author: KELLY, Judge:

text:
    621 A.2d 1038
    In the Interest of R.B., a Minor. Appeal of COMMONWEALTH.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1992.
    Filed March 16, 1993.

      John R. Morgan, Asst. Dist. Atty., Tunkhannock, for Com., appellant.
    Peter E. Walenta, Scranton, for participating party.
    Before CIRILLO, KELLY and HESTER, JJ.
   KELLY, Judge:

The Commonwealth brings this appeal asking us to determine whether appellee, a juvenile adjudicated dependent, in need of supervision as a result of inadequate parental supervision, in need of drug and alcohol evaluation and family counseling, and given over by the Juvenile Court to an open (non-secure) facility, was under “detention ... for law enforcement purposes ...” sufficient to sustain an adjudication of delinquency upon a charge of escape when appellee left the facility without permission. We hold that neither statutory nor case law permits the application of a criminal charge of escape or an adjudication of delinquency under the circumstances of this case. Thus, we affirm the trial court’s vacation of the delinquency adjudication and its dismissal of the juvenile petition charging the appellee with escape.

The relevant facts and procedural history of this case may be summarized as follows. On September 13, 1991, appellee, a minor, was adjudicated a dependent child pursuant to 42 Pa.C.S.A. § 6301 et seq. when he was found to be without proper parental care and control. The Juvenile Court further ordered appellee’s temporary legal custody transferred to the Lackawanna County Children and Youth Services and appellee was placed in the residential program at St. Michael’s School for Boys in Wyoming County, Pennsylvania. Appellee was so placed in order that he receive drug and alcohol evaluation as well as family counseling. Appellee’s continued placement was to be reviewed within thirty (30) days.

On September 23, 1991, appellee left the school premises without permission. He remained absent from St. Michael’s School until he called his counselor and agreed to turn himself in to the proper authorities later that same day. Appellee returned to St. Michael’s School and was immediately placed in a foster home, no longer to remain in the residential program at St. Michael’s.

On September 25, 1991, the Pennsylvania State Police filed a juvenile petition alleging that appellee had violated 18 Pa.C.S.A. § 5121 by unlawfully escaping from his “official detention” at St. Michael’s School, when he left the facility on September 23, 1991. On October 25, 1991, appellee was, by court order, again found to be a dependent child and to remain in the custody of the Lackawanna Children and Youth Services, residing in foster care until the next six-month review. An adjudication hearing on the charge of escape was held on November 12, 1991 in the Juvenile Division of the Wyoming County Common Pleas Court. At that hearing, appellee signed a stipulation, on advice of counsel, admitting that appellee had fled from St. Michael’s on September 23, 1991, and such flight, had appellee been an adult, would have constituted the crime of escape, a misdemeanor of the second degree. The stipulation was incorporated into the November 12, 1991 court order in which appellee was adjudicated a delinquent upon the charge of escape. Appellee’s case was transferred to Lackawanna County Common Pleas Court for disposition, as appellee was a resident of Lackawanna County.

Appellee, through new counsel, petitioned the court for reconsideration of its delinquency adjudication on the charge of escape. Appellee asserted that his adjudication of delinquency was improper because, at the time of his flight from St. Michael’s School, appellee was an adjudicated dependent juvenile in need of supervision, not an adjudicated delinquent. Moreover, appellee argued, the crime of escape requires a person to unlawfully remove himself from offlcial detention and the statutory definition of “official detention” under 18 Pa.C.S.A. § 5121(e) does not include “shelter care” placement of a dependent child as defined in 42 Pa.C.S.A. § 6302. Additionally, appellee contended that he had received ineffective assistance of prior counsel where prior counsel had advised appellee to sign the stipulation admitting escape despite the failure of prior counsel to inquire as to appellee’s status as a dependent child at the time he left St. Michael’s School. As such, appellee maintained, he was denied effective assistance of counsel at a critical stage of his juvenile criminal proceeding.

Upon reconsideration, the Wyoming County Court of Common Pleas found that a child absconding from a placement pursuant to dependency only was not committing a criminal offense and could not, therefore, be adjudicated delinquent on a charge of escape. Accordingly, by court order dated June 10, 1992, the Wyoming County Court of Common Pleas vacated its November 12, 1991 order adjudicating appellee a delinquent on the charge of escape, and dismissed the September 25, 1991 juvenile delinquency petition. The Commonwealth filed this timely appeal.

