author:
      WIEAND, Judge:
      CIRILLO, Judge,

text:
    448 A.2d 614
    Dennis L. MILLER and Constance J. Miller, in their own rights and as parents and natural guardians of Scott Lee Miller, a Minor, Appellants, v. Elvin HURST.
    Superior Court of Pennsylvania.
    Argued Feb. 25, 1982.
    Filed July 23, 1982.
    Petition for Allowance of Appeal Denied Nov. 4, 1982.

      Neil J. Rovner, Harrisburg, for appellants.
    Wiley P. Parker, Lebanon, for appellee.
    Before CERCONE, President Judge, and CAVANAUGH, ROWLEY, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   WIEAND, Judge:

In this appeal, we are asked to determine whether a dog owner who permits a dog to run free in violation of a law requiring that the dog be restrained is liable, without further proof of negligence, for injuries caused when the dog bites a small child. This issue arises because the trial judge entered a compulsory nonsuit in an action brought by the child’s parents to recover for injuries caused by a roving German Shepherd, and the court en banc refused a motion to remove the nonsuit. Before reaching the substantive issue, however, we must determine whether an order refusing to remove a compulsory nonsuit is a final and appeal-able order.

Until recently the procedural rule of law was clear. An appeal did not lie from an order entering a nonsuit, but it did lie from the refusal to take it off. Kukich v. Serbian Eastern Orthodox Church of Pittsburgh, 415 Pa. 28, 202 A.2d 77 (1964); Dellacasse v. Floyd, 332 Pa. 218, 2 A.2d 860 (1938); Gehringer v. Erie Railways Co., 297 Pa. 47, 146 A. 148 (1929); Fine v. Soifer, 288 Pa. 164, 135 A. 742 (1927); McDonald v. Babcock, 269 Pa. 68, 112 A. 29 (1920); Nazareth F. & M. Co. v. Marshall, 257 Pa. 489, 101 A. 848 (1917); Bausbach v. Reiff, 237 Pa. 482, 85 A. 762 (1912); Haverly v. Mercur, 78 Pa. 257 (1875). See also 1 Goodrich Amram 2d, § 231(b) :4.1.

The authority for the nonsuit procedure had been found in the Act of March 11, 1875, P.L. 6, § 1, 12 P.S. § 645, which provided:

Whenever the defendant, upon the trial of a cause in any court of common pleas of this commonwealth, shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if, in his opinion, the plaintiff shall have given no such evidence as in law is sufficient to maintain the action, with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit; and in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may remove the record by writ of error into the supreme court for revision and review, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence.

This statutory provision was repealed, effective June 27, 1980, by the Judiciary Act Repealer Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[653], 42 P.S. § 20002(a) [653], Nevertheless, the practice of entering a nonsuit for failure to prove a prima facie case has continued. See Pa.R.C.P. 224. However, “[tjhere is still no right to appeal without first moving to take off the nonsuit. The appeal lies only from the action of the court en banc in refusing to remove the nonsuit.” 1 Goodrich Amram § 231(b) :5.

A refusal by the court en banc to remove a compulsory nonsuit is a final order which unequivocally puts the plaintiff out of court. It is a judicial determination holding it “inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.” Sargeant v. Ayers, 358 Pa. 393, 397, 57 A.2d 881, 883 (1948), quoting from Virgilio v. Walker and Brehm, 254 Pa. 241, 244-45, 98 A. 815, 816 (1916). It is not a direction by a court en banc that a specified judgment shall thereafter be entered or that a verdict be recorded. It is neither the same as nor comparable to the denial of a motion for a new trial which calls for the subsequent entry of a judgment. A refusal to remove a compulsory nonsuit is a final order and requires no further entry of judgment. It constitutes a final adjudication that the plaintiff cannot recover, puts him or her finally out of court, and bars the commencement of a second action upon the same cause. Can any adjudication be more final than this? The answer is readily apparent. Because such a determination is a final order, it is appealable to the same extent as other final orders. See Adoption of G.M., 484 Pa. 24, 398 A.2d 642 (1979); Feingold v. Bell of Pennsylvania, 477 Pa. 1, 383 A.2d 791 (1977); T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977).

Several recent decisions by panels of this court have sought to equate an order refusing to remove a compulsory nonsuit with an order refusing to award a new trial and have held that an order refusing to remove a nonsuit is not appealable unless and until a judgment has been entered thereon. See Anskis v. Fischer, 294 Pa.Super. 212, 439 A.2d 826 (1982); Fisher v. Findlay, 293 Pa.Super. 293, 438 A.2d 1000 (1981); Lawson v. Bond, 293 Pa.Super. 179, 437 A.2d 1264 (1981); Levin v. Desert Palace, Inc., 291 Pa.Super. 408, 435 A.2d 1292 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981). The analogy attempted to be drawn by these decisions is not apt. An order refusing to remove a compulsory nonsuit, contrary to an order refusing to award a new trial, is a final, judicial determination that as a matter of law the plaintiff has no cause of action on which recovery can be had. In this respect it is comparable to an order sustaining preliminary objections in the nature of a demurrer to a complaint and dismissing the complaint without leave to amend. Such an order, it is agreed by all, is final and appealable. See Hudock v. Donegal Mutual Insurance Co., 438 Pa. 272, 264 A.2d 668 (1970); Rabben v. Steinberg, 187 Pa.Super. 28, 142 A.2d 400, 401 (1958).

[S] The appealability of an order refusing to remove a compulsory nonsuit has not been impaired by Pa.R.C.P. 227.1. This rule, promulgated in 1977, was intended to make uniform the time within which to file all post trial motions in civil cases. See E. J. McAleer & Co. v. Iceland Products, 475 Pa. 610, 612 n.2, 381 A.2d 441, 442 n.2 (1977); Explanatory Note to Pa.R.C.P. 227.1. It was not intended to determine and does not expressly or by necessary implication determine or affect the finality of an order refusing to remove a compulsory nonsuit.

Similarly, Pa.R.App.P. 301(c) does not prevent or impair in any way the right to appeal from an order of a court en banc refusing to remove a compulsory nonsuit. This rule provides:

A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket, or a direction that a verdict of a jury be recorded or entered, or an order denying a motion for a new trial, does not constitute an appealable order. Any such order shall be reduced to judgment and docketed before an appeal is taken.

This rule, by its terms, has no applicability to an order refusing to remove a compulsory nonsuit, except possibly, that the order must be entered in the docket before an appeal therefrom can be filed. The rule does not require that an order refusing to remove a compulsory nonsuit, as opposed to denying a motion for new trial, be reduced to judgment. Indeed, the exclusion from its terms of an order refusing to remove a compulsory nonsuit suggests most strongly that the rule was not intended to alter the rule which for many years has held that an appeal lies from an order of a court en banc refusing to remove a compulsory nonsuit.

We hold, therefore, that an order refusing to remove a compulsory nonsuit is appealable. Panel decisions reaching a contrary conclusion are overruled. We proceed, now, to consider the substantive issue raised in the present appeal.

The Dog Law of December 22, 1965, P.L. 1124, Art. VII, § 702, 3 P.S. § 460-702, provides in relevant part as follows:

It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either (1) confined within the premises of the owner, or (2) firmly secured by means of a collar and chain or other device so that it cannot stray beyond the premises on which it is secured, or (3) under the reasonable control of some person, or when engaged in lawful hunting or field training accompanied by an owner or handler.

Appellants’ evidence in the instant case showed that Elvin Hurst, appellee, was the owner of a German Shepherd dog which he permitted to roam without restraint. On June 1, 1977, the dog entered neighboring property where Scott Miller, then six years of age, was playing with his brother and a friend. When the dog approached the children, Scott attempted to pet the dog, which thereupon bit and tore open the boy’s cheek. Although plastic surgery was performed, Scott has been left with a permanent, L-shaped scar.

The appellee-owner was aware that his dog became nervous or restless if children attempted to hang on to it. He also knew that children resided and frequently played in the neighborhood. However, plaintiffs-appellants failed to produce evidence that the dog had previously exhibited vicious tendencies or had bitten anyone. For this reason, the trial court held that appellants had failed to prove a cause of action and entered a nonsuit. Reliance was placed upon the decision of the Superior Court in Freeman v. Terzya, 229 Pa.Super. 254, 323 A.2d 186 (1974), where this Court said:

No matter how innocent the victim may be or how serious the injury sustained, the owner of the dog is not responsible for the consequences of the dog’s bite if he has no reason to know the viciousness or dangerous propensities of the dog beforehand: Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936). This is true even though the owner violates the Dog Law of Pennsylvania .... “[Tjhat act does not purport to change or affect in any way the rule that an owner’s liability for the vicious acts of his dog cannot be predicated upon ownership alone, but it must be based also on an owner’s knowledge of his dog’s viciousness and his failure then to take proper steps to prevent that viciousness displaying itself to the hurt of human beings.”

Id., 229 Pa.Superior at 256, 323 A.2d at 187.

We conclude that a society which has become as urbanized as it presently exists in Pennsylvania can no longer permit dogs to run free without imposing responsibility upon their owners for damages caused to persons or property by such roving dogs. This, we believe, was the intent of the legislature when it enacted the Dog Law of 1965. Section 702 of the statute, as a cursory reading of the entire statute discloses, was enacted as part of a statute intended to protect the public from personal injury, property damage and other hazards created by roving dogs. Indeed, Section 702 is directly supplemented by Section 501, which provides specific remedies to persons who have sustained bodily injury or property damage caused by unrestrained dogs.

