author: JOHNSON, Judge.

text:
    620 A.2d 1185
    Charles P. HARDING v. CONSOLIDATED RAIL CORPORATION, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1992.
    Filed Feb. 23, 1993.

      Ralph G. Wellington, Philadelphia, for appellant.
    Richard D. Gilardi, Pittsburgh, for appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

Consolidated Rail Corporation (Conrail) appeals from an order of the trial court which awards Harding the jury’s verdict damage amount of 3.8 million dollars plus post-judgment interest of 6% per annum. We affirm.

Conrail presents eight issues for our review:

1. Whether Conrail is entitled to judgment notwithstanding the verdict because the evidence was insufficient to establish that Conrail was the cause of Harding’s injuries.
2. Whether the trial court erred in instructing the jury that Conrail was negligent per se because it did not enforce the' Blue Flag Rule.
3. Whether the trial court erred in its instructions to the jury regarding contributory negligence.
4. Whether the trial court erred in instructing the jury that it could find Conrail negligent due to its method of assembling trains.
5. Whether the trial court erred in refusing to permit Conrail to cross-examine its own witness.
6. Whether the trial court erred in failing to find the jury verdict to be excessive.
7. Whether the trial court erred in instructing the jury that Harding could recover for lost economic horizons.
8. Whether the trial court erred in refusing to instruct the jury that the amount of the damage award was not subject to Federal Income Tax.

Before addressing these issues, we will explore the facts of the present case. Harding’s action was brought under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60, to recover damages which Harding suffered while working as a trainman in Conrail’s Conway yard in Beaver, Pennsylvania, on August 31, 1986.

In the Conway yard, incoming trains arrived in the receiving yard and were separated into single cars. The various cars were then pushed up a hill or “hump”, and then rolled or “drilled” down the other side of the hump into the classification yard. The cars coming into the classification yard were routed to different tracks through the use of a computer by the retarder operator, who could slow the cars through the use of “retarders”, devices that put pressure on the train wheels. The retarder operator also had the ability to “blue flag” a track, that is, to “lock out” or not allow any cars to enter a track at a particular time.

From the classification yard, new trains were assembled by the yard crew by joining together cars from several different tracks. In order to provide braking power for the newly assembled train to reach the departure yard, trainmen were required to go between the train cars to couple air hoses on the first several cars behind the engine. Once a new train had been assembled and the air hoses coupled, the train was then moved to the departure yard.

Harding was working as a member of a classification yard crew when his injuries occurred. Harding’s crew was unable to complete their first train assembly due to a traffic delay. While waiting to continue his first assignment, Harding went to a straight section of track containing the first several cars of another train and began coupling the air hoses for the braking system. Harding did not request that the track be blue flagged, although he had checked the track for incoming cars prior to beginning to couple the air hoses. Harding was injured when an incoming car was drilled onto the track on which he was working, causing the cars already on the track to move, knocking Harding down and trapping his feet under one of the train cars. Harding suffered a total amputation of his left foot and a partial amputation of his right foot as a result of the accident.

Harding brought the instant action against Conrail seeking damages for his injuries. Following a jury trial, a verdict was rendered in Harding’s favor. Conrail’s post-trial motions were denied and this appeal followed.

First, Conrail alleges that the trial court erred in failing to direct a verdict in its favor. Conrail contends that because this case should not have been submitted to the jury, this Court should grant Conrail a judgment notwithstanding the verdict. We disagree.

This action arises under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. Jurisdiction in FELA cases is concurrent in federal and state courts, however, those FELA cases adjudicated in state courts are subject to state procedural rules, but the substantive law governing them is federal. 45 U.S.C. § 56; St. Louis Railway Co. v. Dickerson, 470 U.S. 409, 105 S.Ct. 1347, 84 L.Ed.2d 303 (1985). In determining whether an issue in a FELA case presents a jury question, we are guided by the standard set forth by the United States Supreme Court:

Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence played any part at all in the injury or death.

Rogers v. Missouri Pacific Railroad Co., 352 U.S. 500, 506-507, 77 S.Ct. 443, 448-449, 1 L.Ed.2d 493, 499 (1957). In Ciarolla v. Union Railroad Company, 235 Pa.Super. 137, 141, 338 A.2d 669, 671 (1975), this Court cited the Rogers standard with approval, stating that only in the most frivolous cases may the courts deny a FELA plaintiff his qualified right to a jury trial. Thus, only in those extremely rare instances when there is a zero probability either of employer negligence or that any such negligence contributed to the injury of an employee, may a court withdraw a case from the jury’s consideration. Pehowic v. Erie Lackawanna R. Co., 430 F.2d 697, 699 (3rd Cir.1970).

Moreover, a judgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper. Cashdollar v. Mercy Hospital, 406 Pa.Super. 606, 595 A.2d 70 (1991).

After a review of the record, in light of the above standards, we conclude that the evidence could support the jury’s finding that Conrail was liable for Harding’s injuries, either because Conrail had violated its duty to provide a safe workplace to its employees, (see e.g. Bailey v. Central Vermont Railway, Inc., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444 (1943)), or because Conrail had failed to implement or enforce safety rules required under FELA and its regulations. See Ybarra v. Burlington Northern, Inc., 689 F.2d 147 (8th Cir.1982). We, therefore, conclude that the trial court properly submitted the question of liability to the jury. We also conclude that judgment notwithstanding the verdict is improper in this case, as FELA imposes liability upon an employer if its negligence played any part, however small, in the injury. Rogers, 352 U.S. at 508, 77 S.Ct. at 449, 1 L.Ed.2d at 500. We are unable to conclude that no reasonable juror could have found that Conrail’s negligence contributed to Harding’s injuries.

Second, Conrail contends that the trial court erred in instructing the jury that Conrail was negligent as a matter of law because it did not enforce the safety regulations requiring the implementation of a blue flag rule. We find this contention to be without merit.

Liability, under FELA, is predicated upon the negligence of the railroad. 45 U.S.C. § 51. The United States Supreme Court has set a more liberal standard for negligence per se under FELA, than is recognized under the traditional law of torts. Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958). Negligence per se exists, under FELA, if the violation of the statute contributes to the death or injury which is the subject of the suit, without regard to whether the injury flowing from the statutory violation was the type of injury which the statute sought to prevent. Id. at 433, 78 S.Ct. at 398, 2 L.Ed.2d at 389. Negligence per se can also attach, under FELA, when safety regulations promulgated under that statute are violated. Ries v. National Passenger Railroad Passenger Corp., 960 F.2d 1156 (3rd Cir.1992); Eckert v. Aliquippa & Southern Railroad Co., 828 F.2d 183 (3rd Cir.1987).

Under FELA, once it is established that the statute or a safety regulation has been violated by the railroad, the injured employee need not prove additional negligence on the part of the railroad. Crane v. Cedar Rapids & Iowa City Railroad, 395 U.S. 164, 89 S.Ct. 1706, 23 L.Ed.2d 176 (1969). The railroad’s liability is based upon the breach of the statutory duty, and cannot be escaped by proof of the railroad’s due care or diligence. Eckert at 185. Once a railroad employee establishes negligence per se on the part of the railroad, the employee can recover damages if the employee can prove that the injury suffered resulted in whole or in part from the railroad’s violation of a safety statute or regulation. Crane at 166, 89 S.Ct. at 1708, 23 L.Ed.2d at 180; Eckert at 186-87.

In the present case, the pertinent regulation requires that any railroad operating a remote control hump facility have in effect an operating rule whereby an employee coupling air hoses between trains must request that other trains be locked off the track while the employee is working between pieces of rolling equipment. 49 CFR § 218.39. Conrail concedes that it had developed a blue flag rule pursuant to § 218.39. However, the record reveals that the blue flag procedure was not routinely used by Conrail employees, and its use was not enforced by Conrail.

Conrail’s duty, under FELA, was not only to promulgate safety rules but to enforce those rules. See Ackley v. Chicago and North Western Transportation Co., 820 F.2d 263, 268 (8th Cir.1987); Ybarra v. Burlington Northern, Inc., 689 F.2d 147, 150 (8th Cir.1982). Where the evidence shows that the railroad customarily does not enforce a safety rule, the jury is entitled to consider whether the custom constituted negligence and whether it caused in whole or in part, the employee’s injury. Ybarra at 150; Flanigan v. Burlington Northern, Inc., 632 F.2d 880, 883-884 (8th Cir.1980), cert. denied, 450 U.S. 921, 101 S.Ct. 1370, 67 L.Ed.2d 349 (1981).

The trial court’s instruction to the jury regarding negligence per se under FELA accurately reflects this prevailing view. The trial court stated:

In addressing the question of negligence you may consider the evidence which was presented concerning the Blue Flag safety and operating rules, and Conrail’s alleged failure to enforce those rules. Conrail had a legal duty as an employer at the time and place of Charles Harding’s injury to publish safety rules, and also had the legal duty to publish an operating rule that provided protection for employees such as Charles Harding who were coupling air hoses between rail cars. Conrail also had the legal duty to enforce its Blue Flag Rule in the operating rule which provided protection for employees who were coupling air hoses.
Charles Harding alleges that Conrail’s failure to enforce its safety rules constitutes negligence, and has offered evidence that Conrail did not enforce its Blue Flag Safety Rule and did not comply with or enforce its Blue Flag operating rule. This evidence may be considered by you, members of the jury, in determining whether Conrail was negligent in this case. In other words, you may consider whether Conrail’s failure to enforce either of those safety rules constitutes negligence, and whether that negligence played any part in causing Charles Harding’s injuries and damages.

