author: CERCONE, Judge:

text:
    518 A.2d 591
    COMMONWEALTH of Pennsylvania v. Randy SHOEMAKER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 23, 1986.
    Filed Dec. 3, 1986.

      Albert J. Flora, Jr., Assistant Public Defender, Wilkes-Barre, for appellant.
    Joseph Giebus, Assistant District Attorney, Wilkes-Barre, for Com., appellee.
    Before OLSZEWSKI, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This appeal raises an issue of first impression in our Commonwealth: whether the the Spousal Sexual Assault Statute, of December 21, 1984, P.L. 1210, No. 230, 18 Pa.C.S.A. § 3128 (hereinafter referred to as the “statute”), is unconstitutional as violative of an accused’s right to privacy and equal protection under the laws.

Appellant Randy Shoemaker was convicted by a jury on December 12, 1985 of one count of spousal sexual assault, 18 Pa.C.S.A. § 3128(a)(2); one count of involuntary spousal deviate sexual intercourse, 18 Pa.C.S.A. § 3128(b)(1); and one count of simple assault, 18 Pa.C.S.A. § 2701(a)(1). He filed a timely pretrial motion to dismiss the indictment, challenging the constitutionality of the statute, which was denied after a hearing thereon. Following the denial of post-trial motions, appellant was sentenced to a term of imprisonment of eighteen (18) to thirty-six (36) months, the conviction of involuntary deviate sexual intercourse merged with the sexual assault charge for purposes of sentencing. Appellant was placed on probation for a period of two (2) years for the simple assault conviction.

The sole issue raised in this appeal is whether the lower court erred in denying appellant’s motion to dismiss the indictment. We find the trial court was correct in its ruling and, therefore, affirm the conviction and judgment of sentence.

Viewing the facts in the light most favorable to the Commonwealth, the relevant facts are as follows: The victim was the wife of appellant. In July of 1985, the victim and the appellant were residing together but had separated approximately two weeks prior to the date of the incident when appellant moved from their apartment taking some of his personal effects. Despite this separation, the appellant returned to the apartment each day to visit their child. During this period, no sexual relations occurred between the appellant and the victim. On the evening of July 29th, the victim invited appellant to the apartment to discuss custody of their child, at which time the incident occurred.

The victim testified that she and appellant engaged in a heated argument regarding custody arrangements for their child. She told him to leave the apartment and when he didn’t comply, she went to the door to call for help. At that point the two engaged in pushing and shoving resulting in an injury to the victim. At some point, appellant came at the victim with a sharp kitchen knife, threatened to harm both her and the child and proceeded to engage in oral and vaginal intercourse with the victim without her consent. She testified that she had ceased struggling with him because he had threatened her with the knife and she was fearful for her own life as well as the life of their child.

I

Appellant here argues that the Spousal Sexual Assault Statute violates his right to privacy as guaranteed by the Bill of Rights in the United States Constitution as applied to the states through the Fourteenth Amendment. U.S. Const, amend. XIV. The right to privacy is not specifically guaranteed in the Fourteenth Amendment. However, as the United States Supreme Court found in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), “[Sjpecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.” Id. at 484, 85 S.Ct. at 1681 (citations omitted). The present case concerns the relationship of marriage which is one which lies within the zone of privacy created by several fundamental constitutional guarantees. Accord: Griswold v. Connecticut, supra (holds the right to privacy protects married persons’ access to contraceptives); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) (holds the right to privacy protects a woman’s decision to terminate her pregnancy); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (holds the right to privacy protects individuals’ freedom to marry person of another race). However, the right to privacy inherent in the marriage relationship is not unrestricted but is, with certain limitations, subject to the state’s police power. See Loving v. Virginia, supra at 7, 87 S.Ct. at 1821. As the United States Supreme Court has stated,

In a long series of cases this Court has held that where fundamental personal liberties are involved, they may not be abridged by the States simply on a showing that a regulatory scheme has some rational relationship to the effectuation of a proper state purpose. “Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.” Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 417, 4 L.Ed.2d 480. The law must be shown “necessary, and not merely rationally related to, the accomplishment of a permissible state policy.” McLaughlin v. State of Florida, 379 U.S. 184, 196, 85 S.Ct. 283, 290, 13 L.Ed.2d 222.

Griswold v. Connecticut, supra 381 U.S. at 497, 85 S.Ct. at 1688-89 (Goldberg, J. concurring). Appellant asserts that the Commonwealth has not shown a compelling state interest in enacting the statute.

We begin by noting that the spousal sexual assault statute, as is true of any other statutory provision, enjoys a strong presumption of constitutionality. See 1 Pa.C.S. § 1922(3); Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981) (“... we must be mindful of the presumption in favor of constitutionality of lawfully-enacted legislation ... [A]n act of assembly will not be declared unconstitutional unless it clearly, palpably and plainly violates the constitution, (citations omitted) Any doubts are to be resolved in favor of sustaining the legislation.”). See also In re Jones, 286 Pa.Superior Ct. 574, 429 A.2d 671 (1981). As will appear, we have concluded that the statute does not “clearly, palpably and plainly” violate appellant’s right to privacy or to equal protection under the laws. Accordingly, we will not declare it unconstitutional.

The state has a compelling interest in protecting the fundamental right of all individuals to control the integrity of his or her own body. The crimes of rape and involuntary deviate sexual intercourse are crimes of violence clearly within the ambit of the state’s power to police. An important function of government is its exercise of its police power for the purpose of preserving the public health and safety and to accomplish that purpose, the legislature may limit the enjoyment of personal liberty and property. See Fabio v. Civil Service Commission of the City of Philadelphia, 30 Pa.Cmwlth. 203, 373 A.2d 751 (1976) (termination of police officer’s commission for acts of adultery not unconstitutional invasion of privacy); Commonwealth v. Erb, 232 Pa.Superior Ct. 94, 332 A.2d 461 (1974) (right to privacy must accede to the interests of criminal law enforcement under exigent circumstances).

The right to privacy within the marital relationship is not absolute and, in this case, must be balanced against the state’s interest in protecting an individual’s right to the integrity of his or her own body. As the Attorney General succinctly stated in its brief in support of the Commonwealth, “To say that the right to choose one’s marriage partner is a fundamental right protected by the right of privacy is not to say that marriage, once entered into, becomes a fortress impervious to any legal action brought by one partner against the other.”

Prior to the passage of the Spousal Sexual Abuse Act, marriage was a defense to the charge of rape except in limited situations. See 18 Pa.C.S.A. §§ 3103 and 3121. The enactment of the spousal sexual assault statute by the legislature is responsive to a changing view of society and, particularly, to a recognition of the right of a married woman to be secure in her own home.

The enactment of this statute is another step in the continuing erosion of the common law notion of a married woman as chattel. Over the years, the legislature and the courts have invaded the “sanctity of the marital home” for legitimate purposes of public safety. Most notable is the Protection from Abuse Act, Act of October 7, 1976, P.L. 1090, No. 218, 35 P.S. § 10181-10190, which provides remedies and procedures relating to abuse of a person by another person who resides with them. It has been described as a “vanguard measure dealing with the problems of wife and child abuse.” Cipolla v. Cipolla, 264 Pa.Superior Ct. 53, 55 n. 1, 398 A.2d 1053, 1054 n. 1 (1979). The act provides for the court to enter a temporary, ex parte order evicting the alleged abuser from the home pending a full hearing on the accusation. 35 P.S. § 10186(a)(3). This procedure was upheld in the face of a due process constitutional challenge. See Boyle v. Boyle, 12 Pa.D. & C.3d 767 (1979). Accord: In re Penny R., 353 Pa.Superior Ct. 70, 509 A.2d 338 (1986).

Over the years, the legislature has. passed a series of statutes enlarging the rights and powers of married women to contract, to own property, to bring suit, and to have the same power and control over minor children as fathers. See, for example, 48 P.S. § 32.1 (repealed) (Married women shall have the same right and power as a married man to acquire, own, possess, control, use, convey, lease or mortgage property of any kind); 48 P.S. § 33 (repealed) (Married women may purchase sewing machines). See generally The Substantive Rights of Married Women Acts, 48 P.S. §§ 31-92. The very existence of these statutes evidences that legislation follows the changing tide of societal belief, and properly so.

The abolition of the common law crime of “criminal conversation” further demonstrates how changing societal mores are reflected in the law. A cause of action for criminal conversation was made out upon plaintiffs proof that, while married to plaintiff, plaintiffs spouse and defendant engaged in at least a single act of sexual intercourse without consent of plaintiff. Originally, this cause of action was available only to husband/plaintiffs. In Kar-chner v. Mumie, 398 Pa. 13, 156 A.2d 537 (1959), the court extended the right to bring such cause of action to married women. In 1976, the Supreme Court abolished the tort of criminal conversation calling it an anachronism in today’s society. Fadgen v. Lenkner, 469 Pa. 272, 365 A.2d 147 (1976). So too, in 1986, to protect a person from criminal liability for rape or involuntary deviate sexual intercourse merely because the victim was the aggressor’s spouse would be an anachronism in todays’s society.

II

We find appellant’s claim that the spousal sexual assault statute violates the equal protection clause of the Fourteenth Amendment, U.S. Const, amend. XIV, § 1, to be untenable and unpersuasive. Appellant argues that while consent is a defense to the crime of rape, the consent “implied” within the marital relationship is not a defense to the charge of rape when the act occurs between spouses. In this respect, appellant argues, married and unmarried persons are treated differently. The logical fallacy in appellant’s claim is his equation of “consent” and “implied consent.” “Consent”, in its commonly understood usage as “agreement as to action or opinion,” Webster’s New Collegiate Dictionary (1973), is available as a defense to both married and unmarried accuseds. The withdrawal of “implied consent” as a defense to one who is accused of sexually assaulting his or her spouse merely places the married accused on the same footing as the unmarried accused. Any claim that appellant is treated unequally is superficial and spurious to say the least. See generally Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975) (The starting points of an equal protection analysis in respect to particular legislation is a determination as to whether the state has created a classification for unequal distribution of benefits or imposition of burdens.)

