author: McEWEN, Judge:

text:
    463 A.2d 1017
    Leo PICCININI v. TEACHERS PROTECTIVE MUTUAL LIFE INSURANCE COMPANY, Appellant. Leo PICCININI, Appellant, v. TEACHERS PROTECTIVE MUTUAL LIFE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Submitted Feb. 2, 1982.
    Filed June 17, 1983.

      Gregory S. Rubin, Philadelphia, for Teachers Protective Mutual Life Ins., appellant (at No. 1578) and appellee (at No. 1647).
    Michael B.L. Hepps, Philadelphia, for Piccinini, appellant (at No. 1647) and appellee (at No. 1578).
    Before WICKERSHAM, ROWLEY and McEWEN, JJ.
   McEWEN, Judge:

This is a consolidated appeal from an order entered following a non-jury trial in favor of plaintiff Leo Piccinini, the insured under a health and accident policy issued by the defendant insurer, Teachers Protective Mutual Life Insur-. anee Company (Teachers). Teachers has appealed the award of compensatory damages in favor of Piccinini in the amount of $27,783.40 plus interest and costs, asserting that it, the insurer, was entitled to avoid its obligations under the policy. Piccinini also appeals and asserts error in the failure of the trial court to award punitive damages. We decide that the uncontroverted evidence established, as a matter of law, that Piccinini had fraudulently obtained the insurance policy by misrepresenting his medical condition in the application for insurance and, accordingly, we reverse.

In October of 1976, Piccinini, a fifty-six year old cement finisher, filed an application for accident and health insurance with Teachers in which he made certain representations concerning the condition of his health. Piccinini, who was born in the United States and had an eighth grade education, completed the application with the assistance of his nephew who was an independent insurance broker. The nephew read each of the questions on the application in its entirety to Piccinini before eliciting any response from Piccinini. The application contains the signature of Piccinini and he concedes that his nephew accurately reported his responses to the questions on the application. That application form, as answered by Piccinini, appears in the record as follows:

After the application was forwarded to Teachers, and pursuant to company policy, Piccinini was called by an employee of Equifax, a company which investigated applicants on behalf of Teachers. When questioned at trial concerning his conversation with the investigator, Piccinini testified that he told the investigator that he was working and that he had back pains, and he further testified that he might have told the investigator about his hand tremors. Upon payment of a premium by Piccinini, Teachers issued a policy on October 25, 1976, which provided that in the event that Piccinini were to become disabled, Piccinini would receive disability payments for sixty months. Seven months after the policy became effective, the insured suffered a heart attack and was rendered disabled under the policy. Teachers commenced making payments, but when it, during a routine investigation, uncovered medical history of the insured which appeared to be in direct contradiction to answers given by the insured on his application, Teachers ceased the payments in January of 1978, and rescinded the policy on the grounds that the insured had made false representations on the application. Piccinini then commenced this action by means of a complaint in assumpsit and trespass seeking compensatory and punitive damages. Teachers filed a counterclaim for payments that it had made to the insured pursuant to the policy. The trial judge found that the insured did not knowingly or in bad faith make any false statements and that, therefore, the insurer was not entitled to cancel the policy.

Our appellate role is to determine whether the findings of the trial court are supported by competent evidence and whether the trial, court committed error in any application of the law. Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982); Metz Contracting, Inc. v. Boxer Heights, Inc., 261 Pa.Super. 177, 180, 395 A.2d 1373, 1375 (1978). The findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and the findings will not be disturbed on appeal unless predicated upon errors of law or unsupported by competent evidence in the record. Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa.Super. 260, 263, 425 A.2d 803, 804 (1981). Furthermore, the verdict winner is entitled to have the evidence considered in a light most favorable to himself. Marryshow v. Nationwide Mutual Insurance Co., 306 Pa.Super. 233, 237, 452 A.2d 530, 532 (1982).

The only information supplied by the insured on the application in response to questions concerning prior medical history were references to a gall bladder operation and a broken ankle. It is undisputed, however, that in the five years prior to the time the insured completed the application for insurance, he had been treated for medical problems on numerous occasions. At trial, counsel for Piccinini stipulated as to the accuracy of the following list of hospital admissions, surgeries and doctor’s attention received by the insured for the years 1971 to 1976:

1971 Treatment Physician/Hospital
2/1 Arthritis Dr. Greenspon
6/14 Arthritis & Numb Hands & Feet Dr. Greenspon
12/21 Arthritis Dr. Greenspon
12/31 Distress, Upper Left Quadrant Dr. Greenspon
1972
2/2 Hand Tremor Dr. Greenspon
2/3 GI Series Dr. Morris Ivker
2/4 GI Series Dr. Morris Ivker
5/12 Hand Tremor Dr. Greenspon
10/10 Pain in Joints, Tremor Left Arm Dr. Greenspon
11/8 Fatigue Dr. Greenspon
12/6 Swelling of Right Hand Dr. Greenspon
1973
1/5 Hand Tremor Dr. Greenspon
2/9 Hand Tremor Dr. Greenspon
3/9 Facial Contusions E.R., Nazareth Hospital
4/11 Hand Tremor Dr. Greenspon
5/2 Hand Tremor Dr. Greenspon
5/30 Hand Tremor Dr. Greenspon
6/22 Low Back Pain Dr. Greenspon
6/29 Back Pain Dr. Greenspon
8/10 Hand Tremor, Back Pain Dr. Greenspon
10/1 Back Pain Dr. Greenspon
11/14 Back Pain Dr. Greenspon
1974 Treatment Physician/Hospital
1/16 Recurrent Lumbar Strain, Tremor of Left Arm Dr. Ball
1/18 Sacroiliac Strain Dr. Greenspon
4/15 Pain in Left Shoulder & Arm Dr. Ball
4/19 Pain in Left Shoulder & Arm, Tremor Dr. Ball
4/29 Abrasion of Leg E.R., Nazareth Hospital
5/10 Contusions & Abrasions of Left Leg Dr. Ball
8/13 Enlarged Prostate, Dysuria and Retention Dr. Ball
9/16 Lacerations of Leg E.R., Nazareth Hospital
9/18 Treatment of Leg Wound Dr. Ball
10/4 Treatment of Leg Wound Dr. Ball
11/4 Treatment of Leg Wound Dr. Ball
11/18 Treatment of Leg Wound Dr. Ball
12/9 Treatment of Leg Wound Dr. Ball
1975
2/12 Urinary Tract & Epigastric Pain Dr. Greenspon
6/30 Pain in Left Ankle Dr. Ball
9/3 Back Pain, Prostatitis, Dysuria, Pain Dr. Ball
9/19 Prostatitis, Back Pain Dr. Ball
10/22 Back Pain Dr. Ball
10/27 Examination of Urinary Tract Dr. Camnitz
1976
1/29 Cholangiogram Dr. Jordon
2/2 Pain, Upper Left Quadrant Dr. Ball
3/10 Epigastric Pain Dr. Ball
4/7 Abdominal Pain Dr. Ball
5/5 Abdominal Pain, Tremor of Left Arm Dr. Ball
6/7 Static Tremor Dr. Ball
6/8 Tremor, Parkinsonism, Conversion Reaction Dr. Williams - VA Out-Patient Clinic
6/16 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
6/18 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
6/28 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
1976 Treatment Physician/Hospital
6/29 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
7/26 EEG VA Out-Patient Clinic
8/10 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
9/1 Static Tremor Dr. Ball
9/7 Treatment & Evaluation - Tremor & Psychiatric Problems VA Out-Patient Clinic
10/15 Static Tremor & Right Knee Pain Dr. Ball

In addition to this extensive medical treatment received by Piccinini within the five years prior to the time he applied for insurance coverage with Teachers, there was additional evidence introduced at trial which related to his medical history and his knowledge of his medical condition. Piccinini, a veteran of World War II, not only sought medical advice and treatment from the Veterans Hospital on numerous occasions, but he admitted at trial that less than two months prior to the time that he filled out the application for insurance, he had filed for a service-connected disability relating to a hand tremor. Furthermore, Dr. Greenspon, the physician who had treated Piccinini for a number of years, testified that on numerous occasions from 1947 to 1971, he had treated the insured for sacroiliac trouble and arthritis. In addition, Dr. Schmuck, a physician who treated Piccinini on numerous occasions at the Veterans Administration Hospital, testified that the insured was taking valium during the time that Dr. Schmuck examined him and that he diagnosed the hand tremor as a conversion reaction manifested by tremor of the left upper extremity. This conversion reaction was described as a psychological or psychiatric problem suffered by Piccinini which became for him a physical symptom. Dr. Schmuck also testified that this type of conversion reaction can become disabling depending upon the stress suffered by the patient.

