author: OLSZEWSKI, Judge:

text:
    666 A.2d 341
    Alfred W. SNYDER, Doris F. Moore, and Rachael R. Heath, Appellants, v. David T. GRAVELL and Antoinette D’Adamo, Appellees. Alfred W. SNYDER, Doris F. Moore, and Rachael R. Heath, Appellees, v. David T. GRAVELL and Antoinette D’Adamo, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1995.
    Filed Oct. 20, 1995.

      Marshall E. Anders, Stroudsburg, for appellants.
    Mark S. Love, Tannersville, for appellees.
    Before KELLY, FORD ELLIOTT and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In fall of 1992, appellee David T. Gravell won the Pennsylvania Wild Card Lotto jackpot, valued at $9,816,058.56. Shortly after Gravell went to the Pennsylvania Lottery Commission to claim his winnings, a group of three individuals filed a competing claim. This group, consisting of appellants Alfred W. Snyder, Doris F. Moore, and Rachael R. Heath, alleged that they were members of a lottery group along with Gravell and his girlfriend, appellee Antoinette D’Adamo. They further alleged that the winning ticket, worth over nine million dollars, was a group ticket, and therefore they were each entitled to twenty percent of the lottery winnings.

On September 28, 1992, appellants filed a suit in equity against appellees Gravel and D’Adamo. The essence of the complaint was that the lottery group constituted a joint venture, and that appellees had committed fraud, breached their fiduciary duties to their fellow joint venturers, and breached the unwritten joint venture agreement. Appellees filed a counterclaim seeking interest on the winnings that had been withheld, along with lost opportunity costs.

Sitting in equity, the Honorable James R. Marsh held a non-jury trial in December 1993. After accepting Proposed Findings of Fact and Conclusions of Law from both sides, Judge Marsh found that neither side had proven their claim. Both parties filed exceptions, which Judge Marsh denied. These appeals followed.

Initially, we note that “[ajppellate review of equitable matters is limited to a determination of whether the lower court committed an error of law or abused its discretion.” Marra v. Stocker, 532 Pa. 187, 191-92, 615 A.2d 326, 328 (1992).

Appellants’ first claim is that the chancellor erroneously applied a clear, precise, and convincing burden of proof to their breach of contract claims. Appellants correctly note that generally, “the party having the burden of proof in a contract matter must sustain it by a ‘preponderance of the evidence.’ ” E.g., Ragnar Benson, Inc. v. Bethel Mart Associates, 308 Pa.Super. 405, 412, 454 A.2d 599, 602 (1982). In this case, however, appellants sought the imposition of a resulting trust as a remedy for appellees’ alleged breach of contract. This Court has held that “[t]he party seeking to establish the existence of a resulting trust bears a heavy burden of proof; the evidence must be clear, direct, precise and convincing.” Chambersburg Trust Co. v. Eichelberger, 403 Pa.Super. 199, 204, 588 A.2d 549, 551 (1991) (emphasis added). Given the remedy that appellants sought, the chancellor correctly applied a higher burden of proof to their claims.

Next, appellants argue that the chancellor made a number of factual findings that were not supported by the record. It is well settled that:

A chancellor’s findings of fact ... have all the force and effect of a jury’s verdict and will not be disturbed on appeal if there is sufficient evidence to sustain such findings, [citation omitted]. This rule is particularly applicable to findings which are predicated upon the credibility of witnesses, whom the chancellor has had the opportunity to hear and observe, [citation omitted].

Moore v. Diaz, 428 Pa.Super. 532, 539, 631 A.2d 658, 662 (1993) (quoting Village Beer & Beverage, Inc. v. Vernon D. Cox & Co., 327 Pa.Super. 99, 102, 475 A.2d 117, 118 (1984)).

After careful review of all of the findings highlighted in appellants’ brief, we find ample record support for each of the disputed findings. While in some instances the facts could also support an alternative inference, the chancellor chose to resolve these ambiguities in favor of appellees. Since these determinations were often dependent on the credibility of witnesses whom the chancellor heard and observed, we are not in any position to reverse these findings once we find record support. Therefore, appellants’ second claim must fail.

Appellants also assert that the chancellor erred when he ruled that the policy behind the Statute of Frauds was applicable to this case. When appellees asserted the Statute of Frauds as a defense, the chancellor properly ruled that the statute was not applicable on these facts. He went on to state, however, that the policy of the statute should be applicable to' this type of case, and that this therefore supported the application of a higher burden of proof.

Even if we assume that it was error to consider the policy behind the Statute of Frauds, the error would be entirely harmless because the statute’s policy was only used to bolster the chancellor’s decision to apply a higher burden of proof to appellants’ claims. As we have already held that the chancellor correctly applied the higher burden of proof, the policy of the Statute of Frauds would have no impact on the decision in this case. Therefore, we need not consider this claim any further.

In a final claim, appellants assert that the chancellor reached out to decide an issue that was not before him— whether the group’s intended operating rules were logical— and then used the finding on that irrelevant matter in deciding against appellants. Contrary to appellants’ assertion, we hold that the chancellor’s findings on this matter were relevant to the decision in this case.

At trial, appellants sought to establish that the lottery-ticket purchased by Mr. Gravell was actually a group ticket. In making necessary credibility determinations on such key issues as whether there was a group, whether Gravell was in the group, and whether the winning ticket was actually a group ticket, the chancellor was completely justified in questioning whether the group’s alleged rules were logical. This is especially true given that the instant case proceeded in equity where a court has wide discretionary authority to seek the truth and to do justice between the parties. See Weissman v. Weissman, 384 Pa. 480, 484-85, 121 A.2d 100, 102-03 (1956) (“Equity courts are not bound by strict common law rules. They possess broad powers and should exercise them so as to do substantial justice.”). Therefore, we find no merit in the suggestion that the chancellor wrongly considered the illogical nature of the group’s asserted rules.

On cross-appeal, appellees suggest that the chancellor erred in dismissing their counterclaim for damages from the delay in receiving the lottery proceeds caused by appellants’ challenge. In rejecting the counterclaim, the chancellor found that while appellants failed to meet their burden of proving that the winning ticket was a group ticket, appellees similarly failed to meet their burden of proving that the ticket belonged solely to them. Given the power of an equity court to shape relief according to the equities of the case, and the record support for the trial court’s conclusion that appellees failed to conclusively establish that the ticket belonged solely to Gravell, we will not disturb the trial court’s denial of the counterclaim. See, e.g., Easton Theatres v. Wells Fargo Land & Mortgage Co., Inc., 265 Pa.Super. 334, 352-53, 401 A.2d 1333, 1343 (1979) (holding that a chancellor has broad power to shape relief according to the equities of the case, so long as his decision is founded on competent support in the record), appeal dismissed, 498 Pa. 557, 449 A.2d 1372 (1982).

Since neither party has succeeded in establishing an abuse of the chancellor’s discretion or an error in law, we will not disturb the rulings below.

Affirmed.

      . While we need not actually determine whether the chancellor properly considered the policy behind the Statute of Frauds, we note that a court sitting in equity has a great deal of discretion to consider policy matters that may aid in achieving justice between the parties. See, e.g., Weissman v. Weissman, 384 Pa. 480, 482-86, 121 A.2d 100, 102-03 (1956).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    666 A.2d 344
    Ben CAPOBIANCHI and Fran Capobianchi, Appellants, v. BIC CORPORATION and Drug Palace, Appellees.
    Superior Court of Pennsylvania.
    Argued June 20, 1995.
    Filed Oct. 20, 1995.

      Michael J. D’Aniello, Norristown, for appellants.
    Richard A. Kraemer, Philadelphia, for appellees.
    Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

The sole issue in this case of products liability is whether plaintiffs’ cause of action is barred by principles of collateral estoppel. The trial court held that the action was barred and entered summary judgment against the plaintiffs’ claim. After careful review, we affirm.

According to the averments of the complaint, Ben Capobianchi was injured while at work at Northeastern Hospital on January 7, 1989, when a BIC lighter exploded in his shirt pocket. Capobianchi and his wife filed suit against BIC Corporation (BIC), the manufacturer of the lighter, and Drug Palace, the retailer, alleging causes of action for strict liability, negligence and breach of warranty.

On January 30, 1990, almost a year prior to the commencement of the instant action, Capobianchi had filed a workers’ compensation claim, alleging work-related neck injuries in connection with the exploding lighter. The referee denied the claim on May 18, 1992, finding that Capobianchi’s injuries were the result of degenerative conditions. Capobianchi appealed to the Workmen’s Compensation Appeal Board, which affirmed the referee’s decision on September 9, 1993. The decision became final on October 10,1993.