Therefore, the judgment of sentence in this case will be affirmed.

      . See Griswold v. Connecticut, supra at 495, 85 S.Ct. at 1688:
      The entire fabric of the constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected.

      . In Commonwealth v. Arnold, 356 Pa.Superior Ct. 343, 514 A.2d 890 (1986), this court rejected an invasion of privacy argument raised by a defendant convicted of sexual crimes committed on a minor child residing with appellant. While the panel was not absolutely correct in stating that "[t]he right to privacy in the family setting has never been extended to criminal acts in the family or against or with family members", supra, 356 Pa.Superior Ct. at 348, 514 A.2d at 892, (spousal sexual assault has been protected), the rationale in Arnold is apropos to this case. That is, the state may properly regulate certain activities which occur in the home.

      . When discussing the passage of this piece of legislation, Rep. Harper stated, “I think that we as legislators should make laws to protect those who cannot protect themselves____ So let us go ahead ... and protect women, expecially women, a few men, who cannot protect themselves." Legislative Journal-House 2238 (November 20, 1984). See generally People v. Liberto, 64 N.Y.2d 152, 164, 485 N.Y.S.2d 207, 213, 474 N.E.2d 567, 573 (1984) (noting that “[a] married woman has the same right to control her body as does an unmarried woman”).

      . See “To Have and to Hold: The Marital Rape Exemption and the Fourteenth Amendment,” 99 Harvard Law Review 1255 (1986): “A ‘female perspective,' ... interprets marital rape as involving *brutality and terror and violence and humiliation to rival the most graphic stranger rape.' ” 99 Harv.L.R. at 1261 quoting D. Finkelhor, "Marital Rape: The Misunderstood Crime”, Address to the New York County Lawyer’s Association (May 3, 1984).

      . See also Hack v. Hack, 495 Pa. 300, 303, 433 A.2d 859, 860 (1981) (In acting to abolish the doctrine of interspousal tort immunity the Court said: "[A] tortfeasor’s immunity from liability because of his marital relationship with the injured party cannot be sustained on the basis of law, logic or public policy. Hence we abrogate the judicially-created doctrine of interspousal immunity.”)

      . The source of the "implied consent" concept is said to be a statement made by the 17th century English jurist Sir Matthew Hale. He wrote as follows:
      [T]he husband cannot be guilty of a rape committed by himself upon his wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.
      1 M. Hale, The History of the Pleas of the Crown (1736) at 269. See, also, Weishaupt v. Commonwealth, 227 Va. 389, 315 S.E.2d 847 (1984).


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    518 A.2d 808
    PROGRESSIVE HOME FEDERAL SAVINGS AND LOAN ASSOCIATION v. James KOCAK and Catherine Kocak, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued June 4, 1986.
    Filed Sept. 23, 1986.
    Reargument Denied Jan. 6, 1987.

      Daniel L. Haller, Aliquippa, for appellants.
    Walter A. Koegler, Pittsburgh, for appellee.
    Before ROWLEY, DEL SOLE and CERCONE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order entering summary judgment for appellee, Progressive Home Federal Savings and Loan Association, on its complaint in mortgage foreclosure and against appellants, James and Catherine Kocak, on their counterclaim. Appellee filed a complaint in mortgage foreclosure against appellants. In their answer thereto, appellants admitted the execution and delivery of the mortgage, and the fact that they were not current with the mortgage payments. Appellants generally denied the amount of attorney’s fees. Appellants also filed a counterclaim alleging that appellee had violated the Truth in Lending Act. By order dated July 5, 1985 and docketed on July 8, 1985, the trial court granted summary judgment for appellee because it found that the general denial of attorney’s fees had the effect of an admission under Pa.R.C.P. 1029(b) and 1141(b), and therefore, there was no dispute as to the default and the amount due. Furthermore, the trial court entered summary judgment against the appellants on their counterclaim because it was lacking in merit as determined by a review of the pleadings. On July 17, 1985, appellee praeciped to enter judgment on the July 5, 1985 order, and on August 15, 1985, appellants filed their notice of appeal.

Although the issue of appealability has not been raised by the parties, the Superior Court may raise jurisdictional questions sua sponte. Rossi v. The Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985); Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., Inc., 296 Pa.Super. 62, 442 A.2d 296 (1982). Because in this case the appeal was not taken within 30 days of the July 8, 1985 filing of the order entering summary judgment, we must quash the appeal as being untimely.

An order granting summary judgment is final and appealable, and once summary judgment is granted, an appeal must be filed, if at all, within 30 days. Burkhart v. Brockway Glass Co., 352 Pa.Super. 204, 507 A.2d 844 (1986); Pa.R.A.P. 903(a). See also: Hunter v. Employers Insurance of Wausau, 347 Pa.Super. 227, 500 A.2d 490 (1985) (when no appeal is taken directly from summary judgment, the judgment is final and cannot be vacated sua sponte); Whirley Industries, Inc. v. Segel,. 316 Pa.Super. 75, 462 A.2d 800 (1983) (grant of a demurrer which is treated as a summary judgment is a final order); US. National Bank in Johnstown v. Johnson, 506 Pa. 622, 487 A.2d 809 (1985) (exceptions do not have to be filed to an order sustaining preliminary objections in the nature of a demurrer before ah appeal can be taken); Pa.R.A.P. 903(a).

The trial court’s order docketed on July 8, 1985 in this case stated: "... it is hereby ORDERED that the Plaintiff’s Motion is granted and Summary Judgment is entered____” This order was final and appealable, and appellant had to file an appeal, if at all, within 30 days of this order. Because the order stated that “judgment is entered” it was entirely unnecessary for appellee to prae-cipe for judgment, as it did on July 17,1985. Once the trial court’s order entering judgment was filed on July 8, 1985, judgment was entered. The subsequent praecipe for judgment was a meaningless act because the judgment had already been entered. See: Pa.R.C.P. 227.4(2) (the prothon-otary shall enter judgment on praecipe of a party when the court itself does not enter judgment) (emphasis added). Because the appeal from the summary judgment was filed on August 15, 1985, more than 30 days after the entry of the judgment on July 8,1985, the present appeal is untimely and must be quashed.

Appeal quashed.

      . Consumer Credit Protection Act of May 29, 1968, 82 Stat. 146, P.L. No. 90-321, 15 U.S.C. §§ 1601 et seq. (as amended through March 23, 1976, and Federal Reserve Regulation Z, 12 C.F.R § 226.1 et seq.


author: BECK, Judge: WIEAND, Judge,

text:
    518 A.2d 810
    Cynthia WHITE, a Minor by Her Parent and Natural Guardian Rebecca STEVENS and Rebecca Stevens in Her Own Right v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Philadelphia Electric Company, and City of Philadelphia. Appeal of SEPTA.
    Superior Court of Pennsylvania.
    Argued May 30, 1986.
    Filed Oct. 28, 1986.
    Reargument Denied Jan. 8, 1987.

      Gary R. Battistoni and Alfred W. Putnam, Jr., Philadelphia, for appellant.
    R. David Bradley, Philadelphia, for White, appellee.
    Before WIEAND, BECK, and JOHNSON, JJ.
   BECK, Judge:

Appellant Southeastern Pennsylvania Transportation Authority (“SEPTA”) raises three issues on appeal. We find none of them to have merit. We, therefore, affirm the judgment of the trial court.

On September 15, 1977, plaintiff-appellee Cynthia White, then twelve years old, was riding home from school on a SEPTA bus. She was on public transportation because of a school bus drivers’ strike. It was a hot afternoon, the air conditioning on the bus was not working and the windows were open. Miss White sat next to an open window toward the rear on the bus on the right hand side. She rested her arm on the open window track with her elbow protruding about one to three inches out of the bus.

As the bus progressed, a police car approached from the opposite direction with its lights and siren on. The bus swung to the right, possibly mounting the curb, and Miss White’s elbow struck a utility pole as the bus passed by. She suffered permanent injuries as a result. She spent nine days in the hospital, underwent the insertion of two metal pins in her elbow, and required an additional nine months of convalescence before she was fully able to care for herself. She is permanently scarred due to tissue loss on her arm.

The jury awarded Miss White $243,000 in damages, but also found that she had been twenty percent (20%) negligent in extending her elbow out of the window of the bus. Therefore the trial court reduced the award by the amount of plaintiff’s camparative negligence to $194,000. It also added Rule 238 delay damages of $87,133.81, resulting in a final molded verdict of $281,133.81. SEPTA timely filed a motion for a new trial which the trial court denied. This appeal followed.

The first issue on appeal is whether the trial court committed reversible error in charging the jury on two points. Specifically, SEPTA contends that Judge Kremer’s instructions on loss of future earnings or earning capacity and on the Assured Clear Distance Rule (the “Rule”) were erroneous. We will consider these two allegations of error in the charge seriatim.

Miss White was still a very young woman at the time of trial. She had the majority of her working life ahead of her. Certain occupations that Miss White had considered pursuing are foreclosed to her due to her injury. For example, she can no longer pursue her ambition of becoming a nurse’s aide because the injury to her arm will prevent her from assisting patients who have difficulty walking. At the time of trial, Miss White worked as a counter assistant at a vision center earning $3.75 per hour.

