author: POPOVICH, Judge:

text:
    450 A.2d 991
    Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE COMPANY and Scott Brothers, Division of Pennsylvania Truck Lines, Inc. Frank McDEVITT, Appellant, v. TERMINAL WAREHOUSE CO. v. SCOTT BROTHERS DIV. OF PENNSYLVANIA TRUCK LINES, INC.
    Superior Court of Pennsylvania.
    Argued Jan. 19, 1981.
    Filed June 25, 1982.
    Reargument Denied Oct. 12, 1982.
    Petition for Allowance of Appeal Denied Oct. 29, 1982.

      George J. O’Neill, Philadelphia, for appellant.
    J. Paul Erwin, Jr., Philadelphia, for appellees.
    Before HESTER, POPOVICH and DiSALLE, JJ.
   POPOVICH, Judge:

This case involves cross-appeals in a trespass action brought by the appellant-Frank McDevitt (McDevitt) for injuries he sustained on the premises of appellee-Terminal Warehouse Co. (Terminal) while in the course of his employment for Scott Brothers, a trucking firm. A jury returned a verdict in favor of McDevitt and against the appellee and Scott Brothers in the amount of $200,000.00. At post-trial, the court en banc granted appellee’s and Scott Brothers’ motion for a new trial, but denied their motion for judgment non obstante veredicto. An appeal was filed by the appellant from the order granting a new trial, while the appellee questions the denial of the judgment n.o.v. We affirm in part and reverse in part.

On appeal from the refusal of the trial court to enter judgment for the defendant-appellee non obstante veredicto, the sole duty of the appellate court is to decide whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner, the appellant here, the benefit of every favorable inference reasonably to be drawn from the evidence. Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). All unfavorable testimony and inferences must be rejected. Smith v. Kravitz, 173 Pa.Super. 11, 93 A.2d 889 (1953). As to reviewing on appeal the grant or refusal of a new trial, we will not reverse the lower court’s action “ ‘absent an abuse of discretion or error of law which controlled the outcome of the case.’ ” Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 521, 229 A.2d 861, 862 (1967); Gougher v. Hansler, 388 Pa. 160, 130 A.2d 150 (1957); Lambert v. Durallium Products Corp., 364 Pa. 284, 72 A.2d 66 (1950). In compliance with such standards, the following facts, as warranted by the evidence and established by the verdict, appear.

Terminal operated a warehouse complex in the City of Philadelphia, located on 2nd Street and Erie Avenue. A portion of that complex, namely a parking area, was subleased to Scott Brothers for their tractors and trailers. Interestingly enough, the lease agreement made no mention as to which party would be responsible for the maintenance of the premises. A review of the record indicates, however, it was the common and accepted practice that complaints lodged by Scott Brothers’ employees with their supervisors, regarding the condition of the parking facilities, would be forwarded to the personnel at Terminal, and they, in turn, would make the needed repairs. It is to be noted that when this maintenance work was performed, Terminal’s employees were always used.

With such facts as a backdrop, we recount the circumstances precipitating the instant litigation. McDevitt, an employee for Scott Brothers for about sixteen years, had been assigned to the 2nd Street and Erie Avenue warehouse for some “five, six years” prior to the date of his accident on November 1,1966. On the date just mentioned, at approximately 8:00 p. m., McDevitt, in his capacity as “helper,” was assisting a Scott Brothers’ driver (Larry Ballard) park his tractor-trailer between two other “rigs.” Since there was no lighting in the area, McDevitt “was looking at the ... skyline.” (N.T. 307) He did this because he “could tell by the silhouette of the outline of the trailer just where it was going, maneuvering, to go back in[to the parking slot].” (N.T. 306 & 307) With appellant standing along the passenger side of the tractor-trailer, the driver angled the trailer portion of the vehicle into position. The driver then stopped and pulled forward in order to align the trailer with the tractor before attempting to back the entire “rig” into the parking space. During this pause, appellant situated himself approximately 12 feet from the front bumper of the tractor, i.e., between the dolly wheels and the tractor wheels, facing the rear of the vehicle. Additionally, because of the poor lighting available (which precluded McDevitt from seeing the ground in front of him), appellant placed his right hand on the side of the trailer to guide and to steady himself as he walked with the moving truck—this made him feel “a little safer with it there” and allowed him to sense when he was getting too close to the trailer. (N.T. 346 & 358) Thereafter, the tractor-trailer traveled a distance of some 15 feet before the appellant “stepped in a hole with [his] right foot”—the hole was deep enough to encompass his entire foot. (N.T. 312 & 324) The appellant then lost his balance and fell down on his right knee, and that is when he felt his right foot get caught under the back rear wheel of the tractor. McDevitt screamed hysterically, “Stop! Stop! Stop!” Before the driver heard him so as to react and move the vehicle forward, the victim’s right foot was crushed, causing permanent injury.

Appellee-Terminal contends that the evidence in this case “compel[s] the conclusion that judgment notwithstanding the verdict should have been granted on the ground that plaintiff[-appellant] was negligent and/or assumed the risk and that, in any event, the evidence was insufficient to take the case to the jury on the issue of Terminal Warehouse’s negligence.” (Appellee’s Brief at 6) Counsel for McDevitt, on the other hand, argues that his client “was acting under the ‘compelling necessities’ of his employment and violated no duty owing to himself or others.” (Appellant’s Reply Brief at 3)

The legal principles applicable to the present case were recently collected and set forth in McNally v. Liebowitz, 274 Pa.Super. 386, 389, 418 A.2d 460, 461 (1980), reversed on other grounds, 498 Pa. 163, 445 A.2d 716 (1982), wherein we stated:

“Although it is true that these ‘darkness’ cases necessarily depend largely on individual facts, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 2 A.2d 831 (1938), this area of the law has been well developed and some general rules have evolved. Thus, in the absence of compelling necessity, it is generally held ‘ “that one who follows an unfamiliar course in the dark or steps into darkened and unfamiliar space, relying upon his sense of touch instead of obtaining and using adequate lighting facilities, and sustains personal injuries, is guilty of contributory negligence as a matter of law.” ’ Just v. Sons of Italy Hall, 240 Pa.Super. 416, 422, 368 A.2d 308, 312 (1976) (emphasis in original), quoting Barth v. Klinck, 360 Pa. 616, 618, 62 A.2d 841, 842 (1949). ‘[Djarkness is, in itself, a warning to proceed either with extreme caution or not at all.’ Barth v. Klinck, supra, 360 Pa. at 618, 62 A.2d at 842; Mogren v. Gadonas, 358 Pa. 507, 511, 58 A.2d 150, 152 (1948). The controlling factors in determining the question whether one was contributorily negligent in proceeding in the darkness are the degree of darkness and the justification for the injured person’s presence in the place of danger. Dively v. Penn-Pittsburgh Corp., supra; Just v. Sons of Italy Hall, supra.
The degree of darkness is important in determining if appellant had reason to apprehend the danger. If the area was not totally dark, she may have been reasonably justified in assuming that with appropriate care she could reach the end destination without mishap. In all cases one must use the senses that are available, Bartek v. Grossman, 356 Pa. 522, 52 A.2d 209 (1947), and it is only when a plaintiff uses his sense of sight carefully and reasonably believes that he can ‘see his way’, but was then deceived by shadows, that the question of his negligence will be for the jury. McKown v. Demmler Properties, Inc., 419 Pa. 475, 214 A.2d 626 (1965); Carns v. Noel, 364 Pa. 77, 70 A.2d 619 (1950); Falen v. Monessen Amusement Co., 363 Pa. 168, 69 A.2d 65 (1949).”

Further, this Court held in Devine v. Hollander, 192 Pa.Super. 642, 648, 161 A.2d 911, 914-915 (1960) that “. . . a person may be declared guilty of contributory negligence when he wanders around in darkness in a place where he has no reason to be, such a declaration will not be made if he has a fairly compelling reason to be there and the place is not utterly devoid of light.” (Emphasis added) (Citations omitted)

Applying the governing rules outlined supra, it is clear that the appellant had a “fairly compelling reason” for walking on the parking grounds since he was in the process of performing his job. See Scurco v. Kart, 377 Pa. 435, 105 A.2d 170 (1954) (plaintiff had a “fairly compelling reason” for walking through the hallway since she was bound for her place of employment); see also Draper v. Airco, Inc., 580 F.2d 91, 102-103 & n. 12 (3rd Cir. 1978); Restatement (Second) of Torts, § 343A, Comment f, Illustration No. 5. As for a determination as to the degree of darkness, necessarily intertwined therewith is an evaluation of the reasonableness of appellant’s actions under the circumstances. Krusinski v. Chioda, 394 Pa. 90, 103, 145 A.2d 681, 687 (1958) (“The criterion of accountability ... in a negligence case is not what an injured person might have done to avoid mishap, but whether what he did under the circumstances is what a reasonably prudent person would have done.”); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978).

In the case sub judice, we have an employee-employer situation; as such:

“In determining the standard of conduct of one who is injured in the performance of his employment, the working conditions and all of the circumstances incident thereto, including his obligation to do his job, must be considered: Stringert v. Lastik Products Co., Inc., 397 Pa. 503, 155 A.2d 625 (1959). If in performing his employment, a workman conforms to the ordinary usage thereof, this is evidence of the exercise of due care and indicates lack of careless conduct: Mutter v. Slaymaker, [404 Pa. 369, 171 A.2d 779 (1961)]. As stated in Van Zandt v. Phila. B. & W. R. R. Co., 248 Pa. 276, at 281, 93 A. 1010, at 1011: ‘What is required of the workman is that he exercise care for his safety according to the circumstances. He knows he is occupying a place of great danger, and his care must be commensurate with that danger. He is equally cognizant of the fact that he must perform faithfully the services required of him. Both obligations are resting upon him, and each must be met with a due regard to the other.’ ” Gregorius v. Safeway Steel Scaffolds Co., 409 Pa. 578, 584, 187 A.2d 646, 649 (1963).

Initially, we shall discuss the issue of whether there was sufficient light for appellant to see his way.