Thereafter and shortly before trial, the defendants moved to amend their answer to raise the defense of collateral estoppel. A motion for summary judgment was also filed on grounds of collateral estoppel. The trial court allowed the amendment and entered summary judgment against the plaintiffs. From this order, the plaintiffs have filed the present appeal.

Appellants’ first argument is that the trial court erred when it allowed the answer to be amended four days before trial to assert the defense of collateral estoppel.

Pennsylvania Rule of Civil Procedure 1033 provides in pertinent part that “[a] party ... by leave of court, may at any time ... amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new ... defense.” “Pleadings may be amended at the discretion of the trial court after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom.” Biglan v. Biglan, 330 Pa.Super. 512, 521, 479 A.2d 1021, 1025-1026 (1984). “Our courts have established as parameter a policy that amendments to pleadings will be liberally allowed to secure a determination of cases on their merits.” Gallo v. Yamaha Motor Corp., 335 Pa.Super. 311, 313, 484 A.2d 148, 150 (1984). A trial court enjoys broad discretion in evaluating amendment petitions. Horowitz v. Universal Underwriters Ins. Co., 397 Pa.Super. 473, 478, 580 A.2d 395, 398 (1990), allocatur denied, 527 Pa. 610, 590 A.2d 297, and 527 Pa. 611, 590 A.2d 298 (1991).

“Despite this liberal amendment policy, Pennsylvania appellate courts have repeatedly ruled that an amendment will not be permitted where it is against a positive rule of law, or where the amendment will surprise or prejudice the opposing party.” Horowitz v. Universal Underwriters Ins. Co., supra at 479, 580 A.2d at 398. See: Posternack v. American Cas. Co. of Reading, 421 Pa. 21, 24, 218 A.2d 350, 351-352 (1966). The prejudice, however, “must be more than a mere detriment to the other party because any amendment requested certainly will be designed to strengthen the legal position of the amending party and correspondingly weaken the position of the adverse party.” MacGregor v. Mediq Inc. 395 Pa.Super. 221, 227, 576 A.2d 1123, 1126 (1990). “The mere fact that the adverse party has expended time and effort in preparing to try a case ágainst the amending party is not such prejudice as to justify denying the amending party leave to amend [by asserting] an affirmative defense which has a substantial likelihood of success.” James A. Mann, Inc. v. Upper Darby School Dist., 99 Pa.Commw. 276, 281, 513 A.2d 528, 531 (1986).

“All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed.... ”

Bata v. Central-Penn Nat’l Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973), quoting James Fleming, Jr., Civil Procedure 158 (1965). “[Djenial of a petition to amend, based on nothing more than unreasonable delay, is an abuse of discretion.” Gutierrez v. Pennsylvania Gas & Water Co., 352 Pa.Super. 282, 287, 507 A.2d 1230, 1233 (1986). See also: Brooks v. McMenamin, 349 Pa.Super. 436, 439, 503 A.2d 446, 447 (1986). “The timeliness of the request to amend is a factor to be considered, but it is to be considered only insofar as it presents a question of prejudice to the opposing party, as by loss of witnesses or eleventh hour surprise.” Pilotti v. Mobil Oil Corp., 388 Pa.Super. 514, 518-519, 565 A.2d 1227, 1229 (1989).

In Posternack v. American Cas. Co. of Reading, supra, the plaintiff sued one insurance company in federal court, and another insurance company in state court, to recover for the same loss. The federal case came to trial first and ended in a judgment against the plaintiff. The defendant in the state action then sought leave to amend its answer to include res judicata, estoppel by judgment or collateral estoppel based upon the federal case. The Supreme Court permitted the amendment.

That surprise will result is not and cannot here be asserted meritoriously. Plaintiff, however, does contend that to permit the amendment will be prejudicial because the time for appeal from the adverse judgment suffered in the federal court has expired, and that he was lulled into inaction in this respect by [defendant’s] failure to assert the defense of res judicata until four years after the complaint in the present action was filed. This position is not persuasive.
The plea of res judicata must be based on a final judgment. It does not apply otherwise. See, Creighan v. Pittsburgh, 389 Pa. 569, 132 A.2d 867 (1957), and Restatement, Judgments, § 41 (1942). The petition to amend was filed within four months after the federal court judgment became final and approximately one year before the trial date of the instant case. The fact that the amendment may affect the cause of the adverse party is not, in itself, sufficient reason to deny the amendment. See, 2A Anderson, Civil Practice (Supp.1965, at 188).

Posternack v. American Cas. Co. of Reading, supra at 24-25, 218 A.2d at 352.

After careful review, we conclude that the trial court did not abuse its discretion by allowing the defendants to amend their answer to raise the defense of collateral estoppel. The defense of collateral estoppel could not be asserted until a final workers’ compensation decision had been rendered. After it had been rendered, moreover, Capobianchi had a right to appeal from the referee’s decision in May, 1992, and could have chosen to appeal from the Board’s decision in September, 1993. Delay caused by Capobianchi’s pursuit of workers’ compensation benefits will not be attributed to the defendants. At most, the defendants would be responsible for the delay between the workers’ compensation decision in October, 1993 and the motion for summary judgment, which first raised the defense of collateral estoppel. These circumstances do not readily lend themselves to a finding of unnecessary delay and/or a denial of an opportunity to assert the defense.

A party may move for summary judgment “[ajfter the pleadings are closed, but within such time as not to delay trial.” Pa.R.C.P. 1035(a). Summary judgment is properly granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). A motion for summary judgment can be timely even where it has been filed less than one month before the trial date and over four years after the litigation has commenced.

Pennsylvania R.C.P. 1035(a) permits a party to move for summary judgment “[a]fter the pleadings are closed, but within such time as not to delay trial.... ” The motion for summary judgment was filed December 18, 1981. At that time, the case was specially listed for trial on January 4, 1982. The lower court considered the motion for summary judgment on the merits. Since the function of a summary judgment motion is to avoid a useless trial, Rose v. Food Fair Store [Stores], Inc., 437 Pa. 117, 262 A.2d 851 (1970); William J. Heck Builders, Inc. v. Martin, 315 Pa.Super. 395, 462 A.2d 253 (1983), and such a result was achieved here, we find no error in the lower court.

Dillon v. National R.R. Corp., 345 Pa.Super. 126, 136-137, 497 A.2d 1336, 1341 (1985) (footnote omitted).

Collateral estoppel “operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983). It is appropriate where

(1) the issue decided in the prior action was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom the plea is asserted has had a full and fair opportunity to litigate the issue in question in a prior action.

Grant v. GAF Corp., 415 Pa.Super. 137, 149, 608 A.2d 1047, 1053 (1992), aff'd, 536 Pa. 429, 639 A.2d 1170 (1994) (per curiam). Principles of collateral estoppel apply to judgments of the Workmen’s Compensation Appeal Board. In Phillips v. A.P. Green Refractories Co., 428 Pa.Super. 167, 630 A.2d 874 (1993), allocatur denied, 537 Pa. 632, 642 A.2d 486 and allocatur granted, 538 Pa. 614, 645 A.2d 1317 (1994), the Superior Court said:

In denying summary judgment to Best on the collateral estoppel issue, the trial court stated “a workmens compensation claim is clearly distinguishable from a common law tort claim, including one based on strict products liability.” Order, Creany, S.J., 7/31/89, p. 1. The court found the issues involved in the cases differed in that, generally, in worker’s compensation actions, disability resulting from work place conditions is the only issue for decision, while in products liability actions, the injury caused by a defective product is the issue under review. We find this distinction is not meaningful or controlling, as it was previously rejected by McCullough v. Xerox Corp., 399 Pa.Super. 135, 581 A.2d 961 (1990), alloc. den., 527 Pa. 624, 592 A.2d 45 (1991), wherein this Court stated:
Appellant argues, however, the issue presented to and decided by the referee was a narrowly defined statutory one, i.e., had appellant suffered an occupational disease injury. In light of our previous discussion, though, this argument is without basis. As we stated, the referee found unequivocally appellant’s injury was not work-related, and appellant had failed to sustain her burden of proof. This failure was grounded not in appellant’s inability to establish her sarcoidosis as an occupational disease injury, for her claim proceeded without that determination, but rather, in appellant’s inability to prove the causation of her injury was aggravated, accelerated or related in any way to her work for Xerox. This was the central issue in appellant’s workmen’s compensation claim, just as it is instantly, and appellant was afforded a full and fair opportunity to litigate the issue before the referee. As that judgment is now final, appellants are estopped from pursuing the identical issue in a common law tort action. To find otherwise would be to undermine the concept of workmen’s compensation which has served the workers and economic structure of our society so well.
Id. at 143-44, 581 A.2d at 966.
More recently, this Court addressed the collateral estoppel issue in Grant, supra, where the plaintiffs brought workmen’s compensation actions against the defendant for injuries allegedly sustained in the workplace. While these claims were pending, plaintiffs brought common law tort actions for the same injuries. Their complaints focused more on the defective product rather than their disabilities resulting from poor conditions in the workplace. This Court affirmed the trial court’s grant of summary judgment based on collateral estoppel.
The doctrine of collateral estoppel is not unavailable simply because administrative procedures are involved; where the agency is acting in a judicial capacity and resolves disputed issues of fact which the parties had an opportunity to litigate, the court’s will not hesitate to apply preclusion principles.
[T]he principles of collateral estoppel apply to judgments from worker’s compensation [appeal] boards.
The issue of causation, injury as a result of exposure in the workplace, was decided adversely to the plaintiffs in the workmen’s compensation proceeding and thus recovery in a subsequent tort action is precluded.
Id. at 151, 153-155, 608 A.2d at 1055, 1056.

