author: BROSKY, Judge:

text:
    465 A.2d 1
    COMMONWEALTH of Pennsylvania v. David DICKTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 24, 1983.
    Filed July 15, 1983.
    Reargument Denied Sept. 23, 1983.
    Petition for Allowance of Appeal Denied Feb. 8, 1984.

      Robert D. Gleason, Johnstown, for appellant.
    D. Gerard Long, District Attorney, Ebensburg, for Commonwealth, appellee.
    Before SPAETH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

The primary issue raised in this appeal is whether the lower court erred in denying appellant’s motion to withdraw a plea of nolo contendere which he had entered to charges of involuntary deviate sexual intercourse and indecent assault. Appellant also contests the sentence imposed upon him. For the reasons that follow, we affirm.

Appellant was arrested in July, 1976, and charged with having had deviate sexual intercourse with a twelve-year old boy on two occasions in June, 1976. He was also accused of having committed an indecent assault on a nine-year old boy in June, 1976.

On February 16, 1977, appellant entered the nolo contendere pleas which are before us. On July 18, 1977, appellant appeared at the Cambria County Courthouse for sentencing, but absconded before sentence was imposed.

It is now known that he fled to Israel where he remained for three years. Mr. Dickter was found in Florida in October, 1980. He was returned to Cambria County apparently in late 1980 or early 1981. In August, 1981, appellant petitioned the lower court to permit him to withdraw his pleas. The petition was denied and Mr. Dickter was sentenced to consecutive terms of imprisonment of four to ten years and one to two years. These sentences were to be served consecutively to a prison sentence imposed upon appellant in New York State for a similar offense.

For purposes of our review, a plea of nolo contendere is treated the same as a plea of guilty. Commonwealth v. Ammon, 275 Pa.Super. 324, 418 A.2d 744 (1980).

Although appellant’s petition was presented four years after he entered the pleas, it was nonetheless filed prior to the imposition of sentence. Pa.R.Crim.Procedure 320 provides:

At any time before sentence, the court may, in its discretion, permit or direct a plea of guilty to be withdrawn and a plea of not guilty substituted.

Our Supreme Court recently discussed the standard to be employed in reviewing petitions to withdraw pleas that are presented prior to sentence. In Commonwealth v. Shaffer, 498 Pa. 342, 446 A.2d 591 (1982), the court wrote:

The standard for allowing withdrawal of a guilty plea prior to sentence was articulated in Commonwealth v. Forbes, 450 Pa. 185, 191, 299 A.2d 268, 271 (1973) wherein we quoted with approval the following:
“Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.” ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty____
(Emphasis in original.) Because the plea involves the simultaneous waiver of so many constitutional rights, a request to withdraw prior to sentencing is “liberally allowed.” Id., 450 Pa. at 190, 299 A.2d at 271; see also, Commonwealth v. McLaughlin, 469 Pa. 407, 366 A.2d 238 (1976).

See Forbes, supra, 450 Pa. at 191, 299 A.2d at 271 (the test to be applied by trial courts is fairness and justice).

In Commonwealth v. Mosley, 283 Pa.Super. 28, 31, 423 A.2d 427, 428 (1980), we explained,

While a pre-sentence withdrawal request should be liberally considered, defendant must present a fair and just reason for withdrawing the plea. Even if a viable reason is asserted for withdrawal, withdrawal is only permitted if the Commonwealth has not been substantially prejudiced by reliance on the plea.

With these principles in mind, we turn to the issues before us.

Because we agree with the conclusion of the lower court that the Commonwealth would be substantially prejudiced if the plea were withdrawn, we affirm the judgment of sentence.

Although the withdrawal request was made prior to sentencing, it was made four and one-half years after the plea was entered. The crimes were committed against young boys whose ability to testify accurately, we may assume, would be substantially diminished after the passage of so long a period.

Furthermore, the delay was caused by the appellant’s unlawful flight. We cannot permit him to prejudice the Commonwealth’s position by his own illegal conduct.

We come finally to appellant’s claim that he was sentenced improperly. We have reviewed the transcript of the sentencing hearing and conclude that the court did comply with the standards enunciated in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Although our review has been without benefit of an opinion by the lower court, our examination of the sentencing hearing transcript convinces us that adequate reasons were given for the sentence, which was within the statutory limits. The court explained that it considered not only the seriousness of the crimes, but the aggravating circumstances: e.g., the ages of the victims, violation of public trust since the appellant obtained access to the victims through the Big Brother program; and, the flight from jurisdiction.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 3126.

      . Other charges, not at issue here, were dropped.


source: Caselaw Access Project

license: Public Domain

text:
    465 A.2d 3
    Ralph GIACCO and Magdaline Giacco, his wife, Appellants v. Anthony PAMPENA and Mary Pampena, his wife, and Vincenzo Pampena and Antoinette Pampena, his wife, and Salvator Ortenzo and Connie Ortenzo, his wife, and Rita Denne.
    Superior Court of Pennsylvania.
    Argued March 30, 1983.
    Filed Aug. 12, 1983.

      Girard N. Evashavik, Pittsburgh, for appellants.
    Harvey E. Robins, Pittsburgh, for appellees.
    Before CAVANAUGH, BROSKY and MONTGOMERY, JJ.
   BROSKY, Judge:

This is an appeal from the judgment dismissing appellants’ exceptions to the chancellor’s adjudication below. Appellants contend that the court below erred in permitting the testimony of an expert witness. We disagree with appellants and, accordingly, affirm the order below.

On October 29, 1976, appellants brought suit in equity seeking an injunction and damages. They alleged that appellees had and were conducting activities (i.e., the addition of fill to appellees’ land) which caused destruction of a wall constructed around the perimeter of appellants’ land. Appellees answered by denying appellants’ theory of destruction and asserting, inter alia, that the damage was caused by appellants’ poor construction of the wall.

On September 13, 1979, pre-trial statements were filed by both parties. Appellees’ statement notified appellants that an engineer would testify as to the collapse of the wall and survey of the property, but did not include the identity of the expert or his report.

Trial began on October 30, 1979. Appellants included in their case the testimony of four experts. Appellees began their presentation of evidence on the second day of trial, and presented their expert to testify as to the collapse of the wall.

Appellants objected to such testimony because the expert was not listed by name in appellees’ pre-trial statement and his report was not attached thereto. Appellees stated that the expert would testify only as to what was stated in their answer. The chancellor allowed him to testify while granting appellants the opportunity to present additional counter evidence if they felt it necessary to do so. Also, appellees amended their pre-trial statement and submitted their expert’s report to appellants before the third and final day of testimony. Appellees’ expert testified on the third day and gave his opinion as a geotechnical engineer as to the technical causation of the damage to the wall.

An adjudication was made on March 3, 1980 against appellants based on all the evidence submitted at the trial. Appellants’ exceptions to this adjudication were dismissed and this appeal followed.

Appellants first contend that Local Rule 212 of Allegheny County mandated the exclusion of appellees’ expert witness. Rule 212 provides in relevant part as follows:

Witnesses whose identities have not been revealed ... or whose reports have not been furnished ... will not under any circumstances whatsoever, be permitted to testify at the subsequent trial of the case. Local Rule 212 IV. E. The names and addresses of persons who may be called as witnesses, classifying them as liability or damage witnesses____ The reports of any expert whose opinion will be offered in evidence at the time of trial. Such reports shall include the findings of fact and conclusions of the expert. Local Rule 212 VI. B.I. a., d.

We agree that the sanction does appear to be mandatory on its face, but this court has held that its application is discretionary with a trial court. Nowosielski v. Kryzosiak, 280 Pa.Super. 243, 421 A.2d 703 (1980); see Sindler v. Goldman, 309 Pa.Super. 7, 454 A.2d 1054 (1982). Appellants, however, argue alternatively that if application of the sanction is discretionary, then the court below abused its discretion in not applying it.

In Nowosielski, citing the case of Gill v. McGraw Electric Co., 264 Pa.Super. 368, 399 A.2d 1095 (1979) (involving a violation of a pre-trial conference order), we noted the following basic considerations which the court should take into account in such situations:

(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified, (2) the ability of that party to cure the prejudice, (3) the extent to which waiver of the rule against calling unlisted witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court and (4) bad faith of [sic] willfulness in failing to comply with the court’s order.

Id., 264 Pa.Superior Ct. at 382, 399 A.2d at 1102.

Although appellees stated to the chancellor that their expert’s testimony would testify only as to what was stated in their answer, we find that his detailed, technical opinion and theories went bejmnd appellee’s contention in their answer that appellants had constructed the wall poorly. Certainly, appellants were prejudiced to some extent by the expert’s testimony when they were unaware until trial of his identity or the substance of his report.

However, we also find that appellants’ had numerous opportunities prior to and during the trial to minimize any prejudice resulting from the admission of appellees’ expert’s testimony. Appellants were notified in appellees’ pre-trial statement, yet, in the month and a half interval between this notification and trial, they apparently made no inquiry of appellees as to the expert’s identity. Such an inquiry could have been made by written interrogatories pursuant to Pa.R.C.P. 4005. A failure to answer such an inquiry would then have been subject to sanctions under Pa.R.C.P. 4019.

Also, appellants made no attempt to use any of their own four experts for rebuttal purposes despite the opportunity given them by the chancellor to present counter evidence. There is nothing on the record which would explain this omission except a bald assertion that appellants’ experts were no longer available. Furthermore, appellants were provided a copy of appellees’ expert’s report at the trial. If they or their experts needed more time to study the report, they could have requested a continuance pursuant to Pa.R. C.P. 216; appellants chose not to do so.

“Viewing all these facts together, we conclude that [appellees’] violation of [Rule 212 VI. B.I. a., d.] does not warrant imposition of the drastic sanction of excluding [appellees’ expert’s] testimony.” Nowosielski, 280 Pa.Superior Ct. at 248, 421 A.2d at 706.

Accordingly, we affirm the judgment of the court below.

      . As did the court in Sindler, supra., we find Judge Spaeth’s dissenting opinion in Nowosielski very persuasive. There, after concluding that Gill, supra., was not necessarily controlling, he stated:
      Thus, the sanction of excluding the witness’s testimony was not discretionary, as in Gill, but mandatory, required in all cases and "under any circumstances whatsoever.” Gill, therefore, is inapposite, and by relying on it, the majority has rewritten the local rule and transformed a mandatory sanction into a discretionary one.... [W]e should not rewrite the rule but should require the lower court to apply it as the lower court has written it. Since here the lower court failed to apply its own rule, its judgment should be reversed and appellants granted a new trial.