Contrary to the testimony of Dr. Greenspon that he had informed his patient, both by means of simple language and through proper technical terms, that Piccinini suffered from sacroiliac disease and arthritis, the insured testified that he never knew he had these diseases and that, therefore, he responded negatively to question fourteen on the application which asked whether the applicant had ever had certain diseases, including arthritis and sacroiliac trouble. Piccinini further testified that he gave a negative response to question fifteen which asked whether the applicant had “within the past five years had any medical advice, treatment or disabling injury or sickness?”, because he interpreted question fifteen to ask whether he had received any medical advice or treatment in connection with a disabling injury or sickness. Thus, despite his medical history and notwithstanding the numerous visits to doctors, clinics and hospitals during the preceding five years, Piccinini felt that since he had concluded that his ailments were not disabling, the proper response to question fifteen was “No”.

The distinguished Judge Lois G. Forer exercised painstaking care to conduct a fair trial and her thoughtful opinion reflects a very careful analysis of the basic issue presented, namely, did the insured knowingly and in bad faith make any false statements. The trial judge concluded that Piccinini had not done so. The scope of our appellate study in this case is to determine whether the trial judge could properly have concluded that there was no bad faith on the part of Piccinini when he responded to the crucial questions upon the application for insurance. We decide that the insured acted in bad faith when he responded to questions fourteen and fifteen.

In order to avoid its obligations under an insurance policy, the insurer has the burden of proving that the statements made by an applicant on the application were false and material and that the applicant must have known that the statements were false and made them in bad faith. Lynch v. Metropolitan Life Insurance Company, 427 Pa. 418, 424, 235 A.2d 406, 409 (1967); McCloskey v. New York Life Insurance Company, 292 Pa.Super. 1, 5, 436 A.2d 690, 692 (1981); Underwood v. Prudential Insurance Company of America, 241 Pa.Super. 27, 31, 359 A.2d 422, 424-25 (1976). In addition, the insurer must establish that it relied upon the misstatements in issuing the policy. Kizirian v. United Benefit Life Insurance Co., 383 Pa. 515, 519, 119 A.2d 47, 49-50 (1956); Evans v. Penn Mutual Life Insurance Co., 322 Pa. 547, 553, 186 A. 133, 138 (1936); McCloskey v. New York Life Insurance Co., supra 292 Pa.Super. at 6, 436 A.2d at 692.

It is not enough for the insurer to show simple knowledge on the part of its insured that an answer is false, but rather, the knowledge of such falsity must be acted upon in bad faith. Allstate Insurance Company v. Stinger, 400 Pa. 533, 540, 163 A.2d 74, 78 (1960). “Mere mistakes, inadvertently made, even though of material matters, or the failure to furnish all details asked for, where it appears there is no intention of concealing the truth, does not work a forfeiture, and a forfeiture does not follow where there has been no deliberate intent to deceive, and the known falsity of the answer is not affirmatively shown.” Evans, supra 322 Pa. at 553, 186 A.2d at 143.

While statements relating to medical treatment are material to the risk incurred by an insurer, the failure to report every attendance or treatment by a physician does not alone constitute fraud, as for example, where the applicant does not include references to medical treatment received for common colds, indigestion or other comparatively minor illnesses. Pfautz v. Sterling Insurance Company, 184 Pa.Super. 565, 135 A.2d 806 (1957). Thus, an applicant for insurance is not required to report illnesses or conditions which one would not ordinarily regard as being of real gravity or importance. Travellers Insurance Co. v. Heppenstall, 360 Pa. 433, 61 A.2d 809 (1948). Although a question as to whether a misstatement of fact was made in bad faith is ordinarily a question for the factfinder, Baldwin, supra,

where it is established by uncontradicted documentary evidence that the insured has consulted physicians so frequently, or undergone medical or surgical treatment so recently, or of such a serious nature, that a person of ordinary intelligence could not have forgotten these incidents in answering a direct and pointed question in an application for insurance, bad faith may be inferred as a matter of law if the insured denies in his answer that any physician has been consulted, or any medical or surgical treatment has been received during the period of inquiry.

Freedman v. Mutual Life Insurance Company of New York, 342 Pa. 404, 409, 21 A.2d 81, 84 (1941); quoted in McCloskey v. New York Life Insurance Company, supra 292 Pa.Super. at 6-7, 436 A.2d at 692.

It is undisputed that appellant had been treated for sacroiliac disease and arthritis, and that he had visited various doctors, clinics and hospitals on numerous occasions in the five years prior to the time he completed the application for insurance. While Dr. Greenspon testified that he had informed Piccinini, both in layman’s words and in technical terms, that he suffered from arthritis and sacroiliac disease, the court found “his testimony not worthy of credence” and concluded that “[w]ithout Dr. Greenspon’s testimony, there is no- evidence that plaintiff wrongfully answered Question 14” which asked whether he had ever had arthritis or sacroiliac trouble. Thus, the court concluded that the apiplicant did not respond in bad faith when he answered “No” to question fourteen. We decide, however, that the insured could not have acted in good faith when he denied that he had any of the diseases listed in question fourteen. We are simply unable to believe that he was not aware that one of the conditions from which he was suffering and for which he sought treatment was arthritis, a common condition, especially when he had received treatment for that condition for so prolonged a period of years. Even when we accept the finding of the trial judge that the testimony of Dr. Greenspon was not worthy of credence, we find, based upon the uncontradicted evidence of his medical history and pursuant to the principles established in Freedman, supra and McCloskey, supra, the testimony of Piccinini is so incredible that his bad faith must be inferred as a matter of law.

We next consider whether question fifteen—“Have you within the past five years had any medical advice, treatment or disabling injury or sickness?”—is ambiguous. The trial court so concluded and found that a person who had been to a doctor for medical advice or treatment for a condition which was not a disabling injury or sickness would be justified in giving a negative answer to this question even though they had visited a doctor for medical advice or treatment within the past five years. The basis for those conclusions of the trial judge was the testimony of the insured himself. Even if, however, we decide that the question could be and had been so interpreted by the insured, we must determine whether he could reasonably believe that he had not received advice or treatment for a disabling injury or sickness.

This court has previously determined whether a particular question in an insurance contract is ambiguous. In Orr v. Union Fidelity Life Insurance Co., 202 Pa.Super. 553, 198 A.2d 431 (1964), an insurance application asked the applicant to describe “any previous sickness, injury or any medical or surgical treatment...” The applicant listed only one of many injuries suffered by him. When the insurance company attempted to rescind the policy by reason of the failure of the insured to list his other injuries, the insured responded with the assertion that he interpreted the word “any” to mean any one, and not all, previous injuries or treatments. The Orr court rejected this explanation offered by the insured and found, as a matter of law, that the answer which described only one of numerous known injuries was not a truthful answer to the question.

Similarly, we conclude as a matter of law that the negative answer to question fifteen was supplied by the insured in bad faith. Even if we were to accept his assertion that he and his independent insurance broker-nephew interpreted the question to mean that only information relating to medical advice or treatment which related to a disabling injury or sickness was being elicited, when we consider that less than two months prior to the time that he completed the application, Piccinini had applied to the Veterans Administration for compensation for a service connected disability relating to his hand tremor, we are compelled to the conclusion that the response was provided in bad faith. It is inconceivable that Piccinini, whose trade of cement finisher required considerable skill and hand dexterity, could in response to this inquiry overlook so serious a condition as a hand tremor that inspired his application for a disability rating and payments just two months earlier.

