author: WIEAND, Judge: OLSZEWSKI, Judge,

text:
    545 A.2d 926
    Leon G. NILES, d/b/a L.G. Niles Lumber Company, Appellee, v. FALL CREEK HUNTING CLUB, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 17, 1988.
    Filed July 15, 1988.

      Raymond E. Ginn, Jr., Wellsboro, for appellant.
    Robert F. Cox, Sr., Wellsboro, for appellee.
    Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.
   WIEAND, Judge:

In this boundary dispute, Fall Creek Hunting Club, Inc. (Fall Creek) appeals from the judgment entered following a jury verdict in favor of Leon G. Niles, d/b/a L.G. Niles Lumber Co. (Niles). At issue are 113.4 acres of undeveloped timberland to which Niles claims ownership by virtue of adverse possession or by application of the doctrine of consentable lines. On appeal, Fall Creek argues that it should have been awarded judgment n.o.v. because the evidence was insufficient to permit a finding that Niles had acquired title either by adverse possession or by virtue of a line consented to by the parties. In the alternative, Fall Creek contends that it is entitled to a new trial because of errors committed by the trial court. Our review of the record compels the conclusion that the trial court correctly denied Fall Creek’s motion for judgment n.o.v., but that a new trial is required.

By deed dated November 25, 1940, Fall Creek acquired title to a tract of approximately 1,560 acres of unimproved woodland in Liberty Township, Tioga County. The deed description defined the western boundary of the tract as “the line dividing the Townships of Liberty and Morris.” To the west of this tract is land owned by Niles. This land had been acquired by Niles from Hammermill Paper Co. by deed dated November 21, 1958. Hammermill Paper, in turn, had purchased the land from Woodhouse Hunting Club (Woodhouse), which had acquired title from C.C. Slaght Lumber Corporation (Slaght).

In 1952, when Woodhouse purchased the land from Slaght, uncertainty already existed as to the precise location of the line which divided the properties. Therefore, Woodhouse employed Thomas 0. Bietsch to perform a survey. By letter dated April 1, 1952, Warren Spencer, Esquire, an attorney representing Woodhouse, invited the president of Fall Creek to assist Bietsch in determining the physical location of the western boundary of Fall Creek’s land. The survey was performed on April 4, 1952. At least two members of Fall Creek and several members of Wood-house were present when the survey was made. Bietsch located on the ground a line which he believed to be the Morris/Liberty Township line, and a line consistent therewith was blazed and painted in yellow. Bietsch was dead at the time of trial and could not testify. Over objection, Spencer was permitted to testify, and to introduce letters to show, that Bietsch had told him that representatives of Fall Creek had agreed to this line. Such an agreement was disputed by Fall Creek. Its representatives who had been present at the time of the survey testified that the surveyor had misplaced the line and that they had called the error to the surveyor’s attention. In any event, the surveyor prepared a map for Woodhouse, and a deed was drafted in accordance therewith to complete Woodhouse’s purchase from Slaght. With respect to the location of the common boundary line, the deed recited that it was “verbally agreeable to the Fall Creek Hunting Club, the adjacent owners.” Woodhouse placed a single strand of wire along the survey line and posted “no trespassing” signs.

For the next thirty-two years, posted signs were maintained along this line. During that period the blaze marks on the trees were observable and the strand of wire, although broken in places from time to time, could generally be found. There was also evidence of selective timber cutting up to the 1952 survey line by Niles. In addition, there was evidence that Fall Creek had posted its land on its side of the 1952 survey line, had detoured an existing logging road to avoid crossing the line, and had leased hunting rights up to the line.

In 1984, Fall Creek hired its own surveyor to make a survey of its land and to determine the precise location of the Morris/Liberty Township line. This survey concluded that the township line was seven hundred (700) feet west of the 1952 survey line fixed by Bietsch. The relocation of the line caused an increase in acreage to Fall Creek of 113.4 acres and a like decrease in the amount of land owned by Niles. Following completion of this new survey, Fall Creek crossed over the old line, blazed a new line, and posted “no trespassing” signs along the new line.

Niles commenced an action in ejectment and trespass against Fall Creek. He contended that he had acquired title by adverse possession, by a consentable line established after dispute and compromise, or by a consentable line which had come into existence by recognition and acquiescence. The jury which heard the case returned a general verdict in favor of Niles but declined to award damages. Post-trial motions were denied, and judgment was entered on the verdict. Fall Creek appealed.

The entry of judgment notwithstanding a jury verdict to the contrary is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable * inferences that arise from the evidence in a light most favorable to the verdict winner. See Handfinger v. Philadelphia Gas Works, 439 Pa. 130, 266 A.2d 769 (1970); Northwest Savings Ass’n. v. Distler, 354 Pa.Super. 187, 511 A.2d 824 (1986); Tonkovic v. State Farm Mut. Automobile Ins. Co., 337 Pa.Super. 123, 486 A.2d 512 (1984). The court can enter judgment n.o.v. only if “no two reasonable persons could fail to agree that the verdict is improper.” Northwest Savings Ass’n. v. Distler, supra 354 Pa.Super. at 191, 511 A.2d at 825. See also Olson v. Dietz, 347 Pa.Super. 1, 500 A.2d 125 (1985).

Neal by Neal v. Lu, 365 Pa.Super. 464, 478, 530 A.2d 103, 110 (1987). In deciding a motion for judgment n.o.v. we consider all evidence actually received, whether the trial court’s rulings thereon were correct or incorrect. See: Jones v. Treegoob, 433 Pa. 225, 229, 249 A.2d 352, 354 (1969); Rosche v. McCoy, 397 Pa. 615, 619, 156 A.2d 307, 309 (1959); Dorn v. Stanhope Steel, Inc., 368 Pa.Super. 557, 565-566, 534 A.2d 798, 802 (1987); Northwest Savings Assoc. v. Distler, 354 Pa.Super. 187, 191, 511 A.2d 824, 825-826 (1986); Reichman v. Wallach, 306 Pa.Super. 177, 185, 452 A.2d 501, 505 (1982). The erroneous receipt of evidence is corrected by granting a new trial.

One who asserts title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Conneaut Lake Park Inc. v. Klingensmith, 362 Pa. 592, 594, 66 A.2d 828, 829 (1949); Flickinger v. Huston, 291 Pa.Super. 4, 7, 435 A.2d 190, 192 (1981). A sporadic use of land by one who does not have title to it will not operate to give him title, no matter how often repeated. Hoover v. Jackson, 362 Pa.Super. 532, 537, 524 A.2d 1367, 1369 (1987); Bigham v. Wenschhof, 295 Pa.Super. 146, 150, 441 A.2d 391, 393 (1982). Thus, occasional timbering and/or hunting, being necessarily sporadic, are themselves inadequate to establish title by adverse possession. See: Norwich v. Beaver, 326 Pa.Super. 456, 460-461, 474 A.2d 329, 331 (1984).

“To maintain an actual possession, to woodland as such, it is necessary that the person entering take actual possession by residence or cultivation, of a part of the tract to which the woodland belongs. Hole v. Rittenhouse, 37 Pa. 116 [(I860)]; Olewine v. Messmore, 128 Pa. 470 [18 A. 495 (1889) ]. Actual possession may be taken by enclosing and cultivating, without residence or by residence without cultivation, under a bona fide claim where there is a designation of the boundaries with the ordinary use of the woodland. This possession accomplishes an ouster, and is entirely different from the occasional or temporary use of the land without an intention to permanently cultivate or reside thereon or use it in some other manner consistent with the condition of the property.”

Hoover v. Jackson, supra 362 Pa.Super. at 539, 524 A.2d at 1370, quoting Darrah v. Kadison, 55 Pa.Super. 335, 343 (1913). See also: Parks v. Pennsylvania R.R. Co., 301 Pa. 475, 481-482,152 A. 682, 684 (1930); Bigham v. Wenschhof, supra, 295 Pa.Super. at 149-150, 441 A.2d at 393; Flickinger v. Huston, supra 291 Pa.Super. at 8, 435 A.2d at 192.

“Where an enclosure is relied on to establish adverse possession, it must be of a substantial character, so as to be a protection against outside interference in adapting the premises to some suitable use. An inclosure of the land by ... stretching around a twenty-five hundred acre tract one barbed wire nailed to trees and saplings and a few posts at about four feet from the ground, and under the wire two strands of telephone wire, is not sufficient”: 2 C.J., section 15, page 62.

Hoover v. Jackson, supra 362 Pa.Super. at 540, 524 A.2d at 1371, quoting Robin v. Brown, 308 Pa. 123,127,162 A. 161, 162 (1932). See also: Flickinger v. Huston, supra 291 Pa.Super. at 10, 435 A.2d at 193; 2 C.J.S. Adverse Possession § 36 at 694-696 (1972); 3 Am.Jur.2d Adverse Possession § 31 (1986).