        Nowosielski, 280 Pa.Superior Ct. at 248-9, 421 A.2d at 706.
      However, we are bound by precedent to treat the sanction as being discretionary.

      . The importance of a party’s ability to minimize any prejudice it may suffer was emphasized in Nowosielski, supra.

      . Pa.R.C.P. 4003.5 which specifically governs the discovery of expert testimony was not effective until 1979. It thus would not have been applicable in this case since this action was instituted in 1976 and procedural rights are determined by the law in force when the action is initiated. See, Trinity Area School District v. Dickson, 223 Pa.Super. 546, 302 A.2d 481 (1973).

      . Appellants state in their brief that the chancellor would not grant them a continuance. However, appellants do not refer us to the place in the record of such a refusal, nor does our examination of the record reveal such a request for and refusal of a continuance.


author: WIEAND, Judge:

text:
    465 A.2d 5
    Stanley LANGMAN and Ethel Langman, Husband and Wife, v. METROPOLITAN ACCEPTANCE CORP., a Pennsylvania Corp., Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1982.
    Filed Aug. 12, 1983.

      Abe Lapowsky, Philadelphia, for appellant.
    Henry Jacobson, Philadelphia, for appellees.
    Before BROSKY, WIEAND and BECK, JJ.
   WIEAND, Judge:

This is an appeal from an order refusing to strike a judgment confessed pursuant to a warrant contained in a lease. We reverse. Because the confessed judgment included an amount for which there was no authority to confess judgment, the judgment is void and must be stricken.

Stanley and Ethel Langman, as lessor, entered a written agreement to lease premises known as 22 North 60th Street, Philadelphia, to Metropolitan Acceptance Corporation, as lessee. The lease contained, in paragraph 16, a warrant authorizing the lessor to confess judgment against the lessee for “rent and/or any charges reserved in this lease as rent____” The lease required the lessee to keep the premises in good repair. With respect to this requirement, the lease provided as follows:

“In the event of the failure of Lessee promptly to perform the covenants of [the repair clause], Lessor may go upon the demised premises and perform such covenants, the costs thereof, at the sole option of Lessor, to be charged to Lessee as additional and delinquent rent." (emphasis supplied).

In a complaint filed to confess judgment on the foregoing lease, the lessor alleged a default in payment of one month’s rent for $85.00, accelerated rent due of $1,275.00, and “necessary repairs in the amount of $2,000.00 ----” There is no averment in the complaint or elsewhere in this record that any repairs have ever been made to the demised premises. The item of $2,000.00 for unmade repairs has not been supported by an estimate for such repairs or even by an identification of the repairs needed. The record contains nothing more than the lessor’s bald assertion that the lessee failed to make repairs in the amount of $2,000.00.

Such a record is fatally defective and requires that the judgment be stricken. Because a warrant of attorney authorizing confession of judgment can be an oppressive weapon, a judgment entered pursuant thereto can be accomplished only by strict adherence to the provisions of the warrant of attorney. Kline v. Marianne Germantown Corp., 438 Pa. 41, 45, 263 A.2d 362, 364 (1970); Scott Factors, Inc. v. Hartley, 425 Pa. 290, 292-293, 228 A.2d 887, 888 (1967); Walter E. Heller & Co. v. Lombard Corp., 423 Pa. 333, 335, 223 A.2d 716, 717 (1966); Roche v. Rankin, 406 Pa. 92, 97, 176 A.2d 668, 671 (1962); Pittsburgh v. Charles Zubik & Sons, Inc., 404 Pa. 219, 222, 171 A.2d 776, 778 (1961); Housing Mortgage Corp. v. Tower Development & Investment Corp., 402 Pa. 388, 389, 167 A.2d 146, 147 (1961); Grady v. Schiffer, 384 Pa. 302, 306, 121 A.2d 71, 73 (1956); Continental Bank v. Tuteur, 303 Pa.Super. 489, 493, 450 A.2d 32, 35 (1982); Centennial Bank v. German-town-Stevens Academy, 277 Pa.Super. 134, 138, 419 A.2d 698, 699 (1980); Florida Crab House, Inc. v. Hake, 259 Pa.Super. 230, 233-234, 393 A.2d 801, 803 (1978); Colony Federal Savings & Loan Association v. Beaver Valley Engineering Supplies Co., 238 Pa.Super. 540, 544, 361 A.2d 343, 346 (1976). Any doubt as to the validity of such a judgment must be resolved against the party entering the judgment. Kline v. Marianne Germantown Corp., supra; Scott Factors, Inc. v. Hartley, supra; Grady v. Schiffer, supra; Centennial Bank v. Germantown-Stevens Academy, supra.

The warrant in the instant case permitted the lessor to go upon the demised premises and make necessary repairs which the lessee failed to make and charge lessee with the cost thereof as additional rent. The warrant did not authorize a judgment for an estimate of repairs not made; neither did it authorize a confession of judgment for unspecified, general repairs in an amount believed necessary by the lessor. A judgment for the cost of repairs was authorized only if supported by an expense actually incurred for repairs made by the lessor.

The lessor does not suggest that repairs have in fact been made to the demised premises or that the warrant authorizes confession of judgment for unmade and undesignated repairs. He argues, instead, that the lessee should not be heard to assert the unauthorized nature of the judgment because of the “waiver of errors” clause in the lease. There is no merit in this contention. Although a lessee, by clear and appropriate language, may waive his right to attack a judgment entered pursuant to warrant because of irregularities relating merely to the manner in which the authority in the lease has been exercised, i.e., procedural errors, the law is eminently clear that a waiver or release of errors does not extend to a fundamental lack of authority to enter judgment. Green Ridge Bank v. Edwards, 247 Pa.Super. 231, 240, 372 A.2d 23, 27 (1977). Accord: Dozor v. Crown Construction Co., 384 Pa. 49, 55-56, 119 A.2d 246, 249-250 (1956); Curry v. Bacharach Quality Shops, Inc., 271 Pa. 364, 373, 117 A. 435, 438 (1921); Parliament Industries, Inc. v. William H. Vaughan & Co., Inc., 287 Pa.Super. 458, 466-467, 430 A.2d 981, 985 (1980); Polis v. Russell, 161 Pa.Super. 456, 461, 55 A.2d 558, 561 (1947); Grakelow v. Kidder, 95 Pa.Super. 250, 257-258 (1928).

The defect in the instant judgment was not procedural. Rather, the judgment was entered for an item not authorized by the warrant of attorney. Such a defect goes to the very heart of the judgment and cannot be ignored or overlooked under the aegis of the “waiver of error” clause.

“In numerous decisions, [the courts] have ruled that if the confessed judgment includes an item not authorized in the warrant, the judgment is void in its entirety and must be stricken.” Kline v. Marianne Germantown Corp., supra. See also: Walter E. Heller & Co. v. Lombard Corp., supra; McDowell National Bank of Sharon v. Vasconi, 407 Pa. 233, 178 A.2d 589 (1962); Housing Mortgage Corporation v. Tower Development & Investment Corporation, supra.

The order of the trial court is reversed, and the judgment is stricken.

      . The depositions of Stanley Langman were not a part of the record when the judgment was entered and cannot be considered in determining the motion to strike the judgment. See: Conti v. Shapiro, Eisenstat, etc., 293 Pa.Super. 301, 305 n. *, 439 A.2d 122, 124 n. * (1981). Nevertheless, the lessor’s depositions confirm that no repairs were in fact made by the lessor to the demised premises.


author: JOHNSON, Judge:

text:
    465 A.2d 8
    Constance ROSSI, v. STATE FARM AUTOMOBILE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1982.
    Filed Aug. 12, 1983.
    Petition for Allowance of Appeal Denied Jan. 16, 1984.

      Dennis Veneziale, Philadelphia, for appellant.
    Eugene A. Spector, Philadelphia, for appellee.
    Before JOHNSON, WATKINS and LIPEZ, JJ.
   JOHNSON, Judge:

This appeal asks us to decide whether a passenger who has recovered damages under the liability provisions of an insurance policy held by the operator of a motor vehicle may thereafter recover the same damages by compelling arbitration under the uninsured motorist coverage of the same policy. We think not and reverse the order of the common pleas court confirming the arbitration award.

On December 17, 1978, an automobile driven by Rene Lucas collided with an uninsured automobile at Walnut and Fifty-Sixth Streets in Philadelphia. Constance Rossi was a passenger in the automobile driven by Lucas when it was involved in the collision. Rossi sustained injuries as a result of the collision. Subsequently, she settled and released any claims she may have had against Rene Lucas. The release inter alia contained the following language:

Constance Rossi reserves the right to explore any and all avenues to recover further and obtain full and complete compensation for her injuries and damages, including her right to pursue any claims available against any insurance carrier affording to plaintiff uninsured motorist coverage____

In exchange for executing the release, she received $7,500.00 from State Farm Automobile Insurance Co., the liability insurance carrier for Lucas.

After accepting the $7,500.00, Rossi made a claim under the uninsured motorist (UM) coverage of the Lucas policy. State Farm refused payment. Rossi compelled the appointment of arbitrators under the arbitration clause of the policy. The arbitration was conducted pursuant to the Act of April 25, 1927 P.L. 381 No. 248, 5 P.S. § 161 et seq. An arbitration hearing was held on January 22, 1981. The arbitrators awarded Rossi the following damages:

(A) $6,500.00 for Plaintiffs (Rossi’s) Pain and Suffering
(B) Special Damages Consisting of:
1. Medical Expenses $ 984.00
2. Lost Wages 540.00
$1,524.00
(C) Total of (A) and (B) $8,024.00

Rossi then petitioned for confirmation of the award of the arbitrators. State Farm cross-petitioned for modification of the award. The petition to confirm the award was granted, prompting this appeal.

We begin our analysis of the instant case by considering the release that Rossi executed. The language in the release purports to reserve a further right of recovery to Rossi of uninsured motorist benefits. However, that further right of recovery is limited to “any insurance carrier affording ... uninsured motorist coverage” to Rossi. The release therefore permits Rossi a limited right of further recovery from her own carrier of uninsured motorist benefits. Since Rossi sought recovery from the insurance carrier of another, her claim falls outside of the limited right of further recovery reserved in the release. Her second claim under the Lucas policy is therefore not protected by the release.

