author: SPAETH, President Judge:

text:
    498 A.2d 1331
    Francy KURIGER, Appellant, v. Lynn CRAMER.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Sept. 13, 1985.

      Judith L. Jones, Easton, for appellant.
    Before SPAETH, President Judge, and CIRILLO and SHOYER , JJ.

       Honorable Kendall H. SHOYER, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   SPAETH, President Judge:

This is an appeal from an order denying appellant’s motion to remove a compulsory non-suit. We agree with appellant that the trial court erred in entering the non-suit, and therefore reverse and remand for proceedings consistent with this opinion.

The facts must be stated in the light most favorable to appellant, for she was the plaintiff below. So stated, they are as follows.

Appellant rented a mobile home from appellee. The term of the lease was from January 10, 1982, through January 10, 1983, and the rent was $225.00 per month; appellant paid a security deposit of one month’s rent. N.T. at 51. She lived in the mobile home with Robert Hamilton, the couple receiving regular weekend visits from Hamilton’s two children. N.T. 2, 30. When appellant moved in, the heat would not go on when the thermostat was set. Hamilton told appellee about this, and appellee said that the heat could be turned on my pushing a “reset” button. N.T. at 4. Throughout the winter, however, the heating system operated erratically, and twice the pipes froze. N.T. 4-5. In September and October, when the need for heat again arose, the system broke down altogether. Hamilton testified:

Q. Could you describe what difficulty you noted when you first began using the heating system in the beginning of this winter?
A. Well, it was different times in September that it was cold enough to use it. And when we first started it up by hitting the reset button, it would come on. But it would only stay on for about an hour and shut itself down. And then no matter how many times I hit the reset button, it wouldn’t come on until at least the following day—sometimes two or three days later. And when it would, it would first fill the trailer up with black smoke. And then after clearing out the smoke, the heater would run itself for about an hour and then shut down again.
Q. Now, you’re describing what occurred during September and October of 1982?
A. Yes.
Q. Okay. What happened after October or during October of 1982 to change that situation?
A. Well, around October the 15th pushing the reset button for the furnace wouldn’t make it run any more. It just wouldn’t do anything.
Q. How long did that condition last?
A. Well, it lasted with no heat at all until November the 1st when I went to Mr. Cramer [appellee] and asked him if he was going to fix it. And when he agreed he would, I gave him the rent check for November. And he came down and said that a filter which is outside of the fuel tank was dirty. So, he cleaned it, started the furnace up. The trailer filled with smoke. It ran. He left, but it only ran for about—matter of a few hours and quit.
N.T. at 5-6.

During this period, appellant and Hamilton kept warm by wearing heavy clothing and by closing off all rooms except the living room, which they heated with borrowed kerosene heaters. N.T. at 8. Appellee made some attempt to repair the heating system by such expedients as priming, and then replacing, the fuel pump. N.T. at 9-10. Hamilton’s brother, who had some training in furnace repair, also attempted to repair the system. N.T. at 32-33. Neither Hamilton nor appellee called a professional repairman.

In December 1982 appellant withheld the month’s rent; she apparently did not place it in escrow. N.T. at 12. She then asked Lehigh Valley Legal Services for assistance. On December 17, 1982, counsel for appellant notified appellee, by letter, that “lack of heat or other essentials constitutes a breach of [an] implied warranty of habitability,” and requested appellee to take “immediate steps to remedy the heating situation.” Plaintiff’s Exhibit 1. On December 18 or 19, 1982, appellee left a note at the mobile home informing appellant and Hamilton that he had removed both the control box from the thermostat and the water valve; the removal of these devices completely shut off heat and water to the mobile home. N.T. at 14.

On December 22, 1982, appellant filed her complaint. Although filed in equity, the complaint included a count in assumpsit and a count in trespass. Count I, in assumpsit, alleged that appellee’s failure to remedy the heating system, after repeated notice, constituted a breach of the implied warranty of habitability implied in all residential leases by operation of law. On this count, appellant sought damages of $900 in the form of an abatement of rent, as well as such further abatement as the court might deem appropriate after the date the complaint was filed. Count II, in equity alleged that irreparable harm would result from a continuation of the lack of heat and hot water. On this count, appellant sought a preliminary injunction, pending hearing, and then a permanent injunction, and also, unspecified damages, a waiver of bond requirements and costs, and such other relief as the court deemed appropriate. Count III, in trespass, alleged that appellee’s action in removing the thermostat and water valve constituted a wrongful eviction. On this count, appellant sought unspecified actual damages, punitive damages of $5,000, and such other relief as the court deemed appropriate. R. at 1.

The trial court granted appellant’s motion for a preliminary injunction, and enjoined appellee, pending hearing, from interfering with appellant’s quiet enjoyment and from withholding heat and water. R. at 2. On December 23rd and 24th, appellee replaced the thermostat’s control box and the water valve, although appellant remained without hot water. N.T. at 16. On December 29, after a hearing, the trial court ordered that the preliminary injunction should remain in effect until time of trial; that the case was set for non-jury trial during the week of January 17, 1983; and that the rent should be placed in escrow. R. at 5.

The trial was held on January 19, 1983. Appellant was still in possession, although the lease had expired and she had received notice that it would not be renewed. Defendant’s Exhibit “A”; N.T. at 53-55. The trial court heard appellant’s evidence, consisting of the testimony of Hamilton, Hamilton’s son Duane, and appellant. At the close of appellant’s case, upon motion of appellee, the court entered a compulsory nonsuit. On January 31, appellant filed a motion to remove the nonsuit. R. at 9. On May 10, 1983, the trial court sitting en banc entered an order denying the motion. R. at 21. Appellant appeals from this order.

The standard governing the entry of a compulsory non-suit is the same in equity as at law, see Pa.R.C.P. 1512, and is well-established:

A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together [with] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established.
Morena v. South Hills Health System, 501 Pa. 634, 638, 462 A.2d 680, 682-83 (1983) (citations omitted).

See also Fisher v. Findlay, 319 Pa.Super. 214, 215-16, 465 A.2d 1306 (1983), citing Jurich v. United Parcel Service of New York, 239 Pa.Super. 306, 361 A.2d 650 (1976) (“A compulsory nonsuit may be entered only in a clear case where the facts and circumstances lead unerringly to but one conclusion.”); 1 Goodrich-Amram 2d § 231(b)(4), citing Sargeant v. Ayers, 358 Pa. 393, 57 A.2d 881 (1948) (Compulsory nonsuit entered at the end of the plaintiffs case because of failure to prove a prima facie case should be entered “only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion ... after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.”) The reason for this standard is the drastic effect of entering a compulsory nonsuit: it forecloses the plaintiffs right to begin a new action upon the same cause of action. See Pa.R.C.P. 231(b); 1 Goodrich-Amram 2d § 231(b)(5).

The trial court rested its decision to enter a compulsory nonsuit primarily on the ground that “plaintiffs [appellant’s] evidence is clearly insufficient in that her remedy at law is complete and adequate.” Order of tr. ct. at para. 2. It is true that the assumpsit and trespass counts of the complaint should have been heard, if at all, at law. In the ordinary case filed in equity, the defendant, by preliminary objection, raises the issue of an adequate non-statutory remedy at law. See Pa.R.C.P. 1509(c). Here, the trial court, and not the defendant, first raised the issue, see N.T. at 58, but there is authority for the proposition that whenever the existence of a legal remedy becomes apparent, the court may sua sponte raise the issue of whether the action should be transferred to the law side. See Carelli v. Lyter, 430 Pa. 543, 547, 244 A.2d 6, 8 (1968); 5 Goodrich-Amram 2d § 1509(c):2 at 127. Here, however, the trial court did not transfer but dismissed appellant’s action, and in that, the court erred.

Pa.R.C.P. 1509(c) provides:

(c) The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. If not so pleaded, the objection is waived.

And we have held that

a complaint in equity cannot properly be dismissed because there exists an adequate remedy at law. Such an objection may be raised by preliminary objections, but if they be sustained, the court is compelled by Pa.R.C.P. 1509(c) to certify the action to the law side of the court. In this respect, the court is given no option; certification to the law side is mandatory. 5 Goodrich-Amram 2d § 1509(c):2. See: Klemow v. Time Incorporated, 466 Pa. 189, 194-195, 352 A.2d 12, 15 (1976), cert. denied, 429 U.S. 828, 97 S.Ct. 86, 50 L.Ed.2d 91 (1976); Shaffer v. Dooley, 452 Pa. 414, 416, 308 A.2d 597, 598 (1973); Carelli v. Lyter, 430 Pa. 543, 546, 244 A.2d 6, 8-9 (1968); Aughenbaugh v. North American Refractories Co., 426 Pa. 211, 218, 231 A.2d 173, 177-178 (1967); Wilson v. King of Prussia Enterprises, Inc., 422 Pa. 128, 133, 221 A.2d 123, 126 (1966).
Blair v. Guthrie Development Corp., 305 Pa.Super. 292, 296, 451 A.2d 537, 539 (1982).

See also McGovern v. Spear, 463 Pa. 269, 273, 344 A.2d 826, 828 (1975) (where activity sought to be enjoined stopped prior to filing of complaint in equity, trial court erred in entering summary judgment as appellants had remedy at law for harm allegedly suffered and court should have certified action to the law side.) It is true that a trial court may properly dismiss a complaint filed in equity where a pending action at law alleges the same facts, for in such a case the plaintiff is not foreclosed from pursuing his remedy at law. See Myshko v. Galanti, 453 Pa. 412, 415, 309 A.2d 729, 731 (1973); Herzog v. Witco Chemical Corp., 447 Pa. 202, 205, 290 A.2d 256, 258 (1972). Here, however, no such action was pending.

The trial court did not entirely rest its decision to enter a compulsory nonsuit on the ground that appellant had an adequate remedy at law. It also found:

3. Since plaintiff has not introduced evidence of out-of-pocket expenditures, her proof is also insufficient regarding legal damages.
4. It is true that the plaintiff has been deprived of full enjoyment and use of the premises. But, she is in default of her rent. In our opinion, the amount of rent withheld to date is adequate to reimburse her for the general “habitability” loss sustained by her to date.
Order of tr. ct. at paras. 3, 4.