The evidence in the instant case was that the disputed land had been used only sporadically by Niles and his predecessors in title for the purposes of hunting and removing timber. The land had been partially enclosed by a single strand of wire which had broken and fallen to the ground in several places. This evidence was insufficient to show an inclosure of a substantial character. There was neither the establishment of a residence nor cultivation within designated boundaries. Therefore, the evidence failed to satisfy the essential requisites for proving that Niles had acquired title to the woodland by adverse possession.

The doctrine of consentable lines has emerged as a separate and distinct theory from that of traditional adverse possession. There are actually two ways in which one may prove a consentable line: by dispute and compromise, or by recognition and acquiescence. Both methods of proving a consentable line were reviewed in Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 360 A.2d 209 (1976). First, the court explained, one may prove a consentable line by evidence of:

(1) a dispute with regard to the location of a common boundary line, (2) the establishment of a line in compromise of the dispute, and (3) “the consent of both parties to that line and the giving up of their respective claims which are inconsistent therewith.” Newton v. Smith, 40 Pa.Super. 615, 616 (1909). “[W]here such a line has been clearly established and the parties on each side take possession or surrender possession already held up to that line, it becomes binding, under the application of the doctrine of estoppel.” Id.
Although the parties may be bound if, merely having doubt as to the correct boundary location, they enter into a compromise, a “consentable line” is not created “if the parties, from misapprehension, adjust their fences, and exercise acts of ownership, in conformity with a line which turns out not to be the true boundary; or permission be ignorantly given to place a fence on the land of the party____” Perkins v. Gay, 3 S. & R. 327, 331 (1817).
The establishment of this kind of boundary is always a matter of compromise, in which each party supposes he gives up for the sake of peace something to which in strict justice he is entitled____ Id. at 332.

Id. 241 Pa.Super. at 162-163, 360 A.2d at 215.

Proof of a consentable line by recognition and acquiescence was explained by the same Court as follows:

Our courts have long recognized, however, that a boundary line may be proved by a long-standing fence without proof of a dispute and its settlement by a compromise. In Dimura v. Williams, [446 Pa. 316, 286 A.2d 370 (1972) ], the court noted:
It cannot be disputed that occupation up to a fence on each side by a party or two parties for more than twenty-one years, each party claiming the land on his side as his own, gives to each an incontestable right up to the fence, and equally whether the fence is precisely on the right line or not. Id. 446 Pa. at 319, 286 A.2d at 371.
In such a situation the parties need not have specifically consented to the location of the line. Dimura v. Williams, supra [446 Pa.] at 319, 286 A.2d at 371. It must nevertheless appear that for the requisite twenty-one years a line was recognized and acquiesced in as a boundary by adjoining landowners. See Miles v. Pennsylvania Coal Co., 245 Pa. 94, 91 A. 211 (1914); Reiter v. McJunkin, 173 Pa. 82, 33 A. 1012 (1896).

Id. 241 Pa.Super. at 163, 360 A.2d at 215-216. See also: Norwich v. Beaver, supra; Burns v. Mitchell, 252 Pa.Super. 257, 381 A.2d 487 (1977).

In the instant case, there was evidence that in 1952 Fall Creek had been informed that Woodhouse was uncertain where the common boundary existed on the ground, that a survey was being made, and that Fall Creek’s opinion and participation were welcome. The evidence showed further that representatives of Woodhouse and representatives of Fall Creek were present when the survey was made. An attorney who then represented Woodhouse testified that he had gone to the site and had been told by the surveyor that the parties had agreed where the line should be located. Following this survey, a line had been blazed and painted, and the surveyor had prepared a description of the property for his client which described the common boundary as the township line, “the location of which is verbally agreeable to the adjacent owners.” This description was incorporated into the deed from Slaght to Woodhouse. Woodhouse then caused a wire to be strung along the boundary line, and both parties posted signs in conformance with the 1952 survey line. In the years that followed, according to Niles’s evidence, both parties observed this line as a boundary in the use of their respective tracts.

This evidence was sufficient, if believed by the jury, to support a finding that the 1952 survey line had become a binding, consentable line, whether by compromise of an uncertain boundary line or by recognition and acquiescence. A jury could have found that the 1952 survey line had been laid in settlement of or to avoid a dispute regarding the doubtful location of the boundary, and that both parties had agreed to abide by the survey line and give up any claims of title that were inconsistent with the line. The jury could also have found that the line had been recognized and acquiesced in by both parties for a period well over twenty-one years, during which Fall Creek, on the one hand, and Woodhouse and its successors, on the other, had maintained the line and had used their respective lands as though the 1952 survey line had been the true property line. In order to prove the line by recognition and acquiescence it was not essential to show an express agreement to recognize the line. Dimura v. Williams, supra 446 Pa. at 319, 286 A.2d at 371. Under either consentable line theory, moreover, it was not essential that the fence line be substantial. Id. 446 Pa. at 318, 286 A.2d at 371; Inn Le'Daerda v. Davis, supra 241 Pa.Super. at 163 n. 7, 360 A.2d at 215 n. 7.

Where a case is submitted to a jury on several theories which have been pleaded in the alternative, the verdict can be upheld if the evidence is sufficient to prove a valid cause under any of those theories. See: 5A C.J.S. Appeal & Error § 1647, n. 56. Because the evidence in this case was sufficient to sustain Niles's title by virtue of a consentable line, the trial court properly denied Fall Creek’s motion for judgment n.o.v.

The record, however, does not permit a reviewing court to determine on which theory the jury found that Niles had acquired title up to the 1952 survey line. Therefore, we must examine the trial court’s jury instructions with respect to all possible theories on which the jury was permitted to find in favor of Niles. “If the jury charge [was] fundamentally erroneous or ha[d] a tendency to mislead or confuse ... a new trial will be required so long as that portion of the charge in question might have been responsible for the verdict.” Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 382, 492 A.2d 1382, 1386 (1985) (emphasis added), citing Jones v. Montefiore Hospital, 494 Pa. 410, 431 A.2d 920 (1981) and Vaughn v. Philadelphia Transportation Co., 417 Pa. 464, 209 A.2d 279 (1965).

With respect to Niles’s claim of title by adverse possession, the trial court not only refused to take this issue from the jury, but it also refused several instructions requested by Fall Creek to the effect that adverse possession of woodland cannot be established by a mere showing of occasional or sporadic use of the land such as for hunting or partial timbering. These requested instructions contained correct statements of the law. See: Hoover v. Jackson, supra; Darrah v. Kadison, supra. See also: Parks v. Pennsylvania R.R. Co., supra 301 Pa. at 481, 152 A. at 684; Bigham v. Wenschoff, supra; Flickinger v. Huston, supra 291 Pa.Super. at 8, 435 A.2d at 192. The trial court also refused a requested instruction by Fall Creek that to prove adverse possession of woodland by enclosure the claimant (Niles) was required to show that the land had been substantially fenced, and another instruction that a fence “which has the appearance of being neglected and abandoned and which is not even complete, falls short of supporting an aggressive assertion of ownership of the land within its lines.” These, too, were correct statements of the law. See: Robin v. Brown, supra 308 Pa. at 130, 162 A. at 163. Instead, the trial court instructed the jury, in pertinent part, as follows:

The plaintiff also claims that the boundary line is located where he contends it is by' the law of adverse possession____ An adverse possessor must intend to hold the land for himself. And that contention, it must be manifested by his acts. A particular act or series of acts. It is necessary to demonstrate an intention to claim ownership. And such a purpose is sufficiently shown where one goes upon the land and uses it openly and notoriously as owners of similar lands are used in their property. To the exclusion of the true owners or other owners. A possesion [sic] which is of such character as owners of similar land, in this vicinity, usually maintain regarding their property is sufficient upon which to find title.

This instruction was inadequate. In the first place, the evidence of adverse possession was insufficient, as we have already observed, to warrant submission to the jury. Therefore, the jury should not have been told it could find that Niles had acquired title in this manner. Moreover, the instructions given to the jury failed to convey the difficulty inherent in establishing title by adverse possession to unimproved woodland. To establish title by adverse possession of woodland it is essential that the adverse possessor take actual possession by enclosing and cultivating without residence or by residence without cultivation within designated boundaries. Hoover v. Jackson, supra 362 Pa.Super. at 539, 524 A.2d at 1370. The trial court’s instructions also failed to instruct the jury, as was specifically requested, that a “sporadic use of land, by one without title to it, will not operate to give him title, no matter how often repeated.” Parks v. Pennsylvania R.R. Co., supra; Hoover v. Jackson, supra 362 Pa.Super. at 537, 524 A.2d at 1369; Inn Le’Daerda, Inc. v. Davis, supra 241 Pa.Super. at 159, 360 A.2d at 213.