Even if we were to construe the release as reserving to Rossi the right to further recovery from State Farm under the Lucas policy, our inquiry would not end there. It would be incumbent upon us to determine if Rossi received full compensation for her injuries from the settlement.

While it is a fundamental rule of damages that a person injured by the tortious act of another is entitled to compensation, a court will not allow that person more than one satisfaction in damages. Muise v. Abbott, 160 F.2d 590 (1st Cir.1947) affirming 60 F.Supp. 561 (D.Mass.1945). An injured party cannot recover twice for the same injury. See Thompson v. Fox, 326 Pa. 209, 192 A. 107 (1937); see also Smialek v. Chrysler Motors Corporation, 290 Pa.Super. 496, 508, 434 A.2d 1253, 1259 (1981); Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 180, 390 A.2d 765, 771-2 (1978). This rule is based on the theory that duplicate recovery results in unjust enrichment. Muise v. Abbott, 60 F.Supp. at 562.

We believe this fundamental rule of damages is equally applicable when a recipient of insurance benefits, which fully compensate the recipient for the injuries suffered, seeks to recover for the loss a second time under a different provision of the same policy. We apply the rule to the instant case.

The record indicates that State Farm paid Rossi under the liability portion of the Lucas policy, when she settled her claims against Rene Lucas and executed a release in exchange for the sum of $7,500.00. At the time of the settlement Rossi had incurred medical expenses and wage loss totalling $1,524.00. The medical bills and wage loss were known to the parties and were used as an indicator of the general damages which Rossi sustained. The additional increment of $5,976.00 in the settlement represented payment to Rossi for her general damages. State Farm therefore compensated Rossi for both her special and general damages in the settlement.

After receiving the settlement amount, Rossi compelled arbitration seeking further recovery from State Farm for her injuries. During the arbitration hearing she did not purport to prove additional damages beyond those she received in settlement of her claim against Rene Lucas. She submitted the same medical bills and wage loss to the arbitrators as evidence of her special damages. N.T. Arbitration Hearing at 43-52; R.R. at 107a-116a. From this evidence, the arbitrators determined that she was entitled to be compensated for her special damages in the amount of $1,524.00 and to receive the sum of $6,500.00 as pain and suffering. The arbitrators refused to reduce their award by the amount she had received from the settlement; thus it cannot be said that the amount awarded was for damages in excess of those for which she was compensated by the settlement.

Our review of the record convinces us that Rossi, by compelling arbitration under the UM coverage, sought from State Farm a second recovery of damages for the same injury, under a different portion of the Lucas policy. The presentation of the same evidence of medical expenses and wage loss to the arbitrators convinces us that Rossi did not suffer a loss that remained uncompensated after the prior settlement. In fact, the only difference between the amount of the arbitrators’ award and the amount of the settlement was the increased value the arbitrators placed upon Rossi’s claim for general damages. This does not represent the accrual of additional compensable loss by Rossi, but it is merely a difference of opinion as to the value of Rossi’s general damages.

Irrespective of the amounts she recovered from State Farm in her settlement with Lucas, Rossi argues that she may recover under the UM coverage of the Lucas policy because it is a separate coverage which applies to the circumstances of her injury. However, the purpose of UM coverage is not to enrich persons who have fully recovered monetarily from an accident yet who seek to obtain windfall profits. See Amaradio v. Travelers Insurance Co., 276 Pa.Super. 189, 419 A.2d 159 (1980).

Our cases have held that uninsured motorist coverage is to be construed liberally, except when equally strong legal or equitable considerations to the contrary are present. See Adelman v. State Farm Mutual, 255 Pa.Super. 116, 386 A.2d 535 (1978); Sands v. Granite Mutual Insurance Co., 232 Pa.Super. 70, 331 A.2d 711 (1974). We think that such considerations are present where, as here, a double recovery is sought. But cf., Saunders v. State Farm Insurance Co., 294 Pa.Super. 424, 440 A.2d 538 (1982) allocatur granted June 4, 1982 (where this court permitted double recovery as a matter of interpretation of the insurance policy). We therefore reject the notion that Rossi may have a duplicate recovery for her injuries simply because they fall within two separate and distinct coverages provided by the Lucas policy. We cannot in equity and good conscience allow Rossi to receive more than one satisfaction for her injuries, by permitting her to be twice compensated for them at the expense of State Farm and Rene Lucas.

For the reasons we have discussed supra, we hold that Rossi is not legally entitled to recover duplicate damages for the same injuries under the separate coverages afforded by State Farm in the Lucas policy.

Before concluding, we note that State Farm has raised in its brief an issue similar to the one in Saunders v. State Farm Insurance Co., supra. Saunders held that a policyholder may receive a duplicate recovery of her special damages, i.e., medical expenses and wage loss, under her personal injury protection benefits and her UM coverage. The policyholder/claimant had paid two premiums for these separate coverages. Saunders is distinguishable from the instant case. The facts of Saunders differ from the instant case in that Rossi seeks duplicate recovery of her total damages from the insurance coverages of a third party, Lucas, for which she, Rossi, has not paid premiums. We find Saunders inapplicable to the instant case.

For the above reasons, we reverse the order of the trial court and remand for the entry of an order consistent with this opinion. Jurisdiction is relinquished.

      . Our conclusion that a recipient of insurance benefits which fully compensate for any loss suffered, is not entitled to a double recovery, even if the recipient legally has another claim of recovery for the same loss, is analogous to that reached by the Indiana courts. See Wecker v. Kilmer, 260 Ind. 198, 294 N.E.2d 132 (1973); Lazarrus v. Employers Mutual Casualty Co., 173 Ind.App. 452, 364 N.E.2d 140 (1977).


text:
    465 A.2d 11
    Christine STRINGER, a/k/a Christine Cuddy, v. Albert J. KAYTES, Stanford Keyne, Albert J. Kaytes and Company and Kaytes and Kelsey-Barber Corporation, Appellants.
    Superior Court of Pennsylvania.
    Argued March 3, 1983.
    Filed Aug. 19, 1983.

      Richard S. March, Philadelphia, for appellants.
    William L. Keller, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and HOFFMAN, JJ.
   WIEAND, Judge:

Where a party seeks to reinstate a complaint which has been dismissed for inactivity under Philadelphia Rule 130, is the failure to proceed excused either by difficulty experienced in marshalling evidence or by a change in counsel which took place more than a year before the action was dismissed? We conclude that neither reason is adequate and reverse the order reinstating a complaint after more than four years of inactivity.

This is not the first time this matter has been before the Superior Court. On May 8, 1981, a panel of this Court reversed an order of the trial court reinstating the complaint and remanded the matter for reconsideration in accordance with, the decision in International Telephone & Telegraph Corp. v. Philadelphia Electric Co., 250 Pa.Super. 378, 378 A.2d 986 (1977). On remand, Christine Stringer, the plaintiff-appellee, offered no evidence. Nevertheless, the trial court found that her failure to proceed was excusable and again reinstated the complaint. From this order the defendants, Albert J. Kaytes, Stanford Keyne, Albert J. Kaytes and Company and Kaytes and Kelsey-Barber Corporation, have taken the instant appeal.

The action was commenced by the issuance of a summons on February 2, 1973. This was followed by a complaint on March 9, 1973. On December 17, 1973, plaintiff-appellee was ordered to appear for depositions, and she did appear and was deposed on February 12, 1974. Thereafter, there was no activity whatsoever until the action was dismissed with prejudice on September 23, 1977, pursuant to Philadelphia Rule 130. On June 30, 1978, more than four years after the taking of plaintiff-appellee’s depositions, she filed a petition to reinstate her action. This was denied on July 28, 1978. On August 25, 1978, plaintiff-appellee filed a petition for reconsideration. The petition was denied on November 22, 1978, but she was granted leave to file an amended petition. An amended petition was filed and then granted by the court on January 9, 1979. On appeal, the Superior Court held that the trial court had incorrectly determined that Philadelphia Rule 130 was invalid. Therefore, it reversed the order of reinstatement and remanded for reconsideration in accordance with principles set forth in International Telephone & Telegraphic Corp. v. Philadelphia Electric Co., supra. See: Stringer v. Kaytes, 286 Pa.Super. 551, 429 A.2d 660 (1981).

Philadelphia Rule 130 was adopted pursuant to Pa.Rule of Judicial Administration 1901 and provided in pertinent part as follows:

Rule 130. Disposition of Inactive Cases
(1) Whenever in any civil action a certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two
(2) successive years, the action shall be dismissed with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked, provided that no less than sixty (60) days’ notice be given by publication once in The Legal Intelligencer.
* >H * <5 5k 4s
(4) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three
(3) months of the date of dismissal.

In International Telephone & Telegraph Corp. v. Philadelphia Electric Co., supra, this Court held that “good cause shown” for reinstatement of an action dismissed under Philadelphia Rule 130 requires satisfactory proof of three elements as follows: (1) the petition must be timely filed; (2) the reason for the default must be reasonably explained or excused; (3) there must be facts constituting a cause of action. See: White v. Cirelli, 297 Pa.Super. 375, 377, 443 A.2d 1170, 1171 (1982); Smith v. Southeastern Pennsylvania Transportation Authority, 297 Pa.Super. 267, 269, 443 A.2d 829, 831 (1982); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 456, 421 A.2d 810, 811 (1980); Corcoran v. Florentino, 277 Pa.Super. 256, 260, 419 A.2d 759, 761 (1980).

In the instant case, appellee’s petition to reinstate was filed nine months after the action had been dismissed. Under Philadelphia Rule 130(4), this was untimely. More importantly, the petition to reinstate came after more than four years of total inactivity had intervened. Moreover, the default which caused the action to be dismissed has not been explained. It is a wholly inadequate explanation that present counsel entered an appearance for appellee on or about June 16, 1976 and thereby replaced prior counsel. This was more than a year before the action was terminated because of inactivity. No other facts were properly before the court. Although the trial judge suggested that appellee had experienced difficulty in obtaining a diagnosis and prognosis of her back injury, there was no evidentiary support for this conclusion. Appellee had alleged that she experienced difficulty in obtaining a diagnosis and prognosis of her injuries; appellants denied that difficulty had been experienced; and no evidence was submitted to allow the court to make a factual determination. Moreover and in any event, difficulty in obtaining a diagnosis and/or prognosis of injuries for which one has filed suit, even if true, will neither explain nor excuse total inactivity which results in dismissal of the action. Appellee had a duty, imposed by court rule, to move her action through the courts with reasonable dispatch. When, in default thereof, a judgment of non pros was entered, she will not be permitted to offer as an excuse her own failure to act expeditiously in obtaining and marshalling the evidence necessary for trial.