Section 286 of the Restatement (Second) of Torts suggests that a “court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part (a) to protect a class of persons which includes the one whose interest is invaded, and (b) to protect the particular interest which is invaded, and (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.” These are the considerations which prompted enactment of the Dog Law. We are unable to perceive any good reason for failing to adopt the requirement of the statute as the standard for determining whether a person has complied with the common law duty to exercise ordinary care.

We conclude, therefore, that an unexcused violation of the Dog Law is negligence per se. Restatement (Second) of Torts, § 288B. By so holding, we overrule Freeman v. Terzya, supra, and join a growing number of states which have acknowledged the potential danger of allowing dogs to run at large in an urban society. Although some states have gone further and have imposed absolute liability for damages caused by roving dogs, we find it improvident and unnecessary to effect such a monumental change without legislative action. The legislature in Pennsylvania has enacted a Dog Law which requires that owners of dogs prevent their animals from running at large, but it has not yet imposed absolute liability upon an owner who violates such law. Therefore, we do not usurp the function and prerogative of the legislature. We hold merely that violation of the legislatively enacted Dog Law is negligence per se. This, we believe, is consistent with the intent of the legislature and also with the holdings of courts of other jurisdictions having similar laws. See Pigman v. Nott, 305 Minn. 512, 233 N.W.2d 287 (1975); Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964); Butler v. Frieden, 208 Va. 352, 158 S.E.2d 121 (1967).

The rule which we adopt today is in accord with the interpretation which the courts of this State have consistently placed upon provisions of the Liquor Code of April 12, 1951, P.L. 90, Art. IV, § 493(1), 47 P.S. § 4^493(1). Violations of requirements imposed by that law have been held to be negligence per se. See Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965); Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964); Connelly v. Ziegler, 251 Pa.Super. 521, 380 A.2d 902 (1977).

Where proof of negligence rests upon a violation of the Dog Law, liability does not attach unless the violation is a substantial factor in bringing about the injuries sustained. Despite a violation of the statutory requirement, moreover, an action for personal injuries may be defended, where appropriate, by showing that the plaintiff was guilty of contributory negligence which caused his or her own injuries. These issues, however, will normally be for the trier of the facts. A deliberate violation of the Dog Law suffices to show negligence; but liability is not absolute.

In the instant case, evidence that appellee intentionally allowed his dog to run without restraint was sufficient to make out a prima facie case of negligence. As such, plaintiffs-appellants were entitled to have their claim submitted to a jury; the entry of a compulsory nonsuit was improper.

Reversed and remanded for proceedings consistent with the foregoing opinion.

CIRILLO, J., files a dissenting and concurring opinion.

CIRILLO, Judge,

dissenting and concurring:

I respectfully dissent from the majority holding that an order refusing to remove a compulsory nonsuit is appealable prior to the entry of judgment on the docket.

It is clear that an appeal does not lie from an order entering a nonsuit, but rather, an appeal may only be taken subsequent to the denial of a motion to remove the nonsuit. The majority holds that the appeal is actually taken from the order refusing to remove the nonsuit. However, I would hold that an order refusing to remove a nonsuit is not appealable until a judgment is entered on the order.

The majority has stated that an order refusing to remove a nonsuit is comparable to an order sustaining preliminary objections in the nature of a demurrer, which is appealable without a judgment being entered. In my opinion, however, an order refusing to remove a nonsuit is analogous to an order refusing to award a new trial, which must have a judgment entered before it can be appealed. See: Pa.R. A.P. No. 301(c), 42 Pa.C.S.A.

Where a demurrer to a complaint has been sustained, the court has made a finding that the complaint fails to state a cause of action upon which relief can be granted. Papieves v. Lawrence (Kelly), 437 Pa. 373, 381, 263 A.2d 118 (1970); Pa.R.C.P. No. 1017(b)(4). The court’s finding that no cause of action exists does not involve the weighing of any evidence of the case. Upon the docketing of such an order, the matter is out of court and the order is immediately appealable without entry of judgment. No judgment is required because there is no longer any case upon which to enter judgment.

On the other hand, where a motion for a new trial has been denied, the verdict of the fact-finder remains extant. It is that verdict upon which judgment must be entered prior to appealing the denial of the motion for a new trial.

Similarly, where a motion to remove a nonsuit is denied, there remains a case upon which judgment can be entered. The complainant may be out of court as a result of the nonsuit, but it is not because he failed to state a claim as in the case of a demurrer. Rather, it is because the complainant has failed to substantiate the claim with sufficient evidence at trial. Jurich v. United Parcel Service, 239 Pa.Super. 306, 308, 361 A.2d 650 (1976); Pa.R.C.P. No. 224.

Under Pa.R.C.P. No. 227.1, the motion for removal of a nonsuit is classified as a post-trial motion, as distinguished from a pre-trial preliminary objection in the nature of a demurrer to a complaint. The majority correctly points out that Rule 227.1 equates motions for a new trial and for removal of a nonsuit only for the explicit purpose of standardizing the filing period for post-trial motions. This need for uniformity in the area of civil post-trial motions is the reason Rule 227.1 was promulgated. Further, the classification of motions to remove nonsuit and for a new trial as post-trial motions in Rule 227.1 assures prompt consideration of these motions by the trial court prior to appellate review.

This court has held on several occasions that the motion to remove a nonsuit is to be treated like all other post-trial motions. See: Lawson v. Bond, 293 Pa.Super. 178, 437 A.2d 1264 (1981); Levin v. Desert Palace, Inc., 291 Pa.Super. 408, 435 A.2d 1292 (1981); Thomas M. Durkin & Sons, Inc. v. Nether Providence Township School Authority, 291 Pa.Super. 402, 435 A.2d 1288 (1981). I see no reason to overrule these decisions as they provide a clear and consistent guide as to the appealability of an order refusing to take off a nonsuit. I would, therefore, hold that this was not an appealable order before us in this matter and this appeal should be quashed.

Since the majority has, in my view incorrectly, reached the merits of this case, I add my concurrence to their ruling that an unexcused violation of the “Dog Law” constitutes negligence per se.

      . By Act of June 3, 1971, P.L. 120, No. 6, § 1 (§ 509(a)(25)), the statute had been amended by deleting the language permitting an appeal to the Supreme Court. This was consistent with the Appellate Court Jurisdiction Act of July 31, 1970, which modernized the jurisdictional bounds of the appellate courts in Pennsylvania and provided that “[t]he Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas ....” Act of July 31, 1970, P.L. 673, Art. Ill, § 302, 17 P.S. § 211.302.

      . The rule is as follows:
      All post-trial motions after trial by jury, including a motion for new trial, judgment non obstante verdicto, judgment upon the whole record after disagreement of a jury, removal of a nonsuit and in arrest of judgment, shall be filed within ten (10) days after nonsuit or verdict or disagreement of the jury.

      . On the date of the incident in question, appellee was issued a citation for committing a violation of the Dog Law.

      . This rule has sometimes been known, albeit erroneously, as the “one free bite” rule.

      . 3 P.S. § 460-501.

      . Appellee contends that appellants failed to plead negligence per se and that a cause of action based thereon has consequently been waived. This contention is lacking in merit. The complaint, which is a fact pleading, alleged clearly a violation of the Dog Law and a resulting injury. It concluded that appellee was either liable absolutely or liable for negligence. The fact that the pleading did not use the term “negligence per se” is not significant.

      . See Kowal v. Archibald, 148 Conn. 125, 167 A.2d 859 (1961); Mapoles v. Mapoles, Fla.App., 350 So.2d 1137 (1977); Nelson v. Lewis, 36 Ill.App.3d 130, 344 N.E.2d 268 (1976); LeMars Mutual Insurance Co. of Iowa v. Bonnecroy, Iowa, 304 N.W.2d 422 (1981); Holland v. Buckley, La., 305 So.2d 113 (1974); Teel v. Colson, Me., 396 A.2d 529 (1979); Malchanoff v. Truehart, 354 Mass. 118, 236 N.E.2d 89 (1968); Seim v. Garavalia, Minn., 306 N.W.2d 806 (1981); Paulsen v. Courtney, 202 Neb. 791, 277 N.W.2d 233 (1979); Mascola v. Mascola, 168 N.J.Super. 122, 401 A.2d 1114 (1979); Hirschauer v. Davis, 163 Ohio St. 105, 126 N.E.2d 337 (1955); Nelson v. Hansen, 10 Wis.2d 107, 102 N.W.2d 251 (1960). See also 4 Am.Jur.2d Animals, §§ 88, 116; 142 A.L.R. 436.

      . A dog owner may always show that his or her dog escaped despite the exercise of due care. In such cases, the roving of the dog would not constitute negligence.

      . The firmly established rule of Pennsylvania appellate courts is that all post-trial motions shall be considered by the trial court prior to appeal. Nord v. Devault Contracting Co., 460 Pa. 647, 334 A.2d 276 (1975); Gibson v. Miller, 265 Pa.Super. 597, 402 A.2d 1033 (1979); Pa.R.C.P. Nos. 227.1, 1038(d) and 1518.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    448 A.2d 620
    Myron KLEIN, Philip Klein, and Myron Klein, Administrator of the Estate of Shirley M. Klein, Deceased, Appellants, v. Mark RAYSINGER and 600 Corporation t/a Neptune Inn, C/O Laura Fagan, Michael Gilligan, Mr. and Mrs. William T. Gilligan and Michael Klein.
    Superior Court of Pennsylvania.
    Argued March 31, 1982.
    Filed July 23, 1982.