Since we have decided that the insurer is entitled to rescind the policy by reason of our finding that Piccinini acted in bad faith in providing responses to questions fourteen and fifteen, we need not decide whether the affirmative response of appellee to question sixteen—“Are you now in good health and sound body condition?”—would also entitle the insurer to rescind the policy.

Order reversed. Jurisdiction is relinquished.

      . The total of the payments made by Teachers to the insured pursuant to the policy and the amount of the counterclaim was $3,616.60. Teachers withdrew the counterclaim during the trial. Piccinini alleged in his complaint that he had paid premiums to Teachers in a total amount of $2,216.60.

      . “Generally, it has been held that ‘every fact untruly asserted or wrongfully suppressed must be regarded as material if the knowledge or ignorance of it would naturally influence the judgment of the insurer in making the contract at all, or in estimating the degree and character of the risk, or in fixing the rate of the premium.’ ” Baldwin v. Prudential Insurance Co. of America, 215 Pa.Super. 434, 437, 258 A.2d 660, 662 (1969) quoting 7 Couch on Insurance 2d, § 35:79, p. 94 (1961). See also Underwood v. Prudential Insurance Company of America, supra.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    463 A.2d 1026
    JONNET DEVELOPMENT CORPORATION, Appellant, v. DIETRICH INDUSTRIES, INC. DIETRICH INDUSTRIES, INC., Appellant, v. JONNET DEVELOPMENT CORPORATION.
    Superior Court of Pennsylvania.
    Argued Nov. 9, 1981.
    Filed June 24, 1983.
    Reargument Denied Aug. 31, 1983.
    Petition for Allowance of Appeal Denied Feb. 3, 1984.

      David Abrams, Monroeville, for Jonnet Development, appellant (at No. 13) and appellee (at Nos. 1222, 1223, 1224 and 1225).
    M.A. Nernberg, Jr., Pittsburgh, for Dietrich Industries, appellant (at Nos. 1222, 1223, 1224 and 1225) and appellee (at No. 13).
    Before BECK, JOHNSON and POPOVICH, JJ.
   BECK, Judge:

This case comprises three appeals founded upon a written lease agreement between Jonnet Development Corporation (“Jonnet”) as the lessor, and Dietrich Industries, Inc., (“Dietrich”) as the lessee.

On August 20, 1974, Jonnet and Dietrich signed a five-year, commercial space lease effective from January 1, 1975. In January of 1976 Dietrich vacated the leased premises. Although Dietrich continued thereafter to make regular monthly rental payments, Dietrich sought release from its rental obligations by bringing two actions against Jonnet. In its suits Dietrich alleged Jonnet’s anticipatory repudiation of the lease agreement and constructive eviction of Dietrich from the leased premises. Subsequently, alleging Dietrich’s failure to pay rent for July of 1977, Jonnet filed a complaint in confession of judgment against Dietrich.

An excellent procedural outline of the parties’ litigation is provided, as follows, by the opinion of the Honorable Richard G. Zeleznik of the Court of Common Pleas of Allegheny County:

On April 29, 1976, after vacating, but while continuing to pay the monthly rentals, Dietrich filed the first of [its] actions at No. GD 76-9197. That was a Complaint in Equity seeking to enjoin Jonnet, as landlord, from confessing judgment on the lease and to nullify all rental obligations. The Complaint was based upon a theory of anticipatory repudiation____ This Court denied Dietrich’s request for injunctive relief by Order dated May 24, 1976.... Subsequently, Jonnet filed preliminary objections to Dietrich’s Complaint in Equity which were sustained____ Dietrich was denied equitable relief, but granted twenty days to amend, and the issue of anticipatory repudiation was preserved.
... [0]n February 7, 1977, [Dietrich] filed the second of these actions at No. GD 77-02645. In its second Complaint in Equity, Dietrich repeated its allegation of anticipatory repudiation, and added an allegation of constructive eviction. Again, Dietrich, as tenant, sought to enjoin Jonnet from confessing judgment on the lease and to escape rental obligations retroactively. This Court again denied equitable relief, and by Order dated February 28, 1977, ... consolidated the cases and certified the matter to the law side of the Court. Next, on or about August 5, 1977, Jonnet confessed judgment on the lease at No. GD 77-17850 and issued execution against Dietrich at No. GD 77-17851 in the amount in excess of $158,626.00 for default in the payment of rent [for July of 1977]. Judgment was confessed for the full accelerated balance of the rents in the amount of $144,205.50 together with attorney’s fees at ten percent, calculated at $14,420.50, for a minimum demand of $158,626.00. On August 8, 1977, and on Petition of Dietrich, a Rule issued to show cause why the Jonnet judgment should not be stricken and/or opened and execution stayed. Jonnet filed a responsive pleading. Subsequently, on February 7, 1978, this Court consolidated the judgment case with the two Dietrich actions, and on June 13, 1979, ... issued its Order opening the judgment by consent [of the parties] and placed all three cases on the next jury trial list. On the date of trial, December 3, 1979, and on motion of Dietrich, this Court entered an Order striking the confessed judgment at No. GD 77-17851 which appeared to be undetermined at that time, and the case proceeded through trial on the issues raised at No. GD 77-17850, GD 76-9197 and GD 77-02645.

We will address, seriatim, the points raised by the parties’ appeals, namely, the propriety of: (1) the trial court’s order of December 3, 1979, purporting to strike the confessed judgment at No. GD 77-17851; (2) the directed verdict for Jonnet on the issue of Jonnet’s alleged anticipatory repudiation of the lease, (3) Jonnet’s reputed constructive eviction of Dietrich, and (4) the trial court’s molding of the jury’s verdict (money damages) in favor of Jonnet.

I.

Jonnet argues that the trial court’s order of December 3, 1979, improperly struck its confessed judgment against Dietrich.

An independent review of the record reveals, however, that the order of December 3, 1979, did not strike Jonnet’s confessed judgment. Jonnet’s confessed judgment was docketed at GD 77-17850. Only the execution on the confessed judgment was docketed at GD 77-17851, and the order of December 3, 1979, was confined to a disposition of GD 77-17851. '

After Dietrich had filed two actions against Jonnet in an effort to avoid paying rent under the lease, Jonnet confessed judgment against Dietrich for non-payment of the July, 1977, installment of rent. The confession of judgment was made pursuant to the warrant of attorney contained in the parties’ lease agreement, and the action to confess judgment was docketed at GD 77-17850. The praecipe for writ of execution on the confessed judgment was separately docketed at GD 77-17851. See Pa.R.C.P. No. 2957 and Pa.R.C.P. No. 236.

In accordance with Pa.R.C.P. No. 2959 Dietrich then filed a petition to strike and/or open the confessed judgment. Under Rule 2959(b) the trial court issued a rule against Jonnet to show cause why (i) Dietrich’s petition should not be granted and (ii) Jonnet’s execution on the confessed judgment should not be stayed. Jonnet filed a timely answer to the rule. See Rule 2959(b).

By consent of the parties, on June 13, 1979, the trial court entered an order opening Jonnet’s confessed judgment (GD 77-17850) against Dietrich. But while the court’s rule to show cause had referred to both the confessed judgment (GD 77-17850) and the execution on same (GD 77-17851), the court’s order of June 13, 1979, failed to dispose of the execution on the confessed judgment.

The order of June 13, 1979, also consolidated Jonnet’s confessed judgment action against Dietrich with Dietrich’s two suits against Jonnet and provided that all three suits proceed to trial at the next jury trial listing.

On the day of trial Dietrich moved that the trial court act with respect to the execution on the confessed judgment (GD 77-17851). Accordingly, the court issued an order disposing of the execution on the confessed judgment: “And now this 3 day of Dec. 1979, it appearing that the Motion to Strike Judgment has not been determined previously, it is hereby ordered and decreed that the within judgment is stricken. The balance of the proceedings as consolidated shall proceed to trial.” The court order was hand-written in blue ink, and in the upper portion of the order were four docket numbers: GD 76-9197 (anticipatory repudiation), GD 77-17850 (confessed judgment), GD 77-17851 (execution on confessed judgment) and GD 77-02645 (constructive eviction). The court order was signed by the trial judge in black ink, and docket number GD 77-17851 (execution on the confessed judgment) was encircled with black ink. The trial court verdict sheet for docket GD 77-17851 states that an “[o]rder [was] entered [on] December 3, 1979, striking this judgment, and trial proceeded as consolidated on GD 77-17850.” (Emphasis added). The verdict sheet was signed by the trial judge who issued the aforementioned order of December 3, 1979.