N.T., January 17-18, 1990, at 39-40.

The trial court, later in its jury instructions, explained the regulation requiring that Conrail implement and enforce a blue flag rule and the requirements under FELA for a finding of negligence per se:

If you find from a preponderance of the evidence that Conrail failed to comply with or enforce its own Blue Flag operating rule, then you must find that Conrail was negligent as a matter of law.

N.T., January 17-18, 1990, at 47-48.

In determining whether the trial court erred in its instructions to the jury regarding negligence per se, we are bound by the standard enunciated by our supreme court in Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985):

In reviewing a trial judge’s charge, the proper test is not whether certain portions taken out of context appear erroneous. We look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was prejudicial to the complaining party.

In reviewing the trial court’s instructions in the present case, we are unable to conclude that the charge, in its entirety, was erroneous regarding the standard that the jury was bound to implement in order to determine if Conrail was negligent per se. Therefore, we dismiss this issue as meritless.

Third, Conrail claims that the trial court erred in its instructions to the jury regarding contributory negligence. We disagree.

Under FELA, 45 U.S.C. § 53 describes how an employee’s negligent conduct affects his recovery under the statute:

§ 53. Contributory negligence; diminution of damages
In all actions on and after April 22, 1908 brought against any such common carrier by railroad under or by virtue of any of the provisions of this chapter to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, That no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury and death of such employee (emphasis in original).

In this case, Conrail requested and received a jury instruction on the concept of contributory negligence and how a finding of contributory negligence would reduce Harding’s damages proportionately. Conrail’s objection under issue three concerns the trial court’s instruction pursuant to 45 U.S.C. § 53 that if Conrail were found negligent per se, Harding’s damages could not be reduced by his own contributory negligence. N.T., January 17-18,1990 at 45-46. Conrail maintains that Harding’s injuries were solely due to his own negligence in undertaking to couple the air hoses on the train cars without instructions to do so and without requesting a blue flag for the track. Conrail alleges that it cannot be held liable for Harding’s violation of a safety rule and that Harding was the sole cause of his own injuries. Conrail relies on Flanigan v. Burlington Northern, Inc., supra, to support its contentions, that (1) the trial court’s instructions did not permit the jury to consider the issue of proximate cause and (2) an employee’s violation of a statutory rule could be considered as evidence of his contributory negligence. We find that the holding in Flanigan supports the trial court’s instructions in this case.

In Flanigan, a railroad employee was injured when the trains upon which he was coupling air hoses rolled over his leg after another car was drilled on to the same track. The employee did not use a blue flag to indicate that he was working between the trains. However, he offered evidence that the railroad did not enforce the use of the blue flag rule by its employees. The court in Flanigan held that an employee’s violation of the blue flag rule could not result in the employee being held the sole proximate cause of his injuries per se. Flanigan at 883. The court concluded that whether an employee’s violation of a blue flag rule, that was not routinely enforced, was a cause of the employee’s injuries or constituted contributory negligence was a question reserved for the jury. Flanigan, supra.

A review of the record in this case reveals that any violation of the blue flag rule by Harding could have been viewed by the jury as evidence of Harding’s contributory negligence. The jury also could have viewed the same facts as evidence that Conrail did not enforce its statutorily required safety rules which could result in Conrail being held negligent per se. We conclude that the jury was properly instructed on the principles regarding Conrail’s negligence and negligence per se and Harding’s contributory negligence. The jury, as the sole fact-finder, was free to apply the law to the facts as it found them in this case. We, as an appellate court, are not free to reverse the jury’s verdict merely because another conclusion could be drawn from the evidence presented at trial:

Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. - But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.

Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946).

Here, the trial court submitted the issue of Conrail’s negligence and Harding’s contributory negligence to the jury. The trial court also, in accordance with 45 U.S.C. § 53, instructed the jury that if it found Conrail to be negligent per se, rather than negligent, Harding’s contributory negligence could not be used to decrease the amount of his reward. We find no error in the trial court’s instructions and, as the jury’s verdict is based on the evidence, we are unable to conclude that the jury’s finding on this issue constitutes reversible error.

Fourth, Conrail contends that the trial court erred in submitting to the jury the issue of whether Conrail’s choice of methods for assembling trains constituted negligence under FELA. We disagree with this contention.

Conrail correctly alleges that it was under no obligation to furnish employees with the latest or best appliances with which to work, if standard appliances are reasonably safe and suitable for such use. See Baltimore and Ohio Railroad v. Groeger, 266 U.S. 521, 45 S.Ct. 169, 69 L.Ed. 419 (1925); see also Soto v. Southern Pacific Transportation Co., 514 F.Supp. 1 (W.D.Tex.1979), aff'd, 644 F.2d 1147 (5th Cir.1981), cert. denied, 454 U.S. 969, 102 S.Ct. 514, 70 L.Ed.2d 386 (1981). In Groeger, the trial court submitted the question of whether the failure of the railroad to have the most recent type of plug in its boiler constituted negligence. The Supreme Court held that negligence cannot be proved by the mere failure of the railroad to have installed the latest technology in its boiler systems, absent a demonstration that the technology in place was defective or dangerous. Id.

Here, however, the issue put forth for the jury’s consideration was whether Conrail’s choice, between the available work methods, of permitting employees to go between trains to couple air hoses constitutes negligence. The issue of whether an employer’s choice of work methods constitutes negligence was addressed by the United States Supreme Court in Stone v. New York, C., & St. L.R. Co., 344 U.S. 407, 73 S.Ct. 358, 97 L.Ed. 441 (1953). In that case, the railroad straw boss chose one of three available methods for removing a railroad tie. In addressing the question of the negligence of the railroad the Court stated:

We think the case was peculiarly one for the jury.... Whether the straw boss in light of the risks should have used a different method to remove the tie or failing to do so was culpable is the issue. To us it appears to be a debatable issue on which fair-minded [persons] would differ.

Id. at 409, 73 S.Ct. at 359, 97 L.Ed. at 445.

In this case, Harding did not allege that Conrail needed to supply the most recent technological advances in appliances for the use of persons working in the trainyards. Rather, the evidence of record establishes that there was another method of supplying braking power to trains in the trainyard, through the use of an engine and a slug (an engine with no controls), that did not involve the need for the railroad worker to go between the trains to couple the air hoses. This alternate method of supplying braking power to trains in the yard did not involve supplying new equipment or technology in order to accomplish the same task, and the evidence establishes that Conrail was using the engine-slug method at its other train-yards.

The trial court instructed the jury to evaluate the work methods available to Conrail and its choice of work method at the time of Harding’s accident. The jury was then instructed to consider the evidence presented and determine whether Conrail’s choice of work method unreasonably exposed Harding to danger. As this is a question upon which reasonable persons might differ, we conclude that the trial court did not err in leaving this question to the jury.

Fifth, Conrail maintains that the trial court erred in failing to permit Conrail to cross-examine its own witness. We find this contention to be meritless.

At trial, Conrail offered the testimony of Roger Cucinelli who was an eyewitness to Harding’s condition immediately after the accident. At trial, Cucinelli was asked by counsel for Conrail if he had spoken with Harding at the scene of the accident:

Cucinelli: Well, no. It wasn’t like any, like a conversation we’re having. He was just—he was going into shock.
Question: Did he say anything to you?
Cucinelli: He was just mad at himself. He was just mad like, you know—just mad.

N.T., January 12-17, 1990 at 280. After Cucinelli’s response to questioning, counsel for Conrail asked if he could refresh the recollection of the witness. Cucinelli responded that he was not having trouble remembering the events that transpired at the time of the accident. Counsel for Conrail then requested that the trial court allow Conrail to impeach its own witness. The trial court denied Conrail’s request.

In Pennsylvania, it is within the discretion of the trial court whether to allow a party to cross-examine its own witness. Commonwealth v. McKendrick, 356 Pa.Super. 64, 514 A.2d 144 (1986), appeal denied, 514 Pa. 629, 522 A.2d 558 (1987). A party may request to cross-examine its own witness on a plea of surprise when the witness has given testimony which was unexpected, contradictory to the witness’ earlier statements and harmful to the calling party. Commonwealth v. Bartley, 395 Pa.Super. 137, 576 A.2d 1082 (1990). However the burden is on the calling party to prove that the statements at issue were truly contradictory and that injustice will result upon a denial of the request to cross-examine his own party. Commonwealth v. Gee, 467 Pa. 123, 354 A.2d 875 (1976).