      William R. Solvibile, Philadelphia, for appellants.
    Dean B. Stewart, Norristown, submitted a brief on behalf of Gilligan, appellees.
    Before WIEAND, McEWEN and POPOVICH, JJ.
   WIEAND, Judge:

Myron, Philip, and Shirley Klein were passengers in a vehicle that was struck in the rear by a vehicle operated by an intoxicated Mark Raysinger. An action was instituted to recover damages for injuries sustained by the Kleins. Included as defendants were Michael Gilligan and Mr. and Mrs. William Gilligan, all of whom were charged with negligence in serving one or more alcholic beverages to Raysinger in their home at a time when Raysinger was visibly intoxicated. They were also charged with negligence in permitting Raysinger to drive his own vehicle while he was visibly intoxicated. The Gilligans filed preliminary objections in the nature of a demurrer to the Kleins’ complaint, and when the trial court sustained those preliminary objections the Kleins appealed. .

The standard for reviewing an order of the lower court sustaining preliminary objections in the nature of a demurrer is set forth in Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979): “It is axiomatic in the law of pleading that preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Byers v. Ward, 368 Pa. 416, 84 A.2d 307 (1951). Conclusions of law and unjustified inferences are not admitted by the pleading. Lerman v. Rudolph, 413 Pa. 555, 198 A.2d 532 (1964). Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.” Accord: Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Super. 37, 41, 442 A.2d 284, 285-286 (1982); Rose v. Wissinger, 294 Pa.Super. 265, 270, 439 A.2d 1193, 1196 (1982); Banyas v. Lower Bucks Hospital, 293 Pa.Super. 122, 124, 437 A.2d 1236, 1237 (1981); Chapman v. City of Philadelphia, 290 Pa.Super. 281, 283, 434 A.2d 753, 754 (1981).

Appellants contend that appellees became civilly liable by the application of common law principles of negligence when they served alcholic beverages to a visibly intoxicated social guest. However, the complaint is defective in that it fails to allege that when Michael Gilligan served intoxicants to Raysinger he knew or had reason to know that Raysinger would operate a motor vehicle while intoxicated. Nevertheless, this is an inadequate reason to dismiss the complaint. If the possibility of stating a cause of action exists, appellants must be given an opportunity to file an amended complaint. See Otto v. American Mutual Insurance Company, 482 Pa. 202, 393 A.2d 450 (1978); Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979).

In Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), the Supreme Court refused to extend civil liability to a social host for the conduct of an intoxicated guest. It said: “Only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties. Jardine v. Upper Darby Lodge No. 1973, 413 Pa. 626, 198 A.2d 550 (1964). Appellant asks us to impose civil liability on nonlicensed persons like appellees, who furnish intoxicants for no remuneration. We decline to do so. While appellant’s proposal may have merit, we feel that a decision of this monumental nature is best left to the legislature.” Id., 454 Pa. at 239, 310 A.2d at 76. (Emphasis in original).

This holding was followed recently by a panel of this Court in affirming a summary judgment entered in favor of the social hosts in a companion suit filed by Michael Klein, the driver of the vehicle struck by Raysinger. See Klein v. Raysinger, 298 Pa.Super. 246, 444 A.2d 753 (1982). See also Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980).

Another decision which is instructive, although not binding, is the decision of the United States District Court for The District of Columbia in Cartwright v. Hyatt Corporation, 460 F.Supp. 80 (D.C.D.C.1978). There, on similar facts, the Court observed:

Plaintiff’s argument that this Court should find or create a common law duty, as the California Supreme Court attempted to do in Coulter v. Superior Court of San Mateo County, 21 Cal.3d 144, 145 Cal.Rptr. 534, 577 P.2d 669 (1978), is not persuasive .... Valid policy considerations exist on both sides of this issue, and the Court is not prepared to adopt for the District of Columbia a rule not judicially imposed by any other court in any other jurisdiction. If such a rule is to become a part of District of Columbia law, the decision should appropriately be made by the legislature—as it has been wherever the rule has been adopted.

Id. at 81-82 (Footnotes omitted).

It is clear that Pennsylvania law does not presently recognize a cause of action against a non-licensed, social host who furnishes alcoholic beverages to an intoxicated guest. In view of the carnage on public highways caused by drivers under the influence of alcohol, it may be, as appellants contend, that the time has come to impose such liability. Until such a change is effected by the legislature or by the Supreme Court, however, we are required to follow and apply existing law. When existing law is applied, it is clear that appellants have no cause of action against appellees.

Affirmed.

McEWEN and POPOVICH, JJ., concur in the result.

      . Paragraph 36 of appellants’ complaint alleged:
      36. The negligence of the Defendant, Michael Gilligan consisted in the following:
      (a) Negligently and carelessly serving alcoholic and intoxicating beverages to Defendant, Raysinger, who was visibly intoxicated;

        (b) Failing to recognize the danger of allowing the Defendant, Raysinger, to drive a motor vehicle on the highway after serving him alcoholic and intoxicating beverages;
      (c) Negligence at law.
      Paragraph 39 of appellants’ complaint alleged:
      39. The negligence of the Defendant, Mr. and Mrs. William T. Gilligan, husband and wife through their agent, servant and/or employee consisted in the following:
      (a) Negligently and carelessly serving alcoholic and intoxicating beverages to Defendant, Raysinger, who was visibly intoxicated;
      (b) Failing to recognize the danger of allowing the Defendant, Raysinger to drive a motor vehicle on the higher [sic] after being served alcoholic and intoxicating beverages;
      (c) Negligence at law.

      . The decision in Coulter v. Superior Court of San Mateo County represented an attempt by a court to create a cause of action against a social host for the conduct of a guest. It was expressly overruled by the California legislature in less than five months.

      . It is unnecessary to discuss at length appellants’ averments that appellees were negligent in allowing Raysinger to drive his own vehicle while intoxicated. The law does not recognize a cause of action against one who fails to prevent another from committing a crime. Indeed, a social host is not privileged to use force against or impose confinement upon another for the purpose of preventing the violation of a statute or the commission of a misdemeanor, Restatement of Torts 2d § 141, and may become liable to the other if force is applied or confinement imposed. Restatement of* Torts 2d § 144. We perceive no valid social or legal reason for creating a general duty upon a social host which requires that he or she guarantee the lawfulness of a guest’s future conduct.


author: JOHNSON, Judge:

text:
    448 A.2d 623
    COMMONWEALTH of Pennsylvania v. Leonard CHRISTIAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 2, 1982.
    Filed July 23, 1982.
    Petition for Allowance of Appeal Denied Nov. 19, 1982.
    Larry D. Feldman, Philadelphia, for appellant.

      Marianne E. Cox, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

On February 26,1975, Appellant entered pleas of guilty to charges of Criminal Trespass and Theft by Unlawful Taking. On the charge of Criminal Trespass, Appellant was sentenced to a seven-year period of probation, conditioned upon his completion of an in-patient drug rehabilitation program. Appellant was also sentenced to a two-year concurrent probation on the charge of Theft by Unlawful Taking. Appellant did not file an appeal from either judgment of sentence.

On February 22, 1977, Appellant appeared for a hearing on his violation of probation. Appellant was sentenced and subsequently paroled. On May 20,1980, Appellant appeared for a hearing on his second violation of probation. Appellant’s probation was revoked, and he was sentenced to imprisonment for a 3V2 to 7-year period. This is an appeal from the judgment of sentence.

The only issue raised by Appellant is whether or not his guilty plea of February 26, 1975, was defective because he allegedly received ineffective assistance of counsel.

Appellant cannot attack the validity of his prior guilty plea in this appeal. See Commonwealth v. Nance, 290 Pa.Super.Ct. 312, 434 A.2d 769 (1981).

In Nance, the defendant entered a guilty plea and received a sentence of probation. Subsequently, the defendant was convicted of new charges, and his probation was revoked. In his appeal from the judgment of sentence, the defendant attempted to attack the guilty plea which, he argued, he was coerced by his counsel to enter. Like Appellant, the defendant in Nance had filed neither a direct appeal from the order of probation nor a PCHA petition. Our court held that the issue of the validity of the guilty plea must first be raised before the trial court in a PCHA hearing. The case was, therefore, remanded for an evidentiary hearing on the validity of the guilty plea.

In Nance our court held that the defendant had not waived the issue of the guilty plea because his failure to appeal from the order of probation did not constitute a knowing waiver. Id., 290 Pa.Superior at 317, 434 A.2d at 771.

In the instant appeal, there is nothing to suggest—nor does Appellant allege—either that he was coerced into entering the plea or that counsel failed to inform him of his right to appeal from the order of probation.

In Commonwealth v. Gilmore, 465 Pa. 202, 348 A.2d 425 (1975), the supreme court stated:

The knowing failure to appeal from the order of probation constitutes a waiver of the right to challenge the validity of the conviction upon which the probation order is based.

Id., 465 Pa. at 205, 348 A.2d at 427. Under Gilmore, Appellant has waived his right to attack the guilty plea of February 26, 1975.

For the foregoing reasons, the instant appeal is quashed, and the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3503.

      . Id. § 3921.

      . Appellant also claims that he has not received the notes of testimony from the guilty plea colloquy. While it is uncontested that Appellant has a right to receive the notes of testimony, it is not clear that the testimony has not been transcribed or that the transcript has been lost. Until the lower court has ruled that the transcript is unavailable, the issue is not ripe for our review.


text:
    448 A.2d 624
    Jacqueline H. STOKES and Robert Stokes, husband and wife v. LOYAL ORDER OF MOOSE LODGE # 696 a corporation, Appellant, v. GENERAL ACCIDENT FIRE AND LIFE ASSURANCE CORPORATION, LTD., a corporation and The James W. Doncaster Agency, Inc., a corporation.
    Superior Court of Pennsylvania.
    Argued March 16, 1982.
    Filed July 23, 1982.
    Petition for Allowance of Appeal Granted Dec. 15, 1982.
    John E. Qúinn, Pittsburgh, for appellant.
    Timothy D. Appelbe, Pittsburgh, for Gen. Acc., appellee.