A trial on the merits of the actions docketed at GD 77-17850 (confessed judgment), GD 76-9197, and GD 77-02645 was conducted before a jury. The record includes a verdict sheet corresponding to each docket number. The verdict sheet for GD 77-02645 contains the following brief statement: “See molded verdict at GD 77-17850 [confession of judgment] by the Court. Action governed by verdict entered at GD 77-17850.” The verdict sheet at GD 77-17850 enumerates the money damages which Dietrich must pay to Jonnet.

From the foregoing facts it appears that the court order of December 3, 1979, “striking” GD 77-17851 (execution on confessed judgment) was intended merely to stay execution on the confessed judgment docketed at GD 77-17850 pending disposition of the opened confessed judgment after the jury trial. Indeed, in several documents which form part of the record in this case (such as Jonnet’s motion to mold the verdict in GD 77-17850) Jonnet seemingly acknowledges that the parties proceeded to trial on GD 77-17850. Thus, Jonnet’s confession of judgment against Dietrich was not stricken but, rather, was opened and heard on the merits at trial. See Pa.R.C.P. No. 2960.

Accordingly, we affirm the trial court’s order of December 3, 1979.

II

Dietrich contends that the trial court wrongfully denied its motion for a new trial which opposed directed verdicts for Jonnet in the actions alleging Jonnet’s anticipatory repudiation of the parties’ lease and constructive eviction of Dietrich.

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz [v. Marshall, 259 Pa.Super.Ct. 31, 35, 393 A.2d 701, 703 (1978) ]. ‘[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion’, Myers v. Gold, 277 Pa.Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed ‘a clear error of law.’ Eldridge v. Melcher, 226 Pa.Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

Mattox v. City of Philadelphia, 308 Pa.Super.Ct. 111, 115, 454 A.2d 46, 48 (1982).

After Dietrich and Jonnet concluded the presentation of their evidence, the trial court determined that there were no factual controversies for the jury’s resolution and accordingly granted Jonnet’s motion for directed verdicts against Dietrich. Thereafter, the trial court affirmed the directed verdicts for Jonnet by refusing Dietrich’s request for a new trial.

[I]t has long been held that only in a case where the facts are all clear, and there is no room for doubt, should the case be removed from the jury’s consideration, and a motion for directed verdict ... be granted .... Thus, before granting a directed verdict, the court must accept as true all facts and proper inferences from testimony which tend to support the contentions of the party against whom the motion has been made, and further, must reject all testimony and inferences to the contrary.

Stephens v. Carrara, 265 Pa.Super.Ct. 102, 105, 401 A.2d 821, 822 (1979).

Consequently, the issue on appeal is whether the trial court directed verdicts for Jonnet where there existed disputed material facts for the jury’s consideration, Koppers Co. v. Brunswick Corp., 224 Pa.Super.Ct. 250, 303 A.2d 32 (1973), thus requiring a new trial.

First, we will address Dietrich’s assertion that the trial court improperly directed a verdict for Jonnet in the matter of Jonnet’s alleged anticipatory repudiation of the parties’ lease agreement (hereinafter “Lease”).

Dietrich maintains that Jonnet anticipatorily repudiated the Lease by renting space for which Dietrich held a rental option under the Lease. In pertinent part the option provision of the Lease states:

At the Tenant’s [Dietrich’s] request, Landlord [Jonnet], upon a one-year notice, will make available to Tenant an additional 5,000 square feet in premises contiguous to the [originally] leased premises____ If the request is made after the first year of the original lease term, then the within Lease covering the original leased premises and the additional 5,000 square feet shall be extended ... for a five year term commencing with the date of the said request.

(Emphasis added.)

Therefore, by the terms of the Lease Jonnet’s duty to rent additional space to Dietrich was conditioned upon Dietrich’s exercising its rental option by (i) requesting more space and (ii) giving one year’s notice to Jonnet. Section 224 of the Restatement (Second) of Contracts (1981) (hereinafter “Restatement”) explains that “[a] condition is an event, not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due.” See Moyer v. Diehl, 139 Pa.Super.Ct. 59, 11 A.2d 651 (1940); National Products Co. v. Financial Corp., 238 Pa.Super.Ct. 152, 364 A.2d 730 (1975), allocatur denied, April 12, 1976; see also J. Murray, Murray on Contracts §§ 133, 134, and 139 (2d rev. ed. 1974).

Although Dietrich admits that it did not attempt to exercise its rental option, Dietrich argues that Jonnet anticipaterily repudiated the rental option and that such repudiation excused the non-occurrence of the condition precedent (exercise of Dietrich’s rental option) to Jonnet’s obligation to provide additional space.

“An anticipatory breach of a contract occurs whenever there has been a definite and unconditional repudiation of a contract by one party communicated to another. A statement by a party that he will not or cannot perform in accordance with agreement creates such a breach. See 4 Corbin on Contracts § 959, p. 852-856 (1951).” Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1014 (E.D.Pa.1975), aff'd, 530 F.2d 966 (3d Cir.1976); Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423 (1939); Parliament Industries, Inc. v. William H. Vaughan & Co., 287 Pa.Super.Ct. 458, 430 A.2d 981 (1980), on reconsideration, June 12, 1981 petition for allowance of appeal granted, October 2, 1981; Section 250 of the Restatement. Furthermore, Section 250 of the Restatement declares that an anticipatory repudiation results not only from an obligor’s definite statement of inability or unwillingness to render future performance but also from “a voluntary affirmative act which renders the obligor unable or apparently unable to perform____”

As Dietrich correctly asserts, an anticipatory repudiation by an obligor discharges an obligee’s duty to perform a condition precedent. See comment c to Section 253 (discussion of option contracts) and comment b to Section 255 of the Restatement.

If, when the time for the happening of a condition precedent arrives, it appears that the promise that is qualified by the condition cannot be performed by the promisor, the general rule is that the condition is ex-cused____
If it is reasonably certain that the promisee will not receive that which is the contemplated exchange for the performance of the condition, there is every reason why he should not be required to perform the condition as a preliminary to the recovery of compensation for defeated expectations____

J. Murray, Murray on Contracts § 188 at p. 366-67; Weinglass v. Gibson, 304 Pa. 203, 155 A. 439 (1931).

However, the rule excusing the non-occurrence of conditions precedent does not apply “[w]hen the promisee could not, or would not, have performed the condition in any event [i.e., whether or not the promisor repudiated] ____” J. Murray, Murray on Contracts § 188 at p. 367; Comment a to Section 255 of the Restatement; 4 A. Corbin, Corbin on Contracts § 978 at p. 924 (1951).

In the instant case the trial judge properly observed that “[t]he evidence ... established conclusively that Dietrich had never exercised its option for the 5,000 square feet of additional space [and that] ... Dietrich vacated the entire [originally leased] premises within thirteen months after ... occupancy for reasons unrelated to any need for additional space.” By its conduct Dietrich manifested a complete lack of intent to perform the condition precedent (i.e exercise of the rental option) regardless of whether Jonnet did or did not anticipatorily repudiate the rental option provision of the Lease. Consequently, we hold that in this context the non-occurrence of the condition precedent could not be excused by anticipatory repudiation. Under these circumstances we therefore deem it unnecessary to decide whether Jonnet did anticipatorily repudiate the rental option, i.e., whether Jonnet’s rental to a third party of the existing commercial space contiguous to Dietrich’s original leasehold constituted a repudiatory act rendering Jonnet unable or apparently unable to perform according to the rental option.

Assuming arguendo, without deciding, that Jonnet did not anticipatorily repudiate the rental option, we consider whether pursuant to Section 251 of the Restatement, Dietrich had “reasonable grounds ... to believe that [Jonnet would] commit a breach by non-performance ... [and could therefore] demand adequate assurance of due performance [from Jonnet] and ..., if reasonable, suspend [its own], performance ... until [it] receive[d] such assurance.”