The Commonwealth styles its argument as an attempt to convince this Court that by adjudicating juvenile absconders guilty of escape and then finding them delinquent, the Juvenile Courts gain power to enforce their dependency orders. The Commonwealth suggests that the dependent juvenile is in “somewhat the same position as a person charged with a crime who is subsequently acquitted and/or the charge is dismissed or withdrawn.” Commonwealth’s Brief at 7. During the holding period, prior to trial or dismissal, a person charged with a crime would be guilty of escape if that person left the facility; and the same is true, reasons the Commonwealth, with regard to a dependent juvenile who leaves the facility or custody in which he is placed by the court. Otherwise, the Commonwealth concludes, the Juvenile Court mandates are rendered meaningless.

Appellee, on the other hand, contends that Pennsylvania law is well-settled to the contrary on the arguments raised herein by the Commonwealth. Specifically, appellee asserts that under present law, a dependent juvenile placed in an unrestricted shelter care facility cannot be found delinquent due to a charge of escape for running away from such a facility. For a dependent juvenile, unrestricted placement is not “official detention” within the meaning of the escape statute. Thus, concludes appellee, his status as a dependent juvenile at the time he absconded from St. Michael’s School safeguards him from the delinquency charges on the singular basis of escape. We agree.

According to 42 Pa.C.S.A. § 6302, a child is a “dependent child” if the child:

(1) is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental, or emotional health, or morals;
(2) has been placed for care or adoption in violation of law;
(3) has been abandoned by his parents, guardian, or other custodian;
(4) is without a parent, guardian, or legal custodian;
(5) while subject to compulsory school attendance is habitually and without justification truant from school;
(6) has committed a specific act or acts of habitual disobedience of the reasonable and lawful commands of his parent, guardian or other custodian and who is ungovernable and found to be in need of care, treatment or supervision;
(7) is under the age of ten years and has committed a delinquent act;
(8) has been formerly adjudicated dependent, and is under the jurisdiction of the court, subject to its conditions or placements and who commits an act which is defined as ungovernable in paragraph (6); or
(9) has been referred pursuant to section 6323 (relating to informal adjustment), and who commits an act which is defined as ungovernable in paragraph (6).

Moreover, a “dependent child” is distinguished, under the same section of the Juvenile Act, from a “delinquent child,” who is defined as: “A child ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation” (emphasis added). A “delinquent act” is intended to mean:

(1) The term means an act designated a crime under the law of this Commonwealth, or of another state if the act occurred in that state, or under Federal law, or under local ordinances.
(2) The term shall not include:
(i) The crime of murder.
(ii) Summary offenses, unless the child fails to comply with a lawful sentence imposed thereunder, in which event notice of such fact shall be certified to the court.
(iii) A crime committed by a child who has been found guilty in a criminal proceeding for other than a summary offense.

A further statutory distinction exists between a dependent juvenile and a delinquent juvenile, according to 42 Pa.C.S.A. § 6327, with regard to placement prior to adjudication. A child alleged to be delinquent may only be detained in (1) a licensed foster home or court-approved home, (2) a facility operated by a licensed child welfare agency or one that is court-appointed, (3) a detention home, camp, center or other facility for delinquent children ..., (4) or any other suitable place or facility designated or operated by the court and approved by the Department of Public Welfare. 42 Pa,C.S.A. § 6327(a). A child alleged dependent, however, may be placed only in a Department of Public Welfare approved shelter care facility as described in 42 Pa.C.S.A. § 6327(a)(1), (2) or (4) but not (3), and shall not be detained in a jail or other facility intended or used for the detention of adults charged with criminal offenses____ 42 Pa.C.S.A. § 6327(e).

Again in 42 Pa.C.S.A. § 6351(c), the statute limits the conditions of confinement of a juvenile adjudicated dependent such that “unless a child found to be dependent is found also to be delinquent, he shall not be committed to or confined in an institution or other facility designed or operated for the benefit of delinquent children.”

These distinctions regarding conduct and placement of juveniles who are dependent and juveniles who are delinquent reflect the clear legislative intent to protect juveniles adjudicated dependent, before and after their dependency adjudication. We cannot agree, therefore, with the Commonwealth’s analogy which places the adjudicated dependent juvenile in “somewhat the same position as a person charged with a crime who is subsequently acquitted and/or the charge is dismissed or withdrawn.” While it is true that during the holding period, prior to trial or dismissal, a person charged with a crime would be guilty of escape if that person left a detention facility without permission, a child adjudicated dependent has committed no crime nor been charged with a crime. Moreover, the dependent juvenile’s placement in an unrestricted shelter care facility also reflects the understanding that this placement is not a “detention for law enforcement purposes,” such that running away would be equivalent to escape.