Because of Miss White’s age at the time of her injury, the bulk of her claim for damages was based on lost earnings. SEPTA’s allegation of error is that the trial court’s instructions may have confused the jury as to how loss of future earnings damages are calculated. Specifically, SEPTA contends that the trial court did not sufficiently explain that a plaintiff’s remaining post-injury earning capacity is to be deducted from the earnings she would have gleaned from those occupations she could have pursued absent the injury. Gary v. Mankamyer, 485 Pa. 525, 403 A.2d 87 (1979).

The law in this area is rather commensensical. If a plaintiff had the potential to earn a given amount without the injury and is now limited to a lower paying group of a possible jobs due to the injury, then a jury may award the plaintiff the difference between plaintiff’s pre- and post-injury earning potentials. To use a hypothetical, if plaintiff had the potential to earn 5X before the accident but would be unable to earn more than 3X because of her injury, then a proper award would be 2X. Id.; Williams v. Dulaney, 331 Pa.Super. 373, 480 A.2d 1080 (1984).

Following a review of the trial court’s charge, we conclude that the jury was adequately instructed as to loss of future earnings damages. As to this issue, the trial court began by stating that “[a] plaintiff is entitled to damages measured by the amounts to which her ability to earn money has been reduced. That is the degree to which her ability to earn money has been reduced.” (N.T. 736) (emphasis added). The trial judge reiterated this point later in the charge, stating:

In determining the degree of impairment of future earning capacity, and the amount of future loss, you must ascertain the difference between the yearly amounts which the plaintiff probably would have or could have earned during her work expectancy — not life expectancy — and the amounts which she probably would earn during that period of work expectancy. You evaluate that which will happen in the future, and that which could have happen (sic) had she not been injured.

(N.T. 741) (emphasis added). The above quoted passages set forth the applicable law in a way that a lay person can readily understand and are obviously correct statements of the law.

SEPTA’s true concern as to the charge on future earnings damages appears to be that the charge on this issue was so lengthy, as was the total charge, that these two accurate statements of the law were likely lost in the numerous other instructions the trial judge delivered as to future earnings. As an appellate court reviewing the jury charge, we must remain conscious that a trial judge is given wide latitude when charging the jury. Kopar v. Mamone, 419 Pa. 601, 215 A.2d 641 (1966). The fact that a charge is lengthy may only indicate that the judge is consciously fulfilling his/her duty to clarify the instructions so that the jurors are sure to understand the questions they are to decide. Wood v. Smith, 343 Pa.Super. 547, 495 A.2d 601 (1985). We certainly cannot reverse merely because the trial court restated a point several times or because the jury might have been selectively inattentive to the charge.

In this case, the fact that the charge was lengthy does not supplant the accuracy thereof. There is no indication that the jury was confused as to the future earnings damages; they asked no questions nor did they ask to have any portion of the charge explained or repeated. The trial court did not err by providing a detailed charge on a complex topic.

SEPTA’s second allegation of error in the charge is that the trial court erred by including any reference to the Assured Clear Distance Rule. As SEPTA frames the issue, “[t]he trial court also committed clear and reversible error in charging the jury on the assured clear distance rule, which was absolutely inapplicable to this case.” We disagree.

The Assured Clear Distance Rule is a fancy label for what is probably just a principle of safe driving, i.e. that no person should drive a vehicle at a speed greater than that which will allow the driver to stop within the distance ahead that he can clearly see. See Unangst v. Whitehouse, 235 Pa.Super. 458, 344 A.2d 695 (1975). The Rule has been codified at 75 Pa.Cons.Stat.Ann. § 3361 (1976) and states as follows: •

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, or at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when travelling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

The Rule usually comes into play where a vehicle collides with an obstacle in the vehicle’s path. SEPTA is correct in stating that the Rule does not apply in a case where the object in the assured clear distance of the vehicle is an oncoming vehicle. Thus, the Rule does not require that the driver of a vehicle drive at whatever speed would be required to avoid colliding with an oncoming vehicle approaching in the driver’s own path of travel. Mickey v. Ayers, 336 Pa.Super. 512, 518, 485 A.2d 1199, 1203 (1984); Turner v. Smith, 237 Pa.Super. 161, 165-9, 346 A.2d 806, 809-10 (1975).

Given this limited applicability of the Rule, we agree that it appears not to have been directly implicated in this case. Since the Rule does not apply to oncoming vehicles, it was not implicated by the emergency vehicle that was approaching the bus. In this case, the only other possible basis for involving the Rule is the bus driver’s contention that there was a saw horse type barricade extending into the road which took up some of the width of the road. The driver testified that the fact that this barricade was in the road was one reason he had to swerve the bus so radically toward the curb to avoid hitting the oncoming emergency vehicle. (N.T. 506-08). However, this barricade was in the westbound lane of the road and the bus was then in the eastbound lane. (N.T. 506). Therefore, the barricade was not in the “assured clear distance” of the bus.

SEPTA argues that from the foregoing, we must conclude that the trial judge’s instruction on the Rule was reversible error because the jury could have based its verdict on that erroneous instruction. We do not agree. Our courts have frequently reiterated the maxim that in reviewing allegedly incorrect jury instructions, an appellate court must read the charge in its entire context. James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690-3 (1960); Harman et ux. v. Chambers, 358 Pa. 516, 519, 57 A.2d 842, 844 (1948). This maxim is particularly important in a case such as this, where the trial court did indeed mention in its charge a rule of law that appears not to have been directly applicable to the case before it. In such a case, we must read the unnecessary instruction in its context to ascertain whether its inclusion constituted error sufficiently harmful to warrant reversal. We cannot reverse on the basis of isolated inaccuracies. Naccarati v. Garrett, 351 Pa.Super. 437, 506 A.2d 428 (1986); Levin v. Sears, Roebuck and Company, 218 Pa.Super. 304, 280 A.2d 822 (1971) (one erroneous sentence in charge does not warrant new trial if in context of whole charge it does not constitute fundamental and prejudicial error). We conclude that in the present case, given the context in which the instruction on the Rule was given, the error was harmless.

The trial judge did not expressly charge the jury that the Rule was implicated in this case by either the oncoming emergency vehicle or the barricade in the road. Rather, Judge Kremer delivered the charge on the Rule only as one brief portion of his lengthy charge regarding the negligence of SEPTA and whether the SEPTA driver acted in accordance with the applicable standard of care under the totality of the circumstances of this case. (N.T. 692-95). Earlier in the charge, the trial judge had carefully instructed the jury to decide between the conflicting testimony as to whether there was indeed any barricade in the road and, therefore, whether the driver had to pull the bus over as far as he did. (N.T. 664-5). The trial judge made no mention of the Rule at that point in the charge. Somewhat later, the court instructed the jury as to the vigilance required of any driver and the particularly high level of care required of a common carrier. The court stated:

You may find that vigilance, such vigilance encompasses a constant viewing of what is ahead, and what is going on as all these things are unraveling and unfolding. If you find that the SEPTA driver was not properly observing, looking, operating his bus, then you may consider whether or not, to you, that is an absence of the exercise of ordinary care, and was negligence.
It is for you to decide whether there was a barricade or an obstacle in the road, and if so, whether the SEPTA driver anticipated or should have anticipated that it be pulled to the right ... It is for you to determine whether the SEPTA driver acted with due care under all those circumstances.

(N.T. 692).

It was only then that the trial judge specifically addressed the Rule as follows:

It is for your to decide what the bus did. It is for your [sic] remember all of the measurements. You may consider that under the law the operator of a motor vehicle, automobile or bus, had the duty to look where he is going, and while he is looking he must have his vehicle under such control that he can stop within the assured clear distance ahead. You always must have your vehicle under such control so that you can come to a stop within the — within what we call the assured clear distance ahead — the distance that you can reasonably see you must then be able to stop.
In this case it is my recollection that the testimony was that the roadway, at this point where the accident occurred, was straight ahead; so that you could see ahead of you, and that is up to you to recall the testimony.
If you were to find that the driver of the SEPTA bus was not in such control that he could properly stop within the assured clear distance ahead, you could consider that as evidence of negligence. And then you would have to decide whether that was a substantial factor, or one of the substantial factors in causing the accident. You do not have to prove one piece of negligence, you could prove two pieces of negligence. The question is whether one, two, three, four, five became what we call a substantial factor in causing the accident.

(N.T. 694-5).

Having thus analyzed the charge on the Rule in its entire context, it is clear that the trial judge did not submit the Rule as a principle of law or statute which alone would establish the standard of care against which the driver’s conduct should be measured. Rather, the Rule was discussed only as one possible element of the applicable standard, one expression of the general requirement of vigilance by a driver. Since the central question in this case regarding the driver’s conduct was whether it was negligent for him to swerve the bus to the right to avoid the emergency vehicle, we do not see how the jury could have based its verdict solely on the Assured Clear Distance Rule. The trial judge adequately explained that the Rule is basically one concerned with speed and ability to stop. Here, the fundamental question was not whether the driver could stop but rather whether he reacted to the situation before him in a prudent manner. In other words, under all of the circumstances, was he operating his vehicle sufficiently carefully and did he prudently appraise the situation around him when he swerved to the right, thus bringing Miss White’s arm into contact with the pole? The fact that in the context of a detailed charge on the applicable standard of care, the trial judge reminded the jurors of one fundamental rule of safe driving not precisely applicable to the case before it does not constitute reversible error.