      Barris Siegel, Rochester, for Doncaster Agency, appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

The original defendant in a personal injury action sought to join its insurance agent for failing to obtain or renew liability coverage and its insurance carrier for breach of its contract of insurance with the defendant. Finding that such attempted joinder contravened the language and purpose of Pennsylvania Rule of Civil Procedure 2252(a), the trial court sustained preliminary objections of the proposed additional defendants and dismissed the Complaint to Join. Since we find this case to be controlled by our earlier decision in Eads v. Smith, 276 Pa.Super.Ct. 129, 419 A.2d 129 (1980), we reverse.

Suit had been instituted against the defendant to recover money damages due as a result of personal injuries sustained by the wife-plaintiff while a patron of the defendant’s social club. Defendant thereafter filed a complaint naming General Accident Fire and Life Assurance Corporation, Ltd. (General Accident) and the James W. Doncaster Agency, Inc., (Doncaster) as additional defendants. Defendant alleged in the complaint that, in March, 1979, it had purchased a policy of liability insurance issued by General Accident through its agent, Doncaster. The Defendant further alleged that for two years of coverage, the policies had been in force even though premium invoices were received by the insured well after the effective date of coverage. As of the date of the plaintiff’s loss, fifteen days into the third policy year, the defendant had not received any indication that the policy was not going to be renewed effective March 1,1980. Defendant further alleged that it first learned that General Accident and Doncaster would not provide coverage or otherwise defend the defendant in the claim of the plaintiffs upon its receipt of a letter from Doncaster dated April 8, 1980.

In the first count of the complaint, defendant sought recovery from General Accident on the basis that the insurance carrier is liable over to it on the cause of action pleaded in plaintiff’s complaint. In the second count of its complaint, defendant sought consequential damages from General Accident, including attorney’s fees and other expenses related to the defense of the suit. In the third count, defendant sought recovery from Doncaster on the basis that the agency’s failure to procure, renew and/or maintain liability insurance for the defendant breached its contract with defendant and thus, Doncaster is both liable over to it on the plaintiff’s cause and also liable for consequential damages. In count four, the defendant sought relief, alternatively, in trespass, against Doncaster for the same losses alleged to be sustainable in count three.

As in Eads v. Smith, supra, the additional defendants filed preliminary objections in the nature of a motion to strike, alleging that the attempt to join the additional defendant constituted an improper joinder of causes of action pursuant to Pa.R.C.P. 2252(a). The lower court sustained the objections and dismissed defendant’s complaint. This appeal followed.

Appellee General Accident concedes on this appeal that Eads is indistinguishable from the case now before the court. At oral argument, counsel for appellee urged this court to overrule our decision in Eads. This we are not prepared to do.

The lower court sought to avoid the clear holding in Eads by noting that our earlier opinion in Szemanski v. Vulcan Materials Co., 272 Pa.Super.Ct. 240, 415 A.2d 92 (1979), involved an express indemnification matter and not one of a general liability insurance policy. It further noted that the majority in Eads recognized that a severance pursuant to Pa.R.C.P. 213(b) might be utilized to promote convenience or avoid prejudice.

This does not escape the fact that joinder of an insurance agent as an additional defendant was expressly held to be permitted by Rule 2252(a) in our holding in Eads v. Smith, 276 Pa.Super.Ct. at 133, 419 A.2d at 131. No useful purpose would be served by our repeating here what was analyzed and resolved in that case. Accordingly, we find no difficulty in reversing the order of the lower court, and remanding for further proceedings consistent with this opinion.

      . Rule 2252. Right to Join Additional Defendants
      (a) In any action the defendant or any additional defendant may, as the joining party, join as an additional defendant any person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.


author: MONTEMURO, Judge: WICKERSHAM, Judge,

text:
    448 A.2d 626
    Judith E. HERTZ a/k/a Judy E. Hertz, Appellant, v. Jack F. HERTZ.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1981.
    Filed July 23, 1982.

      Larry W. Wolf, Hanover, for appellant. '
    David Kostka James, Gettysburg, for appellee.
    Before WICKERSHAM, WIEAND and MONTEMURO, JJ.
   MONTEMURO, Judge:

Appellant, Judith E. Hertz, brought an action for a declaratory judgment under § 206 of the Divorce Code to adjudicate the validity of her alleged common law marriage with the appellee, Jack F. Hertz. On November 10, 1980 and on December 10, 1980, the lower court heard testimony on the matter and filed an opinion and order on March 2, 1981 declaring that the common law marriage was invalid. No exceptions were filed. On March 27,1981 the appellant filed this appeal from the lower court’s order.

Appellant contends on this appeal that the clear weight of the evidence was contrary to the declaratory order and that the lower court abused its discretion in finding that the parties did not form a common law marriage. We cannot, however, review appellant’s contentions where thére has been noncompliance with the appropriate procedural rules applicable in actions for declaratory judgment. Accordingly, the appeal must be quashed.

Pursuant to Pa.R.C.P. 1601(a), the practice and procedure in actions for declaratory judgment must follow “as nearly as may be, the rules governing the Action in Equity,” This requires the lower court to enter an adjudication in accordance with Pa.R.C.P. 1517, the filing of exceptions thereto and subsequent disposition by a court en banc under Pa.R. C.P. 1518, and the entering of a final decree, whether or not exceptions have been filed, as provided by Pa.R.C.P. 1519.

Appellant’s statement of jurisdiction asserts that the appeal is properly before this court pursuant to 42 Pa.C.S.A. § 7532. This Section, in pertinent part, provides as follows:

The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force of a final judgment or decree. (Emphasis added)

Appellant interprets this section to mean that the lower court’s order is a final judgment from which an appeal can be taken, without complying with the post-trial procedural rules set forth in Pa.R.C.P. 1517—1519. We do not agree with this construction.

Section 7532 merely determines that the ultimate “force and effect” of a declaratory judgment shall be no different than any other final judgment or decree. This, however, does not mean that procedural rules have been abrogated in favor of making a declaratory judgment immediately appealable. Appellant’s construction would not only be inconsistent with Pa.R.C.P. 1601(a) which requires “as nearly as may be” the following of the rules in equity in actions for declaratory judgment, but would generally contradict the power vested in the Supreme Court of Pennsylvania “to prescribe the general rules governing the practice, procedure and the conduct of all courts . . . [and] judgments or decrees of any court.” Pa.Const. art. 5, § 10. Although the Supreme Court has no authority to affect the power of the legislature “to determine the jurisdiction of any court,” idem, the substance of what constitutes a final judgment, order or decree is a matter of procedural distinction.

In the instant case, while we may construe the lower court’s opinion and order as an adjudication and decree nisi, “. . . the record discloses neither the filing and disposition of exceptions thereto and the subsequent entry of a final decree, nor the entry of the order as a final decree by praecipe after the passage of the time allowed for the filing of exceptions (See Pa.R.C.P. 1518 and 1519).” Taylor v. Butterbaugh, 421 Pa. 10, 11, 218 A.2d 731, 732 (1966). It has been held that “where an action ... is tried before the court without a jury, an appeal does not lie until a court en banc has passed on the exceptions to the trial court’s adjudication or, if none are filed, until the prothonotary enters the adjudication as final.” Slotsky v. Gellar, 455 Pa. 148, 151, 314 A.2d 495, 496 (1974). Since these requirements were not adhered to in this case, the appeal is premature and must be quashed.

Appeal quashed.

WICKERSHAM, J., files a dissenting opinion.

WICKERSHAM, Judge,

dissenting:

On March 2, 1981 President Judge Oscar F. Spicer filed a memorandum opinion and an order of court deciding that the alleged marriage subsisting between the parties, Judith E. Hertz and Jack F. Hertz after 1973 “is hereby declared to be invalid.” From this apparently final order, Judith E. Hertz took this appeal which the majority now quashes as premature. By so doing, the majority places form over substance.

I would remand the record to the lower court with directions that the procedures set forth in Rule 1517 of the Pennsylvania Rules of Civil Procedure be specifically followed.^ Rule 1517 provides as follows:

(a) The court shall make an adjudication and may do so before the testimony has been transcribed. The adjudication shall consist of (1) a statement of the issues; (2) a closely condensed chronological statement, in narrative form or in separate findings, of all the facts which are necessary to be known in order to determine the issues; (3) a discussion of the questions of law involved and the court’s conclusions of law and (4) a decree nisi.
(b) The adjudication may be made orally in open court at the end of the trial, and in that event shall be forthwith transcribed and filed in the office of the prothonotary, or it may be made thereafter in writing and filed forthwith. In either event the prothonotary shall notify all parties or their attorneys of the date of filing.

Had the lower court clearly made “an adjudication” consisting of the various parts set forth in Rule 1517 including a decree nisi, then counsel for appellant Judith E. Hertz would have been on notice to and required to file exceptions under Rule 1518, Pa.R.C.P. which provides as follows:

Within ten (10) days after notice of the filing of the adjudication exceptions may be filed by any party to rulings on objections to evidence, to statements or finding of fact, to conclusions of law, to the decree nisi or in cases where requests for findings of fact or conclusions of law have been submitted by leave of court to a failure or refusal to find any matter of fact or substantially as requested. Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived, unless, prior to final decree, leave is granted to file exceptions raising these matters.