Instantly, appellee was adjudicated a dependent juvenile in need of supervision (JINS) because he was without proper parental care or control. He was placed under the jurisdiction of Juvenile Court and under the protective services of the Children and Youth Services of Lackawanna County (CYS). No allegations of delinquent acts were made or proved at this time. Accordingly, appellee was sent to an unrestricted facility for evaluation and treatment. Appellee left this unrestricted shelter care facility on September 23, 1991, at which time appellee’s status was still that of a dependent juvenile.

The case of In Interest of Tasseing H., 281 Pa.Super. 400, 422 A.2d 530 (1980) presented this Court with the question of whether a child who absconds from shelter care ordered pursuant to a dependency petition may subsequently be found delinquent on the basis of contempt of court for leaving the shelter care facility without permission. Id. at 407, 422 A.2d at 533. The Court looked to the act supporting the finding of contempt, namely, the leaving of a non-secure shelter facility without permission. This act, concluded the Court, did not constitute an offense under the Crimes Code. Id. at 411, 422 A.2d at 535. Analogizing to the crime of escape, 18 Pa.C.S.A. § 5121, the Court also concluded that a charge of escape would not lie against a child who was classified as dependent at the time the child ran away from the shelter placement. Id.

In Commonwealth v. Feiek, 294 Pa.Super. 110, 439 A.2d 774 (1982), this Court again examined the issue of whether the conduct of running away from a shelter care facility was a delinquent act, as defined under 42 Pa.C.S.A. § 6302, where the juvenile was classified as a dependent child at the time she left the facility without permission. The court noted that the 1977 amendments to the Juvenile Act promulgated by our legislature reclassified status offenses as dependency rather than delinquency matters. Specifically, status offenses such as truancy, running away, and ungovernability were no longer delinquent acts. Id. at 114, 439 A.2d at 776. “As status offenses are not to be considered delinquent acts, the commission of such an offense is not sufficient criminal conduct which could lead the juvenile court to find a status offender delinquent.” Id. The Feick Court categorized the conduct of running away from a shelter care facility by a juvenile dependent as a status offense holding that the juvenile court’s adjudication of delinquency based on that conduct was erroneous. Id. at 115, 439 A.2d at 777.

The Commonwealth seeks to distinguish Tasseing H. and Feick on the basis that the charge involved therein was contempt, not escape, as in the instant case. The Commonwealth contends that by adjudicating absconders guilty of escape and then finding them delinquent, the juvenile court can exercise its power to enforce dependency mandates.

The policy considerations inherent in allowing the transformation of a juvenile dependent into a juvenile delinquent merely for leaving an unrestricted shelter care facility without permission were earefidly considered by the Supreme Court of New Jersey in the consolidated appeals of Interest of M.S., Interest of E.O., Interest of D.K, Interest of E.M., 73 N.J. 238, 374 A.2d 445 (1977). The difficulty with the approach in allowing the application of the “escape” label to such conduct on the ground that it is the only effective means of dealing with runaways is:

... while it solves the immediate problem by giving the court the right to resort to detention, it has at least two adverse consequences. First, the juvenile, originally classified as in need of supervision only, is subject to institutionalization with delinquents, many of whom have committed acts of violence' and brutality. Such institutionalization exposes the JINS to the very influences which the [Juvenile] Act seeks to avoid. Second, the JINS is adjudicated a delinquent, a term which “has come to involve only slightly less stigma than the term ‘criminal’ applied to adults.” In re Gault, 387 U.S. 1, 24, 87 S.Ct. 1428, 1441, 18 L.Ed.2d 527, 544 (1967). The after effects of labelling a child “delinquent” are particularly unfortunate for a JINS who is merely a runaway.

Id. 73 N.J. at 245, 374 A.2d at 448. The real solution, in most cases, opined the Court, lay in providing closer supervision and a closer exercise of authority by the shelter care personnel as a means of controlling unauthorized departures. Id. at 246, 374 A.2d at 448.

Instantly, appellee did not demonstrate the kind of incorrigible and chronic habitual runaway conduct that gives rise to concerns over the increased potential for delinquency and wasted adulthood. Here, appellee left St. Michael’s School, spent most of his time travelling home, where he called his counselor at the facility and arranged his return all in the same day. Appellee was immediately placed in foster care where he has remained, to the best of our knowledge, without incident. These facts do not compel us to reverse the trial court’s vacation of the delinquency adjudication and dismissal of the juvenile petition. Accordingly, we affirm.

Order affirmed.