Here, Conrail pleaded surprise to Cucinelli’s testimony, stating that the trial testimony was inconsistent with Cucinelli’s previous statements in which he said that Harding wasn’t delirious and had “kept his cool” after the accident and that Harding had blamed himself for his injuries. The trial court concluded that the statement about Harding going into shock did not indicate that Harding was not rational or had “not kept his cool” after the accident and was, thus, not inconsistent with Cucinelli’s previous statements. Moreover, Conrail was in no way precluded from asking Cucinelli about Harding’s appearance at the accident site or about how Harding was reacting to his injuries. Additionally, Conrail was not precluded from asking Harding about his state of mind or his immediate emotional reactions after the accident. Conrail did not establish at trial, nor in this appeal, what injustice resulted from the ruling of the trial court regarding this issue. Therefore, after a thorough review of the record, we are unable to conclude that the trial court erred in refusing Conrail’s request to cross-examine Cucinelli.

Sixth, Conrail contends that because the jury’s verdict is excessive, that Conrail is entitled to a remittitur or a new trial. We disagree with this contention.

The granting or the refusal to grant a new trial because of the excessiveness of the verdict is within the discretion of the trial court and its decision will be sustained by an appellate court absent a gross abuse of that discretion. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992); Mineo v. Tancini, 349 Pa.Super. 115, 502 A.2d 1300 (1986), aff'd, 517 Pa. 335, 536 A.2d 1323 (1988). In determining whether a verdict is excessive a court may consider the following factors: (1) the severity of the injury; (2) whether the injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his or her employment; (5) the size of out-of-pocket expenses; (6) The amount of compensation demanded in the original complaint. Kemp v. Philadelphia Transportation Company, 239 Pa.Super. 379, 361 A.2d 362 (1976). However, as each case is unique, the court should apply only those factors which are relevant to that particular case before determining if that verdict is excessive. Mineo at 126, 502 A.2d at 1305.

The trial court considered the verdict in the present case in light of these factors, and determined that because Harding’s injuries were severe, disabling and permanent and will continue to prevent Harding from resuming his former employment, the verdict was not excessive. After a thorough review of the record, we are constrained to agree with the trial court’s conclusion that the verdict should be upheld.

Seventh, Conrail alleges that the trial court erred by instructing the jury that Harding could recover for “lost economic horizons” or the loss of future earning capacity. We find no error.

The test for impaired earning capacity is whether the economic horizon of the disabled person has been shorts ened because of the injuries sustained as a result of the tortfeasor’s negligence. Bochar v. J.B. Motors, 374 Pa. 240, 97 A.2d 813 (1953); Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985). Evidence of permanent injury by itself is sufficient to submit the question of Harding’s lost economic horizons to the jury. Janson v. Hughes, 309 Pa.Super. 399, 455 A.2d 670 (1983).

In this case, it is undisputed that Harding suffered permanent debilitating injuries as a result of the accident. The evidence also established that Harding will never be able to resume his former occupation as a trainman. Based on our review of the record, we conclude that the trial court properly submitted the issue of Harding’s lost economic horizons to the jury.

Eighth, Conrail maintains that the trial court erred in failing to instruct the jury that any damages awarded to Harding would not be subject to federal income tax. We conclude that Conrail has waived this issue by failing to raise it before the trial court.

Only those issues properly raised in the trial court may be reviewed on appeal. Commonwealth v. Brown, 234 Pa.Super. 119, 338 A.2d 659 (1975); Pa.R.A.P. 302(a). In Brown, the defendant’s counsel did not object to the trial court’s charge to the jury but rather acquiesced in the trial court’s decision to give a general charge. Brown at 122, 338 A.2d at 660. There, we concluded that any objection to the trial court’s instructions to the jury had been waived for the purposes of appellate review. Brown, supra.

In the present case, Conrail did not object to the trial court’s decision not to give Conrail’s requested point for charge which specifically informed the jury that the amount of the verdict would not be subjected to taxation. N.T., January 17-18, 1990 at 4. Following the completion of its instructions to the jury, the trial court asked counsel for any additions or corrections to the jury charge. Counsel for Conrail offered exceptions to various portions of the jury instructions but did not object or take exception to the trial court’s failure to include the fact that any damages awarded would not be subject to taxation. Because Conrail failed to object to the trial court’s charge to the jury on the issue of taxation, we may not consider this allegation of error on appeal. Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Accordingly, for the foregoing reasons, the order of the trial court is affirmed.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    620 A.2d 1194
    COMMONWEALTH of Pennsylvania, Appellee, v. Barbara A. MARTIN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1992.
    Filed Feb. 24, 1993.

      Charles R. Gority, Hollidaysburg, for appellant.
    Douglas J. Keating, Asst. Dist. Atty., Hollidaysburg, for Com., appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OPINION

PER CURIAM:

Following a jury trial, Barbara Martin was convicted of hindering apprehension. The trial court denied posttrial motions. A sentence of six months probation was imposed. This appeal followed. For the reasons below, we vacate the judgment of sentence, reverse the order denying suppression and remand for a new trial.

On appeal, appellant claims: (1) that the suppression court erred when it failed to suppress evidence seized pursuant to a warrantless search of appellant’s home; (2) that the trial court erred by failing to instruct the jury that her request that the police obtain a search warrant was a valid defense to the charge; and (3) whether the trial court improperly instructed that an arrest warrant provided sufficient basis for searching appellant’s house.

At approximately 2:30 a.m. on January 3, 1991, Mrs. Sprankle saw her ex-husband’s truck parked on the street. She then saw her ex-husband, Jeffrey Sprankle, through the window of appellant’s house. Knowing that there were outstanding warrants on Mr. Sprankle, she went to a nearby convenience store and called police. An officer responding to the scene drove past appellant’s house and confirmed that the truck was the one used by Mr. Sprankle. The officers then returned to appellant’s house and knocked on the door. They told appellant that they had received a report of a disturbance at the address. Appellant allowed them to enter the house. Police then informed appellant that they were looking for Mr. Sprankle. She denied knowing him. Appellant subsequently admitted to knowing a Mr. Sprankle, but not Jeffrey Sprankle. The officers told appellant they wanted to search her house for Sprankle. Appellant demanded that the officers produce a search warrant before they searched the house. The officers told appellant that there was an outstanding arrest warrant for Sprankle and that they were going to search the house for him. Police discovered Sprankle in a hidden room on the third floor of the house.

Appellant claims that the discovery of Sprankle should have been suppressed because the officer’s entry violated her Fourth Amendment rights. When reviewing a suppression court’s decision, we consider only the evidence of the appellee’s witnesses and- that of appellant’s witnesses which remains uncontradicted. Commonwealth v. Fromal, 392 Pa.Super. 100, 572 A.2d 711 (1990). If the suppression court’s factual findings are supported by the evidence submitted at trial, we are bound by the findings and may reverse only if the legal conclusions drawn are in error. Commonwealth v. Smith, 396 Pa.Super. 6, 577 A.2d 1387 (1990).

The United States Supreme Court addressed this issue in Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981). In Steagald, a police informant told police where they could find a fugitive. Police proceeded to the location, Steagald’s residence, with their arrest warrant for the fugitive. Police searched the house for the fugitive. Although they failed to find the fugitive, police discovered forty-three pounds of cocaine. Steagald appealed from his conviction on federal drug charges.

The Steagald Court considered whether an arrest warrant, as opposed to a search warrant, was adequate to protect the Fourth Amendment rights of a person not named in the warrant. When the search and seizure of an individual occurs in the home of a third party, two interests are implicated: (1) the arrestee’s interest in being free from unreasonable search and seizure; and (2) the homeowner’s interest in being free from an unreasonable search of his home. Id. The Steagald Court concluded that to allow police, acting alone and without exigent circumstances, to determine when to search the home of a third party for the subject of an arrest warrant would create a significant potential for abuse. Id. Holding that the search violated Steagald’s Fourth Amendment rights, the Court reversed. The situation which occurred in Steagald is indistinguishable from appellant’s situation.

The suppression court and the Commonwealth cite Commonwealth v. Smith, 524 Pa. 72, 569 A.2d 337 (1990) and Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) for the proposition that such a search is permissible upon reasonable belief that the individual named in the arrest warrant is in the home. However, in both Smith and Stanley, the issue is raised by the person who was named in the arrest warrant but was arrested in a third party’s home. Smith and Stanley address the rights of the person named in the arrest warrant. In Stanley, the Pennsylvania Supreme Court noted this distinction in holding that Steagald did not apply when the person named in the arrest warrant was challenging the search of the third party’s home. Commonwealth v. Stanley, at 333 fn. 4, 446 A.2d at 586 fn. 4. In the present case, however, we are concerned with the Fourth Amendment rights of a third party for whom no warrant has been issued and thus Steagald is controlling.

The Commonwealth also claims that exigent circumstances justified the warrantless search. The Steagald Court noted that if the Commonwealth can demonstrate that appellant consented to the search or that exigent circumstances existed the result may be different. Steagald v. U.S., supra. Neither consent nor exigent circumstances exist in this case. See, Commonwealth v. Rispo, 338 Pa.Super. 225, 487 A.2d 937 (1985) (exigent circumstances do not exist where police could maintain covert surveillance while a search warrant was obtained.)