Thus, the instructions requested by Fall Creek were not adequately covered by the trial court’s jury instructions. Fall Creek was entitled to have the jury instructed as it requested, for the points which it submitted were correct statements of the law. When the trial court refused the requested instructions and otherwise failed to include the subject matter thereof in its charge to the jury, the trial court erred. The trial court not only submitted to the jury a claim of adverse possession which had been insufficiently proved, but it inadequately instructed the jury on the evidence necessary to support such a claim. This requires a new trial. It cannot be determined from this record that the jury’s verdict was not based upon the trial court’s inadequate and misleading instructions regarding the acquisition of title by adverse possession.

The trial court also erred when it allowed Warren Spencer to testify, over objection, that he had been told by the surveyor that the representatives of Fall Creek had agreed to the 1952 survey line. This testimony was hearsay and should have been excluded.

Hearsay is a statement made by an out-of-court declarant which is offered to prove the truth of the matter asserted. McCormick on Evidence § 246 (3d ed. 1984). Although there are exceptions, the general rule in this Commonwealth is that hearsay evidence is inadmissible. One of the exceptions to the hearsay exclusionary rule pertains to declarations by a surveyor. This exception holds that declarations of a deceased surveyor regarding a line surveyed are admissible in boundary disputes. Laidley v. Rowe, 275 Pa. 389, 394, 119 A. 474, 477 (1923); Collins v. Clough, 222 Pa. 472, 484, 71 A. 1077, 1080 (1909); Kramer v. Goodlander (No. 2), 98 Pa. 366, 369 (1881); 14 P.L.E. Evidence § 145. See also: Hallman v. Turns, 334 Pa.Super. 184, 194, 482 A.2d 1284, 1290 (1984). Authenticated field notes of a deceased surveyor are also admissible as declarations contemporaneous with the work done on the ground. See: Collins v. Clough, supra 22 Pa. at 487, 71 A. at 1081. However, the deceased surveyor exception applies only to observations and notes made by the surveyor which relate to his surveying duties. As the Supreme Court has observed, the declarant must have been on the land at the time the declaration was made and engaged at the time in pointing out the boundaries of the land. Id. 222 Pa. at 484, 71 A. at 1080. “[T]he rule as to the admission of such evidence is confined strictly to the particular thing it was the duty of the person to do: and unlike a statement against interest, does not extend to collateral matters, however closely connected with that being.” Id. 222 Pa. at 485, 71 A. at 1081 (quoting Best on Evidence, sec. 501).

Under this exception, Bietsch’s statements and notes about observations that were a part of his survey were admissible. His statement that representatives of Fall Creek had consented to and agreed with his survey, however, pertained to a matter which was not strictly a part of his duties as surveyor. His statement to Spencer, the witness, was not admissible under any other exception to the hearsay rule. It was neither an excited utterance nor a present sense impression. The evidence does not show that it was a contemporaneous verbalization of present observations occurring in the presence of the declarant, and there was no evidence regarding the time lapse between the surveyor’s observations and his statement to Spencer. Thus, it cannot be said that the statement was sufficiently contemporaneous with the perception to preclude reflection. For similar reasons, the letter dated April 2,1952, which the surveyor had written to Spencer, and a handwritten metes and bounds survey description which he had prepared for his client, both of which stated that the parties had consented to the line which he had surveyed, were inadmissible. They should not have been received as evidence of Fall Creek’s consent to the line which the surveyor established.

This evidence, improperly received, was not harmless. If believed, it substantiated appellee’s claim of a consentable line. It tended to establish the agreement which was necessary to a showing of title by dispute and compromise. Moreover, although proof of an express agreement is not essential to proof of a consentable line by acquiescence and recognition, this evidence helped to bolster that claim as well. Thus, it cannot be said with certainty that the hearsay evidence did not contribute to the jury’s verdict.

Finally, Fall Creek argues that the trial court erred when it rejected evidence to show the location of the Liberty/Morris Township line. The trial court refused to allow this evidence on grounds that it was irrelevant to the issues being tried. Under the unique facts of this case, we conclude that the trial court’s evidentiary ruling was not an abuse of discretion. Niles could succeed in this action by showing title by adverse possession or by consentable line. Under either theory he could prevail regardless of where the township line was physically located on the land. Although Fall Creek would have been entitled to show the location of the line designated by the description in its deed in order to defend against an assertion by Niles that Niles held record title to the land, no such claim had been made. A fair reading of the complaint and the proof adduced at trial disclose that Niles did not contend that he had record title to the disputed land; he asserted only that he had acquired title by adverse possession or a consentable line. Therefore, the trial court did not err when it excluded evidence of the “true” location of the Morris/Liberty Township line on grounds that its actual location was irrelevant. See, e.g.: Dimura v. Williams, supra (one can prove a consentable line “whether the fence is precisely on the right line or not”); Inn Le’Daerda, Inc. v. Davis, supra (same). For the same reason, the court did not err when it refused Fall Creek’s points for charge regarding the location of the township line.

This is a difficult case. Whether Fall Creek’s record title to the disputed land must yield to Niles because of a boundary fixed by consentable line is a close question. Because the jury’s verdict may have been influenced by misleading instructions on adverse possession and erroneous evidentiary rulings, a new trial is required.

Reversed and remanded for a new trial. Jurisdiction is not retained.

OLSZEWSKI, J., files a dissenting statement.

OLSZEWSKI, Judge,

dissenting:

I respectfully dissent. Based upon the trial record, I would grant judgment n.o.v. in favor of the appellant on both theories advanced by the appellee.

      . Slaght had acquired title to the tract by a deed which contained a general description and not a description by metes and bounds.

      . Fall Creek was not a party to this deed.

      . Specifically, the trial court rejected appellant’s request that the jury be told:
      Where woodland is concerned, adverse possession is not established by the mere showing that there was an occasional user by plaintiff of the land for hunting or foraging for wood or partial timbering.
      A sporadic use of land by one without title to it, will not operate to give him a title, no matter how often repeated. Nothing short of an actual possession, permanently continued will take away from the owner the possession which the law attaches to the legal title: temporary acts on the land, without an intention to seat and occupy it for residence and cultivation or other permanent use consistent with the nature of the property, are not the actual possession required.

        The mere fact of parties going in now and then and cutting some timber or cutting some ties, or some logs, does not constitute adverse possession.
      Sporadic cutting of firewood and timber will not satisfy a claim of adverse possession.

      . Appellant has also taken issue with the trial court's refusal to adopt additional points for charge which appellant requested. Rejected by the trial court were instructions that:
      It is a serious matter indeed to take away another's property and that is why the law imposes such strict requirements of proof on one who claims by adverse possession.
      "Tacking" to possession of predecessor's intitle [sic] is permitted for adverse possession purposes only where the possessions are continuous; but each predecessor must have claimed title to the property in dispute and, in transferring to its successor, must have purported to include it in the transfer.

        In order to establish a consentable line, the plaintiff has the burden of proving that the defendant expressly agreed to the establishment of a boundary line in compromise of a dispute as to its location.
      The trial court’s refusal of these points was not error. The strictness of proof required was adequately conveyed by the language used by the court. “Tacking” was not an issue, because appellee itself had possessed the disputed land for more than twenty-one years. Finally, appellant’s requested instruction on the need for an express agreement was misleading because one may prove a consentable line by recognition and acquiescence without an express agreement.
      Similarly, although the court labelled the twenty-one year time requirement for adverse possession as a “twenty-one-year statute of limitations,” the charge as a whole made it clear that the burden was upon Niles to prove that all of the requisite elements of adverse possession continued for a period of twenty-one years in order for him to prevail.

      . No objection was made in post-trial motions to the admission of a deed from Woodhouse to Niles, which similarly contained a notation that Fall Creek had agreed to the location of the boundary in dispute. See Plaintiffs Exhibit No. 9. Since any objection has, therefore, been waived, we do not find it necessary to decide whether the deed recital would have been admissible under the "ancient documents” exception to the hearsay rule. See generally: Brock v. Atlantic Refining Co., 273 Pa. 76, 80, 116 A. 552, 553 (1922); Dougherty v. Welshans, 233 Pa. 121, 133 (1911). See also: Hostetter v. Commonwealth, 367 Pa. 603, 606, 80 A.2d 719, 720 (1951). Even if the deed recital were admissible, however, we would be hesitant to hold that this fact alone rendered harmless the erroneous admission of the remaining oral and written hearsay evidence. Whether or not there was an agreement to recognize the 1952 survey line as the boundary for the two tracts was critical to the issue of title in this case, and the improper hearsay evidence, because it added credibility to Niles’s claim, cannot be deemed harmless.


source: Caselaw Access Project

author: WIEAND, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    545 A.2d 935
    Constance D. COOPER, Appellant, v. Carrie BURNS, Appellee. Constance D. COOPER, Appellee, v. Carrie BURNS, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1988.
    Filed July 11, 1988.
    Reargument Denied Aug. 22, 1988.