Thereafter a final decree under Rule 1519 would have been entered in due course. This decree would have been entered on the judgment index of the law side of the court pursuant to Rule 1521 of the Pennsylvania Rules of Civil Procedure. After entry of judgment the present appeal could have been properly taken.

Since I find that the lower court did not specifically and clearly follow the mandate of Rule 1517, it is in my judgment too harsh to quash the present appeal and leave the appellant in limbo, or worse, out of court entirely.

Accordingly, I would remand with directions consistent with this dissenting opinion.

      . 23 Pa.C.S.A. § 206.


author: VAN der VOORT, Judge:

text:
    448 A.2d 628
    COMMONWEALTH of Pennsylvania v. Gerald C. BENTLEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 30, 1981.
    Filed July 23, 1982.

      Janette Baisley Worsted, Assistant Public Defender, Washington, for appellant.
    Michael S. Oreski, Assistant District Attorney, Washington, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

In a bench trial appellant was found guilty of theft by deception, 18 Pa.C.S.A. § 3922. Post-trial motions, were denied and appellant was sentenced to two years probation. Although subdivided into three headings, only two contentions are advanced:

(1) the verdict was against the weight of the evidence and therefore contrary to law; and

(2) the trial judge erred in not granting a motion for severance.

Due to our resolution of the first issue we need not address the second contention.

The first contention resolves itself into a question of whether there was sufficient evidence to establish that appellant obtained partial payments on a contract by means of a deception (or deceptions) which existed at the time the payments were procured, as distinguished from a subsequent failure on his part to perform the contract he had undertaken. See Commonwealth v. Gallo, 473 Pa. 186, 373 A.2d 1109 (1977); Commonwealth v. Dunmeyer, 5 Pa.D & C 3d 30 (1977).

On May 22, 1979, Mr. and Mrs. Jesse H. Landsperger, described as “an elderly couple” contracted with the appellant, who represented himself as “Bentley Builders”. Appellant was to repair a porch for $841; he was paid a “down-payment” of Vi, or $280.33. Mrs. Landsperger had been referred to appellant by her sister. Twenty days later, on June 11, 1979, the parties made a second contract, superseding the first, calling for the original repairs plus rebuilding a garage for a total cost of $4,965, at which time an additional $1,374 was paid to appellant, representing one-third (Vi) of the total price, after giving allowance for the first payment of $280.33. On June 15, 1979, according to Mrs. Landsperger, before any work had been done, and at appellant’s request, she paid him an additional $1,655 (a second Vi of $4,965). She testified that appellant said he needed money because of personal family problems, and appellant said that if the second $1,655 was then paid, he would build a patio at no additional cost.

Mrs. Landsperger further testified that between June 15, 1979 and June 26,1979, appellant, using sometimes two men and sometimes four, tore down the old porch and garage and installed a footer (N.T., p. 35). On June 23, 1979, appellant requested and received $800, promising to build a retaining wall (R. 14). On June 29th, he received an additional $200. The payments totalled $4,309, approximately 87% of the contract price. No work was done by appellant after June 27, 1979. The Landspergers made repeated unsuccessful attempts to contact him, and then filed criminal charges in July, 1979, after which appellant made several promises to resume work, but never did. Appellant testified, and the Landspergers agreed, at least in part, that unexpected problems arose in the course of the work, including the type of concrete block to be used (N.T., pp. 17, 37), the width of the porch and other expenses (N.T., pp. 56, 57).

Theft by deception, 18 Pa.S.C. § 3922, occurs when:

(a) A person . . . intentionally obtains . . . property of another by deception. A person deceives if he intentionally:

(1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
(b) Exception—The term “deceive” does not, however, include falsity as to matters having no pecuniary significance, or puffing by statements unlikely to deceive ordinary persons in the group addressed.

Judge Rodger’s Opinion for the Court en Banc refusing post-trial motions (Sweet and Gladden, JJ. concurring) reviews the testimony and concludes that the trial judge “was justified in finding that the appellant, under the circumstances, by deception received moneys from this elderly woman and that his state of mind when making these promises created false impressions, both as to value and his intentions.” (Opinion, page 8).

The leading Pennsylvania case in this area is Commonwealth v. Gallo, supra. There the defendant was a sole owner of a publication company. Representing himself as an “account executive” for another publishing concern of national repute, the defendant offered to put together an advertising brochure for a general contractor. In return, the general contractor was to solicit from his subcontractors and suppliers ads to be placed within the brochure. The defendant would charge for these secondary ads but not for the promotion of the general contractor. The defendant had showed the contractor several examples of brochure he had previously put together; the contractor was impressed with them. Defendant collected monies for advertisements placed by sub-contractors and suppliers. When no brochure was forthcoming and after repeated attempts to contact the defendant, criminal charges were filed. Thereafter the contractor would not accept the proofs of the brochure.

The defendant blamed the delay on a dispute between the general contractor and one of his suppliers. The dispute was confirmed by testimony. The Supreme Court found that the misrepresentation that he was an “account executive” was a “matter having no pecuniary significance” as the contractor entered into the deal because of the brochures shown to him. The fact that the defendant had given his correct telephone number and address showed a lack of an intention to deceive. The Supreme Court concluded that, alone, the defendant’s failure to perform could not support an inference of an intent existing at the time the funds were received to not perform.

A lower court case which is very analogous to the current case is Commonwealth v. Dunmeyer, 5 Pa.D & C 3d 30 (1977). There a painting contractor approached a farmer about painting his barn. The painter gave his correct name, address and telephone number. After several conversations and after the farmer had made inquiries of others concerning the contractor, the farmer entered into a contract. A down payment was made. The defendant returned the next day to perform some preparatory work. He did not return again until two months later, when he requested and received $30 for paint. The next day he commenced painting. Leaving his ladders and other materials at the site, he did not return. The farmer inquired and found that the defendant had moved eight miles away. He filed a criminal complaint.

The defendant claimed he had lost his driver’s license and was unable to obtain help, and therefore he could not complete the job even though he wanted to. The lower court found that the defendant had not made any false factual assertions. The court found insufficient evidence of the required intent at the time the contract was entered. It noted that repetition of the promise to perform without the actual performance may bear on credibility but not on intent at time of contracting. Change of address after the contract was consummated could not relate back to the time of contracting. The use of the down payment money for other purposes, unless limited by the contract, was permissible.

A brief discussion of two cases in which the evidence was found sufficient for a conviction for theft by deception, will help explain the disposition we make here.

In Commonwealth v. Posavek, 278 Pa.Superior Ct. 265, 420 A.2d 532 (1980), the victim responded to an ad in the newspaper. As a result of such, he entered into an agreement with defendant. For $7,500, the company which the defendant was associated with would establish the victim with accounts and displays of various types of alarms. The company was to provide the victim with training and establish a local distribution center. While the accounts were provided and displays supplied (though with damaged or inferior merchandise), no training was provided and no local center set up, resulting in the victim being handicapped in maintaining the accounts. The defendant argued that the shortfalls were of no “pecuniary significance” and that he was no longer associated with the company.

This court found that the victim did not receive what he bargained for. The defendant had been cooperative prior to the agreement, but difficult to contact after the agreement was made. While he may not have secluded himself, unlike Gallo, where it was a one man operation, he attempted to use a business organization to evade responsibility. The defendant even failed to sign the contract. The merchandise was inferior and/or damaged. Taking all of the above into consideration, the court found that the defendant had not intended to perform his promises.

A case involving a construction is Commonwealth v. Joy, 253 Pa.Superior Ct. 177, 384 A.2d 1288 (1978). There three men approached an elderly lady concerning repairing her house, and pointed out that her porch was in need of repair. She agreed to have the porch repaired for $1,800. She gave them $878, $800 for paint and $78 for tax. Twelve gallons of paint were purchased. Subsequently, four men commenced ripping up the porch; the victim was informed that materials would cost $1,000; she gave them a check for that, amount. Defendant subsequently advised the elderly lady that she had a gas leak. After further convincing, the victim was told that her chimney would need relining; she agreed to pay $1,200 for such work. The defendant drove the victim to the bank to get the $1,200. Work was to commence the next day. The victim called a furnace man, who found nothing out of order. The defendant and his associates never returned.

This court affirmed the conviction, finding that the surrounding subjective circumstances were sufficient to show the defendant intentionally deceived the victim.

If the current appellant’s conviction for theft by deception is to be affirmed, we must find that appellant never intended to perform his part of the contract(s). Our review of the record fails to show any evidence as to appellant’s intent, except his failure to perform. This alone is insufficient. The Landspergers were referred to appellant, unlike in Jay and Posavek, in which the defendants initiated the business relationship. As in Gallo and Dunmeyer, appellant supplied his correct name, address and phone number. Appellant’s use of the proceeds for unrelated purposes, as in Dunmeyer, was not barred by the contract; in fact, the payment of the second third of the contract price was made knowing that appellant intended to use the money for nonbusiness purposes. Finally, appellant had expended substantial resources in attempting to fulfill his side of the bargain. See Gallo, supra.

We find that the crime of theft by deception was not proved beyond a reasonable doubt.

Judgment of sentence reversed and appellant discharged.

      . While appellant captions his contention in terms of “weight of the evidence” and as being “contrary to Law”, in actuality his challenge is to the sufficiency of the evidence. We cannot emphasize enough the distinction between the “weight of the evidence” and “sufficiency of the evidence”. If a court finds the evidence was insufficient, a retrial is barred. However, if a court reverses a conviction based on the weight of the evidence, retrial is permitted. See, Tibbs v. Florida, -U.S.-, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

      . Appellant testified that this payment was made after he had half completed the job (N.T. 53-55).