The order reinstating appellee’s complaint is reversed; the order dismissing appellee’s action for failure to proceed is reinstated.


text:
    465 A.2d 13
    COMMONWEALTH of Pennsylvania v. Calvin Earle EWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1983.
    Filed Aug. 19, 1983.

      John F. Pyfer, Jr., Lancaster, for appellant.
    Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
    Before ROWLEY, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

If, during a jury trial on a charge of driving while under the influence of alcohol, the prosecuting attorney deliberately elicits from a Commonwealth witness an extrajudicial statement attributed to the defendant “that he had an incident before for drunken driving,” can the prejudice be removed by an instruction from the court that the statement can be used to show the defendant’s state of mind or the state of his condition but that, in fact, “[tjhere is nothing in the record available for the prosecution or defense ... that the defendant was arrested or prosecuted for drunken driving or for any other drinking while driving related offense”? We conclude that the prosecuting attorney’s conduct deprived the defendant of a fair trial and that the prejudice was not repaired by the trial court’s instruction. Therefore, we reverse the judgment of sentence and remand for a new trial.

Calvin Earle Ewell was arrested and charged with driving while under the influence of alcohol after his pickup truck overturned at night along Millersville Road in Lancaster County. One of the first persons to arrive at the scene was Arthur Shenberger, who was called as a Commonwealth witness at trial and testified in part as follows:

Q. Now, did you have any other discussions with this person?
A. Well, he asked me if I would pull his pickup over so he could leave.
Q. All right.
He asked you to assist him in moving the truck? A. He wanted—he said he had a chain, and he wanted me to pull him over, because I have a pickup identical to his at that time there, and I told him I couldn’t do it. I didn’t want to get into any trouble. He said he had a chain, he wanted me to pull him over, he wanted to leave before the police got there, that he had an incident before for drunken driving—
MR. PYFER [defense attorney]: Objection.
May we approach the bench, Your Honor?
(Sidebar conference as follows:)
MR. PYFER: I would move for a mistrial.

The trial court denied the motion for mistrial but instructed the jury as follows:

THE COURT: Ladies and gentlemen of the jury, before we recessed, the defendant, Mr. Sheneberger (sic) made reference to a statement of the defendant at the scene of the accident, that he wanted to leave before the police got there, that he had an incident before for drunken driving.
Counsel for the prosecution and the defendant have entered in the following stipulation, which will be read into the record and can be considered by you as a stipulation of fact: There is nothing in the record available for the prosecution or defense from this Commonwealth or any other state of the United States that the defendant was arrested or prosecuted for drunken driving or for any other drinking while driving related offense. There is nothing in the record with reference to that stipulation.
Now, the answer elicited on direct examination by the Commonwealth should not be considered by you in any sense as an admission which would tend to prove that there was an incident before for drunken driving.
It can be considered by you in determining what the state of mind or the state of defendant’s condition was at the time that statement was elicited.

“ ‘It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that [t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more likely to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.’ ” Commonwealth v. Spruill, 480 Pa. 601, 604-605, 391 A.2d 1048, 1049-1050 (1978), quoting Commonwealth v. Terry, 462 Pa. 595, 599-600, 342 A.2d 92, 94-95 (1975) and Commonwealth v. Clark, 453 Pa. 449, 452-453, 309 A.2d 589, 590-591 (1973). See also: Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981); Commonwealth v. Fuller, 479 Pa. 353, 357, 388 A.2d 693, 694-695 (1978); Commonwealth v. Turner, 303 Pa.Super. 442, 451, 450 A.2d 9, 13 (1982); Commonwealth v. Taylor, 299 Pa.Super. 113, 119, 445 A.2d 174, 176-177 (1982); Commonwealth v. Lee, 297 Pa.Super. 216, 219-220, 443 A.2d 804, 805-806 (1982); Commonwealth v. Gonzales, 297 Pa.Super. 66, 76, 443 A.2d 301, 306 (1982).

The testimony of the witness in the instant case was not an inadvertent and unexpected response to a proper question. Compare: Commonwealth v. Richardson, 496 Pa. 521, 526-527, 437 A.2d 1162, 1165 (1981); Commonwealth v. Williams, 470 Pa. 172, 178-179 & n. 4, 368 A.2d 249, 252 & n. 4 (1977); Commonwealth v. Black, 464 Pa. 604, 606, 347 A.2d 705, 706 (1975); Commonwealth v. Bowermaster, 297 Pa.Super. 444, 451, 444 A.2d 115, 118-119 (1982); Commonwealth v. Harris, 297 Pa.Super. 308, 316, 443 A.2d 851, 855 (1982). The witness had testified in a similar manner during a suppression hearing held on the day preceding trial, and the prosecuting attorney was patently aware thereof. He was also aware that there was in fact no record that appellant had ever been arrested or prosecuted for driving while under the influence. Nevertheless, counsel led the witness directly into testimony regarding the extrajudicial statement attributed to appellant. The deliberate nature of his examination was confirmed by his expressed belief that the testimony was relevant and proper.

Was this deliberate attempt to prejudice the accused neutralized by the court’s cautionary instructions? We think not. In the first place, the court did not tell the jury unequivocally that appellant had never been arrested and charged with driving while under the influence of alcohol. Rather, the court repeated the prejudicial testimony and then told the jury that records available to counsel did not reflect any prior misconduct. Secondly, the court did not instruct the jury to disregard the prejudicial evidence. It told the jury, instead, that it could be considered as evidence of appellant’s “state of mind or the state of [his] condi tion ” (emphasis added) at the time the statement was made. This instruction permitted the jury to consider the statement that appellant had previously had an incident of drunken driving as evidence of his condition at the time of the alleged offense for which he was being tried. Finally, it is questionable whether any attempt to cure the damaging testimony would have been adequate to erase the deliberate prejudice caused by the prosecuting attorney. See: Commonwealth v. Brown, 489 Pa. 285, 298, 414 A.2d 70, 76 (1980); Commonwealth v. Williams, supra, 470 Pa. at 178-179 & n. 4, 368 A.2d at 252 & n. 4; Commonwealth v. Fortune, 464 Pa. 367, 374, 346 A.2d 783, 787 (1975); Commonwealth v. Russell, 456 Pa. 559, 564-565, 322 A.2d 127, 130 (1974). To believe that a jury could erase from its mind testimony that appellant had previously been involved in a drunken driving incident because the trial judge told them to do so is not at all realistic. Appellant was unfairly prejudiced by the prosecuting attorney’s examination of a Commonwealth witness, and the trial court did not cure the prejudice. It can be corrected only by a new trial.

Reversed and remanded for a new trial.

Jurisdiction is relinquished.

POPOVICH, J., concurs in the result.

      . This stipulation followed the trial court’s denial of the motion for mistrial. There was no waiver of appellant’s right to obtain post trial review of the court’s ruling.


text:
    465 A.2d 16
    COMMONWEALTH of Pennsylvania, Appellant, v. John ZOLLER.
    Superior Court of Pennsylvania.
    Submitted Feb. 22, 1983.
    Filed Aug. 19, 1983.
    Petition for Allowance of Appeal Granted Feb. 7, 1984.

      Thomas W. Minett, Assistant District Attorney, Beaver, for Commonwealth, appellant.
    Bernard J. Rabik, Assistant Public Defender, Beaver, for appellee.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   JOHNSON, Judge:

Appellant was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, and criminal conspiracy. Trial was conducted, without a jury, before Judge Frank E. Reed. At the close of the prosecution’s case, defense counsel’s demurrer was sustained as to all counts. The Commonwealth here appeals from the order sustaining such demurrer.

“The test to be applied in ruling on a demurrer is whether, accepting as true all of the prosecution’s evidence and all reasonable inferences therefrom, it is sufficient to support a finding by the fact finder that the defendant is guilty beyond a reasonable doubt.” Commonwealth v. Turner, 491 Pa. 620, 622, 421 A.2d 1057, 1058 (1980) (citation omitted). See also, Commonwealth v. Baker, 287 Pa.Superior Ct. 39, 429 A.2d 709 (1981). With the above standard in mind, we will proceed to review the facts of this case.

On the evening of June 27, 1980, there was a disturbance of a racial nature in the Borough of Aliquippa at approximately 10:30 p.m. Appellee, a white man, was observed participating in the disturbance, at least to the extent of shouting threatening racial slurs. At approximately 10:45 p.m. appellee was viewed with one Boyer, another white man, near the police station where a number of the above participants had been taken. They were observed in a blue pick-up truck. The two men were again seen together at about 12:00 midnight.

Shortly after 2:00 a.m. on June 28, 1980, a Mr. Sumlin, a black individual was standing outside a bar when a blue pick-up truck passed by. A witness who had seen the same truck pass by 10 minutes earlier testified that on its second pass, a shot rang out and he saw a large flash emit from the truck. Mr. Sumlin fell to the ground with a wound to his head. Defense counsel stipulated that appellee was the operator of the truck and that Boyer had fired the shot from the passenger side of the truck.

Mr. Zoller was questioned a few hours after the incident; he stated he had no knowledge of the shooting. Subsequently, he did give a statement admitting his participation. He led the police to the shotgun and the spent shell. Appellee admitted that he had gone with Boyer to get the shotgun shell but claimed he was unaware of the presence of the shotgun and Boyer’s intent to use it for a criminal purpose.

The trial court in sustaining the demurrer found dispositive the testimony of two police officers. Both officers testified that appellee had told them that he had no advance warning of Boyer’s intent. The court ruled that such testimony “established that Zoller had no knowledge” of the intended shooting; therefore the Commonwealth failed to demonstrate appellee’s culpability. We disagree.