      John P. Lydon, Pittsburgh, for appellant (at 1144) and appellee (at 1145).
    Thomas J. Madigan, Pittsburgh, for appellee (at 1144) and appellant (at 1145).
    Before BROSKY, WIEAND and DEL SOLE, JJ.
   WIEAND, Judge:

On February 16, 1984, at or about 1:00 p.m., Constance Cooper was injured in an automobile accident which occurred at the intersection of the Sixteenth Street Bridge and Progress Street in the City of Pittsburgh. Cooper had been travelling in a westerly direction on Progress Street and was approximately halfway through the intersection when her vehicle was struck by another vehicle, operated by Carrie Burns, which had entered the intersection from the Sixteenth Street Bridge. To recover for injuries sustained, Cooper brought an action against Burns. The trial of this action was held before a jury which found that Burns’s causal negligence was seventy-five percent and that Cooper’s causal negligence was twenty-five percent. The jury determined that Cooper had sustained damages in the amount of $275,000. Thereafter, the trial court molded the jury’s findings into a verdict in Cooper’s favor in the amount of $206,250. Burns filed post-trial motions for judgment n.o.v. and/or new trial, and Cooper petitioned for the assessment of delay damages. Both Burns’s post-trial motions and Cooper’s request for delay damages were denied by the trial court. Now, in separate appeals, Burns challenges the trial court’s denial of her post-trial motions and Cooper challenges the trial court’s refusal to impose delay damages.

Burns’s first argument is that the trial court erred when it denied her motion for judgment n.o.v. She contends that the evidence established that plaintiff Cooper had failed to look to her left before entering the intersection. This, it is argued, was negligence on the plaintiff’s part which exceeded any negligence on the part of the defendant.

In considering the sufficiency of the evidence to sustain the verdict, we view the evidence in the light most favorable to the verdict winner, granting that party the benefit of all reasonable inferences, and determine only whether the evidence introduced at trial was sufficient to sustain the verdict. Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 24, 521 A.2d 451, 454 (1987). See also: Laniecki v. Polish Army Veterans Assoc., 331 Pa.Super. 413, 417, 480 A.2d 1101, 1103 (1984).

The evidence in the instant case, viewed in the light most favorable to the verdict winner, was that the plaintiff had stopped for a red traffic light on Progress Street before entering the intersection with the Sixteenth Street Bridge. When the light turned green, plaintiff started into the intersection, and, after negotiating the first half of the intersection, was struck by defendant’s vehicle. An eyewitness testified that the defendant had proceeded from the Sixteenth Street Bridge into the intersection despite the fact that the controlling traffic light had turned red. This witness estimated that the defendant had been travelling at a speed of 45 miles per hour and said that the speed limit had been 25 miles per hour.

Appellant’s argument relies on the plaintiff’s admission that she was not sure that she had looked to her left before entering the intersection. This concession was an inadequate basis on which to enter judgment n.o.v. Although the jury determined that the plaintiff had been negligent, it found that the defendant’s causal negligence had been greater. There was competent evidence to support such a finding. Therefore, the trial court properly denied appellant’s motion for judgment n.o.v.

Appellant’s remaining issues pertain to alleged trial errors which, it is argued, require that a new trial be granted. In reviewing the denial of a motion for a new trial we decide whether there was an abuse of discretion or error of law committed by the trial court which might have affected the outcome of the case. See: Mohn v. Hahnemann Medical College and Hospital, 357 Pa.Super. 173, 174, 515 A.2d 920, 921 (1986). See also: Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

Appellant argues that the trial court erred by refusing to charge the jury as requested in the following points for charge:

4. A motorist who has the green light must observe the condition at the intersection at the time he enters it to be reasonably assured that his journey will be safe. Smith v. United News Company [413 Pa. 243] 196 A.2d 302, 305 (Pa.1964).
5. A mere cursory glance, not calculated to bring home knowledge of the traffic conditions in the intersection, does not satisfy the requirement of looking. Stevens v. Allcutt [320 Pa. 585] 184 A. 85 (Pa.1936); Bascelli v. Bucci [244 Pa.Super. 347] 368 A.2d 754, 759 (Pa.Super. 1976).
8. The Defendant claims that the Plaintiff was contributorily negligent and the Defendant has the burden of proving the existence of such negligence. You must, therefore, determine whether the Plaintiff was negligent, in that as an ordinarily prudent person, under all circumstances then present, she failed to exercise reasonable care for [her] own protection. If you find that Plaintiff was negligent, you must then determine whether Plaintiffs conduct was a substantial factor in bringing about her injury.
9. If you find that Plaintiffs causal negligence was greater than the causal negligence of the Defendant, then the Plaintiff is barred from recovery.
13. If you determine that the Plaintiffs incapacity is or probably will be partial rather than total for any or all of its duration, Defendant is entitled to have deducted the amounts which Plaintiff earns or reasonably could earn during the period of partial disability. 2 Harper & James, The Law of Torts, Section 25.8.
14. The Plaintiff has a duty to mitigate her damages. That is, if the Plaintiff is capable of working, she cannot sit back and incur lost wages. If you find that the Plaintiff was capable of working after the accident, you may not award her lost wages for the period during which she was capable of working. If you determine that the Plaintiff has been partially disabled since the accident, you may only award her lost wages equivalent to the difference between what she was earning prior to the accident and what she could earn after the accident.

In reviewing a trial court’s instructions to the jury, it is well settled that we must view the court’s charge in its entirety to determine whether any prejudicial error has been committed. Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576, 475 A.2d 1314, 1316 (1984). “A trial court is not required to accept the precise language of points for charge submitted by counsel so long as the issues are defined accurately and the applicable law is correctly reviewed.” Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987). See also: Geyer v. Steinbronn, 351 Pa.Super. 536, 554, 506 A.2d 901, 911 (1986); Fish v. Gosnell, 316 Pa.Super. 565, 580, 463 A.2d 1042, 1050 (1983).

Our examination of the trial court’s jury instructions discloses that the jury was adequately and accurately instructed as to plaintiff’s duty of care, applicable principles of contributory and comparative negligence, and plaintiff’s duty to mitigate damages. Appellant was not prejudiced by the trial court’s divergence from the precise language which appellant had requested. There is in the jury instructions no error requiring the grant of a new trial.

At trial, the plaintiff-appellee introduced the testimony of Kathleen Flenner, the director of Occupational Resources Specialists, to show that plaintiff had attempted to find alternative employment after the accident. During this testimony, Flenner stated that the plaintiff had been cooperative and motivated in seeking employment. Appellant contends that the trial court erred in allowing such testimony because it was irrelevant and prejudicial character evidence. We do not agree. The testimony of Kathleen Flenner was offered to show that plaintiff had attempted to mitigate damages. Appellant, throughout the trial, sought to show that the plaintiff had failed to mitigate her damages. Flenner’s testimony was relevant to the mitigation of damages issue, and the trial court did not err by allowing the testimony.

Dr. David Foss testified as plaintiffs witness via videotape deposition. His deposition had been taken on February 14, 1987, shortly before trial. On the day prior thereto, appellant’s counsel learned that plaintiff-appellee would require additional surgery. A supplemental pre-trial statement including this new information was filed on February 14, 1987, immediately prior to the taking of Dr. Foss’ deposition. Appellant requested a continuance of the trial, alleging that additional time was needed to prepare for the cross-examination of Dr. Foss and to refute the new evidence. The motion for a continuance was denied. Thereafter, Dr. Foss gave deposition testimony which included references to plaintiff's need for additional surgery. Appellant argues that Dr. Foss’ testimony should not have been allowed at trial because it was given in violation of a local rule of discovery and because the trial court had abused its discretion by denying the defense motion for continuance. Appellant contends that Allegheny County Rule 212 limits an expert’s testimony to matters which have been identified in a pre-trial statement and that the information concerning plaintiff’s need for additional surgery had not been included in plaintiff’s initial pre-trial statement. Therefore, it is argued, Dr. Foss should not have been allowed to testify regarding the same. We disagree.

