author: WICKERSHAM, Judge:

text:
    496 A.2d 811
    John L. RODGERS and Delores M. Rodgers, Appellants, v. NATIONWIDE MUTUAL INSURANCE COMPANY and John F. Lewis.
    Superior Court of Pennsylvania.
    Argued April 16, 1985.
    Filed Aug. 2, 1985.

      Jerome H. Ellis, Philadelphia, for appellants.
    Bruce W. McCullough, Philadelphia, for appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   WICKERSHAM, Judge:

In this appeal, appellants ask us to consider whether they can recover, in either a trespass or an assumpsit action, damages for emotional distress allegedly caused by the bad faith conduct of their insurer. We hold that, pursuant to D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), appellants are not permitted to recover the requested relief in a trespass claim, and that further, appellants failed to establish a sufficient claim for damages for emotional distress in their assumpsit action. Thus, we affirm the order of the lower court.

John L. Rodgers was a Nationwide insured and was involved in an accident with a pedestrian, William Irons, Sr., on October 17, 1977. Mr. Irons and his wife commenced suit against Rodgers; Rodgers was served with the Irons’ complaint on December 12, 1978. Rodgers sent said complaint to Nationwide on the following day. No action was taken on Rodgers’ behalf, and on January 8, 1979, a default judgment was entered against him for failure to timely enter an appearance or to answer the complaint. On January 10 or 11, 1979, John F. Lewis, house counsel for Nationwide, entered his appearance on Rodgers’ behalf. Counsel then filed a petition to open judgment alleging that Rodgers’ “failure to timely enter an appearance or respond to [the Irons’] complaint was due to mistake, inadvertance, and oversite of the United States Postal Service, his insurance company and/or his attorney and further was in no way caused by any action or inaction on his part.” See Petition to Open Default Judgment at 2, reproduced in Supp.R.R. for Appellees at 379A. The petition to open judgment was subsequently denied.

The default judgment was recorded and a lien was entered against Rodgers’ real estate. Appellants claim that the judgment and the resulting lien rendered them unable to obtain refinancing of their home, to consolidate their debts, and to pay their debts as they became due, and that they were therefore forced to file a petition in bankruptcy.

Appellants filed the instant complaint in December, 1979, alleging that the conduct of appellees Nationwide and John Lewis caused various injuries to both Mr. and Mrs. Rodgers. On behalf of Mr. Rodgers an assumpsit count was filed, averring that Nationwide’s breach of its contractual obligations resulted in irreparable damage to his credit and caused him great personal humiliation, embarrassment, and emotional distress. Two trespass counts averred that appellees’ negligence and/ or recklessness similarly caused Mr. Rodgers to suffer the above-listed damages; one of the trespass counts also demanded that punitive damages be imposed upon appellee Nationwide. The complaint also contained identical assumpsit and trespass counts on behalf of Mrs. Rodgers.

Following discovery, appellees filed a motion for partial summary judgment, contending that, as a matter of law, appellants are not entitled to recover damages for emotional distress or punitive damages. Appellants then filed an answer to appellees’ motion. After oral argument, the lower court granted the motion for partial summary judgment. On July 12, 1984, the Honorable Lawrence Prattis issued an opinion and order dismissing appellants’ trespass counts, and those portions of the assumpsit counts seeking damages for emotional distress. Appellants filed this timely appeal.

Appellants state the issues presented for our consideration as follows:

I. Whether an insured may recover in assumpsit the damages for emotional distress caused by an insurer’s reckless and willful breach of its contractual duty to represent and defend its insured.
II. Whether an insured may bring an action in trespass for emotional distress and punitive damages because of an insurer’s bad faith and reckless conduct in failing to represent or defend its insureds.

Brief for Appellants at 3.

We first address appellants’ second issue, i.e., that their trespass counts seeking emotional distress and punitive damages were improperly dismissed. Appellees aver, and the lower coúrt found, that an insured may not bring an action in trespass to obtain damages for emotional distress and punitive damages based upon allegations of an insurer’s bad faith conduct where remedies for such conduct are within the purview of the Unfair Insurance Practices Act, 40 P.S. §§ 1171.1-.15. We agree.

In D'Ambrosio v. Pennsylvania National Mutual Casualty Insurance Co., 494 Pa. 501, 431 A.2d 966 (1981), the Pennsylvania Supreme Court expressly refused to adopt the approach of the Supreme Court of California, which allows recovery of emotional distress and punitive damages based upon an insurer’s bad faith conduct in denying a claim. See Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 510 P.2d 1032, 108 Cal.Rptr. 480 (1973). Our high court reasoned that the Unfair Insurance Practices Act provides sufficient means by which unfair insurance practices and “bad faith” conduct could be deterred. Therefore, the court found that there was no need to supplement the Act with a new, judicially created cause of action arising out of those same practices which would allow punitive damages and damages for emotional distress.

There is no evidence to suggest, and we have no reason to believe, that the system of sanctions established under the Unfair Insurance Practices Act must be supplemented by a judicially created cause of action. As one critic of California’s approach has observed,
“[t]he California courts have created this ‘new tort’ in an obvious attempt to afford more protection to insureds. However, it has not really been established that there is a need of this additional protection. * * * State insurance departments are intended to serve the public and handle complaints from insureds as to insurer practices on a regular basis. Likewise, state legislatures are capable of prohibiting what are considered to be unfair claims handling practices and of imposing penalties for violations.”
Kircher, Insurer’s Mistaken Judgment — A New Tort?, 59 Marq.L.Rev. 775, 786 (1976). Surely it is for the Legislature to announce and implement the Commonwealth’s public policy governing the regulation of insurance carriers. In our view, it is equally for the Legislature to determine whether sanctions beyond those created under the Act are required to deter conduct which is less than scrupulous.
Our conclusion that the Unfair Insurance Practices Act serves adequately to deter bad faith conduct applies not only to appellant’s attempt to recover punitive damages but also to his attempt to recover damages for “emotional distress.” An award of punitive damages unquestionably is a deterrent device, see Restatement (Second) of Torts § 908 (1965); Restatement (Second) of Contracts § 369 (Tent. Draft No. 14, March 1, 1979), one which is unnecessary in view of the present legislatively-created regulatory scheme. And in the vast majority of cases an award of emotional distress damages would accomplish no more than is already accomplished by the Unfair Insurance Practices Act. Dean Murray has observed:
“While it is often suggested that such damages, when granted, are compensatory rather than punitive, the impression is often created that they are granted more for the purpose of discouraging the contract breaker through the use of a deterrent than attempting to evaluate mental distress on a pecuniary basis. In addition, it is difficult, if not impossible, to draw an incisive line between compensatory and punitive damages.”
Murray on Contracts § 232 at 472 (1974). Similarly, Professor Dobbs has stated:
“Probably there is some thought, too, that mental distress damages closely resemble punitive damages in many instances and that such damages should be denied in all those cases where punitive damages are denied.”
Dobbs on Remedies § 12.4 at 819 (1973). Thus we hold that the count in trespass for alleged bad faith conduct of an insurer, which seeks both punitive damages and damages for emotional distress, must be rejected.

D'Ambrosio, supra, 494 Pa. at 507-09, 431 A.2d at 970 (footnote omitted).

D’Ambrosio controls the resolution of appellants’ second issue. Appellants argue that the Unfair Insurance Practices Act permits causes of action such as those they have alleged. In support of this contention, appellants cite specific provisions of the Act and refer to its legislative history. It is clear, however, that the D’Ambrosio court thoroughly examined and considered the Act and finally concluded that the Act and its administrative remedies were exclusive unless and until the legislature provided otherwise. There has been no change in the law since D’Ambrosio that would justify abandonment of its holding.

In their remaining issue, appellants argue that they should be permitted to recover damages for emotional distress caused by the breach by Nationwide of its contract to represent and defend them. It is quite clear that under Restatement of Contracts § 341 (1932), which has been cited previously by Pennsylvania courts, see, e.g., Gefter v. Rosenthal, 384 Pa. 123, 119 A.2d 250 (1956) (concurring and dissenting opinion by Musmanno, J.); Emerman v. Baldwin, 186 Pa.Super. 561, 142 A.2d 440 (1958), appellants are not entitled to recover damages for emotional distress. Section 341 states:

In actions for breach of contract, damages will not be given as compensation for mental suffering, except where the breach was wanton or reckless and caused bodily harm and where it was the wanton or reckless breach of a contract to render a performance of such a character that the defendant had reason to know when the contract was made that the breach would cause mental suffering for reasons other than mere pecuniary loss.