Preliminarily, we note that Dietrich did not demand any assurances of performance from Jonnet. Moreover, in accordance with Comment c to Section 251 we conclude that Dietrich could not have requested assurances of performance under Section 251 because it lacked “reasonable grounds” for believing that Jonnet would repudiate the rental option.

Comment c to Section 251 of the Restatement explains that

[w]hether ‘reasonable grounds’ have arisen for an obligee’s belief that there will be a breach must be determined in the light of all the circumstances of the particular case. The grounds for [the obligee’s] belief must have arisen after the time when the contract was made and cannot be based on facts known to [the obligee] at that time. Nor, since the grounds must be reasonable, can they be based on events that occurred after that time [when the contract was made] but as to which [the obligee] took the risk when [the obligee] made the contract.

(Emphasis added.) Accord, J. Murray, Murray on Contracts § 178 at p. 351.

Here, the trial judge accurately remarked that Dietrich ... presented evidence to prove that Jonnet had effectively leased out nearly all of the remaining space in the same building at the time the parties entered into contract to furnish additional contiguous space [rental option] ____ It was undisputed that Jonnet had leased most of the floor space to other tenants, including Dietrich, at the time the option was granted. Dietrich, as a tenant in possession, was aware of this.

(Emphasis added.)

Given the circumstances known to Dietrich when it entered into the rental option with Jonnet [i.e., that most of the space was already leased), it is apparent that if Dietrich had grounds for suspecting Jonnet’s inability to satisfy its rental option obligations, such grounds arose before the parties contracted for the option and consequently fail to qualify under Comment c to Section 251 as “reasonable grounds” which would permit suspension of Dietrich’s duty to perform (i.e. exercise the rental option).

Accordingly, inasmuch as Dietrich’s failure to exercise its rental option (i.e., the non-occurrence of the condition precedent to Jonnet’s duties under the rental option) was not excused and Dietrich lacked “reasonable grounds” for believing that Jonnet would repudiate the rental option, we affirm that portion of the trial court’s order of November 20, 1980, directing a verdict for Jonnet on the issue of Jonnet’s alleged anticipatory repudiation.

Ill

We will now consider Dietrich’s contention that the trial court improperly directed a verdict for Jonnet in the matter of Jonnet’s reputed constructive eviction of Dietrich from the originally leased premises.

Dietrich maintains that its constructive eviction from the leasehold was caused by Jonnet’s breach of the express covenant for quiet enjoyment contained in the parties’ Lease.

While the earlier cases held that physical dispossession or actual disturbance in the possession of the tenant was necessary to constitute a breach of the covenant for quiet enjoyment, the great weight of authority now is that a constructive eviction is sufficient to destroy the relation of landlord and tenant. If the tenant is entitled to the beneficial enjoyment of the premises under the terms of his lease, and if he is deprived of this by the act of the landlord it amounts to an eviction, and will suspend the rent. The term ‘eviction’ is no longer restricted in its application to its original meaning of eviction by title paramount, or to a total deprivation of the premises by the landlord____

Weighley v. Muller, 51 Pa.Super.Ct. 125, 131 (1912).

The legal implication of the covenant [for quiet enjoyment], express or implied, is that the lessor will permit the tenant to enjoy fully the demised premises subject to any rights reserved to the lessor.... ‘The covenant ... is breached when a tenant’s possession is impaired by acts of the lessor or those acting under him.... ’ The impairment of the lessee’s possession need not be total, but the utility of the premises must be substantially decreased by the landlord’s interference with a right or privilege which is necessary to the enjoyment of the premises____

Checker Oil Co. of Delaware, Inc. v. Harold H. Hogg, Inc., 251 Pa.Super.Ct. 351, 358, 380 A.2d 815, 818-19 (1977) (emphasis added), allocatur denied; Kahn v. Bancamerica Blair Corp., 327 Pa. 209, 213-14, 193 A. 905, 906-07 (1937).

Recovery for breach of this covenant [for quiet enjoyment] has been allowed in Pennsylvania where a landlord has evicted the tenant by locking up the leased premises and denying the tenant access ..., and where the landlord so substantially altered some essential feature of the premises as to render the property unsuitable for the purpose for which it was leased.

Pollock v. Morelli, 245 Pa.Super.Ct. 388, 393, 369 A.2d 458, 460 (1976) (emphasis added).

In the present case Dietrich argues that after it had vacated the premises, but while it was still paying rent, Jonnet undertook to repair several aspects of the leased premises, chiefly, one of the restrooms and electrical wiring in the ceiling of the rented office space. Moreover, Dietrich avers that Jonnet failed to properly maintain the premises after Dietrich vacated, i.e., the floors were dirty and the heat was lowered. Finally, Dietrich asserts that the entrance door to the leased premises was found off the door jamb. Dietrich contends that the foregoing conditions of the leased premises amounted to Jonnet’s constructive eviction of Dietrich from the leasehold.

‘It has uniformly been held that where a tenant, during the term [of his lease], abandons the demised premises, the landlord is not bound, under the penalty of loss of his right to receive rent, to permit the tenement to remain wholly unoccupied with the consequent possible or probable loss of his insurance, destruction by waste, or other like injuries. The mere fact that [the landlord] resumes possession is not of itself a sufficient foundation upon which to predicate either an acceptance of a surrender or an eviction. It must further be found on evidence that such resumption of possession is not merely for the protection of the property during the absence of the tenant, but is adverse to a reoccupation of it by [the tenant] and a renewal of the relations created by the lease.’
After a tenant vacates the property leased, the landlord has the right to reenter and take such steps as may be necessary and proper towards subletting the premises ____

Bancamerica-Blair Corp., 327 Pa. at 213-14, 193 A. at 907.

Here, the steps taken by Jonnet did not deprive Dietrich of the right to reenter and enjoy the leased premises without substantial impairment. Jonnet did not demonstrate any intention permanently to deprive Dietrich of any aspect of its leasehold. In this respect the instant case differs markedly from such cases as Kelly v. Miller, 249 Pa. 314, 94 A. 1055 (1915) [landlord closed opening which had connected two of tenant’s adjoining leaseholds and thus eliminated convenient access to leasehold], and Pollock [landlord built mini mall which obstructed view of tenant’s store], wherein there were permanent structural alterations of the original leaseholds.

Moreover, as the trial court noted, the only conduct or activities brought out by the evidence was that of isolated and limited use by Jonnet involving maintenance and repairs, all of which occurred after Dietrich had vacated the premises. There was no evidence of any substantial interference with Dietrich’s use or right to sole and exclusive possession. Furthermore, this maintenance worked to the benefit and advantage of Dietrich. Jonnet was thus able to prepare the premises for occupancy by new tenants, and as the situation developed, Jonnet did later acquire new tenants for the same space at an increased rental, which operated to terminate Dietrich’s lease obligations when the new tenants went into possession.

Accordingly, inasmuch as Jonnet’s conduct did not substantially interfere with Dietrich’s right to enjoy the leased premises, we affirm that portion of the trial court’s order of November 20, 1980, directing a verdict for Jonnet on the issue of Jonnet’s reputed constructive eviction of Dietrich.,

IV

Finally, we review the trial court’s modification of the verdict for Jonnet to include interest plus Dietrich’s pro rata share of the increased real estate taxes on the leasehold.

Citing Tibbetts v. Prudential Insurance Co. of America, 313 Pa. 310, 169 A. 382 (1933), Dietrich argues that the trial court lacked authority to “mold the verdict.” In Tibbetts the Supreme Court of Pennsylvania held that a trial court could not amend a jury’s verdict to include interest where the court had “failed to instruct the jury that interest [should] be allowed in the event of recovery of a liquidated debt.” Id., 313 Pa. at 316, 169 A. at 384. The court reasoned that “[a]s the jury was not instructed that interest might be allowed, it [could] not be said that [the jury] intended to make it part of the verdict, a fact which ex-eludes the right of the court to do so.” Id., 313 Pa. at 316, 169 A. at 384-85; House of Pasta, Inc. v. Mayo, 303 Pa.Super.Ct. 298, 449 A.2d 697 (1982); Kardibin v. Associated Hardware, 284 Pa.Super.Ct. 586, 426 A.2d 649 (1981).