SEPTA next complains that the verdict was so excessive that the trial court committed error by refusing to grant SEPTA’s motion for remittitur or a new trial. A verdict is so excessive as to merit a new trial when it shocks the court’s sense of justice. Lokay v. Lehigh Valley Co-op Farmers, Inc., 342 Pa.Super. 89, 492 A.2d 405 (1985). The jury verdict in the instant case was $243,000. In arriving at the verdict, the jury must at least have considered plaintiff’s expert witness’ testimony that plaintiff had suffered a loss of future earning potential equal to between $162,000 and $337,000. The jury was also properly instructed to consider past and future pain and suffering, including embarrassment and humiliation, scarring and disfigurement, and loss of enjoyment of the pleasures of life. (N.T. 731).

Considering all of the factors which the jury could have and probably did weigh in reaching their verdict, it is not at all unreasonable that they arrived at the amount that they did. The verdict does not shock our sense of justice, especially in light of the fact that the total verdict did not even come close to the upper limit set by plaintiff’s expert for lost future earnings alone. The trial court did not err in denying SEPTA’s motions.

Finally, SEPTA argues that it was entitled to judgment as a matter of law because Miss White’s act of resting her arm on the window track allegedly constituted contributory negligence per se and, in SEPTA’s words, this act “was the only ‘substantial factor’ in causing her injury.” Brief for Appellant at p. 26. Therefore, SEPTA contends that the trial judge should have removed from the jury both the determination of Miss White’s negligence and the apportionment of negligence required by our comparative negligence statute. SEPTA argues the trial judge should have held as a matter of law that Miss White’s negligence was at least fifty-one percent (51%) causal and that her recovery, therefore, was barred. We disagree. Miss White's conduct was not negligent per se. Moreover, the trial judge was correct in submitting both that and the causation issue to the fact-finder.

“Negligence per se” has been defined as:

Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it.

Black’s Law Dictionary, p. 933 (5th ed. 1979). See also Restatement (Second) of Torts §§ 285-6 (1965).

The term is most commonly used to refer to the first type of conduct referred to in the foregoing definition, that is, conduct violative of a statute or similar enactment. Prosser v. Keeton on Torts 220 (W.P. Keeton ed., 5th ed. 1984); Jinks v. Currie, 324 Pa. 532, 188 A. 356 (1936); Landis v. Conestoga Transportation Company, 349 Pa. 97, 36 A.2d 465 (1944). Obviously in this case there is no claim that Miss White violated any statute. Thus, SEPTA is referring to negligence per se in the sense of conduct that the court must hold, as a matter of law, to have been outside the dictates of ordinary care.

SEPTA primarily relies on The Pittsburgh and Connells-ville Railroad Company v. McClurg, 56 Pa. 294 (1867), to support its argument that Miss White’s conduct was negligent per se. In McClurg, the plaintiff had rested his elbow on the window sill of an open window on defendant’s railroad car. His elbow was injured when that car collided with another of defendant’s cars standing on a switch on defendant’s road. Id., 56 Pa. at 295. The court held that plaintiff was contributorily negligent as a matter of law or, in the court’s terms, negligent “in se”, and his recovery, therefore, barred. Id., 56 Pa. at 300. The McClurg court opined

that where a traveler puts his elbow or arm out of a car window, voluntarily, without any qualifying circumstances impelling him to it, it must be regarded as negligence in se; and when that is the state of the evidence it is the duty of the court to declare the act negligence in law.

Id.

SEPTA apparently finds McClurg to be precisely analogous to the case before us. We do not. McClurg did not involve a child plaintiff, whereas Miss White was twelve at the time of this accident. Assuming that under McClurg a Pennsylvania court would find today that an adult who rests her arm on a car window is negligent as a matter of law, the court could not automatically reach the same conclusion in a case involving a child plaintiff.

The law of Pennsylvania has long recognized that the standard of care to be applied to children accused either of negligence as a defendant or contributory negligence differs from that to be applied to adults. In Kuhns v. Brug-ger, 390 Pa. 331, 135 A.2d 395 (1957), the Supreme Court of Pennsylvania explained the distinction as follows:

Even though the standard of care applicable to a minor differs from that applicable to an adult, nevertheless a minor may be guilty of actionable negligence. Both an adult and a minor are under an obligation to exercise reasonable care; however, the ‘reasonable care’ required of a minor is measured by a different yardstick — it is that measure of care which other minors of like age, experience, capacity and development would ordinarily exercise under similar circumstances. In applying that yardstick, we place minors in three categories based on their ages: minors under the age of negligence; minors over the age of fourteen years are presumptively capable of negligence, the burden being placed on such minors to prove their incapacity; minors between the ages of seven and fourteen years are presumed incapable of negligence, but such presumption is rebuttable and grows weaker with each year until the fourteenth year is reached.

Id., 390 Pa. at 339-40, 135 A.2d at 401. See also Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980) (allocatur denied).

The trial court in this case charged the jury at length regarding the different standard of care to be applied in judging a child’s conduct. (N.T. 657, 660-1, 673, 683, 697-8, 700). The court, therefore, properly focused the jury’s attention on the crucial factual distinction between this case and McClurg — the plaintiff’s age. Since it is hornbook law that it is for the fact-finder to determine the particular standard of care to be applied under the circumstances of a particular case, Prosser and Keeton on Torts at 236, it was entirely proper for the trial court to submit the issue of Miss White’s contributory negligence to the jury. In fact, in Kuhns v. Brugger, supra, the court expressly stated that a question concerning the capability for negligent conduct of a child between the ages of seven and fourteen is for determination by the jury, since such questions involve the determination of judgment factors which are often closely associated with questions of fact. Thus, they are hardly ever for resolution by the court. Kuhns, 390 Pa. at 341-2, 135 A.2d at 401-02. See also East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984) (existence of negligence is usually question for the jury and can be removed from jury only when facts leave no room for doubt).

It was also correct for the trial court to leave the apportionment of the causal negligence to the jury. Under our comparative negligence statute, the contributory negligence of the plaintiff does not bar her recovery unless it was greater than the causal negligence of the defendant. Where the plaintiff’s negligence was equal to or less than the defendant’s causal negligence, the plaintiff’s recovery is diminished in proportion to the negligence attributed to the plaintiff. 42 Pa.Cons.Stat.Ann. § 7102(a) (1978). We have previously stated that the totality of the causal negligence is a matter properly determined by the jury. It is only in the rare case that a court should hold as a matter of law that the negligence of one party is equal to or greater than that of another. Peair v. Home Association of Enola Legion 751, 287 Pa.Super. 400, 408, 430 A.2d 665, 669 (1981) (allocatur denied) (citing Cirillo v. Milwaukee, 34 Wis.2d 705, 150 N.W.2d 460 (1967)). Thus, an appellate court should be very reluctant to overturn the jury’s apportionment of negligence. Hollie v. Gilbertson, 38 Wis.2d 245, 250, 156 N.W.2d 462, 465 (1968); Marcus v. Cortese, 98 N.M. 414, 649 P.2d 482 (1982). In fact, the Supreme Court of Wisconsin has stated that it is particularly reluctant to interfere with the jury’s function in a case where the negligence of a child is being compared to that of an adult. Cirillo v. Milwaukee, supra, cited with approval in, Peiar, supra.

We find nothing in the record of this case that suggests that the trial judge should have usurped the jury’s function and held as a matter of law that Miss White’s conduct was the only substantial factor in causing her injury. Nor do we find anything to suggest that the jury’s allocation of negligence was unreasonable disproportionate. The jury did allocate twenty percent (20%) of the negligence to Miss White, thus evidencing their careful consideration of her conduct. Moreover, there was ample evidence to support the jury’s conclusion that the SEPTA driver had not acted with due care and that the sharp swerving of the bus toward or over the curb had been a substantial factor in causing Miss White’s injury.

Even if this was a case involving a plaintiff who was negligent per se, and the existence of negligence had properly been determined by the. court as a matter of law, the allocation of negligence between plaintiff and defendant would still be for the jury. As the Georgia’"'Court of Appeals has aptly stated:

While an act defined by the law as negligence per se is not issuable, in the sense that no issue may be made as to the act being or not being negligence, yet is still within the exclusive province of the jury to determine whether one shown to have been guilty of negligence per se, was guilty of greater negligence than another shown to have been guilty of some other kind of negligence per se or merely of negligence as a matter of fact and to compare the two and determine which is greater.

Jones v. Secress, 106 Ga.App. 96, 98, 126 S.E.2d 296, 298 (1962); Accord Renz v. Penn Central Corporation, 87 N.J. 437, 435 A.2d 540 (1981); Eden v. Consolidated Rail Corporation, 87 N.J. 467, 435 A.2d 556 (1981). To hold otherwise would be to carve out one group of cases, those involving negligent per se plaintiffs, and as to them alone reinstate contributory negligence as an automatic bar to recovery. This would be clearly inconsistent with the intent of the legislature as expressed in our comparative negligence statute.

The judgment of the trial court is affirmed.

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

WIEAND, Judge,

concurring and dissenting:

I agree with the majority that the trial court committed error when it instructed the jury that it could find SEPTA negligent if SEPTA’s driver failed to have the bus under such control that he could bring the bus to a stop within the assured clear distance ahead. This rule, which the trial court defined for the jury, has application to static or essentially static objects appearing within the assured clear distance on the roadway in front of the driver of a vehicle. The rule has no application to the rapid, perhaps erratic, approach of a vehicle moving in the opposite direction. Mickey v. Ayers, 336 Pa.Super. 512, 518, 485 A.2d 1199, 1203 (1984); Adams v. Mackleer, 239 Pa.Super. 244, 250, 361 A.2d 439, 442 (1976); Turner v. Smith, 237 Pa.Super. 161, 165-169, 346 A.2d 806, 808-809 (1975).