These findings, however, do not support the court’s dismissal of appellant’s assumpsit count.

A warranty of habitability is implied in all residential leases in this Commonwealth, by the terms of which the landlord warrants that the leased premises will be free of defects “of a nature and kind which will prevent the use of the dwelling for its intended purpose to provide premises fit for habitation by its dwellers.” Pugh v. Holmes, 486 Pa. 272, 289, 405 A.2d 897, 905 (1979). A breach of the implied warranty may be the basis of a complaint, as well as a defense or counterclaim to a landlord’s suit for rent or possession. See Fair v. Negley, 257 Pa.Super. 50, 54, 390 A.2d 240, 242 (1978). To establish a breach of the implied warranty of habitability, the tenant must show that “he or she gave notice to the landlord of the defect or condition, that he (the landlord) had a reasonable opportunity to make the necessary repairs, and that he failed to do so.” Pugh v. Holmes, supra, 486 Pa. at 290, 405 A.2d at 906. The damages suffered as a result of the breach are to be measured by an abatement of rent equal to “the percentage [of the rent] which reflects the diminution in use for the intended purpose[],” id., 486 Pa. at 297, 405 A.2d at 909, and “there should be no doubt that recovery will not be precluded simply because there is some uncertainty as to the precise amount of damages incurred[,]” id. Appellant’s assumpsit count alleged that there was a continuing and serious malfunction of the heating system; that appellee as the landlord had been given repeated notice of the problem; and that he made no adequate repairs. Moreover, appellant alleged specific damages of $900, representing a diminution in the value of the leased premises of 25% in January, February, March, and April, 1982, and 100% in October, November, and December, 1983. R. at 1, U 14-23. These allegations stated a cause of action under Pugh v. Holmes, supra. The trial court should therefore have certified the action for trial on the law side.

Appellant’s trespass count, for “wrongful eviction,” did not state a good cause of action, and as to this count we affirm the order of the trial court.

Appellant’s trespass count alleged:

31. The Pennsylvania Landlord and Tenant Act, 68 P.S. § 250.501 et seq., and the Pennsylvania Rules of Civil Procedure for Justices of the Peace, Rule 501, et seq. provide for the exclusive remedy for the recovery of possession of real property. The actions of the defendant described above on December 18, 1982, are intentional actions of the defendant and are known to him as being contrary to the laws of the Commonwealth of Pennsylvania.
32. By his actions of December 18, 1982, the defendant has constructively evicted the plaintiff from the leased premises.
33. The actions of defendant on December 18, 1982, constitute a wrongful eviction not sanctioned by the laws of the Commonwealth of Pennsylvania.
R. at 1.

In considering the sufficiency of these allegations, we do not reach appellant’s contention that the Pennsylvania Landlord and Tenant Act, 68 Pa.C.S. § 250.501 et seq., and rules implementing it constitute the exclusive means by which a landlord may recover possession of leased premises, for whether or not appellee used wrongful means in resorting to self-help instead of to the remedies provided by the Act, he did not “evict” appellant from the leased premises.

An eviction is an act by a landlord or a third person that interferes with a tenant’s possessory right to the demised premises. See Oakford v. Nixon, 177 Pa. 76, 81, 35 A. 588, 589 (1896). See also 49 Am.Jur.2d Landlord and Tenant § 300 (1970). If that act is wrongful, the tenant may sue for damages in trespass or assumpsit. See Kelly v. Miller, 249 Pa. 314, 316-17, 94 A. 1055, 1056-57 (1915) (“... there is an implied covenant for the quiet enjoyment of the demised premises, and it is settled in this State that any wrongful act of the landlord which results in an interference of the tenant’s possession, in whole or in part, is an eviction for which the landlord is liable in damages to the tenant.”) See also Minnich v. Kauffman, 265 Pa. 321, 322-23, 108 A. 597, 598 (1919); Schienle v. Eckels, 227 Pa. 305, 307, 76 A. 15, 16 (1910). Formerly, an eviction required that the landlord enter the leased premises and physically expel the tenant. The modern view does not require an eviction by physical force. Rather, the court may find that a “constructive eviction” has occurred where a landlord “deprives a tenant of the beneficial enjoyment of the demised premises and which manifests an intention to hold adversely to the tenant.” Walnut-Juniper Co. v. McKee, Berger & Mansueto, Inc., 236 Pa.Super. 1, 5, 344 A.2d 549, 551 (1975). See also Adler v. Sklaroff 154 Pa.Super. 444, 447, 36 A.2d 231, 233 (1943); Stern, 1 Trickett on the Law of Landlord and Tenant in Pennsylvania (3rd ed. rev. 1973) § 292, 293; 49 Am.Jur.2d supra at § 300. Where, as here, a landlord withholds heat, in breach of a lease covenant, our courts have found a constructive eviction that gives rise to an action for damages by the tenant. See e.g., Schienle v. Eckels, supra; McSorley v. Allen, 36 Pa.Super. 271 (1908). See also Stern, 1 Trickett on the Law of Landlord and Tenant in Pennsylvania, supra at § 296.

The theory of “constructive eviction,” however, is not available to appellant. “To constitute a constructive eviction, the interference by a landlord with the possession of his tenant or with the tenant’s enjoyment of the demised premises must be of a substantial nature and so injurious to the tenant as to deprive him of the beneficial enjoyment of a part or the whole of the demised premises, ... to which the tenant yields, abandoning the possession within a reasonable time.” But, “[hjowever much the tenant may be disturbed in the beneficial enjoyment of the premises by the landlord’s wrongful act, there is no constructive eviction if he continues in possession of the whole of the premises. Possession must be given up by the tenant in consequence of the landlord’s acts, ...” 49 Am.Jur.2d supra at § 302, 303. See also Chelten Avenue Building Corp. v. Mayer, 316 Pa. 228, 232, 172 A. 675, 677 (1934) (“In order that a tenant may rely on constructive eviction ... he must abandon the premises____”) (collecting cases.) Since appellant did not abandon the leased premises, but remained in possession and withheld rent, she may not recover on a theory of “constructive eviction.”

It is of course true that while appellee did not actually or constructively evict appellant, nevertheless, if appellant’s allegations prove true, appellee did greatly diminish the value of the leased premises. This is precisely the harm, however, for which appellant seeks recovery on the theory of a breach of the implied warranty of habitability.

The order of the trial court refusing to remove the compulsory nonsuit is affirmed as to Counts II and III of appellant’s complaint, but as to Count I is reversed, and the case is remanded with instructions to certify Count I to the law side for trial.

      . See citations and discussion infra.

      . Under the terms of the lease, appellant was responsible for providing fuel for both the heating and hot water system. She testified that at the relevant times fuel was available. Plaintiffs Exhibit 9; N.T. at 45-48A.

      . Relations between appellant and appellee were apparently strained. On September 1, 1982, appellee filed a Landlord/Tenant complaint against appellant in district court. After hearing, the district justice entered judgment for possession in favor of appellee and awarded damages of $33.10. Appellant filed a notice of appeal. When appellee failed to respond, judgment of non pros was entered in appellant’s favor on November 22, 1982. R. at 10. After appellant filed the complaint that is the subject of this appeal, on December 22, 1982, see infra, appellee counterclaimed and sought actual damages of $1,885.00, punitive damages of $5,000.00, and an order for possession. R. at 6. On February 8, 1983, the district justice issued an order for possession that bore the same docket number as the complaint for which judgment of non pros had previously been entered. R. at 10. On February 18, 1983, the trial court ordered that the district justice’s order for possession be set aside. R. at 11. The trial court did not address appellee’s counterclaim, and it is therefore not at issue here.

      . See infra n. 5.

      . The record contains no indication whether appellant complied with the order to place the rent in escrow.

      . See infra n. 10.

      . An appeal will not lie from an order entering a compulsory nonsuit, but only from an order denying a timely motion to remove the nonsuit. See 9 Standard Pennsylvania Practice § 58:61, 65; 1 Goodrich-Amram 2d § 231(b):4.1.

      . Pa.R.C.P. 230.1, "Compulsory Nonsuit at Trial,” became effective January 1, 1984, and so does not apply here. As the comment to the rule notes, however, the rule “for the most part continues the prior practice.” The rule was necessitated by the repeal of 12 Pa.C.S. § 645, effective June 27, 1980, which, however, remained in effect until January 1, 1984, see 42 Pa.C.S. § 20003(b), and therefore applies here. It provided in pertinent part:
      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; ....

      . As we have mentioned, appellant’s complaint in equity included counts in assumpsit and trespass. Although “there is case law to the effect that an action in equity may be joined with an action at law where each action turns on the same legal question," 14 Standard Pennsylvania Practice § 80:5 at 357, the trial court did not address the question of possibly improper joinder.

      . The trial court first raised the issue of the existence of an adequate remedy at law. At the close of appellant’s case, the court asked whether appellee wished to make any motions. Counsel for appellee responded:
      MS. SCHNELLER: Your Honor, at this point I would like to move that the complaint against Mr. Cramer stating that he—the injunction against Mr. Cramer—the temporary injunction be dismissed and that a further injunction not be entered on the grounds that he has taken efforts to repair and restore the heating system. N.T. at 56.
      In response, the trial court asked counsel for appellant to present authority in support of her contention that injunctive relief was appropriate. The colloquy continued:
      MS. JONES: Your Honor, it’s my understanding that injunctive relief in Pennsylvania can be issued upon the showing of several things, one, irreparable harm to the plaintiff, two, whether the relief sought would have benefit [sic ] the plaintiff and do minimal or no harm at all to the defendant and that plaintiff has a reasonable chance of succeeding ultimately on the merits of the action before the Court. The complaint before the Court—
      THE COURT: Well, there’s one that precedes all of that, and that is that there’s no adequate remedy at all.

        MS. JONES: Thank you, Your Honor.
      THE COURT: That’s the problem I’m at. I don’t know of any Pennsylvania cases that have held that a violation of a lease is grounds for equitable relief.
      N.T. at 58.
      Thus, while the trial court chose to treat the defense motion quoted above as a motion for a compulsory nonsuit, see Order of tr. ct. at 1; see supra note 6, the transcript makes clear that the trial court first raised the issue of the existence of an adequate remedy at law sua sponte.