Assuming without deciding that appellants alleged a wanton or reckless breach of contract on the part of Nationwide, it is clear that they did not allege that this breach caused bodily harm. Furthermore, as the lower court properly pointed out, “The case at bar presents no factual averments of a breach of contract of the character that Nationwide had reason to know, at the time the parties made the contract, that the breach would cause mental suffering for reasons other than pecuniary loss.” Lower ct. op. at 3 (emphasis in original).

Appellants contend, however, that they should be permitted to recover damages for emotional distress pursuant to an exception carved out of the general rule stated in the D’Ambrosio decision that such damages are not recoverable. In footnote five, the D ’Ambrosio court stated:

The possibility cannot be ruled out that emotional distress damages may be recoverable on a contract where, for example, “the breach is of such a kind that serious emotional disturbance was a particularly likely result.” Restatement (Second) of Contracts § 367 (Tent. Draft No. 14, March 1, 1979). The present record falls far short of establishing such a breach.

D’Ambrosio, supra 494 Pa. at 509 n. 5, 431 A.2d at 970 n. 5. The Restatement provision cited in this footnote is now found at Restatement (Second) of Contracts § 353 and states in full:

§ 353. Loss Due to Emotional Disturbance
Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.

First, we note that this provision has not been adopted in Pennsylvania. Mason v. Western Pennsylvania Hospital, 499 Pa. 484, 494, 453 A.2d 974, 980 (1982) (concurring and dissenting opinion by Nix, J.). Furthermore, even were we to follow this provision, we do not believe that the circumstances of this case warrant recovery for emotional distress.

As Comment “a” to section 353 points out, damages for emotional disturbance are not ordinarily allowed in breach of contract cases. There are, however, two exceptions. The first is where the emotional distress is accompanied by bodily harm. As we have already stated, the appellants have not alleged any bodily injury. The second exceptional situation occurs when

the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. Common examples are contracts of carriers and innkeepers with passengers and guests, contracts for the carriage or proper disposition of dead bodies, and contracts for the delivery of messages concerning death. Breach of such a contract is particularly likely to cause serious emotional disturbance. Breach of other types of contracts, resulting for example in sudden impoverishment or bankruptcy, may by chance cause even more severe emotional disturbance, but, if the contract is not one where this was a particularly likely risk, there is no recovery for such disturbance.

Restatement (Second) at Contracts § 353, Comment “a.”

The contract in this case “was not one whose breach is recognized as being particularly likely to cause emotional distress.” Rittenhouse Regency Affiliates v. Passen, 333 Pa.Super. 613, 616, 482 A.2d 1042, 1043 (1984). “For a case to fall within the exception, not only must the subject matter be fundamental, but defendant’s conduct must be something close to outrageous.” Harrison v. Nationwide Mutual Fire Insurance Co., 580 F.Supp. 133, 135-36 (E.D.Pa.1983). In Mason v. Western Pennsylvania Hospital, supra, Justice Nix (now Chief Justice) mentioned the D'Ambrosio footnote in his concurring and dissenting opinion. He observed, however, that the D'Ambrosio exception had not yet been met, and suggested that circumstances must indeed be compelling in order to allow recovery of emotional distress damages under an assumpsit claim. In that case, where defendant hospital negligently performed a sterilization operation and plaintiff later became pregnant, Justice Nix rejected “the proposition that a reasonable person is likely to become seriously emotionally disturbed by the foiling of his or her choice concerning procreation.” Mason, supra 499 Pa. at 494, 453 A.2d at 980.

Similarly, we find that the contract and breach in the case at bar were not such as to support a conclusion that serious emotional disturbance was a particularly likely result. Thus, the lower court did not err in dismissing those portions of the assumpsit counts seeking damages for emotional distress.

Order affirmed.

      . The underlying action, Irons v. Rodgers, was ultimately settled for $9,000.00.

      . Although the order in question is vague, the opinion issued the same day clarifies that this is indeed the result intended by the lower court. The arguments set forth by the parties imply that they agree that the lower court intended to dismiss the trespass counts in toto and those portions of the assumpsit counts seeking damages for emotional distress.

      . Act of July 22, 1974, P.L. 589, No. 205.

      . For Pennsylvania cases following the D’Ambrosio decision see, e.g., Smith v. Harleysville Ins. Co., 494 Pa. 515, 431 A.2d 974 (1981); Myers v. USAA Cas. Ins. Co., 298 Pa.Super. 366, 444 A.2d 1217 (1982); Nazer v. Safeguard Mut. Assur. Co., 293 Pa.Super. 385, 439 A.2d 165 (1981); Evans v. Gov’t Employees Ins. Co., 291 Pa.Super. 342, 435 A.2d 1258 (1981). For federal cases also following D’Ambrosio see, e.g., Keene Corp. v. Ins. Co. of N.Am. 597 F.Supp. 934 (D.D.C.1984); Harrison v. Nationwide Mut. Fire Ins. Co., 580 F.Supp. 133 (E.D.Pa.1983); Layton v. Liberty Mut. Fire Ins. Co., 577 F.Supp. 1 (E.D.Pa.1983); Commercial Union Assur. Co. v. Pucci, 523 F.Supp. 1310 (W.D.Pa.1981).


source: Caselaw Access Project

license: Public Domain

text:
    496 A.2d 816
    COMMONWEALTH of Pennsylvania ex rel. Florence McNUTT v. James W. McNUTT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1985.
    Filed Aug. 2, 1985.

      Sanford S. Finder, Washington, for appellant.
    Phillip J. Binotto, Jr., Washington, for appellees.
    Before DEL SOLE, MONTGOMERY and BUCHER , JJ.

       Judge Wilson Bucher, Senior Judge of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

   DEL SOLE, Judge:

This is an appeal from the portion of the Order of the Court of Common Pleas of Washington County, by which James McNutt, the Appellant, was ordered to pay $75 a month for the support of Melissa McNutt, the natural daughter of his former wife. The facts in this case are as follows:

James McNutt married Florence McNutt, the Appellee, on December 28, 1969. At the time of the marriage, Florence McNutt had one child, Melissa, who was two months old. Florence was Melissa’s natural mother but James was not her natural father. The whereabouts of the natural father are unknown. The parties had a child during the marriage, Martin, born in 1973. In 1974 or 1975, the parties visited a lawyer to discuss the possibility of James McNutt adopting Melissa, but Mr. McNutt did not proceed with the adoption. At the time of the parties’ divorce in 1977, James McNutt agreed to pay $150 a month for the support “of their minor child”. Neither Melissa’s nor Martin’s name appears in this separation agreement. The Appellant continues to visit both children after the divorce and Melissa continues to call him “Daddy”. In 1982, Florence McNutt brought a complaint in support, seeking to increase support payments, arguing that the Appellant’s payments were for both children, not just for Martin. The trial court found that the Appellant had acted in loco parentis toward Melissa and was therefore responsible for her support. McNutt does not appeal the trial court’s support order for Martin in the amount of $150 a month but he appeals that part of the order requiring him to pay $75 a month in favor of Melissa on the grounds that he is not her father and therefore is not liable for her support.

The trial court found that the Appellant acted in loco parentis both before and after the dissolution of the marriage and this is a finding of fact we will not disturb. We do not agree however that the Appellant’s past and continued love and devotion to his former stepchild carry with it the duty to financially support Melissa. This would be carrying the common law concept of in loco parentis further than we are willing to go. There is authority in other jurisdictions for the proposition that a stepparent who stands in loco parentis may be held liable for the support of a child during the marriage. Mason v. Zolonsky, 251 Iowa 983, 103 N.W.2d 752, 756 (1960); Brummitt v. Commonwealth, 357 S.W.2d 37 (Ky.1962). However, this obligation does not survive the dissolution of the marriage of the child’s natural parent and stepparent. The general rule is that no legal duty rests upon the stepparent to support after the termination of the marriage. Needel v. Needel, 15 Ariz.App. 471, 474, 489 P.2d 729, 732 (1971); McDowell v. McDowell, 378 S.W.2d 814 (Ky.1964); Brown v. Brown, 287 Md. 273, 284, 412 A.2d 396, 402 (1980); Com. of Soc. Serv. of N.Y. on behalf of Vasquez v. Russell, 85 Misc.2d 809, 380 N.Y.S.2d 998 (1976).

If we were to hold that a stepparent acting in loco parentis would be held liable for support even after the dissolution of the marriage then all persons who gratuitously assume parental duties for a time could be held legally responsible for a child’s support. It is not uncommon for a grandparent, an aunt or uncle or an older sibling to assume responsibilities for parenting when the natural parents are absent. These acts of generosity should not be discouraged by creating a law which would require anyone who begins such a relationship to continue financial support until the child is eighteen years old.

The Appellant has continued his caring relationship with Melissa even though his marriage to her mother has ended. He does not assume the benefit however, of claiming her as a dependent on his tax return. Nor would he, under the intestate laws of Pennsylvania, share in Melissa’s estate if she were to die while she is a minor. We cannot extend the law so far as to hold a former stepparent financially responsible for a child whom he loves and cares for but has not adopted.