      . 42 Pa.C.S.A. §§ 6302, 6341; this chapter may be cited as the "Juvenile Act.” See 42 Pa.C.S.A. § 6301.

      . 18 Pa.C.S.A. § 5121(e).

      . 42 Pa.C.S.A. §§ 6302, 6341.

      . 18 Pa.C.S.A. § 5121(a).

      . "Shelter care.” Temporary care of a child in physically unrestricted facilities. 42 Pa.C.S.A. § 6302.

      . The Official Comment to 42 Pa.C.S.A. § 6302 provides with regard to "delinquent child:”
      The definition of "delinquent child” derives from Section 2(3) of the Uniform Act where it is stated, in part that:
      "The conjunctive ‘and’ should be noted. Before the child can be characterized as a 'delinquent child’ he must be found (1) to have committed a ‘delinquent act’ and (2) to be in need of treatment or rehabilitation. The first finding is made in the adjudicative hearing on the merits of the allegations of delinquent acts' ascribed to the child and involves all of the due process of law safeguards prescribed by [In re] Gault [387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967)]. The second finding is made in the dispositional hearing and involves the ‘good will and compassion’ of the ‘kindly juvenile judge,’ taking into account the ‘emotional and psychological attitude’ of the child and having greater latitude in the information he may consider in making a disposition of the case. Gault and Williams v. People, 337 U.S. 241, 69 S.Ct. 1079 [93 L.Ed. 1337], ...”

      . See note 7 on page 63.

        7. 42 Pa.C.S.A. § 6302 as amended 1986, Dec. 11, P.L. 1521, No. 165, § 4.

      . Appellee was- placed in St. Michael's School for evaluation and treatment, not for detention, as this would have been contrary to 42 Pa.C.S.A. § 6351(c), which limits the confinement conditions of dependent juveniles. Arguably, St. Michael's School was a statutorily inappropriate placement for appellee once he was adjudicated dependent, because St. Michael's housed children alleged to be delinquent.

      . 18 Pa.C.S.A. § 101 et seq.

      . 18 Pa.C.S.A. § 5121 provides in relevant part:
      Escape
      (a) Escape. — A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period ...
      (e) Definition. — As used in this section the phrase “official detention” means arrest, detention in any facility for custody of persons under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation or parole, or constraint incidental to release on bail.

      . A status offense is conduct which if engaged in by an adult would not be legally prohibited. Commonwealth v. Feick, supra at 114, 439 A.2d at 776 n. 6, citing Interest if Tasseing H., supra, 281 Pa.Super. at 408, 422 A.2d at 533.


source: Caselaw Access Project

author: MONTGOMERY, Judge.

license: Public Domain

text:
    621 A.2d 1043
    GLEN HOPE BOROUGH, Appellant, v. Robert KITKO and Kenneth Kitko, T/D/B/A Kitko Wood Products, Inc., Appellees.
    Superior Court of Pennsylvania.
    Submitted Oct. 19, 1992.
    Filed March 23, 1993.

      John R. Carfley, Philipsburg, for appellant.
    Girard Kasubick, Philipsburg, for appellees.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

The plaintiff-appellant, Glen Hope Borough, instituted the instant action in the Court of Common Pleas of Clearfield County, seeking to enjoin the defendant-appellees from making use of and asserting title to certain property which the plaintiff claimed as part of its own street system. The plaintiff requested that the court declare it to be the owner of the property. The trial court, in response to a pretrial motion for summary judgment by the plaintiff, rejected the defendants’ contentions that they had a right to the land in issue based upon theories of abandonment or adverse possession. However, the trial court ruled that it would consider the defenses of estoppel and laches in its resolution of the case. A non-jury trial was held on those issues on July 24 and 25, 1990. By an order dated July 15, 1991, the trial court found in favor of the defendants and declared them to be the owners of the property. The trial court’s basis for so ruling was its determination that the plaintiff Borough was guilty of laches, and, further, that defendants had established the defense of estoppel. Following the denial of posttrial motions, and the entry of judgment, the plaintiff filed the instant appeal.

The property in question is a 33 foot wide strip of land which bisects property which at all relevant times has been owned by the defendants and/or their predecessors in title. Prior to 1930, the disputed strip of land had been maintained as part of the state highway system, and comprised part of a highway known as State Route 234. In approximately 1930, the property was abandoned by the Commonwealth when the highway was relocated. Part of former Route 234 passed through Glen Hope Borough, and after its abandonment, became a part of the plaintiffs street system. The section in dispute in these proceedings is a part of what became known as East Main Street in the Borough. The Borough performed some maintenance functions in the 1950’s, and again in 1969, on the part of East Main Street in dispute.