Phillips v. A.P. Green Refractories Co., supra 428 Pa.Super. at 175-176, 630 A.2d at 878-879.

Capobianchi argued in the workers’ compensation case that he had suffered a work-related injury. The referee found that the cause of the injuries had been a degenerative condition and not an injury sustained at work. By that finding, the referee not only decided that Capobianchi’s injuries were not work-related, but also established the cause of the injuries. Appellants aver in their complaint that a defective product caused the same neck injuries already attributed to a degenerative condition. Because this was previously decided against appellants, however, the present claim is barred by principles of collateral estoppel. The trial court did not err when it entered summary judgment against the plaintiffs.

Affirmed.


author: POPOVICH, Judge:

text:
    666 A.2d 664
    Eugene J. O’SULLIVAN, Appellee, v. JOY TECHNOLOGIES, INC., A Delaware Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued May 18, 1995.
    Filed Oct. 6, 1995.

      Richard R. Nelson, II, Pittsburgh, for appellant.
    William Wycoff, Pittsburgh, for appellee.
    Before POPOVICH, HUDOCK and OLSZEWSKI, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered in the Court of Common Pleas of Allegheny County. We are asked to determine whether under the law of New York, the lower court erred in enforcing a registration agreement between appellant, Joy Technologies Inc. (“Joy”) and appellee, Eugene J. O’Sullivan (“O’Sullivan”) and awarding damages with prejudgment interest to O’Sullivan. Upon review, we affirm.

The record reveals that Joy was a manufacturer of coal mining and environmental equipment. O’Sullivan was Chief Financial Officer of Joy and a holder of its stock. In 1987, the parties entered into the Amended and Restated Equity Registration Agreement (“Registration Agreement”). The Registration Agreement contained the following clause which is the focus of dispute herein:

2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any of its equity securities under the Securities Act (other than pursuant to a Demand Registration) and the registration form to be used may be used for the registration of Registerable Securities (a “Piggyback Registration”), the Company shall give prompt written notice (in any event within 10 business days after its receipt of notice of any exercise of other demand registration rights) to all holders of Registerable Securities of its intention to effect such a registration and shall include in such registration all Registerable Securities with respect to which the Company has received written requests for inclusion therein within 15 days after the receipt of the Company’s notice.

RR. 717. Paragraph 9(j) of the Registration Agreement governed the method of notice as follows:

(j) Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given when delivered personally or mailed by certified or registered mail, return receipt requested and postage prepaid, to the recipient....

RR. 729.

On October 11, 1991, Joy filed a Form S-2 Registration Statement with the Securities and Exchange Commission as a first step toward making an initial public offering. RR. 910-1055. On or about October 15,1991, O’Sullivan read an article in The Wall Street Journal which summarized a press release by Joy. The article stated:

JOY TECHNOLOGIES Inc., Pittsburgh, said it registered with the Securities and Exchange Commission for an initial public offering of 8.5 million common shares at an expected offering price of $15 to $17 a share. Joy, which was taken private in 1987, makes coal mining, air pollution and ash handling equipment. It will use proceeds to redeem preferred stock. The company provided an over-allotment option of 1,275,000 shares and will offer 6.8 million of the shares in North America and the rest overseas. Morgan Stanley & Co. is lead underwriter.

RR. 789.

On or about November 5, 1991, O’Sullivan received a letter from Joy concerning a Lock-Up and Waiver Agreement. That letter was dated November 4, 1991, and requested that each shareholder “restrict the sale of your shares of Common Stock for a period of 180 days after the date of the Initial Public Offering ... and ... waive any registration rights you may have in connection with the Offering.” RR. 785. O’Sullivan did not sign the Lock-Up and Waiver Agreement. RR. 327.

On November 15, 1991, Joy registered its stock at $17.00 a share. At the time of registration, O’Sullivan held 50,000 shares which were worth $799,000, inclusive of underwriter commissions. RR. 349. On November 18, 1991, O’Sullivan faxed a letter to Jane Davis, General Counsel of Joy, that informed Joy that he intended to sell his shares in the market. Moreover, in that letter, O’Sullivan asked Joy whether the piggyback provisions of the Registration Agreement were applicable. RR. 791-792.

On January 21, 1992, O’Sullivan again sent a letter to Attorney Davis which provided in part:

Regarding my “Piggyback Registration” rights, I reread the November 4, 1991 letter requesting that I sign a Lock-Up and Waiver Agreement, in light of the Notice requirement of Section 2(a) of the Amended and Restated Equity Registration Agreement. The November 4 letter was not intended to represent such a notice, was not timely, and did not accomplish the purpose of such a notice. Furthermore, under Section 2(a), holders have fifteen days from receipt of a notice in which to request a Piggyback Registration. The registration went effective November 15, only eleven days after the November 4 letter.
Had I been properly notified, I would have requested that all my shares be included in the registration. Based on the oversubscription, it appears my request could have been accommodated. Rather, I am left with a significantly restricted ability to transfer my shares, exposing me to an unacceptable risk of loss.

RR. 794.

In the Spring of 1992, 16,000 of O’Sullivan’s shares became unrestricted, and he lodged those unrestricted shares with his broker with the intention of selling them. On March 2, 1992, O’Sullivan sold 2,000 shares at a price of $15.62 per share. RR. 345-346. After the aforementioned sale, the price of Joy’s stock dropped rapidly and as of the time of trial in September, 1993, had never exceeded $15.50 per share and had reached a low of under $9.00 per share. On September 10, 1993, the last trading day before trial, Joy stock was selling at $10,875 per share. RR. 347.

Following a jury trial, a verdict was returned for O’Sullivan in the amount of $247,840.00. Thereafter, the verdict was molded to add prejudgment interest in the amount of $40,944.53. The lower court determined that November 15, 1991, marked the accrual date for prejudgment interest. This timely appeal ensued.

Joy raises the following issues for our evaluation:

I. THE TRIAL COURT ERRED IN FAILING TO DIRECT THE ENTRY OF JUDGMENT IN JOY’S FAVOR AND/OR JUDGMENT NOTWITHSTANDING THE VERDICT BECAUSE MR. O’SULLIVAN ADMITTED HAVING TIMELY, ACTUAL KNOWLEDGE OF THE FACTS OF WHICH JOY WAS REQUIRED TO GIVE TO HIM NOTICE.
A. Joy Did Not Breach The Amended Registration Agreement Because Mr. O’Sullivan Had Actual Knowledge Of All Required Information.
B. Even If Joy Breached The Notice Requirement In Section 2(a) Of The Amended Registration Agreement, Any Such Breach Was Immaterial And Did Not Cause Mr. O’Sullivan Any Harm.
II. THE TRIAL COURT ERRED IN DENYING JOY’S MOTION FOR A NEW TRIAL BECAUSE THE JURY INSTRUCTION ON THE KEY ISSUE OF ACTUAL KNOWLEDGE WAS CLEARLY ERRONEOUS AND BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT ERRED IN DENYING JOY’S MOTION FOR A NEW TRIAL ON DAMAGES BECAUSE MR. O’SULLIVAN FAILED TO MITIGATE HIS DAMAGES AND BECAUSE THE JURY INSTRUCTION ON THE KEY ISSUE OF MR. O’SULLIVAN’S DUTY TO MITIGATE HIS DAMAGES WAS CLEARLY ERRONEOUS.
A. Mr. O’Sullivan Had A Duty To Mitigate His Damages, Which He Failed To Do.
B. Joy Is Entitled To A New Trial On The Issue Of Damages Because The Jury Instruction On The Key Issue Of Mr. O’Sullivan’s Duty To Mitigate His Damages Was Clearly Erroneous.
C. Joy Also Is Entitled To A New Trial On The Issue Of Damages Because The Jury’s Award, Which Effectively Excused Mr. O’Sullivan’s Failure To Mitigate His Damages, Was Against The Overwhelming Weight Of The Evidence.
IV. THE TRIAL COURT ERRED WHEN IT DETERMINED THE ACCRUAL DATE OF ANY RIGHT TO PREJUDGMENT INTEREST IN THIS CASE.