On direct examination, appellant responded in the negative when asked if there was any illumination from the 200-watt bulb affixed atop an 8-foot pole situated next to the gas pump, which was 6 to 8 feet at its closest point from the front bumper of the tractor-trailer when it was being parked. In fact, he stated he “could hardly tell . .. when [he] ever seen [sic] it[ ]” operating. (N.T. 324)

Additionally, a number of appellant’s co-workers testified to the condition of the lot. For example: Joseph Kleschick, who was working at the loading dock about 100 feet from where the appellant was situated, corroborated appellant’s accounting that the light near the gas pump was not working. As to the lighting provided the parking area in general, the witness stated there was no other illumination, except for the glare coming from the lights at the loading area. Next, Joseph Andrew Mooney could state no more than that there was a light bulb at the gas pump, “but whether or not it was on is another story.. One day it would be on. The next day it wouldn’t be.” (N.T. 124) Finally, Herman A. Tinsely, Scott Brothers’ dispatcher, opined that the lighting situation on the night of the accident was “[j]ust normal . .. as far as [he] was concerned[;]” in other words, “poor.” (N.T. 175)

Neither side takes serious issue with the contention that the surface of the parking lot was in disrepair (e.g., it had bumps, gullies, hills, dips and holes) for some time prior to the incident, and that appellant was aware of such condition. As a result, the real question to be resolved is in regard to appellant’s behavior in light of the circumstances confronting him. As Dean Prosser has aptly stated on this subject: “So far as contributory negligence itself is concerned . . . the reasonableness of the plaintiffs conduct is to be determined by balancing the risk against the value which the law attaches to the advantages which he is seeking.” W. Prosser, Handbook of the Law of Torts (4th Ed. 1971) pp. 424-425; see also McKenzie v. Cost Bros., Inc., 487 Pa. 303, 311, 409 A.2d 362, 366 (1979) (“ ‘The standard of due care is such care as a prudent person would exercise under the circumstances of the particular case, and conformity to customary or usual conduct or methods cannot amount to more than a circumstance to be considered together with other circumstances of the case in determining whether due care has been exercised[.]”). A review of appellant’s testimony is necessary to ascertain the “reasonableness” of his actions.

We start with appellant’s testimony on cross-examination, wherein he was asked:

“Q When you were doing that [—i.e., looking at the silhouette of the trailer against the sky], could you see the trailer?
A No. I just had my hand on it just to make sure I felt a little safer with it on there.
Q Was that because you couldn’t see it, it was so dark?
A It was very dark, but I—I kept it there as a rule just to make sure I felt a little more safe with my hand there.”

(N.T. 346)

Still pursuing the same subject, i.e., illumination at the situs of the accident and its affect on McDevitf s ability to direct Larry Ballard into a parking space, counsel for Terminal inquired:

“Q What were you looking at?
A Only the sky up and on the top. The light from the sky on the edge of the trailer.
Q Even though this was a very, very dark night, you could see the sky?
A It wasn’t that dark. It wasn’t too dark of a night, sir.
Q Pardon?
A It wasn’t too dark of a night
Q Well, didn’t you just tell us you couldn’t see the ground in front of you?
A I couldn’t see the ground, but, I mean, at the sky—to look at the sky, it wasn’t that—too dark.
Q Were you trying to look at where you were walking?
A You couldn’t see anything practically in front of you.
Q Were you trying to look in front of you? Did you glance down to see what was in front of you?
A You tried the best you could, I guess.

(Emphasis added) (N.T. 356-357)

Additionally, appellant answered, in response to defense counsel’s query as to the lighting conditions in general:

“A Well, it was very dark, except for some light that we were getting from the sky.
Q Was it cloudy, do you recall?
A It was an overcast night, I remember, and it wasn’t too cloudy. No. It was—it was an overcast night, I guess you would call it.
Q Would you describe the conditions generally as very, very dark?
A Pretty dark.
Q Pardon?
A Very dark. That’s all I can tell you.
(Emphasis added) (N.T. 345-346)

In deciding whether the aforesaid is sufficient to establish appellant’s contributory negligence as a matter of law, we find that what was stated in Duffy v. Peterson, 386 Pa. 533, 126 A.2d 413 (1956) to be apposite to the case at bar. In Duffy, the complaining party was employed by a sub-contractor (Western Electric Co.) to install phones in an office building under construction. Duffy, in the course of his duties, tripped over a cord swung across the corridor he was traversing and fell, sustaining serious injuries. He sued Fischbach & Moore Co., electrical sub-contractors, and later the Peterson Co., carpenter sub-contractors, charging them, respectively, with negligence in the manner in which their employees conducted their work in and about the area which was the scene of his misfortune.

The Peterson Co. contended that Duffy was guilty of contributory negligence, as a matter of law, in not having observed the obstacle. However, one of the major factual issues in the case was whether, in fact, Duffy, in the exercise of reasonable care, knew of the presence of the extension cord. As a result, if Duffy was actually ignorant of its existence he could not be held responsible for not seeing it. In ruling on this question, Justice MUSMANNO, in his usual, piquantly expressive language, said:

“In support of the plaintiff’s position that he was unaware of the cord’s presence, he asserts that, firstly, the eyeless sockets above him left the floor below in near-darkness; secondly, that the slender black extension cord blended with and disappeared into the shadows caused by the neighboring table and other objects; ....
If these skeletonized arguments are clothed with the flesh of substantive evidence, there can be little doubt that the plaintiff exculpated himself from the charge of contributory negligence, and at the same time laid at the door of Fischbach & Moore the responsibility for the scanty illumination, which, allied with the negligence of the Peterson Company, brought Duffy to his knees and ensuing injuries.” Id., 386 Pa. at 538, 126 A.2d at 415.

Furthermore, in deciding if Fischbach & Moore Co. met its obligation to supply illumination for the workers, the Court held:

“Every workman is entitled to a workshop devoid of perilous conditions that serious reflection, reasonable anticipation, and practicable scientific preparation can avoid. Did Fischbach & Moore use the care required to protect Duffy from the harm which they could reasonably anticipate? The jury found that they did not; and certainly one cannot quarrel with the jury's conclusion that one 75-watt bulb and nine blind sockets would not provide anyone with sufficient illumination (under the circumstances of this case) to see with precision the ground ahead unless he got down on his hands and knees and crawled forward with the concentration of a detective seeking footprints.” (Emphasis added) Id., 386 Pa. at 540, 126 A.2d 416.

Preliminarily, we need to address Terminal’s argument that appellant failed to prove the breach of any duty owed by it to maintain the parking area. Albeit at trial no one disputed the fact that the contract between Terminal and Scott Brothers was silent on the subject of maintenance of the leased premises, the record is replete with evidence that Terminal performed needed maintenance for years for the benefit of Scott Brothers’ employees. For example, testimony disclosed that none of the employees for Scott Brothers was aware of the location of the switch to operate the light at the gas pump—some stated they were told by management that Terminal took care of such matters. Testimony by a witness who was employed in a supervisory capacity by Scott Brothers disclosed that it was his practice to notify Terminal’s agent when he received a complaint from one of his employees that the parking area was in need of repair. Additionally, the witness stated that when maintenance work was done on the premises it was performed by Terminal’s employees. Consequently, “while there was no express provision to that effect in the lease, there arose a necessary implication ... that sufficient light was to be furnished by [Terminal] to enable the premises to be used for the purpose leased, namely,” parking trucks, Dively v. Penn-Pittsburgh Corp., 332 Pa. 65, 68, 2 A.2d 831, 833 (1938), which included the safe performance of such task by the lessee’s employees. See Duffy v. Peterson, supra.

Given the facts instantly, while there does not appear to be any clear authority directly on this point, we are of the opinion that, in circumstances such as those presented by this case, regardless of the absence of a contract on the subject, Terminal, having undertaken to maintain the parking area in good repair, was under a duty to keep it reasonably safe for use by the employees of Scott Brothers. Thus, the question of whether or not appellee breached this duty in the case at bar was properly submitted to the jury for determination. Pro v. Pennsylvania Railroad Co., 390 Pa. 437, 443, 135 A.2d 920, 923 (1957).

On the issue of contributory negligence, the facts established that there was a “fairly compelling reason” for appellant’s presence in the parking area, i.e., the performance of his job. As to the second prong of such issue, which requires a determination of the degree of darkness at the site of the injury, see McNally v. Liebowitz, supra, while appellant described the parking area as “very dark” and “pretty dark” it would' seem from other portions of his testimony, as well as that of other witnesses, that this was somewhat exaggerated, especially as to the nearby docking area, which must have emitted some measure of light. “ ‘Ordinarily where the testimony of a plaintiff, or of his witnesses, in a negligence case, is so contradictory or inconsistent that in one aspect it shows contributory negligence and in the other does not, it is for the jury to reconcile the conflicting statements and determine which shall prevail. The reason for the rule is that a plaintiff does not have the burden of disproving contributory negligence.’ ” Gardner v. Kline, 137 Pa.Super. 505, 508, 9 A.2d 487, 488-489 (1939); Heimbach v. Peltz, 384 Pa. 308, 315, 121 A.2d 114, 118 (1956) (“The plaintiff is not called upon to establish, as he produces the chain of evidence which binds the defendant in trespass, that in each link of that chain there is no alloy of contributory negligence .... [Pjlaintiff ‘ “is under no obligation to prove the performance of any particular act by way of precaution against injury.” ’ ”); Stevenson v. Pennsylvania Sports & Enterprises, Inc., 372 Pa. 157, 93 A.2d 236 (1952).

We cannot ignore the appellant’s testimony that, inasmuch as Scott failed to provide its employees with hand-held flash lights, he “tried the best [he] could” to complete the job assigned to him. That is, he felt his way cautiously and tried to assure his footing by placing his right hand on the side of the trailer. See Bailey v. Alexander Realty Co., 342 Pa. 362, 367, 20 A.2d 754, 756 (1941) (“ ‘When one is moving in the dark, he must proceed with the greatest caution and literally “feel his way around.” ’ The instinct of self-preservation impels a man of ordinary prudence to avoid by the vigilant use of all of his faculties, a danger that should obviously be apprehended.”); accord Beck v. Stanley Co. of America, 355 Pa. 608, 622, 50 A.2d 306, 313 (1947); Just v. Son’s of Italy Hall, 240 Pa.Super. 416, 428 n. 6, 368 A.2d 308, 315 n. 6 (1976); Luther v. Kline, 145 Pa.Super. 188, 191, 21 A.2d 138, 140 (1941). Therefore, this case is not similar to those which deny recovery where the claimant is negligent in the manner in which he proceeds through an unlighted or dimly lit area. See Polm v. Hession, 363 P. 494, 70 A.2d 311 (1950). Thus, whether the appellant “should have done more ... was for the jury to say[.]” Stringert v. Lastik Products Co., 397 Pa. 503, 508, 155 A.2d 625, 627 (1959).