Appellee argues that we are required to find for her because of the holding of Bulson v. Bulson, 278 Pa.Super. 6, 419 A.2d 1327, 1329 (1980). We distinguish Bulson on the grounds that it is a spousal support case and not a child support case. Although there is dicta in Bulson to support Appellee’s position, the case stands for the proposition that it is correct to consider a wife’s expenses for rearing her child when assessing husband’s spousal support payments, since he knew when he married her that she had this responsibility. The Bulson court was presented with a different question from the one before us in the instant case and does not control. We therefore reverse the order of the trial court insofar as it requires James McNutt to pay child support in favor of the child Melissa. •

Order reversed in part and affirmed in part.

      . A stepfather, by definition, is the "husband of one’s mother.” Since Mr. McNutt is no longer the husband of Melissa’s mother, he is no longer her stepfather. See Black’s Law Dictionary.

      . Some states have enacted statutes requiring stepparents to provide support when a minor is about to go on public assistance. See Hawaii Rev.Stat. § 577-4 (1976); Ky.Rev.Stat.Ann. § 205.310 (Baldwin 1981); N.Y.Fam.Ct. Act (29A) § 415 (McKinney 1983); Wis.Stat.Ann. § 49.195 (West Supp. 1984-1985).

      . For a discussion of this general rule which terminates stepparent support obligations upon dissolution of the marriage, see Mahoney, Support and Custody Aspects of the Stepparent-Child Relationship, 70 Cornell L.Rev. 38, 52-58 (1984). The author argues for change of this rule, noting that in the United Kingdom, by statute divorce courts tire permitted to require a stepparent to continue support of a former stepchild. We have weighed the arguments carefully and are not persuaded to follow this rule. We believe the undesirable results of such a rule, as discussed in the text of our opinion above, would outweigh the salutory outcome of keeping some children off the public assistance rolls.


author: MONTEMURO, Judge:

text:
    496 A.2d 818
    Frederick HIGGINS, Appellee, v. CLEARING MACHINE CORPORATION, a DIVISION OF U.S. INDUSTRIES, INC., and A. Steiert & Sons, Inc., Appellants, v. KELSEY-HAYES COMPANY, HEINTZ DIVISION, Appellee.
    Superior Court of Pennsylvania.
    Argued May 23, 1985.
    Filed Aug. 2, 1985.

      Joseph F. Van Horn, Jr. and Robert P. Corbin, Philadelphia, for appellants.
    William F. Sweeney, Philadelphia, for appellee.
    Before McEWEN, DEL SOLE and MONTEMURO, JJ.
   MONTEMURO, Judge:

Before us is an appeal from an order of the Court of Common Pleas of Philadelphia County sustaining the preliminary objections of Kelsey-Hayes Company, Heintz Division (“Kelsey-Hayes”), appellee herein and additional defendant below, and dismissing Kelsey-Hayes from the instant action. The issue before us concerns to what extent the Pennsylvania Workmen’s Compensation Act (“Act”) insulates Kelsey-Hayes, as an additional defendant, from common law liability, on a claim of the original defendants, for allegedly “intentional, wanton and willful” conduct resulting in serious injury to an employee.

Frederick Higgins, plaintiff below and an employee of Kelsey-Hayes, was injured on February 14, 1979, while operating a punch press in the regular course of his employment. On August 11, 1980, Higgins filed a complaint in trespass against appellants, Clearing Machine Corporation (“Clearing Machine”), the manufacturer of the punch press, and A. Steiert and Sons, Incorporated (“Steiert”), the supplier of a die that was on the punch press at the time of Higgins’ injury. Subsequent to filing its answer, appellant Steiert petitioned and was granted leave to join Kelsey-Hayes as an additional defendant. Both appellants filed complaints against Kelsey-Hayes alleging its negligence, to which Kelsey-Hayes responded in its answer by raising various affirmative defenses. Thereafter, following leave of the court below, both appellants amended their complaints to allege the “intentional, wanton and willful” nature of Kelsey-Hayes’ conduct. Kelsey-Hayes’ preliminary objections in the nature of a demurrer were sustained by the court below in an order dated May 23, 1984. This appeal followed.

We note that, in reviewing the arguments presented, we have been mindful of the following analytical guidelines:

“Preliminary objections in the nature of a demurrer admit as true all well pleaded, factual averments and all inferences fairly deducible therefrom. Conclusions of law, however, are not admitted by a demurrer. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the plaintiff, would entitle him to the relief he seeks. If the plaintiff does set forth a cause of action on which he is entitled to relief upon proof, the demurrer cannot be sustained. Conversely, a preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action.” Cunningham v. Prudential Property & Casualty Insurance Co., 340 Pa.Super. 130, 133, 489 A.2d 875, 877 (1985) (citations omitted).

Acme Markets, Inc. v. Valley View Shopping Center, Inc., 342 Pa.Super. 567, 569-570, 493 A.2d 736, 737 (1985).

For the purposes of this appeal, we accept as true, by admission, the following allegations contained in appellants’ amended complaints: (1) Prior to the incident giving rise to the instant litigation, there were at least two incidents involving injuries to punch press operators at Kelsey-Hayes’ facilities, resulting from a lack of appropriate equipment safeguards; (2) Kelsey-Hayes was fully aware, prior to Higgins’ injury, that the operation of the unguarded punch press constituted a violation of the pertinent Occupational Safety and Health Administration (“OSHA”) provisions and/or regulations; (3) Notwithstanding the foregoing, Kelsey-Hayes permitted Higgins to operate an unguarded punch press; and (4) The cause of Higgins’ injury was the “intentional, wanton and willful” conduct of Kelsey-Hayes.

Regarding the exclusivity of the remedies provided by the Act, the Act itself states:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) [77 P.S. §§ 411(1), (2)] or occupational disease as defined in section 108 [77 P.S. § 27.1].

As defined by the Act, 77 P.S. § 411(1), the “terms ‘injury’ and ‘personal injury’ ... shall be construed to mean an injury to an employe ... arising in the course of his employment and related thereto, ____” Within the same section, the Act further expressly provides:

The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere____

Appellants argue that, despite the exclusivity of the Act’s remedies, Kelsey-Hayes may be found liable at common law for an injury caused by its “intentional, wanton and willful” conduct.

Appellants rely heavily upon a 1963 decision of this court, viz., Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). In Readinger, the plaintiff/appellee was physically assaulted by her employers while she attempted to collect wages due her following notice of her discharge. Prior to certain amendments to the Act in 1972, the Act provided for compensation to employees injured by an accident occurring in the course of employment. Relying upon that language, and upon sister states’ interpretations of similar language, this court reasoned, “The word ‘accident’ itself is nowhere defined in the act but its language, covering only injury or death ‘by an accident’ indicates no intention that deliberate injury to an employe by his employer is intended to be covered.” Id., 201 Pa.Superior Ct. at 138, 191 A.2d at 696. In Readinger, we concluded that the employers’ deliberate assault was not an “accident” and was therefore actionable at common law.

In Evans v. Allentown Portland Cement Company, 433 Pa. 595, 252 A.2d 646 (1969), our supreme court considered whether a cause of action in trespass was presented by allegations that, due to an employer’s “willful and unlawful” violation of safety provisions, an employee was killed while operating an unguarded conveyor system. The Evans court stated, “[W]e have often held ... that even where neglect of a statutory duty is alleged, the employee’s only remedy is under the Workmen’s Compensation Act.” Id., 433 Pa. at 598, 252 A.2d at 648.

Clearly, prior to 1972, Pennsylvania recognized the existence of a common law right of action when an employer deliberately assaulted an employee. Readinger, supra. However, a claim premised upon an employer’s willful neglect of safety regulations was subject to the Act’s exclusive remedy provisions. Evans, supra. Readinger and Evans should not be viewed as inconsistent simply because both involved an employer’s deliberate or willful conduct. In Readinger, the employee was intentionally assaulted while, in Evans, the alleged intentional conduct was the employer’s neglect of safety requirements. The employee’s death, in Evans, was still presumptively accidental although the Evans rationale did not expressly turn on any accidental/nonaccidental distinction.

In 1972, the legislature amended the Act so as to eliminate any requirement that a compensable injury be occasioned by an accident. As was noted in Hinkle v. H.J. Heinz Company, 462 Pa. 111, 116 n. 4, 337 A.2d 907, 910 n. 4 (1975):

As the injury to Hinkle was allegedly incurred prior to May 1, 1972, the effective date of the 1972 Amendments to the Workmen’s Compensation Act, Act of March 29, 1972, P.L. 105, Hinkle was required to prove the occurrence of an ‘accident’ within the meaning of Section 301(c), 77 P.S. § 411. The 1972 Amendments removed the necessity of proving an ‘accident’ in order to be eligible for compensation. Thus, for all injuries incurred on or after May 1, 1972, it will only be necessary to prove an ‘injury arising in the course of ... employment.’ Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 411(1). Cf. Universal Cyclops Steel Corporation v. Krawczynski, 9 Cmwlth. 176, 305 A.2d 757 (1973).