Accordingly, we must reverse the order denying suppression and remand for a new trial. Because we are granting a new trial, we need not address appellant’s remaining claims.

Judgment of sentence is vacated. Order denying suppression is reversed. Case is remanded for a new trial. Jurisdiction is relinquished.

      . The outstanding warrants related charges of indirect criminal contempt arising from alleged violations of a Protection from Abuse order.


author: CERCONE, Judge:

text:
    620 A.2d 1196
    COMMONWEALTH of Pennsylvania v. James R. FIERST, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 2, 1992.
    Filed Feb. 24, 1993.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Sandra Preuhs, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge and HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the judgments of sentence entered in the Court of Common Pleas of Allegheny County, dated January 24, 1992, which imposed sentence against appellant, James Fierst, for various criminal convictions. We vacate the judgments of sentence and remand for further proceedings.

The sequence of events which serves as the basis for the criminal complaints against appellant is protracted. On December 7, 1989, appellant went to see David Perl at the residence of Mr. Perl’s mother. When appellant arrived, Mr. Perl was helping his mother into the house from the driveway. Mr. Perl’s fiancee, Danielle Mainolfi, who is now his wife, was walking behind. Appellant approached Perl and asked to speak with him. Perl declined and asked if he could speak with appellant the following day. Appellant then left.

Mr. Perl and Ms. Mainolfi then went to Mr. Perl’s apartment in Wilkins Township. Approximately twenty minutes after leaving Perl’s mother’s house in Churchill, appellant went to Perl’s apartment. After that, Perl’s version of the events differs markedly from that advanced by appellant. Perl testified that he let appellant in the apartment with the intent of getting rid of him. He stated that appellant anxiously began following him around the apartment. When Perl entered his bedroom to fold laundry, appellant followed him in and asked Perl for his .357 magnum gun so that he could shoot himself. Per1 refused. Perl testified that appellant had previously manifested certain suicidal and homicidal tendencies. Perl then stated that appellant diverted Perl’s attention by pointing to something in Perl’s fish tank, and attacked him. According to Perl, appellant continuously hit him on different areas of his head and torso with a heavy metal object. During this time, he testified that appellant announced, “Give me your gun or I will kill you.” Perl screamed for help and Ms. Mainolfi entered and jumped on appellant who then threw her off and began to hit her. Perl was then able to obtain a knife and he lunged toward appellant with the weapon. Appellant jumped back and yelled, “Have you gone crazy?” Shortly thereafter, appellant fled. As a result of the scuffle, Mr. Perl sustained head injuries which required 51 stitches. Ms. Mainolfi sustained minor bruises.

In contradiction to Mr. Perl’s averments, appellant testified in his own behalf that Perl initiated the attack. He stated that he never asked Perl for his gun and that once they entered the bedroom Perl began to strike him without provocation. Appellant asserted that Perl wanted him out of the apartment and threatened him with a knife. Appellant then testified that Ms. Mainolfi jumped onto his back and he swung around at her. All the while appellant questioned Perl why he was acting in this manner. Appellant then left the apartment.

After the incident at the Perl apartment, appellant got in his car and drove down Greensburg Pike towards Turtle Creek. From there, he drove on the Triboro Expressway which turns into Broadway in Pitcairn. Coming down a curve in the road, appellant swerved into the oncoming lane in which George Bucar was travelling in his car. Bucar swerved off the roadway to avoid being hit by appellant and slammed into the abutting hillside. Appellant returned to his proper lane but moments later swerved into the path of another oncoming car driven by Robert Baldosky. The two cars collided. As a result, passenger Marcie Brown, whose parents owned the car, was killed. After police arrived at the scene, they removed appellant from his car which was lying on its side. Police officers noticed that appellant seemed to be suffering from a seizure.

Based on the alleged reign of terror caused by appellant, the Commonwealth filed three separate informations against him. The first information (CC 9000961) charged appellant with two counts of aggravated assault and two counts of reckless endangerment of another person in connection with the scuffle involving David Perl and Danielle Mainolfi. The second information (CC 9005437) charged appellant with one count of criminal homicide and one count of homicide by vehicle in connection with the death of Marcie Brown. The last information (CC 9009127) charged appellant with one count each of aggravated assault and reckless endangerment in connection with the aforementioned automobile accident for appellant’s attempt to cause bodily injury to the driver of the automobile, Robert Baldosky. The information also charged appellant with aggravated assault and reckless endangerment in connection with appellant’s prior attempt to collide with the automobile driven by George Bucar. Appellant was also charged with various summary offenses in that information.

A jury trial was held from July 22-25, 1991 before the Honorable George H. Ross. On the first information, the jury convicted appellant of aggravated assault and reckless endangerment as to David Perl. Appellant was convicted of aggravated assault against Danielle Mainolfi, but was acquitted of recklessly endangering her. On the second information, appellant was convicted of murder in the third degree, and homicide by vehicle. Appellant was convicted of all counts in the third information.

Trial counsel for appellant filed timely post-verdict motions, which were denied. The trial court sentenced appellant to an aggregate term of incarceration of eighteen (18) to thirty-six (36) years, including a term of imprisonment of ten (10) to twenty (20) years on the conviction of third-degree murder. This particular sentence was the statutory maximum for third-degree murder. Appellant then filed a motion to modify sentence, which was denied. On February 14, 1992 appellant filed his timely notice of appeal and leave to file an appeal in forma pawperis. The trial court granted appellant’s request for leave and appointed the Allegheny County Public Defender to represent him.

Appellant raises four issues for our review:

1. was [trial] counsel ineffective for failing to offer expert testimony and instructions explaining the defense position that Mr. Fierst’s actions at the time of the collision were not voluntary;
2. was the evidence insufficient to support convictions for aggravated assault with respect to Danielle Mainolfi and George Bucar insofar as the Commonwealth did not prove that they suffered serious bodily injury, or that the defendant intended to inflict such injury; and was counsel ineffective for not preserving this issue in the brief in support of post trial motions;
3. did the [trial] court provide a sufficient statement of reasons for imposing sentence for third degree murder in the aggravated range of the guidelines; and was counsel ineffective for failing to preserve this issue;
4. did the [trial] court abuse its discretion in imposing the statutory maximum sentence for third degree murder by considering only the nature of the offense?

We shall first consider appellant’s claims of ineffectiveness for failing to challenge the sufficiency of two of the aggravated assault convictions as the relief for those claims is an acquittal on those counts.

Appellant maintains that the evidence was insufficient to prove the charges of aggravated assault directed against Danielle Mainolfi and George Bucar, and that trial counsel was ineffective for failing to pursue and preserve this issue in post-verdict motions. The crux of appellant’s argument is that since neither Mainolfi nor Bucar sustained serious bodily injury, the Commonwealth failed to prove that he specifically intended to cause them serious bodily injury. Our standard of review for allegations of ineffective assistance of counsel is well-established and quite narrow. Ineffectiveness claims are subject to a three-part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989), allocatur denied, 524 Pa. 619, 571 A.2d 382 (1989). Prejudice in the context of a claim of ineffective assistance of counsel is determined by an evaluation of whether “but for the arguably ineffective act or omission there is a reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Smith, 380 Pa.Super. 619, 624, 552 A.2d 1053, 1056 (1989), allocatur denied, 525 Pa. 581, 575 A.2d 112 (1990). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Cook, 383 Pa.Super. 615, 623, 557 A.2d 421, 425 (1989). Moreover, in making assertions of ineffectiveness, a claimant must allege sufficient facts upon which a reviewing court can conclude that trial' counsel may have been ineffective since the appellate counts will not consider such claims in a vacuum. Commonwealth v. Durst, 522 Pa. 2, 4, 559 A.2d 504, 505 (1989).

In order for us to determine whether appellant’s claim contains arguable merit, we must review the sufficiency of the evidence. Our standard of review for claims raising the sufficiency of the evidence is well established. “[A]n appellate court must review the evidence presented and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner and determine whether on the record there is a sufficient basis to support the challenged conviction.” Commonwealth v. Madison, 501 Pa. 485, 490, 462 A.2d 228, 231 (1983) (citations omitted). The proper application of the sufficiency test requires us to evaluate the entire trial record and all evidence actually received in the aggregate and not as fragments isolated from the totality of the evidence. Commonwealth v. Harper, 485 Pa. 572, 576, 403 A.2d 536, 538 (1979), See also Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986) (explicating appropriate application of standard of review set forth in Harper, supra). This standard means that we must review the evidence in the light most favorable to the Commonwealth as the verdict winner, and drawing all proper inferences favorable to the Commonwealth, determine if the jury could reasonably have concluded that all of the elements of the crime were established beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 143, 555 A.2d 818, 823 (1989). Moreover, the jury, as the trier of fact, is free to believe all, some or none of the evidence presented. Griscavage, 512 Pa. at 543, 517 A.2d at 1257.

Our law deems a person guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; ...