      . It is important to note that the adequate remedy at law at issue here is non-statutory. Had appellee’s claim been that a remedy had been provided by the legislature, then the trial court would have been correct in dismissing the action. See Pa.R.C.P. 1509(b); 5 GoodrichAmram 2d § 1509(b):(l) at 118-19; Peitzman v. Seidman, 285 Pa.Super. 228, 427 A.2d 196 (1981).

      . The trial court relied on our opinion in Easton Theatres v. Wells Fargo Land and Mortgage Co., 265 Pa.Super. 334, 401 A.2d 1333 (1979), appeal dismissed as moot 498 Pa. 557, 449 A.2d 1372 (1982), in support of the proposition that a trial court may dismiss a complaint in equity sua sponte because it finds that an adequate remedy at law exists. See Order of tr. ct. at 2. The cases upon which we rely in Easton Theatres, however, made clear the specific conditions under which a trial court may do so, which are not present here.

      . Although the trial court did not explain its decision to enter a nonsuit on the trespass count of the complaint, we may affirm a correct decision of the trial court on any basis. See Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 359, 437 A.2d 417, 424 (1981), and authorities cited therein.

      . No Pennsylvania appellate decision has addressed the question of whether a landlord’s use of self-help, rather than legal process, to evict a tenant may give rise to a cause of action in trespass by the tenant against the landlord. We note, however, that other jurisdictions have recognized such a cause of action. See, e.g., Mendes v. Johnson, 389 A.2d 781, 787 (D.C.App.) (1978) (“A tenant has a right not to have his or her possession interfered with except by lawful process, and violation of that right gives rise to a cause of action in tort.”); Malcolm v. Little, Del., 295 A.2d 711, 714 (1972) (“The right ... not to have peaceable possession interfered with except by lawful process, [if violated] gives rise to [a] cause of action in tort.") We note further that in Pennsylvania landlords have been enjoined from proceeding with self-help evictions on the basis that their exclusive remedy was an action in ejectment, or by summary process as provided for by the Pennsylvania Landlord and Tenant Act, 68 Pa.C.S. 250.101 et seq. and the related Pennsylvania Rules of Civil Procedure for District Justices, 501-82. See Wofford v. Vavreck, 22 D. & C.3d 444, 450-52 (1981), and authorities cited therein.

      . A court may also find that a tenant who remains in possession has been partially evicted if a landlord disturbs the tenant’s possessory interest in only a part of the leased premises. See, e.g., Kelly v. Miller, supra (landlord’s interference with tenant’s use of part of leased theater is partial eviction). See generally, 49 Am.Jur.2d supra at § 301; Annot., 41 A.L.R.2d § 9 at 1426 (1955) (contrasting "an actual eviction” in which "the possession is interfered with” with a “constructive eviction” in which “possession is not physically interfered with.”); Annot., 20 A.L.R. 1369 (1922).

      . In Pugh v. Holmes, supra, our Supreme Court explicitly stated that an action for breach of an implied warranty of habitability, as well as the remedy provided by the Rent Withholding Act, 35 Pa.C.S. § 1700-1, supplemented rather than replaced a tenant’s cause of action for constructive eviction. Id., 486 Pa. at 286, 405 A.2d at 904. Nevertheless, the inadequacy of constructive eviction as a tenant’s remedy, primarily because of the abandonment requirement, provided an impetus to the development of more efficacious statutory and common law remedies. See Comment, "The Pennsylvania Project—A Practical Analysis of the Pennsylvania Rent Withholding Act," 17 Villanova L.Rev. 821, 825 (1972).

      . Appellant also argues on appeal that the trial court erred in entering a nonsuit on Count II of her complaint—the equity count. At oral argument, however, counsel for appellant informed the court that appellant had moved. Her request for injunctive relief is therefore moot, and we may not address it on appeal. See Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 317, 444 A.2d 1190, 1193 (1982) quoting O’Donnell v. Pennsylvania Liquor Control Board, 158 Pa.Super. 533, 536, 45 A.2d 369, 370 (1946) (citations omitted) ("It is well established that ‘[w]e cannot enter judgments or decrees to which effect cannot be given---- The rule is that where ... pending an appeal, an event occurs which renders it impossible for the appellate court to grant any relief, the appeal will be dismissed.") While Count II also contains a claim for damages, and this might in some circumstances avoid mootness, see McGovern v. Spear, supra, here appellant seeks damages for the same behavior in Count I.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    498 A.2d 1339
    Mary BORRELL, Appellee, v. William B. BORRELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1985.
    Filed Sept. 13, 1985.

      Bohdan J. Zelechiwsky, Bethlehem, for appellant.
    Cregg E. Mayrosh, Hellertown, for appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   CAVANAUGH, Judge:

William B. Borrell appeals to this court from the order of Northampton County Court of Common Pleas directing him to pay support to his wife, appellee, Mary Borrell, in the amount of $157.00 per week. Appellant contends that this order contravenes the terms of a separation agreement previously entered into by the parties and, accordingly, should be vacated. Alternatively, appellant argues that the trial court erred in refusing to award a new hearing on the grounds of after-discovered evidence put forth by Mr. Borrell.

At the time of the hearing in October, 1983, the parties were husband and wife. They had ceased living together in the same household and, on August 20, 1981, had entered into a Separation Agreement. Pursuant to that agreement, the appellant agreed as follows:

13. HUSBAND agrees to pay alimony to WIFE in the amount of One Hundred Twenty-Five ($125.00) Dollars every two (2) weeks, until August 1, 1982. Should HUSBAND fail to make payment under this Agreement, the entire balance shall be due and payable. Alimony payments will not be extended or increased beyond August 1, 1982.

Appellant met these obligations and continued to make payments voluntarily until May, 1983.

On July 13, 1983, appellee filed a petition for spousal support in the court below. Following a hearing, the court entered the order subjudice awarding appellee-wife $157.00 per week. In its opinion in support of that order, the court opined that it had not considered the Separation Agreement in making its decision because the Agreement by its terms did not provide for enforcement through an action for support. Lower ct. op. at 2 (citing Pa.R.C.P. 1910.1(b)(1)(c) (“The rules of this chapter [relating to actions for support] shall not govern a contract or agreement unless the contract or agreement provides that it may be enforced by an action in accordance with these rules.”) Additionally the support court noted that the husband had presented no evidence that the Separation Agreement had been incorporated into a decree for divorce. “Absent such an incorporation, or a provision for enforcement under an action for support, the separation agreement cannot be considered in these proceedings.” Lower ct. op. at 2 (citing Guerin v. Guerin, 296 Pa.Super. 400, 442 A.2d 1112 (1982)). Alternatively, the court noted in a footnote, even if the agreement were considered it would be disregarded on the grounds that the wife was not counselled with respect to the agreement nor did she enter into it voluntarily. Lower ct. op. at 2 n. 2 (citing Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983)).

The initial question before this court is whether the support hearing court ought properly to have considered the Separation Agreement. We believe that it should have. It is firmly settled that

[u]ntil and unless the terms of a private agreement have been embodied in a court order, however entered, whether by consent or not, the holding of Commonwealth ex rel. Jones v. Jones, 216 Pa.Superior Ct. 1, 260 A.2d 809 (1969), is clear: a private support agreement that has not been entered as a court order may not be enforced as a support order but may only be the subject of a law suit, like any other private agreement.

Guerin v. Guerin, 296 Pa.Super. at 403-04, 442 A.2d at 1113 (quoting Commonwealth ex rel. Durso v. Durso, 292 Pa.Super. 94, 99-100, 436 A.2d 1021, 1024 (1981) (Spaeth, J., concurring)). An apparent exception to this general rule is created by the Rules of Civil Procedure which provide that the procedures for court-ordered support matters may apply to private agreements if the agreement itself specifies that it may be enforced according to those rules. See Pa.R.C.P. 1910.1(b)(1)(c). See also Guerin, 296 Pa.Super. at 404 n. 3, 442 A.2d at 1114 n. 3.

In Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983), the father-husband appealed from an order denying his petition to reduce a child support order. The support order had been entered after the father had agreed, as part of a separation agreement, to pay child support of $120.00 per week. The agreement was subsequently entered as the court’s order. In ruling on the petition to reduce, the lower court held that the father was bound by the separation agreement. Id., 311 Pa.Superior Ct. at 497, 457 A.2d at 1292 (citing Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981)). On appeal, the father argued that the lower court lacked subject matter jurisdiction to consider the separation agreement.

Following a review of the pertinent case law, this court ruled that the support court properly considered the parties’ separation agreement. In support of that conclusion the court reasoned:

We are especially persuaded to this conclusion by Brown v. Hall, supra, where, as we have discussed, the Supreme Court consolidated a support action with an action upon a private agreement, and, having held the agreement enforceable, vacated the order entered in the support action. The course that litigation follows will depend upon choices made by the parties. It may happen that the party who has been promised support in a separation agreement may bring an action for specific enforcement of the agreement. Brown v. Hall, supra; Guerin v. Guerin, supra; Commonwealth ex rel. Roviello v. Roviello, supra. But it may also happen that the party obligated to pay the support will take the initiative by filing a petition to reduce and remit arrearages. Nothing should turn on which party acts first. The party obligated by the separation agreement to pay support should not be permitted to avoid the principle established in Brown v. Hall, supra — in other words, should not be permitted to escape his support obligation as provided in the separation agreement — by beating the other party “to the punch,” and filing a petition to reduce and remit before the party owed support files an action for specific performance.

Millstein, 311 Pa.Super. at 505-06, 457 A.2d at 1296 (citing Brown v. Hall, 495 Pa. 635, 435 A.2d 859 (1981); Guerin v. Guerin, 296 Pa.Super. 400, 442 A.2d 1112 (1982); Commonwealth ex rel. Roviello v. Roviello, 229 Pa.Super. 428, 323 A.2d 766 (1974)).