However, I am unable to agree with the majority that this error was harmless. The trial court’s jury instructions expressly permitted the jury to find SEPTA negligent for violating a principle of law which, as the majority concedes, had no application to the facts. This was fundamental error. “In determining whether fundamentally erroneous instructions require the grant of a new trial, whether such instructions did or did not bring about the complained of verdict is not the question. If it appears that such instructions might have been responsible for the verdict, a new trial is mandatory.” Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981) (emphasis in original) (citation omitted), quoting Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 468, 209 A.2d 279, 282 (1965). See also: Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985) (“If the jury charge is fundamentally erroneous or has a tendency to mislead or confuse rather than to clarify the issues, a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict.”).

Since the jury might have reached its verdict as a result of the erroneous instruction regarding the “assured clear distance ahead” rule, I would reverse and remand for a new trial.

      . Miss White originally joined Philadelphia Electric Company (PECO) and the City of Philadelphia as co-defendants. The City and PECO settled prior to trial. SEPTA is the only appellant.

      . The Wisconsin "contributory" negligence statute is in all relevant respects the same as the Pennsylvania comparative negligence statute. Wis.Stat.Ann. § 895.045 (1983). This court has previously found persuasive the interpretation placed by the Wisconsin courts on such a statute. Pachesky v. Getz, 353 Pa.Super. 505, 510 A.2d 776 (1986).

      . Interestingly, the Supreme Court of Wisconsin has also opined that in a case involving a child plaintiff accused of contributory negligence, the jury should consider the age of the plaintiff twice; first, in determining if the plaintiff was negligent at all and second, in comparing the plaintiffs negligence to that of the defendant. Blahnik v. Dax, 22 Wis.2d 67, 125 N.W.2d 364 (1963). Other courts, perhaps representing the present majority, consider the child's age only once, as to whether there was negligence at all. See, e.g., Anderson v. Happ, 136 Ga.App. 839, 222 S.E.2d 607 (1975).


author:
WIEAND, Judge:
      POPOVICH, Judge,

text:
    518 A.2d 819
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert COPE, Appellee.
    Superior Court of Pennsylvania.
    Submitted March 12, 1986.
    Filed Dec. 8, 1986.

      Gaele M. Barthold, Deputy District Attorney, Philadelphia, for Commonwealth, appellant.

      Burton A. Rose, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

Robert Cope was tried nonjury and was found guilty of arson, criminal mischief, recklessly endangering persons and property and risking a catastrophe, offenses which had their genesis in an early morning fire at 912 Daly Street, Philadelphia, on February 24, 1983. Post-trial motions were filed by counsel who had not been trial counsel. Following an evidentiary hearing, the trial court found that trial counsel had been constitutionally ineffective and granted a new trial. Counsel had been ineffective, the court held, because he had failed to file a pre-trial motion to suppress the defendant’s gasoline soaked clothing which had been seized by police without a warrant from Cope’s hospital room. The Commonwealth appealed. We reverse and remand. >

The fire was discovered by a neighbor, who called the Philadelphia Fire Department. When police arrived at the scene of the fire, they obtained from the neighbor a key to a locked passageway which lay behind the row of homes on Daly Street. When the police entered the passageway, they stumbled over the body of Robert Cope. He was semi-conscious, lying approximately sixty feet from the burning building, with his business papers strewn about the alley. The police observed that Cope appeared to have been singed by the fire and that his clothes were wet with a substance which, because of its odor, they determined to be gasoline. They learned that Cope was the owner of the burning building and determined, because of the locked condition of the passageway, that he could have entered the passageway only from the rear of his building. Cope was taken to Methodist Hospital, where he was admitted. After he had been undressed and placed in a hospital bed, police removed Cope’s wet clothing from the hospital room and sent them to the police laboratory for analysis.

At trial, it was undisputed that the fire was incendiary in origin. It was stipulated by counsel that a report prepared by the police chemist, who had examined Cope’s clothing, indicated that a petroleum distillate had been extracted from Cope’s clothing. Appellee, who testified on his own behalf, said he could remember nothing before awakening in the alley.

In reviewing a claim of ineffective assistance of counsel, we must first determine whether the claim which counsel failed to assert was of arguable merit. See: Commonwealth v. Stoyko, 504 Pa. 455, 472, 475 A.2d 714, 723 (1984); Commonwealth v. Hubbard, 472 Pa. 259, 277, 372 A.2d 687, 695-696 (1977); Commonwealth v. Garvin, 335 Pa.Super. 560, 564, 485 A.2d 36, 38 (1984). Counsel will not be deemed ineffective for failing to assert a meritless claim. See: Commonwealth v. Albrecht, 510 Pa. 603, 626, 511 A.2d 764, 776 (1986); Commonwealth v. Stoyko, supra. If the underlying issue is of arguable merit, then a court must determine whether the course chosen by counsel had a reasonable basis calculated to serve the best interests of the client. See: Commonwealth v. Albrecht, supra, 510 Pa. at 625, 511 A.2d at 775; Commonwealth v. Stoyko, supra; Commonwealth v. Garvin, supra 335 Pa.Super. at 564-565, 335 A.2d at 38. In order to warrant a new trial, it must also be shown that counsel’s dereliction prejudiced the outcome so as to deprive the accused of a fair trial. Commonwealth v. Buehl, 510 Pa. 363, 393, 508 A.2d 1167, 1175 (1986). See also: Commonwealth v. Albrecht, supra, 510 Pa. at 626, 511 A.2d at 776; Commonwealth v. Garvin, supra, 335 Pa.Super. at 566, 485 A.2d at 39; Commonwealth v. Ldtzenberger, 333 Pa.Super. 471, 482, 482 A.2d 968, 974 (1984).

As a general rule, where it is determined that counsel has been ineffective for failing to file a pre-trial motion to suppress evidence, the relief to be awarded is the right to challenge the questioned evidence in an evidentiary hearing. Only if it is thereafter determined that the evidence should have been suppressed will the defendant become entitled to a new trial. It is the improper use of illegally obtained evidence which entitles a criminal defendant to a new trial and not merely the failure of trial counsel to file a pre-trial motion to suppress. See: Kimmelman v. Morrison, — U.S. —, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). In the instant case, however, the parties used the hearing on Cope’s post-trial motions to introduce evidence of the circumstances surrounding the seizure of Cope’s clothing. As a consequence, the record is adequate to permit appellate review of the trial court’s order directing a new trial.

Our review has convinced us that the trial court erred in ordering a new trial. Cope’s clothing had been seized pursuant to a lawful arrest and, therefore, was not subject to suppression.

A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense, Commonwealth v. Jackson, 450 Pa. 113, 299 A.2d 213 (1973).

Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984). See: Commonwealth v. Wagner, 486 Pa. 548, 555, 556, 406 A.2d 1026, 1030 (1979); Commonwealth v. Derrick, 322 Pa.Super. 517, 532, 469 A.2d 1111, 1119 (1983); Commonwealth v. Deemer, 316 Pa.Super. 28, 33-34, 462 A.2d 776, 779 (1983).

Because Cope was found lying semi-conscious and singed, his clothes wet with gasoline, in the locked passageway behind his burning residence, police had probable cause, as trained law enforcement officers, to believe that Cope had been involved criminally in the conflagration. Therefore, they could properly place appellant under arrest and, as an incident thereof, take possession of his clothing without a warrant. This, in fact, is what they did.

The arresting officer testified at trial

... myself and Officer Simon placed Mr. Cope on a stretcher, took him to Methodist Hospital. At that time, I took all his clothing off of him, placed them in a bag, put them on a property receipt, and just around the same time, Mr. Cope was under arrest for arson.

Police thereafter remained with Cope at the hospital until he was arraigned. It seems eminently clear under these circumstances that Cope had been placed under arrest and that his clothes, which were in plain view, were seized as an incident thereof. The seizure without a warrant was neither unreasonable nor improper. See: New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768, 775-776 (1981); Commonwealth v. Tome, 484 Pa. 261, 271, 398 A.2d 1369, 1375 (1979); Commonwealth v. Pytak, 278 Pa.Super. 476, 487, 420 A.2d 640, 646 (1980).

Cope’s reliance on Commonwealth v. Silo, 480 Pa. 15, 389 A.2d 62 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94 (1979), is misplaced. In that case, the suspect had not been placed under arrest prior to the time when his clothes were delivered to the police, at their request, by an attending nurse. Here, Cope had been placed under arrest, had been taken into custody prior to hospitalization, and remained in custody thereafter. This fact pattern is substantially different than the factual circumstances in Commonwealth v. Silo, supra, where police had done nothing to take the defendant into custody before seizing his clothing.

The fact that Cope had been immediately placed under arrest was not altered in any way by his testimony that he did not become aware of his arrest until he fully regained consciousness several days later. To argue, as appellee does, that he could not be placed under arrest until he was fully conscious and aware of his arrest is to ignore the factual reality that his freedom of movement had already been restricted while he was semi-conscious. Indeed, to accept such an argument would be to hold that an unconscious or semi-conscious person could never be placed under arrest. We decline to so hold.

Moreover and in any event, it seems clear that, Cope was not prejudiced by counsel’s failure to move pretrial to suppress the clothing removed from the hospital or the results of the chemist’s analysis. Counsel’s failure simply cannot be said to have affected the outcome of the case. The clothes worn by Cope were wet with gasoline when he was found by police behind the burning building. This evidence, as we have observed, was not subject to suppression. Indeed, appellee has not contended otherwise. The subsequent seizure and testing of his clothing, although serving to confirm the observations of the police, did not provide new information. The trier of the facts already knew that his clothing had been wet with gasoline. The suppression of appellee’s clothing and the results of the tests performed thereon, even if warranted, would not have prevented the fact finder from learning that appellee’s clothing had been wet with gasoline.