Preclusion of a witness’ testimony is a drastic sanction; it should not be applied unless the facts of a case make it absolutely necessary. See: Gill v. McGraw Electric Co., 264 Pa.Super. 368, 381, 399 A.2d 1095, 1102 (1979). Noncompliance with the literal requirements of a local discovery rule does not alone require the exclusion of testimony. Neal v. Lu, 365 Pa.Super. 464, 473, 530 A.2d 103, 108 (1987). Rather, in order to determine whether the failure to adhere to a local rule of discovery requires the exclusion of expert testimony we must determine: (1) whether appellant suffered any prejudice or surprise; (2) whether such prejudice or surprise could have been cured; (3) whether the expert testimony disrupted the trial or adversely affected other cases in the court; and (4) whether the plaintiff exhibited bad faith or willfulness in failing to comply with the rule. See: Neal v. Lu, supra, 365 Pa.Super. at 474-475, 530 A.2d at 109. See also: Sindler v. Goldman, 309 Pa.Super. 7, 15 n. 8, 454 A.2d 1054, 1058 n. 8 (1982). Cf. Gill v. McGraw Electric Co., supra, 264 Pa.Super. at 382, 399 A.2d at 1102 (same factors applied to determine whether failure to comply with pre-trial discovery order justified exclusion of expert testimony).

Upon reviewing the record in the instant case, we find that Dr. Foss’ testimony regarding plaintiff’s need for additional surgery caused no prejudice to appellant. First, the new information related by Dr. Foss did not change his diagnosis of plaintiff’s injuries. Dr. Foss had diagnosed the plaintiff’s injury as herniated discs at the C4-C5 level. The only new information supplied in the supplemental pretrial statement was that plaintiff would require additional surgery because of her back injury. Secondly, defendant’s expert witness, Dr. Roy Temeles, was aware of Dr. Foss’ diagnosis and had examined the plaintiff twice. Dr. Temeles acknowledged that the plaintiff had a disc problem, but he concluded that the problem was the result of a degenerative disease which had pre-dated the accident. This was also appellant’s position at trial, which was supported by the videotaped deposition testimony of Dr. Temeles. Inasmuch as appellant’s defense was that the plaintiff’s disc problem had been unrelated to the accident, it cannot be said that the plaintiff-appellee’s need for additional surgery impeded the presentation of appellant’s defense. That the jury found Dr. Foss’ diagnosis to be more credible than that of Dr. Temeles does not entitle appellant to a new trial. The record reveals that Dr. Foss, who was also plaintiff’s treating physician, examined her on February 12, 1987 and at this time determined that additional surgery was necessary. In that plaintiff’s initial pre-trial statement was filed on December 9, 1986, this information could not possibly have been included therein. Moreover, defense counsel was promptly notified of Dr. Foss’ conclusion that more surgery was required. Under these circumstances, we conclude that the plaintiff acted in good faith and did not willfully violate the local rule of discovery. The trial court properly allowed Dr. Foss’ testimony.

Appellant also is not entitled to a new trial on the ground that the trial court abused its discretion by denying the motion for a trial continuance. The decision to grant or deny a continuance lies in the sound discretion of the trial court and will not be disturbed absent an abuse of discretion or manifest error. Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 19, 488 A.2d 284, 287 (1985), aff'd, 512 Pa. 567, 517 A.2d 1270 (1986). See also: Phoenix Mutual Life Insurance Co. v. Radcliffe on the Delaware, Inc., 439 Pa. 159, 165, 266 A.2d 698, 701 (1970); Ragnar Benson, Inc. v. Bethel Mart Assoc., 308 Pa.Super. 405, 417, 454 A.2d 599, 604 (1982). In the instant case, appellant requested that the trial be continued until the next available trial date. The trial court, in addressing appellant’s post-trial motions, said that the granting of appellant’s motion would have resulted in an eight month delay in the trial. The trial court was also of the opinion that appellant had not been prejudiced by Dr. Foss’ testimony. The court concluded, therefore, that the denial of the motion for a continuance had not been an abuse of discretion. We agree with this conclusion. The denial of appellant’s motion for a continuance does not require that a new trial be granted.

Appellant’s final challenge to the testimony of Dr. Foss involves two alleged instances of hearsay testimony. Specifically, appellant asserts that during Dr. Foss’ testimony, he referred to the opinions and conclusions of two other physicians who had treated the plaintiff, but who did not testify at trial. Plaintiff-appellee contends, however, that the testimony to which appellant objected came within an exception to the general rule which permits an expert witness to rely on reports of others. This exception “permits] ‘medical witnesses to express opinion testimony on medical matters based, in part, upon reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession.’ ” Packel & Poulin, Pennsylvania Evidence, Ch. VII, § 703 at 517-518 (1987), quoting Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971). See also: Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978); Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986); Commonwealth v. Gilliard, 300 Pa.Super. 469, 446 A.2d 951 (1982); Commonwealth v. Haddle, 271 Pa.Super. 418, 413 A.2d 735 (1979); Commonwealth v. Wilson, 245 Pa.Super. 415, 369 A.2d 471 (1976); Jumper v. Jumper, 240 Pa.Super. 99, 362 A.2d 411 (1976); Christy v. Darr, 78 Pa.Cmwlth. 354, 467 A.2d 1362 (1983). But see: Spotts v. Reidell, 345 Pa.Super. 37, 497 A.2d 630 (1985).

Dr. Foss said that he had relied upon a diagnosis by Dr. Yudofsky, a psychiatrist, to the effect that the plaintiff was suffering from a major depression. In essence, Foss testified that he had asked Dr. Yudofsky for a consultation and had used Yudofsky’s diagnosis in treating the plaintiff. He said that because of Dr. Yudofsky’s diagnosis, he had postponed plaintiff’s initial surgery until the depression had been treated. This was within the Thomas exception and does not require the grant of a new trial.

More troubling is the testimony of Dr. Foss which was the subject of appellant’s second hearsay objection. This testimony pertained to a report which had been made by Dr. Jose Amayo as follows:

Q. Did you receive copies of the reports from Dr. Amayo, copies which both counsel have here, as part of his and your treatment of her?
A. Yes.
Q. Were those reports from him something else that you also relied on in your diagnosis and treatment of Constance Cooper?
A. Having essentially a second opinion is always helpful, yes.
Q. In the report — did you receive a report on March 27, 1986 from Dr. Amayo?
A. Yes.
Q. Would you tell us what if anything Dr. Amayo indicated in his diagnosis concerning your diagnosis of the herniated disk at C4-C5.
MR. EYAN: Again I would like to place an objection on the record as to the doctor reading any statements from Dr. Amayo’s reports, especially Dr. Amayo’s opinions. I feel it constitutes hearsay and is not admissible.
Q. Doctor, would you indicate what Dr. Amayo had to say about your diagnosis of the disk herniation at C4-C5.
A. Yes. It was his diagnosis that there was a central disk herniation of C4-5 level proven by a CAT scan.
Q. That’s the same diagnosis you had reached.
A. It is.

This was improper. It was offered as an extrajudicial opinion by a physician who was not subjected to cross-examination. In the first place, it was opinion testimony. Secondly, it was hearsay evidence. It did not fall within any exception to the hearsay exclusion. Clearly, it was not admissible without the presence of Dr. Amayo, who would then have been available for cross-examination.

At trial, Dr. Foss was the plaintiff’s only expert witness. He testified that the plaintiff had suffered herniated discs in her back as a result of the accident. The defendant, similarly, presented one expert witness, Dr. Temeles, who testified that the plaintiff had a pre-existing, degenerative disease involving the discs and that it was not the result of trauma. Thus, there were the conflicting testimonies of two physicians for the jury to evaluate. By stating that Dr. Amayo had confirmed his diagnosis, Dr. Foss was permitted to corroborate his own medical opinion by improper hearsay. Dr. Amayo was not subjected to cross-examination concerning his diagnosis, and the jury was not able to assess his credibility or his qualifications.

Because of this improper and prejudicial hearsay testimony, we are constrained to grant appellant a new trial. Because the liability issues have been fairly tried, however, the new trial will be limited to the issue of damages. See: Messer v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963) (where the only trial errors deal with the issue of damages, retrial should be limited to that issue); Ecksel v. Orlenes Construction Co., 360 Pa.Super. 119, 519 A.2d 1021 (1987) (new trial may be awarded solely on issue of damages if issue of liability has been fairly established and question of damages is readily separable); McIntyre v. Clark, 314 Pa.Super. 552, 461 A.2d 295 (1983) (same).

Appellant contends also that the verdict was excessive. Because we have determined that a new trial is necessary on the issue of damages, we express no opinion regarding the amount of the jury’s verdict. Similarly, a review of the trial court’s refusal to award delay damages would be premature. The trial court will have the opportunity to reconsider this issue following a retrial of the damage issue.