However, Tibbetts is inapposite in this instance because, as the trial judge explained in his opinion, the court—not the jury—computed the initial verdict:

Dietrich complains that there were no instructions to the jury on these items \i.e., interest and increased real estate taxes]____ [T]he issue of rents due and owing was taken away from the jury. After the defenses of anticipatory repudiation and constructive eviction were eliminated, the only matter remaining was a calculation of rent from the time of Dietrich’s last payment until the new tenant took over that obligation. That simple arithmetic was done by the Court and should have included the real estate taxes called for in the lease. Likewise, interest should have been added as a matter of course.

(Emphasis added.)

Thus, the court was fully empowered to subsequently modify its own verdict without intrusion upon the jury’s province.

Moreover, unlike Tibbetts this case does not present an attempt by the court to modify a verdict on its own motion. Here, the verdict was amended pursuant to Jonnet’s motion to mold the verdict to reflect interest and additional real estate taxes. And despite Dietrich’s protestation to the contrary, this case is not controlled by Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), wherein the Pennsylvania Supreme Court stated that an issue is preserved for appeal only where there has been a timely specific objection raised before the trial court. Since the court did not instruct the jury on the amount of the verdict to be rendered, Jonnet cannot be deemed to have waived objections to jury instructions regarding the verdict amount.

Concerning Dietrich’s argument that the trial court’s addition of the augmented real estate tax figure to the verdict resulted in an improper variance between Jonnet’s pleaded damages and the court’s assessment of damages, the present case is easily distinguishable from the case of Edison General Electric Co. v. Thackara Manufacturing Co., 167 Pa. 530, 31 A. 856 (1895), cited by Dietrich.

While in Edison General Electric Co. the Pennsylvania Supreme Court reversed the judgment due to “the variance between the averment and the assessment of damages,” id., 167 Pa. at 534, 31 A. at 857, the court also stated that “[tjhere [was] nothing on the record to sustain ... [the] assessment.” Id., 167 Pa. at 534, 31 A. at 857. In Edison General Electric Co. the court was confronted with an ultimate claim for damages that exceeded four times the amount originally averred, “and the principle upon which such result [assessed damages] was reached nowhere appealed].” Id., 167 Pa. at 534, 31 A. at 857.

But in the instant case the parties’ Lease prescribed a formula according to which increases in real estate taxes would be added to the lessee’s rental payments:

The Tenant agrees to pay as additional rental such increase in real estate taxes levied upon the demised premises following the commencement of the term. The increase in taxes shall be prorated over the entire leaseable area of the [Lessor’s office building] upon a square foot basis. Lessor shall verify in writing the increase in taxes and the effective date of the increase and the mathematical computation of the proration. Payment by the Tenant shall be made in full on or before sixty days of said written notice delivered to Tenant.

Thus, in the present case the Court knows the “principle upon which [the] result [assessed damages] was reached____” Id., 167 Pa. at 534, 31 A. at 857.

Furthermore, the general rule “against a variance between allegations and proof is based upon the sound reasoning that a defendant should not be taken by surprise at trial by being called upon to defend either against matters of which he had no notice in the pleadings, or against a different cause of action.” Allegheny Ludlurn Industries, Inc. v. CPM Engineers, Inc., 278 Pa.Super.Ct. 201, 205, 420 A.2d 500, 501 (1980). Here, Dietrich cannot claim to be surprised by Jonnet’s request for increased rental corresponding to augmented real estate taxes since the parties’ Lease contained a provision for same. Nor does the request for rental including Dietrich’s proportionate share of the tax increase vary the cause of action upon which Jonnet was suing since the action remained one for outstanding rental payments owed by Dietrich, a portion of which related to taxes on the leasehold.

Therefore, inasmuch as the trial court had the authority to conform its own verdict to the terms of the parties’ Lease, we affirm that portion of the trial court’s order of November 20, 1980, which confirmed its adjustment of the verdict to include interest and Dietrich’s pro rata share of the increased real estate taxes.

The trial court’s order of December 3, 1979, staying execution on the opened confessed judgment and the trial court’s order of November 20, 1980, directing verdicts for Jonnet on the issues of anticipatory repudiation and constructive eviction as well as modifying the verdict amount to reflect interest and increased taxes are affirmed.

      . “ '[T]he standard [for opening a confessed judgment] ... is that of a directed verdict, viewing all evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences therefrom supporting the defense, while rejecting the adverse allegations of the party obtaining the judgment.’ ” Industrial Valley Bank and Trust Co. v. Lawrence Voluck Associates, Inc., 285 Pa.Super.Ct. 499, 503, 428 A.2d 156, 158 (1981) (citation omitted).

      . The notes following Pa.R.C.P. No. 2959 explain that ”[a]n order of court opening a judgment does not impair the lien of the judgment or of any execution issued on it, although the court may stay the execution pending final disposition of the proceeding.”

      . "A petition ... to strike is proper only when the defect in the original judgment appears on the face of the record ____ If the alleged defect in the confessed judgment is based upon a matter dehors the record, the proper approach is to seek to have the court open the judgment.” Equibank, N.A. v. Dobkin, 284 Pa.Super.Ct. 143, 147, 425 A.2d 461, 463 (1981), allocatur denied, May 13, 1981.

      . See footnote 2, supra.

      . See Pa.R.C.P. No. 227 and Pa.R.C.P. No. 227.1.

      . A comparison of two illustrations from the Restatement elucidates the nature of repudiatory conduct:

        Illustration 6 to Section 250: On April 1, A contracts to sell and B to buy land, delivery of the deed and payment of the price to be on July 30. On May 1, A says nothing to B, but on that date he mortgages the land to C as security for a $40,000 loan which is not payable until one year later. A’s mortgaging the land is a repudiation.

        Illustration 4 to Section 251: On May 1, A contracts to sell and B to buy a parcel of land for $50,000, delivery of the deed and payment of the price to be on July 30. C has an interest in the land because C is a mortgagee under a mortgage that A can discharge at any time by payment of the mortgage debt. B has no reasonable grounds to believe that A would commit a breach, B could not treat A’s failure to give assurances [of non-repudiation] as a repudiation, and B has no claim for damages against A.
      In Illustration 4 A can remove the impediment to his future performance under the sales contract with B by paying the mortgage before the scheduled date of his performance under the contract with B. Thus, A has not anticipatorily repudiated his contract with B through conduct rendering him unable or apparently unable to perform. But in Illustration 6 the mortgage (and loan) term of one year extends beyond the scheduled date of A's performance under the sales contract with B, i.e., the mortgage extends beyond the July 30 date for delivery of the deed to B. Thus, by entering into the year-long mortgage A rendered himself unable to perform the contract with B and thereby anticipatorily repudiated the contract with B.

      . Section 255 of the Restatement states that "[w]here a party’s repudiation contributes materially to the non-occurrence of a condition of one of his duties, the non-occurrence is excused.”

      . Section 251 of the Restatement differs from Section 250 (discussed supra) in that Section 250 concerns actual repudiations by the obligor whereas Section 251 concerns the existence or non-existence of reasonable grounds for the obligee to believe that the obligor will repudiate the contract. Under Section 251 an obligor has not yet announced by word or deed that he definitely is repudiating the contract, i.e., that he will not perform when the time for his performance arises under the contract. But the obligor has given the obligee reasonable grounds to believe that he will repudiate the contract at some future time.

      . "Where the sole question is as to the application of the law to the facts or as to the legal effect of the facts, the case is a proper one for a directed verdict.” Corson v. Corson’s, Inc., 290 Pa.Super.Ct. 528, 534, 434 A.2d 1269, 1272 (1981).

      . The parties’ Lease provides as follows:
      Lessor covenants that Lessor is the lawful owner of the [office building] and has the unqualified right to grant this Lease, that Tenant shall have complete and exclusive possession of the premises and if Tenant shall pay the rental and perform all the covenants and provisions of this Lease to be performed by Tenant, Tenant shall, during the term hereof and any extensions or renewals hereof, enjoy quiet and peaceful possession hereunder and Tenant’s right of quiet and peaceful possession shall not be disturbed.