Appellant’s Brief at i-ii.

In the first contention presented herein, Joy challenges the lower court’s denial of its motions for a directed verdict and judgment notwithstanding the verdict. “Our standards of review when considering motions for directed verdict and judgment notwithstanding the verdict are identical. We may reverse only if we find an abuse of discretion or an error of law which controlled the outcome of the case.” Walker v. Grand Central Sanitation, Inc., 430 Pa.Super. 236, 242, 634 A.2d 237, 240 (1993), citing Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). “We must also consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to [appellee], the verdict winner.” Walker, 430 Pa.Super. at 242, 634 A.2d at 240, citing Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). “We must ... afford the verdict winner the benefit of every inference which may reasonably be drawn from the evidence, while rejecting all unfavorable testimony and inferences.” Smith v. Penbridge Assoc., Inc., 440 Pa.Super. 410, 415, 655 A.2d 1015, 1018 (1995) (citations omitted).

Guided by the aforementioned standard, we proceed to address the merits of Joy’s claim that it did not breach the Registration Agreement because O’Sullivan had actual knowledge of its intention to register shares. Joy argues that upon reading the article in The Wall Street Journal on or about October 15, 1991, O’Sullivan was fully apprised that Joy intended to make a public offering of its shares. Written notice, as required by the provisions of the Registration Agreement, was not given to O’Sullivan. However, Joy maintains that the requirement of notice was superseded by O’Sullivan’s actual knowledge. To buttress its argument, Joy cites N.Y.U.C.C. Law § 1-201(25)(a) (McKinney 1993), Chase Manhattan Bank, N.A. v. Natarelli, 93 Misc.2d 78, 401 N.Y.S.2d 404 (N.Y.Sup.Ct.1977), and Minkoff v. Jaunty Junior, Inc., 36 N.Y.S.2d 507 (N.Y.Sup.Ct.1942).

Section 1-201(25)(a) of the U.C.C. provides that “[a] person has ‘notice’ of a fact when ..: he has actual knowledge of it” The Registration Agreement unequivocally provides that notice is effectuated only by writing. Section 1-201 does not require written notice. “While the general definition of notice found in Article 1 does not establish any formal requirements for notice, other articles of the Code may require a writing with respect to notice given within the scope of those articles.” Anderson, U.C.C. § 1-201:128, p. 254 (3d ed. 1981). Because the parties specifically agreed that writing governed the method of notice, we are of the opinion that N.Y.U.C.C. Law § 1-201 is not dispositive of the facts in the case at bar. Similarly, we find that Chase Manhattan Bank, supra, arid Minkoff, supra, are not applicable to the circumstances herein. In those cases, the court was not presented with a contract that expressly stated that notice must be in writing.

We recognize that New York' courts espouse the principle which holds the parties to the terms of their agreement. “[T]he rule is well settled that a court may not, under the guise of interpretation, make a new contract for the parties or change the words of a written contract ... if to do so, would contradict the clearly expressed language of the contract.” Rodolitz v. Neptune Paper Products, Inc., 22 N.Y.2d 383, 386, 239 N.E.2d 628, 630, 292 N.Y.S.2d 878, 881 (1968). “[A] court may not rewrite into contract conditions that parties did not insert or, under the guise of construction, remake a contract to implement an unexpressed intention.” Matter of 17th Glenville Corporation v. Town of Glenville, 214 A.D.2d 792, 793, 625 N.Y.S.2d 100, 101 (Third Dept.1995). “If the parties to a contract adopt a provision which contravenes no principle of public policy and is not ambiguous, the courts have no right to relieve one of them from disadvantageous terms by a process of interpretation.” Seifert, Hirshorn & Packman, Inc. v. Insurance Co. of North America, 36 A.D.2d 506, 507, 321 N.Y.S.2d 815, 816 (First Dept.1971).

If we were to find that O’Sullivan’s reading of the article in The Wall Street Journal fulfilled Joy’s obligation to provide notice under the Registration Agreement, we would essentially obviate the express language of paragraphs 2(a) and 9(j) of this contract. We decline to relieve Joy of its contractual duty. We hold that the nature of notice required by a contract hinges upon the provisions of the contract. 58 Am. Jur.2d, Notice, § 31. Compare Chester Electrical Construction Corp. v. HBE Corp., 1995 WL 7974, 1995 U.S.Dist. LEXIS 116 (S.D.N.Y.1995) (actual notice not superseding the requirement of written notice as provided in contract). Consequently, we reject Joy’s assertion that notice is dictated by events outside the specifications of the contract.

Joy next argues that its breach of the notice requirement was immaterial and did not cause Mr. O’Sullivan any harm. Joy cites Bivins v. Helsby, 55 A.D.2d 230, 389 N.Y.S.2d 917 (Third Dept.1976). There, the court addressed a notice requirement promulgated by an administrative agency. We do not find that Bivins, supra, provides guidance on the issue of a material breach. We agree with the trial court’s assessment that Joy’s breach was material and caused compensable harm to O’Sullivan:

Simply stated, [O’Sullivan’s] damages are that he lost the opportunity to exercise his right to have his stock included in the registration, at that time and at that place. Since, he was not notified according to the terms of the agreement, his stock was unregistered, and he was not free from restrictions enabling him to participate in the public offering.

Trial Opinion 11/2/94 at 4. Hence, we hold that the lower court did not commit an error of law nor an abuse of discretion in denying Joy’s motions for a directed verdict and judgment notwithstanding the verdict.

We now direct our attention to the second issue presented herein. Joy contends that the lower court erred in denying its motion for a new trial because the court improperly charged the jury on the issue of actual knowledge and the verdict was against the weight of evidence. “A motion for a new trial based upon the sufficiency of the jury charge will only be granted when the court determines that the charge in its entirety and against the background of the evidence was erroneous and might have prejudiced appellant.” Sedlitsky v. Pareso, 425 Pa.Super. 327, 332, 625 A.2d 71, 74 (1993), quoting Beechwood Commons Condominium Ass’n v. Beechwood Commons Associates, Ltd., 397 Pa.Super. 217, 227, 580 A.2d 1, 6 (1990). “When reviewing whether a verdict is against the weight of the evidence, a new trial will be granted only where the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice.... ” Insurance Co. of State of Pa. v. Miller, 426 Pa.Super. 519, 522-523, 627 A.2d 797, 798 (1993).

Joy proposed the following jury instruction:

If you find that Mr. O’Sullivan had actual notice or knowledge of the proposed initial public offering in a timely manner, then you must find that Joy Technologies provided him with sufficient notice under the contract, and you must return a verdict in favor of Joy Technologies.

RR. 156 (emphasis added). The lower court gave the following charge:

If you find that Mr. O’Sullivan had actual notice or knowledge of the proposed Initial Public Offering in a timely manner, then you may find that Joy Technologies provided him with sufficient notice under the contract, and you may return a verdict in favor of Joy Technologies.

RR. 646 (emphasis added). Joy argues that the lower court erred in substituting the word “may” for “must”. Joy takes the position that the court improperly allowed the jury to decide a question of law: “[WJhether Mr. O’Sullivan’s actual knowledge of the facts was legally sufficient to supersede the requirement for written notice of those facts[?]” Appellant’s Brief at 24.

Joy’s challenge to the court’s instruction to the jury is premised on the notion that actual knowledge overrides the written notice requirements of a contract. The propriety of that argument was disposed of in our discussion of Joy’s first issue. We are of the opinion that when the trial court allowed the jury to determine whether actual notice or knowledge may excuse Joy from its contractual duty, Joy received an instruction which was more favorable than it was entitled to receive. Compare Wilkerson v. Allied Van Lines, Inc., 360 Pa.Super. 523, 521 A.2d 25 (1987) (trial court charged jury on question of law that was to appellant’s benefit). We find that actual notice or knowledge would suffice only if it stemmed from and adhered to the notice provisions of the Registration Agreement. Consequently, we conclude that the lower court did not commit an error of law in refusing Joy’s proposed charge.