Applying the legal principles summarized above to the facts of this case, keeping in mind that “[i]n passing on questions of negligence, courts and juries must consider the realities of the situation[,]” Mogren v. Gadonas, 358 Pa. 507, 152, 58 A.2d 150, 512 (1948), we believe that reasonable minds could well have differed as to whether the appellant unreasonably placed himself in a situation known to him to be dangerous. See Smith v. Bell Telephone Co. of Pa., 397 Pa. 134, 138-139, 153 A.2d 477, 479 (1959). We cannot hold, therefore, that appellant was contributorily negligent as a matter of law. The motion for judgment n.o.v. on this ground was properly denied. See McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982). As for appellee’s assumption of risk argument, we find that the jury in the present case could reasonably find that even if appellant assumed the risk of walking in a dimly lit area, he did not assume the risk that he would step in a hole and be struck by the tractor-trailer. See Fahringer v. Rinehimer, 283 Pa. Super. 93, 423 A.2d 731 (1980).

We now turn our attention to the other claim, raised by the appellant on the cross-appeal, that the court en banc erred in granting appellee a new trial on the basis that the “trial court abused its discretion by prohibiting Terminal’s counsel from cross-examining plaintiff[-McDevitt] as to certain written statements that he had given before the commencement of trial.” (Lower Court Opinion at 8) As stated previously, in order for this Court to conclude that the action of the court en banc was error, we must find that the grant of a new trial either constituted an abuse of discretion or error of law.. Allison v. Snelling & Snelling, Inc., supra.

An understanding of the circumstances prompting the alleged error is necessary as a prelude to an appreciation of the ultimate ruling made by this Court.

At trial, but prior to the taking of testimony, counsel for Terminal presented the court with the subpoena duces tecum served upon Continental National American Group (CNA), the compensation carrier for the additional defendant, Scott Brothers. CNA did not comply with the subpoena, which sought, inter alia, “the production of statements made by McDevitt,” on the basis that: 1) the file constituted “investigative material” prepared in anticipation of litigation; and 2) the file was “really the written summary of the attorney-client relationship and, as a result, [was] privileged[.]” (N.T. 6, 9 & 11) Appellant’s counsel also objected, characterizing appellee’s tactics as “discovery” in nature, and, thus, should have been dealt with pre-trial. Counsel for appellee disputed the equating of his action with “discovery.” Rather, counsel argued that he wanted to review the file to determine what, if any, value the documents might have on his ability to impeach the appellant. The court agreed with the appellee that the documents be produced. The following day, at an in camera hearing, the file was produced and the court ruled that counsel for Terminal could inspect the documents therein, but reserved its decision on whether the appellee could use the documents for impeachment purposes. Exceptions were duly noted on behalf of the appellant and Scott Brothers. After reviewing the documents in question, appellee requested the use of Exhibits DT-3 through DT-11 (which contained statements attributed to the appellant concerning the accident) for cross-examination purposes. The trial court denied the request on the grounds that the information was: 1) secured in anticipation of litigation; 2) the work product of the insurer of Scott Brothers; and 3) unavailable under Pa.R. Civ.P. 4011(d), since the information in the documents was not limited to the identity or whereabouts of witnesses.

After the ruling, Walter R. Druce, the CNA agent in charge of investigating the accident, gave the following detailed accounting of the substance of the Exhibits, i.e.:

1) DT-3 was a signed statement by the appellant, dated December 8, 1966. The two-page handwritten statement, which recounted the facts of the accident as told to Druce by appellant, read in part: “The tire caught the heel of my shoe and trapped my foot. I could not pull my foot loose.” (N.T. 212)
2) DT-9 was an agreement for compensation for disability for permanent injury, dated December 20, 1966, signed by appellant and described the accident as follows: “Truck ran over right foot, causing comminuted fracture right cuboid.” (N.T. 215)
3) DT-10A & B was an industrial accident report (one was a copy of the other) dated November 8, 1966 and was not signed by the appellant, which was forwarded to CNA by the employer, Scott Brothers. Section 27, captioned “how the accident happened,” read in pertinent part: “—tractor's right rear wheel caught my right heel under it and started crushing—[.]” (N.T. 218)
4) DT-11 was a standard form for surgeon’s report, sent out by CNA to doctors who were giving medical treatment to an injured claimant. Dr. Donald H. Greene, the physician treating appellant, completed and returned the report to CNA—it was dated February 21, 1967. Under the section identified as “The Accident,” at No. 5 (captioned “State in patient’s own words where and how accident occurred: ”) it read: “Patient was working for Scott Brothers on 11-1-66 when a tractor-trailer caught his right foot between the tire and the ground.” (N.T. 220)

Moreover, on cross-examination, appellee asked appellant if he might have informed any hospital personnel or Dr. Greene, his attending physician, how the accident happened. Appellant, somewhat equivocal, stated he “might have mentioned the fact that [his] foot had been run over by a tractor trailer.” (N.T. 348) However, he did not recall telling Dr. Greene anything. Appellant went on to answer in the affirmative, when asked by counsel whether “one of the wheels of the tractor ran over [his] foot.” (N.T. 351) Also, when queried as to whether his foot slid to the right, appellant responded, “It didn’t slide under the wheel. It slid between the wheel. Between the tractor wheel and, say, the dolly wheel.” (N.T. 359) In another segment of the examination, appellant remarked that he “stepped in a hole.” (N.T. 362) Given the conflicting testimony, counsel for Terminal asked, “Well, did your foot slide to the right or didn’t it?” To which the appellant answered, “It could have slid to the right, yes, sir, too, but I remember I staggered into—into the trailer.” (N.T. 363) Further, as expressed by the trial judge in his dissenting opinion to the court en banc’s grant of a new trial:

“In his cross-examination at trial of Dr.' Greene, counsel for Terminal relied upon the following hospital records, none of which relate the accident in question to [appellant’s] becoming entangled in a hole or to the dimly lit parking lot of Terminal:
(a) Exhibit DT-19B—Frankford Hospital Accident Ward Report—Patient’s Statement—‘Patient states truck backed over rt foot’;
(b) DT-19C—Admission Form—Remarks ‘Truck Ran Over Rt Foot’;
(c) DT-19D—History taken by an intern and countersigned by Dr. Greene—‘Pt. is a 53 yr. old male whose right foot was run over by a tractor’;
(d) DT-19F—Orthopedic note written by Dr. Greene on 11/1/66—‘53 yr old white male had his rt foot run over by a tractor trailer while working for Scott Brothers Trucking Company today suffering injury to rt Foot’.
Thus, counsel for Terminal was enabled to introduce at trial in his cross-examination (as well as in his summation) alleged prior inconsistent statements by [appellant] wherein neither the holes in the parking lot nor the poor illumination are mentioned. This was essentially the identical information which defense counsel sought to elicit via Exhibits DT-3, 9,10a and b, and 11, .... Notwithstanding the fact that defense counsel was able to attack [appellant’s] credibility in cross-examination and in argument by means of said hospital records, the jury was obviously not impressed with this evidence and found for [appellant].” (Sporkin, J., Dissenting Opinion at 15-16)

We are in accord with the sentiments expressed in the aforecited Opinion, and find in support thereof the case of Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).

In Eldridge, the wife-appellee was in a collision in August of 1963, which caused her to suffer retrograde amnesia and left her two children fatally injured. Appellee instituted suit against the driver of the other vehicle involved in the accident in September of 1964. At a deposition taken in January of 1965, the appellee testified that her memory was “blank.” At a pretrial conference in December of 1969, appellee’s counsel stated that his client could not remember the facts surrounding the accident. At the time of trial, the only direct evidence concerning the accident was provided by the appellee. There were no eyewitnesses to the accident.

While on the stand, appellee recounted that as she rounded a curve a truck, traveling in the opposite direction, crossed over into her lane and struck her vehicle. On cross-examination, appellee testified that she told her attorney that she started to remember the circumstances surrounding the accident “Around ’68.” In turn, defense counsel offered the testimony of a Dr. Robinson, a psychiatric specialist, who examined the appellee four days prior to trial and elicited from her that: “She did not remember the accident happening .... ” In rebuttal, appellee presented her own psychiatrist who testified that the amnesia suffered by her “could dissipate over a period of time.”

At the conclusion of defendant-appellant’s case, he requested that the court permit him “ ‘to offer into evidence ... a statement by the [c]ourt to the effect that the pre-trial order of December 1969 revealfed] that the plaintiff[-appellee] did not have a recollection as to the circumstances of the accident.’ ” Id., 226 Pa.Superior Ct. at 385, 313 A.2d at 753. The trial judge denied the offer of proof and the jury returned a verdict in favor of the appellee. On appeal, we found that no error was committed by the trial court in denying defense counsel’s offer of proof. In so doing, we stated:

“It is the trial court’s function to exclude evidence that would confuse issues and distract the attention of the jury ‘from the primary to [the] collateral issues,’ Geesey v. Albee Pennsylvania Homes Inc., 211 Pa.Super. 215, 223, 235 A.2d 176, 180 (1967). Furthermore, the exclusion of evidence may not be grounds for a new trial where said evidence would not have affected the verdict or where other evidence of the same fact was introduced by the party applying for the new trial. Rankin v. Boyle, 328 Pa. 284, 195 A. 36 (1937); Rudella v. Lofland, 213 Pa.Super. 305, 247 A.2d 792 (1968).
In the instant case, Dr. Robinson, who was a defense expert witness, testified that four days prior to trial, plaintiff had told him at a psychiatric examination that she remembered nothing concerning the accident. He also stated that her form of amnesia would have brought about total recall within 30 days or not at all. This testimony was in direct contradiction to plaintiff’s testimony that she began recalling things in 1968, and seemed to raise a serious question as to the credibility of the plaintiff and her true recollection of the accident at time of trial. As impeaching evidence, Dr. Robinson’s testimony was potentially devastating. Despite this, the jury found plaintiff to be more credible. This was totally within its province to do so. As Dr. Robinson’s testimony went to essentially the same facts and issues as the offered evidence of the pre-trial statement, the trial court properly refused to admit what would have amounted to cumulative evidence. A new trial should not be granted on the basis of the excluded evidence.” (Emphasis added) Id., 226 Pa.Superior Ct. at 391, 313 A.2d at 756; accord Billings v. Upper Merion Township Authority, 44 Pa. Cmwlth. 622, 625, 405 A.2d 967, 970 (1979).