As amended, the Act provides compensation for injuries “arising in the course of ... employment.” Kelsey-Hayes argues herein that the 1972 amendments to the Act cast doubt on the continued validity of Readinger, supra, i.e., an employer’s intentional tortious conduct resulting in nonaccidental injury is no longer actionable outside of the Act. See Hogey v. Morello Excavating Company, Inc., 28 Pa.D. & C.3d 451 (1984). Kelsey-Hayes contends that the only current exception to injuries “arising in the course of ... employment”, which are compensable under the Act, are injuries “caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment.” 77 P.S. § 411(1)

While Kelsey-Hayes may indeed be correct in so interpreting the impact of the 1972 amendments upon cases involving employers’ intentional tortious acts directed against employees, we see no need for expressly adopting that interpretation at this juncture.

Kelsey-Hayes’ alleged “intentional, wanton and willful” conduct herein comprises its repeated violation of safety regulations and its neglect of a known dangerous condition. Clearly, these allegations should properly be aligned with those presented to our supreme court in Evans, supra. No allegation is made that Kelsey-Hayes intended to injure Higgins. Any “intent” on their part develops out of their knowing failure to provide a safe workplace. We view this case as controlled by the language in Evans reiterating that “even where neglect of a statutory duty is alleged, the employee’s only remedy is under the Workman’s Compensation Act.” Evans, 433 Pa. at 598, 252 A.2d at 648. Cf. Weldon v. Celotex Corporation, 695 F.2d 67 (3d Cir.1982); Ulicny v. National Dust Collector Corporation, 391 F.Supp. 1265 (E.D.Pa.1975).

Furthermore, applying the standard for determining the compensability of an injury under the Act, as set forth in Hinkle, supra, we are satisfied that the injury sustained herein arose “in the course of ... employment.”

Based on the foregoing, we conclude that the appellants herein have failed to state a cause of action upon which relief may be granted.

Order affirmed.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.

      . Although named as an appellee herein, Frederick Higgins has not participated in the instant appeal.

      . It is axiomatic that a demurrer does not admit “facts" which are in actuality conclusions of law. See Lerman v. Rudolph, 413 Pa. 555, 557-58, 198 A.2d 532, 533 (1964). Arguably, the allegation that Higgins’ injury was "caused” by Kelsey-Hayes’ “intentional, wanton and willful” conduct constitutes a conclusion of law. However, the respective parties herein frame and address the legal issue before us as being premised upon that conclusion. For the purposes of determining whether a cause of action may be maintained based upon appellants' allegations, we will accept as admitted Kelsey-Hayes' “intentional, wanton and willful” conduct.

      . This court has read the exception for injuries occasioned by third persons, found in § 411(1), as permitting a common law cause of action against the injured employee’s employer based upon the employer’s negligent failure to provide a safe workplace. See, e.g., Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981).

      . We note that, in Jones v. PMA Insurance Company, 343 Pa.Super. 411, 495 A.2d 203 (1985) (per Judge Beck, Judge Trommer, sitting by designation, joining, Judge Popovich not participating), this court recently assumed the continued validity of the holding in Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). However, the Jones decision ultimately turned upon the failure of appellant’s complaint to state a cause of action for intentional infliction of emotional distress. Therefore, and in light of the 1972 amendments to the Act, we view the issue raised by Kelsey-Hayes herein to be unsettled in this Commonwealth. Compare Scantlin v. Ulrich, 318 Pa.Super. 407, 465 A.2d 19 (1983).

      . As a result of our disposition of this case, we decline to reach Kelsey-Hayes’ argument that it may not be joined as an additional defendant by a third party in an action commenced by an employee against that third party.


author: BECK, Judge:

text:
    496 A.2d 822
    COMMONWEALTH of Pennsylvania v. Michael BARNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed Aug. 2, 1985.

      Harold Diamond, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, for Commonwealth, appellee.
    Before BECK, WICKERSHAM and CERCONE, JJ.
   BECK, Judge:

This is an appeal from an order granting the Commonwealth’s motion to dismiss a PCHA petition. Appellant was convicted of conspiracy and second degree murder by a jury in 1975. He was sentenced to life imprisonment for the murder conviction and a concurrent 5 to 10 year term for the conspiracy conviction. Judgment of sentence was affirmed. Commw. v. Barnes, 273 Pa.Super. 295, 417 A.2d 656 (1979). Appellant filed a pro se PCHA petition in 1983. Counsel was appointed who then filed an amended petition in the same year. The Commonwealth filed a motion to dismiss. A hearing on the motion was held, at which the merits of the petition were never discussed. The motion to dismiss was granted. At no time were the merits of the petition reviewed. This appeal followed.

The trial judge granted the motion to dismiss solely upon the basis of a 3 year delay between the time of the final decision on appeal and the time that appellant first filed his pro se petition. The judge noted expressly that he was not examining the merits of the petition. Appellant claims that this was error. We agree and, accordingly, remand for proceedings not inconsistent with this decision.

The judge indicated that he was dismissing the petition under the doctrine of Commw. v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982); Commw. v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commw. v. McCloud, 312 Pa.Super. 29, 458 A.2d 219 (1983); and Commw. v. Kale, 312 Pa.Super. 69, 458 A.2d 239 (1983). Apparently, the judge read those cases as requiring the dismissal of a PCHA petition, regardless of its merit, whenever there is a delay between the final decision on appeal and the time when a petition is first filed.

We disagree with this reading of those cases. The delay between the final decision on appeal and the filing of a PCHA petition is only one factor to be considered in determining the merits of a petition. Shaffer, 498 Pa. 342, 354, 446 A.2d 591, 597 (Roberts, J. concurring with O’Brien, C.J. and Nix, J.); Alexander, 495 Pa. 26, 36, 432 A.2d 182, 186-87; McCloud, 312 Pa.Superior Ct. 29, 32 n. 3, 458 A.2d 219, 220 n. 3; Kale, 312 Pa.Superior Ct. 69, 72, 458 A.2d 239, 241. Ironically, the judge stated an appropriate paraphrase of the prevailing standard in rejecting appellant’s reading of these cases at argument on the motion to dismiss:

I don’t want to cloud up the issues by saying when there’s a delay there’s some question as to whether or not there are issues of arguable merit____ That’s a different doctrine. I don’t want to get the two confused.

(N.T. 3/28/84, pp. 6-7).

The judge thus correctly noted that a delay casts some doubt on whether the issues in a PCHA petition are meritorious. He, however, erroneously assumed that the cited cases required dismissal even if the petition contained meritorious issues.

It has never been held that a delay alone is sufficient to dismiss a PCHA petition without assessing its merit. The cases cited by Judge Blake hold only that the delay is a factor to be considered in assessing the petition’s merit. In those cases, the merits of a petition were evaluated and the delay in filing the petition was one of the reasons for affirming the dismissal of the petition.

In Shaffer, the dismissal of a PCHA petition was properly based in part on delay because the delay was unexplained and the relief sought was withdrawal of a guilty plea. 498 Pa. 342, 355, 446 A.2d 591, 597. In Alexander, the Supreme court indicated that a delay is only one of a number of factors to assess whether an issue has been waived for PCHA purposes. 495 Pa. 26, 37, 432 A.2d 182, 186-87. In McCloud, a dismissal was proper partly because of delay when the defendant, at a hearing, did not prove or allege that his guilty plea was induced by ineffective counsel. 312 Pa.Superior Ct. 29, 34, 458 A.2d 219, 221. In Kale, we affirmed the dismissal when the delay was unexplained and the defendant attempted to withdraw a guilty plea and neither alleged nor proved the deprivation of his appellate rights. 312 Pa.Superior Ct. 69, 72, 458 A.2d 239, 241. In Kale, the PCHA court also held a hearing.

Thus, we must decide whether this dismissal was proper when an evaluation of the petition’s merits was not made. The judge indicated that he would dismiss the petition even if it had merit. Such a position is untenable. An assessment of the merits of a PCHA petition must be made before it can be dismissed. See 42 Pa.C.S.A. § 9549. Within this determination the delay may play a factor in determining the petition’s merits. We thus maintain the flexibility required for such a determination that was noted in the majority opinion in Alexander. 495 Pa. 26, 39, 432 A.2d 182, 188.