In reviewing a demurrer, a court must look to the record in a light most favorable to the Commonwealth. Commonwealth v. Danchision, 270 Pa.Superior Ct. 112, 410 A.2d 1274 (1974). This the court below failed to do. The court not only did not view the evidence in a light favorable to the prosecution, but it also misconstrued the testimony at issue. The witnesses did not testify that appellee lacked the requisite intent but stated only that appellee claimed he lacked such intent. When viewed favorably to the prosecution the remaining circumstantial evidence belies appellee’s claim of ignorance. Zoller and Boyer were viewed together at various times; Zoller had shouted racial threats; he went with Boyer to obtain a shotgun shell, knowing that Boyer intended to get the shell; and he drove the truck. It was not reasonable to infer that appellee was not an accomplice or conspirator, merely because he claimed not to be such.

In situations where two or more people are involved in a shooting and it is demonstrated that they acted in concert or collusion, the Commonwealth need not demonstrate who actually fired the weapon. All such actors are criminally responsible as accomplices or co-conspirators. Commonwealth v. Wilson, 493 Pa. 332, 426 A.2d 575 (1981); Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978); Commonwealth v. Leach, 455 Pa. 448, 317 A.2d 293 (1974); and Commonwealth v. Reardon, 297 Pa.Superior Ct. 193, 443 A.2d 792 (1981). Therefore, the demurrer in the case at hand was improperly sustained as to all charges.

However, having found that the trial court erred, we are nonetheless unable to afford the Commonwealth the relief requested. Up until July 8, 1983 we would have encountered no difficulty in remanding for further proceedings. On that date Commonwealth v. Smalis, Pa.Super., — A.2d — (filed July 8, 1983) was filed; such decision no longer allows such relief.

Smalis held that “the Pennsylvania rule permitting the Commonwealth to appeal from an order sustaining a demurrer contravenes the Double Jeopardy Clause.” (slip op. at pp. 10-11) (footnote omitted). The court found that a demurrer was analogous to an acquittal; since the prosecution cannot appeal from a verdict of acquittal, it may not appeal from the sustaining of a demurrer. The current direct appeal was pending at the time Smalis was filed and accordingly appellee is entitled to the benefit of such decision. Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982); Commonwealth v. Hastings, 301 Pa.Super. 65, 446 A.2d 1337 (1982). Bound by such precedent, we must quash the appeal.

Appeal quashed.

      . 18 Pa.C.S. § 2702(a)(1) and (4).

      . 18 Pa.C.S. § 2701(a)(1), (2) and (3).

      . 18 Pa.C.S. § 2705.

      . 18 Pa.C.S. § 903.

      . Had the court assessed the credibility of the witnesses then this court could not review the grant of the demurrer as such would have been a defacto judgment of acquittal. Commonwealth v. Wimberly, 488 Pa. 169, 411 A.2d 1193 (1979).

      . As this issue goes to this court’s lack of jurisdiction, we may raise it sua sponte. We need not depend on appellee to file a motion to quash. Commonwealth v. Maurizio, 496 Pa. 584, 589 n. 3, 437 A.2d 1195, 1196 n. 3 (1981). See also Borough of West Chester v. Fal, 493 Pa. 387, 426 A.2d 603 (1981) (concurring opinion by Roberts, J.).


author: POPOVICH, Judge:

text:
    465 A.2d 19
    Gerald L. SCANTLIN, Appellant, v. Richard H. ULRICH, individually, and d/b/a Richard H. Ulrich Assembly.
    Superior Court of Pennsylvania.
    Argued April 13, 1983.
    Filed Aug. 19, 1983.

      David C. Raker, Williamsport, for appellant.
    Richard A. Gray, Williamsport, for appellee.
    Before HESTER, CAVANAUGH and POPOVICH, JJ.
   POPOVICH, Judge:

On March 11, 1981, appellant, Gerald L. Scantlin, filed a complaint in trespass against appellee, Richard H. Ulrich, individually, and also appellee’s company, Richard H. Ulrich Assembly. The first two counts of the complaint alleged that appellant was injured because of appellee’s deliberate, wilfull, and malicious act. The third and fourth counts alleged appellee’s gross negligence. On June 5, 1981, appellee filed a motion for judgment on the pleadings. The trial court found that appellant’s injury was covered by his employer’s workmen’s compensation insurance and that appellant received benefits thereunder from March 17, 1979, through November 9, 1980. The court below found that the Pennsylvania Workmen’s Compensation Act provided appellant’s exclusive remedy and, accordingly, granted appellee’s motion for judgment on the pleadings. This appeal followed. We affirm.

In Eberhart v. Nationwide Mutual Insurance Co., 238 Pa.Super. 558, 362 A.2d 1094 (1976), we stated:

“When ruling on a defendant’s motion for judgment on the pleadings, the complaint, the answer containing new matter, and the reply to new matter shall be considered. Herman v. Stern, 419 Pa. 272, 276 n. 1, 213 A.2d 594, 596 n. 1 (1965). Further, as this Court stated in Kroiz v. Blumenfeld, 229 Pa.Super. 194, 197, 323 A.2d 339, 340 (1974):
‘The standards for determining whether a judgment on the pleadings should be allowed are clear.... All of the opposing party’s well pleaded facts must be accepted as true. Bata v. Central Penn National Bank, 423 Pa. 373, 224 A.2d 174 (1966); Herman v. Stern, 419 Pa. 272, 213 A.2d 594 (1965). A judgment on the pleadings should be granted only when a case is free from doubt and a trial would be a fruitless exercise. Blumer v. Dorfman, 447 Pa. 131, 289 A.2d 463 (1972).’ (Emphasis in original).”

Id., 238 Pa.Superior Ct. at 560, 362 A.2d at 1095.

Appellant contends that his receipt of workmen’s compensation benefits does not preclude him from pursuing an action at common law to recover for injuries intentionally caused by his employer. Appellant relies on Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980), where we held that an employee’s prior receipt of workmen’s compensation benefits did not bar a common law action against his employer to recover damages for injuries intentionally inflicted by a third party. In Mike, a borough police officer was severely beaten by township constables in the borough police station in the presence of the assistant police chief of the borough. We analyzed the relevant provisions of the Workmen’s Compensation Act as follows:

“The act provides the workman a measure of protection against all injuries ‘arising in the course of his employment and related thereto.’ Sec. 301(c), (77 P.S. § 411). ‘By virtue of the Act, an employee’s common law right to damages for injuries suffered in the course of his employment as a result of his employer’s negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer’s liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated.’ Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956); Turner Construction Co. v. Hebner, [276] Pa.Super. [341], 419 A.2d 488 (1980). The Act provides an important exception to this rule, however:
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. § 301(c), supra.
This definition specifically excludes from the Act’s coverage an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee. ‘In such a case, the plaintiff is permitted to pursue his common law remedy.’ Dolan v. Linton’s Lunch, 397 Pa. 114, 125, 152 A.2d 887, 893 (1959); McBride v. Hershey Chocolate Corp., 200 Pa.Super. 347, 188 A.2d 775 (1963); Workmen’s Compensation App. Bd. v. Borough of Plum, 20 Pa.Cmwlth. 35, 340 A.2d 637 (1975).”

Mike, supra, 279 Pa.Superior Ct. at 387, 388, 421 A.2d at 253, 254. Officer Mike based his trespass action on the failure of the borough to provide him with a safe working place. More particularly, he alleged that the borough was negligent in failing to foresee the attack and to take steps to stop the assault. We found that there was sufficient evidence to sustain the jury’s finding that the attack on Officer Mike was motivated by personal reasons, and that the borough should have foreseen the possibility of violent acts by the constables. We held that in order to prevent a double recovery, the amounts received by Mike as workmen’s compensation would be credited against any recovery from the negligence action.

In granting judgment on the pleadings in the instant case, the lower court relied on Gillespie v. Vecenie, 292 Pa.Super. 11, 436 A.2d 695 (1981), where an employee, Gillespie, sued his employer and a co-worker for personal injuries sustained because of an intentional attack on the employee by the co-worker. The trial court sustained preliminary objections to the complaint and dismissed the suit holding that the attack was work related and, furthermore, that the employer could not be vicariously liable for the actions of an employee. We reversed, following Mike v. Aliquippa, finding that the complaint alleged that the attack was caused by:

“ ‘Pure personal hatred toward the plaintiff ...’: ‘Personal animosity ... in no way resulted [sic] out of a relationship between an employer and an employee or ... between two co-employees’ ... saying ‘... this has nothing to do with the job, this is between us.’ ” Gillespie, supra, 292 Pa.Superior Ct. at 15, 436 A.2d at 697.

We held that the employee had to be given the opportunity to prove the averments in his complaint regarding the employer’s failure to provide a safe work place.

The lower court in the present case mistakenly relied on a statement made at the end of Gillespie to the effect that after an injury had been compensated under the Workman’s Compensation Act, an employee could not join his employer in a suit against a third party. However, this statement immediately followed our holding that Gillespie clearly should be permitted, the opportunity to prove his case against his co-worker despite certain inadequacies in the record which might affect Gillespie’s action against his employer for failing to provide a safe work place. The statement was obviously meant to clarify the previously stated position that an employer cannot be vicariously liable for the intentional acts of his employee. Rather, when an employee’s intentional act, motivated by personal reasons, was foreseeable by the employer, the employer may be liable on a negligence theory for not providing a safe work place. Although the court below disposed of this case on the basis that Gillespie overruled Mike, supra, when in fact both cases stand for the same proposition, we may affirm the action of the lower court on a different rationale than that advanced by the lower court. Commonwealth v. Meischke, 273 Pa.Super. 134, 139 n. 3, 416 A.2d 1126, 1128 n. 3 (1979). Accord Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).

Assuming as we must that appellant’s allegations in this case are true, the facts show only that appellee knew that appellant was standing on a trailer when appellee moved the trailer. The complaint alleges that appellee acted deliberately, wilfully, and maliciously in moving the truck trailer, but does not state that such action was taken because of personal animosity toward appellant. The cases interpreting § 301(c) of the Workman’s Compensation Act require that an intentional injury be the product of personal animosity and not for reasons regarding employment. Because the pleadings in the instant case fail in this respect, we affirm the order of the lower court.

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

      . We do not now decide whether the sole owner of a corporation qualifies as a third party under § 411(1) in a suit against his company for injuries intentionally inflicted because of personal reasons.


author: CAVANAUGH, Judge:

text:
    465 A.2d 21
    In re Involuntary Termination of Parental Rights of Geraldine Mae SANTELIA to Anthony Dino Pellegrino. Appeal of Geraldine Mae SANTELIA.
    Superior Court of Pennsylvania.
    Argued March 1, 1983.
    Filed Aug. 26, 1983.