18 Pa.C.S.A. § 2702(a). Further, as both sides stipulate, without any showing of actual serious bodily injury, the Commonwealth must demonstrate that an accused attempted to inflict serious bodily injury. Commonwealth v. Everett, 408 Pa.Super. 166, 169, 596 A.2d 244, 245 (1991), allocatur denied, 530 Pa. 639, 607 A.2d 250 (1992). Attempt is proven by establishing specific intent to commit the crime charged. Id. Contrary to appellant’s assertion, however, intent to commit serious bodily injury need not be directed at a specific person. Further, the Commonwealth may prove its case by the use of circumstantial evidence. Commonwealth v. Hogan, 321 Pa.Super. 309, 314, 468 A.2d 493, 496 (1983).

In the present case, neither Danielle Mainolii nor Robert Bucar sustained serious bodily injury. Thus, in order for the evidence to be sufficient to prove aggravated assault against each of them, the Commonwealth had to prove that appellant intended to cause serious bodily injury. Everett, supra. We therefore turn to the facts of this case, taken in a light most favorable to the Commonwealth as the verdict winner, to determine whether the evidence was sufficient to convict appellant of aggravated assault against Danielle Mainolfi and George Bucar.

Appellant began beating Danielle Mainolfi after she jumped on him in response to David Perl’s screams. He had been severely beating Perl before that in order to obtain Perl’s gun. Mainolfi testified that after she jumped on appellant’s back, he threw her onto the bed and started to hit her on her head and arms with a cold black instrument she thought was a police blackjack. Taken in a light most favorable to the Commonwealth as the verdict winner, the evidence demonstrates that appellant began viciously attacking David Perl to obtain his gun. He had told Perl to give him the gun or else he would kill him [Perl], In response to Perl’s screams, Mainolfi entered and tried to stop appellant from attacking Perl. At that point, he began beating Mainolfi with a hard weapon. After appellant noticed Perl escaping to find a weapon for himself, he ceased his attack on Mainolfi and redirected his attack towards Perl. The evidence demonstrates that appellant attacked whoever stood between him and Perl’s gun. The evidence indicates that he threatened to kill Perl. Given the chain of events which followed, it can be inferred that he also attempted to seriously injure Ms. Mainolfi to get the gun. The fact that Perl successfully thwarted the attack by chasing appellant away does not alter appellant’s intent to cause serious bodily injury. We find that under the circumstances of this incident, the evidence was sufficient to convict appellant of aggravated assault against Ms. Mainolfi.

Next, appellant contends that the evidence is insufficient to prove aggravated assault against George Bucar. Bu-car’s auto was the first car which appellant encountered as he came down the Triboro Expressway into Pitcairn. Appellant was already travelling in Bucar’s lane of traffic when Bucar had to swerve out of the way to avoid being hit by appellant. Appellant contends that since he had already turned into his lane before seeing Bucar, he could not have had a specific intent to inflict serious bodily injury upon Bucar. Appellant misinterprets the nature of aggravated assault in this instance. David Perl testified that appellant was both suicidal and homicidal. Accepting such testimony, the jury could infer that appellant was attempting to kill himself by colliding with another car. It did not matter who was behind the wheel of the other car because appellant was attempting to collide with any car by moving his own vehicle into opposing traffic. By turning into the oncoming lane before identifying a specific car, appellant may have been trying to preclude any escape by an oncoming car which could not see him. Finally, attempt to commit aggravated assault is bolstered by the fact that after unsuccessfully attempting to collide with Bucar’s auto, he swerved into the path of Marcie Brown’s automobile, thereby causing the fatal collision. We find this evidence sufficiently proves that appellant attempted to commit serious bodily injury against George Bucar. Thus, appellant’s ineffectiveness claim has no arguable merit and must fail. Commonwealth v. Cook, supra.

Appellant also argues that trial counsel was ineffective for failing to interview or call expert witnesses to testify concerning appellant’s alleged seizure which, according to his trial testimony, occurred shortly before the automobile accident in question. He contends that such evidence would have supported his defense that his act in hitting an oncoming automobile was involuntary. In order to assess whether appellant’s claim has merit, however, we must first delineate the defense which he proffers and assess its applicability. Appellant relies upon the involuntariness of his act while driving his car as a defense to third-degree murder and aggravated assault against George Bucar and Robert Baldosky. Appellant testified that before the incident occurred on the roadway in Pitcairn, the stress of his prior incident with Perl and Mainolfi brought on a seizure which caused him to lose control of his automobile. Section 301 of the Pennsylvanía Crimes Code does not impose criminal liability on a person for an involuntary act. Although this court has never addressed this argument as to third degree murder, we have previously discussed whether a person could be found guilty of homicide by vehicle when the defendant has a seizure, thereby causing him to lose control of his car. Commonwealth v. Cheatham, 419 Pa.Super. 603, 615 A.2d 802 (1992).

In Cheatham, the appellant argued that a seizure-induced blackout is an involuntary act which lacks the mens rea necessary to raise his conduct from negligent to grossly negligent as required to convict for homicide by vehicle. Id. at 605-07, 615 A.2d at 804. Without applying section 301 of the Crimes Code, the panel in Cheatham held that where the appellant knew the frequency of his seizures and that the seizures came on without warning, and chose to drive despite such knowledge, the appellant’s conduct rose to a level of gross negligence sufficient to impose liability for homicide by vehicle. Id. at 611-13, 615 A.2d at 807. The panel reasoned that liability attaches to those who know or should know that death is a probable consequence of their actions. Id. Thus, the judgment of sentence was affirmed because the appellant knew that his seizures could cause the death of another, despite the fact that, at the critical moment, his actions were involuntary.

In the present matter, appellant testified that he had experienced seizures very few times in the past and they were brought on by distress. He also commented that he never considered the seizure disorder very serious. N.T. 7/24/91 at 27. Such evidence is not so strong compared with that which the Court in Cheatham faced with regard to the seizure disorder. However, it is clear that appellant, in his own mind, knew that stressful situations could cause him to have seizures. Therefore, appellant’s alleged seizure disorder would provide no defense to the charge of homicide by vehicle if he chose to drive in such situations. In light of this fact, counsel cannot be deemed ineffective for failing to mount a defense to the charge of homicide by vehicle based on this theory.

However, the mens rea requirement applicable to both third degree murder and aggravated assault is different from that which pertains to homicide by vehicle. As stated previously, a conviction for homicide by vehicle can be sustained merely upon evidence that a defendant was grossly negligent. However, in order to sustain a conviction for third-degree murder, codified at 18 Pa.C.S.A. § 2502(c), the Commonwealth must establish that the killing was committed with malice aforethought. Commonwealth v. Reilly, 519 Pa. 550, 564, 549 A.2d 503, 510 (1988). Malice must also be present to sustain a conviction for aggravated assault. Commonwealth v. Hickson, 402 Pa.Super. 53, 60, 586 A.2d 393, 396 (1990), allocatur denied, 527 Pa. 630, 592 A.2d 1297 (1991). Malice exists “where there is a wickedness of disposition, hardness of the heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Reilly, 519 Pa. at 564, 549 A.2d at 510. Where malice is based on the recklessness of consequences, it is not sufficient to show mere recklessness as codified at 18 Pa.C.S.A. § 302(b)(3); but rather, it must be shown that the defendant consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm. In the Interest of Smith, 396 Pa.Super. 624, 637, 579 A.2d 889, 895 (1990), allocatur denied, 527 Pa. 610, 590 A.2d 296 (1991) (emphasis added).

Although the evidence presented by the Commonwealth may be sufficient to convict appellant of third degree murder and the related charges of aggravated assault, we find that appellant’s proposed defense to those charges was a matter for the jury’s consideration due to the alleged involuntariness of his actions and lack of malice due to seizure. As such, appellant was entitled to an adequate presentation of the defense. Appellant testified that although he had experienced seizures in the past, they occurred relatively infrequently and never while driving. Although appellant disregarded the risk of seizure while driving, we cannot say with any certainty that his actions in disregarding this risk rose to the level necessary to prove the malice requisite for aggravated assault and third degree murder. The claimed involuntariness of appellant’s actions could arguably serve as a valid defense for the jury’s consideration, along with the Commonwealth’s evidence, to both of these charges under section 301 of the Crimes Code. Thus, it is possible that appellant possessed an adequate defense to the Commonwealth’s evidence relating to malice. Having ascertained that appellant could at least argue that the involuntariness of his actions negated the necessary degree of malice to sustain the third degree murder count and the related aggravated assault charges, we must now decide whether his claim has “arguable merit” within the meaning of an ineffectiveness claim.

Appellant argues that prior counsel failed to interview pertinent witnesses. On that subject, we have held:

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. Although counsel’s failure to interview witnesses about whom he neither knew nor should have known does not constitute ineffectiveness, he must investigate those he knows or has reason to know would be helpful to the defense.

Commonwealth v. White, 303 Pa.Super. 550, 553, 450 A.2d 63, 64-65 (1982). See also Commonwealth v. Anderson, 410 Pa.Super. 524, 600 A.2d 577 (1991), allocatur denied, 531 Pa. 644, 612 A.2d 983 (1992) (counsel’s failure to interview witnesses whose testimony is beneficial and exculpatory can constitute ineffectiveness if no reasonable basis otherwise exists for counsel’s failure). No case of this Commonwealth has discussed the need for expert medical testimony to support a defense theory that certain acts were involuntarily committed. We find guidance, however, in those cases which have discussed the need for expert psychiatric testimony in cases where a defense of diminished capacity is proffered.