We decline to review the merits of the petition as suggested by the Commonwealth. We are not convinced that the petition is patently frivolous or unsupported by any trace of evidence in the record. It would be unwise for this court to usurp what is more appropriately the function of the PCHA court.

We conclude that the judge erred in dismissing the petition without evaluating the merits. On remand, he should determine if the issues raised in the petition warrant a hearing. In making this determination, he may take into account the delay between the final decision on appeal and the filing of the petition. The delay alone is not dispositive of the issue. By this reasoning, we maintain the requirement that the merits of the petition be assessed while also preserving the flexibility with which this determination should be made.

Order reversed and remanded for proceedings not inconsistent with this decision.

Jurisdiction is relinquished.


text:
    496 A.2d 824
    COMMONWEALTH of Pennsylvania v. Derek Clarence MAYO, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 16, 1985.
    Filed Aug. 2, 1985.

      David F. Wedge, Lancaster, for appellant.
    Joseph C. Madenspacher, Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before WICKERSHAM, BECK and CERCONE, JJ.
   BECK, Judge:

Appellant was convicted of robbery and criminal conspiracy for the holdup of a gasoline station’s convenience store. Post-verdict motions were denied, and appellant was sentenced to 33-72 months imprisonment for the robbery conviction, to be served concurrently with a 2-6 year sentence for the conspiracy count.

On appeal appellant claims (1) the trial court erred in failing to suppress evidence gathered while appellant was detained; (2) the trial court erred in granting the Commonwealth an extension under Pa.R.Crim.P. 1100; (3) the identification evidence was insufficient to find appellant guilty beyond a reasonable doubt, and (4) the sentence imposed was excessive. For the reasons stated below, we affirm the judgment of sentence.

The relevant facts are as follows. On December 8, 1982, at approximately 2:23 p.m., East Brandywine Township Police Chief John J. Harp received a radio report that three black males donning ski masks were observed outside a Little Washington bank. The three men were said to be driving a yellow-bottomed, black-topped 1978 or 1979 Chevrolet. Chief Harp had received a report earlier that day that three black males were seen putting on ski masks outside another local bank.

Using an unmarked car, Chief Harp drove towards the Little Washington bank. While driving on a rural road less than a mile from the bank, Chief Harp noticed three black males, one of them appellant, standing in the middle of the road next to a reddish brown and green 1971 Chevrolet. As soon as the men saw the police chief approach, they quickly got into the 1971 Chevrolet and sped away.

Chief Harp drove after them. He noted that the Chevrolet ran one stop sign and exceeded the speed limit by moving up to 65 miles per hour. In addition, the two passengers in the Chevrolet ducked down to keep hidden. During the chase, Chief Harp used his siren and flashing lights. Finally, the three men pulled over. Other police officers arrived immediately and kept the men in custody while the chief returned to the spot where he first noticed the men. He saw a log on the roadside which looked as if it had recently been moved. The log blocked a dirt lane running through a field. About 500 feet down the lane, Chief Harp saw a 1978 yellow-bottomed, black-topped Chevrolet. Chief Harp radioed for information and discovered that the car had been stolen that same day. He notified the state police and was soon joined by state troopers. On examining the Chevrolet, the chief noted that its engine was still warm and had been hot-wired.

The chief and the state troopers returned to where the three men were being detained, and the troopers placed the men under arrest. In total, appellant and his two companions were detained approximately one hour and ten minutes.

A search incident to arrest of one of the men uncovered a hunting knife. A search warrant was obtained for the reddish brown and green Chevrolet and a subsequent search of the car’s trunk uncovered a ski mask and army jacket. These items were later identified by a convenience store cashier as the knife used and the clothing worn by the men who robbed the store three weeks earlier.

Appellant claims this evidence should have been suppressed since it was the result of an improper detention. The detention was not, as appellant claims, an arrest without probable cause but was in fact a lawful Terry stop for investigative purposes. Commonwealth v. Murray, 460 Pa. 53, 331 A.2d 414 (1975). In evaluating the reasonableness of an investigative stop, we must examine “whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968); see Commonwealth v. Moore, 300 Pa.Super. 488, 446 A.2d 960 (1982). Therefore, the first question is whether Chief Harp was justified in initially detaining appellant and the two other men.

To justify an investigative stop, a police officer must rely on “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88 S.Ct. at 1880; Commonwealth v. Williams, 298 Pa.Super. 466, 468, 444 A.2d 1278, 1279 (1982).

Such an intrusion was indeed warranted in the instant case. Chief Harp saw three black males, less than a mile from the bank at which three black men were just spotted donning ski masks. Their car was stopped in the middle of a rural road. They took off immediately upon being approached by the chief, and ignored the siren and flashing lights beckoning them to pull over. They exceeded the speed limit and ran a stop sign in their flight from Chief Harp. The passengers ducked down to avoid being seen. Certainly, at this point, the police chief had seen enough to justify detaining appellant and his passengers. “Though flight alone will not justify a stop, ... a combination of circumstances, none of which taken alone would justify a stop, may be sufficient.” Moore, 300 Pa.Super. at 492, 446 A.2d at 962.

Since we conclude that the stop was justifiable, we must now determine whether the length of the detention was warranted. The United States Supreme Court recently addressed this issue in United States v. Sharpe, — U.S. —, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). In Sharpe, the Court rejected the notion that a 20-minute Terry stop was unreasonable and stated that its “cases impose no rigid time limitation on Terry stops.” Sharpe, — U.S. at —, 105 S.Ct. at 1575, 84 L.Ed.2d at 615. The Court articulated a standard to use in evaluating the reasonableness of a detention.

In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant. A court making this assessment should take care to consider whether the police are acting in a swiftly developing situation, and in such cases the court should not indulge in unrealistic second-guessing.

Id., at---, 105 S.Ct. at 1575-76, 84 L.Ed.2d at 615-16 (citations omitted).

It is clear from examining the record in the case sub judice that the police acted diligently in their investigation. Here, as in Sharpe, appellant’s attempt to evade Chief Harp by speeding away, certainly contributed to the length of appellant’s detention since in order to investigate appellant’s behavior, Chief Harp had to travel to and from the spot where he first noticed the three men. Under these facts, we cannot conclude that the length of detention was unnecessary or unreasonable. The subsequently discovered evidence was properly admitted into evidence.

Appellant next claims that the trial court erred in granting the Commonwealth an extension under Pa.R.Crim.P. 1100(c). In order to be granted an extension of the trial run date, the Commonwealth must show it acted with due diligence to bring appellant to trial within the run date. The test for determining whether the Commonwealth acted diligently is one of reasonableness under the circumstances. Commonwealth v. Wroten, 305 Pa.Super. 340, 451 A.2d 678 (1982). The record supports the trial court’s conclusion that the delay was due to three factors. First, the defense counsel was unavailable for a period of time. In addition, the priority system used by the court to schedule criminal trials required that cases with more imminent run dates be given priority. Finally, a key suppression hearing witness was unavailable at one point because that witness was unexpectedly called to testify in another case. The trial court concluded, and we agree, that the Commonwealth acted with due diligence in its attempt to bring appellant to trial within the trial run date. Therefore, the extension under Rule 1100(c) was properly granted.

Appellant also contends that the identification evidence was insufficient to find appellant guilty beyond a reasonable doubt. However, the record supports the trial court’s conclusion that the identification witness, the cashier at the convenience store, had positively and unwaveringly identified appellant and a co-defendant at separately held preliminary hearings and at trial. Although appellant and his co-defendant wore masks at the time of the robbery, the witness was able to identify appellant on the basis of his size, weight, hair, clothing, and build. In addition, the witness positively identified the knife and clothing found in appellant’s possession as those used and worn during the robbery. These combined elements made the witness’ identification of appellant sufficiently reliable to sustain appellant’s conviction. See Commonwealth v. Smith, 283 Pa.Super. 360, 423 A.2d 1296 (1981).

Finally, appellant claims the imposed sentence was excessive. The record which was certified to this Court contains no docket entry indicating that appellant filed a motion to modify sentence as required by Pa.R.Crim.P. 1410. Appellant was advised on the record at his sentencing hearing of the requirement that the motion to modify sentence be filed within ten days of the imposition of sentence. Appellant’s failure to file the motion constitutes a waiver of his sentencing claim. Commonwealth v. Boyce, 304 Pa.Super. 27, 450 A.2d 83 (1982).

However, if the question of appellant’s sentence were properly before us, we would find that the sentencing judge considered all relevant factors in imposing a sentence which neither exceeds the statutory limit for the crimes committed nor is otherwise an abuse of discretion.

Accordingly, the judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 903.


author: JOHNSON, Judge:

text:
    496 A.2d 828
    George L. WELLS v. ALEXIS GOLDEN TRIANGLE, INC. t/a Alexis. Appeal of LINCOLN BANK.
    Superior Court of Pennsylvania.
    Submitted March 27, 1985.
    Filed Aug. 2, 1985.