Instantly, the content of the exhibits sought to be admitted into evidence, as with the testimony of Dr. Robinson in Eldridge, was not supportive of appellant’s version of the case—i.e., “stepping into a hole prior to being struck by the tractor-trailer.” As such, the evidence (“Exhibits”) clouded appellant’s credibility regarding the events surrounding the accident. However, since the content of the hospital records “went to essentially the same facts and issues as the ... evidence ... [of the insurance Exhibits sought to be utilized by Terminal for impeachment purposes], the trial court properly refused to admit what would have amounted to cumulative evidence.” Id. Furthermore, counsel for appellee cross-examined the appellant regarding the circumstances attendant to his injury; e.g., did appellant step into a hole or did his foot slide under the rear wheel of the tractor-trailer? Appellant’s ambivalence on the matter, when coupled with the content of the hospital records—DT-19B through DT-19F, affected his credibility. Ergo, appellee, as we view the record, suffered no prejudice as a result of the trial judge’s ruling. See generally Poulson v. Gamble, 197 Pa.Super. 300, 305, 178 A.2d 839, 842 (1962). If such were not the case, we would find to the contrary. See Panik v. Didra, 370 Pa. 488, 88 A.2d 730 (1952).

In view of the above, without discussing the correctness of the other reasons proffered by the trial court in refusing appellee’s request, see supra note 7 and accompanying text, we cannot say that the court en banc did not abuse its discretion in awarding a new trial.

Order of the court en banc denying the judgment n.o.v. is affirmed; the order of the court en banc granting a new trial is reversed with direction that judgment be entered on the verdict.

DiSALLE, J., did not participate in the consideration or decision of this case.

      . Frank McDevitt died on October 31, 1978 and Ruth McDevitt, his wife and executrix of his estate, was substituted as plaintiff-appellant.

      . On the question of jurisdiction, we are vested with authority to review the appellant’s appeal, inasmuch as it concerns “[a]n order in a civil action or proceeding awarding a new trial,” (Pa.R.App.P. 311(a)(5)); as for the appellee, the denial of its motion for judgment n.o.v., despite the grant of its motion for a new trial, is appealable. See Act of April 9, 1925, P.L. 221, 12 P.S. § 682, repealed by the Act of April 28, 1978, P.L. 202, No. 53, § 2(a)[891], effective June 27, 1980; Corabi v. Curtis Publishing Co., 441 Pa. 432, 273 A.2d 899 (1971). Also, we observe that appellee’s request for binding instructions was denied and it took exception to same. (N.T. 518-519); (See “Defendant’s Motion For Judgment Notwithstanding The Verdict And, In The Alternative, Defendant’s Motion For A New Trial,” Point # 5, at p. 2)
      It is to be noted that Scott Brothers did not take an appeal from the court en banc’s order denying its motion for a judgment n.o.v. (See letter filed with this Court by Scott Brothers’ attorney, who also represents Terminal, dated January 7, 1981, that he would not be filing a Brief in the instant case).

      . Comparative negligence principles are not applicable in this case since the cause of action arose before September 7, 1976. Costa v. Lair, 241 Pa.Super. 517, 363 A.2d 1313 (1976).

      . In the case at bar, appellant testified, on cross-examination, that he never saw the hole he stepped into, either before, during or after his fall. (N.T. 362) The reason he did not observe the hole was because of the insufficient lighting on the lot.

      . Terminal neither offered evidence nor produced witnesses to contradict this evidence. It is interesting to note that Terminal did not completely surrender control and possession of the property to the lessees (Scott Brothers). It retained upon the premises a warehouse superintendent. As to the liability of the possessor of land to a lessee, where the lessor retains in his control any part of leased premises, see Restatement (Second) of Torts, §§ 360, 361.

      . Actual or constructive notice of a defect is a prerequisite to holding a possessor of land liable for bodily injury sustained by a business invitee (which no one disputes that appellant was) because of said defect. Restatement (Second) of Torts, § 343. We conclude that the factual situation under consideration is comparable to cases wherein the nature and location of the defect, considering all of the circumstances (see Bremer v. W. W. Smith, Inc., 126 Pa.Super. 408, 191 A. 395 (1937)), justified a finding by the jury that it, i.e., the insufficient or nonexistent lighting, had existed for a sufficient length of time to amount to constructive notice. See Stais v. Sears, Roebuck & Co., 174 Pa.Super. 498, 102 A.2d 204 (1954); see also Davanti v. Hummell, 409 Pa. 28, 185 A.2d 554 (1962).

      . Under the 1978 amendments, subdivision (d) of Rule 4011 was rescinded and eliminated. This subdivision precluded the discovery of information or other things made or secured by any person or party in anticipation of litigation or in preparation for trial, other than information as to the identity or whereabouts of witnesses. The discovery of trial preparation material is now allowable in accordance with Pa.R.Civ.P. 4003.3 through 4003.5. See 10 Goodrich-Am-ram 2d, § 4011(d): 1. We need not rule on any of the trial court’s reasons for excluding the information sought from the appellee, inasmuch as we find grounds other than those asserted by the trial court to uphold the denial of a motion for a new trial. See Sones v. Aetna Casualty and Surety Co., 270 Pa.Super. 330, 411 A.2d 552 (1979).

      . The trial judge (Sporkin, J.) was a member of the court en banc (consisting of Judges Greenburg and Cavanaugh) which ruled on the post-trial motions.


source: Caselaw Access Project

author: JOHNSON, Judge: HESTER, Judge, dissenting:

license: Public Domain

text:
    450 A.2d 1003
    In re DESIREE B., a minor. Appeal of CONCETTA B., natural mother. Children and Youth Services of Allegheny County (Participating Party). Eloise Freeman, foster mother (Participating Party).
    Superior Court of Pennsylvania.
    Argued April 13, 1982.
    Filed Aug. 27, 1982.

      Linda C. Liechty, Pittsburgh, for appellant.
    William P. Giarla, Pittsburgh, for Freeman, participating party.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   JOHNSON, Judge:

The order appealed from denied the petition by a natural mother [Concetta] for the return to her of her daughter [Desiree], and ordered that Desiree remain in the custody of her foster-mother [Mrs. Freeman].

The facts of this case are as follows. Desiree was born to Concetta, who is not married, on December 25, 1977. In early April 1978 Desiree was admitted to a hospital where her condition was diagnosed as failure to thrive. She was subsequently returned to Concetta for a short while under the supervision of the Allegheny County Children and Youth Services [CYS]. But CYS later petitioned the court to adjudicate Desiree dependent and to remove her from Concetta’s custody because Concetta’s housing was unfit and Concetta was not cooperating with CYS. Ultimately, in November 1978, the lower court adjudicated Desiree dependent and ordered her to remain in the foster home where she had been intermittently since the hospitalization, and where she has been ever since. The court concluded the November 1978 hearing with remarks which seem to indicate that it envisioned Desiree’s placement in the foster home as long-term.

Nearly two years later, in October 1980, there was another hearing. CYS expressed the view that, although Concetta was managing very well with her second child, a son, now a few months old, and that she had improved greatly since the removal of Desiree, returning Desiree to Concetta might “add stress to a high risk situation.” By this time Desiree had been with Mrs. Freeman for two years and three months. The court expressed its concern that Desiree would become psychologically attached to Mrs. Freeman such that removal could be harmful to Desiree. Desiree at this time was seeing her natural mother once a month. The court decided however that Desiree should remain with Mrs. Freeman for a further few months. Further disposition would depend on (1) whether Concetta could be shown to be able to meet Desiree’s needs and (2) the extent to which it would be damaging to Desiree to be moved out of the Freeman home.

Then in 1981, after two hearings, in February and April, the court decided that because Mrs. Freeman had become Desiree’s psychological mother, it would be damaging to Desiree to remove her, and therefore denied Concetta’s petition to have her daughter returned to her, despite testimony as to much improvement in Concetta’s mothering and housekeeping skills and to the fact that her second child is flourishing under her care.

In custody cases the scope of our review is very broad. Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977); Commonwealth ex rel. Oxenreider v. Oxenreider, 290 Pa.Super. 63, 434 A.2d 130 (1981). We do not usurp the fact-finding function of the trial court, but we are not bound by the deductions or inferences made by the trial judge from the facts he has found. We need not accept a finding which has no competent evidence to support it, but are instead required to make an independent judgment based on the evidence and testimony, and make such order on the merits of the case as to do right and justice. See Garrity v. Garrity, 268 Pa.Super. 217, 407 A.2d 1328 (1979), and cases cited therein. So as to facilitate this broad review, we consistently emphasize that the hearing court must provide us with a complete record and a comprehensive opinion which contains a thorough analysis of the record and specific reasons for the court’s ultimate decision. Garrity v. Garrity, supra.

The evidence on which the lower court relied for its decision was in part the testimony of a child development specialist who had participated in an evaluation of the quality and intensity of the relationship between Desiree and Mrs. Freeman, and also the reports made to the court by a psychiatrist and a child therapist who had examined, respectively, Desiree and Mrs. Freeman and Desiree and Concetta. The child therapist who testified was particularly opposed to separating Desiree from Mrs. Freeman.

The standard which the lower court used to reach its decision was whether the best interests of the child would be served by the award of custody to her natural mother. However, the court below did not consider the initial step of the standard which is to be applied in cases where the dispute is between natural parents and third parties. In In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981), a case in which a natural mother was petitioning for the return to her custody of her two children who had been adjudicated dependent, this court showed how and why the test is different in this type of dispute. Quoting from Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 391, 324 A.2d 562, 572 (1974), and also from other cases, q.v., this court explained that the fact that one of the disputants is the natural parent must be considered by the court as a weighty, though not controlling, factor:

[O]nce the child has been taken from the parents, the court will appraise the evidence, and award custody, according to the child’s best interests. In applying this standard the court will recognize the natural parents’ claim to custody. In a given case this claim may prove of decisive weight; the particular circumstances of each case, including such facts as the length of time the child has been separated from the parents, must be taken into account ...