We are likewise persuaded to a similar conclusion in the present matter, namely, that the support hearing court ought to have considered the parties’ Separation Agreement before awarding support to Mrs. Borrell. Notwithstanding the interpretation given to Pa.R.C.P. 1910.-1(b)(1)(c) by the lower court, it makes more sense in terms of judicial economy to resolve the support question in light of all relevant information including private agreements reached by the litigants. We therefore construe Pa.R.C.P. 1910.1(b)(1)(c) to apply only to those cases in which one party brings an action to enforce a private agreement in the first instance. It does not control where, as here, the party responding to the support action offers in his defense a contract or agreement entered into by the parties.

Alternatively, the lower court stated, “[e]ven assuming, arquendo, that we were to consider the separation agreement, this would not affect the outcome of our decision. ... In the present case, the transcript is replete with credible testimony of a psychologist, a minister, and the plaintiff [wife] herself, that her signing the separation agreement was neither voluntary nor counseled.” Lower ct. op. at 2 n. 2. This conclusion was based on language from Millstein and Brown where the court suggested that a separation agreement could be disregarded if that agreement was the product of an uncounseled, one-sided bargain. See Brown, 495 Pa. at 643, 435 A.2d at 863; Mill-stein, 311 Pa.Super. at 507, 457 A.2d at 1297.

The rule of Brown and Millstein was precipitated by Bria v. Bria, 95 Dauph. 358 (1973), aff'd. per curiam, 464 Pa. 247, 346 A.2d 542 (1975). In Bria,

the chancellor refused to grant specific enforcement of a provision in a separation agreement obligating the father to pay $43.00 per week for support of his adopted daughter because support in the amount of $31.00 per week, ordered by the support court, was adequate and appropriate.

Brown v. Hall, 495 Pa. at 642-43, 435 A.2d at 862-63. The court in Brown, holding that the support hearing court should consider the separation agreement, sought to reconcile Bria where the agreement was disregarded. The court noted that in Bria, “the uncounseled husband thought he was required to sign the onerous agreement prepared by his wife’s attorney in order to obtain a divorce. In this case \Brown ] there is a nineteen paragraph separation agreement covering all aspects of the economic relationships of the parties, not a one-sided bargain, and both parties were represented by counsel throughout the entire negotiations.” Brown, 495 Pa. at 643, 435 A.2d at 863. The court then reached the following conclusion:

In the absence of an uncounseled, one-sided bargain as in Bria, and where no one argues that $90 per week is inadequate to support the children, we must enforce the parties’ intention as mutually expressed in the separation agreement. As the chancellor here wrote:
A holding to the contrary would serve to illegitimize future separation agreements and encourage a party to promise anything to obtain a divorce, knowing he will never be bound by it, even when the promise is in writing and for valid consideration. Needless to say, such a holding would also serve to shake the very foundations of contract law and the sanctity of a bargain made between two parties dealing at arm’s length.

Brown, 495 Pa. at 643-44, 435 A.2d at 863 (footnote omitted) (quoting Brown v. Hall, 27 Cum.LJ. 340, 349-50 (1977)).

The Separation Agreement signed by the Borrells contains the following clause:

19. The provisions of this Agreement have been fully explained to the parties by their respective counsel and each party acknowledges that the Agreement is fair and equitable.

The lower court concluded that, contrary to the plain language of this paragraph, Mrs. Borrell was not counselled.,

Initially we must note that appellee testified at the support hearing that she went to her own attorney’s office to sign the agreement and we observe further that she does not dispute her husband’s allegation that Mrs. Borrell’s own attorney drafted that agreement, as evidenced by the fact that the agreement appears on her attorney’s stationery. Moreover, the lower court erred by looking outside the terms of the written agreement. It is familiar contract law that

“[w]hen a written contract is clear and unequivocal, its meaning must be determined by its contents alone. It speaks for itself and a meaning cannot be given to it other than that expressed. Where the intention of the parties is clear, there is no need to resort to extrinsic aids or evidence.” Hence, where language is clear and unambiguous, the focus of interprettion is upon the terms of the agreement as manifestly expressed, rather than as, perhaps, silently intended.

Steuart v. McChesney, 498 Pa. 45, 49, 444 A.2d 659, 661 (1982) (quoting East Crossroads Center, Inc. v. Mellon- Stuart Co., 416 Pa. 229, 230-31, 205 A.2d 865, 866 (1965)). See also In re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305 (1977); Litwack v. Litwack, 289 Pa.Super. 405, 433 A.2d 514 (1981). It is equally well settled that

[t]he essence of contract law is the objective intent of the parties and where there has been no allegation of mistake, fraud, overreaching or the like, it is not the function of the court to redraft a contract to be more favorable to a given party than the agreement he chose to enter. Harris v. Dawson, 479 Pa. 463, 468, 388 A.2d 748, 750 (1978). When an agreement is read aloud to both parties before its execution and a party testifies that he simply neglected to read the contract before signing, such testimony indicates carelessness and unilateral mistake, not fraud, and the parties will be legally bound by the written agreement. Kay v. Kay, 460 Pa. 680, 334 A.2d 585 (1975). “It falls stale upon the ear to be told that a formal contract was not read, or was hurriedly prepared, or was signed in haste. Such things are no ground for reforming or invalidating a contract.” Thrasher v. Roth-rock, 377 Pa. 562, 105 A.2d 600, 604 (1954) [ (Opinion of the Trial Court) ].

Brokers Title Co. v. St. Paul F. & M. Ins. Co., 610 F.2d 1174, 1181 (3d Cir.1979). See also Estate of Brant, 463 Pa. 230, 344 A.2d 806 (1975) (“This court has repeatedly held that in the absence of proof of fraud ‘failure to read is an unavailing excuse or defense and cannot justify an avoidance, modification or nullification of the contract or any provision thereof.’ ”) Finally, “[a] party who seeks to strike down his solemn written obligation must present evidence which is clear, precise, and indubitable____” Schoble v. Schoble, 349 Pa. 408, 411, 37 A.2d 604, 605 (1944) (citations omitted).

In the present case, Mrs. Borrell testified at the hearing that she signed the agreement at her husband’s request, but that she did so at her own attorney’s office with only a secretary and her son present. There is no contention nor evidence that she was fraudulently misled into signing the contract or that anyone exerted undue influence upon her. To that extent then, Mrs. Borrell, and the lower court, are bound by that provision of the Separation Agreement which clearly states that she was counselled. Additionally, the evidence does not support the lower court’s alternative finding that Mrs. Borrell entered the agreement involuntarily. Accordingly, we find that the support hearing court improperly refused to consider the Separation Agreement, and we remand the case for proceedings in accordance with this opinion.

Order vacated and case remanded for further proceedings.

      . As of January 5, 1984, the date on which all records from the lower court were forwarded to this court, no decree in divorce had been entered.

      . See note 1 supra.

      . As the Millstein court further reasoned,
      It would make no sense to hold that Judge MIMS, sitting in the support court, ... should order a reduction in appellant's support obligation because of appellant’s changed circumstances, despite the fact that appellee could then bring an action, either in assumpsit or for specific performance, on the separation agreement and have the reduction order vacated. Nothing in Guerin suggests that litigants and the lower courts are obliged to proceed in so circuitous, and therefore so slow and expensive, a manner.

        Millstein, 311 Pa.Super. at 504, 457 A.2d at 1295.

      . It is noteworthy that the courts in both Brown and Millstein were presented with the question of what effect a separation agreement between the husband and wife would have on the parties’ child support obligations. As such, an additional factor was involved which is not involved in the present appeal. As the court in Brown noted,
      [T]he courts of this Commonwealth correctly have not hesitated to disregard a support agreement if it does not provide adequate support for minor children:
      [A] mother cannot, by contract, bargain away the right of her minor child to adequate support, to the relief of the father, irrespective of the legality of the agreement between the parents themselves. Commonwealth ex rel. Rossi v. Rossi, 161 Pa.Super. 86, 89, 53 A.2d 887, 888 (1947), quoted in Commonwealth ex rel. Snively v. Snively, 206 Pa.Super. 278, 281, 212 A.2d 905, 906 (1965).

        Brown, 495 Pa. at 643 n. 11, 435 A.2d at 863 n. 11.

      . Appellee also asserts that the lower court did not err in entering the instant support order because neither party requested that the court consider the Separation Agreement in reaching its decision. We find this claim to be without merit. A review of the transcript from the lower court hearing evinces that the focal point was the applicability and validity of the parties’ separation agreement. In fact, on cross-examination by the appellee’s counsel, Mr. Borrell confirmed that he was contesting his wife’s right to support on the basis of the parties’ agreement. Moreover, appellant has sufficiently preserved this issue in his Petition for Reconsideration: "10. Said Order is in violation of Paragraph Thirteen (13) of the Separation Agreement” and again in his Statement of Matters Complained of as Provided by Pa.R.A.P. 1925(b).

      . The hearing court made no finding as to whether the Separation Agreement was one-sided, however, on review we conclude that it was not. As in Brown and Millstein, the separation agreement here is a detailed agreement “covering all aspects of the economic relationships of the parties.” Millstein 311 Pa.Super. at 507, 457 A.2d at 1297 (quoting Brown v. Hall, 495 Pa. at 643, 435 A.2d at 863). The agreement itself states that "each party acknowledges that the Agreement is fair and equitable.”

      . On appeal, appellee does not assert that she was uncounseled or that she entered into the separation agreement involuntarily. Rather, she relies on the arguments previously resolved in this opinion.

      . This court has previously written:
      No assertion of fraud or mistake attendant upon the execution of the separation agreement is made. So long as a separation agreement stands unimpeached, the court cannot alter or change a provision for separate maintenance and support of the wife without the consent of both parties ... [Ajbsent such impeachment, there is no authority for the court to cancel a contract made by the parties and in its place substitute one which it thinks proper but which as a matter of fact the parties had never assented to.

        Litwack v. Litwack, 289 Pa.Super. 405, 409, 433 A.2d 514, 516 (1981) (quoting Leffler v. Leffler, 50 A.D.2d 93, 95, 376 N.Y.S.2d 176, 178 (1975)).