      Jerome L. Markovitz, Philadelphia, for appellant.
    Richard M. Imperatore, Philadelphia, for appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER , JJ.

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

   JOHNSON, Judge:

In this writ of execution action Lincoln Bank (Bank) appeals from the order of the trial court dismissing Bank’s objections to the sheriff’s Schedule of Proposed Distribution of the Proceeds of Sale and ordering distribution of the proceeds in accordance with the Schedule. Bank argues that, as a creditor with a perfected security interest in the property subject to sale, it should have priority over holders of subsequent, unsecured judgments.

We first note that if the facts are as Bank asserts, then Bank’s argument is meritorious. However, while Bank raised this issue below, the court did not make specific findings of fact regarding the asserted date of filing of appellant’s security interest. Accordingly, we must remand for further proceedings.

This execution action arose following a confession of judgment in assumpsit in the amount of $3,664.57 by one George L. Wells, Inc. against defendant Alexis Golden Triangle, Inc., t/a Alexis [hereinafter Alexis]. Wells then proceeded to praecipe for a writ of execution on its judgment, whereupon the sheriff seized property used by Alexis in its restaurant business and sold it for $4,400.70. The debts of Alexis, however, exceeded the amount recovered and many of the creditors listed on the sheriffs schedule were to receive nothing from the sale.

Lincoln Bank filed exceptions to this schedule, as per Pa.R.C.P. 3136(d), asserting that as a secured creditor, its claim should be given priority over all other creditors. Included among these creditors was Alexis’ landlord, Queen Village Partnership, which made a claim for past due rent. The hearing judge, in her opinion on Bank’s exceptions to the schedule, made findings of fact and conclusions of law regarding only the priority of the landlord’s claim for rent over Bank’s claim. See generally 68 P.S. § 321. However, in dismissing Bank’s objections, the court made no express ruling as to Bank’s position vis-a-vis the remaining creditors.

In Klingner v. Pocono International Raceway, Inc., 289 Pa.Super. 484, 488, 433 A.2d 1357, 1360 (1981), we held “[ujnder Pennsylvania law at the time that the levy occurred, a perfected secured creditor had unquestionable priority to the secured collateral over any judgment creditors who executed after perfection of his security interest. Uniform Commercial Code, 12A P.S. § 9-301(1)(b).” The levy in Klingner occurred in 1978. At that time, § 9-301(1)(b) read:

(1) except as otherwise provided in subsection (2), an unperfected security interest is subordinate to the rights of
(b) a person who becomes a lien creditor without knowledge of the security interest and before it is perfected____

The levy in the instant case occurred in 1976 and so arguably section 9-301(1) would apply. However, a ruling cannot be made on this matter without findings of fact and conclusions of law by the trial court as to the date on which Bank perfected its security interest and the dates on which the remaining creditors acquired their liens. As we said in a procedurally comparable case,

It is evident that we must remand this case to the lower court for an analysis of the specific issues raised, and potentially for making specific findings of fact based upon all of the evidence presented. It would not be appropriate for our Court to resolve such issues for the first time on an appeal, when they were clearly raised before the lower court. Further, it would clearly be improper for us to make findings of fact upon testimony and other evidence which was presented to the lower court.

Peter J. Schmitt Co. v. Mason’s Stores, Inc., 293 Pa.Super. 270, 275, 438 A.2d 989, 991 (1981).

Accordingly, the order of the lower court is vacated and this case is remanded for further proceedings. Jurisdiction is not retained by this Court.

      . The section was amended in 1982 to delete the requirement that the lien creditor act “without knowledge” of the unperfected security interest. This section now reads:

        (a) General rule. — Except as otherwise provided in subsection (b), an unperfected security interest is subordinate to the rights of:
      (2) a person who becomes a lien creditor before the security interest is perfected;


text:
    496 A.2d 830
    COMMONWEALTH of Pennsylvania v. Anthony WARNES, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 11, 1985.
    Filed Aug. 2, 1985.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.
    Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant, Anthony Warnes, was convicted of retail theft1 following a non-jury trial and sentenced to a term of imprisonment of from six months to one year. Warnes, seeking to have the conviction reversed because of the Commonwealth’s alleged failure to commence trial within 180 days as required by Pa.R.Crim.P. 1100, filed a timely appeal from the judgment of sentence.

The sole issue presented on appeal, as set forth by the Appellant, is whether the 180-day period under Rule 1100 commenced with Appellant’s arrest and incarceration on December 29, 1982. Since we find that the 180-day period did not commence with Appellant’s arrest and incarceration on December 29, 1982, we affirm.

By way of factual background, Appellant was arrested on December 29, 1982 on a charge of retail theft, and incarcerated when a probation detainer was lodged against him. It was not until March 23, 1983 that a private complaint was filed with the District Justice which was then approved by the District Attorney on March 28, 1983. Appellant’s trial commenced the following September.

Pa.R.Crim.P. 1100 provides in pertinent part:
(a)(2) Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

In Commonwealth v. Robinson, 498 Pa. 379, 384, 446 A.2d 896, 898 (1982) our supreme court stated:

Both the language of the Rule and our case law are clear that Rule 1100’s 180-day period commences on the date that a written complaint is filed or that criminal proceedings are otherwise initiated. Pa.R.Crim.Pro. 1100(a)(2); Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977).

Citing Robinson, supra, Appellant in his brief emphasizes the language “or that criminal proceedings are otherwise initiated” and argues that criminal proceedings in the instant case were initiated when Appellant was arrested and incarcerated on December 29, 1982. This contention has no merit.

In our view the reference to criminal proceedings being otherwise instituted refers to special documents used in lieu of a complaint in extraordinary circumstances such as a grand jury presentment or criminal proceeding initiated by a medical examiner. See Comment to Pa.R.Crim.P. 1100. Mere arrest or incarceration for a parole violation arising out of an unrelated prior conviction will not initiate the mandatory 180-day period under Rule 1100.

Case law has consistently held that where a complaint has been filed, the commencement of the 180-day period begins with the filing of a complaint. See Commonwealth v. Bowser, 318 Pa.Super. 571, 465 A.2d 1001 (1983); Commonwealth v. Warren, 313 Pa.Super. 390, 459 A.2d 1285 (1983). This principle is equally applicable where a private complaint is initiated for retail theft as in the instant case. Commonwealth v. Lomax, 324 Pa.Super. 549, 472 A.2d 217 (1984); Commonwealth v. Iaderosa, 276 Pa.Super. 439, 419 A.2d 538 (1980).

Judgment of sentence affirmed.


author: JOHNSON, Judge: SPAETH, President Judge,

text:
    496 A.2d 831
    Louis LIEBERMAN, Appellant, v. ABAT’S AUTO TAG SERVICE, INCORPORATED.
    Superior Court of Pennsylvania.
    Argued March 12, 1985.
    Filed Aug. 2, 1985.

      Wilbur Greenberg, Philadelphia, for appellant.
    Roger J. Harrington, Philadelphia, for appellee.
    Before SPAETH, President Judge, and JOHNSON and SHOYER, JJ.

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

   JOHNSON, Judge:

Appellee, Abat’s Auto Tag Service, Inc. (Abat’s), issued a temporary registration card and plate to one Nolan Brown in November of 1980, allegedly without proof of insurance coverage. In April of 1981, appellant Lieberman was struck and injured by Brown in Philadelphia, Pennsylvania. Appellant brought suit in October of 1983, charging that his injuries were a direct result of Abat’s negligence in issuing the registration. Appellee demurred to the complaint, arguing that the temporary registration would have necessarily expired sixty days after it was issued and that appellant’s exclusive remedy would be pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. In February of 1984, the trial court sustained the preliminary objections and dismissed appellant’s claim, with prejudice, upon a finding that a cause of action had been made out, but that Abat’s liability ceased with the expiration of the temporary registration. We agree with the trial court’s conclusion and affirm accordingly; however, we find that appellant has failed to state a cause of action for negligence and that his only remedy is under the No-fault Act.

Appellant’s attempt to causally connect the injuries he sustained with Abat’s alleged negligent issuance of the temporary registration is unconvincing. As our courts have stated, “ ‘One who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, ... ’” Thornton v. Weaber, 380 Pa. 590, 594, 112 A.2d 344, 346 (1955) quoting Mars v. Meadville Tel. Co., 344 Pa. 29, 31, 23 A.2d 856, 857 (1942) (emphasis added). Appellant fails to argue, and it is unclear to us, how his injuries were the natural and probable result of Abat’s action.