The judgment of the trial court is reversed and the case is remanded for a new trial limited to the issue of plaintiff’s damages. Jurisdiction is not retained.

DEL SOLE, J., files a concurring and dissenting opinion.

DEL SOLE, Judge,

concurring and dissenting:

I join the Opinion of my colleagues in the majority in all respects, save one. I would not vacate the judgment and remand the case for retrial on damages.

While the reference by the plaintiff’s treating physician, Dr. Voss, to the report of Dr. Amayo may have been error, it is at most harmless.

The plaintiff’s treating physician testified at length that in his opinion the plaintiff suffered a herniated disc at C4-C5 resulting from the accident. He further testified that the plaintiff had degenerative disc disease at C5-C6.

This diagnosis of herniated disc at C4-C5 was based upon the physician’s treatment of the patient, two CAT-scans and a myelogram with reports from appropriate neuroradiologists that were admitted into evidence without objection. In addition, plaintiff underwent a diskectomy and fusion at C4-C5 to repair the herniated disc.

The defendant’s physician, Dr. Temeles, testified that in his opinion the CAT-scans and myelogram did not show a herniated disc.

The slight reference to the fact that Dr. Amayo stated that there was disc herniation at C4-C5 level proven by CAT-scan was not such an error as would warrant a new trial.

In addition, the defendant’s physician clearly put the matter at issue when he testified as follows:

Q. Now, Doctor, I note in your records that you reviewed the nuclear radiologist’s reading of the CT scan in May of 19 — or, I am sorry, of March 1985. And I believe in your records it is even indicated as Item 4D. I take it that you disagree with the radiologist’s reading of the CT scan to indicate she has a herniated disc?
A. Yes. The word “herniated” disc is what I object to. Q. And also, Doctor, I take it you disagree with the opinions of the two nuclear radiologists on the cervical myelogram of June 9, 1986, that that myelogram shows a herniated disc?
A. The word “herniated” disc I disagree with.
Q. And in addition, Doctor, you disagree with Dr. Amayo’s records from the Harmarville Rehabilitation Institute, particularly his report of March 1986, wherein he indicates she has a herniated disc at C4-C5. I believe it is report No. 5 in your papers before you.
A. Yes. I think if I am not mistaken — and give me a chance to look at that report — I think Dr. Amayo points out that this is what was reported, not his interpretation, that he is purely mimicking the report since he found no clinical picture. He says diagnosis, herniated disc at C4-5 level by CT scan, but he did not label her as having a herniated disc in her cervical spine.
Q. So in his report under the notation diagnosis he indicates herniated disc at C4-C5 by CT scan?
A. Yes. He didn’t even read it, he was mimicking the report. He found no herniated disc in this lady in any of his reports that he rendered — and there was quite a few.
Q. The report though that we are discussing now is his report and under diagnosis that’s what it has?
A. It has that.
Q. And, of course, you would disagree with that insofar as it was the very same reading as professed by the radiologists that you have already described, Doctor, in your report of June 2, 1986, you don’t note any defects in there at C4-C5 at all. As a matter of fact, you don’t even mention that disc space anywhere in that report; is that correct?
A. I simply state there is no evidence of a herniated disc to be seen in the scan performed.

First, I believe that the reference to Dr. Amayo was insignificant. Also, I believe that it was addressed and answered by the defendant through the defendant’s medical expert at the time of trial.

When weighing the slight reference to Dr. Amayo against the diagnostic procedures of CAT scans and myelogram coupled with a surgical procedure to repair the herniated disc, I would find that any reference to Dr. Amayo in the plaintiff’s case was harmless error and would affirm the judgment.


author: CAVANAUGH, Judge:

text:
    545 A.2d 942
    COMMONWEALTH of Pennsylvania v. Edmund BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1988.
    Filed July 25, 1988.

      John D. Fognano, Philadelphia, for appellant.
    Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.
    Before CAVANAUGH, WIEAND and DEL SOLE, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County, sentencing the appellant to an eighteen (18) month to five (5) year term of incarceration following his conviction on the charge of possession with intent to deliver or manufacture a controlled substance and a six (6) to twelve (12) month term of incarceration on the charge of delivery of, possession with intent to deliver, or manufacture with the intent to deliver, drug paraphernalia. We affirm.

The facts as developed at trial are as follows. On May 22, 1986, State Trooper James D. Caccimelio observed the appellant operating a blue Chevrolet sedan on Interstate 95. The officer testified that he clocked the appellant travelling at a rate of 79 mph in the 55 mph zone; accordingly, he stopped the vehicle and asked for the appellant’s driver’s license and registration. When the appellant was unable to provide the foregoing documentation, Officer Caccimelio requested additional identification, whereupon the appellant removed a clear plastic bag containing a smaller bag filled with a white substances from the right breast pocket of his shirt. The officer testified that he “suspected it was a controlled substance of some sort.” (N.T. 12/1/86 at p. 14.) He thereafter demanded to see the bag which the appellant had by that time returned to his pocket. In response to the trooper’s request, the appellant produced a white opaque envelope from the same pocket but, not satisfied, Officer Caccimelio reached into the pocket himself and retrieved the clear plastic bag he had previously observed. He described the bag in the following manner at trial:

It was a small plastic bag containing a white substance inside. Now within the — within that small plastic bag was a smaller plastic bag probably one by two inches. And it had a substance inside of that.

(N.T. 12/1/86 at p. 16.)

Suspecting that the substance was methamphetamine, Officer Caccimelio directed the appellant to step out of the vehicle. He then led him to the rear of said vehicle, applied handcuffs and reached into the appellant’s right front pants pocket; this search revealed an additional plastic bag containing a white substance. Miranda warnings were subsequently administered, whereupon Officer Caccimelio placed the appellant in his vehicle and proceeded to conduct a search of the Chevrolet sedan. He testified that during the course of this search, he detected a “chemical-type smell.” After obtaining the keys from the appellant, the trooper opened the trunk of the Chevrolet sedan and found the following items:

... [T]wo metal pots. Within one pot was a plastic bag in — inside that was shredded aluminum foil. On the other side there was a a hot plate, a funnel, a brown bottle with the word methylamine on it, and a plastic bag containing suspected controlled substance.

(N.T. 12/1/86 at p. 33.)

The contents of the trunk were admitted into evidence at the jury trial, which commenced on December 2, 1986. Verdicts of guilty as to all charges were rendered on December 3, 1986. Subsequent to the denial of Post-Trial motions, sentence was imposed on June 22, 1987. This is an appeal from the judgment of sentence.

The following issues have been raised on appeal:
Was it in error for the trial court to permit the introduction into evidence of items seized from the defendant’s locked trunk as a result of a warrantless search, absent the police officer’s independent probable cause to believe that contraband or the fruits of a crime can be found within the car’s locked trunk?
Was it error for the trial court to permit the introduction into evidence of items seized from defendant’s locked trunk as being incident to a lawful arrest?

After a thorough review of the record and controlling authority, we affirm.

In United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), the Supreme Court of the United States held that, “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 825, 102 S.Ct. at 2173, 72 L.Ed.2d at 594. The Ross court was presented with a situation in which police had probable cause to conduct a warrantless search of a vehicle. A search of the trunk compartment yielded a closed paper bag which, when opened, revealed glassine bags containing a substance later determined to be heroin. An additional search disclosed a zippered red leather pouch containing currency. The driver of the vehicle was charged with violating 21 U.S.C. § 841(a) [21 USCS § 841(a) ], and the contents of both the paper bag and the pouch were submitted into evidence at trial. The defendant was convicted, but the conviction was reversed on appeal on the grounds that the warrantless search of the containers found within the trunk was invalid. The Supreme Court reversed the lower court’s ruling and held that the search was permissible. Justice Stevens, writing for the majority, examined a line of cases dealing with the automobile exception to the warrant requirement, and concluded that:

The scope of a warrantless search of an automobile thus is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.

456 U.S. at 824, 102 S.Ct. at 2172, 72 L.Ed.2d at 593 (emphasis added).

It follows from the foregoing that if a police officer possesses probable cause to search a motor vehicle, he may then conduct a search of the trunk compartment without seeking to obtain probable cause relative to the particularized area.