As to Joy’s claim that the verdict was against the weight of evidence, the record reveals that Joy failed to provide written notice to O’Sullivan which caused substantial losses to him. We do not discern that the jury’s verdict was so contrary to the evidence as to shock one’s sense of justice. Therefore, the lower court correctly denied Joy’s motion for a new trial pertaining to Joy’s jury instruction on actual knowledge and its weight-of-evidence claim.

Joy’s third issue contests the lower court’s denial of its motion for a new trial on damages. Our standard of review of a trial court’s denial of a motion for a new trial is “whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case.” Palange v. City of Philadelphia Law Dept., 433 Pa.Super. 373, 376, 640 A.2d 1305, 1307 (1994). See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 164, 611 A.2d 1174, 1176 (1992) (whether to grant a new trial because of excessiveness or inadequacy of verdict is a matter within peculiar and sound discretion of trial court).

Joy maintains that O’Sullivan did not, as a matter of law, mitigate damages within a reasonable time, and that the lower court failed to instruct the jury as such. Specifically, Joy argues that O’Sullivan did not mitigate damages within a reasonable time because he used the market value on September 10,1993, to calculate the damages for his remaining 48,000 shares. The court below determined that the issue of whether O’Sullivan action was reasonable should be decided by the jury. The court charged the jury as follows:

Mr. O’Sullivan’s duty was to act in a commercially reasonable manner; and you may find that under the circumstances it may not have been commercially reasonable for him to sell his shares. I want to clarify that and add that to plaintiffs duty to mitigate.

RR. 661.

In Van Syckle v. C.L. King & Assoc., Inc., 822 F.Supp. 98, 102 (N.D.N.Y.1993), the United States District Court of the Northern District of New York articulated the following analysis:

Once it is determined that a plaintiff had a duty to mitigate damages, it must be ascertained whether the plaintiffs action taken in response to the defendant’s conduct was reasonable. See Novelty Textile Mills, Inc. v. C.T. Eastern, Inc., 743 F.Supp. 212, 219 (S.D.N.Y.1990) (citation omitted). If the course of conduct chosen by the plaintiff was reasonable, the plaintiff can recover despite the existence of another reasonable course of action that would have further lessened plaintiffs damages. Id. (citation omitted).

See Bache & Co., Inc. v. International Controls Corp., 339 F.Supp. 341, 351 (S.D.N.Y.1972) (whether the plaintiff acted within a commercially reasonable time “depends upon the nature of the goods, the condition of the market and the other circumstances of the case; its length cannot be measured by any legal yardstick or divided into degrees”).

Here, the breach of contract occurred on November 15, 1991, when Joy registered its stock. The stock sold for $17.00 per share. Because of Joy’s breach, O’Sullivan could not sell any of his 50,000 shares until the spring of 1992, when 16,000 of those shares became unrestricted. On March 2, 1992, he sold 2,000 shares for $15,625 each. After that sale, the market dropped rapidly and as of the time of trial in September, 1993, had never exceeded $15.50 per share, and had reached a low of under $9.00 per share. RR. 795-804. In June, 1992, an additional 4,000 shares could be sold, and in May, 1993, the remaining 30,000 shares could be sold. In June, 1992, the stock sold for $11,875 per share, and in May, 1993, the stock was trading at $9.00 per share. RR. 423-425. On September 10, 1993, the last trading day before trial, Joy stock was selling at $10,875 per share. RR. 347. To calculate the value of his remaining 48,000 shares, O’Sullivan used the market value of Joy stock on September 10, 1993, and claimed damages in the amount of $247,840,00. The jury returned a verdict in favor of O’Sullivan in that amount.

We find that the lower court properly charged the jury on the issue of damages and that the jury’s verdict is not against the weight of evidence as to shock one’s sense of justice. From the time that O’Sullivan’s shares became unrestricted to the time of trial, the market remained volatile. Having fully evaluated the evidence presented by both parties, the jury determined that O’Sullivan’s action was commercially reasonable. “The determination of damages lies within the discretion of the fact finder, who weighs the evidence and assesses the credibility of the witnesses.” Penbridge Assoc., Inc., 440 Pa.Super. at 423-27, 655 A.2d at 1022-23, citing Young v. Dart, 428 Pa.Super. 43, 53-54 n. 2, 630 A.2d 22, 27 n. 2 (1993). We conclude that the court below did not abuse its discretion nor commit an error of law in denying Joy’s motion for a new trial on damages.

Joy’s fourth and final assignment of error challenges the lower court’s award of prejudgment interest to O’Sullivan. Appellant asserts that the lower court erred in determining that O’Sullivan’s right to prejudgment interest accrued on November 15, 1991. Joy takes the position that any such right should have accrued on March 2, 1992, with respect to O’Sullivan’s 2,000 shares, and September 10, 1993, with respect to his remaining 48,000 shares.

Section 5001(b) of the New York Civil Practice Law and Rules provides:

(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.

N.Y.Civ.Prac.L & R § 5001(b) (McKinney Supp.1994). See Frederick v. Clark, 162 A.D.2d 863, 557 N.Y.S.2d 765 (1990) (prejudgment interest accrued on date cause of action occurred which was deemed due date of first installment for coverage under medical malpractice liability policy).

In the case at bar, the cause of action occurred on November 15, 1991, when Joy registered its stock and breached the Registration Agreement without providing notice to O’Sullivan. Further, we find that damages incurred on that date because O’Sullivan was precluded from selling his shares and deriving a benefit in the amount of $799,000.00. We agree with O’Sullivan that “[b]ut for Joy’s breach of the contract, [he] would have had the use of that money from that time.” Appellee’s Brief at 42. Hence, we conclude that the lower court did not commit an error of law nor an abuse of discretion in its award of prejudgment interest to O’Sullivan.

Having scrutinized Joy’s points of error and finding them to be without merit, we, accordingly, affirm the judgment.

Judgment affirmed.

      . Paragraph 9(i) of the Registration Agreement states that the law of New York shall govern all questions concerning its construction, validity and interpretation. RR. 729.

      . On pages 19-20 of its brief, Joy cites case law other than New York in support^ of its assertion that actual knowledge trumps the requirement of written notice. Upon examination, we are not convinced that those decisions are instructive to the question posed in this case. Unlike here, written notice was not contractually agreed upon and/or no ' damage resulted.

      . We note the discrepancy as to whether O'Sullivan had actual knowledge of Joy's proposal to register shares. The lower court found that the article in The Wall Street Journal was suspect since it "stated that the shares had already been registered, and therefore cannot purport to be notice of Joy’s proposal to register its shares.” Trial Opinion 11/2/94 at 4. Further, the court below determined that notice from a source not in privity of contract was inadequate in light of our court's decision in CBS, Inc. v. Capital Cities Communications, Inc., 301 Pa.Super. 557, 448 A.2d 48 (1982). Trial Opinion 11/2/94 at 3. At trial, O'Sullivan testified that upon reading the article, he was uncertain if his shares were registered by Joy. RR. 381. Had Joy complied with its contractual duty, there would be no dispute as to whether O’Sullivan had actual knowledge. See Aqua Bar & Lounge, Inc. v. United States, 438 F.Supp. 655, 657 (E.D.Pa.1977) (“The purpose of requiring a particular method of giving notice is to prevent disputes over whether notice was received”).
      Joy briefly asserts that its letter dated November 4, 1991-, with enclosures to O'Sullivan provided sufficient notice of Joy’s intention to register its stock. Appellant’s Brief at 18. Upon review, we áre convinced that this communication failed to comply with the notice requirements under the Registration Agreement.

      . We note that O’Sullivan's proposed jury instruction correctly stated that the Registration Agreement compelled Joy to provide prompt written notice to O'Sullivan of its proposal to register shares and, "any form of notice other than written prompt notice from [Joy] to [O'Sullivan] is not sufficient notice to [O’Sullivan].” R. 18.

      . O’Sullivan informs our court that on October 4, 1993, he sold the 48,000 shares at a price below the closing price of September 10, 1993, used to calculate his damages.

      . The trial court had previously given the jury the following instruction on plaintiffs duty to mitigate:
      Even if Mr. O’Sullivan could not entirely avoid any loss, he had an obligation to minimize or lessen his loss by selling his shares as soon as reasonably possible under the circumstances.
      If you do award damages your award should be limited to the difference between the price Mr. O’Sullivan could have obtained for his shares in the Initial Public Offering and the price he could have obtained for his shares within a reasonable time after the Initial Public Offering.
      RR. 652.