Appellant relies upon Lyngarkos v. Commonwealth of Pennsylvania, Department of Transportation, et al., 57 Pa.Commw.Ct. 121, 426 A.2d 1195 (1981) to establish that a cause of action does exist against Abat’s, even without proximate cause. In that case, our Commonwealth Court held that “an automobile dealer who issues a temporary registration card and plate to a purchaser without first securing proof of No-fault insurance is answerable in trespass to one injured by the dealer’s neglect.” Id. at 125, 426 A.2d at 1198. However, this duty was clearly imposed in furtherance of the concerns of the No-fault Act in order “to protect all motorists by insuring that they will have recourse to the comprehensive, expeditious and equitable No-fault insurance coverage required of all motorists.” Id. at 126, 426 A.2d at 1198.

The Commonwealth Court went on to state that Lyngarkos is not eligible for basic loss benefits precisely because, under the No-fault Act, he is not entitled to receive basic loss benefits since the accident occurred outside of the Commonwealth, Lyngarkos was not insured and he was not the driver or an occupant of a secured vehicle.

Id. at 127, 426 A.2d at 1199 (citation omitted).

The injury suffered by Mr. Lyngarkos, therefore, was not the physical harm from the accident but rather the inability to recover medical expenses under the No-fault Act.

No claim has been made by appellant herein, injured in this Commonwealth, that he is unable to recover through recourse to the No-fault Act. The trial court thus correctly concluded that Abat’s could not be held liable to appellants, and properly dismissed appellant’s complaint.

Order affirmed.

SPAETH, President Judge, files a concurring opinion.

SPAETH, President Judge,

concurring:

I agree with the majority that appellant has no cause of action, but on different reasoning.

It is, of course, axiomatic that to state a cause of action in negligence, the plaintiff must plead and prove four elements: a duty owed to him; the defendant’s breach of that duty; an injury suffered; and a particular causal relationship — generally described as “proximate cause”— between the injury and the breach of duty. Prosser and Keeton, The Law of Torts, § 30 at 164-65 (5th ed. 1984). It is also axiomatic that all four elements are interrelated. This is especially true of the elements of “duty” and “proximate cause.” As Prosser and Keeton explain the relationship:

It is quite possible to state every question which arises in connection with “proximate cause” in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it may be helpful since “duty” — also a legal conclusion— is perhaps less likely than “proximate cause” to be interpreted as if it were a policy-free factfinding. Thus, “duty” may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff’s benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the “proximate cause” of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same.
Id. at § 42 at 274. (footnotes omitted).

The injury for which a particular defendant will be held legally responsible is in turn dependent upon the relationship between that injury and the breach of duty, for a particular defendant is not responsible for all injuries suffered by a particular plaintiff, but only for those “proximately caused” by that defendant, or, stated otherwise, only for those that are within the scope of the duty defendant owes to plaintiff. Thus, “[negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.” Id. § 30 at 165. See also Troutman v. Tabb, 285 Pa.Super. 353, 359, 427 A.2d 673, 677 (1981) (“... in a negligence action proof of damage is an essential element.”)

This analysis makes clear, I believe, why we ought not hold appellee legally responsible: appellant suffered no injury within the scope of the duty owed to him by appellee.

Appellee was an authorized issuing agent of temporary automobile registration cards and plates. As such, his duty was defined by statute and implementing regulations. Section 1305 of the Vehicle Code, 75 Pa.C.S. § 1305 provides:

§ 1310. Temporary registration cards
(a) General rule. — The department shall provide temporary registration cards for use pending issuance or transfer of permanent registration cards. Temporary registration cards may be delivered to designated agents who shall have the authority to issue them in accordance with regulations promulgated by the department.

The regulations implementing this section in turn provide, in part:

(c) Issuance of temporary registration cards in connection with transfer of registration. Every issuing agent shall, upon request, issue a temporary registration card to the owner or lessee of a vehicle who has made proper application for transfer of registration on an application for certificate of title or other appropriate Departmental form.
(d) Duty to examine documents. The duty to examine documents shall include the following.
(1) Before issuing a temporary registration card, the issuing agent shall examine all documents necessary to the transaction.
(2) No temporary registration card shall be issued unless the following items are found to be in order: (i) Insurance information.
(A) Except as provided in clause (B) or (C), check to determine that the vehicle is insured by examining one of the following documents covering the subject vehicle, the vehicle traded for the subject vehicle or another vehicle owned by the applicant:
(I) An identification card as required in 31 Pa. Code Chapter 67, Subchapter B (relating to evidence of financial responsibility).
(II) The declaration page of an insurance policy.
(III) A valid binder of insurance.
(IV) A copy of an application to the Pennsylvania Automobile Insurance Plan.
(B) If none of the documents in clause (A) is available, verification that the vehicle is properly insured may be obtained by contacting the applicant’s insurance agent.
67 Pa.Admin. Code § 43.5.

These provisions form the basis of “a statutory duty ... to ascertain that the applicant for temporary registration cards and plates has the required No-Fault insurance.” Lyngarkos v. Commonwealth of Pennsylvania, Department of Transportation, et al., 57 Pa.Commw.Ct. 121, 126, 426 A.2d 1195, 1198 (1981).

In Lyngarkos the Commonwealth Court held that a breach by an issuing agent may give rise to a cause of action for negligence. That will occur, however, only when the plaintiff can plead and prove all elements of a negligence cause of action, including harm or injury attributable to the defendant’s breach of duty. Here, therefore, appellant had to plead and prove that the injury he suffered was within the scope of appellee’s duty to him. The scope of appellee’s duty, that is,’ the extent of the consequences of breach for which we may hold appellee legally responsible, is defined by the legislature’s purpose in imposing the duty of inspection upon appellee. That purpose was to further the policy of the No-Fault Act, 40 P.S. § 1009.101-701, to establish “a Statewide system of prompt and adequate basic loss benefits for motor vehicle accident victims----” 40 P.S. § 1009.102(b). In imposing this duty, as the majority notes, the legislature “meant to protect all motorist[s] by insuring that they will have recourse to the comprehensive, expeditious and equitable No-Fault insurance coverage required of all motorists.” Lyngarkos v. Commonwealth of Pennsylvania, Department of Transportation, et al., supra at 126, 426 A.2d at 1198. Thus, appellee’s duty to appellant extended to, but not beyond, a responsibility to ensure that appellant had a source available to compensate him for vehicle-caused injuries up to the levels provided for basic loss benefits under the No-Fault Act. See 40 P.S. § 1009.202.

Here, even if one assumes that appellee breached its duty as an issuing agent by negligently issuing temporary cards and plates to the uninsured motorist who in turn injured appellant, still, appellant suffered no damage from the breach. This is true because, through the Assigned Claims Plan, the legislature has provided an alternative means by which an uninsured victim of an uninsured motorist has access to basic loss benefits. See 40 P.S. § 1009.108; Tubner v. State Farm Mutual Auto Insurance Co., 496 Pa. 215, 218, 436 A.2d 621, 622 (1981) (“[u]nder Section 108(b), insurers are assigned to compensate motor vehicle accident victims for whom insurance is not carried as if a policy of basic loss insurance had been issued[.]”) Appellee’s negligence, therefore, if it was such, was injuria absque damno, “a wrong done, but from which no loss or damage results, and which, therefore, will not sustain an action.” Black’s Law Dictionary, 924 (4th ed. rev. 1968).

I therefore concur in the order affirming the order of the trial court.

      . This Court may affirm a correct decision of the trial court on any basis. See Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 359, 437 A.2d 417, 424 (1981) and authorities cited therein.

        . Finding this case to be clearly distinguishable from Lyngarkos, we need not address the trial court’s conclusion that liability terminated upon expiration of the temporary registration.

      . Appellant was injured on April 2, 1981. Section 1009.106(c) of the No-Fault Act, 40 P.S. § 1009.106(c) provides:
      (c) Time limitations on actions to recover benefits.—
      (1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier. If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits,
      and 40 P.S. § 1009.108(c) in turn provides:
      (c) Time for presenting claims under assigned claims plan.—
      (1) Except as provided in paragraph (2) of this subsection, an individual authorized to obtain basic loss benefits through the assigned claims plan shall notify the assigned claims bureau of his claim within the time that would have been allowed pursuant to section 106(c) of this act for commencing an action for basic loss benefits against any obligor, other than an assigned claims bureau, in any case in which identifiable no-fault insurance coverage was in effect and applicable to the claim, [footnote omitted]
      Whether or not an action under the Assigned Claims Plan is now untimely, however, does not affect the scope of the duty owed to appellant at the time the injury occurred. There is no claim that appellant was not then entitled to coverage through the Assigned Claims Plan.


text:
    496 A.2d 835
    Harry Kent DAVIS v. Kenneth E. RAISLEY and Helen Raisley, His Wife, and Kenneth L. Raisley and Julie Raisley, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued April 10, 1985.
    Filed Aug. 2, 1985.