As we have noted . .. “the natural parents’ claim to custody” is a significant, and sometimes decisive factor in custody disputes such as this one. Indeed, our cases have long recognized “that depriving a parent of [his or] her child is one of the most serious interferences that the state can impose on an individual.” .. . Moreover, in a slightly different context, our courts have acknowledged the importance of natural parents’ claims to custody by requiring third parties seeking custody to meet a substantial evidentiary burden. Accordingly, “[w]hen the judge is hearing a dispute between the parents, or a parent, and a third party, ... [t]he question still is, what is in the child’s best interest? However, the parties do not start out even; the parents have a ‘prima facie right to custody,’ which will be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party. Thus, even before the proceedings start, the evidentiary scale is tipped, and tipped hard, to the parents’ side. What the judge must do, therefore, is first, hear all evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to bring the scale up to even, and down on the third party’s side.” Ellerbe v. Hooks 490 Pa. 363, 367-68, 416 A.2d 512, 513-14 (1980).... In adopting this standard, our Supreme Court has pertinently noted that “deference to the parental relationship is not an archaic adherence to any property rights theory of the family .. . Our determination today is only an appropriate recognition that the blood relationship of parenthood has traditionally served and continues to serve as our society’s fundamental criterion for allocating control over and responsibility for our children, and that without some showing of harm, the courts should not interfere with that arrangement.” Ellerbe v. Hooks, supra, 490 Pa. at 369, 416 A.2d at 514-15.

Notwithstanding the acknowledged importance of the parental interest in custody, application of the “best interests” standard requires the court to consider other factors in making its determination. Our Supreme Court has stressed this fact in custody disputes between parents and third parties, and its observations in that context are equally relevant here. In Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980), the Court stated: ...

“the Hernandez [i.e. In Re Custody of Hernandez, 249 Pa.Super. 274, 376 A.2d 648 (1977) ] standard, adopted by this Court in Ellerbe, was intended to emphasize the importance of the maintenance of the parental relationship, yet at the same time permit the hearing court to award custody to the third party where the best interests of the child will be clearly served by such a decision. This point is best demonstrated by the fact that this Court in Ellerbe, after embracing the Hernandez standard, applied it and sustained the decision of the hearing court awarding custody to the maternal grandmother. Ellerbe v. Hooks, supra.

. .. “Restated, the standard in this area is not to be construed as precluding a custody award to a non-parent, absent a demonstration of the parent’s dereliction. We again emphasize that the standard seeks only to stress the importance of parenthood as a factor in determining the best interests of the child. However, other factors which have significant impact on the well being of the child can justify a finding in favor of the non-parent, even though the parent has not been shown to have been unfit.” Id., 491 Pa. at 328, 421 A.2d at 160-61 (footnote omitted). See also Ellerbe v. Hooks, supra, 490 Pa. at 368, 416 A.2d at 514 (“No doubt in some instances the best interests of the child are served by awarding custody to a non-parent.”) Factors of importance in determining the best interests of a child in any custody dispute include, inter alia: (1) “the length of time the child has been separated from the parents,” ... (2) “[t]he adverse effect upon the development of youngsters caused by the disruption of an established stable relationship, ...” (3) the desirability of raising siblings together “whenever possible,” ... and (4) the fitness of the party or parties seeking custody ... See generally A. Momjian & N. Perlberger, Pennsylvania Family Law, §§ 5.1, 5.3 (1978). The latter consideration is, of course, especially important when a parent is seeking the return of a dependent child, since in many cases the original finding of dependency and removal of the child resulted from the parent’s past unfitness to retain custody-

In re Donna W., 284 Pa.Super. at 343-346, 425 A.2d at 1134-136 (1981) (some citations omitted).

In the case before us, the judge in the court below conscientiously used the best interests of the child standard, but discounted the natural parent’s claim to the custody of her daughter. In applying the best interests standard he relied on the evidence introduced by the third parties—i.e. both Mrs. Freeman and CYS. This evidence was based on observation by their expert witnesses of the parties involved during evaluation sessions at the clinic. The reports from the clinic consisted of (1) a psychiatric assessment of Desiree, based on examination by an intake worker at the clinic and by the psychiatrist, made at the request of the court, to ascertain the quality and intensity of the relationship between Desiree and Mrs. Freeman, (2) a psychiatric examination of Concetta to ascertain Concetta’s present emotional state and whether there was evidence of her inability to give appropriate care to a 3 year old child, and (3) an evaluation of the mother-child relationship between Concetta and Desiree which the therapist conceded in her report was impossible to make in a one hour play therapy session. The first report stated that Desiree is an apparently normally developed youngster. The report also stated that Desiree had formed a definite bond with Mrs. Freeman who is now her psychological mother, and warned of serious emotional difficulties which could arise if Desiree were removed from Mrs. Freeman. The report also stated, however, that removal “might be less damaging if there is a way of insuring that the new house ... would contain a mother who is able to offer a stable permanent situation, and appropriate loving care, nurturance, and necessary discipline and guidance.” This last statement was not referred to by the lower court. The second report found no mental disorder in Concetta and a healthy motivation for wanting her daughter back; the psychiatrist added: “I did not see evidence that she would intentionally neglect the child, nor that she would be unable to be at least as good a mother as many other slightly limited persons, but she could use further support services.” The report concluded with the remark that there were no psychiatric grounds for advising against the return of the child.

The third report was very inconclusive but the chief doubt which the therapist had with respect to Concetta’s ability to mother was whether she could set limits on Desiree’s behavior.

Of this testimony the lower court considered chiefly the evidence of the close relationship between Desiree and Mrs. Freeman, and the warning by the psychiatrist of the possible damaging effect on Desiree if she were removed from Mrs. Freeman’s care.

The opinion of the lower court, then, concentrates on the two related factors of the length of time Desiree has been separated from her natural mother and the effect on her of removal from the foster home. It does not apply the other factors: the natural parent’s interest in regaining custody of her daughter, the desirability of raising siblings together, and the fitness of the natural mother. See In re Donna W., supra. See also Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 433 A.2d 1363 (1981), where Judge SPAETH, in refusing to remand for the lower court to hear testimony from a psychiatrist about the psychological bonding of the child to the appellants, said that the concept of a child’s best interests is a legal concept, not to be defined in psychiatric terms. Id, 289 Pa.Superior at 528, 433 A.2d at 1381. This seems to mean that the question of bonding should not be the only or the deciding factor.

Additionally, a scrupulous examination of the record reveals to this court nothing whatsoever about the home in which Desiree has been placed. Desiree has obviously thrived there. The clinic reports indicate that she is content under Mrs. Freeman’s care. We are nevertheless reluctant to affirm an award of custody to a home of which we know nothing beyond some shadowy allusions in the testimony, when the record shows that the natural mother has made significant progress in her mothering ability. This marked improvement in her situation adds weight to the side of the scales already tipped in her favor.

For these reasons we are constrained to vacate the order of the lower court and remand for a reconsideration of Concetta’s petition for the return of her daughter. In considering the evidence already introduced in light of the requirements of this opinion the lower court shall consider additional evidence to reflect the current situation.

HESTER, J., files a dissenting statement.

HESTER, Judge, dissenting:

I am constrained to dissent. As our Supreme Court stated in Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980) at page 160 of 421 A.2d:

“Thus, the Hernandez standard, adopted by this Court in Ellerbe, was intended to emphasize the importance of the maintenance of the parental relationship, yet at the same time permit the hearing court to award custody to the third party where the best interests of the child will be clearly served by such a decision. This point is best demonstrated by the fact that this Court in Ellerbe, after embracing the Hernandez standard, applied it and sustained the decision of the hearing court awarding custody to the maternal grandmother. Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980).”

In my judgment, the best interests of Desiree dictate that her custody be retained by her foster parents. I would, therefore, affirm on the opinion of Judge Wettick of the court below.

      . See the Juvenile Act, Act of July 9, 1976, P.L. 586, No. 142, § 2, effective June 27, 1978. 42 Pa.C.S.A. § 6301 et seq. (Purdon 1982).

      . In re Desiree B., No. 1198-78, slip op. at 4 (C. P. Allegheny County, Family Division, Juvenile Section, filed October 29, 1981).

      . Compare Jones v. Floyd, 276 Pa.Super. 76, 419 A.2d 102 (1980) (reversed and remanded where, inter alia, inadequate testimony as to living conditions of the parties); Lewis v. Lewis, 267 Pa.Super. 235, 406 A.2d 781 (1979) (remanded for full hearing as to fitness, circumstances and home environment of each party).

      . Compare In re Interest of S.M.S., 284 Pa.Super. 9, 424 A.2d 1365 (1981) (evidence of child’s special needs and parents’ difficulties sufficiently complete and compelling to establish clear necessity for continued separation of child from parents); In re Donna W., 284 Pa.Super. 338, 425 A.2d 1132 (1981) (vacated and remanded where lower court overemphasized some evidence and failed to consider other relevant factors in denying petition for return of children formerly adjudicated dependent to natural mother).


author: SPAETH, Judge:

text:
    450 A.2d 1008
    COMMONWEALTH of Pennsylvania v. Joseph McFARLAND, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 23, 1982.
    Filed Sept. 3, 1982.

      Alexander Zdrok, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, BROSKY and BECK, JJ.
   SPAETH, Judge:

This appeal is from judgment of sentence for involuntary deviate sexual intercourse, simple and aggravated assault, and indecent assault. Appellant was found guilty by a judge sitting without a jury. His counsel filed a post-verdict motion assigning no error but “reserving] the right to make allegations in support of post-verdict relief after reviewing the trial transcript.” When the post-verdict motion was listed for argument, counsel told the court that he had reviewed the trial transcript and could make no allegations in support of any post-verdict relief. The court thereupon denied the post-verdict motion and imposed sentence. This appeal was filed, and new counsel was appointed. Appellate counsel argues that for various reasons, trial counsel was ineffective. With respect to some of these reasons, we can tell from the record that counsel’s arguments are without merit. With respect to others, however, we cannot make that determination. We therefore remand for a hearing on trial counsel’s effectiveness.