      . The second issue raised by the appellant is whether the lower court erred in refusing to grant a new hearing based on after-discovered evidence. In light of our disposition of the first issue, we need not address the merits of appellant’s second argument.


author: WIEAND, Judge:

text:
    498 A.2d 1345
    COMMONWEALTH of Pennsylvania, Appellee, v. Bruce THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 11, 1985.
    Filed Sept. 13, 1985.

      Mitchell Kaufman, Assistant Public Defender, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant Deputy District Attorney, Pittsburgh, for Com., appellee.

      Before WIEAND, CIRILLO and JOHNSON, JJ.
   WIEAND, Judge:

Bruce Thomas was convicted by a jury of kidnapping. The jury found that on May 23, 1982, between 6:30 and 7:00 a.m., Thomas and another person placed Theresa Forlastro, who was partially wrapped in a quilt, into the trunk of Thomas’ vehicle in Wilkinsburg, Allegheny County, and drove eighty miles to Cheat Lake, near Morgantown, West Virginia. Later that morning, Miss Forlastro’s body was found in the lake by a fisherman. She had been bound, gagged and shot in the head. Thomas was charged in Pennsylvania with kidnapping. A first trial ended in a mistrial because of a mid-trial illness of the trial judge. A second trial resulted in a conviction. Post-trial motions were dismissed, and Thomas was sentenced to serve a term of imprisonment for not less than ten nor more than twenty years. An appeal nunc pro tunc was subsequently allowed by the trial court. The proceedings are before this Court, therefore, on direct appeal. Appellant’s numerous averments of error will be considered seriatim.

Kidnapping is defined as follows:

A person is guilty of kidnapping if he unlawfully removes another a substantial distance under the circumstances from the place where he is found, or if he unlawfully confines another for a substantial period in a place of isolation, with any of the following intentions:
(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight thereafter.
(3) To inflict bodily injury on or to terrorize the victim or another.
(4) To interfere with the performance by public officials of any governmental or political function.

18 Pa.C.S. § 2901(a) (emphasis added). At least three persons witnessed the placement of a person in the trunk of Thomas’ vehicle, but all were unable to identify the person who had been wrapped in the floral quilt. Approximately two hours later, Miss Forlastro’s body was found in Cheat Lake, West Virginia, and the floral quilt was found near the water’s edge. Fibers on the victim’s blouse had the same characteristics as the mats in the trunk of appellant’s car. Medical testimony was to the effect that the victim had been shot after she was in the water. This evidence, although partially circumstantial, was sufficient to permit a jury to find that appellant, as charged, had removed Miss Forlastro a substantial distance for the purpose of inflicting bodily injury upon her. The jury could reject appellant’s alibi defense and find that he had been a participant in the kidnapping.

Appellant argues that he was twice placed in jeopardy because his first trial ended in a mistrial granted, he asserts, without manifest necessity therefor. The decision to declare a mistrial was within the sound discretion of the trial court and, absent a flagrant abuse of that discretion, the decision will not be reversed. See: Commonwealth v. Hamm, 325 Pa.Super. 401, 412, 473 A.2d 128, 133 (1984). See also: Commonwealth v. Shirey, 333 Pa.Super. 85, 137, 481 A.2d 1314, 1342 (1984). However, where an accused does not consent to or request the granting of a mistrial, retrial is permissible only if the granting of the mistrial was manifestly necessary. See: Commonwealth v. Smith, 324 Pa.Super. 156, 159, 471 A.2d 510, 512 (1984). Illness of the trial judge is generally conceded to be a matter of manifest necessity which warrants a mistrial. Commonwealth v. Robson, 461 Pa. 615, 622, 337 A.2d 573, 577, cert, denied, 423 U.S. 934, 96 S.Ct. 290, 46 L.Ed.2d 265 (1975); Commonwealth v. Clark, 287 Pa.Super. 380, 388 n. 7, 430 A.2d 655, 659 n. 7 (1981); Commonwealth v. Manley, 252 Pa.Super. 77, 86, 380 A.2d 1290, 1294 (1977), vacated on other grounds, 491 Pa. 461, 421 A.2d 636 (1980). See generally: 21 Am.Jur.2d Criminal Law §§ 285, 296 (1981). The judge to whom this case was reassigned after the trial judge became ill and who declared the mistrial ascertained the following facts: (1) trial had begun on February 14, 1983; (2) when counsel for the co-defendant had become ill three days later, the trial had been recessed until February 22nd; and (3) the originally assigned judge had become ill in the interim and was expected to be out at least until February 28th. The court concluded that even if the original judge could resume the trial on February 28th, eleven calendar days would have passed. Finding these facts to constitute manifest necessity, the court declared a mistrial.

We are persuaded that there was manifest necessity for declaring a mistrial. The judge’s illness required hospital testing, and the full extent of his illness, which appeared serious at the time the mistrial was declared, was not known. We are not unmindful of the fact that mistrials should not be granted lightly. Still, in this case it seems clear that there was manifest necessity warranting a mistrial. See: Commonwealth v. Robson, supra, 461 Pa. at 622, 337 A.2d at 577 (trial judge ill for several weeks); Commonwealth v. Manley, supra, 252 Pa.Super. at 86, 380 A.2d at 1294 (trial judge ill for two weeks).

After the charge against appellant had been returned to court by the district justice, appellant filed a petition for writ of habeas corpus to test the sufficiency of the Commonwealth’s evidence. He argues on appeal that the Commonwealth failed to make out a prima facie case. This issue, however, is moot. It was determined at trial that the evidence of the Commonwealth was sufficient to be submitted to the jury, and this Court has now determined that the evidence was sufficient to sustain a conviction. Therefore, any deficiency before the district justice or at the habeas corpus hearing was harmless. See: Commonwealth v. Hess, 489 Pa. 580, 590, 414 A.2d 1043, 1048 (1980).

Appellant argues next that the trial court committed error by consolidating for trial the charges against him and his co-defendant. He contends that inconsistencies in their alibis created a possible impression that both alibis had been fabricated. We reject this argument. The decision whether to try co-defendants jointly or separately is a decision committed to the sound discretion of the trial judge, and his decision will not be disturbed on appeal absent a manifest abuse of discretion or a showing of substantial prejudice and clear injustice to the accused. See: Commonwealth v. Morales, 508 Pa. 51, 494 A.2d 367 (1985); Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984); Commonwealth v. Gelormo, 327 Pa.Super. 219, 475 A.2d 765 (1984), Commonwealth v. Katsafanas, 318 Pa.Super. 143, 464 A.2d 1270 (1983). A joint trial of co-defendants is “advisable when the crimes charged grew out of the same acts and much of the same evidence is necessary or applicable to both defendants.” Commonwealth v. Morales, supra,, 508 Pa. at —-, 494 A.2d at 372. Here, appellant and his co-defendant had been charged with a kidnapping arising from the same acts, and much of the same evidence was necessary to prove the guilt of each. A joint trial, therefore, was not only permissible but also advisable. See: Commonwealth v. Hamm, supra, 325 Pa.Super. at 410, 473 A.2d at 132 (1984) and cases cited therein. Separate trials would have required a duplication of the same evidence. Moreover, there is no basis for finding that appellant was prejudiced in any way by being tried jointly with his co-defendant. The issues were uncomplicated and readily understandable by a jury. Appellant's assertion that he was prejudiced because he and the co-defendant presented different alibis is unwarranted. Although they may have served inconsistent interests, they were not so antagonistic that the defendants had to be tried by separate juries.

Appellant also contends that the trial court erred when it denied a pre-trial motion for change of venue. The grant or refusal of a motion to change venue is also a matter within the sound discretion of the trial court. Commonwealth v. Pursell, 508 Pa. 212, 495 A.2d 183 (1985); Commonwealth v. Hamm, supra. Unless publicity has been sustained, pervasive, inflammatory and inculpatory, prejudice will not be presumed; actual prejudice must be shown. Commonwealth v. Pursell, supra, 508 Pa. at —, 495 A.2d at 187; Commonwealth v. Casper, 481 Pa. 143, 151-153, 392 A.2d 287, 291-292 (1978); Commonwealth v. Keeler, 302 Pa.Super. 324, 328-330, 448 A.2d 1064, 1065-1066 (1982). In the instant case, pre-trial publicity did not cause prejudice. It did not impede in the slightest the selection and empanelling of an impartial jury. The trial court did not abuse its discretion by denying appellant’s request for change of venue.

Appellant was represented at trial by two attorneys. The trial court directed that only one attorney would be permitted to interrogate witnesses. Appellant argues that this directive deprived him of full representation by his retained counsel. The general conduct of a trial is committed to the broad discretion of the trial judge. Commonwealth v. Bachert, 271 Pa.Super. 72, 81, 412 A.2d 580, 585 (1979), modified on other grounds, 499 Pa. 398, 453 A.2d 931 (1982). Therefore, the court could reasonably limit counsel’s participation in the trial. Because the limitation was reasonably related to the need to assure an orderly and impartial trial — the trial court noted that his prior courtroom experience with the two attorneys required such an order — the limitation did not constitute an abuse of discretion. Moreover, as the trial court pointed out, appellant in fact received the benefit of advice from both counsel in that they conferred with appellant and each other throughout the trial.

Appellant moved pre-trial to suppress a post-arrest statement in which he said: “I love her. I love her. If I could bring her back I would.” Assuming, without deciding, that this statement was inculpatory, the evidence nevertheless supports the suppression court’s finding that it was made after appellant had been advised of his Miranda rights, after he had been offered food and drink, and while he was lucid and under no duress. In making this determination, we have considered only the evidence of the prosecution’s witnesses and so much of the evidence for the defendant as, fairly read in the context of the record as a whole, remained uncontradicted. Commonwealth v. Woodson, 342 Pa.Super. 392, 394, 493 A.2d 78, 79 (1985), quoting Commonwealth v. Hunt, 280 Pa.Super. 205, 207-208, 421 A.2d 684, 685 (1980). The trial court rejected, as we must, the contradicted testimony of appellant that the statement was involuntary because he was cold, unfed, and shackled.