“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment____ Accordingly, any-deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.”

Commonwealth v. Albrecht, supra 510 Pa. at 626, 511 A.2d at 776, quoting Strickland v. Washington, 466 U.S. 668, 691-692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696, reh. den., 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). See also: Commonwealth v. Garvin, supra; Commonwealth v. Litzenberger, supra.

Reversed and remanded to the trial court for determination of the remaining issues raised in appellee’s post-trial motions. Jurisdiction is not retained.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I must dissent. Today, the majority holds that a fire authorizes warrantless searches and seizures for all times thereafter. See Commonwealth v. Smith, 511 Pa. 36, 48, 511 A.2d 796, 802 (1986) (“We do not hold that a fire authorizes a search for all times thereafter.”)

The majority justifies the seizure of the appellee’s clothes on the basis that these clothes had been seized pursuant to a lawful search incident to a valid arrest. However, the majority overlooks one important factor.

On the state of this record, at the time that appellee was arrested in the alley the police did not know that the fire was incendiary in origin. That is, the police lacked probable cause at the time of appellee’s arrest to believe that a crime had occurred.

The majority states that “[bjecause Cope was found lying semiconscious and singed, his clothes wet with gasoline, in the locked passageway behind his burning residence, police had probable cause, as trained law enforcement officers, to believe that Cope had been involved criminally in the conflagration.” Opinion at 145-146. (Emphasis added).

Apparently, the majority is of that view that the smell of gasoline on the body of an individual lying on the ground near his or her home with singed hair are the indicia of a unique type of fire, an arson. However, what is missing from the majority’s analysis are the facts and circumstances which would warrant a person of reasonable caution, more than a bare suspicion, to believe that criminal activity was afoot. For example, how did the police exclude the possibility that this individual had not been engaged in such innocent activities as cleaning his paintbrushes, changing the sparkplugs in his car, refilling his kerosene heater, or refinishing an antique piece of furniture?

Although at the time of appellee’s arrest there was no information of criminal activity which was provided by a fire marshall, an eyewitness, an informant, or other reliable source, the majority supplies this missing information by concluding that the “police had probable cause, as trained law enforcement officers to believe that a crime has occurred.” Id. (Emphasis added).

In this writer’s view, while an officer may be able to identify an illegal substance by smell or by observation, in this case there is no record evidence of the presence of illegal substances. Neither gasoline nor singed hair are illegal substances. Thus, the training and prior experience of the police officers in this case could not qualify them to conclude that an illegality has occurred.

The test to be employed in these cases is not one of hind-sight; rather, we must examine the conduct of the police by focusing on the facts and information which were available to the police at the moment that the arrest was made. In this writer’s view, the record is lacking and supports a conclusion only that the police had sufficient information to investigate their suspicions further.

As a final note, the majority concludes that appellee was not prejudiced by counsel’s failure to move to suppress the appellee’s clothing from the hospital because of the following:

Counsel’s failure simply cannot be said to have affected the outcome of the case. The clothes worn by Cope were wet with gasoline when he was found by police behind the burning building. This evidence, as we have observed, was not subject to suppression. Indeed, appellee has not contended otherwise. The subsequent seizure and testing of his clothing, although serving to confirm the observations of the police, did not provide new information. The trier of the facts already knew that his clothing had been wet with gasoline. The suppression of appellee’s clothing and the results of the tests performed thereon, even if warranted, would not have prevented the fact finder from learning that appellee’s clothing had been wet with gasoline.

To begin with, the appellee’s clothing was taken immediately to a laboratory for examination. As a result, the chemist’s report was produced and was introduced at trial. This chemist’s report established that heavy petroleum distillates were extracted from appellee’s clothes. The testimony of the assistant fire marshall also indicated that the 'origin area of the fire contained heavy range distillates.

The evidence also indicated that gasoline was not a heavy range distillage. Thus, the chemist’s report was independently significant in that this evidence established that not gasoline but a “heavy range distillate” was extracted from appellee’s clothing.

Moreover, no eyewitness had seen appellee inside of the house or setting the fire. Under these circumstances, because the chemist’s report had independent significance during the trial which was not cumulative, counsel’s inaction prejudiced the appellee. Commonwealth v. Clem-mons, 505 Pa. 356, 479 A.2d 955 (1984).

Hence, I must dissent from the majority’s attempt to “wink” at the illegal police action and to counsel’s ineffectiveness for failing to raise the issue of the illegal arrest.

      . 18 Pa.C.S. § 3301(a).

      . 18 Pa.C.S. § 3304(a).

      . 18 Pa.C.S. § 3301(c).

      . 18 Pa.C.S. § 3302(b).


author: OLSZEWSKI, Judge:

text:
    518 A.2d 824
    COMMONWEALTH of Pennsylvania v. James E. BULLOCK, III, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1986.
    Filed Dec. 8, 1986.

      W. Hamlin Neely, Allentown, for appellant.
    William E. Ford, Assistant District Attorney, Allentown, for Commonwealth, appellee.
    Before WICKERSHAM, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

This appeal follows judgment of sentence for homicide by vehicle, 75 Pa.Cons.Stat. Sec. 3732; homicide by vehicle while driving under the influence of alcohol, 75 Pa.Cons. Stat. Sec. 3735(a); and driving under the influence of alcohol, 75 Pa.Cons.Stat. Sec. 3731(a)(1) and (a)(4). Following conviction by a jury, appellant filed timely post-trial motions for a new trial and in arrest of judgment. The trial court considered and denied appellant’s motions in an opinion authored by the Honorable John E. Backenstoe, President Judge, in which the Honorable David E. Mellenberg joined. The Honorable James Knoll Gardner filed a dissenting opinion. Appellant was sentenced to terms of imprisonment of three-to-seven years on the homicide by vehicle charge, two-to-five years on the homicide by vehicle while driving under the influence charge, and six-to-twenty-four months each on the driving under the influence charges. All sentences were ordered to run concurrently.

At issue on appeal is the driving under the influence conviction under 75 Pa.Cons.Stat. Sec. 3731(a)(4). In closing at trial, defense counsel argued that the jurors should disregard a blood test result that had not been expressed in terms of percentage of alcohol in the blood by weight as contemplated by the statute. As part of its charge, the trial court instructed the jury that the test which was stipulated to by the parties was a blood test done by weight, and that they therefore should ignore defense counsel’s argument to the contrary. Appellant contends that the foregoing instruction was prejudicial error. We have carefully reviewed the record and briefs submitted by counsel and find no merit in appellant’s contention. Accordingly, we affirm the judgment of sentence.

Appellant’s conviction arose out of an automobile accident which occurred on February 5, 1983. On that date, appellant ran a red light and struck another vehicle passing through the intersection with the right of way. The police sergeant who investigated the accident spoke with appellant and detected a strong odor of alcohol about appellant’s breath and person. The police transported appellant to the Sacred Heart Hospital where he was advised of his rights. Appellant then made a statement to the effect that he had consumed beer shortly before the incident. At the sergeant’s request, the hospital drew a sample of appellant’s blood to test it for the percentage weight of alcohol. The blood serum tested revealed a content of 0.135% alcohol.

Turning to the issue raised on appeal, we hold that the trial court correctly concluded that the blood test instruction was proper. First, we agree with the trial court that the test result’s compliance with the statute’s “by weight” designation was a question of law for the court. Not only was it a matter of construing the “by weight” language, but it also involved a factor going to the admissibility of the test result. See Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986) (We determined as a question of admissibility and statutory construction whether the “by weight” language in 75 Pa.Cons.Stat. Sec. 1547(a) is satisfied when the blood-alcohol reading is expressed in terms of the weight of alcohol per volume of blood.).

Having resolved this question, we find, as did the trial court, that defense counsel waived any objection he had to the legal efficacy of the blood test result. Defense counsel stipulated to the location of the subject test, the procedure employed to draw the blood, the type of test performed (ACA plasma alcohol, which determines alcoholic content of blood serum), the approval of said test by the Pennsylvania Department of Health, the chain of custody, the test result itself (0.135% alcohol in the blood serum), and the fact that the testing site and equipment used were licensed and approved by the Pennsylvania Department of Health. Significantly, appellant’s counsel did not include in the stipulation any reservation that, in so stipulating, he was not necessarily agreeing that the test result complied with the statute’s “by weight” language. In fact, everything to which counsel stipulated indicates that he agreed that the blood-alcohol reading complied with the statute. Appellant even confirmed his position at sidebar, stating to the court his agreement, inter alia, that the test taken was “an approved test.” (N.T. 67.)

Moreover, defense counsel allowed the blood test evidence to go before the jury without timely objection. Specifically, defense counsel permitted the stipulation containing the test result to be admitted into evidence and read to the jury, and allowed testimony regarding the result, each without objecting that the result was not properly expressed as a “by weight” alcohol reading. Having done so, defense counsel waived any argument he had that the test did not comply with the statute. See McCormick on Evidence Sec. 52 (2d ed. 1972) (“(A) failure to object to an offer of evidence at the time the offer is made, assigning the grounds, is a waiver upon appeal of any ground of complaint against its admission.”).