The Commonwealth’s evidence may be summarized as follows. At about 10:30 p. m. on June 26, 1980, appellant and his victim left The Holmesberg Tavern in Philadelphia to go to the victim’s apartment, several doors away, where the victim said she had some marijuana. Upon arriving at the apartment, appellant followed the victim inside and they smoked a marijuana cigarette. When they had finished the cigarette, the victim said she wanted to leave. Appellant refused to leave the apartment unless the victim kissed him. After two light kisses, appellant announced, “We’re not going nowhere. You’re either going to blow me or lay me.” He then hit the victim, pushed her down on the couch, tied a leather shoelace around her neck, creating a choke collar, and forced her to perform fellatio. Suddenly appellant passed out, and the victim escaped. Outside her apartment she met two neighbors, Steve and Fred Dollery, who removed the shoelace from her neck. After calming down somewhat, she returned to the tavern and told the bartender what had happened. He eventually convinced her to report the incident to the police, who took her to a hospital and photographed the bruises and abrasions on her neck from the shoelace. Afterwards, she stayed for several days at a friend’s house.

Appellant’s trial counsel cross-examined the victim and the bartender, although he asked no question of the victim’s friend. He did not call appellant or any other witness in appellant’s defense.

The standard for determining whether counsel has been ineffective is well established. As the Supreme Court explained in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

Our task in eases of this nature ... encompasses both an independent review of the record and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Perhaps Brubaker v. Dickson, 310 F.2d 30, 38 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110 [10 L.Ed.2d 143] (1963), best describes this necessary process: “Facts are alleged from which it would appear that these potential defenses would have suggested themselves to a reasonably diligent trial counsel. The defense actually tendered was so insubstantial in relation to those not offered as to cast doubt upon the hypothesis that trial counsel made a deliberate informed choice.” We cannot emphasize strongly enough, however, that an inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.
Id., 427 Pa. at 604, 235 A.2d 352 (footnote omitted; emphasis in original).

Here, with respect to several of appellant’s complaints we are able to conclude that the particular course chosen by trial counsel was reasonable. Specifically: Appellant argues that trial counsel was ineffective for failing to move for post-verdict relief. Appellant fails to indicate, however, what trial errors counsel should have preserved. Similarly, appellant argues that trial counsel was ineffective for failing to use prior testimony to impeach the victim. But while he asserts that there were numerous inconsistencies between the victim’s testimony at trial and her testimony at the preliminary hearing, he provides not a single example in support of this argument. Appellant also argues that trial counsel was ineffective for failing to challenge the evidence as insufficient to support the verdict. This argument is frivolous. Finally, appellant argues that trial counsel was ineffective for failing to raise an issue regarding the scope of cross-examination. This argument is also frivolous. The question to which the lower court sustained an objection was argumentative, and the point at issue had already been thoroughly explored. Counsel will not be found ineffective for failing to make arguments that have no merit. See, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

However, we are not able thus to dispose of appellant’s remaining two arguments. These arguments involve the fact that trial counsel called no witnesses.

Appellant alleges in his brief that “[t]rial counsel denied the appellant an opportunity to present consent as a defense,” Brief for Appellant at 4, and that “he was not advised of the risks of testifying [sic; “not testifying”?], nor counseled as to this critical decision. Appellant vehemently opposed the decision of counsel not to go forward. Defense counsel failed to consult appellant throughout the proceeding.” Id. at 5.

We admit to considerable skepticism regarding the credibility of testimony by appellant that the victim consented. The Commonwealth introduced photographs showing bruises and abrasions on the victim’s neck, and both the bartender and the woman with whom the victim stayed after the incident testified to the victim’s distress. Nevertheless, every person accused of crime has the right to testify in his own defense, and to be effective, his counsel must advise him regarding the exercise of that right. See, Commonwealth v. Blair, 491 Pa. 499, 421 A.2d 656 (1980); Commonwealth v. Thomas, 279 Pa.Superior Ct. 413, 421 A.2d 267 (1980); ABA Standards Relating to the Administration of Criminal Justice, Standards Relating to the Defense Function § 4-5.2(a) (Approved Draft 1979). We do not suggest that we accept appellant’s allegations that trial counsel did not so advise him. But since the record does not show that counsel did, we must remand for a hearing on the point. (Good practice, when a defendant is not called, is to have the record show that the defendant understands that he has the right to testify but has decided not to. That wasn’t done here. In making this observation, we recognize that it may be easier to make such a record when the trial judge is sitting with a jury than when he is sitting without a jury, as he was here.)

Appellant also alleges in his brief that trial counsel was ineffective for failing to subpoena and call Steve and Fred Dollery as witnesses. It will be recalled that the victim testified that when she ran out of her apartment, she met Steve and Fred Dollery and they removed the shoelace from her neck. Appellant alleges in his brief that he “advised trial counsel that in fact there never was a shoelace involved,” Brief for Appellant at 8; that he met with the Dollery brothers “the night after the incident is alleged to have occurred, and so advised his counsel,” id.; and that “[a]t this meeting both brothers told appellant that there was no shoelace or string around the prosecutrix’s neck ----,” id.

The Commonwealth argues that given the photograph of the victim’s neck, testimony by the Dollery brothers that they saw no shoelace or string would have “concerned only a collateral matter.” Brief for Commonwealth at 7. While we agree that the testimony might have had very little weight, we do not believe it could have been properly excluded as collateral, for the victim’s testimony that appellant choked her with a shoelace was relevant to proof of force. Testimony that there was no shoelace when the victim said there was would be relevant to a defense that appellant used no force.

The Commonwealth also argues, more persuasively, that appellant “has failed to show any prejudice from counsel’s alleged omission [in calling the Dollery brothers]” because “he does not assert that they were available to testify at trial.” Brief for Commonwealth at 6. (We may add, neither does appellant assert when he told trial counsel about what he says the Dollery brothers had told him.) Cf. Commonwealth v. Ashley, 277 Pa. Superior Ct. 287, 419 A.2d 775 (1980) (allegation of ineffectiveness insufficient where no allegation that witness was available or what her testimony would have been). Since, however, the matter must in any event be remanded on the issue of whether trial counsel advised appellant regarding the exercise of his right to testify, we believe the lower court should also determine the truth of appellant’s allegations about the Dollery brothers, and why counsel decided—if he knew about them—not to call them as witnesses. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975) (where only issue is credibility, failure to call known witnesses may be ineffective assistance).

The judgment of sentence is vacated and the case is remanded for a hearing consistent with this opinion. If the lower court determines that trial counsel was effective, it shall reinstate the sentence. If the court determines that counsel was ineffective, it shall grant appellant a new trial. We do not retain jurisdiction.


author: WIEAND, Judge:

text:
    450 A.2d 1011
    COMMONWEALTH of Pennsylvania, Appellant, v. Theodore D. ANDERSON.
    Superior Court of Pennsylvania.
    Argued June 24, 1982.
    Filed Sept. 10, 1982.

      Gaele Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

      Leonard Sosnov, Assistant Public Defender, Philadelphia, for appellee.
    Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.
   WIEAND, Judge:

The principal issue in this.appeal is whether Pa.R.Crim.P. 1410 requires the Commonwealth, as well as a defendant, to file a motion to modify sentence with the sentencing court before obtaining appellate review of a sentence. We hold that the rule does have application to the Commonwealth and that a failure to comply therewith constitutes a waiver of the right to appellate review of the sentence. For this reason, we do not consider substantively the Commonwealth’s contention that the sentence imposed in this case disregarded an applicable guideline without cause and was too lenient.

Theodore D. Anderson was tried without jury and convicted of robbery and possession of an instrument of crime. It was Anderson’s third conviction for robbery. At sentencing, the prosecution requested the trial court to impose a sentence consistent with Section 5 of the Act of November 26, P.L. 1316, No. 319 (hereinafter Act 319). This statute provided, in relevant part, as follows:

(a) Until sentencing guidelines adopted by the Pennsylvania Commission on Sentencing and relating to the offenses set out in this subsection become effective pursuant to 18 Pa.C.S. § 1385 (relating to publication of guidelines for sentencing), when any person is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery, aggravated assault as defined in 18 Pa. C.S. § 2702(a)(1) (relating to aggravated assault) involving the use of a firearm, arson or kidnapping, or of attempt to commit any of these crimes, and when that person has been previously convicted in this Commonwealth, or any other state or the District of Columbia, or any Federal court, of any of the offenses set forth in this section or their equivalent, the sentencing court shall consider as a guideline in imposing sentence that such person be sentenced to a minimum term of not less than four years imprisonment.
(b) In any case where a court sentences a person subject to the provisions of subsection (a), to a term of less than four years imprisonment, the court shall provide a contemporaneous written statement of the reason or reasons for the sentence.

Despite this guideline, the trial court imposed upon Anderson a sentence of imprisonment for “[t]ime in [six months] to twenty-three months, with parole effective [immediately] on condition that he enter Genesis II and upon completion ... enter into the Alcoholics Anonymous program.” In support of the sentence, the court opined and stated on the record that appellee’s alcoholic bouts had caused him to lose inhibitory control, and that his abuse of alcohol had been the cause of his problems with the criminal justice system.

The Commonwealth contends on appeal (1) that the evidence failed to support the conclusion that appellee’s commission of the offense for which he was being sentenced had been caused by alcohol abuse or that the offense had been committed while appellee was under the influence of alcohol, and (2) that, in any event, appellee’s history of alcohol abuse was an insufficient reason for rejecting the legislatively created guideline in favor of an unreasonably light sentence.

Pa.R.Crim.P. 1410 provides:

A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.

The comment to the rule recites the purpose of the rule as follows: “[t]his rule provides a procedure whereby a motion to modify sentence must be raised in the first instance before the sentencing court, thereby giving that court the first opportunity to modify the sentence.” This procedure will also “give the appellate court the benefit of the trial court’s views.” Commonwealth v. Riggins, 474 Pa. 115, 136, 377 A.2d 140, 151 (1977) (plurality opinion by Roberts, J.). See also: Commonwealth v. Hartman, 291 Pa.Super. 87, 435 A.2d 232 (1981); Commonwealth v. Koziel, 289 Pa.Super. 22, 432 A.2d 1031 (1981); Commonwealth v. Shaw, 280 Pa.Super. 575, 421 A.2d 1081 (1980); Commonwealth v. Graves, 275 Pa.Super. 557, 419 A.2d 41 (1980).