In Commonwealth v. Potts, 486 Pa. 509, 406 A.2d 1007 (1979) (plurality), our Supreme Court addressed the ineffectiveness of trial counsel in a murder case where counsel failed to present psychiatric witnesses to testify to the defendant’s emotionally disturbed state of mind. The only defense offered in Potts was that the defendant was psychotic and therefore incapable of acting with malice. The Supreme Court agreed with appellant and awarded a new trial. The plurality held:

When the only issue is appellant’s state of mind, trial counsel’s decision not to present relevant psychiatric and psychological testimony which may be determinative of the issue can be as damaging to the truthfinding process as the failure in other contexts to present the testimony of an available eyewitness, or other key witness.

Id. at 513, 406 A.2d at 1009 (citations omitted). Similarly, the Supreme Court has held:

In a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant, failure to explore all alternatives available to assure that the jury heard the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’s truthfulness is ineffective assistance of counsel.

Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975). This principle applies with equal weight to favorable expert testimony. Commonwealth v. Guerrisi, 297 Pa.Super. 245, 250, 443 A.2d 818, 821 (1982).

In the case sub judice, the lack of malice involved in the claimed involuntariness of appellant’s actions based on seizure was his only defense to third degree murder and aggravated assault arising from the automobile collision. Appellant maintains that counsel was ineffective for failing to interview or otherwise offer expert testimony to explain how the seizure affected his control of the automobile. Such evidence, coming from an expert, would have been probative of appellant’s state of mind at the time of the automobile incidents. The evidence would also have aided the jury in resolving the conflicts between the Commonwealth’s theory of liability—that appellant intended to commit suicide—and that of appellant—that appellant was subject to seizure while driving the automobile. Commonwealth v. Potts, supra. Moreover, appellant avers that trial counsel had knowledge of his seizure disorder at least one year before trial.

The Commonwealth responds that appellant has not met his threshold burden for establishing an ineffectiveness claim— namely, that he has not explained what exculpatory evidence would have been presented had counsel investigated this avenue. In support, the Commonwealth cites to our Supreme Court’s decision in Commonwealth v. Wallace, 495 Pa. 295, 433 A.2d 856 (1981). We find that the Commonwealth’s reliance on this decision is misplaced. The Court in Wallace held that in order for counsel to be deemed ineffective for failing to pursue an investigation, the defendant must allege a benefit that could have resulted from the investigation. Id. at 298, 433 A.2d at 858. Here, appellant has averred that investigation of medical experts as to his seizure disorder could bolster his lack of malice defense to third degree murder and aggravated assault by showing how the disorder affected his motor control. We therefore find that appellant’s claim of ineffectiveness has arguable merit.

From the record we cannot ascertain whether counsel had a reasonable basis for failing to interview or call expert witnesses. Under these circumstances, we would normally remand for an evidentiary hearing on counsel’s ineffectiveness. However, we will not do so in this case because our resolution of appellant’s ineffectiveness claim on the underlying issue involving the jury instruction mandates the grant of a new trial.

Appellant argues that trial counsel was ineffective for failing to request a jury charge that appellant could not be liable for third degree murder and aggravated assault because his involuntary actions would not suffice to prove malice. We agree and find that this case must be remanded for a new trial on third degree murder and aggravated assault charges emanating from the automobile incident.

Jury instructions must be viewed in their totality to assess whether the charge accurately and adequately explains the relevant law to the jury and guides the jury in its deliberations. Commonwealth v. Ort, 398 Pa.Super. 475, 482, 581 A.2d 230, 234 (1990), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1991). The trial judge is not required to grant a requested point for charge, so long • as the charge given sufficiently states the pertinent law. Commonwealth v. Sanders, 380 Pa.Super. 78, 95, 551 A.2d 239, 248 (1988), allocatur denied, 522 Pa. 575, 559 A.2d 36 (1989).

Appellant suggests that trial counsel was ineffective for failing to request a charge regarding the involuntariness of his actions as they related to malice, a necessary element in proving third degree murder and aggravated assault. The Commonwealth attempts to refute this argument by maintaining that the charge to the jury adequately covered the involuntariness of appellant’s actions. The trial judge charged the jury with the various categories of culpability, as defined in section 302 of the Crimes Code, which were necessary to prove the plethora of crimes with which appellant was charged. However, the trial judge failed to instruct the jury that appellant could be exonerated of the charges of third degree murder and aggravated assault relating to the automobile collision if it found that appellant’s actions were involuntary, in accordance with 18 Pa.C.S.A. § 301. Since we have determined that appellant had a valid defense on the basis of the involuntariness of his actions, the trial judge would have been required to instruct the jury of his defense had trial counsel requested such a charge. Since the jury was not instructed as to the involuntariness of appellant’s actions pursuant to section 301, it had no guidance on how to apply the defense to the circumstances of the case. Thus, the charge to the jury did not adequately explain the pertinent points of law. Furthermore, this was appellant’s sole defense to the collision related charges. As such, counsel could have had no reasonable basis for their failure to request such a charge. We also find that appellant was prejudiced by counsel’s ineffectiveness. Had the jury been aware of its ability to exonerate appellant on the basis of his seizure disorder, it is entirely possible they would have acquitted appellant on the related charges. Thus, we find that appellant has averred a claim of ineffectiveness of trial counsel which warrants the granting of a new trial on the particular claims which counsel’s ineffectiveness tainted.

Appellant’s next two issues concern the discretionary aspects of sentencing for appellant’s ten (10) to twenty (20) year conviction for third-degree murder. Because we vacate the conviction as to third-degree murder, however, we need not consider the sentencing issues. Although we affirm all of appellant’s convictions except for third-degree murder and the two counts of aggravated assault related to the automobile incident, the trial court’s sentencing scheme has been unavoidably disturbed by our disposition. Accordingly, we must vacate all judgments of sentence entered in this case.

Judgments of sentence are vacated; new trial is awarded on the count of third-degree murder contained in information number CC 9005437; new trial is awarded on the counts of aggravated assault contained in information number CC 9009127; case remanded for resentencing on all other counts. Jurisdiction is relinquished.

      . 18 Pa.C.S.A. § 2702(a)(1).

      . Id. § 2705.

      . Id. § 2501.

      . 75 Pa.C.S.A. § 3732.

      . Appellant was charged with the summary offenses of reckless driving, 75 Pa.C.S.A. § 3714; driving on the right side of the roadway, id. § 3301; and, driving without a license, id. § 1501.

      . The evidence sufficiently proves that appellant committed aggravated assault against David Perl.

      . Section 301 provides the following rule of law:
      (a) General rule.—A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.
      18 Pa.C.S.A. § 301(a).

      . Section 302(b)(3) provides:
      A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
      18 Pa.C.S.A. § 302(b)(3).

      . The Commonwealth refers us to the decision in Commonwealth v. Crosby, 444 Pa. 17, 279 A.2d 73 (1971) which held that "unconsciousness as a defense has been permitted only where the defendant’s state of unconsciousness resulted from a physical ailment such as epilepsy, or a physical disability such as that resulting from a blow on the head.” Id. at 22, 279 A.2d at 76 (citations omitted). The Court further stated, "the defense of unconsciousness resulting from a blackout—a complete defense—has never been recognized in Pennsylvania where, as here, the defendant's state of unconsciousness is the result of excitement or emotion naturally engendered by the commission of an unlawful, coldblooded killing.” Id. at 22-23, 279 A.2d at 76. In the present case, however, appellant contends that he suffers from a seizure disorder.


author: KELLY, Judge. OLSZEWSKI, Judge,

text:
    620 A.2d 1206
    Maxine DUCKSON, Appellee, v. WEE WHEELERS, INC. and George McCreery and Joseph Pietropaolo. Appeal of Joseph PIETROPAOLO.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1992.
    Filed Feb. 25, 1993.

      George A. Prutting, Jr., NJ, for appellants.
    Phillip H. Baer, Philadelphia, for appellee Duckson.
    Before OLSZEWSKI, BECK and KELLY, JJ.
   KELLY, Judge.

This appeal asks us to determine whether the trial court erred in denying Joseph Pietropaolo’s petition to open a default judgment. The trial court did not accept as reasonable appellant’s excuse for the delay in filing an answer to appellee’s complaint. The trial court, however, did not weigh the equities presented by the circumstances in this case nor balance the prejudice to the two sides, as the relevant case law requires. Thus, we hold that the trial court erred in refusing to open the default judgment, and reverse.

We preface our reasoning with this summary of the pertinent facts and procedural history. On July 31, 1990, appellee, Maxine Duckson, was a passenger on a bus that was involved in a collision with an automobile operated by appellant. As a result of the collision, appellee alleged serious personal injuries. Appellee’s original complaint in this matter was filed on November 20,1991. On December 4, 1991, appellant received service of the complaint, and on December 5, 1991, hand delivered the complaint to his insurance agent. The Dollfus Agency transmitted the complaint to Nationwide Insurance Company, appellant’s automobile insurance carrier, on or about December 16, 1991. Technically, an answer to the complaint was due on December 24, 1991.