      . While appellant did business under the name of “Bentley Builders,” he did not attempt to evade responsibility by use of a business entity. Compare Posavek, supra.


author: PER CURIAM:

text:
    448 A.2d 632
    In the Interest of Darryl LOWE. Appeal of the COMMONWEALTH of Pennsylvania. In the Interest of Brian ROSS. Appeal of the COMMONWEALTH of Pennsylvania.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1980.
    Filed July 23, 1982.
    Nancy D. Wasser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Karl Baker, Assistant Public Defender, Philadelphia, for appellees.
    Before PRICE, WATKINS and MONTGOMERY, JJ.
   PER CURIAM:

These are consolidated appeals taken by the Commonwealth from separate orders entered by the court of common pleas on July 24, 1979 and March 4, 1980. Those orders directed the expungement of all juvenile records pertaining to appellees herein, Darryl Lowe and Brian Ross. The Commonwealth contends that the court below erred in ordering the remedy of expungement because appellees had been adjudicated delinquent. We agree and, accordingly, reverse the orders.

The relevant facts are undisputed. Appellee Lowe was arrested on February 13,1976, and charged with aggravated assault, simple assault, possessing an instrument of crime, possessing an offensive weapon, and conspiracy. On April 8, 1976, he was adjudicated delinquent on the charge of possessing an instrument of crime and placed on probation. Sixteen days later, Lowe was again arrested in connection with another incident and charged with possessing an instrument of crime, possessing an offensive weapon, and violating the Uniform Firearms Act. He was adjudicated delinquent on all charges on May 6, 1976, and placed on intensive probation. Lowe was next arrested on February 26,1977, in connection with an armed robbery. He was charged with robbery, burglary, receiving stolen property, violating the Uniform Firearms Act, possessing an instrument of crime, possessing an offensive weapon, terroristic threats, and conspiracy. On March 28, 1977, Lowe was adjudicated delinquent on these charges and was committed to the facility at Cornwell Heights.

Appellee Ross was arrested on February 17, 1977, and charged with possession of a controlled substance with intent to deliver. The charge was disposed of by a consent decree in which Ross agreed to regular counseling and school attendance. On July 31, 1C78, Ross was arrested and charged with robbery. He was adjudicated delinquent on August 16, 1978, and was placed on intensive probation, from which he was discharged in March, 1979.

Appellee Lowe filed a petition to expunge his juvenile record on June 8, 1979, which petition was granted by the court below on July 24, 1979. The court below found that, despite having successfully completed the program of rehabilitation in which he had been placed and having graduated from high school, Lowe could not enlist in the United States Marine Corps because of his juvenile record. The court thus concluded that expungement was warranted. (Record at 5a). Appellee Ross filed a petition to expunge his juvenile record on December 3, 1979. Following a hearing on March 4, 1980, the court of common pleas granted the petition. In its opinion in support of its order granting the petition, the court below, noting that Ross had been both admitted to and planning to attend college, stated: “This Court should not in any way act as a deterrent from such higher education and, therefore, the possible detremental [sic] effect of a juvenile record must be eliminated where the facts warrant the expungement. The facts regarding this Defendant warrant such an expungement.” (Record at 19a).

Our disposition of the instant appeals is controlled by our recent decision in Edward M. v. O’Neill, 291 Pa. Superior Ct. 531, 436 A.2d 628 (1981), in which we held that the remedy of expungement is not available to juveniles who have been adjudicated delinquent. Cf. Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981) (expungement appropriate where juvenile entered into consent decree as an alternative to adjudication of delinquency). We find O’Neill to be wholly dispositive of the issue presented in these appeals and, therefore, reverse the orders of the court of common pleas granting appellees’ petitions to expunge their juvenile records.

The orders are reversed.

      . The arrest on February 13, 1976, was not Lowe’s first encounter with the juvenile justice system. He was arrested on April 13, 1975, and charged with auto theft, receiving stolen property, and conspiracy. Those charges were informally adjusted two days later. Lowe was also arrested on June 1, 1975, and charged with possession of a controlled substance, receiving stolen property, and robbery. Those charges were also adjusted informally on June 19, 1975. (Record at 2a).

      . Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended, 18 Pa.C.S.A. § 6101 et seq.

      . Hie Commonwealth filed timely notices of appeal from both orders and, pursuant to Pa.R.A.P. 513, moved to consolidate the appeals. The motion to consolidate was granted by this court on July 24, 1980.

      . This does not mean that appellees are forever precluded from having their juvenile records expunged. It is entirely possible that appellees may, now or in the future, satisfy the statutory requirements for expungement of juvenile records set out in section 9123(a) of the Criminal. History Record Information Act of July 16, 1979, P.L. 116, No. 47, § 2, as amended, 18 Pa.C.S.A. § 9123(a). Our decision today in no way prejudices either appellees’ right to relief under that section. See Edward M. v. O’Neill, 291 Pa. Superior Ct. 531, 544, 436 A.2d 628, 634 (1981).


text:
    448 A.2d 634
    COMMONWEALTH of Pennsylvania v. Russell J. BONARRIGO, II, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1982.
    Filed July 23, 1982.

      David R. Gold, Greensburg, for appellant.
    William John Martin, Assistant District Attorney, Indiana, for Commonwealth, appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   PER CURIAM:

Appellant was found guilty of speeding at a trial de novo following his conviction before a magistrate. He was sentenced to pay costs and a fine of ninety-five dollars. This appeal followed.

After a review of the record, we are led to the conclusion that this sentence must be vacated and the case remanded to the lower court.

The trial judge found Appellant guilty at the conclusion of the de novo trial and immediately imposed sentence. However, Appellant was not informed of his right to file written posttrial motions, as per Pa.R.Crim.P. 1123. See Commonwealth v. Grey, 298 Pa.Super. 525, 445 A.2d 112 (1982); Commonwealth v. Nugent, 291 Pa.Super. 421, 435 A.2d 1298 (1981). We have recently held that Rule 1123 applies to summary violations. Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).

As stated by the court in Commonwealth v. Grey, 298 Pa.Super. at 526-27, 445 A.2d at 113:

We regret we are compelled to this action since we share the view expressed by President Judge William F. Cercone in Commonwealth v. Koch, 288 Pa.Super. 290, 296, 431 A.2d 1052, 1055 (1981), that “the filing of post-verdict motions can further burden the already overworked judges of the Courts of Common Pleas who handle such ‘statutory appeals’ in terms of judicial time and energy.”

The Order and judgment of sentence dated September 5, 1980 are vacated and the case remanded for proceedings consistent with this opinion.

      . 75 Pa.C.S.A. § 3362(a)(2).


text:
    448 A.2d 634
    ATLANTIC RICHFIELD COMPANY, Appellant, v. J. J. WHITE, INC., Charles Davis, Chromalox Comfort Conditioning Division of Emerson Electric Co., and Riggs Distler & Co., Inc. and Continental-Emsco Company, a Division of the Youngstown Sheet & Tube Company and Fisher Tank Company and Brands Insulations.
    Superior Court of Pennsylvania.
    Argued March 10, 1982.
    Filed July 23, 1982.

      Elizabeth M. Iannelli, Philadelphia, for appellant.
    Manfred Farber, Philadelphia, for White, appellee.
    Edward T. Connelly, Philadelphia, for Continental-Emsco, appellee.
    Before WICKERSHAM, CIRILLO and LIPEZ, JJ.
   PER CURIAM:

This is an appeal from an order dated December 12, 1980 which dismissed preliminary objections and allowed an immediate appeal because the lower court believed that the order involved a substantial ground for difference of opinion and that such immediate appeal would materially advance the ultimate termination of the matter. We quash the instant appeal because a subsequent order of the lower court vacated the order appealed from.

Procedurally, appellee Charles Davis filed a complaint in trespass on July 3, 1980 against appellee J. J. White, Inc. (hereinafter White) alleging that he had been seriously injured while working for appellant Atlantic Richfield Company (hereinafter ARCO) by an improperly designed and maintained loading arm manufactured by White. On July 31, 1980, White joined ARCO as a co-defendant. ARCO then filed preliminary objections in the form of a demurrer alleging that Davis was an ARCO employee at the time of his injury and that the Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq., barred ARCO’s joinder as a party. ARCO’s preliminary objections were overruled by Judge James T. McDermott in an order dated November 13, 1980, however, Judge McDermott entered an amended order, dated December 12, 1980 which, while still overruling ARCO’s preliminary objections, certified the matter for interlocutory appeal. On December 22, 1980, White filed a petition for a rule to show cause why the amended order of December 12, 1980 permitting appeal should not be vacated. Oral argument was heard on the matter in the lower court and on February 19, 1981, Judge McDermott vacated his amended order permitting interlocutory appeal, thus leaving the original order of November 13, 1980 in effect. On July 21, 1981 the. superior court granted ARCO’s petition to appeal and directed that, in addition to the substantive issues raised by ARCO, the issue of the vacated order of February 19, 1981 should also be briefed by the parties.

Instantly, after ARCO’s preliminary objections were overruled in Judge McDermott’s order of November 13, 1980, ARCO’s counsel communicated with employees of the lower court in an effort to have Judge McDermott certify that his order involved a controlling question of law and that an interlocutory appeal should be allowed. Reproduced Record at 99a. In the order dated December 12, 1980, Judge McDermott did certify the matter for interlocutory appeal. After receiving the amended order permitting interlocutory appeal, appellee Emsco filed a brief opposing the amended order with the lower court. Appellee White also sought to have the amended order permitting interlocutory appeal vacated. On February 19, 1981, after oral argument and supplemental briefing, Judge McDermott vacated the amended order of December 12, 1980, thereby rescinding the previously granted permission for interlocutory appeal.