      . See footnote 9, supra.

      . Moreover, the parties' Lease provided that “[i]f the premises at any time be deserted or closed Lessor may enter by force, without liability to prosecution or action therefore, and may distrain for rent and also re-let the premises as agent for Tenant for any unexpired portion of the term and receive the rent therefor and apply it on this lease.”


author: HOFFMAN, Judge: WIEAND, Judge,

text:
    463 A.2d 1036
    COMMONWEALTH of Pennsylvania v. Craig JACKSON, Appellant.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed June 24, 1983.
    Reargument En Banc Denied Aug. 26, 1983.
    Petition for Allowance of Appeal Granted Jan. 20, 1984.

      Stanley P. Stern, Philadelphia, for appellant.
    Thomas R. Quinn, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the evidence was insufficient to support his conviction for robbery and criminal conspiracy. We agree and, accordingly, reverse the judgment of sentence and order appellant discharged.

In reviewing challenges to the sufficiency of the evidence, the test is whether, “viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.” Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983). So viewed, the facts are as follows:

At approximately 8 a.m. on December 15, 1980, the victim was kicked in the rear by appellant as he exited the center door of a trolley at 20th Street and Girard Avenue in Philadelphia. Appellant acknowledged the calcitration, followed the victim off the trolley and punched him in the eye, knocking his glasses to the ground. Appellant was joined by several trolley-riding colleagues who punched and kicked the victim for a few seconds and attempted to snatch a chain from his neck. One member of the group picked up the victim’s glasses and the entire group returned to the trolley. The victim summoned a police officer who stopped the trolley three blocks from the incident and the victim identified appellant and two other group members. Appellant was found guilty in a nonjury trial of robbery and criminal conspiracy arising out of the theft of the victim’s glasses. The lower court denied post-trial motions and sentenced appellant to consecutive one-to-two year terms of imprisonment. This appeal followed.

Appellant contends that the evidence was insufficient to support the lower court’s verdict that he feloniously inflicted bodily injury upon the victim in the course of committing a theft. Specifically, he argues that the Commonwealth has not established that he intended to commit a theft. “A person is guilty of robbery if, in the course of committing a theft, he: ... (iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury____” 18 Pa.C.S.A. § 3701(a)(l)(iv). “An act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission.” Id. at § 3701(a)(2). “One of the elements of robbery is that it be in the course of committing a theft or an attempt to commit a theft, and of course, the burden is upon the Commonwealth to prove theft or an attempt to commit a theft.” Commonwealth v. Thompson, 274 Pa.Superior Ct. 44, 53, 417 A.2d 1243, 1248 (1979). To meet that burden, the Commonwealth must show that the defendant intended to commit or attempt to commit theft. Id. See generally 18 Pa.C.S.A. §§ 901 (attempt), 3901-3931 (theft).

Here, the Commonwealth offered no evidence of appellant’s intent to either commit or attempt to commit a theft. Although appellant assaulted the victim and knocked his glasses to the ground, there is no evidence that appellant picked up the glasses and carried them back to the trolley. Nor do we find it likely that appellant exited the bus and assaulted the victim intending to steal a pair of prescription eyeglasses. Similarly, there is no evidence that appellant tried to grab the victim’s chain despite having ample opportunity to do so while the victim was exiting the trolley ahead of him. Rather, the evidence proves that appellant left the trolley to fight the victim and several friends joined in the ensuing melee. Although this evidence may well be enough to sustain a conviction for simple assault, it is not sufficient to prove robbery. Accordingly, we must reverse the conviction.

Appellant contends that his conviction for criminal conspiracy was also unsupported by the evidence. “[F]or a defendant to be convicted of conspiracy, the Commonwealth must prove his involvement in an agreement to accomplish a criminal objective and the commission of an overt act in pursuance of the conspiracy.” Commonwealth v. Lewis, 276 Pa.Superior Ct. 451, 457, 419 A.2d 544, 547 (1980). See 18 Pa.C.S.A. § 903. The information charged appellant with conspiring to accomplish robbery or theft. As we have already determined, the evidence was insufficient to establish appellant’s intent to commit or attempt to commit theft and thus, insufficient to establish robbery. There being no evidence that appellant intended to commit a theft or robbery, we find no evidence that appellant conspired to commit a theft or robbery and, accordingly, reverse the judgment of sentence.

Judgment of sentence reversed and appellant ordered discharged.

WIEAND, J., files dissenting opinion.

WIEAND, Judge,

dissenting:

Craig Jackson was tried nonjury and was found guilty of robbery and criminal conspiracy. Post trial motions containing general averments of insufficiency of the evidence were denied, and consecutive sentences of imprisonment for not less than one nor more than two years were imposed. This appeal followed. The majority holds that the Commonwealth’s evidence was insufficient to prove that an admitted assault committed upon Thomas Mingo by appellant and his cohorts was committed during the course of a theft. My review of the record suggests otherwise; and therefore, I must respectfully dissent.

The crime of robbery is defined in 18 Pa.C.S. § 3701 which, in pertinent part, provides as follows:

“(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of committing a theft, he:
(iv) inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury;
(2) An act shall be deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit theft or in flight after the attempt or commission.”

A person is guilty of an offense if it is committed by his own conduct or by the conduct of an accomplice. 18 Pa.C.S. § 306(a) and (b)(3). An accomplice is a person who, with the intent of promoting or facilitating an offense, aids, agrees or attempts to aid another in planning or committing it. 18 Pa.C.S. § 306(c)(l)(ii). See also: Commonwealth v. Tate, 485 Pa. 180, 185, 401 A.2d 353, 355 (1979); Commonwealth v. Roux, 465 Pa. 482, 490, 350 A.2d 867, 871 (1976); Commonwealth v. Bryant, 461 Pa. 309, 312-313, 336 A.2d 300, 301 (1975); Commonwealth v. Minnis, 312 Pa.Super. 53, 458 A.2d 231 (1983); Commonwealth v. Darden, 311 Pa.Super. 170, 173, 457 A.2d 549, 550 (1983); Commonwealth v. Plusquellic, 303 Pa.Super. 1, 5, 449 A.2d 47, 50 (1982); Commonwealth v. Cofer, 257 Pa.Super. 528, 531-532, 390 A.2d 1363, 1365 (1978). See also: Commonwealth v. Davenport, 307 Pa.Super. 102, 452 A.2d 1058 (1982).

In determining the sufficiency of the evidence to sustain a conviction, “[a]ll of the evidence must be read in the light most favorable to the Commonwealth and it is entitled to all reasonable inferences arising therefrom. The effect of a motion in arrest of judgment is to admit all the facts which the Commonwealth’s evidence tends to prove.” Commonwealth v. Hazlett, 429 Pa. 476, 478, 240 A.2d 555, 556 (1968), quoting from Commonwealth v. Tabb, 417 Pa. 13, 16, 207 A.2d 884, 886 (1965). Accord: Commonwealth v. Waldman, 484 Pa. 217, 222-223, 398 A.2d 1022, 1024-1025 (1979); Commonwealth v. Barnes, 310 Pa.Super. 480, 483, 456 A.2d 1037, 1038 (1983); Commonwealth v. Plusquellic, supra 303 Pa.Super. at 6, 449 A.2d at 49; Commonwealth v. Bentley, 276 Pa.Super. 41, 44, 419 A.2d 85, 86 (1980); Commonwealth v. Williams, 273 Pa.Super. 578, 582, 417 A.2d 1200, 1201 (1980). “It is well established that the test of the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.” Commonwealth v. Keblitis, 500 Pa. 321, 323, 456 A.2d 149, 150 (1983). See also: Commonwealth v. Bachert, 499 Pa. 398, 402, 453 A.2d 931, 933 (1982); Commonwealth v. Coccioletti, 493 Pa. 103, 107, 425 A.2d 387, 389 (1981); Commonwealth v. Darden, supra 311 Pa.Super. at 172, 457 A.2d at 550; Commonwealth v. Grabowski, 306 Pa.Super. 483, 486-87, 452 A.2d 827, 829 (1982) . “However, it is the province of the trier of the fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983) ; Commonwealth v. Yost, 478 Pa. 327, 332, 386 A.2d 956, 959 (1978); Commonwealth v. Newman, 310 Pa.Super. 493, 496, 456 A.2d 1044, 1045 (1983); Commonwealth v. Wilcox, 310 Pa.Super. 331, 335, 456 A.2d 637, 689 (1983).