Since at least some time in the 1960’s, the defendants have made increasing use of the part of East Main Street which bisected their land. They located a wood products business on their property, and erected and used buildings on both sides of the disputed strip. Moreover, as their business expanded over the years, they regularly used the property in question for loading and unloading vehicles, and blocked it in various ways by their usage. Further, they placed pipes along it and across it. Finally, although it has never been paved, they regularly placed crushed limestone on it to maintain it for their use.

The defendants never obtained permission from the Borough for such uses of the former state roadway and Borough street. There is no dispute that the Borough never formally vacated the property. In fact, in 1971, the Borough instituted a criminal complaint against the defendants for violating a local ordinance by their obstruction of the street. Such criminal proceedings were never finally resolved and the presiding judge directed the parties to resolve their dispute through civil proceedings. No such civil proceedings were thereafter instituted by the plaintiff until the instant case was filed in 1987.

The defendants do not dispute the trial court’s determinations that they could not have acquired title to the property in question by either adverse possession or under a theory of abandonment. However, they maintain that the trial court acted properly in resolving the title'questions presented in this case when it ruled that they obtained their rights to the property as a consequence of the application of the doctrines of laches and/or estoppel.

The trial court ruled that laches was applicable because the plaintiff had failed to pursue any action to enforce its rights from 1971 until 1987, despite its knowledge that the defendants had regularly used the property as their own, and had maintained and made improvements to it throughout that time. It was the conclusion of the trial court that the doctrine of estoppel was applicable against the plaintiff because the plaintiff had taken no action despite having knowledge that defendants had taken control of the property, used it and maintained it, while expanding their business and integrating the property into it. The trial court found that there would be prejudice to the defendants if estoppel was not applied against the plaintiff in such circumstances.

In our review of the trial court’s rulings, we are mindful that the relief sought by the plaintiff in this case was equitable in nature, and the trial court decided this case based upon the equitable doctrines of laches and estoppel. In an equity case, a trial court’s findings of fact, when approved by the court an banc, have the force and effect of a jury verdict and will not be disturbed on appeal if supported by adequate evidence. Herwood v. Herwood, 461 Pa. 322, 336 A.2d 306 (1975). This principle is equally applicable in situations in which a single judge, as opposed to a court en banc, reviews the case. Gilmore v. Northeast Dodge Co., Inc., 278 Pa.Super. 209, 420 A.2d 504 (1980). However, the inferences and conclusions which are drawn from the facts, and the application of the law to such facts are always subject to review. Adler v. Montefiore Hospital Association of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974). In the instant case, we are constrained to find that the trial court committed an error of law.

In the case of Fried-El Corporation v. Borough of Monroeville, 81 Pa.Cmwlth. 493, 474 A.2d 713 (1984), an abutting landowner petitioned the trial court for the appointment of viewers to consider a request that a part of an abandoned state highway be vacated. After abandonment, the Borough of Monroeville had never maintained or used the property in question. The viewers filed a report concluding that the property belonged to the landowner and the matter was appealed to Common Pleas Court. The trial court determined that the property owner’s petition for the appointment of a board of viewers was premature, and the court was without power to order the vacation of the property until the landowner followed the appropriate procedure and petitioned the municipality to vacate the street. The landowner appealed that decision, and also petitioned Monroeville Borough to vacate the property. After the borough council denied that request, the landowner sought relief again from the Court of Common Pleas. That court ruled that the council had abused its discretion in refusing to vacate the property. Monroeville’s appeal from that decision was consolidated with the landowner’s prior appeal. The Commonwealth Court considered the situation, including assertions by the petitioning landowner that its claims to rights in the land could be based upon application of the doctrine of estoppel or on a theory of laches. The Commonwealth Court rejected such contentions in affirming the trial court’s initial order. It pointed out that there was no authority to indicate that a borough may forfeit its interest in property by inaction, whether under a doctrine of estoppel or under a claim that laches should be applied. In the Fried-El Corporation case, the Commonwealth Court agreed with the trial court’s conclusions that the property in question, which had formerly been a state road which had been abandoned, could not thereafter be given over to private interests without appropriate vacation proceedings before borough officials. If we were to find that the Clearfield County Court had ruled correctly in this case in applying the doctrines of laches and estoppel, we would, in essence, be permitting a vacation of the property to the defendants without the required formality of appropriate vacation proceedings. As discussed by the Commonwealth Court in its Fried-El Corporation decision, there is no authority for doing so.