Appellant ARCO frames its issue concerning the appealability of the instant matter as follows:

Whether the Order of the Judge of the Court of Common Pleas of Philadelphia County dated February 19,1981 is void because it was issued seventy-seven (77) days after the Petition for Permission to Appeal had been perfected to the Superior Court?

Brief for Appellant at 2.

42 Pa.C.S. § 702(c), pertaining to interlocutory orders, states that:

Except as otherwise prescribed by general rules, a petition for permission to appeal under this section shall not stay the proceedings before the lower court or other government unit, unless the lower court or other government unit or the appellate court or a judge thereof shall so order.

While Pa.R.A.P. 1701 restricts a lower court from proceeding further in a matter once an appeal has been taken or a petition for allowance of appeal is filed, we note that the instant interlocutory appeal has been brought before our court by ARCO’s petition for permission to appeal. Chapter 13 of the Pennsylvania Rules of Appellate Procedure, sets forth the rules pertaining to interlocutory appeals by permission. Pa.R.A.P. 1313 provides that “[a] petition for permission to appeal shall not stay the proceedings before the lower court . . . unless the lower court ... or the appellate court or a judge thereof shall so order.” Here, no stay order was issued by any court. Judge McDermott was, therefore, free to vacate the amended order permitting the interlocutory appeal. A court has the inherent power to reconsider its own rulings. Commonwealth v. Demby, 496 Pa. 509, 437 A.2d 1156 (1981).

White and Emsco were not heard by the lower court in opposition to ARCO’s request for an amended order certifying the matter for interlocutory appeal until after the amended order had been filed. After oral argument and briefing, however, Judge McDermott vacated his amended order and, effectively, refused to certify the matter for interlocutory appeal. Justice requires that we support Judge McDermott’s vacation of the amended order as that action was based on the arguments and briefs of all involved parties rather than on an ex parte request.

ARCO argues that the lower court was without jurisdiction to vacate its order of December 12, 1980 with its subsequent order of February 19, 1981 as more than thirty days had passed since ARCO’s petition for permission to appeal had been perfected. Brief for Appellant at 20. In support of this position, ARCO cites 42 Pa.C.S. § 5505 which provides:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or allowed.

In Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), the supreme court declared that the thirty day time limit on the modification of orders, contained in the Act of June 1, 1959, P.L. 342, No. 70, § 1, 12 P.S. § 1032, substantially re-enacted as 42 Pa.C.S. § 5505, was inapplicable to interlocutory orders. The interlocutory order appealed from instantly could, therefore, properly be vacated by the lower court beyond thirty days after its entry. ARCO has, accordingly, appealed from a non-existent order.

Appeal quashed.

      . The comment to Pa.R.A.P. 1311 states that where a lower court refuses to amend its order to include the prescribed statement certifying the matter for interlocutory appeal, a petition for review of the unappealable order of denial, pursuant to Chapter 15 of the Pennsylvania Rules of Appellate Procedure, is the proper mode of determining whether the case is so egregious as to justify prerogative appellate correction of the exercise of discretion by the lower court.


text:
    448 A.2d 637
    M. STAHL, Appellee, v. Harold H. GOLDMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1982.
    Filed July 23, 1982.

      Mark L. Unatin, Pittsburgh, for appellant.
    Harvey Robins, Pittsburgh, for appellee.
    Before HESTER, BECK and VAN der VOORT, JJ.
   PER CURIAM:

Appellee filed suit in assumpsit against appellant seeking to recover on an alleged oral guaranty. The court below found appellant liable in the amount of $5,000.00. Thereafter appellant filed a notice of appeal. The trial court directed appellant to file a statement of matters complained of on appeal. After such statement was filed the court issued its opinion.

Pennsylvania Rules of Civil Procedure, Rule 1038(d) requires that exceptions to a court’s decision be filed within ten days of the decision. Matters not covered by exceptions are deemed waived. Here appellant has failed to file exceptions, therefore we must quash the appeal. Van Ameringen v. Arcadia Company, Inc., 299 Pa.Superior Ct. 444, 445 A.2d 837 (1982); Matczak v. Matczak, 275 Pa.Superior Ct. 164, 418 A.2d 663 (1980).

Appeal quashed with prejudice.


text:
    448 A.2d 637
    COMMONWEALTH of Pennsylvania v. Rock Anthony FERRONE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1981.
    Filed July 23, 1982.
    Eric C. Rome, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

      Before WIEAND, JOHNSON and MONTEMURO, JJ.
   PER CURIAM:

Rock Anthony Ferrone, having appealed convictions of various motor vehicle violations to the Court of Common Pleas of Allegheny County, was found guilty of two counts of operating a motor vehicle after his license had expired. He was sentenced to pay a total fine of $225.00 plus costs. He appealed directly to this Court.

Because there were no post-verdict motions filed in the court below, the present appeal cannot be considered. The record discloses, however, that appellant was not advised by the trial court of the necessity to file post-verdict motions under Pa.R.Crim.P. 1123(c). This state of the record, as President Judge Cercone observed in Commonwealth v. Picker, 293 Pa.Super. 381, 439 A.2d 162 (1981), “is reflective of the confusion which existed in the legal community before our en banc decision in Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981).” Where direct appeals have been taken prior to Koch without post-verdict motions having been filed in the trial court, we have uniformly vacated the judgment of sentence and remanded to give appellant an opportunity to file post-verdict motions nunc pro tunc. See: Commonwealth v. Kauffman, 298 Pa.Super. 375, 444 A.2d 1222; Commonwealth v. Grey, 298 Pa.Super. 525, 445 A.2d 112; Commonwealth v. Dalbon, 296 Pa.Super. 122, 442 A.2d 326 (1982); Commonwealth v. Sims, 296 Pa.Super. 122, 442 A.2d 783 (1982); Commonwealth v. Spitzer, 292 Pa.Super. 466, 437 A.2d 768 (1981); Commonwealth v. Picker, supra.

The judgment of sentence is vacated, and the case is remanded for the filing of post-verdict motions nunc pro tunc within ten (10) days of the filing of this order. Jurisdiction is not retained.


text:
    448 A.2d 638
    SUBURBAN EAST TIRES, INC., Appellant v. DUQUESNE LIGHT COMPANY.
    Superior Court of Pennsylvania.
    Argued May 20, 1982.
    Filed July 23, 1982.

      John Richard Banke, Pittsburgh, for appellant.
    William K. Herrington, Pittsburgh, for appellee.
    Before HESTER, McEWEN and JOHNSON, JJ.
   PER CURIAM:

This is an appeal from the Order of the lower court which, pursuant to Appellee’s Preliminary Objections, dismissed Counts I and II of Appellant’s three Count complaint. Appellant filed a complaint against Appellee on August 28, 1981 alleging in Count I, breach of contract; in Count II, fraud, deceit and misrepresentation; and in Count III, slander.

This court will raise the question of the appealability of the lower court’s order sua sponte, even if not raised by either party, as neither silence nor agreement of the parties will confer jurisdiction where it otherwise would not exist. Bracken v. Bracken, 294 Pa.Super. 371, 439 A.2d 1247 (1982); Tunstall v. Penn Federal Savings and Loan Association, 287 Pa.Super. 511, 430 A.2d 1007 (1981).

This court has jurisdiction over “all appeals from final orders of the Courts of Common Pleas.” Act of July 9, 1976, P.L. 586, No. 142, § 2, 42 Pa.C.S. § 9742 (effective June 27, 1978) (emphasis added). “In determining what constitutes a final order we . . . look to ‘a practical rather than technical construction’ of an order.” Tunstall v. Penn Federal Savings and Loan Association, id., 287 Pa.Super. at 514, 430 A.2d at 1009, quoting Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citation omitted). A final order is an order which either ends the litigation or disposes of the entire case. Piltzer v. Independence Federal Savings and Loan Association, 456 Pa. 402, 319 A.2d 677 (1974); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 430 A.2d 321 (1981). As stated in Bracken v. Bracken, id. 294 Pa.Super. at 373, 439 A.2d at 1248:

An order dismissing some but not all counts of a multicount complaint is interlocutory, as appellant has not been put “out of court.” Evans v. Government Employees Insurance Company, 291 Pa.Super.Ct. 342, 435 A.2d 1258 (1981); Mitchell v. Center City Cadillac [287 Pa.Super. 350, 430 A.2d 321], supra; Bagshaw v. Vickers, 286 Pa.Super.Ct. 246, 428 A.2d 664 (1981).
Also, in Herman v. Harborcreek Township, 458 Pa. 202, 321 A.2d 653 (1974) it was held that a decree sustaining in part and overruling in part preliminary objections to a complaint was neither a final decree terminating litigation nor an interlocutory decree on the question of jurisdiction and was therefore not appealable. We note additionally that the lower court did not certify the appeal to this court, nor is this appeal authorized by statute. See 42 Pa.C.S.A. § 702.

In the instant case, two of the three counts of Appellant’s complaint were dismissed. Clearly, Appellant has not been put “out of court”. Therefore, this appeal is interlocutory.

Accordingly, the appeal from the Order entered October 20, 1981 is quashed.


text:
    448 A.2d 640
    COMMONWEALTH of Pennsylvania v. Jermiah Patrick SIMPSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 28, 1981.
    Decided July 9, 1982.

      John Woodcock, Jr., Hollidaysburg, for appellant.