In the instant case, the Commonwealth did not file a motion to modify the sentence. It contends that the rule has no application to the right of the Commonwealth to obtain appellate review under Act 319. We disagree.

Pa.R.Crim.P. 1410, by its terms, is applicable generally and without distinction between defendants and the Commonwealth. Its applicability to the Commonwealth is not precluded by the provisions of Act 319. Subsection (c) of the Act provides that either the defendant or the Commonwealth “may appeal as of right the legality of a sentence ... . ” However, “where it appears that there is a substantial question that the sentence imposed is not appropriate under this [guideline],” subsection (d) makes an allowance of appeal discretionary with this Court. Far from precluding the applicability of Pa.R.Crim.P. 1410 to the Commonwealth’s right to sentence review, the statute makes the allowance of an appeal discretionary with the court having jurisdiction to hear the same. Since allowance of an appeal is discretionary, we perceive no good reason for not requiring the propriety of a sentence to be submitted in the first instance to the court which imposed it.

The Commonwealth argues that the filing of a motion to modify a defendant’s sentence will be an exercise in futility because the sentencing court is powerless, under principles of double jeopardy, to increase the sentence. See: Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369 (1979); Commonwealth v. Brown, 455 Pa. 274, 314 A.2d 506 (1974). If the Commonwealth’s argument is correct, then a Commonwealth requested review of sentence by this Court, with potential remand for re-sentencing in accordance with guidelines as contemplated by Act 319, is also precluded by double jeopardy considerations.

In fact, the Supreme Court of the United States has held that a federal statute permitting the government to seek an increased sentence on appeal does not violate principles of double jeopardy. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). The “Double Jeopardy Clause does not require that a sentence be given a degree of finality that prevents [review and] later increase.” Id. at 137, 101 S.Ct. at 437, 66 L.Ed.2d at 346. “The Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.” Id. at 135, 101 S.Ct. at 436, 66 L.Ed.2d at 344, quoting from Bozza v. United States, 330 U.S. 160, 166-167, 67 S.Ct. 645, 648-649, 91 L.Ed. 818, 822 (1947).

“Jurists and legal scholars have long deplored the absence of appellate review of trial court determinations fixing criminal sentences.” Stern, Government Appeals of Sentences: A Constitutional Response to Arbitrary and Unreasonable Sentences, 18 Amer.Crim.L.Rev. 51, 52. Because of gross and unjustifiable disparity in sentences imposed, a consensus has emerged in Pennsylvania in favor of sentencing guidelines. Those guidelines will be virtually meaningless and uniformity will not be achieved without a right of appellate review. This right to obtain appellate review of sentences has been given equally to defendants and the Commonwealth. Because this right exists, no sentence is final until the right of appellate review has been exhausted or waived. Accordingly, double jeopardy considerations do not preclude the application of Pa.R.Crim.P. 1410 to the Commonwealth.

This procedural rule establishes that a petition to modify is a preliminary step in the sentence review process. Its purpose is to give the sentencing court an opportunity to reconsider the sentence and correct any mistakes which may have been made. It also makes appellate review more meaningful. In view of these salutory purposes, we perceive no good reason for refusing to apply Rule 1410 to sentence review cases brought at the instance of the Commonwealth. Indeed, principles of equality alone suggest that it should be applied to the Commonwealth as well as to a defendant.

We hold, therefore, that Pa.R.Crim.P. 1410 is applicable according to its general terms to both parties, the defendant and the Commonwealth, when they seek appellate review of a sentence. Because in this case the Commonwealth failed to file a motion to modify the sentence as required by Pa.R.Crim.P. 1410, it waived the right to obtain appellate review thereof.

The judgment of sentence is affirmed.

      . Pursuant to post-verdict motions, judgment was arrested on the conviction for possessing an instrument of crime.

      . Section 5 of Act 319 is set forth in notes following 42 Pa.C.S. § 2155 and 42 Pa.C.S. § 9721.

      . Genesis II is an in-patient drug and alcohol treatment program conducted under the auspices of the Philadelphia Adult Probation Department.

      . Subsections (c) and (d) of Act 319 provide as follows:
      (c) The defendant or the Commonwealth may appeal as of right the legality of a sentence imposed pursuant to the provisions of subsection (a).
      (d) The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence imposed pursuant to the provisions of subsection (a) to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this section.

      . Subsection (h) of Act 319 provides: “No appeal of the discretionary aspects of the sentence pursuant to this section shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.” The practical effect of this provision is to make the Superior Court the final court of review.


author: HOFFMAN, Judge:

text:
    450 A.2d 1015
    James WILLIAMS, Appellant, v. Walter DOBRANSKY.
    Superior Court of Pennsylvania.
    Argued March 15, 1982.
    Filed Sept. 17, 1982.

      Howard T. Gilfillan, Pittsburgh, for appellant.
    Alan Shapiro, Pittsburgh, for appellee.
    Before SPAETH, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant contends that the lower court erred in granting summary judgment because: (1) ordering the case to compulsory arbitration precluded action upon appellee’s motion; and (2) appellant had adequately established a genuine issue of material fact as to whether he had suffered a medically determinable physical impairment preventing him from performing substantially all of his customary activities for more than sixty consecutive days. We hold that the compulsory arbitration order did not prohibit the court from entertaining appellee’s motion, but determine that summary judgment was inappropriate on the current record. Accordingly, we reverse and remand.

Appellant commenced this action against appellee to recover for personal injuries he had sustained in an automobile accident. On March 19, 1981, appellee filed a motion for summary judgment alleging that appellant had failed to overcome the statutory bar to his tort action by establishing a medically determinable physical impairment preventing him from performing substantially all of his customary activities for more than sixty consecutive days. On March 23, 1981, the lower court ordered the case to arbitration. Nearly a month later, it granted appellee’s motion for summary judgment. This appeal followed.

Appellant contends first that by ordering the case to compulsory arbitration, the lower court effectively stayed proceedings and thus precluded summary judgment. Although the statutes and rules governing certain forms of voluntary arbitration specifically provide that non-severable judicial actions or proceedings “shall be stayed if a court order to proceed with arbitration has been made,” 42 Pa.C. S.A. § 7304, nothing in the relevant statutes and rules governing this compulsory arbitration requires such a stay. 5 P.S. § 21; Pa.R.Civ.P. 1044(d); Allegheny County R.Civ.P. *301 et seq. Thus, there was no statutory or regulatory impediment to the concurrent actions of the court below. The purposes underlying compulsory arbitration and summary judgment are, moreover, not so inconsistent as to warrant deferral of one procedure to the other. Our Supreme Court has recognized that compulsory arbitration, enabled by statute and implemented by local rule, helps “[r]emov[e] smaller claims from the [trial] lists,” thus “pav[ing] the way for the speedier trial of actions involving larger amounts . . ., mak[ing] it possible for the immediate disposition of the smaller claims .. ., and freepng] courts for the speedier performance of other judicial functions.” Smith Case, 381 Pa. 223, 229, 112 A.2d 625, 629 (1955). Summary judgment procedures are likewise designed to aid the court and the parties to resolve those clearest of cases that present no genuine need for trial and are capable of resolution as matters of law. See, e.g., Amabile v. Auto Kleen Car Wash, 249 Pa. Superior Ct. 240, 376 A.2d 247 (1977). Accordingly, we hold that the lower court properly entertained appellee’s motion for summary judgment during the pendency of compulsory arbitration proceedings.

Appellant contends next that summary judgment was inappropriate because his deposition, answers to interrogatories, and doctor’s report establish a genuine issue of material fact as to whether he had suffered a medically determinable physical impairment preventing him from performing his customary activities for more than sixty consecutive days. Under the Pennsylvania No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, Art. Ill, § 301(a)(5)(C), 40 P.S. § 1009.301(a)(5)(C), appellant could bring this tort action for his personal injuries arising out of the maintenance or use of an automobile only if his medically determinable physical impairment prevented him from performing substantially all of his customary activities for more than sixty consecutive days. In Widziszewski v. Mashuda Corp., 288 Pa. Superior Ct. 191, 194-195, 431 A.2d 353, 355 (1981), this Court stated:

We cannot agree ... that “medically determinable” means the medical reports or bills have to indicate an inability to perform usual and customary activities. It is sufficient that medical treatment was received for an injury related to an accident. The legislative purpose in using the words “medically determinable” was to prevent abuse of this provision by individuals who suffered no injury, and required no medical attention, but desired to use their own self-serving statements concerning inability to perform their usual and customary activities to defeat the intent to the Act to abolish tort liability.

The treating physician’s report, included in the record, reveals that appellant had suffered lumbrosacral sprain and whiplash, was prescribed muscle relaxant drugs, pain-killers, ultrasound treatments, and massage, and was instructed to wear a neck collar. Appellant’s course of treatment encompassed twelve office visits over a three week period starting on the day of the accident. Appellant testified at his deposition that he had no prior back problems, that back pain and stiffness arose after the accident, and that the pain and stiffness prevented his return to work as a truck driver and a laborer during and after the treatment. Appellant also testified that he remained unemployed for forty-seven weeks after the accident, and that, upon his return, his ability to lift boxes was still impaired. Appellant admitted, however, that he returned to work only after encountering difficulty in collecting workmen’s compensation payments. We are satisfied that the record establishes the existence of a genuine issue of fact as to whether he had suffered a medically determinable physical impairment. Additionally, viewing the record in the light most favorable to appellant as the non-moving party. See, e.g., Schacter v. Albert, 212 Pa. Superior Ct. 58, 239 A.2d 841 (1968), there appears to be a genuine issue as to a material fact—whether his impairment prevented his performance of substantially all of his customary activities for more than sixty consecutive days. It may be, as appellant suggests, that he was unable to return to work. It might be, however, that appellant malingered. “[I]n passing upon a motion for summary judgment, it is no part of our function to decide issues of fact but solely to determine whether there is an issue of fact to be tried and all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.” Juarbe v. City of Philadelphia, 288 Pa. Superior Ct. 330, 334-335, 431 A.2d 1073, 1075 (1981), quoting Bollinger v. Palmerton Area Communities Endeavor, Inc., 241 Pa. Superior Ct. 341, 350, 361 A.2d 676, 680 (1976) (emphasis in original). See also Amabile v. Auto Kleen Car Wash, supra 249 Pa. Superior at 243-247, 376 A.2d at 249-51. The credibility of appellant’s testimony, the only evidence substantiating the causal connection between his injuries and disability, is exclusively for the finder of fact to assess. See Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Kent v. Miller, 222 Pa. Superior Ct. 390, 294 A.2d 821 (1972). In granting summary judgment, the lower court resolved disputed facts rather than deciding whether there was a disputed issue of fact. Accordingly, it should not have granted summary judgment.