As noted above, the defendants do not contend that they could have gained any rights to the land in dispute by a claim of title by adverse possession. In that regard, see Commonwealth, Department of Transportation v. J.W. Bishop & Company Inc., 497 Pa. 58, 439 A.2d 101 (1981). In Williamstown Borough Authority v. Cooper, 404 Pa.Super. 516, 591 A.2d 711 (1991), allocatur granted, 529 Pa. 651, 602 A.2d 861 (1992), our court reviewed an appeal in an ejectment action brought by a municipal authority. The defendants owned land which allegedly encroached upon land which contained a piping system of the plaintiff. The trial court concluded that the authority’s request for ejectment was barred by the doctrine of laches. In reversing the judgment of the trial court, our court explained that there was no reason why the doctrine of laches should succeed where an analogous claim of adverse possession against the governmental entity would fail. Our court recognized that the defense of laches should not be considered superior to the application of rules relating to adverse possession, which would not permit one to take property rights from a governmental entity. The same rationale is applicable in the instant case, and also supports a denial of any relief to the defendants on a theory of estoppel.

The trial court properly concluded that the defendants could gain no property rights to the part of the plaintiffs street in issue in this case through claims of abandonment or under the doctrine of adverse possession. However, the court erred in thereafter determining that the plaintiff could lose its rights and the defendants would gain an ownership interest in the land as a result of either laches or a theory of estoppel. We find that plaintiff Glen Hope Borough was entitled to its requested relief. The defendants should have been enjoined from their use of the land in issue, and a declaration should have issued that the plaintiff was entitled to title and possession of the land.

The judgment of the trial court is vacated and this case is remanded for entry of judgment consistent with this Opinion. Jurisdiction is not retained.


author: WIEAND, Judge.

text:
    621 A.2d 1046
    COMMONWEALTH of Pennsylvania v. William HOLLOMAN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 29, 1992.
    Filed March 22, 1993.

      Louis Lipschitz, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.

      . Appellant had been charged initially with the illegal possession of drags, but at trial the prosecuting attorney elected not to proceed with such charges. The trial court, however, made a pre-trial ruling that the Commonwealth would nevertheless be permitted to introduce evidence of the drags found in appellant’s apartment.

   WIEAND, Judge.

William Holloman, Jr. was tried by jury and was found guilty of robbery, aggravated assault, theft by receiving stolen property, possession of an instrument of crime and criminal conspiracy. Post-trial and supplemental post-trial motions were denied, and Holloman was sentenced to serve a term of imprisonment for not less than five (5) years nor more than ten (10) years. On direct appeal from the judgment of sentence, Holloman argues that a combination of trial court errors and improper conduct by the prosecuting attorney 'entitles him to a new trial.

On July 3, 1989, at or about 10:15 p.m., according to the Commonwealth’s evidence, appellant and Michael Rouse gained access to an office maintained by Rachael Thomas in an apartment building owned by her at 4240 Old York Road, Philadelphia. Rouse had been employed as a maintenance man by Thomas and apparently had a key by which entrance was effected. Appellant found Thomas in an adjacent bathroom, where he held a gun to her head while Rouse removed cash and jewelry. When Thomas began to struggle with appellant, he punched her in the face and jaw, and the gun was discharged. At that point, Rouse shouted, “Come on, man, let’s go, we got enough.” His voice was recognized by Thomas. Thereafter, the robbers fled the building.

Although Thomas called the police after the robbers had fled, she did not disclose immediately that she had recognized Rouse’s voice. Instead, by speaking with Rouse’s wife, she was able to obtain a return of some of the property which had been taken. Included in the laundry bag by which the property was returned to her was identification belonging to appellant. Subsequently, Thomas told police that she had recognized Rouse as one of the robbers and was able to identify appellant from a photograph as the second robber. A search of appellant’s apartment produced a gun which had been removed from Thomas’s office, cash in the amount of $375.00, and jewelry which had been taken in the robbery. During the search, police also found sixty (60) vials of crack cocaine and various items of drug paraphernalia. Following the search of his apartment, appellant was placed under arrest.

During direct examination at trial of Detective John Romana, a Commonwealth witness, the prosecuting attorney asked about statements made by appellant following his arrest. The following occurred:

Q. Did you have occasion after arresting Mr. Holloman to speak with him?
A Yes, ma’am, I did.
Q. And what if anything did he tell you?
MR. LIPSCHITZ: Objected to.
THE COURT: Objection overruled.
BY MS. WEINER:
Q. Go ahead.
A. I warned Mr. Holloman of his Constitutional Rights as per police card 75-Misc-3. He would not talk to me about anything concerning the robbery, but he did lay claim to the drugs that were found.