In post-trial motions appellant averred generally that the Commonwealth had “intentionally failed to provide complete discovery to the defense in advance of and during trial____” This argument was rejected by the trial court because it was “general in nature and totally unsupported by the record. The motion does not provide so much of a hint concerning what discovery materials the Commonwealth failed to provide____” Trial court op. at 28. We agree with the trial court. Appellant’s post-trial motion was inadequate to preserve for appellate review the allegation now made that the Commonwealth failed to disclose statements by or whereabouts of the co-defendant’s girlfriend. Only issues specifically raised in written post-trial motions are preserved for appellate review. Commonwealth v. Goldblum, 498 Pa. 455, 467, 447 A.2d 234, 240-241 (1982); Commonwealth v. Austin, 484 Pa. 56, 58-59, 398 A.2d 941, 942 (1979); Commonwealth v. Knox, 290 Pa.Super. 104, 107-108 n. 2, 434 A.2d 151, 152-153 n. 2 (1981).

Similarly, we will not review the propriety of questions asked by the District Attorney during redirect examination of its medical examiner where, as here, appellant made no objection to such questions. See: Commonwealth v. Ryan, 475 Pa. 559, 381 A.2d 138 (1977); Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980); Commonwealth v. Jefferson, 271 Pa.Super. 199, 412 A.2d 882 (1979).

Proper security measures are within the discretion of the trial court. Commonwealth v. Gross, 307 Pa.Super. 353, 356, 453 A.2d 620, 622 (1982). Accord:Commonwealth v. Patterson, 452 Pa. 457, 464, 308 A.2d 90, 94 (1975). The presence in the courtroom of uniformed sheriff’s deputies, where their presence was quiet, unobtrusive and inconspicuous, did not abridge appellant’s right to appear free of restraint or brand him a dangerous criminal. The trial court did not abuse its discretion by allowing uniformed deputies in the courtroom during appellant’s trial.

Whether to grant a request for a view is a matter within the discretion of the trial court. Commonwealth v. Mangini, 478 Pa. 147, 386 A.2d 482 (1978); Commonwealth v. Jones, 319 Pa.Super. 570, 466 ■ A.2d 691 (1983). See also: Pa.R.Crim.P. 1112. The trial court in this case refused a defense request to transport the jury into West Virginia to view Cheat Lake. This was not an abuse of discretion. An examination of the lake was not essential to a jury’s comprehension of the kidnapping which allegedly had occurred in Pennsylvania or to an understanding of the evidence submitted by the parties. The distance of the lake from the place where the victim had been abducted could readily be established by oral testimony or other means, and the scene where the body was recovered could be demonstrated by photographic evidence. The lake, indeed, had minimum significance, and a physical view thereof was not essential.

Appellant also complains because he was not permitted to show that the victim had been employed as a prostitute. We agree with the trial court that this evidence was irrelevant. Appellant’s stated purpose of showing that prostitutes are frequently subjected to violence and that violence by an unknown person might have brought on Miss Forlastro’s demise was speculative and properly rejected by the trial court.

The trial court was also correct when it refused to allow the defense to attack the credibility of Commonwealth witnesses by showing histories of prostitution. Only convictions of felonies and misdemeanors crimen falsi can be used to attack the credibility of witnesses. See: Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert, denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982); Commonwealth v. Gray, 329 Pa.Super. 347, 478 A.2d 822 (1984).

Appellant’s final arguments are specious. The record does not disclose any reason for the court sua sponte to interrogate the members of the jury daily to determine whether they had obtained extra-judicial information about appellant or the criminal charge against him. Similarly, appellant’s contention that the trial court refused to enforce a defense subpoena is unwarranted and unsupported.

The judgment of sentence is affirmed.

      . Thomas and his companion were charged with murder in West Virginia.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    498 A.2d 1351
    Dawn BACIOTTI, Carmen Baciotti and Melanie Baciotti, his wife v. Michael V. SIMMONS and Strasburg Township. Appeal of Dawn BACIOTTI.
    Superior Court of Pennsylvania.
    Argued April 24, 1985.
    Filed Sept. 18, 1985.

      Soren P. West, Lancaster, for appellant.
    Richard H. Wix, Harrisburg, for Simmons, appellee.
    Sharon D. Hyde, Lancaster, for Strasburg, appellee.
    Before SPAETH, President Judge, and CAVANAUGH, BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, BECK and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal concerns the application of Pa.R. C.P. 238 to a verdict against joint tortfeasors where one of them settled prior to trial and took in exchange a joint tortfeasor’s release.

On January 28, 1980, Dawn Baciotti commenced an action against Michael V. Simmons and Strasburg Township to recover damages for personal injuries sustained in an automobile accident occurring in Lancaster County on December 13, 1978. On March 1, 1982, Strasburg Township made a written offer to settle Baciotti’s claim for $50,-000.00, its policy limits, in exchange for a joint tortfeasor’s release, but Baciotti rejected the offer. Simmons, on March 6, 1982, offered to pay Baciotti $100,000.00 if she would execute a joint tortfeasor’s release in his favor. This offer was accepted. Although Strasburg Township’s offer of $50,000.00 was not revoked prior to trial, Baciotti continued to reject it. On April 27, 1982, following trial, a jury returned a verdict for Baciotti, fixed her damages at $150,-000. 00. and apportioned negligence as follows: Baciotti— 10%; Simmons — 40%; and Strasburg Township — 50%. Baciotti then filed a petition to mold the verdict. Included was a request for delay damages pursuant to Pa.R. C.P. 238. The trial court heard argument and thereafter awarded delay damages against Strasburg Township in the amount of $7,901.37. This was computed on $35,000.00, which was the amount of the verdict that Strasburg Township was required to pay ($135,000.00 less $100,000.00 already paid by Simmons). The court refused to assess delay damages against Simmons. Baeiotti appealed.

Pa.R.C.P. 238 provides in pertinent part as follows:

Rule 238. Award of Damages £« Belay In am Action for Bodily Injury, Death or Property Damage
(a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
(1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court’s decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
(2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action whichever is later, up to the date of the award, verdict or decision.
(e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

The rule was adopted by the Supreme Court in 1978 “as an extension of the compensatory damages necessary to make a plaintiff whole.” Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 31, 488 A.2d 284, 293 (1985), quoting Laudenberger v. Port Au thority of Allegheny County, 496 Pa. 52, 66, 436 A.2d 147, 154 (1981), appeal dismissed sub nom., Bucheit v. Laudenberger, 456 U.S. 940, 102 S.Ct. 2002, 72 L.Ed.2d 462 (1982). An award of delay damages “serves to compensate the plaintiff for the inability to utilize funds rightfully due him, but the basic aim of the rule is to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Greenspan v. United Service Automobile Association, 324 Pa.Super. 315, 323, 471 A.2d 856, 860 (1984), quoting Laudenberger v. Port Authority of Allegheny County, supra 496 Pa. at 59, 436 A.2d at 151. By providing that delay damages are tolled after a written offer of settlement has been made which, in retrospect, is eighty percent or more of the ultimate verdict, the rule attempts not only to encourage pre-trial settlement but to foster settlement at an early date. Laudenberger v. Port Authority of Allegheny County, supra, 496 Pa. at 59, 436 A.2d at 151. Defendants are given an opportunity to protect themselves from exposure to pre-judgment interest by making a reasonable offer of settlement in good faith and in a timely fashion. Id., 496 Pa. at 59-60, 436 A.2d at 151. Accord: Krupa v. Williams, 316 Pa.Super. 408, 423, 463 A.2d 429, 436 (1983).

The purposes to be accomplished by Pa.R.C.P. 238 provide us with guidelines in our effort to determine liability for delay damages and the amount payable in joint tortfeasor situations. We must also give consideration to the provisions of the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321 et seq. Pursuant to this Act, where one of two joint tortfeasors has made payment to the plaintiff and has taken a release providing for pro rata reduction of damages recoverable against the other tortfeasor, the tortfeasor who has not settled, in making satisfaction of plaintiffs verdict, is entitled to the benefit of any overpayment made by the settling tortfeasor. 42 Pa.C.S. § 8326; Daugherty v. Hershberger, 386 Pa. 367, 126 A.2d 730 (1956); Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1963).

In this case, the release executed by Baciotti discharged Simmons from any duty to pay damages for delay. Specifically, the written agreement released him “from all claims, damages, actions and suits of whatsoever kind, known or unknown, prior to and including the date hereof____” This evidenced an intent by the parties to effect a total settlement and release Simmons from any and all claims for damages of any kind. The release included liability for delay damages under Pa.R.C.P. 238.

In order to assess the liability of Strasburg Township for delay damages, it will be necessary to examine three distinct phases of the pre-verdict negotiations. The first phase consists of the period from the commencement of Baciotti’s action until the time when Strasburg Township made an offer of $50,000.00. The second phase of settlement negotiations is the period between the time this first offer was made and the time when Baciotti accepted Simmons’ offer of $100,000.00. The third period includes the time between Baciotti’s acceptance of $100,000.00 from Simmons and the time of the verdict.

For the period following the filing of the complaint on January 23, 1980 and continuing until March 1, 1982, when Strasburg Township made its offer, Baciotti was clearly entitled to recover damages for delay from Strasburg Township. Pa.R.C.P. 238(a). During this period no offers of settlement were made by either defendant. The delay damages recoverable from Strasburg Township during this period are computed on the amount of the verdict at a rate of ten percent per annum. Pa.R.C.P. 238(a)(1). The total verdict recovered by Baciotti, however, must be apportioned in the same manner in which the jury apportioned liability. “It would be unrealistic to require each defendant to offer nearly the full amount of damages ultimately recovered in an action, where the amount finally attributed to each defendant is only a percentage of the total [verdict]____” Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 458, 474 A.2d 1181, 1196 (1984). Thus, the liability of Strasburg Township is computed on the amount of $75,000.00, the proportionate part of the total verdict assessed against the Township.

Delay damages must be measured in the same manner after the Township made an offer of $50,000.00 and before Simmons settled for $100,000.00. The Township’s offer was inadequate to terminate its liability for delay damages. The amount of its liability, i.e., $75,000.00, as found by the jury, exceeded its offer by more than 125 percent. This offer, therefore, did not terminate the Township’s liability for' Rule 238 damages. See: Pa.R.C.P. 238(e).