      Justin K. McCarthy, Bethlehem, for appellant.
    William W. Matz, Jr., Bethlehem, for participating party.
    Before CERCONE, President Judge, and CAVANAUGH and WIEAND, JJ.
   CAVANAUGH, Judge:

This appeal was taken from an order involuntarily terminating the parental rights of appellant Geraldine Mae Santelia to her son. Our scope of review in such cases is limited, In re Adoption of J.S.M., Jr., 492 Pa. 313, 424 A.2d 878 (1981), but our examination of the record in the instant case convinces us that the petitioners failed to establish the existence of grounds for terminating appellant’s parental rights and that the lower court abused its discretion in holding to the contrary. The order of the lower court is, therefore, reversed.

The subject of the instant proceedings, Anthony Dino Pellegrino (Dino), was born June 22, 1967. The proceedings were initiated by Dino’s paternal grandparents, appellees herein, who wish to adopt Dino. Dino’s mother, appellant herein, was divorced from Dino’s father when Dino was a small child. Appellant initially had custody of Dino following the separation but at some point Dino’s father regained custody and retained it until his death in June, 1975.

Appellant attempted to regain custody of Dino at the time of his father’s death but Dino expressed a desire to live instead with appellees, with whom he had spent much time while in his father’s custody. Appellant acquiesced in this arrangement because she felt that it was in the child’s best interests not to fight over custody until the trauma of his father’s death subsided. Dino has remained with appellees ever since.

Appellees live in Northampton County, about a two hour drive from appellant’s home in Philadelphia. Appellant admitted that she did not visit Dino at all during the first year or two after his father’s death, although she did apparently maintain contact through phone calls and sent cards and gifts at various times. She did begin to visit Dino at some point between 1976 and 1978. There is absolutely no support in the record for the court’s finding of fact that over the entire period of approximately six years from Dino’s father’s death in 1975 until the hearing on the instant petition in 1981, appellant visited Dino a total of four times; three of those visits occurring in 1978 and one in 1979. (Finding of fact # 9, lower court opinion at 3). On the contrary, even the petitioners-appellees testified that appellant had visited seven or eight times since they had obtained custody of Dino and that three or four of the visits had occurred in 1980 or 1981. It was clearly established that appellant was present at Dino’s birthday party in June, 1980 and that she stayed at appellee’s home for a weekend in September, 1980. Dino testified that appellant had visited three times in 1980 and two or three times in 1981. Appellant testified that she had visited Dino eight times in 1980 alone. This testimony was corroborated by another witness. Appellee Viola Pellegrino (Dino’s grandmother) admitted that appellant had been calling Dino several times a month for several years and that she always sent cards and/or gifts at Christmas and on Dino’s birthday.

The lower court found that appellant had, for a period in excess of six months, refused or failed to perform her parental duties toward Dino and it therefore terminated her parental rights. We do not feel that the record in the instant case can sustain an involuntary termination based on failure or refusal to perform parental duties. We are not faced in this case with a parent who has evidenced an intention to relinquish parental rights or with a parent who has exhibited little or no interest in the welfare of her child. Rather, we are faced with a mother who, though desireous of having custody of her child, determined that it would not be in the child’s best interests to try to force him to come to live with her in the face of his expressed desire to live with his grandparents.

As the Pennsylvania Supreme Court stated in In re Howard, 468 Pa. 71, 83, 360 A.2d 184, 190 (1976):

In construing the meaning of the term “parental duties” this Court has noted that a parent has “an affirmative duty to love, protect and support his child and to make an effort to maintain communication and association with that child.” In re Adoption of McCray, 460 Pa. 210, 216, 331 A.2d 652, 655 (1975). See also In re Adoption of McAhren, 460 Pa. 63, 71, 331 A.2d 419, 423 (1975). [The Adoption Act] does not, however, require that a parent personally take care of a child. “The responsibility of performing parental duties may be met if the parent has made reasonable arrangements for the temporary care of the child.” In re Adoption of Wolfe, 454 Pa. 550, 557, 312 A.2d 793, 797 (1973).

See also In re Adoption of R.W.B., 485 Pa. 168, 401 A.2d 347 (1979); In re Adoption of Farabelli, 460 Pa. 423, 333 A.2d 846 (1975).

Furthermore, even where the evidence in a case does establish that a parent has failed to perform parental duties for a period in excess of six months, such a finding does not, in and of itself, support an order terminating parental rights. Instead, “the Court then must examine the individual circumstances and any explanation offered by the parent to determine if that evidence, in light of the totality of circumstances, clearly warrants permitting involuntary termination of said parent’s parental rights____ In deciding

this sensitive question, this Court is mindful of the irreversible nature and serious emotional impact which necessarily follow an involuntary termination of parental rights.” In re Adoption of Orwick, 464 Pa. 549, 555, 347 A.2d 677, 680 (1975). See also In re Adoption of J.A.B., 487 Pa. 79, 408 A.2d 1363 (1979); Matter of L.M.C., 307 Pa.Super. 37, 452 A.2d 1025 (1982).

At the time of Dino’s father’s death, the parties were faced with the task of providing a new home for Dino. They all acted in what they felt was Dino’s best interests. The appellees are certainly to be commended for providing Dino with a good home. We do not feel, however, that appellant should be condemned for failing to take further steps to regain custody of Dino when she was well-aware of appellees’ ability and desire to provide for Dino’s upbringing and of Dino’s desire to live with appellees. She has maintained communication and association with Dino in the hope that he would someday agree to come and live with her. We do not feel that the evidence in this case, “in light of the totality of the circumstances,” warrants the involuntary termination of appellant’s parental rights at this time. In re Adoption of Orwick, supra. If Dino wishes to become the adopted son of his grandparents when he reaches the age of eighteen, the law permits him to do so. In re Adoption of Sarver, 444 Pa. 507, 281 A.2d 890 (1971).

The order terminating appellant’s parental rights is reversed.

      . The lower court applied a “preponderance of the evidence” standard in finding that the petitioners had established the existence of grounds for terminating appellant’s parental rights. Subsequent to the entry of its order, the United States Supreme Court held that parental rights could not be terminated unless the grounds for doing so were established by at least “clear and convincing" evidence. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). We have held that the clear and convincing evidence standard must be applied to all cases in which appeals had not been exhausted at the time the Santosky decision was rendered. In re Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983). However, in view of our finding that even the lower standard of "preponderance of the evidence” was not met in the instant case, there is no need to remand for further proceedings. See In re Adoption of M.E.T., supra, 313 Pa.Superior Ct. at 323 n. 5, 459 A.2d at 1251, n. 5.

      . There is so much conflicting testimony in the record that it is virtually impossible to determine when Dino’s parents separated, when they were divorced, or at what point Dino’s father took custody of Dino from appellant.

      . See 23 Pa.C.S.A. § 2511(a)(1).


author: HOFFMAN, Judge:

text:
    465 A.2d 24
    John S. HUNSICKER and Marjorie M. Hunsicker, Appellants, v. Robert W. CONNOR, M.D. and North Penn Hospital.
    Superior Court of Pennsylvania.
    Argued April 6, 1983.
    Filed Aug. 26, 1983.
    Petition for Allowance of Appeal Denied Jan. 20, 1984.

      Michael J. Clement, Norristown, for appellants.
    George H. Knoell, Norristown, for Connor, appellee.
    Jan E. DuBois, Philadelphia, for North Penn, appellee.
    Before SPAETH, WIEAND, and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in holding that the statute of limitations had barred his action and in granting appellees summary judgment. We disagree and, accordingly, affirm the order of the lower court.

Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. 1035(b). “To determine the absence of a genuine issue of fact, the court must take the view of the evidence most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment.” Husak v. Berkel, Inc., 234 Pa.Superior Ct. 452, 458, 341 A.2d 174, 177 (1975). So viewed, the facts are as follows:

On November 22, 1974, appellant was injured when fragments of a steel button he was hammering flew into his left eye. Appellant sought treatment from appellee, North Penn Hospital and was referred to a local eye clinic where appellee, Dr. Connor, treated him. No x-rays were taken, but Dr. Connor prescribed antibiotics and appellant’s blurriness and hemorrhaging soon abated. Appellant had no further difficulties until early in 1976 when the redness and blurriness recurred. Eyeglasses prescribed by an optometrist failed to alleviate the problem and appellant went to Dr. Louis Goldberg, an opthamologist, in September 1976. Appellant informed Dr. Goldberg of his accident and subsequent treatment by Dr. Connor. Dr. Goldberg ordered x-rays and on October 5, 1976 informed appellant that a foreign object was in his left eye. Dr. Goldberg referred appellant to Dr. William H. Annesley, Jr., who, following an ultra-sound examination, concurred in Dr. Goldberg’s findings. On October 14, 1976, Dr. Annesley explained his findings to appellant and informed him that a foreign object remained in his eye from the 1974 accident, and instructed him to seek medical coverage from his employer’s insurer. On October 26, 1976, Dr. Annesley attempted to surgically remove the foreign object using a magnet. Although the object moved, indicating magnetic quajities, it had become too encapsulized to be removed magnetically. The object was surgically removed on December 2, 1976 but appellant’s condition continued to worsen and he eventually lost all vision in his left eye on January 13, 1977. Appellant’s counsel submitted the facts of the case to a medical-legal consultant and received a report on April 12, 1978 suggesting that appellees had been negligent in their treatment of appellant.

On November 17, 1978, appellant brought this action against appellees, Dr. Connor and North Penn Hospital alleging malpractice in their 1974 treatment. Appellees raised the affirmative defense of statute of limitations in their new matters. Following the taking of depositions and the filing of an amended complaint and amended new matters, appellees moved for summary judgment. The lower court granted summary judgment determining that appellant discovered the injury no later than October 14, 1976 and thus his complaint filed 25 months later was barred by the statute of limitations. This appeal followed.