      Oliver E. Mattas, Jr., Assistant District Attorney, Hollidaysburg, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

A jury found appellant guilty of kidnapping, indecent assault, simple assault, involuntary deviate sexual intercourse, recklessly endangering another person, terroristic threats, and crimes committed with a firearm. Post-trial motions were refused and appellant was sentenced to terms of imprisonment of to 20 years on both the charge of kidnapping and involuntary deviate sexual intercourse, the sentences to run concurrently to each other. As to the other charges the court imposed a total period of probation of 7 years,to run consecutively to the period of incarceration.

This appeal raises four contentions as to alleged errors during the trial, and a fifth contention that a new trial should have been granted on the basis of after discovery evidence. We will discuss that last contention first.

According to the prosecution’s witnesses, on May 25, 1977, between the hours of 1:00 P.M. and 2:30 P.M., appellant kidnapped at gun-point, the female victim from a shopping complex in Logan Township, Blair County. He took her in her own car into a hilly rural area where he forced her to submit to various sexual acts; and then drove back with the victim in the same car to the area from which they started. Appellant denied completely the kidnapping and the assaults.

After the return of the guilty verdicts, appellant filed post-trial motions. On July 25, 1978, he filed a Supplemental Motion for a New Trial and in Arrest of Judgment averring that one James Culley had “come forth and indicated that on the date of May 25, 1976 (corrected later to 1977) at or about the hour of 2:45 P.M.,” he had had sexual relations with the victim with her consent.

Judge Campbell ordered a hearing to take testimony as to the Supplemental Motion, which took place on October 4, 1978. At that time appellant testified that he had become acquainted with Culley while incarcerated in the Blair County Prison before trial and Culley indicated he knew the victim and her brother. After the trial when appellant was again incarcerated Culley told him for the first time, that he had had intercourse with the victim on the day of the alleged kidnapping and assault at 2:30 to 2:45 P.M. Culley was called as a witness; he testified that he met appellant in the Blair County Prison, and had seen the victim “on different occasions”. He refused to say anything more as to the victim on the ground it might tend to incriminate him. Appellant’s trial counsel, William J. Haberstroh, testified that he had interviewed Culley in the prison; that Culley stated he had sexual relations, for money, with the victim in a wooded area behind the commercial complex at about 2:45 P.M. on the date in question. Culley had executed a notarized statement to the same effect, which was received into evidence. The Commonwealth presented evidence to the effect that Culley was at work at the time in question. Commonwealth v. Mosteller, 446 Pa. 83, 284 A.2d 786 (1971) sets forth the four criteria for evaluating after-discovered evidence. It must:

1) have been discovered after trial;
2) not merely be corroborative or cumulative;
3) not be used solely to impeach credibility; and finally
4) be of such nature and character that a different verdict would likely result, if presented at a new trial.

The trial court found that a “legitimate claim” could be made that Culley’s alleged relationship with the victim, could satisfy the first three criteria, but it could not meet the fourth requirement. The court reasoned that the after-discovered evidence was hearsay, as Culley refused to reiterate it in court. There was no reason to believe that Culley would forego his invocation of his right against self-incrimination and testify if a new trial should be granted. The trial judge concluded that as such evidence would not be available, a new trial was not warranted. The court refused to accept the appellant’s suggestion that the Commonwealth forced Culley to testify by granting him immunity. This the court found unreasonable since Culley was a convicted burglar and due to the possibility that perjury may be involved. The evidence was deemed to be unreliable, of doubtful admissibility and would not result in a different verdict. (Opinion, pp. 6-7)

We find it unnecessary to determine whether appellant has met the first three prongs of Mosteller. The hearing judge was in a much better position than we are to evaluate the demeanor and credibility of the witnesses. In the circumstances of this case we find it appropriate to adopt the reasoning applied to recantation testimony: we will not disturb the lower court’s decision absent a clear abuse of discretion. See: Commonwealth v. Nelson, 484 Pa. 11, 398 A.2d 636 (1979); Commonwealth v. Coleman, 438 Pa. 373, 264 A.2d 649 (1970). In light of the testimony’s hearsay nature, and the court’s questioning of the truthfulness of the evidence, we find no error in the court finding that a different verdict would not result.

Appellant also argues that the trial judge erred in admitting into evidence a revolver and a denim jacket identified by the arresting officers and by the victim. Appellant’s argument fundamentally is that the victim’s identification of both these articles was somewhat uncertain, and substantially damaged by cross-examination. We agree with the lower court that there was sufficient identification linking these items to appellant to justify their admission into evidence, even though the victim’s testimony was based upon her statements that the articles looked like the articles appellant had and used. Appellant’s claim goes to the weight of the evidence not its admissibility. See Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973); Commonwealth v. Costanza, 269 Pa.Superior Ct. 413, 410 A.2d 324 (1980); Commonwealth v. Mangus, 229 Pa.Superior Ct. 29, 323 A.2d 398 (1974).

Next, appellant argues that the trial judge erred in refusing a motion for mistrial because of an alleged improper remark of the prosecuting attorney during final summation.

There was some confusion in the testimony as to the color of the automobile that appellant had been driving when he first came in contact with the victim. The victim said the car was a bluish-green, but conceded that the police had told her the car was red. Appellant testified his car was red, and that his wife’s car was white. In her final summation, the prosecuting attorney is stated to have said to the jury:

“[Y]ou will recall Mr. Simpson said his wife was driving a white car. His wife did not take the stand . . . . ” (N.T., p. 263)

Appellant’s trial counsel moved for a mistrial, arguing that the prosecuting attorney’s comment was improper in that:

“[A]ny reference to the fact that the defendant did not call witnesses is totally improper and contrary to the law .... [TJhe comments . . . are highly inflammable and extremely damaging to the impartiality of the jury.” (N.T., p. 263)

Judge Campbell denied the Motion for mistrial, and instructed the jury:

“Based in the circumstances of this case, the court believes that there was no obligation or duty on the part of the defendant to call his wife as a witness, and that the jury shall not take any adverse inference from the failure of the defendant to call his wife as a witness, and further should disregard any remarks made by the District Attorney with respect to her not testifying.” (N.T. 266)

Whatever possible prejudice to the appellant may have resulted from such comment, was sufficiently neutralized by the court’s instruction to the jury. See Commonwealth v. Martinolich, 456 Pa. 136, 149, 318 A.2d 680 (1974); compare, Commonwealth v. Tumpson, 242 Pa.Superior Ct. 1, 363 A.2d 1129 (1976).

Next, appellant argues that the trial judge failed to instruct the jury as to the necessary elements of § 6103 of the Pennsylvania Crimes Code.

Appellant owned, and was licensed to carry two handguns (N.T., pp. 82, 221) one of which he was charged with using in the kidnapping of the victim. Among the crimes of which he was charged, and eventually convicted was 18 Pa.C.SA. § 6103:

“If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment “provided for the crime, be punished also as provided by this subchapter.”
(Emphasis supplied)

Appellant’s position is that there was insufficient evidence to find that he violated any provision of the Pennsylvania Uniform Firearms Act, therefore he claims he could not have been convicted under § 6103. He further argues that the court’s failure to recognize the above insufficiency prejudiced his trial to the point where a new trial, on all charges, should be granted.

A defendant may not be convicted under § 6103, for that provision merely provides that a violation under Sub-Chapter 61 of the Crimes Code does not merge with a crime of violence for purposes of sentencing; it does not create a separate offense. Commonwealth ex rel. Curry v. Myers, 195 Pa.Superior Ct. 480, 171 A.2d 792 (1961); Commonwealth v. Turner, 265 Pa.Superior Ct. 486, 402 A.2d 542 (1979). Accordingly, we must vacate the judgment of sentence imposed under § 6103, as no evidence was presented as to any violation of the Uniform Firearms Act.

However, we find absolutely no merit to appellant’s claim that he was so prejudiced by the submission of the charge under § 6103 that a new trial is necessary. The evidence clearly demonstrates that the kidnapping and related charges were accomplished by use or threatened use of a firearm. Such menace to a victim is not affected by the fact that the actor is not in violation of the Uniform Firearms Act.

Appellant’s final allegation of error regards the trial court’s handling of an inquiry from the jury. After some period of deliberation, the jury submitted a sealed inquiry to the court, which read:

“How did you determine that Jeremiah (sic) Patrick Simpson was a suspect?” (N.T., p. 304)

The court answered that the question could not be answered by either counsel or by further inquiry of witnesses, and that the jury must answer the question based on the evidence that was presented at trial. (N.T., p. 305) Within a half hour the jury returned with its verdicts of guilty.

It is within the trial court’s discretion to give further instructions to the jury when so requested by the jury. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980); Commonwealth v. Kidd, 251 Pa.Superior Ct. 140, 380 A.2d 416 (1977). As appellant has not referred us to any cases, nor have we discovered any by our own research, requiring the Commonwealth to explain the circumstances leading to a defendant becoming a suspect, we can find no abuse of discretion. Events leading to a suspicion of appellant’s involvement were not pertinent to a determination of appellant’s guilt.

The conviction for crimes committed with a firearm is vacated. The sentences on the remaining counts are affirmed. As the vacated sentence of probation was concurrent to the probation imposed on other charges and as it clearly did not influence the court in formulating the other sentences, a remand for resentencing is not necessary. Commonwealth v. Short, 278 Pa.Superior Ct. 581, 598, 420 A.2d 694 (1980).

Judgment of sentence affirmed in part and reversed in part.

      . The substance of this instruction was repeated by the trial judge in his closing charge. (N.T., 275, 276).