In response to defense objections to this testimony, the trial court instructed the jury as follows:

THE COURT: Members of the Jury, the witness indicated that Mr. Holloman refused to make any statement when he was arrested. He doesn’t have to say anything, he has a perfect right not to say anything and to keep quiet if he wishes to and under the law that cannot be used against him. You will ignore that comment.
All right, continue.

“It is a clear violation of the accused’s constitutional right against self-incrimination to make a reference at trial to his silence while in police custody.” Commonwealth v. Gbur, 327 Pa.Super. 18, 23, 474 A.2d 1151, 1154 (1984). See also: Commonwealth v. Singletary, 478 Pa. 610, 387 A.2d 656 (1978); Commonwealth v. Haideman, 449 Pa. 367, 296 A.2d 765 (1972). In some instances, however, a prompt cautionary instruction may be sufficient to overcome an improper reference to a defendant’s post-arrest silence which might otherwise result in reversible error. Commonwealth v. Anderjack, 271 Pa.Super. 334, 341-344, 413 A.2d 693, 697-698 (1979). See also: Commonwealth v. Maloney, 469 Pa. 342, 349, 365 A.2d 1237, 1241 (1976); Commonwealth v. Gbur, supra 327 Pa.Super. at 24, 474 A.2d at 1154; Commonwealth v. Williams, 252 Pa.Super. 435, 446, 381 A.2d 1285, 1291 (1977). Instantly, the witness’s remark about appellant’s post-arrest silence was brief. It does not appear that the remark was intentionally solicited by the prosecuting attorney, nor did the prosecutor make any attempt to exploit the remark. We conclude, therefore, that the reference to appellant’s silence following arrest does not require a new trial.

Appellant also complains that it was error for the trial court, over defense objection, to allow evidence that drugs were found in his apartment. The law pertaining to evidence of criminal conduct other than that for which a defendant is being tried was summarized by the Pennsylvania Supreme Court in Commonwealth v. Billa, 521 Pa. 168, 555 A.2d 835 (1989), as follows:

Evidence of a defendant’s distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491, 497 (1988). However, this general proscription against admission of a defendant’s distinct criminal acts is subject to numerous exceptions where special circumstances exist which render such evidence relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character. Some of the exceptions that this Court has recognized in the past as legitimate bases for admitting evidence of a defendant’s distinct crimes include (but are not limited to): (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one naturally tends to prove the others; (5) to establish the identity of the person charged with the commission of the crime on trial where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant’s prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or sequence of events which formed the history of the case and were part of its natural development (sometimes called “res gestae” exception). See Commonwealth v. Lark, supra, 518 Pa. at 302, 543 A.2d at 497 and cases cited therein, and Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987).

Id. 521 Pa. at 177, 555 A.2d at 840. See also: Commonwealth v. Tedford, 523 Pa. 305, 329, 567 A.2d 610, 621 (1989); Commonwealth v. Donahue, 519 Pa. 532, 539-541, 549 A.2d 121, 125-126 (1988). However,

[e]ven if a particular exception applies, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984), appeal after remand, 343 Pa.Super. 189, 494 A.2d 420 (1985) overruled on other grounds by Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988). A trial court’s decision to admit evidence of other crimes committed by a defendant will not be reversed on appeal unless the trial court abused its discretion. Commonwealth v. Green, 351 Pa.Super. 170, 505 A.2d 321 (1986).

Commonwealth v. Nelson, 389 Pa.Super. 417, 425, 567 A.2d 673, 677 (1989). See also: Commonwealth v. Billa, supra 521 Pa. at 177-178, 555 A.2d at 840; Commonwealth v. Lark, 518 Pa. 290, 310, 543 A.2d 491, 501 (1988).

The Commonwealth contends that the presence of drugs and drug paraphernalia in appellant’s apartment was relevant to show the history of the events on trial. In this regard, the Supreme Court has observed:

Another “special circumstance” where evidence of other crimes may be relevant and admissible is where such evidence was part of the chain or sequence of events which became part of the history of the case and formed part of the natural development of the facts. Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080, 1082 (1985), quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932). This special circumstance, sometimes referred to as the “res gestae” exception to the general proscription against evidence of other crimes, is also known as the “complete story” rationale, i.e., evidence of other criminal acts is admissible “to complete the story of the crime on trial by proving its immediate context of happenings near in time and place.” McCormick, Evidence, § 190 (1972 2d ed.); Carter v. United States, 549 F.2d 77 (8th Cir.1977); United States v. Weeks, 716 F.2d 830 (11th Cir.1983); see also Commonwealth v. Coyle, 415 Pa. 379, 389-91, 203 A.2d 782, 787 (1964) (evidence of other crimes admissible as these crimes were interwoven with crimes for which defendant was being prosecuted).