When we examine the findings of the jury and apply them retrospectively to the absence of adequate settlement negotiations prior to March 6, 1982, we see that Strasburg Township’s liability during this period of time was $75,-000.00. Both the adequacy of its offer and the computation of delay damages, therefore, must be measured against this amount of $75,000.00. This was the Township’s liability, as found by the jury, and this is the amount which must be used to measure the reasonableness of the demands made by the plaintiff and the offers made by the Township during negotiations.

After Simmons had settled for $100,000.00, however, there was necessarily a change in the focus of negotiations between Baciotti and Strasburg Township. Both parties knew that under existing law the Township was now entitled to a credit for any overpayment made by Simmons. Their continuing negotiations, therefore, were controlled primarily by the amount which Strasburg Township would be required to pay Baciotti. To expect that the parties would thereafter negotiate with respect to the amount of a possible verdict, without considering the actual amount which would have to be paid, would be wholly unrealistic.

In this case, Baciotti’s recovery was fixed by the jury at $135,000.00. Because Simmons had already paid $100,-000.00, the only amount which Strasburg Township was liable to pay was $35,000.00. On March 1, 1982, the Township had made an offer of $50,000.00. This offer was made in writing and was continued in effect until the commencement of trial. It is clear that the offer was greater than the Township’s liability to pay damages to Baciotti. Strasburg Township’s liability for Rule 238 damages, therefore, was terminated on March 6, 1982. Thereafter, its offer had continued to remain open for an amount in excess of its liability as determined by the jury and reduced by application of the Uniform Contribution Among Tort-feasors Act. See: Pa.R.C.P. 238(e). By comparing the township’s settlement offer to the ultimate amount of the verdict, as reduced by the amount which Baciotti had already received from Simmons, the dual purposes of Pa.R.C.P. 238 are best served. Baciotti’s compensation for the deprivation of use of money withheld from her was tolled after the settlement with Simmons was complete because the continuing offer of $50,000.00 was reasonable in light of the jury’s findings. Baciotti’s rejection of it, in view of the jury’s findings, was unreasonable.

We conclude, for these reasons, that Strasburg Township is liable for delay damages from January 23, 1980 to March 6, 1982. Those damages must be computed at the rate of ten percent per annum on the sum of $75,000.00.

Remanded for the entry of judgment consistent with the foregoing opinion. Jurisdiction is not retained.

CAVANAUGH, J., files a dissenting opinion in which SPAETH, President Judge, and McEWEN and BECK, JJ., join.

CAVANAUGH, Judge,

dissenting:

I agree with the majority that the non-settling defendant, Strasburg Township, must pay delay damages under Rule 238 computed upon $75,000.00. I disagree, however, that its responsibility should be terminated as of March 6, 1982, the date of the plaintiff’s settlement with defendant, Simmons. Rather, I believe that Strasburg Township remains liable for delay damages up to the date of the jury’s verdict.

The primary purpose of Rule 238 is “to alleviate delay in the disposition of cases, thereby lessening congestion in the courts.” Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981). More specifically, the Rule is designed to foster the early resolution of disputes, as evinced in drafter’s comments:

Statistics show that only 38 percent of these cases ever go to trial and 25 percent ever go to verdict. Thirty-eight percent are settled without going to trial. Some are settled through pretrial conciliation techniques, but in too many cases meaningful negotiations commence only after a trial date is fixed or on the courthouse steps or in the courtroom, thus leading to delay in the disposition of cases and congestion of the courts. The present practice provides no incentive for early settlement.

8 Pa.Admin.Bull. 2668 (1978) (emphasis added). In order to accomplish this goal of early settlement, the Rule seeks to penalize defendants who refuse to settle through the imposition of delay damages, and to encourage plaintiffs to accept reasonable settlement offers by cutting off the accrual of those delay damages.

I seriously question whether the majority’s application of Rule 238 where one defendant has settled furthers the espoused goal of prompting the seasonable disposition of cases. Under the majority’s holding, the reasonableness of a non-settling defendant’s offer to settle is determined in light of that defendant’s adjudged share of the verdict less any overpayment by a settling defendant. If the non-settling defendant’s offer is eighty percent or more of the adjusted figure, then according to the majority, the non-settling defendant’s delay damage liability is terminated as of the date of the accepted settlement.

My concerns with this result are several. . Under the majority’s approach, delay damages may accrue against a non-settling defendant up until the date that the plaintiff accepts the over-generous settlement offer of another defendant. Because of this, it will be in the plaintiffs best interest to delay acceptance of the overpaying settlement offer until the date of trial, thereby allowing Rule 238 damages to accumulate against the non-settling party. The plaintiff does not risk losing the opportunity to settle because under the terms of Rule 238, in order to avoid delay damages, the (settling) defendant must continue the offer in effect until the commencement of trial. Therefore, the majority’s rule may well have the effect of delaying the disposition of cases rather than prompting their early resolution as desired by the drafters of Rule 238.

My second concern is perhaps more philosophical. It is apparent from the Rule and its comments that the drafters sought to prompt all defendants to engage in reasonable settlement negotiations. Cf. Rule 238(c) (“damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action”). The majority holds that a non-settling defendant is entitled to the benefit of any overpayment by the settling defendant for Rule 238 purposes. This troubles me, for as Justice Musmanno so eloquently phrased it in a slightly different context, “[the non-settling defendant] seeks to benefit from a negotiation in which he played not the slightest part. He wants to travel on a train for which he purchased no ticket, he seeks to mount a horse which he did not feed, he desires to ride on a merry-go-round which, so far as he was concerned, might never have been built.” Daugherty v. Hershberger, 386 Pa. 367, 376, 126 A.2d 730, 735 (1956) (Musmanno, J., dissenting). It is not difficult to imagine the situation where, applying the majority rule, a non-settling defendant would be partially absolved of delay damage liability even though he made no offer of settlement at all. Such a turn of events would be present where the settling defendant, either through miscalculation or generosity, pays a settlement which satisfies the total judgment returned by the jury against all defendants. Because the majority would have the overpayment inure to the benefit of the non-settling defendants), that defendant need not make any offer of settlement to avoid delay damages. Surely, the drafters of Rule 238 could not have intended this result, for rather than relieving crowded dockets, such a case will more likely proceed to trial.

Finally, I think that it is important to note that the non-settling defendant’s ultimate financial responsibility is not diminished by a settling co-defendant’s overpayment. The Uniform Contribution Among Tort-feasors Act has been construed

to permit a right of contribution on the part of a settling tort-feasor, when by the settlement, the settling tort-feasor pays more than his share of the total liability ultimately found. In that situation the rule would thus allow the settling tort-feasor to seek contribution from a non-settling tort-feasor to the extent that the amount paid by the settling tort-feasor exceeds his percentage of negligence, but in no event more than the percentage of negligence attributable to the non-settling tort-feasor.

Charles v. Giant Eagle Markets, 330 Pa.Super. 76, 82, 478 A.2d 1359, 1362 (1984) (footnote omitted). See also Mong v. Hershberger, 200 Pa.Super. 68, 186 A.2d 427 (1962). Thus, for example, in the instant case defendant Simmons may have a right of contribution against Strasburg Township for $40,000.00. Because of this outstanding liability, I do not think it is realistic to expect and require, as the majority suggests, that the non-settling defendant will negotiate only with respect to its accountability to the plaintiff.

The language of Rule 238(e) is specific. A defendant may avoid or diminish delay damage responsibility by making a written offer of settlement that is not exceeded by an award of the arbitrators, verdict of a jury, or decision of the court in a nonjury trial, of more than 125% of the offer. To read into this straightforward rule a formula which considers settlements made by joint defendants unnecessarily and improvidently complicates the function and objective of Rule 238. It is enough to test the non-settling defendant’s offer against his judicially determined share of responsibility.'

For these reasons, I would affirm the order of the trial court in favor of settling defendant, Simmons. I would reverse and remand the case for the imposition of delay damages against Strasburg Township calculated on $75,-000.00 for the period from January 23, 1980 until April 27, 1982, the date of the verdict.

SPAETH, President Judge, and McEWEN and BECK, JJ., join in this dissenting opinion.

      . Also named as plaintiffs were Carmen Baciotti and Melanie Baciotti, but their claims were dismissed at trial for reasons not relevant to the present appeal.

      . The trial court relied upon the jury’s finding that Strasburg Township was liable for $75,000.00 to determine that the Township’s offer of $50,000.00 was inadequate for purposes of tolling its liability for delay damages. In calculating the amount of delay damages, however, the trial court used the figure of $35,000.00 which the Township was actually required to pay. The court, therefore, required the Township to pay 10% of $35,000.00 for each year elapsing after the filing of the complaint until the date of the verdict.

      . During this period Simmons would also have been liable for delay damages if it had not been released therefrom as a part of its settlement with Baciotti. See: Lavin v. Mylecraine, 307 Pa.Super. 564, 567-568, 453 A.2d 1031, 1032 (1982).

      . The non-settling defendant is not given credit for any overpayment by a settling co-defendant until the settlement offer is accepted. See 42 Pa.C.S.A. § 8326 (1982) ("A release by the injured person of one joint tort-feasor ... reduces the claim against the other tort-feasors____(emphasis added)). The date of the offer is therefore irrelevant as to the non-settling party.

      . Of course, the non-settling defendant may limit the accrual of delay damages by himself “mak[ing] a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continu[ingj that offer in effect until commencement of trial ... and the plaintiff does not recover by award, verdict or decision ... more than 125 percent of the offer____” Rule 238(e). The “verdict" against which the offer is compared in my hypothetical case is not reduced even under the majority rule because there has been no overpayment by the other defendant.

      . The majority reasons that "we must also give consideration to the provisions of the Uniform Contribution Among Tortfeasors Act, 42 Pa.C.S. § 8321, et seq.” Majority op. at 5. This Act was originally adopted by the legislature in 1951 and later reenacted effective June 27, 1978. Rule 238 on the other hand was adopted after the UCATA on November 20, 1978. It is therefore particularly noteworthy that Rule 238 itself does not provide that the verdict be reduced by co-defendants’ overpayments when applying the 125% rule. Additionally, a panel of this court has previously ruled that decisions under the Uniform Contribution Among Tortfeasors Act and the Act itself are inapplicable to Rule 238 claims for delay damages because “neither considers the concern for alleviating court congestion held so central to Rule 238 in Laudenberger.’’ Lavin v. Mylecraine, 307 Pa.Super. 564, 569, 453 A.2d 1031, 1033 (1982).