Appellant herein challenges the applicability of Ross to the case sub judice. He cites Commonwealth v. Long, 489 Pa. 369, 414 A.2d 113 (1980) in support of the proposition that, before a warrantless search is authorized, there must be “independent probable cause to believe that contraband or the fruits of a crime can be found within the car’s locked trunk.” (Appellant’s Brief at 9). In Long, a case decided two years before Ross, our Supreme Court held that, “In reviewing the validity of a warrantless automobile search it must be recognized that the open areas of the car differ from the locked trunk, where the owner of the vehicle manifests a greater expectation of privacy.” Id., 489 Pa. at 375, 414 A.2d at 116. The decision in Long was based in part upon a suggestion in United States v. Chadwick, 433 U.S. 1, 97 S.Ct/2476, 53 L.Ed.2d 538 (1976) that the diminished expectation of privacy normally attributable to motor vehicles does not apply to those areas “in which the owner has justifiably manifested a greater expectation of privacy.” Id. 489 Pa. at 376, 414 A.2d at 116. However, both Long and Chadwick predate the ruling in Ross. Moreover, the

Ross decision has frequently been cited by the Courts of this Commonwealth. In Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985), our Supreme Court recognized that Ross authorized the warrantless search of unopened containers discovered within vehicles. Id., 508 Pa. at 9, 493 A.2d at 1349-1350. More recently, in Commonwealth v. Neary, 355 Pa.Super. 92, 512 A.2d 1226 (1986), allocatur denied 515 Pa. 576, 527 A.2d 537 (1987) this court held that the search and seizure of a gym bag’s contents was proper under the Ross rationale. Id. 355 Pa.Super. at 100, 512 A.2d at 1230. In Commonwealth v. Fleck, 324 Pa.Super. 227, 471 A.2d 547 (1984), we noted that, “A lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and it is not limited by the possibility that separate acts of entry or opening may be required to complete the search.” Id., 324 Pa.Superior Ct. at 234, 471 A.2d at 550 (quoting Ross, supra, 456 U.S. at 820-821, 102 S.Ct. at 2170, 72 L.Ed.2d at 591). In light of the above, we are persuaded that the Ross rationale represents the standard which must be applied when reviewing searches and seizures of this nature in Pennsylvania. We specifically recognize that we cannot and ought not overrule Long. However, it is obvious to us that, while not explicitly reversing the ruling, our Supreme Court has recognized the validity of the Ross rationale and has implicitly adopted it for application in this Commonwealth.

Applying this standard to the facts at bar, it is clear that Officer Caccimelio had probable cause to search the trunk of the appellant’s vehicle. The appellant was initially stopped for a traffic violation. The validity of this stop is not at issue. Officer Caccimelio first noticed what he suspected to be methamphetamine when the appellant removed a bag containing a white substance from his shirt pocket. He also detected a “chemical-type smell” during the course of his conversation with the appellant. This eventally led to a search of the Chevrolet sedan, during the course of which the trooper detected a “chemical-type smell.” Based upon these observations, Officer Caccimelio searched the trunk of the appellant’s car and uncovered the paraphernalia described above.

Under examination by the prosecution, the trooper testified with respect to his background and his competency in identifying narcotics. He had been a police officer in State College prior to joining the State Police force, a position which required twelve weeks of training at the State Police Academy in Hershey. Part of this training included some classroom experience with narcotics. As Officer Caccimelio stated, “There were several days devoted to training with controlled substances.” (N.T. 12/1/86 at p. 30). During these sessions, the trooper was instructed in the identification of various controlled substances. He testified that methamphetamine could be a powdery or chunky substance and that, while it could be white, it did not necessarily have to be that color. He further testified that, while he did not believe that he was shown any examples of the substance, he was instructed in the packaging thereof and advised that both cocaine and heroin had a similar appearance. Officer Caccimelio noted that he had been a State College police officer for approximately two and one-half years. He indicated that during his tenure as a patrolman, he had come in contact with controlled substances “[n]umerous times.” (N.T. 12/1/86 at p. 41). The trooper also stated that, according to his recollection, he had made one arrest involving methamphetamine and it was indicated that this occurred during his tenure with the State College Police Force. He testified that that narcotic had been “in a small packet in white, powdery form.” (N.T. 12/1/86 at p. 43). Officer Caccimelio further noted that as a state trooper, he had been involved (in a non-arresting capacity) in another case dealing with methamphetamine. (N.T. 12/1/86 at p. 44). In light of the foregoing, it is evident that Officer Caccimelio had sufficient expertise in this area, and his suspicion that drugs were located on the premises constituted valid probable cause for the search.

In Commonwealth v. Kendrick, 340 Pa.Super. 563, 490 A.2d 923 (1985) this court noted the following with respect to the issue of probable cause:

Probable cause is a flexible commonsense standard. As the Supreme Court in Texas v. Brown, supra commented 103 S.Ct. at 1543:
It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,” Carroll v. United States, 267 U.S. 132,162, 45 S.Ct. 280, 288 [69 L.Ed 543] (1925), that certain items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A “practical, nontechnical” probability that incriminating evidence is involved is all that is required. Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311 [93 L.Ed 1879] (1949).
Moreover, when examining a particular situation to determine if probable cause exists, a court must consider all factors and not concentrate on any individual element. Furthermore, it is important to focus on the circumstances as seen through the eyes of a trained officer and not to view the situation as an average citizen might. Finally, probable cause does not deal in certainties; rather, a court is faced with the factual and practical considerations of everyday life which affect how reasonable and prudent men act. See Commonwealth v. Trenge, 305 Pa.Super. 386, 451 A.2d 701, 705 (1982); Commonwealth v. Tolbert, 235 Pa.Super. 227, 230, 341 A.2d 198, 200 (1975).

Id., 340 Pa.Superior Ct. at 570-571, 490 A.2d at 927.

Accordingly, we hold that Officer Caccimelio was justified in believing that contraband was located in the appellant’s vehicle, and this belief constituted valid probable cause for the search of the trunk compartment under the Ross rationale.

The same result is required under Pennsylvania law. In Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727 (1972), cert. denied 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116, our Supreme Court discussed various automobile exceptions to the warrant requirement, and observed:

As we recently stated in Commonwealth v. Dussell, 439 Pa. 392, 266 A.2d 659 (1970), the stopping of an automobile or the arrest of the driver of a motor vehicle for an ordinary traffic offense does not without more, permit a warrantless search of the vehicle. To justify such a search, even though a movable vehicle is involved, an officer must have independent probable cause to believe that felony has been committed by the occupants of the vehicle, or that it has been used in the furtherance of the commission of a felony, or the officer must have a basis for believing that evidence of a crime is concealed within the vehicle, or that there are weapons therein which are accessible to the occupants. See Commonwealth v. Dussell, supra, and authorities cited therein.

Id., 447 Pa. at 104, 288 A.2d at 735 (quoting Commonwealth v. Lewis, 442 Pa. 98, 101, 275 A.2d 51, 52 (1971) (emphasis added). Officer Caccimelio clearly had a “basis for believing that evidence of a crime [was] concealed within the vehicle.” Id. Accordingly, the search of the trunk was proper.

Even if we were to conclude that the Ross rationale did not represent the standard of law in this Commonwealth, the search of appellant’s trunk would still pass constitutional muster. As noted in Shaffer, supra, if there is probable cause to believe that the occupants of the vehicle had committed a felony, a warrantless search is permissible. In Commonwealth v. Long, supra, the court held that this particular exception was inapplicable in the circumstances at bar, since the vehicle which had been searched contained more than one occupant and there was probable cause to believe that only one of those occupants had been involved in criminal activity. The court observed that, “The Commonwealth’s argument incorrectly presumes that if one occupant is engaged in a felonious act, here possession of contraband, then all occupants including the driver may also be viewed as participants in that felonious act.” Long, supra, 489 Pa. at 374, 414 A.2d at 115. In the case sub judice, the appellant was the only occupant of the vehicle in question, and Officer Caccimelio had probable cause to believe that he was in possession of a controlled substance. This being so, Long is distinguishable on its facts and does not control in this instance.

Appellant also contends that the lower court erred in permitting the contents of the locked trunk to be admitted into evidence under the search incident to arrest exception. This is an erroneous assumption. As the court clearly stated in an opinion filed on November 13, 1987, “Turning to the search of the trunk of Defendant’s vehicle, our review of the facts reveals that Trooper Caccimelio had probable cause to believe that this vehicle contained contraband. In light of this probable cause, the search of the trunk comes within the ‘automobile’ exception to the Fourth Amendment warrant requirement. (Lower Court Opinion at 7) (emphasis supplied). Accordingly, this claim is without merit.

For all of the foregoing reasons, we find no error in the court below.

Judgment of sentence affirmed.

DEL SOLE, J., concurs in the result.