Finally, we find that the trial court properly relied on the evidence at trial to determine that the blood-alcohol result complied with the statute’s “by weight” language. We adopt the trial court’s analysis of this question as follows:

Second, defense counsel in the previously cited sidebar conference specifically agreed that the subject blood test was done in an “approved” clinical laboratory and that the test taken was “approved” (N.T. at 67). This concession by defense counsel occurred immediately after the assistant district attorney requested the court to take judicial notice of 35 Pa.C.S.A. 2151, commonly known as the Clinical Laboratory Act, (hereinafter referred to as the “Act”) and 28 Pa.Code 5.50. The purpose of the Act was to insure that clinical laboratory testing was accurately performed by competently supervised professionals. Masland v. Bachman, 473 Pa. 280, 374 A.2d 517 (1977). Section 5.50 of Title 28 of the Pa.Code and section 5.103, a cross-reference stated therein, both pertain to laboratories and equipment that are approved by the state Health Department to analyze the amount of alcohol in a person’s blood. These sections are clearly meant to satisfy the requirements of 75 Pa.C.S.A. Sec. 1547. Section 1547 of the Motor Vehicle Code addresses the chemical tests to be used to determine the amount of alcohol in a person’s blood. The said section applies to criminal proceedings in which the defendant is charged with a violation of section 3731 or any other section of Title 75 arising out of the same action. Section 1547 also mandates that the chemical tests of blood be performed by a clinical laboratory licensed and approved by the Department of Health using procedures and equipment prescribed by said Department and utilizing testing personnel authorized under the Clinical Laboratory Act. Of significance to defendant’s instant argument is the fact that section 1547 provides that blood alcohol testing results taken in an “approved” fashion as contemplated by that section, are admissible in criminal proceedings in which the defendant is charged with violating 75 Pa.C. S.A. Sec. 3731 which includes the “by weight” requirement of alcohol in the blood of the person charged. The Commonwealth argues that, if it has proved that the subject blood alcohol test is “approved” within the meaning of section 1547, it has of necessity proved that the test utilized was one which measured the alcohol, by weight, in defendant’s blood as required by section 3731. We find the Commonwealth’s position to be entirely persuasive. Defense counsel entered into a stipulation with the assistant district attorney which provided that the clinical laboratory that conducted the test was licensed and approved by the Pa. Department of Health to conduct blood alcohol testing. Moreover, at the sidebar conference, defense counsel expanded the scope of the stipulation by specifically stating that he was not objecting that the subject test was done in an “approved” clinical laboratory and that it was an “approved” test that was taken. It seems clear that an approved or authorized blood test under section 1547, which specifically applies to section 3731 must, by necessity, yield a result expressing the percentage amount of alcohol by weight in the person tested whether the words “by weight” are used or not. It follows that, contrary to defendant’s position, evidence was in fact presented pertaining to alcohol by weight in the blood by the Commonwealth and consequently the court’s instructions to the jury were without error.

(Trial court opinion at 7-9.)

In agreeing with the foregoing conclusion, we observe that the statute’s “by weight” language is ambiguous. This ambiguity is evident from our opinion in Commonwealth v. Karch, supra, where we concluded that a reading expressed in terms of “weight of alcohol per volume of blood” complies with the “alcohol by weight” requirement of 75 Pa.Cons.Stat. Sec. 1547(d). In light of such ambiguity and considering defense counsel’s stipulation and failure to timely object, we feel justified in giving deference to the licensing and approval procedures of the Pennsylvania Department of Health.

For all of these reasons, we find no error in the trial court’s instructions to the jury.

Judgment of sentence affirmed.

      . Sec. 3731. Driving under the influence of alcohol or controlled substance
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

      . The trial testimony of Dr. Isadore Mihalakis, a forensic pathologist, indicated that a test of appellant’s whole blood would have produced a result of 0.116% alcohol. Dr. Mihalakis reached this figure by converting, using a medically accepted method, the 0.135% result obtained by testing the blood serum. (N.T. 30).

      . After the Commonwealth completed presentation of its evidence pertaining to the blood test, the following occurred at sidebar:
      (Commonwealth) MR. FORD: The only other thing, Your Honor, I would ask the Court — if the Court deems it necessary — to takes judicial notice of the Clinical Laboratory Act, which is 35 P.S. 2151 and also 28 Pa.Code, Section 5.50.
      (Defense Counsel) MR. NEELY: I have no objection to that.
      MR. FORD: It deals with approval of the laboratory and the test.
      MR. NEELY: I am not objecting that this was done in an approved clinical laboratory, and it was an approved test that was taken.
      MR. FORD: All right.
      THE COURT: Does that specifically authorize this test for taking of blood samples for driving while under the influence cases?
      MR. FORD: Yes, that’s correct. The Pennsylvania Code does indicate approved. The only reasons I hesitate to bring this to the Court’s attention — I believe Mr. Neely is agreeing to this, however.

        MR. NEELY: Under 3731? Maybe it’s under 1547, the blood test section. It requires the tests to be done in an approved clinical laboratory. I am agreeing or stipulating that Sacred Heart Hospital has such an approved clinical laboratory and the test was done in such a laboratory.


author: WIEAND, Judge:

text:
    518 A.2d 827
    Paul STALLO, Paula Stallo, for the Use of Paul Stallo, and Carl Neiper, for the Use of Paul Stallo, Appellees, v. INSURANCE PLACEMENT FACILITY OF PENNSYLVANIA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1986.
    Filed Dec. 9, 1986.

      David E. Heisler, Scranton, for appellant.
    John T. McLane, Jr., Scranton, for appellees.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   WIEAND, Judge:

When the owner of a property in Lackawanna County purchased insurance under the Pennsylvania Fair Plan Act, he caused his daughter to be listed as the named insured. In an action by father and daughter to recover indemnity for a fire loss, the insurer defended on the grounds that it had no contract with the father and that it was not required to pay the proceeds to the daughter because she had no insurable interest in the building and contents which had been destroyed by the fire. The claimants contended, however, that the broker who had placed the coverage had known fully the circumstances and, because he had been the agent of the insurer, the insurer should be estopped to assert such defenses. The case was submitted to the jury to determine the agency of the broker. The jury was not otherwise asked to determine, nor did the trial court determine as a matter of law, the validity of the insurer’s defenses. Following a verdict in favor of the claimants and a denial of the insurer’s post-trial motions, the insurer appealed from the judgment entered on the verdict.

Paul Stallo was the owner of a pizza business. He conducted his business in a building which he leased from William and Marjorie Gilbert in Chinchilla, Lackawanna County. In January, 1963, Stallo entered a long term agreement to buy the premises from the Gilberts. In the written agreement, however, Stallo was not named as buyer; instead, he caused the name of his nephew, Carl Neiper, to be inserted as the buyer. To protect Stallo, his attorney took and held in escrow a signed deed in which the name of the grantee had been left blank. From January, 1963, to April, 1973, the sellers paid the taxes and the costs of keeping the building insured. They were reimbursed for these amounts by Stallo, who simply added the taxes and costs of insurance to the monthly payments of principal and interest required by the agreement. Early in 1973, the insurance on the building was cancelled. Stallo then requested the purchase of other insurance from the Ferrario Insurance Agency, which, in turn, applied for coverage with the Insurance Placement Facility of Pennsylvania, hereinafter sometimes referred to as the “Fair Plan.” Named as insureds in the application were the Gilberts and Paula Stallo, the daughter of Paul Stallo. The “Fair Plan” agreed to provide coverage, and a policy was issued as requested. In the fall of 1973, Stallo also purchased from Fair Plan a policy of insurance to cover the contents of the building. Named as insured in this policy was Paula Stallo. On February 16, 1978, while the foregoing policies of insurance were in effect, the building and its contents were destroyed by fire. When Stallo submitted a claim to Fair Plan, the claim was denied because he was not an insured and because his daughter, who was the named insured, did not have an insurable interest in the building or its contents.

In an action filed by Paul Stallo, Paula Stallo and Carl Neiper, the claimants contended that Fair Plan was es-topped to deny liability to Paul Stallo because it knew that he was the real party in interest. The insurer had this knowledge, it was contended, because the relationship between Stallo and his daughter had been fully explained to Frank McManamon, an employee of the Ferrario Insurance Agency. The Ferrario Agency, it was contended, had been the agent of Fair Plan; and, therefore, McManamon’s knowledge was to be imputed to the insurance company.

The Pennsylvania Fair Plan Act of July 31,1968, P.L. 738, No. 233, 40 P.S. § 1600.101 et seq., was enacted to make insurance coverage available to protect property for which basic property insurance was not available through the normal insurance market. It was also intended to create a reinsurance arrangement whereby the responsibility for insuring such properties would be shared by all insurance companies doing business in the Commonwealth. See: Pennsylvania Fair Plan Act, supra, § 102, 40 P.S. § 1600.102. The plan was to be administered by an Industry Placement Facility according to the terms of the statute and also according to rules and regulations adopted by the Insurance Commissioner. If a property were insurable and the insured did not owe premiums on prior policies, the Placement Facility could require the issuance of a policy of basic property insurance by a member company. Pennsylvania Fair Plan Act, supra, § 203, 40 P.S. § 1600.203. One of the regulations adopted by the Commissioner established that no licensed broker would have authority to bind the Fair Plan.

In the instant case, the trial court refused to receive or consider this regulation and, of course, refused to instruct the jury regarding its meaning and effect. Instead, the court submitted to the jury for determination whether the broker was the agent of Stallo or the agent of Fair Plan with authority to bind the insurer by its knowledge that Paul Stallo was the insured even though the policy had been written in the name of his daughter. In doing so, the trial court instructed the jury as follows:

"... if the defendant, Fair Plan, authorized the Ferrar-io Agency to deliver the insurance policies to the plaintiffs and/or to Mr. and Mrs. Gilbert, and for the Ferrario Agency to collect the premiums, then the Ferrario Agency can be considered the agent of Fair Plan.”