      Robert F. Hawk, Assistant District Attorney, Butler, for appellants.
    Nancy J. Blewett, Butler, for appellee.
    Before WIEAND, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

In this dispute between adjoining landowners, appeal is taken from an order granting a permanent injunction and providing for imprisonment in the event of failure to comply. Appellants herein are Kenneth E. and Helen Raisley, husband and wife, and Kenneth L. and Julie Raisley, husband and wife. Appellants were named as defendants in a petition for temporary restraining order and preliminary injunction filed by appellee, Harry Kent Davis. The court granted this petition without a hearing and issued a rule to show cause why the injunction should not be made permanent. Ultimately, the court made the injunction permanent, prompting this appeal. Finding the arguments raised by appellants to be sound, we reverse.

In his petition for a preliminary injunction, Davis asserted that access to his real property was being impeded by appellants who, on May 28, 1984, had installed railroad ties across Davis’ driveway. He averred that he would suffer immediate and irreparable harm in that he had no access to his living quarters and that deliveries could not be made to his business, also located on this property.

At the hearing on the rule to show cause to determine if the injunction should be made permanent, no evidence was introduced. Instead, counsel for appellee brought to the court’s attention another case in equity, decided on December 21, 1983, pertaining to the same property. In that case, appellants Kenneth E. and Helen J. Raisley sued appellee Harry Davis, averring excess water run-off from appellee’s property. The court found no merit in that action and dismissed the case. In the instant case, counsel for appellee argued that the prior proceedings were res judicata to the present action since the prior proceedings pertained to the same property and involved some of the same parties. The court agreed with appellee’s argument despite appellants’ objections that the prior proceedings did not make a determination of the issue of property lines. Nonetheless, the court made its injunction permanent.

Appellants contend that the hearing court erred in ruling that the previous action in equity was res judicata to the instant case. For the doctrine of res judicata to apply, four conditions must be met: (1) identity in the thing sued upon; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality or capacity of the parties suing or being sued. In re Estate of Hillegass, 322 Pa.Super. 139, 469 A.2d 221 (1983); Kreider v. Kleinfelter, 314 Pa.Super. 571, 461 A.2d 304 (1983). Of the res judicata doctrine, the supreme court has said:

The conclusive effect of a judicial decision cannot be extended by argument or implication to matters not actually heard and determined nor to collateral questions which arise but do not become part of the case ... [A] former judgment is not conclusive of anything which was not directly decided by it or was not material to the decision. Before such effect can be given to it in another suit, it should appear either from the record, or aliunde, that it must have rested on the precise question which it sought again to agitate.

Haefele v. Davis, 399 Pa. 504, 508, 160 A.2d 711, 713 (1960) (citations omitted).

In the instant case, we hold that the res judicata doctrine is not applicable. We have compared the issues addressed in the opinion and order of the prior proceedings with those issues now before the court and we find no identity between the causes of action in these cases. The prior ruling was limited to the question of whether appellee directed surface water from his property over to that of Kenneth E. and Helen Raisley. The instant case is very different, for it avers that on May 28, 1984, or five months after the decision in the prior proceedings, appellants impeded appellee’s access to his property with railroad ties. This right of access issue was not resolved in the prior decision. Therefore, we find that the court erred in applying the res judicata doctrine to the present case.

Additionally, we note our agreement with appellants’ further contention that the hearing court erred in issuing a permanent injunction without a hearing. Pa.R.C.P. 1531(d) requires:

(d) An injunction granted without notice to the defendant shall be deemed dissolved unless a hearing on the continuance of the injunction is held within five (5) days after the granting of the injunction or within such other time as the parties may agree or as the court upon cause shown shall direct.

In the present case, the court did not hold a hearing because of the court’s conclusion that res judicata applied. In view of our ruling that res judicata does not apply, we are remanding this case for a hearing on the merits. Ogontz Controls Company v. Pirkle, 329 Pa.Super. 8, 477 A.2d 876 (1984).

Order reversed and case remanded for further proceedings. This court does not retain jurisdiction.


author: HOFFMAN, Judge:

text:
    496 A.2d 837
    COMMONWEALTH of Pennsylvania v. Juanita HATTEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1985.
    Filed Aug. 2, 1985.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, for Commonwealth, appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

The sole issue on appeal is whether double jeopardy bars appellant’s retrial on charges of simple assault and defiant trespass after a mistrial was declared sua sponte at her first trial. We find that retrial is barred and, therefore, reverse the order below and discharge appellant.

On August 5, 1980, a non-jury trial of appellant and her co-defendant, Stan Fields, began in the Municipal Court of Philadelphia. During cross-examination of the complaining witness, the assistant district attorney requested that the witness’s address not be disclosed. (N.T. August 5, 1980 at 14-15). Despite this request, appellant’s counsel questioned the witness about his address. The assistant district attorney objected, and the court called a sidebar conference which was not recorded. (Id. at 29-30). Following that conference, the co-defendant’s counsel requested a mistrial because the assistant district attorney had informed the judge during the conference that the co-defendant had threatened the complaining witness. (Id. at 30). Appellant’s counsel stated that he did not join the motion for a mistrial and that he wished the trial to proceed. (Id.) The assistant district attorney noted appellant’s position and informed the court that she wanted to sever the two cases and proceed with appellant’s trial. (Id. at 31). Instead, the court granted co-defendant’s motion for a mistrial and, sua sponte, declared a mistrial as to appellant, “so that both cases can run together;” appellant objected. (Id. at 32-33).

On September 5, 1980, appellant filed a motion in Municipal Court to dismiss the charges as barred by double jeopardy. That motion was denied on December 20, 1980. On appeal to the Court of Common Pleas of Philadelphia County, the Municipal Court’s decision was upheld on March 31, 1981. This appeal followed.

Pennsylvania Rule of Criminal Procedure 1118(b) provides as follows:

When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity.

(Emphasis added). Where a mistrial is declared sua sponte, the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions bar retrial unless manifest necessity is shown. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). The principles underlying the manifest necessity standard were first set forth by Justice Story in United States v. Perez, 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165 (1824):

We think, that in all case of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.

Id. at 580. The Supreme Court stated more recently that:

A trial judge properly exercises his discretion to declare a mistrial if an impartial verdict cannot be reached, or if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial. If an error would make reversal on appeal a certainty, it would not serve “the ends of public justice” to require that the Government proceed with its proof when, if it succeeded before the jury, it would automatically be stripped of that success by an appellate court.

Illinois v. Somerville, 410 U.S. 458, 464, 93 S.Ct. 1066, 1070, 35 L.Ed.2d 425 (1973). Furthermore, before a trial court can properly declare a mistrial sua sponte, it must consider whether a less drastic alternative would allow the trial to continue. Failure to consider alternatives before declaring a mistrial is grounds for barring retrial. Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 182, 352 A.2d 4, 8, cert. denied, 429 U.S. 867, 97 S.Ct. 178, 50 L.Ed.2d 147 (1976); Commonwealth v. Bradley, 311 Pa.Superior Ct. 330, 338, 457 A.2d 911, 915 (1983).

In the instant case, we believe that the assistant district attorney’s disclosure to the trial court was not prejudicial to appellant and would not have required reversal on appeal had appellant been convicted. Thus, rather than declaring a mistrial as to both defendants, the trial court should have severed the two trials as suggested by appellant and the Commonwealth. The Court’s desire to have two related cases tried together cannot, by itself, amount to manifest necessity for declaring a mistrial sua sponte. We therefore find that the trial court’s failure to consider the less drastic option of severance requires that retrial of appellant on these charges be barred by double jeopardy.

We distinguish this case from Commonwealth v. Wilson, 257 Pa.Superior Ct. 329, 390 A.2d 847 (1978). In that case, the trial court declared a mistrial over the objection of one defendant and on the motion of his co-defendant after testimony prejudicial to both had been admitted. This Court held that the circumstances of that case created manifest necessity to declare a mistrial sua sponte for the nonmoving defendant, because if a mistrial had not been declared, and the defendant was convicted, he could have then sought a new trial based on the admission of prejudicial testimony. Here, however, the prejudicial matter concerned only the co-defendant and not appellant. Therefore, appellant would not have been able to secure a new trial on the basis of the assistant district attorney’s remark had she been convicted.

Reversed. Appellant shall be discharged.

       We note that the disclosure of the co-defendant’s threats toward the complaining witness may not have been grounds for a mistrial of either defendant. Evidence that a defendant had threatened or tried to influence witnesses is admissible. Commonwealth v. Goldblum, 498 Pa. 455, 473, 447 A.2d 234, 243 (1982); Commonwealth v. Klick, 272 Pa.Superior Ct. 61, 66, 414 A.2d 669, 671 (1979).