The file was forwarded initially to legal counsel who telephoned appellee’s counsel on Wednesday, January 8, 1992, because service of process on appellant was not of record. Counsel for appellee refused to provide any information to appellant’s counsel. In a letter dated January 10, 1992, appellant’s counsel enclosed to adverse counsel a copy of an entry of appearance and demand for a jury trial which had been duly filed on behalf of appellant.

On January 13,1992, Nationwide inadvertently assigned the case to a second attorney. He immediately telephoned appellee’s counsel in order to advise him that appellant was represented and to inquire if appellee’s counsel would agree to an extension to file an answer out of time. Despite several attempts by appellant’s second attorney to contact him, neither appellee’s attorney nor his office returned the phone calls. Appellant’s present counsel received the actual physical file from Nationwide on January 21, 1992.

Counsel for appellee, on January 10, 1992, directly notified appellant that appellee intended to take a default judgment. The default judgment was entered against appellant on January 23, 1992, according to the record. Appearances of counsel for appellant were entered on the record subsequent to the taking of the default judgment.

On January 24, 1992, appellant filed a petition to open the default judgment. The trial court granted the petition to open the default judgment on February 28, 1992 because the court assumed that the petition was uncontested and the record did not reflect otherwise. On March 10, 1992, appellee advised the court that, indeed, appellant’s petition was contested. The trial court promptly vacated its prior order granting appellant’s petition to open the default judgment. After considering appellee’s opposition papers and the initial papers filed in appellant’s petition to open judgment, the court denied appellant’s petition. This timely appeal followed.

When reviewing a trial court’s disposition of a petition to open a default judgment, the appellate court must examine the entire record for any abuse of discretion, reversing only where the trial court’s findings are inconsistent with the clear equities of the case. Provident Credit Corp. v. Young, 300 Pa.Super. 117, 446 A.2d 257 (1982) (en bane). Moreover, this Court must determine whether there are equitable considerations which require that a defendant, against whom a default judgment has been entered, receive an opportunity to have the case decided on the merits. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Provident Credit Corp. v. Young, supra. Where the trial court’s analysis was premised upon record evidence, where its findings of fact were deductions from other facts, a pure result of reasoning, and where the trial court made no credibility determinations, this Court may draw its own inferences and arrive at its own conclusions. Romeo v. Looks, 369 Pa.Super. 608, 624, 535 A.2d 1101, 1109 (1987) (en banc), appeal denied, 518 Pa. 641, 542 A.2d 1370 (1988), quoting American Express Co. v. Burgis, 328 Pa.Super. 167, 172, 476 A.2d 944, 947 (1987). Finally, where the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion. Provident Credit Corp. v. Young, supra at 124, 446 A.2d at 261.

Generally, a default judgment may be opened when the movant promptly files a petition to open, provides a meritorious defense, and offers a legitimate excuse for the delay that caused the default. Alba v. Urology Associates of Kingston, 409 Pa.Super. 406, 598 A.2d 57 (1991); Fink v. General Accident Insurance Company 406 Pa.Super. 294, 594 A.2d 345 (1991).

Without question, in many cases where we have found that one of the three requirements for opening a judgment was not met we have stopped without considering the arguments made with regard to the other two. [Citations omitted.] It is difficult, however, to reconcile this approach with the many other cases that emphasize the equitable nature of the decision whether to grant a petition to open, and the importance of balancing the prejudice to the sides.... The question is, Can a court make an “equitable determination” of what is “reasonable under the circumstances” without considering all of the circumstances of the particular case? We think not ... [WJhere some showing has been made with regard to each part of the test, a court should not blinder itself and examine each part as though it were a water-tight compartment, to be evaluated in isolation from other aspects of the case. Instead, the court should consider each part in the light of all of the circumstances and equities of the case. Only in that way can a chancellor act as a court of conscience.

Miller Block Co. v. U.S. Nat. Bank, 389 Pa.Super. 461, 469-70, 567 A.2d 695, 699-70 (1989), appeal denied, 525 Pa. 658, 582 A.2d 324 (1990), quoting Provident Credit Corp. v. Young, supra at 130-31, 446 A.2d at 263-64 (emphasis added).

The trial court found that appellant had timely filed his petition to open and had set forth a meritorious defense. Trial Court Opinion at 3. According to the record, the default was taken on January 23, 1992. Appellant filed his petition to open the default judgment on January 24, 1992. Thus, appellant’s petition was prompt. Moreover, appellant avers that the bus, in making a turn, struck his vehicle which was at a complete stop. If proved at trial, this defense would justify relief from liability. Thus, appellant alleges a meritorious defense for the purpose of deciding whether to open the default judgment.

The issue here is whether the delay in processing the paperwork occasioned by appellant’s insurance carrier, Nationwide, constitutes a “reasonable justification for delay” in order to open the default judgment, entered six weeks after the complaint was served. To explain the delay, appellant emphasizes that he delivered the complaint to his insurance agency on December 5, 1991, within one day of receipt of service. The agency thereafter transmitted the paperwork to Nationwide who received it on or about December 16, 1991. Following investigation, Nationwide inadvertently proceeded to assign the case to two different attorneys, causing considerable confusion to the attorneys assigned to defend appellant. Thus, the twenty days, and more, for filing an answer were consumed in transmitting the paperwork, investigating the claim and assigning the case. Also, appellant suggests that the transmittal delays were due, in part, to the year-end holidays. Appellant concludes that these circumstances constitute a legitimate explanation to justify opening the default, particularly where the appellant acted promptly upon receiving the complaint. We agree.

Conclusory statements that amount to mere allegations of negligence or mistake, absent more, will not suffice to justify a failure to appear or answer a complaint so as to warrant granting relief from a default judgment. Cross v. 50th Ward Comm. Ambulance Co., 365 Pa.Super. 74, 528 A.2d 1369 (1987); Conti v. Shaprio, Eisenstat, etc., 293 Pa.Super. 301, 439 A.2d 122 (1981); Barron v. William Penn Realty Company, 239 Pa.Super. 215, 361 A.2d 805 (1976). Whether an excuse is legitimate is not easily answered and depends upon the specific circumstances of the case. Silverman v. Polis, 230 Pa.Super. 366, 326 A.2d 452 (1975) (en banc).

In Balk v. Ford Motor Company, 446 Pa. 137, 285 A.2d 128 (1971), our Supreme Court held that an insurance company’s mishandling of a customer’s court papers constituted sufficient legal justification for an insured’s relief from default. Just because an insurance carrier’s representative was inadvertently responsible for the delay does not remove the equities from our consideration. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971). In Shainline v. Alberti Builders, Inc., supra at 138-39, 403 A.2d at 508, this Court agreed that an appellant seeking to open a default judgment should not be penalized automatically for the mishandling of papers by the insurance carrier or attorney. In Schutte v. Valley Bargain Center, 248 Pa.Super. 532, 375 A.2d 368 (1977) and, again, in LaLumera v. Nazareth Hosp., 310 Pa.Super. 401, 456 A.2d 996 (1983), we accepted delays caused by the defaulting party’s insurance carriers, particularly where the litigant took steps which this Court held were reasonably calculated to result in the protection of the insured’s interests.

Generally speaking, a default attributable to a defendant’s justifiable belief that his legal interests are being protected by his insurance company is excusable. Bethlehem Apparatus Company, Inc. v. H.N. Crowder Company, Inc., 242 Pa.Super. 451, 364 A.2d 358 (1976). However, if the insured fails to inquire of the insurer as to the status of the case after events have occurred which should have reasonably alerted the insured to a possible problem, the insured is precluded from asserting a justifiable belief that its interests were being protected. Id., see Baskerville v. Philadelphia Newspapers, Inc., 278 Pa.Super. 59, 419 A.2d 1355 (1980).

Autologic Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 176-77, 481 A.2d 1362, 1363 (1984). The Autologic court refused to accept as reasonable the excuse of justifiable reliance where the insured, Cristinzio Movers, was a sophisticated, business insured who had an employee designated for handling and monitoring damage claims. Apparently, the employee was aware that the company’s insurer had declined payment on a damage claim made two years earlier. Autologic Inc. then filed a complaint against Cristinzio Movers. The employee in charge of monitoring the damage claims failed to forward both the complaint and the notice of default to either her superiors or the insurance company. Cristinzio Movers attempted to characterize the employee’s failure as a clerical mistake. This Court rejected the excuse because the insured had empowered its employee to make this decision which was a conscious decision to do nothing. Given the real question regarding insurance coverage and the employee’s conscious failure to diligently pursue her employer’s interests, the court held that the insured was not excused and refused to open the default judgment.