      . The amount of $247,840.00 represented the difference O’Sullivan would have received from the sale of his 50,000 shares on November 15, 1991 ($799,000.00), and the market values of his 2,000 shares in March, 1992 ($31,080.00 = $31,250.00 - $170.00 in underwriter commissions) and 48,000 shares in September, 1993 ($520,080.00 = $522,-000.00 — $1,920.00 in underwriter commissions). RR. 349-352.

      . Under New York law, the applicable rate for prejudgment interest is 9% per annum. Action S.A. v. Marc Rich & Co., 951 F.2d 504 (2nd Cir.1991).


author: FORD ELLIOTT, Judge:

text:
    666 A.2d 672
    COMMONWEALTH of Pennsylvania, v. Kenneth S. SMOLKO, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1995.
    Filed Oct. 10, 1995.

      Laura Dunhoff, Pittsburgh, for appellant.
    Christian A. Fisanick, Assistant District Attorney, Barnsboro, for Commonwealth, appellee.
    Before POPOVICH, FORD ELLIOTT, and BROSKY, JJ.
   FORD ELLIOTT, Judge:

In this appeal from the judgment of sentence entered in the Court of Common Pleas of Cambria County on August 16, 1994, we are asked to decide, inter alia, whether a physical deficiency that prevents a person from defending himself against unwanted sexual encounters can be the basis for a finding of forcible compulsion beyond a reasonable doubt. We hold that it can.

The facts giving rise to this appeal in general, and the aforementioned issue in particular, have been aptly summarized by the trial court, which was also the finder of fact:

The victim ... suffers from an affliction known as Pelizaeus-Merzbacher Syndrome. This disease, which effects [sic] the central nervous system, causes [the victim] to have the inability to speak, control his motor movements, restricts him to a wheel chair, and has left him with very little strength. [The trial court’s] first-hand observation of the victim supported the fact that the victim suffers from these symptoms. On April 1, 1993, [appellant] was employed by the victim’s parents as a home health aide to care for the victim and his two uncles, who also suffer from Pelizaeus-Merzbacher Syndrome. While performing this job, [appellant] was alone with the victim and his uncles. Moreover, these men relied on the [appellant] to assist or perform all of the duties which were necessary for them to survive. Based on this, the court found that the victim was in a vulnerable position and [appellant] acted from a position of authority....
The victim testified that [appellant] performed oral sex on him four times during a period when the victim’s father was away. The victim further testified that he did not want [appellant] to do this to him, but was unable to stop him----

Trial court opinion, 1/9/95 at 3 (citations to notes of testimony omitted). The testimony of victim, who could only indicate “yes” by raising his arm or “no” by crossing his arms, was as follows:

Commonwealth [Q]: When Dom [appellant’s nickname] was working there, did something bad happen?
Victim [A]: Raises arm.
Q: Did something bad happen to you?
A: Raises arm.
Q: Did Dom do something bad to you?
A: Raises arm.
Q: Did Dom touch a part of your body?
A: Raises arm.
Q: Did you want Dom to touch that part of your body?
A: Crosses arms.
Q: Could you stop Dom from touching that part of your body?
A: Crosses arms.

Notes of testimony, 6/28/94 at 51-52.

Based upon the foregoing testimony, appellant was convicted of one count of involuntary deviate sexual intercourse [IDSI] and two counts of indecent assault. He was sentenced to serve three (3) to six (6) years for IDSI, with concurrent sentences of six (6) to twenty-three (23) months for each of the indecent assault convictions.

Appellant challenges his IDSI conviction based upon his claim that, even if the victim’s testimony were believed by the trial court, there was insufficient evidence to prove that appellant engaged in deviate sexual activity with the victim by forcible compulsion. Our standard of review of sufficiency of the evidence claims is well-settled:

In reviewing a sufficiency of the evidence claim this Court must determine whether the evidence, and all reasonable inferences deducible therefrom, when viewed in a light most favorable to the Commonwealth, are sufficient to establish all the elements of the crime beyond a reasonable doubt.

Commonwealth v. Riley, 434 Pa.Super. 414, 643 A.2d 1090, 1091 (1994) (citation omitted). The test for forcible compulsion under the IDSI section of the Crimes Code is identical with the test for forcible compulsion under § 3121, the rape statute. Commonwealth v. Williams, 294 Pa.Super. 93, 439 A.2d 765 (1982). As a result, we may look to those cases addressing the issue of forcible compulsion under § 3121 for guidance.

Our supreme court dealt with the issue of the quantum of evidence necessary to support a finding of forcible compulsion beyond a reasonable doubt in Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986). In Rhodes, the attacker, a twenty-year-old man who had lived across the street from the eight-year-old victim for three years, led the young girl to an abandoned building where he ordered her to he down. When she complied, he penetrated her vagina and rectum with his penis, despite the victim’s asking him to stop. Id. at 539-542, 510 A.2d at 1218-19. Rhodes was convicted of rape, statutory rape, IDSI, indecent assault, indecent exposure, and corruption of minors. On appeal, the superior court set aside the rape conviction and remanded for resentencing. The Commonwealth appealed. In reversing the superior court, the supreme court in Rhodes stated:

‘[Fjorcible compulsion’ ... includes not only physical force or violence but also moral, psychological or intellectual force used to compel a person to engage in sexual intercourse against that person’s will.

Id. at 555, 510 A.2d at 1226. The Rhodes court continued:

The determination of whether there is sufficient evidence to demonstrate beyond a reasonable doubt that an accused engaged in sexual intercourse by forcible compulsion ... is, of course, a determination that will be made in each case based upon the totality of the circumstances that have been presented to the fact finder. Significant factors to be weighed in that determination would include the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress. This list of possible factors is by no means exclusive.
It is neither desirable nor appropriate to attempt to delineate all of the possible circumstances that might tend to demonstrate that sexual intercourse was engaged in by forcible compulsion ... That delineation will evolve in the best tradition of the common law — by development of a body of case law applying section 3121 (as it has been here construed) and the principles of construction set forth in the Crimes Code.... When forcible compulsion ... consists of ‘moral, phychological [sic] or intellectual force,’ the force may be less tangible but is not less susceptible of proof, and the critical circumstances and evidence here will be those which tend to prove or disprove compulsion or lack of consent, i.e. that such force was ‘used to compel a person to engage in sexual intercourse against that person’s will.’

Id. at 555-558, 510 A.2d at 1226-27 (emphasis added) (citations omitted). The Rhodes court found forcible compulsion based upon the child’s physical and emotional helplessness in the face of her neighbor’s commands, especially where the child knew and trusted the adult. Id. at 558, 510 A.2d at 1227.

As the Rhodes court predicted, the meaning of forcible compulsion has evolved over the years in the best tradition of the common law. Recently, courts addressing the issue have found forcible compulsion where the victim was asleep when attacked, but woke up and struggled with her attacker. Commonwealth v. Price, 420 Pa.Super. 256, 616 A.2d 681 (1992). Courts have also found forcible compulsion where an adolescent victim, undergoing therapy, submitted to sexual intercourse with the therapist out of fear that the therapist would ruin his chances for adoption or would hurt someone the victim cared about. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990), allocatur denied, 526 Pa. 629, 584 A.2d 312 (1990), denial of post conviction relief affirmed, 433 Pa.Super. 246, 640 A.2d 904 (1994), allocatur denied, 538 Pa. 665, 649 A.2d 668 (1994). Courts have also found forcible compulsion where a deaf adolescent minor who had a crush on her assailant and thought of him as her boyfriend went to an isolated location with him and lay down on the ground voluntarily, but said “no” and “off’ when her assailant pulled down the zipper on her pants. Commonwealth v. Meadows, 381 Pa.Super. 354, 357, 553 A.2d 1006, 1008 (1989), allocatur denied, 524 Pa. 618, 571 A.2d 381 (1989).