We agree with appellant that this was an erroneous instruction. The effect of the error was to tell the jury that if the broker had been permitted by Fair Plan to receive the premiums and deliver the policy it thereby became the agent of the Fair Plan. If the broker were the agent of Fair Plan under these instructions, the jury was then permitted to conclude that Fair Plan was estopped to question contractual liability to Stallo.

The trial court’s instructions were inadequate even under general principles of agency. The correct rule appears at Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 78, 331 A.2d 711, 715-716 (1974), as follows:

“[Wjhere a broker holds himself out as general agent, solicits a policy, collects a premium a part of which he retains as his commission according to his custom, and a policy is issued upon information procured by him, he is an agent of the insurer by implication as to the insured who, in good faith, dealt with him as such.” 3 Couch on Insurance 2d § 26:25 (1960).

See also: 18 P.L.E. Insurance § 34. Apparent authority results from conduct by a principal which causes a third person to believe that a person has authority to enter negotiations or make representations as his agent. See: Revere Press, Inc. v. Blumberg, 431 Pa. 370, 375, 246 A.2d 407, 410 (1968); Friedman v. Kasser, 332 Pa.Super. 475, 483, 481 A.2d 886, 890-891 (1984); Apex Financial Corp. v. Decker, 245 Pa.Super. 439, 443, 369 A.2d 483, 485 (1976); Essington Enamel Co. v. Granite State Fire Insurance Co., 45 Pa.Super. 550, 558 (1911); Gizzi v. Texaco, Inc., 437 F.2d 308, 309 (3rd Cir.), cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 57 (1971); 18 P.L.E. Insurance § 34. See also: Restatement (Second) of Agency, § 8. If a third person changes his position in reasonable reliance on the principal’s conduct, the principal is then estopped from denying the authority of the agent. See: Friedman v. Kasser, supra; Essington Enamel Co. v. Granite State Fire Insurance Co., supra; Gizzi v. Texaco, Inc., supra; 18 P.L.E. Insurance § 34. In the instant case, however, there was no evidence to show that the broker had been held out by Fair Plan to be its general agent. When a customer asks a broker to obtain insurance through the Pennsylvania Fair Plan, the customer has no reason to believe, in the absence of a representation to the contrary by Fair Plan, that the broker has become Fair Plan’s agent.

The evidence in this case showed that Stallo had gone to the Ferrario Agency to purchase insurance. The broker, on Stallo’s behalf, had submitted an application for property insurance to the Fair Plan Placement Facility, together with the necessary premium. The Placement Facility was thereupon required by statute to inspect the property and determine whether it was insurable and whether it was willing to write the insurance coverage. After it had agreed to do so, a policy was forwarded to the broker who had submitted the application. The broker then delivered the policy to the insured. Contrary to the trial court’s jury instructions, these facts alone were insufficient to permit a finding that the Ferrario Agency was an agent of either the Placement Facility or the insurance company assuming the coverage.

Although the trial court told the jury about the insurer’s defense, i.e., that it had not contracted with Paul Stallo and that Paula Stallo lacked an insurable interest in the property, the validity of these defenses was not submitted to the jury for determination. The term “insurable interest” was never defined for the jury. Moreover, the trial court did not determine as a matter of law or submit to the jury for determination whether a “straw party” insured or a named insured who was acting for an undisclosed principal could have an interest in the property sufficient to purchase insurance and recover the proceeds of the policy when the property was destroyed by fire. Rather, the inquiry of the jury was limited to a determination of whether the broker was the agent of the Fair Plan and, if so, whether Fair Plan was estopped to raise any defense. Unfortunately, the trial court’s jury instructions regarding agency and estoppel were incorrect. Because it appears likely that the jury based its verdict on the court’s erroneous instructions, a new trial must be granted. See: Jones v. Montefiore Hospital, 494 Pa. 410, 420, 431 A.2d 920, 925 (1981); Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985).

We also agree with Fair Plan’s contention that it was error for the trial court to exclude evidence of the Insurance Commissioner’s regulation that brokers could have no authority to act on behalf of the Fair Plan. A similar issue was discussed in American Life Insurance & Trust Co. v. Shultz, 82 Pa. 46, 51 (1876), where the Supreme Court said:

[I]t was manifest error to exclude an inquiry as to the powers of Mr. Geiger, the agent with whom the plaintiff contracted. His acts could only bind the company within the scope of his authority, hence proof of his authority was material even for the plaintiff. The burden of proof lies on him to establish the agency and the extent of it: Hays v. Lynn, 7 Watts 525. The plaintiff having given some evidence to show that Geiger was agent for the company, but without any definite or accurate statement of his powers, it was clearly competent for the company to show what his powers were; or that he had exceeded his authority, or to deny the agency itself. The extent of an agent’s powers depends upon the authority under which he acts. This may be shown by his written instructions or his course of dealing. It is true the public are not always bound by the private instructions of the agent; and may hold the principal responsible, though the particular acts done are in excess of his private instructions. This was asserted in Adams Express Co. v. Schlessinger, 25 P.F. Smith [Pa.] 246. It applies to cases where the agent has been held out to the world as such by the principal, allowed to exercise enlarged powers from time to time, and his acts therein have been ratified by his principal. But this doctrine in no sense conflicts with the right of the principal to show that his agent in a given case exceeded his authority. The effect of such evidence when received is for the jury.

Upon a retrial, the court may wish to examine more fully the issues of insurable interest and the effect of causing a “straw party” to be listed as the named insured in a policy of fire insurance. This will require a determination of the validity or invalidity of the defenses asserted by the insurer. Because these issues have not heretofore been determined by the trial court, we refrain from expressing an opinion with respect thereto.

However, upon retrial the amount of damages recoverable will again be in issue. Therefore, we consider appellant’s contention that the trial court’s charge on damages was erroneous. Specifically, appellant contends that the court erred when it failed to instruct the jury that recovery should be limited to actual cost of replacement less depreciation. The terms of the policy called for a right of recovery, in the event of loss, of the lesser of the actual cash value of the property, including depreciation, or the cost of replacing and/or repairing the property. Stallo testified at trial that, in his opinion, the property was worth $80,000.00 immediately prior to the fire. Both parties also submitted estimates of replacement costs, which did not take into account depreciation. Stallo’s estimate was $70,100.00; Fair Plan’s estimate was for $62,439.48. At the close of the trial, Fair Plan requested the court to instruct the jury that Stallo could recover only the actual cash value of the property, ascertained with proper consideration for depreciation, but not exceeding the amount which it would cost to repair or replace the property. The trial court denied Fair Plan’s request and charged the jury that the actual cash value in the instant case was equivalent to the cost of repairing or replacing the property. Fair Plan contends that this was error.

The sole evidence in regard to the value of the building at the time of the fire was Stallo’s testimony that the building had an estimated value of $80,000.00. Fair Plan offered no evidence to show that the actual value of the property was less than Stallo’s estimate. Thus, the estimated cost of replacing the building was clearly less than the actual cash value. Under the terms of the policy, Stallo’s damages under these circumstances were to be measured by the cost of replacement. The jury returned a verdict for $71,708.00. Therefore, even though the trial court erred when it equated actual cash value with the cost of replacement, the error was harmless. Upon a retrial, however, the erroneous instruction should be corrected.

Appellant also contends that the trial court erred (1) when it permitted plaintiff’s counsel to suggest to the jurors that they rely on their own experiences in dealing with insurance companies, and (2) when it refused to allow cross-examination of the plaintiff regarding a prior inconsistent statement.

The first of these issues has not been adequately preserved for appellate review. The closing arguments have not been recorded; and, therefore, we are unable to review fully the nature or potential effect of the remarks made by counsel.

Evidence of a prior inconsistent statement was refused by the trial court on grounds that appellant was unable to prove that a transcript of the statement had been a part of the file which appellant gave to appellee’s counsel prior to trial. The law was stated in Crance v. Sohanic, 344 Pa.Super. 526, 496 A.2d 1230 (1985) as follows:

Whether to bar evidence which has not been produced after a discovery order is a matter left with the trial judge’s discretion. Pompa v. Hojancki, 445 Pa. 42, 281 A.2d 886 (1971). Sanctions may be imposed where there is willful disregard of or disobedience to a discovery order, or an obligation stated in the rules of civil procedure. Lapp v. Titus, 224 Pa.Super. 150, 302 A.2d 366 (1973). The federal courts, in holding on their discovery rules, have held that gross negligence in fulfilling discovery requests is grounds for an order barring use of evidence. Cine Forty-Second Street Theatre Corp. v. Allied Artists Picture Corp., 602 F.2d 1062 (2nd Cir. 1979).

Id., 344 Pa.Superior Ct. at 530, 496 A.2d at 1232-1233. Although we are unable to perceive an abuse of discretion in the trial court’s ruling, we observe that given the dispute over whether a discovery violation did in fact occur and given the fact that Stallo now has notice of the statement, there would be no reason for penalizing Fair Plan by depriving it of the use of this evidence, if relevant, upon a retrial.

Judgment reversed and case remanded for new trial.

      . Act of July 31, 1968, P.L. 738, No. 233, 40 P.S. § 1600.101 et seq.

      . Stallo’s living quarters were on the second floor.

      . After the fire had occurred, Stallo paid the moneys remaining due under the agreement of sale to the Gilberts.

      . See: Luchansky v. The Farmers Fire Insurance Co., 357 Pa.Super. 136, 515 A.2d 598 (1986).

      . Fair Plan argued to the trial court that the cost of replacing the property should have been reduced to reflect depreciation. This argument was rejected by the Supreme Court-in Farber v. Perkiomen Mutual Insurance Co., 370 Pa. 480, 88 A.2d 776 (1952).