      . The appellant was found guilty of Possession With Intent to Deliver or Manufacture a Controlled Substance (35 P.S. § 780-113(a)(30) and Delivery of. Possession with Intent to Deliver, or Manufacture With the Intent to Deliver, Drug Paraphernalia. (35 P.S. § 780-113(a)(33)). He was also convicted of Knowing or Intentional Possession of a Controlled Substance (35 P.S. § 780-113(a)(16), but the charges merged for sentencing purposes.

      . Officer Caccimelio testified that he had earlier detected the “chemical-type” odor while speaking with the appellant, noting that during the course of the search “and during the previous conversation, I had noticed an odor ..." (N.T. 12/1/86 at pp. 23-24).

      . The suppression hearing was conducted on December 1 and 2, 1986. Following its conclusion on December 2, trial commenced.

      . Initially, a three judge panel of the Court of Appeals held that the contents of the paper bag was admissible into evidence, but that the currency contained within the pouch was not. This ruling was modified by the court sitting en banc, which ordered the exclusion of both the heroin and the currency.

      . In Long, Justice Roberts authored the majority opinion in which Eagen, C.J. and O’Brien, Nix and Manderino, JJ. joined. Justice Flaherty filed a dissenting opinion in which Larsen and Kauffman, JJ. joined.

      . Quite recently, in Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988), our Supreme Court stated that "Certain exigencies may render the obtaining of a warrant not reasonably practicable under the circumstances of a given case, and, when that occurs, vehicle searches conducted without warrants have been deemed proper where probable cause was present.” (518 Pa. 149, 541 A.2d at 1383.) (citations omitted). A reading of the record in the instant case convinces us that the requisite exigencies existed. As discussed in Baker, "[T]he exigencies of the mobility of the vehicle and of there having been inadequate time and opportunity to obtain a warrant rendered the search proper.” (518 Pa. at 149, 541 A.2d at 1383) (citations omitted). In Baker, the police stopped a vehicle “approximately thirty minutes” after receiving information from a a reliable informant that the defendant/driver was in possession of a revolver. (518 Pa. at 149, 541 A.2d at 1383). In the case at bar, we are safe in assuming that the period between the initial observation of the car and the subsequent search was of even shorter duration. Moreover, while it might have been preferable for Officer Caccimelio to have immobilized the car and then proceed to obtain a warrant, “immobilization has been held to be an alternative, not a requirement.” (518 Pa. at 149, 541 A.2d at 1383) (citing Commonwealth v. Milyak, supra). Accordingly, the officer was justified in his actions. Finally, it is significant that in Baker, the court cited Ross, supra, but made no mention of its prior decision in Long, supra.


author: TAMILIA, Judge:

text:
    545 A.2d 947
    Peter Joseph JOHNSON, a Minor, by his Parents and Natural Guardians, Peter Joseph JOHNSON III and Jeanette Johnson, and Peter Joseph Johnson III and Jeannette Johnson, in their own Right, Appellants, v. Robert WALKER and Josephine Walker d/b/a Josephine’s Steak & Hoagie Shop and David Master, a Minor by his Parents and Natural Guardians, Robert Master and Katherine Master and Michael Franz.
    Superior Court of Pennsylvania.
    Argued June 30, 1988.
    Filed Aug. 8, 1988.

      Mary Ann Abella, Philadelphia, for appellants.
    D. Jackson Loughhead, Philadelphia, for appellees.
    Before TAMILIA, KELLY and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from the trial court Order granting summary judgment to all appellees/defendants. The facts are not in dispute. On June 26, 1980, at about 9:45 p.m., appellant Johnson and appellee Franz were engaged in a one-on-one game of stickball at the intersection of 65th and Theodore Streets in Philadelphia. After two innings of play, appellee Master asked Johnson if he could take a turn at bat, whereupon Johnson handed the broomstick/bat to Master and proceeded to walk over to a car parked approximately ten feet away from Master. A few minutes later, Johnson saw Master swing at the ball, hitting it in his direction on a foul tip. Before he could react, the ball struck Johnson in his right eye, ultimately causing him to lose sight in the eye.

Johnson and his parents initiated the instant cause of action against Franz, Master and his parents, and Robert and Josephine Walker d/b/a Josephine’s Steak and Hoagie Shop which is accessed by the sidewalk on which the boys were playing. Franz filed a motion for summary judgment and the other defendants joined in this motion. The trial court granted the motion and this appeal followed.

Appellants raise three issues for our review: 1) whether the trial court erred in relying on Bowser v. Hershey Baseball Association, 357 Pa.Super. 435, 516 A.2d 61 (1986); 2) whether the trial court erred in not allowing the question of minor appellant’s assumption of the risk go to the jury; and 3) whether the trial court viewed the evidence in a light most favorable to appellants.

The trial court relied on this Court’s holding in Bowser, supra, to find minor appellant had voluntarily assumed the risks inherent in playing the game of stickball. However, we stated in Bowser that even though the doctrine of voluntary assumption of the risk is applicable to situations such as ours, the doctrine of negligence with its basic elements is equally applicable. A party must show the following to sustain a cause of action founded upon negligence:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks.
2. A failure on his part to conform to the standard required.
3. A reasonably close causal connection between the conduct and the resulting injury____
4. Actual loss or damage resulting to the interests of another.

Prosser, Law of Torts, § 30 at 143 (4th ed. 1971). Casey v. Geiger, 346 Pa.Super. 279, 289-290, 499 A.2d 606, 612 (1985), quoting Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432, 434 (1980). Thus, unless there has been a breach of a duty by the actor, negligence cannot be the basis for a cause of action against the actor. Even though our Supreme Court has not made a unified decision on the status of the assumption of the risk doctrine in Pennsylvania , the Court in Carrender v. Fitterer, 503 Pa. 178,189 n. 6, 469 A.2d 120,125 n. 6 (1983) has stated, “[A] holding that a risk has been assumed is in many cases tantamount to a determination that, as a matter of law, the defendant owed the plaintiff no duty.” Therefore, unless the record reveals a duty owed by appellees to appellants, the foundation of a negligence claim is absent, thus, appellants have no basis for recovery. We find nothing on the record which evidences, even remotely, a cause of action against appellees for negligence. The deposition testimony reveals the boys were playing ball in a normal fashion, according to the rules as they knew them with no one acting in a dangerous or unreasonable manner and no horseplay was involved. Obviously, foul balls do occur and unfortunately this one hit appellant in the eye. As tragic as it may be, accidents happen everyday in which people get hurt and often no one is at fault. Appellants would have us find that in any situation where someone is hurt by the inadvertent and unintentional act of another, the actor should be liable. We refuse to hold to such an extreme result. If we were to allow appellant to go to trial on this case, we would effectively be prohibiting children from playing or associating with each other. Considering the frequency with which children , get hurt playing, what parent would allow their child out of the house? Not only do we find the boys playing ball were not negligent but we reject appellants’ contention in their complaint that the parents were guilty of negligent supervision.

If an injury inflicted by a child is the natural and probable result of the parents’ negligence, the parents have breached a duty owed to the injured child and his parents. See Condel v. Savo, 350 Pa. 350, 39 A.2d 51 (1944). Since the boys were playing in a normal, reasonable manner we fail to see how the parents were negligent. We cannot conceive of a situation where any parent could prevent their child from hitting a foul ball during a game of stickball. Even if appellees (Masters) were supervising every play made during the game, they could not possibly have foreseen or prevented minor appellant’s injury.

We have found no case in which a plaintiff was allowed to recover for injuries sustained in the normal course of recreational activities where the actor was not acting in a negligent, reckless or malicious manner. Apparently our courts have always recognized that accidents do happen regardless of how cautious one may be.

In light of the previous discussion, we find the trial court was correct in granting summary judgment to all appellees. “Summary judgment is proper where facts are undisputed and only one conclusion may reasonably be drawn from them” Askew by Askew v. Zeller, 361 Pa.Super. 35, 42, 521 A.2d 459, 463 (1987). We have no doubt there is only one reasonable conclusion from the facts. Although the question of negligence is usually one for the jury, where the facts leave no room for doubt, the judge may properly dispose of the issue without a jury. East Texas Motor Freight, Diamond v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984).

Order of summary judgment affirmed.

      . In Rutter v. Northeastern Beaver County School District, 496 Pa. 590, 596, 437 A.2d 1198, 1201 (1981), Justice Flaherty, joined by two justices, stated, “[E]xcept where specifically preserved by statute; or in cases of express assumption of the risk, or cases brought under 402A, (a strict liability theory), the doctrine of assumption of risk is abolished.”

      . Appellee Franz’s parents are not involved in this lawsuit as he was 18 years old at the time.

      . Without a finding of negligence on the part of the appellee boys, appellees Robert and Josephine Walker cannot be held liable. We make no determination as to the liability of the Walkers if the boys had been negligent.