is final and appealable as it pertains to the dismissal of Count III of appellant’s complaint.

II.

As to the merits of appellant’s sole contention on appeal, we agree with the trial court that appellant has failed to properly state a cause of action under the Unfair Trade Practices and Consumer Protection Law. Our reasoning follows.

A.

We note initially that in Pekular v. Eich, supra, this Court explained that an action pursuant to the Unfair Insurance Practices Act would not preclude appellant from initiating a separate cause of action of existing common law remedies such as fraud and deceit. A common law cause of action for fraudulent misrepresentation could, therefore, have been properly before this Court. However, as we explained at the outset, appellant has waived any such claim on appeal by raising before this Court only the issue of whether the trial court erred in dismissing the Unfair Trade Practices and Consumer Protection Law claim stated in Count III the original complaint. No challenge to the dismissal of appellant’s claim of misrepresentation and deceit, as raised in Count II of appellant’s complaint, has been preserved on appeal. Therefore, we may not address a claim of fraudulent misrepresentation in the context of a common law cause of action.

B.

Appellant argues that a violation of the Unfair Insurance Practices Act by appellee in this case is a “per se or de facto violation” of the Unfair Trade Practices and Consumer Protection Law. Appellant’s complaint at 5, R.R. 16a. We decline to address appellant’s claim as stated. When the appellants in Hardy, supra, attempted to raise a violation of the Unfair Insurance Practices Act before this Court, we made it clear that such an action was not properly within our jurisdiction. This Court stated:

In the instant case, appellants sought statutory relief before the courts rather than requesting the Department of Insurance to review the action to determine whether a hearing was warranted. This act was contrary to D'Ambrosio [v. Pennsylvania National Mutual Casualty Insurance Co.] supra [494 Pa. 501, 431 A.2d 966], and the express administrative procedure as set forth in [J.C. Penney Cas. Ins. Co. v. Com. Dept. of Ins. 43 Pa. Cmwlth. 360, 402 A.2d 558 (1979) ]. Therefore, we hold that the court’s dismissal of Count IV of appellants’ complaint was proper with regard to the Unfair Insurance Practices Act.

Hardy, 365 Pa.Superior Ct. at 220, 529 A.2d at 478. It is not for this Court to determine whether appellant violated the Unfair Insurance Practices Act.

We follow the rationale set forth in Hardy, and note a distinction between that case and the instant case which must be addressed. In Hardy, appellants directly claimed a violation of the Unfair Insurance Practices Act. Count IV (in trespass) of the complaint in Hardy alleged the existence of unfair or deceptive acts or practices under the Unfair Insurance Practices Act and/or the Unfair Trade Practices and Consumer Protection Law. In the instant case, appellants have indirectly claimed a violation of the Unfair Insurance Practices Act by presenting the Unfair Insurance Practices Act violation as the foundation for appellant’s direct claim, a violation of the Unfair Trade Practices and Consumer Protection Law, set forth in Count III of appellant’s complaint. Logically, in order to determine whether appellee violated the Unfair Trade Practices and Consumer Protection Law by violating the Unfair Insurance Practices Act, it must first be determined whether appellee, in fact, violated the Unfair Insurance Practices Act. As we have stated, that initial step is not within the authority of this Court to decide. Accordingly, we find that whether raised as a primary contention, as in Hardy, or as a secondary claim set forth as the basis of another claim, as in the instant case, an alleged violation of the Unfair Insurance Practices Act cannot and will not be entertained by this Court.

C.

As her primary argument, appellant contends that “the instant defendant violated the principles of the Unfair Insurance Practices Act, and, in so doing, violated the Unfair Trade Practices and Consumer Protection Law." (Appellant’s brief at 8) (statutory citation omitted). Appellant argues that appellee negligently breached the contract existing between the parties and was therefore guilty of misfeasance. Appellant claims that such misfeasance was willful and wanton, that such breach of contract may give rise to an actionable tort, and that punitive damages are therefore applicable.

On its face, this is a tenable argument pursuant to our holding in Pekular, supra. In Pekular, appellants attempted to maintain a cause of action under the Unfair Trade Practices and Consumer Protection Law when the allegations in his complaint fell within the purview of the acts and practices prohibited by the Unfair Insurance Practices Act. This Court ruled that an insured could seek compensation in a common law action for damages incurred as a result of unscrupulous conduct which was also under the provisions of the Unfair Trade Practices and Consumer Protection Law, stating that “the limited penalties of the [Unfair Insurance Practices Act] do not represent the sole and exclusive deterrent to alleged unfair or deceptive acts of insurers and their agents.” 355 Pa.Superior Ct. at 290, 513 A.2d at 434. It follows that a separate action could likewise be maintained under the Unfair Trade Practices and Consumer Protection Law providing that appellee’s alleged “misrepresentation” rises to the level of an unfair or deceptive act or practice as defined under 73 P.S. § 201-2(4) of that law. We agree with the trial court that appellant has failed to properly set forth a violation of the Unfair Trade Practices and Consumer Protection Law, in that respect.

Appellant argues that appellee negligently breached the contract that existed between the parties, and that this action constitutes misfeasance. Arguably, a liberal construction of “misfeasance” might bring appellant’s claim within the purview of the Unfair Trade Practices and Consumer Protection Law, should the court find that misfeasance in fact existed. Here, however, the trial court found that appellant had actually alleged nonfeasance rather than misfeasance, and we agree.

The only act alleged by appellant in this case was the refusal of appellee to pay benefits to which appellant felt entitled. As this Court stated in Raab v. Keystone Ins. Co., 271 Pa.Super. 185, 412 A.2d 638 (1979) appeal dismissed, 496 Pa. 414, 437 A.2d 941 (1981):

The test used to determine if there exists a cause of action in tort growing out of a breach of contract is whether there was an improper performance of a contracted obligation (misfeasance) rather than the mere failure to perform (nonfeasance).
•M * # * * *
Plaintiffs allege that defendant’s negligence is grounded in their ‘failure’ to take certain actions in the handling of plaintiff’s claim. Our examination of this alleged conduct indicates that it is in the nature of ‘nonfeasance’ inasmuch as it is the ‘omitting to do, or not doing something which ought to be done.’

271 Pa.Superior Ct. at 187-188, 412 A.2d at 639 (citations omitted). The alleged improper refusal to act on appellee’s part in this instance does not constitute actionable misfeasance. Nonfeasance alone is not sufficient to raise a claim pursuant to the Unfair Trade Practices and Consumer Protection Law. Thus, appellant’s claim must fail.

CONCLUSION

The sole claim before us on appeal is whether the trial court erred in dismissing appellant’s claim that appellee violated the Unfair Trade Practices and Consumer Protection Law. After a thorough review of the record and arguments presented, including a liberal construction of appellant’s claim on appeal, we find no merit in the contention and affirm the order of the trial court.

ORDER AFFIRMED.

       Most of the argument section of appellant’s brief pertains to the appealability of the order sustaining appellee’s preliminary objections. We are hard-pressed to discern any viable argument specifically supportive of appellant’s issue on appeal as stated in her Statement of the Question Involved. The Argument section of appellant’s brief instead follows a meandering course which fails to provide a pertinent review of appellant’s sole issue on appeal, in violation of Pa.R.A.P. 2119(a). Nevertheless, we strive to review appellant’s claim as set forth in her 2116(a) statement.