With these principles as a steadfast guide, an examination of the evidence presented in the instant case reveals that on the morning of December 15, 1980, Thomas Mingo was taking the trolley to work. While a passenger on the trolley Mingo did not have conversation or physical contact with any other passengers. As he exited the trolley at 20th Street and Girard Avenue in the City of Philadelphia, he was kicked in the rear by Craig Jackson, the appellant. Mingo was then followed from the trolley by appellant and approximately eight black youths. When Mingo turned around to inquire concerning the reason for having been kicked, appellant punched him in the left eye, causing the eye to be cut. Thereafter “the whole group started swinging and some grabbed and kicked at [Mingo].” The incident was narrated by Mingo during direct examination as follows:

“Q. How soon after you were punched by the defendant, did the others jump on you?
A. Immediately.
MR. HYKEL (defense counsel):
Objection____
THE COURT: I will allow it. You may answer the question.
A. I was jumped immediately after that. They started swinging and went through my jacket.
Q. Someone grabbed your chain?
A. Tried to.
Q. Were you standing up at that point or were you on the ground?
A. I was bent over. Once I got hit, I was bent over, in a bent over position.
Q. Were you able to see at this point how many of the group were punching you or jumping you?
A. It was just hands and feet. I couldn’t count how many people were swinging at me.
Q. Did you lose any item from your person as a result of this?
A. Yes.
Q. What?
A. My glasses, the glasses I am wearing now.
Q. Did you feel, sir, how the glasses came to come off your face?
A. Yes. Once I was hit, my eye glasses fell to the ground.
Q. They came off of your face at what point?
A. Once I was hit by the defendant over there.
Q. Approximately how long did this incident take from the time you were struck by the defendant until the group was done?
A. A few seconds. Seconds, i guess.
Q. And what happened after you were done being struck?
A. They grabbed my black frames and they ran back onto the trolley.
Q. Did you see which member of the group grabbed the frames?
A. No, I didn’t.
Q. At this point you didn’t have your glasses on?
A. I didn’t have them on.
Q. Did you see the defendant after the group was done with you, what he did, if anything?
A. He also boarded the trolley.
Q. Would you describe for the Court, sir, where in relation to the other people in this group did the defendant get on the trolley?
A. First.”

Trial transcript, pages 35-38 (emphasis added). Mingo then summoned police assistance and told the police he had been robbed. The trolley was stopped, and appellant was identified and arrested. Prior to the preliminary hearing, appellant and his sister called Mingo by telephone. The sister said she knew where Mingo’s glasses were and promised to get them and return them to Mingo. The glasses were returned to Mingo in a broken condition immediately prior to the start of the preliminary hearing, when Mingo was requested to drop the charges. He refused.

This evidence, in my judgment, was sufficient to prove that appellant and his accomplices had inflicted personal injury upon an innocent victim during the course of committing or attempting to commit a theft. The fact that they were successful in taking only a pair of glasses which had been knocked from the victim during the assault did not preclude an inference of intent to rob which could be drawn by the trier of the fact from the evidence.

Appellant testified that he was a passenger on the trolley and that Mingo bumped into him. Appellant said that he became angry because Mingo didn’t say “excuse me” and thereafter exited the trolley at Mingo’s invitation to fight. Two high school students also testified that' appellant and Mingo engaged in a fist fight by mutual consent. The trial judge, however, expressly rejected this testimony as not credible. He found that the assault had been made upon Mingo by appellant and his accomplices as part of and during the course of an attempt to commit a theft.

The majority rejects this finding of the trial court. Declining to view the evidence and the reasonable inferences therefrom in the light most favorable to the Commonwealth, the majority substitutes its own finding. Thus, it finds that it was not “likely that appellant exited the bus and assaulted the victim intending to steal____ Rather, the evidence proves that appellant left the trolley to fight the victim and several friends joined the ensuing melee.”

If I had been the trial judge, perhaps I would have believed the defense witnesses and found that appellant’s crime rose no higher than the lesser offense of assault. Such, however, is not the standard of appellate review. The majority, in my judgment, has exceeded the proper scope of appellate review and has usurped the function of the trial judge. Hence my dissent. I would hold that the evidence and the reasonable inferences to be drawn therefrom were sufficient to support the findings of the trial court. Therefore, I would affirm the judgment of sentence.

      . Appellant was charged with six alternative counts of robbery. The lower court found him guilty of feloniously inflicting bodily injury in the course of a theft and acquitted him of the other charges.

      . The Commonwealth entered a nolle prosequi on the simple assault information.

      . The count of the information on which the robbery conviction was based charged that Craig Jackson “in the course of committing a theft, feloniously did inflict bodily injury upon another.”

      . A separate information accused Craig Jackson of conspiracy with another person or persons to commit the crimes of robbery and theft and in pursuance thereof the commission of an overt act, i.e., an assault on Thomas Mingo.

      . Mingo had been wearing a gold chain around his neck at the time of the assault.


author: PER CURIAM:

text:
    463 A.2d 1041
    In re ADOPTION OF C.J.L., III. Appeal of C.J.L., Jr.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1983.
    Filed June 24, 1983.
    Clarification Denied Sept. 1, 1983.

      C.J.L., Jr., Pittsburgh, in propria persona.
    Linden George Appel, Wilkes-Barre, for appellee.
    Richard J. Marusak, Hazelton, for participating party.
    Before WIEAND, McEWEN and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order which involuntarily terminated the parental rights of C.J.L., Jr. with regard to his son, C.J.L., III under 23 Pa.C.S.A. § 2511(a)(1). We remand to the Common Pleas Court.

An en banc panel of this court decided in In re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983), that the higher burden of proof of clear and convincing evidence required in involuntary termination of parental rights cases by the United States Supreme Court in Santosky v. Kramer, Commissioner, Ulster County Department of Social Services, et al, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), is to be applied in all cases which had not been finally decided on appeal at the time the Santosky opinion was filed. In re: Adoption of M.E.T., supra, also held that when a trial court had terminated the rights of a parent based on a preponderance of the evidence, and an appeal therefrom was pending at the time Santosky was filed, the case must be remanded to the trial court for further proceedings so that the trial court may determine whether the evidence presented meets the clear and convincing standard.

In the instant case, the Common Pleas Court Judge did not have the benefit of the decision of the Santosky decision at the time that the decree of termination was entered, and it is not clear from the record whether the Common Pleas Court Judge applied the “clear and convincing standard”. Thus, we remand this case to the trial court so as to enable compliance with the directives of In re: Adoption of M.E.T., that the trial court should determine,

after hearing arguments of counsel, whether new evidentiary hearings are required. If the court is convinced that counsel would have tried the case differently had it known that a clear and convincing evidence standard would be applied, or if the court concludes that the evidence should be expanded and/or brought up to date, then it should schedule new evidentiary hearings. If, on the other hand, the court is convinced that new evidentiary hearings are not required, the court need only reconsider its prior findings in light of the clear and convincing standard and modify those findings as necessary.

Id., 313 Pa.Superior at 323, 459 A.2d at 1251.

So ordered. Jurisdiction is relinquished.

      . When our review of the record convinces us that the standard of the preponderance of the evidence has not been met, we need not remand and the order of termination will be reversed outright. In the instant case, the grounds for the termination were established by a preponderance of the evidence and, in fact, it even seems that the grounds were established by clear and convincing evidence. Despite this observation, the determination of whether the evidence meets the clear and convincing standard is a decision for the trial court.

      . The decree of termination in this case was filed on December 18, 1981, and the court dismissed exceptions filed by C.J.L., III on February 12, 1982. Santosky, supra, was not filed until March 24, 1982.