      . I acknowledge that calculating delay damages based on the unreduced verdict rendered against the non-settling defendant may result in something of a windfall to plaintiffs who have settled part of their claim since they have not been deprived of an ability to utilize at least a portion of the funds rightfully due them. However, the alternative of allowing the non-settling defendant to benefit from his eo-defendant’s overpayment fails to serve the principal goal of Rule 238 which is to encourage the early disposition of cases. ÍMudenberger v. Port Authority of Allegheny County, 496 Pa. at 56, 436 A.2d at 151. By allowing the overpayment to inure to the benefit of the non-settling defendant, that defendant’s delay damage liability is reduced and, in turn, so is the incentive for him to offer a reasonable settlement. Moreover, the drafters of Rule 238 recognized that certain inequities are necessarily inherent in the Rule. For example, the drafters made the following comment:
      Fourth, recognizing that additional defendants may often be involved, and in some cases may even be joined after the initial one-year period has expired and damages for delay begin to accrue, an additional defendant who is joined at a late date must nevertheless protect himself by a written offer of settlement under subdivision (e). While there may be some equities in favor of an additional defendant who is joined at a much later date as to when damages for delay should accrue, the drafting of a rule to incorporate permutations and combinations of multiple defendant practice, depending upon the time at which they are joined and the nature of their alleged liability, introduces uncertainties in the application of the rule. The additional defendant can protect himself by making an adequate written offer of settlement.
      Pa.Admin.Bull. 2668 (1978). Similarly, in the present situation, I do not believe that a possible windfall to the plaintiff is enough to justify the construction of the Rule espoused by the majority. I would opt for the most straightforward application of Rule 238, thereby avoiding any uncertainty in the calculation of delay damages.


author: WICKERSHAM, Judge:

text:
    498 A.2d 1358
    COMMONWEALTH of Pennsylvania v. Michael DIXON, Appellant.
    Superior Court of Pennsylvania.
    Argued April 16, 1985.
    Filed Oct. 4, 1985.

      John J. Kerrigan, Jr., Newtown, for appellant.
    Stephen B. Harris, Assistant District Attorney, Warring-ton, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

Michael Dixon appeals from the judgment of sentence imposed upon him by the Court of Common Pleas of Bucks County after a jury found him guilty of driving under the influence of alcohol and homicide by vehicle while under the influence of alcohol. These charges arose out of a motor vehicle accident involving appellant, which resulted in the death of Nanette Humphreys.

The evidence indicates that the accident occurred on Second Street Pike, a two lane highway in Upper Southampton Township, Bucks County, on February 14, 1983. Although there had been a recent heavy snowfall, the road surface was clear; it was wet, but not slippery. The snow was plowed into banks on the sides of the road.

Appellant, driving a dark-colored Ford, was headed south on Second Street Pike at approximately 50-60 miles per hour in a 40 miles per hour zone. Appellant’s vehicle struck the 1976 Mazda driven by Nanette Humphreys as she attempted to make a right hand turn onto Second Street Pike from the driveway at the Bethanna Home. Ms. Humphreys died several days later.

Several witnesses testified that appellant had been driving erratically immediately prior to the accident. Furthermore, the investigating police officer observed that appellant appeared to be intoxicated, his breath smelled of alcohol, and his vehicle was littered with beer cans. The officer arrested appellant for driving under the influence of alcohol and transported him to the police station. A breathalyzer test revealed that appellant had a blood alcohol content of .20%. After Ms. Humphrey’s death, appellant was also charged with homicide by vehicle while driving under the influence of alcohol.

On June 24, 1983, a jury found appellant guilty of both counts. The Honorable William Hart Rufe, III sentenced appellant to a term of imprisonment of not less than 36 months nor more than 72 months on the homicide by vehicle while under the influence of alcohol charge as mandated by 75 Pa.C.S. § 3735(a). Appellant received a concurrent term of 6 to 12 months imprisonment on the driving under the influence charge. Following judgment of sentence, appellant filed this timely appeal.

Appellant asks us to consider the following issues:

1. Was the evidence sufficient to convict [appellant] of violating 75 Pa.C.S. § 3735?
2. Does 75 Pa.C.S. § 3735 violate various provisions of the Federal and State Constitutions?
3. Did the Trial Court err in failing to grant [appellant’s] Requested Jury Instructions?
4. Did the Trial Court err in admitting, over objection, the testimony of the victim’s boyfriend and the victim’s high school graduation picture?
5. Did the Trial Court err in refusing the proffered stipulation of Dr. Fillinger’s testimony?

Brief for Appellant at 2.

We find that appellant’s contentions are meritless and therefore affirm the judgment of sentence. The opinion of the Honorable William Hart Rufe, III, dated October 12, 1984, correctly disposes of issues three, four, and five. We need not discuss them further herein.

In his first issue, appellant claims that the evidence was insufficient to convict him of homicide by vehicle while under the influence of alcohol.

In testing the sufficiency of the Commonwealth’s evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. This inquiry is bounded by two poles. On the one hand, the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient. Commonwealth v. Herman, 271 Pa.Super. 145, 148-49, 412 A.2d 617, 619 (1979).

Commonwealth v. Maldonado, 343 Pa.Super. 154, 494 A.2d 402, 404 (1985).

It is clear that when viewed in the light most favorable to the Commonwealth, the evidence in the case at bar is more than sufficient to support the verdict. While appellant does not seriously contest the fact that he was under the influence of alcohol at the time of the accident or that Ms. Humphreys’ death was a result of the collision, he contends that the Commonwealth did not prove that his state of being under the influence of alcohol was the cause of the accident. We disagree. The Commonwealth presented evidence that appellant was driving erratically immediately prior to the collision. There was also testimony as to the excessive speed of appellant’s vehicle, his failure to brake at the time of the accident, and other indications of his reckless and erratic driving. We find that there was more than sufficient evidence from which the jury could determine that appellant’s intoxicated state caused the accident.

In his second issue, appellant raises a number of questions as to the constitutionality of the new drunk driving law. Many of these objections have been analyzed and rejected by the Pennsylvania Supreme Court in Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983) and by this court in Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). We need not further elaborate on the issues addressed in those opinions. We will, however, briefly discuss two other “constitutional” arguments raised by appellant.

Appellant contends that 75 Pa.C.S. § 3735 is void for vagueness because the legislature failed to define the phrase “when the violation is the cause of death.” Although the constitutionality of this language as contained in section 3735 has not been discussed by any appellate court, the Pennsylvania Supreme Court has decided that identical language in 75 Pa.C.S. § 3732 (homicide by vehicle) is not unconstitutionally vague. Commonwealth v. Burt, 490 Pa. 173, 415 A.2d 89 (1980). In Burt our supreme court stated:

It is a fundamental principle of due process that a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute, ... or is so indefinite that it encourages arbitrary and erratic arrests and convictions, ... is void for vagueness.
The fact that [the legislature] might without difficulty have chosen clear and more precise language equally capable of achieving the end which it sought does not mean that the statute which is in fact drafted is unconstitutionally vague____ Rather, the requirements of due process are satisfied if the statute in question contains reasonable standards to guide the prospective conduct.
Here it is clear that section 3732 contains entirely reasonable standards. With unmistakable clarity, section 3732 defines “homicide by vehicle” as a death caused by any person’s conduct violating law or municipal ordinance applying to vehicles or traffic regulation. This section does not employ “ambiguous” words, “archaic classifications,” or words with “numerous and varied” meanings ____ Accordingly, any vagueness challenge must be rejected.

Id., 490 Pa. at 177-179, 415 A.2d at 91-92 (quotations, citations, and footnote omitted).

Similarly, in Commonwealth v. Field, 490 Pa. 519, 417 A.2d 160 (1980), the Pennsylvania Supreme Court rejected another challenge to the constitutionality of the causation element of the homicide by vehicle statute, section 3732. In Field, the court held that under section 3732 the Commonwealth must show “that the actor ‘knew, or should have known,’ that he engaged in the conduct claimed to be in violation of the Vehicle Code, and that, at the very least, death was a ‘probable consequence’ of the conduct.” Commonwealth v. Houtz, 496 Pa. 345, 349, 437 A.2d 385, 387 (1981), quoting Commonwealth v. Field, supra.

We believe that the reasoning of the Burt and Field opinions, interpreting the causation language of section 3732, is equally applicable to the identical language contained in the statute in question in the case at bar, section 3735. As the lower court correctly stated, “[T]he Commonwealth has demonstrated that [appellant] ‘knew or should have known’ that he was violating the law prohibiting driving under the influence, that he nevertheless drove a car and could foreseeably be involved in an accident resulting in a death.” Lower ct. op. at 19. Thus, we believe that the causation element of section 3735 is not unconstitutionally vague.

Appellant’s remaining argument is that his conviction under section 3735 is constitutionally infirm since, had this been a civil suit, it is unclear whether civil liability would attach. As the lower court aptly stated: “This argument requests this court to render an opinion on a hypothetical fact situation which is not presently before the court. Further, due to the different applicable rules on permissible evidence, defenses permitted and standards of proof, this argument is inappropriate.” Lower ct. op. at 19. We agree. We have already found that the evidence was more than sufficient to convict appellant of homicide by vehicle while under the influence of alcohol. We will not decide the possible outcome of a hypothetical civil suit. Furthermore, the outcome of such a suit is irrelevant to the instant case.

Because we find that appellant’s issues are meritless, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Act of June 17, 1976, P.L. 162, No. 81, § 1, as amended by the Act of December 15, 1982, P.L. 1268, No. 289, § 9, 75 Pa.C.S. § 3731.

      . Act of December 15, 1982, P.L. 1268, No. 289, § 11, 75 Pa.C.S. § 3735.