In contrast, courts have found the evidence insufficient to support a finding of forcible compulsion where the victim and the accused were both college students of approximately the same age, the victim went voluntarily to the accused’s dorm room, and the victim made no attempt to leave the room or call for help, even though the victim repeated “no” throughout the encounter. Commonwealth v. Berkowitz, 537 Pa. 143, 641 A.2d 1161 (1994). As the Berkowitz court opined, “where there is a lack of consent, but no showing of either physical force, a threat of physical force, or psychological coercion, the ‘forcible compulsion’ requirement ... is not met.” Id. at 149, 641 A.2d at 1164. Support for this position was found in Commonwealth v. Mlinarich, 518 Pa. 247, 542 A.2d 1335 (1988), reargument denied, 522 Pa. 1, 559 A.2d 504 (1989), in which a divided supreme court affirmed the superior court’s finding that the fourteen-year old victim was not forcibly compelled to submit to her attacker, who threatened to return her to a detention home if she did not acquiesce in his demands. The Mlinarick plurality attempted to carve out a distinction between psychological compulsion and intellectual or moral compulsion in arriving at its holding. Id. at 260, 542 A.2d at 1342.

With the relevant case law before us for guidance, we must decide whether sufficient evidence of forcible compulsion exists to sustain a conviction for IDSI where a paid caretaker, upon whom the victim relies for his most basic needs six hours out of the day, engages in oral sex with a young man who is confined to a wheelchair by a totally and permanently debilitating disease of the central nervous system, and whose only method of communication is by gesturing with his arms. In order to make this determination, we shall undertake a careful reading of Rhodes, as well as a careful analysis of the distinction between those cases cited supra finding forcible compulsion and those cases in which forcible compulsion was found not to exist.

Returning first to Rhodes, the polestar of our forcible compulsion analysis, we reiterate that court’s statement that, when determining whether evidence is sufficient to demonstrate forcible compulsion beyond a reasonable doubt, factors to be considered include the respective physical conditions of the victim and the accused, as well as the relative position of authority, domination, or custodial control the accused may exercise over the victim. Rhodes, supra at 554, 510 A.2d at 1226. When we consider those factors vis-a-vis the instant case, we note that appellant was placed in a position of trust by the victim’s parents, that appellant exercised complete control over the victim from 8:30 a.m. until 1:30 p.m. five days a week, that the victim was dependent upon appellant for food, cleanliness, and mental stimulation for that period, and that the victim was physically unable to tend to his most basic needs or to defend himself. (Notes of testimony, 6/28/94 at 10-16.) As a result, we conclude that two of the factors enumerated by the Rhodes court are present in the instant case.

Comparing the facts of the instant case with the facts of those cases finding a lack of forcible compulsion, we find those cases distinguishable. In Berkowitz, supra, for instance, the victim, a college student, was physically able to resist, to call out for help, or to attempt to flee; however, the Commonwealth presented no evidence that she made any effort to resist beyond saying “no.” Id. at 148-49, 641 A.2d at 1164.

In Mlinarich, on the other hand, the supreme court and the superior court faced a much more difficult factual scenario. The victim, a fourteen-year-old girl, was systematically sexually abused by her sixty-three-year-old caretaker while his wife was at work, under threat of being returned to a juvenile detention center. Based upon their distinction between a situation in which “the compulsion overwhelms the will of the victim” and one “where the victim can make a deliberate choice to avoid the encounter even though the alternative may be an undesirable one,” Id. at 259, 542 A.2d at 1341, three members of the evenly divided supreme court found insufficient evidence of forcible compulsion.

We find the instant case factually distinguishable from Berkowitz, and analytically distinguishable from Mlinarich. Clearly, here we do not have the parity that existed between the victim and the accused in Berkowitz. And just as clearly, the victim instantly was unable to “make a deliberate choice to avoid the encounter.” Mlinarich, supra at 259, 542 A.2d at 1341. Lacking the physical strength to resist, or the ability effectively to communicate his will, the victim in the case before us was at the mercy of his caretaker for six hours at a time.

As noted supra, § 3123 provides that a person can be found guilty of IDSI if, inter alia, he engages in deviate sexual intercourse with a person who is unconscious, or a person who is so mentally deranged or deficient that the person is incapable of consent. 18 Pa.C.S.A. § 3123(3), (4). The rape statute, § 3121, contains identical language. As noted supra, the Rhodes court found Rhodes guilty under the forcible compulsion subsection of the rape statute. In addition, however, the court found him guilty under the “mentally deficient” subsection, finding that an eight-year-old is mentally deficient as a matter of law to consent “to an act whose nature she could not appreciate or comprehend.” Rhodes, supra at 558, 510 A.2d at 1228.

Unfortunately, §§ 3121 and 3123 do not address the situation, such as the one before us now, in which the victim is conscious, and mentally competent, but so physically deficient as to be unable to exert his will to resist the sexual demands of another. We are confident, however, that a fair reading of Rhodes, supra, fills the gap left in the statute by the legislature. Accordingly, we find sufficient evidence of forcible compulsion beyond a reasonable doubt to sustain a conviction for IDSI.

For the foregoing reasons, we also find no merit to appellant’s second issue; namely, that there was insufficient evidence to convict appellant of indecent assault. The crime of indecent assault is codified at 18 Pa.C.S.A. § 3126. Appellant was charged under subsection (1). Section 3126 provides in pertinent part:

(a) Offense defined.—A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him, is guilty of indecent assault if:
(1) he does so without the consent of the other person[.]

18 Pa.C.S.A. § 3126(a)(1). It is readily apparent from that portion of the notes of testimony included supra that appellant’s indecent contacts with the victim were done without the victim’s consent. The record also supports the trial court’s finding that the contacts were indecent:

Commonwealth attorney [Q]: Now, when you go to make number one when you go to the bathroom, do you call that a peterdink:
Victim [A]: Raises arm.
Q: Now, did Dom touch your peterdink?
A: Raises arm.
Q: Did he touch it with his hands?
A: Crosses arms.
Q: Did he touch it with his foot?
A: Crosses arms.
Q: Did he touch it with his mouth?
A: Raises arm.
Q: [Victim], can you show us with your fingers how many times he touched it with his mouth?
A: Displays four fingers.
Q: Is it four times, [victim]?
A: Raises arm.
Q: Did it make you feel bad when he did that?
A: Raises arm.

Notes of testimony, 6/28/94 at 52-53. As a result, we find no merit to appellant’s second issue.

Because appellant’s issues three through six raise ineffectiveness of counsel claims, we shall address these together after first addressing appellant’s seventh and final issue; namely, whether the trial court erred by permitting the Commonwealth to ask leading questions of the victim. The record indicates that defense counsel objected in chambers to the Commonwealth’s request that it be allowed to ask leading questions. (Id. at 46-47.) The trial court ruled on the motion before allowing the victim to testify. In denying appellant’s objection, the trial court cited Commonwealth v. Upchurch, 355 Pa.Super. 425, 513 A.2d 995 (1986), allocatur denied, 514 Pa. 630, 522 A.2d 558 (1987), for the proposition that the use of leading questions is within the sound discretion of the trial court, and will not be disturbed absent an abuse of that discretion. (Notes of testimony, 6/28/94 at 47.) In addition, the trial court cited Commonwealth v. Tavares, 382 Pa.Super. 317, 555 A.2d 199 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989), a case we find directly on point. (Notes of testimony, 6/28/94 at 47-48.) In Tavares, two victims of cerebral palsy were further victimized by their caretaker, Tavares, who attempted to force the two to engage in oral sex. Tavares was convicted of attempted IDSI and indecent assault and appealed. On appeal, he challenged the trial court’s decision to allow the Commonwealth to ask leading questions of one of the victims, who was able to communicate by using a “speak and spell.” This court, in upholding the trial court’s decision, noted that the victim had to type out full words on the speak and spell, making it difficult and time-consuming for him to communicate a long sentence. Id. at 327, 555 A.2d at 204. We find the facts of the instant case even more compelling, since the victim here has such a limited ability to communicate verbally that only his mother can understand him. (Notes of testimony, 6/28/94 at 13.) In addition, even his mother acknowledged that she normally communicates with him by trial and error, asking questions that elicit a “yes” or “no” response until she ascertains what the victim is trying to communicate. (Id.) As a result, we find no merit to appellant’s seventh issue.

We next address appellant’s issues three through six, all of which raise ineffective assistance of counsel claims. Our standard of review when evaluating ineffective assistance of counsel claims is well settled. We presume that counsel was effective and place upon appellant the burden of proving otherwise. Commonwealth v. Williams, 524 Pa. 218, 230, 570 A.2d 75, 81 (1990). In order to do so, appellant must prove that: 1) the underlying claim has arguable merit; 2) counsel’s course of action had no reasonable basis designed to effectuate appellant’s interests, and 3) counsel’s action or inaction prejudiced appellant’s right to a fair trial. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991), citing Commonwealth v. Pierce, 515 Pa. 153, 157-159, 527 A.2d 973, 975-76 (1987). With our standard of review before us, we shall address appellant’s ineffectiveness claims in order.