The circumstances in the instant case differ remarkably from those in Autologic Inc. Primarily, the insured herein is not a sophisticated insured with systems in place for monitoring claims lodged against the insured as part of the insured’s routine business set-up. Appellant, on the contrary, is a lay-person, entrusting his claim to his broker and carrier. There was nothing to indicate to the appellant that coverage was in doubt. Moreover, the notice of intent to enter a default judgment was sent only to the appellant after appellee’s counsel knew of Nationwide’s intent to defend the claim. Thus, appellant should not be held strictly responsible for failing to seek reassurance from his carrier.

Excusable negligence must establish an oversight rather than a deliberate decision not to defend. DiNenno v. Great Atlantic and Pacific Tea Co., Inc., supra at 502, 369 A.2d at 740 (citations omitted). The facts of the instant case reveal that while appellant’s insurance agency and insurance carrier may not have moved appellant’s claim through the proper channels in the most expeditious manner, the delay was not based on a deliberate decision not to defend the claim or to prejudice appellee’s attempt to establish her claim. Therefore, we cannot fault appellant for his insurer’s delays in processing the claim, particularly where there is no prejudice to appellee. Appellant, on the other hand, is seriously prejudiced by the trial court’s disposition which burdens appellant with liability for an accident in which appellant arguably was not negligent. Additionally, the verdict in a subsequent damages action might exceed coverage available under the insurance policy. Appellant, moreover, cannot raise his defense in a separate proceeding and is denied thereby the opportunity to have the case resolved on the merits. Accordingly, a weighing of the prejudices to each party, as mandated by Provident Credit Corp. v. Young, supra, dictates the opening of .the default judgment in the instant case.

In DiNardo v. Central Penn Air Services, Inc., 358 Pa.Super. 75, 516 A.2d 1187 (1986), this Court reversed a trial court’s decision to open a default judgment entered against an insured who, as in Autologic Inc., failed to seek reassurance from its insurance carrier. The circumstances in DiNardo are inapposite to the instant case as well. First, the insured in DiNardo was also a sophisticated, corporate insured, a trucking company. Second, the insured received a copy of a letter sent by appellee’s counsel to the insurer urging the insurer to respond to the complaint. The DiNardo court stated that this notice should have alerted the insured that the insurance company was unaware of the complaint. Third, the court in DiNardo was concerned with the insured’s delay of eighty-eight (88) days in filing a petition to open the default, which is not the issue in the instant case. In fact, a thorough search of the case law reveals that in cases where this Court refused to accept the excuse of justifiable reliance, (1) the insured was a sophisticated insured with some procedure in place for monitoring claims- and (2) the delays, in all cases, were considerably longer than in the present case.

The purpose of the rules in authorizing the entry of default judgments is to prevent a dilatory defendant from impeding the plaintiff in establishing his claim. The rules are not primarily intended to provide the plaintiff with a means of gaining a judgment without the difficulties which arise from litigation----

Tronzo v. Equitable Gas Co., 269 Pa.Super. 392, 395-96, 410 A.2d 313, 315 (1979), quoting Moyer v. Americana Mobile Homes, Inc., 244 Pa.Super. 441, 445, 368 A.2d 802, 804 (1976). Accord, Fink v. General Accident Insurance Co., supra. Moreover, default judgments are not favored at law or in equity, Kennedy v. Black, 492 Pa. 397, 424 A.2d 1250 (1981), and a standard of liberality, not strictness, should be applied in deciding a petition to open a default judgment, Medunic v. Lederer, 533 F.2d 891, 893 (3rd Cir.1976), because equitable principles favor allowing parties to defend causes on the merits, Commercial Banking Corp. v. Miller, 90 B.R. 762 (Bkrtcy.E.D.Pa.1988). In emphasizing the liberality and fairness standard, our Supreme Court has stated:

The trial of a lawsuit is not a sporting event where the substantive legal issues which precipitated the action are subordinate to the “rules of the game.” A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question. A rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, ... is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure.

Byard F. Brogan, Inc. v. Holmes Elec. Protect. Co., 501 Pa. 234, 240, 460 A.2d 1093, 1096 (1983). The ethical considerations accompanying the practice of law require at least a modicum of “good faith, mutual respect and courtesy normally expected in the legal community.” Jung v. St. Paul’s Parish, 522 Pa. 167, 173, 560 A.2d 1356, 1359 (1989). Without the rudimentary amount of courtesy or accession to reasonable requests, the legal profession is demeaned and its procedures reduced to a “vulgar scramble.” Silverman v. Polis, supra at 371, 326 A.2d at 454-55.

Instantly, appellee’s counsel failed to demonstrate the professional courtesy expected of the legal profession. On several occasions, appellant’s counsel made modest requests of appellee’s counsel. While under no strict legal obligation to do so, the courtesy of a return phone call or a fax request appeared to be more than appellee’s counsel was prepared to consider. Zeal, while admirable, must be tempered by decency. Counsel’s resistance to cooperate is but another equitable consideration compelling the opening of the default judgment.

Based on the foregoing analysis, we hold that the overall equities in this case warrant opening the default judgment. Appellant made some showing with regard to each prong of the applicable three-part test. Moreover, the delays were caused by those other than appellant. Additionally, appellee’s counsel did not act in good faith, with the requisite professional respect and courtesy. The trial court erred, therefore, by not weighing the equities in this case in light of all the circumstances or considering the relative prejudice to each party. Thus, we reverse the trial court’s order denying appellant’s petition to open the default judgment and remand for trial on the merits. Jurisdiction relinquished.

OLSZEWSKI, J., files a dissenting opinion.

OLSZEWSKI, Judge,

dissenting:

Given our standard of review in an appeal from a petition to open default judgment, I am compelled to dissent from the majority opinion. As this Court stated in Fink v. General Accident Insurance Co., 406 Pa.Super. 294, 594 A.2d 345 (1991), the trial court’s decision to deny a petition to open default judgment will not be reversed absent an abuse of discretion. The trial court found that Pietropaolo, as required, promptly filed his petition to open and that he offered a meritorious defense to the underlying claim. Id. The lower court, however, refused to open the judgment because it found that Pietropaolo did not provide a reasonable explanation for failing to respond to the complaint. It held that the insurance company’s six-week delay in transmitting the complaint to their counsel was inexcusable, especially since appellant took the complaint to the agency the day after he received it. Trial court opinion at pp. 3-4. I cannot hold that such a decision was an abuse of discretion.

      . Counsel who received the second assignment is current counsel.

      . See DiNenno v. Great Atlantic & Pacific Tea Company, 245 Pa.Super. 498, 369 A.2d 738 (1976) (en banc) (petition to open, filed fifteen days after entry of a default, was promptly filed).

      . See Shainline v. Alberti Builders, Inc., 266 Pa.Super. 129, 403 A.2d 577 (1979) (petitioner need only allege, not prove, meritorious defense at this point in the proceedings).

      . See generally Fox v. Volkswagon of America, Inc., 328 Pa.Super. 338, 476 A.2d 1360 (1984), affirmed, 507 Pa. 429, 490 A.2d 438 (1985) (failure of bank to inquire about defense after ten month delay was not justifiable reliance); King v. Evans, 281 Pa.Super. 219, 421 A.2d 1228 (1980) (borough solicitor’s assumption, without confirmation that borough secretary had notified the insurance carrier regarding wrongful death and survivor actions brought against the borough, failed to excuse fourteen-month inaction with respect to the complaint); Baskerville v. Philadelphia Newspapers, Inc., 278 Pa.Super. 59, 419 A.2d 1355 (1980) (truck fleet owner could not assert justifiable belief that its interests were being represented by insurer after being advised by appellee’s attorney that insurer had not answered complaint, default judgment was entered eight months after filing of complaint and insured waited another four months before filing its petition to open default judgment); Bethlehem Apparatus Company, Inc. v. H.N. Crowder, Jr., Co., 242 Pa.Super. 451, 364 A.2d 358 (1976) (en banc) (business insured who, knowing that there was some question concerning insurer’s responsibility to defend, left complaint with attorney, did not forward complaint to carrier and provided, in petition to open default, no more than mere assertion of insurer’s failure to answer, did not justifiably believe its interests were being protected, where default judgment entered three months after service of complaint and petition to open default judgment was filed nine months later); MacClain v. Penn Fruit, Inc., 241 Pa.Super. 303, 361 A.2d 403 (1976) (en banc) (claims of oversight in failing to forward suit papers to defendant’s corporate headquarters, absent a more factual basis to support a plea for relief, did not excuse delay in answering complaint); Fishman v. Noble, Inc., 236 Pa.Super. 611, 346 A.2d 359 (1975) (en banc) (failure to enter appearance due to unusual error by insurer with no explanation as to why there was confusion about who was insured on the policy, other than the information was at the company’s home office, did not excuse delay).

      . Model Code of Professional Responsibility, Canon 7, Ethical Consideration 7-38 provides:
      EC 7-38 A lawyer should be courteous to opposing counsel and should accede to reasonable requests regarding court proceedings, settings, continuances, waiver of procedural formalities, and similar matters which do not prejudice the rights of his client. He should follow local customs of courtesy or practice, unless he gives timely notice to opposing counsel of his intention not to do so. A lawyer should be punctual in fulfilling all professional commitments,
      (footnotes omitted).