Reversed and remanded.

JOHNSON, J., concurs in result.

      . “Voluntary arbitration,” one of the two basic forms of arbitration under Pennsylvania law, results from the parties agreement, and depending upon that agreement may be conducted under either common-law or statutory procedures. See 42 Pa.C.S.A. § 7304 (statutory arbitration); Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1977) (voluntary arbitration will be at common-law unless parties expressly agree to statutory arbitration).

        . “Compulsory arbitration,” here involved, is authorized by statute and imposed by local rule upon most civil cases with an amount in controversy below a specified amount. See 5 P.S. § 21 (repealed); 42 Pa.C.S.A. § 7361. See, e.g., Allegheny County R.Civ.P. *301 et seq.; Phila.Ct.R. 180. See generally, S. Feldman, Pennsylvania Trial Guide, Ch. 18 (1973 & Supp.1980). Since May 15, 1981 compulsory arbitration procedures have been specified in part by statewide rule, see Pa.R.Civ.P. 1301-1314, but at the time of the lower court’s actions below, were governed by the “practice and procedure of the repealed statute [5 P.S. § 21].” 42 P.S. 20003(b). See Explanatory Comment to Pa.R.Civ.P. 1301-1314 (until May 15, 1981, prior procedure, as amended and modified by Pa.R.Civ.P. 247.1, will remain in effect).

      . To avoid the confusion of unnecessary or inconsistent rulings, several multi-judge counties delegate to a single judge or group of judges all decisions regarding cases that have been referred to arbitration. See, e.g., Allegheny County R.Civ.P. *303 G; Phila.Ct.R. 180. In this case, from Allegheny County, one judge referred the matter to arbitration and another judge resolved the previously filed summary judgment motion. It does not appear from the record that this division of responsibilities violated the local rule.

      . Appellee contends that appellant has waived this issue because he did not raise it in timely exceptions. Rule 302(a) of the Pennsylvania Rules of Appellate Procedure does not specify any particular vehicle for preserving issues, but merely requires that all issues be raised below, and mandates that issues not preserved be deemed waived. We are satisfied that this record adequately shows that the issue has been preserved for appellate review. Paragraph five of appellant’s complaint specifically avers that appellant had suffered “injuries ... resulting] in physical impairment which prevented [him] from performing all or substantially all of the material duties which constitute his usual and customary activities for more than sixty (60) consecutive days.” Paragraph nine of appellee’s motion for summary judgment directly attacked that allegation, and the lower court’s opinion squarely addressed that issue.
      We realize, nonetheless, that some appellate issues arising from summary judgment proceedings, by their very nature, may not be so clearly focused by the pleadings and the summary judgment motion. However, Pa.R.Civ.P. 1035, governing summary judgment procedure, contemplates neither the filing of an answer to the motion for summary judgment, see Goodrich-Amram 2d § 1035 (1976), nor the filing of exceptions after an adverse decision on the motion. Cf. Pa.R.Civ.P. 1038(d) (exceptions after nonjury trial). Although there appears to be a gap between the preservation requirements of Pa.R. A.P. 302(a) and the current summary judgment practice under Pa.R. Civ.P. 1035, any response to the anomalous situation is wholly within the province of our Supreme Court and its various procedural rules committees.


author: CERCONE, President Judge:

text:
    450 A.2d 1018
    COMMONWEALTH of Pennsylvania v. Dennis HALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Sept. 24, 1982.

      Joseph M. Casey, Assistant Public Defender, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CERCONE, President Judge, and SPAETH and STRANAHAN, JJ.

      Pres. Judge John Q. Stranahan of the Court of Common Pleas of Mercer County, Pennsylvania is sitting by designation.

   CERCONE, President Judge:

This is an appeal from an adjudication of delinquency and order of commitment. We now reverse and discharge appellant because of insufficient evidence.

Appellant was stopped on a street in Philadelphia at approximately 3:00 a.m. on the morning of May 8, 1978 by one Officer Flynn. Appellant and a companion were briefly questioned whereupon the companion left with the officer’s permission but appellant was arrested. A delinquency petition charging him with possession of an instrument of crime and possession of a prohibited offensive weapon was filed against him that same day. A pre-trial hearing was held on May 23. On June 16, 1978 the juvenile court heard and denied a motion to suppress evidence. The court also held trial that day. It sustained appellant’s demurrer to the charge of possession of a prohibited offensive weapon. It thereafter adjudged him delinquent on the possession of an instrument of crime. Appellant was ordered committed to the Youth Development Center at Cornwall Heights. This appeal followed.

Appellant contends that the evidence was insufficient to show that he violated the Crimes Code section on which the delinquency adjudication was based. Section 907 “Possession of instruments of crime” reads:

(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(b) Possession of weapon.—A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
(c) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or specially adapted for criminal use; or
(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

“Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon. Because this was a delinquency petition the subsection which appellant was alleged to have violated was not set forth with specificity. Appellant’s contention is that the Commonwealth failed to meet its burden of proving his intent to employ the instrument of crime criminally. Of course, under In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) the burden of proving each and every element of a crime rests on the Commonwealth. The intent to employ the instrument of crime in a criminal manner is an element of both the offenses found in section 907, and must therefore have been proven by the Commonwealth beyond a reasonable doubt if the delinquency adjudication is to be affirmed.

Reading the evidence in the light most favorable to the verdict winner, the facts of the case at bar are these. At about 3:00 a.m. on the night in question Officer Flynn heard loud noises, as if someone were shouting, coming from the Raymond Rosen Project, which was but a short distance away. Upon his arrival at the scene he observed two young males shouting to a third male who was at the window in a nearby building. Officer Flynn approached the two and began to question them about their presence on the street at such a late hour. The first young man responded with his name and address and was directed to return home for violation of the curfew law when he admitted to being a juvenile. The officer then questioned the second young man, appellant, who was less cooperative. He appeared to be intoxicated and refused to supply the officer with his name and address, although he did claim to be twenty-one. Because of appellant’s appearance this claim of majority appeared to be false. Officer Flynn then turned appellant around to frisk him. Upon doing so he saw protruding from appellant’s rear pocket a state store price list wrapped around an ordinary steak knife. About a half an inch of the blade of that knife was exposed above the top edge of the folded price list. Appellant was immediately arrested. The question before us is whether this is enough evidence to show that appellant intended to employ the knife criminally. Appellant has not contested the evidence’s sufficiency as to any other point.

Let us consider the question first under Section 907(a). Appellant concedes that the evidence was sufficient to show that the steak knife was an “instrument of crime.” Steak knives, however, are not “specially made or specially adopted for criminal use.” 18 Pa.C.S. § 907(c) (“Instrument of Crime”) (1). If a steak knife were to be an instrument of crime it must be because knives are commonly used in crimes and possession of a knife in this instance was “under circumstances not manifestly appropriate for [its] lawful uses.” 18 Pa.C.S. § 907(c) (Instruments of Crime”) (2). However, the fact that the knife’s possession was not manifestly appropriate for its lawful uses at the time of appellant’s arrest does not relieve the Commonwealth of proving his intent to use it criminally. This must be shown beyond a reasonable doubt and by a showing of more than mere possession. See Commonwealth v. Moore, 259 Pa. Superior Ct. 560, 393 A.2d 967 (1978). And see Commonwealth v. Moore, 476 Pa. 19, 381 A.2d 845 (1978); Commonwealth v. Hardick, 475 Pa. 475, 380 A.2d 1235 (1977). The same can be said about section 907(b) as we have said about subsection (a). The steak knife is concededly a weapon, but mere possession is not enough to show that appellant intended to use it criminally.

In Commonwealth v. Moore, 259 Pa. Superior Ct. 560, 393 A.2d 967 (1978) we held that the evidence was insufficient to show that the juvenile defendant in that case had intended to use an unsheathed knife, the handle of which protruded from his waistband, in any criminal manner. There, as here, there was no attempt to use the weapon, let alone successful use of it, nor any attempt to reach for it. This is not a situation like that in Commonwealth v. Thornton, 494 Pa. 164, 430 A.2d 1168 (1981). In that case the defendant had a knife wrapped in newspaper concealed in his trousers which he then used to kill another young man who had been taunting him. The Court concluded there, as it has elsewhere, that the jury could infer from his actual criminal use of the knife that defendant had possession of it with the intent to employ it criminally. Such, however, is not the case here. It is clear that the steak knife was not actually used, and that no attempt to use it was made. Based on these facts, the court could reasonably have concluded that appellant possessed the knife under circumstances not manifestly appropriate for its lawful use. However, we do not believe that the evidence was sufficient to support the additional inference that appellant intended to employ it in a criminal manner.

Reversed and appellant discharged.

      . This case was reassigned to this writer on June 21, 1982.

      . 18 Pa.C.S. § 907.

      . 18 Pa.C.S. § 908.

      . The order of commitment was vacated on the same day the instant appeal was filed, pending our disposition of the matter.

      . Cf. Commonwealth v. Moore, 259 Pa. Superior Ct. 560, 393 A.2d 967 (1978).

      . See Commonwealth v. Keaton, 276 Pa.Super. 518, 419 A.2d 578 (1980) (evidence which established that defendant intentionally stabbed and killed his victim was sufficient to support convictions for murder in the first degree and possession of an instrument of crime); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (evidence which established that defendant intentionally stabbed and killed victim with a knife during a fight was sufficient to support convictions for voluntary manslaughter and possession of an instrument of crime); Commonwealth v. Allen, 466 Pa. 474, 353 A.2d 452 (1976) (evidence that, during the course of a violent domestic quarrel, defendant armed himself with a knife and, immediately thereafter, fatally stabbed his wife was sufficient to prove that he intended to employ the knife criminally).