Appellant alleges in his issue number three that counsel was ineffective for failing to call character witnesses. We find that this claim does have arguable merit. Evidence of good character is substantive, and may, despite evidence to the contrary, raise a reasonable doubt in the mind of the finder of fact. Commonwealth v. Carter, 409 Pa.Super. 184, 194-198, 597 A.2d 1156, 1161-62 (1991), allocatur denied, 530 Pa. 664, 610 A.2d 44 (1992). The use of character witnesses is especially important in a case such as the one before us in which only the victim and appellant know what actually happened, and where a determination of guilt is based almost entirely on issues of credibility. Commonwealth v. Luther, 317 Pa.Super. 41, 51, 463 A.2d 1073, 1078 (1983). We must, therefore, next determine whether we can address the ineffectiveness claim based upon the record before us.

In Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987), this court stated:

When an arguable claim of ineffective assistance of counsel has been made, and there has been no evidentiary hearing in the court below to permit the defendant to develop evidence on the record to support the claim, and to provide the Commonwealth an opportunity to rebut the claim, this Court will remand for such a hearing. See Commonwealth v. Spotts, 341 Pa.Super. 31, 33, 491 A.2d 132, 134 (1985). However, remand for an evidentiary hearing is not a discovery tool wherein counsel may conduct investigation and interrogation to search for support for vague or boilerplate allegations of ineffectiveness. Rather, appellant ‘must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that trial counsel may have, in fact, been ineffective,’ before remand for an evidentiary hearing will be granted. Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).

Petras, supra at 376, 534 A.2d at 485. Accord Commonwealth v. Trimble, 419 Pa.Super. 108, 114-120, 615 A.2d 48, 51-53 (1992).

In the instant case, appellant alleges that, if called to testify at a hearing, he would testify that “he questioned his attorney ... on several occasions on whether character witnesses would be useful to his case and whether his attorney needed any names of people.” (Appellant’s brief at 21.) He would further testify that “[e]ach time the subject was brought up, [his attorney] either brushed the issue aside or told Appellant that character witnesses would not be useful.” (Id.) Appellant alleges that these conversations with trial counsel can be substantiated by his mother, who was present at all of the meetings. (Id.) Finally, appellant alleges that he would testify that “there were at least two individuals who had known him all of his life who were willing to testify that they knew him and knew of his community reputation.” (Id.)

As the Commonwealth points out, however, nowhere in the brief does appellant allege that his trial counsel knew of these individuals, or knew they would be willing to testify. (Commonwealth brief at 9.) Even on appeal, these witnesses remain nameless, and the content of their testimony and availability at the time of trial remain unsupported by affidavit testimony appended to the brief. It has long been the rule in this Commonwealth that in order to obtain relief on the basis of an ineffectiveness claim premised upon counsel’s failure to call witnesses, appellant must establish that: 1) the witness existed; 2) the witness was available; 3) counsel knew or should have known about the witness; 4) the witness was prepared to cooperate and testify at trial; and 5) absence of the testimony prejudiced appellant. Commonwealth v. Petras, supra at 376, 534 A.2d at 485, citing Commonwealth v. Griffin, 357 Pa.Super. 308, 319, 515 A.2d 1382, 1387-88 (1986); Commonwealth v. Ross, 273 Pa.Super. 67, 71, 416 A.2d 1092, 1094 (1979). Accord Commonwealth v. Poindexter, 435 Pa.Super. 509, 520, 646 A.2d 1211, 1216 (1994), allocatur denied, 540 Pa. 580, 655 A.2d 512 (1995) (appellant must, inter alia, identify the witness). Appellant has not met this burden.

We agree with the Commonwealth that we must scrutinize post-conviction requests for relief, such as the one before us, carefully, lest remand for an evidentiary hearing become a matter of right every time an appellant raises an ineffectiveness claim on the basis of failure to call character witnesses. (Commonwealth brief at 10 n. 5.) Finding that appellant in the instant case has failed adequately to set forth an offer of proof that would entitle him to an evidentiary hearing, we find no merit to appellant’s issue three.

Appellant next asserts that trial counsel was ineffective for failing to obtain an independent psychological examination of the victim to assess the victim’s ability to communicate. The basis for this argument is that, if the victim had been able to verbalize what happened, the “full story” would have been elicited and could have been challenged. (Appellant’s brief at 22.) Because the victim’s mother testified that appellant could verbalize, but that other people had difficulty understanding him, appellant alleges that counsel was ineffective for not pursuing this issue. (Id.)

We find no merit to this argument, and hence no reason to reach the next prong of our ineffectiveness analysis. As noted supra, the victim’s mother testified that even she resorted to “leading” questions to elicit information from her son, and that other people have “a lot of problems” and “don’t understand nothing [sic] he says.” (Notes of testimony, 6/28/94 at 13.) Furthermore, the trial court’s decision to allow the Commonwealth to ask leading questions preceded testimony by the Commonwealth’s expert. (Id. at 33-41.) In addition, as this court stated in Tavares, supra, even where the victim was able to communicate in full sentences by use of a “speak and spell,” the trial court did not abuse its discretion by allowing the victim to respond to leading questions where answers on the “speak and spell” were time-consuming and difficult. Tavares, supra at 327, 555 A.2d at 204. Therefore, even if appellant’s trial counsel had introduced expert testimony that the victim was capable of communicating verbally to some degree, the trial court would not have abused its discretion by allowing the victim to testify through leading questions. Finally, we note that nowhere does appellant indicate that the victim’s telling the full story would tend to exculpate him.

Appellant’s penultimate ineffectiveness issue is that trial counsel should have more effectively cross-examined the victim. In a single paragraph containing no citations to authority, appellant claims that trial counsel should have cross-examined on the element of force, threat of force, or lack of consent. (Appellant’s brief at 22-23.) According to appellant, the record contains only “bald assertions” by the victim that appellant performed oral sex on him four times and he did not like it. (Id.) Once again, however, appellant does not indicate how cross-examining the victim would have exculpated him.

As this court has stated previously, “trial decisions, especially those pertaining to the nature and extent of cross-examination, are matters of style and tactics involving subtle stratagems which ordinarily are within the exclusive province of the trial counsel.” Petras, supra at 380, 534 A.2d at 487, (citations omitted). Absent any showing that appellant was harmed by counsel’s decision not to cross-examine the victim more extensively, we cannot say that trial counsel was ineffective based upon appellant’s bald assertion that counsel should have chosen a different strategy.

In his final issue, appellant argues that trial counsel was ineffective for failing to interview the other aide, who worked the afternoon shift at the victim’s home, and “perhaps” to use him as a witness. (Appellant’s brief at 23.) Appellant bases this ineffectiveness claim on the fact that the victim’s mother testified that she first became aware of the incidents at issue when she received a call from this other aide. (Id.) Again, however, appellant has failed to set forth any offer of proof as to what this aide’s testimony would have been or how it would have tended to exculpate appellant. Nor has appellant indicated that the other aide would have been willing to testify on his behalf. See Poindexter, supra at 521, 646 A.2d at 1216. As a result, we find no merit to appellant’s final issue.

For the foregoing reasons, judgment of sentence is affirmed, and jurisdiction is relinquished.

POPOVICH, J. concurs in the result.

      . We pause to note how helpful it would have been if the Commonwealth, which was permitted to ask leading questions to elicit testimony from the victim, had developed the record more fully by asking the victim questions that more specifically addressed the element of forcible compulsion. Because the Commonwealth missed this opportunity, we are left with a very lean record from which we may draw only such reasonable inferences as the limited testimony allows.

      . 18 Pa.C.S.A. §§ 3123 and 3126, respectively.

      . 18 Pa.C.S.A. § 3123 provides:

        A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:
      (1) by forcible compulsion;
      (2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;
      (3) who is unconscious;
      (4) who is so mentally deranged or deficient that such person is incapable of consent; or
      (5) who is less than 16 years of age.
      Appellant was only charged under (1), forcible compulsion.

      . This court, in Commonwealth v. Titus, 383 Pa.Super. 54, 60 n. 2, 556 A.2d 425, 428 n. 2 (1989), reviewed the state of the law of forcible compulsion after Mlinarich and Rhodes, and concluded that Rhodes was still the law of this Commonwealth.

      . Testimony at trial indicated that the victim was of average verbal intelligence and could understand the English language at least at the level of a high school graduate. (Notes of testimony, 6/28/94 at 36.)

      . The record does not indicate that a motion in limine was filed; however, the trial court states on the record that the issue was raised in chambers. (Notes of testimony, 6/28/94 at 47.)