“It is well established that an individual asserting a cause of action is required to use due diligence to properly inform himself or herself of the facts and circumstances upon which the claimed right of recovery is based and to institute suit within the applicable statute of limitations.” Petri v. Smith, 307 Pa.Superior Ct. 261, 268, 453 A.2d 342, 346 (1982). See Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). In personal injury cases, “Pennsylvania courts have repeatedly construed this statute of limitations as commencing to run from the time plaintiff discovered or should reasonably have discovered the cause of harm or injury.” Acker v. Palena, 260 Pa.Superior Ct. 214, 219, 393 A.2d 1230, 1232 (1978). See Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). In determining when a discovery is or should have been made, “three independent phases of knowledge must be known or knowable to plaintiff before the limitation period commences: (1) knowledge of the injury; (2) knowledge of the operative cause of the injury; and (3) knowledge of the causative relationship between the injury and the operative conduct.” Anthony v. Koppers Co., Inc., 284 Pa.Superior Ct. 81, 96-97, 425 A.2d 428, 436, reversed on other grounds 496 Pa. 119, 436 A.2d 181 (1981) . Accord Petri v. Smith, supra; Stein v. The Washington Hospital, 302 Pa.Superior Ct. 124, 448 A.2d 558 (1982) .

Appellant contends that the lower court erred in finding that the statute of limitations began to run no later than October 14, 1976. We disagree. On October 5 and October 14, 1976, appellant was informed by Dr. Goldberg and Dr. Annesley that his eye problems were being caused by a foreign body remaining in his eye from the 1974 hammer accident. (Hunsicker Deposition at 21-26) (October 15, 1976 Letter of Dr. Annesley to Dr. Goldberg). In fact, Dr. Annesley instructed appellant to seek insurance coverage from his 1974 employer’s carrier. Thus, appellant was aware of the foreign body and its origin more than six weeks before its actual removal. He was also aware at that time that appellees had failed to remove or even detect the object in their treatment. On October 14, 1976, appellant had the salient facts concerning the occurrence of his injury and who or what caused it and was thus able to investigate and pursue his claim. Staiano v. Johns Manville Corp., 304 Pa.Superior Ct. 280, 288, 450 A.2d 681, 685 (1982). He was then required to do “all those things that a statute of limitations is meant to provide time for: an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.” Keating v. Zemel, 281 Pa.Superior Ct. 129, 134 n. 4, 421 A.2d 1181, 1183 n. 4 (1980). Accordingly, the lower court did not err in finding the complaint untimely filed.

Appellant contends that even if the statute of limitations had begun to run by October 14, 1976, the lower court erred in not excusing the late filing because of counsel’s manic-depressive condition. “The defense of the statute of limitations is not technical but ‘substantial and meritorious ... [such statutes] are vital to the welfare of society and are favored in the law.’ ” Insurance Company of North America v. Carnahan, 446 Pa. 48, 51, 284 A.2d 728, 729 (1971), quoting Schmucker v. Naugle, 426 Pa. 203, 205, 231 A.2d 121, 123 (1967). “[M]ere mistake, misunderstanding or lack of knowledge do not toll the running of the statute of limitations.” Walters v. Ditzler, 424 Pa. 445, 449, 227 A.2d 833, 835 (1967). See Schaffer v. Larzelere, supra. Although “we shall surely do equity whenever possible, ... we may not act in derogation of the express limitations enacted by our Legislature.” Loizos v. Mutual of Omaha Insurance Co., 229 Pa.Superior Ct. 552, 556, 326 A.2d 515, 517 (1974) (plurality). Even if non-negligent, we do not find counsel’s failure or inability to pursue a plaintiff’s cause of action a sufficient reason to penalize a defendant and ignore the express mandate of the Legislature. See United States v. Kubrick, 444 U.S. 111, 122, 124, 100 S.Ct. 352, 359, 360, 62 L.Ed.2d 259 (1979) (plaintiff’s counsel’s incompetent advice that no cause of action existed would not toll statute of limitations); Aguado v. Koutsoubos, 68 Pa.D. & C.2d 727 (1974) (plaintiff’s counsel’s failure

to properly investigate will not toll statute of limitations). Accordingly, because no genuine issues of material fact remain to be decided, and appellant’s action was clearly brought outside the statute of limitations, we affirm the order of the lower court granting appellees summary judgment.

Affirmed.

      . Appellant contends that the statute did not begin to run until the object was actually removed because it was not until then that he was positive that the object was a metal fragment from his earlier accident. However, both Dr. Goldberg and Dr. Annesley apprised appellant of the existence of the object and its origin well before the December 2, 1976 surgery to remove it. Thus the contention suggesting a later discovery date is meritless. Alternatively, appellant contends that he did not know of the “injury” until he totally lost his vision in January, 1977. Injury occurs "when the act heralding a possible tort is physically objective and ascertainable.” Shadle v. Pearce, 287 Pa.Superior Ct. 436, 440, 430 A.2d 683, 685 (1981), quoting, Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). The blurriness, redness, and sensitivity to light that appellant was experiencing as of October 14, 1976 constituted physically objective and ascertainable damage. Thus, this suggested date must also be rejected.

      . Appellant’s contention that the statute did not begin to run until he was actually apprised of appellees’ negligence by the medical-legal consultant is also meritless. A plaintiff need not know that he has a cause of action before the statute commences. Staiano v. Johns Manville, supra 304 Pa.Superior Ct. 280 at 289, 450 A.2d 681 at 684; Anthony v. Koppers Co., Inc., supra 284 Pa.Superior Ct. 81 at 96, 425 A.2d 428 at 436. The employment of a medical-legal consultant is the type of investigation the statute of limitations was designed to permit.

      . Appellant cites our Supreme Court’s decision in Bass v. Commonwealth, 485 Pa. 256, 401 A.2d 1133 (1979) for the proposition that an attorney’s non-negligent failure to timely begin an action should not penalize his client. In Bass, however, three members of the Supreme Court were willing to relax their own rule regarding when appeals must be filed. We do not read Bass as applying to legislatively mandated limitations for commencing actions.


author: HOFFMAN, Judge: McEWEN, Judge,

text:
    465 A.2d 27
    COMMONWEALTH of Pennsylvania ex rel. Darlene Rishel ROBINSON v. Allan Bryan ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Argued May 4, 1983.
    Filed Aug. 26, 1983.

      John T. Snavely, II, Lansdowne, for appellant.
    Nicholas J. Emper, Media, for appellee.
    Before McEWEN, CIRILLO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s order requiring appellant to pay $90 weekly in child and spousal support. Because we find the record insufficient to support the order, we vacate the order of the lower court and remand for further evidentiary hearings.

The parties were married on October 10, 1970, and the children were born on July 8, 1971 and December 13, 1974. On January 22, 1982, appellee-wife and the children left the marital abode and subsequently brought this action for support. Following a hearing, the lower court ordered appellant to pay $35 a week for each child and $20 for appellee. The lower court denied exceptions, prompting this appeal.

“[I]n evaluating support orders, our scope of review is limited to ascertaining whether there was sufficient evidence to sustain the order and whether there has been an abuse of discretion by the lower court.” Shank v. Shank, 298 Pa.Superior Ct. 459, 462, 444 A.2d 1274, 1276 (1982). Support orders must be fair, not confiscatory, and must be consistent with the parents’ and children’s station in life and customary standard of living. Commonwealth ex rel. Cragle v. Cragle, 277 Pa.Superior Ct. 349, 352, 419 A.2d 1179, 1180-81 (1980). Accord Shank v. Shank, supra. Here, the lower court found that appellant earned $227.36 and appellee $20 each week. Appellant also established his weekly expenses. Appellee, however, submitted an expense sheet that was almost entirely conjectural. Although her parents were providing her and the children with food and shelter, she nonetheless submitted weekly expenses of $236. The enumerated expenses included gas, oil, insurance and repair of a non-existant automobile.. She included rent, utilities and other items fully paid for by her parents and submitted food expenses greater than what her parents had been paying because “the children should be eating better.” (N.T. May 27, 1982 at 23). In short, her expense sheet provided the court with her desired rather than actual expenses. (Id. at 24). The lower court acknowledged the lack of evidence, noting that “[w]e did not then accept the expenses as set forth in the sum of Two hundred, thirty-six dollars ($236).” Lower Court Op. at 6. The court, however, has not informed us as to the basis of its decision, nor does the record provide any evidence upon which it could have properly based a determination. Accordingly, because the record below is void of competent evidence of appellee’s and the children’s needs, we must vacate the order of the lower court and remand for further evidentiary hearings and a new order.

Order vacated and case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

While the expression of the majority view reflects a careful consideration of the issue before us, I am compelled to most respectfully dissent.

The hearing judge, the distinguished Delaware County Common Pleas Court Administrative Judge Howard F. Reed, determined that appellant earned $227.36 per week while appellee had weekly earnings of $20.00. The two children were on May 27, 1982, the date of the Order for Support, ten and seven years old. Appellant has not appealed the determination of his liability for support.

It is true, as the majority notes, that the weekly expense figure of $236.00 claimed by appellee is conjectural since the claim embraced expenses for rent and utilities, even though she and the children were at the time of the hearing living with her parents, and included the cost of gas, oil, insurance and repair of a non-existent automobile. However, it does not appear the hearing judge was influenced by such conjecture and, in fact, to the contrary, the hearing judge states in his opinion:

[AJppellee, however, did testify that these are the expenses she would have if she could afford to provide for the proper support of herself and her children. We did not then accept the expenses as set forth in the sum of Two Hundred Thirty-Six Dollars ($236).

The hearing judge continued:

Accordingly, Our order was set at Ninety Dollars ($90) per week only, which clearly reflects] the [appellant’s] and children’s need at this time.

The “need at this time” referred, of course, to the circumstances then existing which, the record reflects, included residence in the home of the parents of appellee, a household to which she would be required to contribute by reason of the fact that the sole income of the parents was the sum of $6,200.00 per year from the Social Security Administration, from which approximately $2,000.00 was needed for medical bills. There is a further circumstance that need not be the subject of testimony, namely, the sum needed to provide for even the barest minimal subsistence. Certainly the itemized statement of expense is highly relevant evidence but the need for such evidence does not become urgent and fundamental until the court is considering the imposition of an order that will exceed the cost of barest minimal subsistence.

The judicial notice taken by the hearing judge of the need of each child for an amount of support that would provide for a minimal subsistence, as well as the testimony of both parties as to their earnings and the testimony of appellee concerning the household of which she and the children were a part, provided a sufficient factual basis to enable the court to conclude that the sum of $35.00 per week per child was fair as well as consistent with the parents’ and childrens’ station in life and customary standard of living. The same rationale and conclusion is applicable to the order of the court that appellant pay the sum of $20.00 per week for the support of appellee herself. Thus, the judgment exercised by the hearing judge was not an abuse of discretion, Shank v. Shank, 298 Pa.Super. 459, 444 A.2d 1274 (1982).

Nor, in my view, is there any merit to the remaining contentions of appellant that the hearing judge erred in refusing to order appellee to secure employment so as to assist in providing adequate support for the children and that the hearing judge erred in ordering appellant to pay the medical bills of the children. See Bender v. Bender, 297 Pa.Super. 461, 444 A.2d 124 (1982); Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Super. 108, 380 A.2d 400 (1977).

I would, therefore, affirm the order.

       Appellant contends also that the lower court erred in refusing to order appellee to work to help support the children. Because we have vacated the lower court's order, we need not address that contention. We note, however, that in balancing the many factors required to determine whether a nurturing parent should remain home or work as set forth in Commonwealth ex rel. Wasiolek v. Wasiolek, 251 Pa.Superior Ct. 108, 380 A.2d 400 (1977), the lower court held that the benefit to the children after an unpleasant separation of having their mother home outweighed the benefits of her wage earnings. On remand, the court may well find that the passage of time has shifted the balance.
      We cannot agree with appellant’s contention that the lower court erred in ordering appellant to pay the children’s medical bills, particularly when he has medical insurance.


author: CERCONE, President Judge:

text:
    465 A.2d 29
    COMMONWEALTH of Pennsylvania, Appellant, v. Earl William KUYKENDALL.
    Superior Court of Pennsylvania.
    Argued March 8, 1983.
    Filed Aug. 26, 1983.
    William A. Helm, District Attorney, Lewistown, for Commonwealth, appellant.

      John B. Schaner, Lewistown, for appellee.
    Before CERCONE, President Judge, and WICKERSHAM and MONTEMURO, JJ.
   CERCONE, President Judge:

The Commonwealth here appeals from the order entered by the Court of Common Pleas of Mifflin County on November 24, 1981, granting appellee-defendant’s Motion for Arrest of Judgment, following appellee’s conviction in a trial by jury of Receiving Stolen Property. For the reasons detailed infra, the order of the lower court is vacated.

The evidence adduced by the Commonwealth at trial showed that appellant, together with his girlfriend, Dorothy Myers, drove to New York City in October, 1980 in appellant’s blue, 1970 Chevrolet Monte Carlo Sport Coupe. The automobile sustained irreparable damage while being driven in the city by a friend of appellant who remains unidentified. Ms. Myers testified that appellant, upon learning of the demolition of his car in the accident, set out with some friends to steal a replacement vehicle in New York City. The men came upon a two-tone green, 1971 Chevrolet Monte Carlo Sport Coupe owned by Jaime Acosta of 251 Seaman Avenue, New York City. Ms. Myers stated that the men, having removed the metal plate containing the serial number from appellant’s wrecked Monte Carlo, removed the serial number from the Acosta vehicle and replaced it with appellant’s serial number which was then painted green in order to match the color of the stolen Acosta Monte Carlo. Appellant and Ms. Myers then drove the stolen car from New York City to their hometown of Lewistown, Pennsylvania where appellant was later arrested and charged with Theft By Receiving Stolen Property and Dealing in Vehicles With Removed or Falsified Numbers.

Appellant proceeded to a trial by jury and, on May 22, 1981, was found guilty of Receiving Stolen Property and not guilty of Dealing in Vehicles With Removed or Falsified Numbers. Appellant’s Motion For Arrest of Judgment in which he alleged, inter alia, that he could not be convicted of Receiving Stolen Property in Pennsylvania where the evidence adduced by the Commonwealth shows that he stole the property in New York and then brought the stolen article into Pennsylvania, was filed with the lower court on June 1, 1981. Following oral argument on the motion, the lower court entered an order, dated November 24, 1981, arresting appellant’s conviction by jury of Receiving Stolen Property. The Commonwealth now appeals from that order, arguing, contrary to the holding of the lower court, that an individual who commits a theft in another state and then brings the stolen goods into Pennsylvania and keeps them is susceptible of conviction for Receiving Stolen Property under Pa.C.S.A. 3925.

The apparent basis for the holding of the lower court was the case of Simmons v. The Commonwealth, 5 Binney 617 (1813), wherein our Supreme Court ruled that the defendant could not be tried for the substantive crime of theft in Pennsylvania where the stolen goods, in that case silverware, were originally misappropriated in Delaware and only later removed by the thief to Pennsylvania. We agree with the view espoused by the Commonwealth that Simmons is readily distinguishable from the case sub judice in that the instant defendant was charged and convicted in Pennsylvania not of Theft by Unlawful Taking but rather of Theft by Receiving Stolen Property. As a result, we believe the dispositive case is Commonwealth v. Farrar, 271 Pa.Superior Ct. 434, 413 A.2d 1094 (1979). Appellant Farrar was arrested and charged under Pennsylvania law with receiving stolen property, viz., two antique china closets and one antique table which she and her son and husband had unlawfully removed from a house in Rockville, Maryland and later transported to their home in Pennsylvania. In appealing from her conviction of theft by receiving stolen property, Farrar argued that the Pennsylvania trial court did not enjoy jurisdiction of the case since the crime was perpetrated before she and her family moved to Pennsylvania, and that once she received and retained the stolen goods in Maryland, the offense terminated. Writing for a unanimous panel of our Court, Judge Spaeth rejected appellant’s argument and noted that in prior cases “we have suggested that the legislature’s inclusion of a prohibition against retaining and disposing of stolen property makes this offense ‘ongoing.’ ” Id., 271 Pa.Superior Ct. at 442, 413 A.2d at 1098 (citations omitted). Consequently, we accord no significance to the fact that the stolen car in the case at bar was originally received and retained by unlawful means in the State of New York.

In its order of November 24, 1981, in which it arrested appellee’s judgment of conviction, the lower court ruled that “one cannot be convicted in Pennsylvania of theft by receiving on evidence of theft by taking in New York...” In so holding, the lower court apparently placed some reliance on the contentions advanced in appellee’s Brief for Motion In Arrest of Judgment that “[a] person cannot ‘receive’ from himself,” and that “[Receiving stolen property includes [sic] element of knowing or believing that the property has been stolen by another.” (Emphasis supplied). These very notions were forever put to rest in Commonwealth v. Shaffer, 279 Pa.Superior Ct. 18, 420 A.2d 722 (1980). In that case, we re-examined and subsequently rejected the maxim that “a thief of goods cannot be the receiver of the same goods.” Id., 279 Pa.Superior Ct. at 24, 420 A.2d 725. In Shaffer, we noted that the vitality of this ancient precept in Pennsylvania was open to grave doubt in view of the consolidation of the numerous, and sometimes archaic, common law theft offenses into the single offense of “theft” in the Crimes Code. The new crime of “theft” is

intended to embrace the offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and the like. It is intended by this subsection and this article to eliminate the technical distinctions between larceny, fraudulent conversion, etc. The basic philosophy adopted is that if a person takes something which does not belong to him, this constitutes theft. It is contemplated that the indictment will state the facts justifying the conclusion that a theft was committed.
Toll, Pennsylvania Crimes Code Annot. § 3902 at 420 (1974), reprinting the Comment of the Joint State Gov’t Comm’n (1967).

Shaffer, 279 Pa.Superior Ct. at 25, 420 A.2d at 725-26. Quoting from the comments to the Model Penal Code provision upon which 18 Pa.C.S.A. § 3925 is based, it was observed in Shaffer, supra, that

Consolidation of receiving with other forms of theft affords the same advantages as other aspects of the unification of the theft concept. It reduces the opportunity for technical defenses based upon legal distinctions between the closely related activities of stealing and receiving what is stolen. One who is found in possession of recently stolen goods may be either the thief or the receiver; but if the prosecution can prove the requisite thieving state of mind it makes little difference whether the jury infers that the defendant took directly from the owner or acquired from the thief.
Model Penal Code, Tent. Draft. No. 2, § 206.8, Comment 1.

Id., 279 Pa.Superior Ct. at 25-26, 420 A.2d at 726. (Emphasis supplied).

Summarizing, Judge Spaeth in Shaffer stated that “[gjiven the drafters’ intent to remove ‘all artificial distinctions between different forms of theft (including receiving stolen property)’ ... and to make the focus in a criminal prosecution of all theft offenses the accused’s ‘thieving state of mind,’ it would be anomalous to hold that one who is the original misappropriator of the property cannot be convicted under section 3925 as the receiver of the property when the language of section 3925 is so worded as to proscribe the misappropriator’s conduct.” Id., 279 Pa.Superior Ct. at 26-27, 420 A.2d at 721. (Citations omitted).

The lower court, in granting appellee’s Motion for Arrest of Judgment, erred as a matter of law. Consequently, we must reverse, vacate the order of the lower court arresting appellee’s conviction, reinstate the verdict of the jury, and remand for sentencing.

Jurisdiction relinquished.

      . 18 Pa.C.S.A. § 3925.

      . 75 Pa.C.S.A. § 7103.

      . ORDER
      Now, November 24, 1981, after argument of June 19, 1981, on Defendant’s Motion In Arrest of Judgment, perusal of Defendant’s Brief and acceptance of the Commonwealth’s election to dispense with Brief, the Court concludes that there was no evidence of any acquisition of subject vehicle except by theft by taking by Defendant in the State of New York, that there was no evidence of receiving under Section 3925 of the Crimes Code and that one cannot be convicted in Pennsylvania of theft by receiving on evidence of theft by taking in the State of New York and arrests judgment of conviction by verdict.
      BY THE COURT,
      R. Lee Ziegler
      PJ.

      . Section 3921 provides in pertinent part:
      (a) Movable property.—A person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to deprive him thereof.

      . Under Section 3925, Receiving Stolen Property is defined as follows:
      (a) Offense defined.—A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it to the owner.

      . 18 Pa.C.S.A. § 3902 provides as follows:
      Consolidation of theft offenses
      Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under this chapter, notwithstanding the specification of a different manner in the complaint or indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of fair notice or by surprise.
      1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.

      . See n. 6, supra.

      . See also Commonwealth v. Haines, 296 Pa.Superior Ct. 257, 263, 442 A.2d 757, 760 (1982).

      . Insofar as appellee has not filed a cross-appeal, we are not required to address its secondary argument which is in no way implicated by the sole issue raised by the Commonwealth in its appeal.