Commonwealth v. Lark, supra, 518 Pa. at 303-304, 543 A.2d at 497. See also: Commonwealth v. Brown, 462 Pa. 578, 590-591, 342 A.2d 84, 90 (1975); Commonwealth v. Nolen, 390 Pa.Super. 346, 352-353, 568 A.2d 686, 689-690 (1989), allocatur granted, 525 Pa. 644, 581 A.2d 570 (1990); Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985).

The evidence in the instant case failed to establish that the sixty (60) vials of crack cocaine and drug paraphernalia found in appellant’s apartment during the search by police had any connection with or relevance to the robbery with which appellant had been charged. Thus, the presence of the drugs did not provide enlightenment to the jury in any way regarding whether it was appellant who had participated in the robbery of Thomas’s office. Because of the absence of relevance, the jury should not have been allowed to consider the presence of drugs in appellant’s apartment. It served only to prejudice appellant unfairly. See: Commonwealth v. Lee, 297 Pa.Super. 216, 443 A.2d 804 (1982). See also: Commonwealth v. Martinez, 301 Pa.Super. 121, 447 A.2d 272 (1982); Commonwealth v. Hude, 256 Pa.Super. 439, 390 A.2d 183 (1978).

The prosecuting attorney not only elicited explicit testimony regarding the finding of the drugs, but thereafter she was allowed to cross-examine appellant about whether he intended to use them or sell them. Finally, in summation to the jury, the prosecuting attorney argued:

July 12th of 1989 you heard from Detective Romano a search was made of William Holloman’s residence, 4705 Greene Street and what is recovered? Her jewelry, her gun and his own stash. He has his own gun, his own ammunition, his own crack, money, packets, vials, scales. Guns Are Us, 4705 Greene Street. This is a man who tells you you should have pity on him, you should feel sorry for him. You are going to hurt his young life. [A] man who thinks he is the law — above the law. You heard him testify. It is all a big joke.
Members of the Jury, let’s talk about Mr. Holloman, Mr. I-am-the-law Holloman, Billy. No, he is not Billy. Mr. Defendant Holloman who has all these guns in his house, his crack, his cute little children in that same house and his wife? Why do you have to buy stuff on the street? You couldn’t get it legitimately, you don’t have a right to buy a gun? No. You don’t have a right to carry a sawed-off shotgun which is illegal in Pennsylvania? Are you a dealer? I’m not saying that. Are you a user? No, I’m not saying that. He is a poor, unfortunate black that has been unjustly accused?

All of this served no proper purpose. It permitted the prosecution to portray appellant as a man of bad character, a criminal, who had broken and had no respect for the drug law, while shedding no light on appellant’s guilt or innocence of the charges for which he was being tried. This was clearly and unfairly prejudicial. We hold, therefore, that the trial court erred when it allowed the Commonwealth to produce evidence that drugs were found in appellant’s apartment while police were executing a warrant to search for the fruits of a robbery.

A new trial is also required because of the prosecuting attorney’s refusal to accept and her repeated attempts to override the trial court’s ruling that appellant’s failure to appear on the first day of trial could not be used as evidence of guilt. A jury had been selected on Wednesday, July 3, 1991, and trial was scheduled to begin on Friday, July 5,1991, after the holiday. Appellant was present on July 3 but failed to appear on July 5. Therefore, the taking of testimony was continued until Monday, July 8, 1991. On that day appellant appeared and accounted for his absence on Friday, explaining to the court out of the hearing of the jury:

Thursday on the holiday, I got a little carried away drinking and I didn’t have a way back and then I had my father get in contact with Mr. Lipschitz and he had to pay my fare back.

On the third day of trial, while cross-examining appellant, the prosecuting attorney initiated the following:

Q. Sir, do you remember picking a jury last week on July 3rd. You were here for that, weren’t you?
A. I didn’t pick it, no.
Q. You were here, weren’t you?
A. Yeah.
Q. You weren’t here on Friday, were you?
A. No.
Q. We missed you Friday. Where were you, sir?
MR. LIPSCHITZ: I object to that.
THE COURT: Objection sustained.
BY MS. WEINER:
Q. So, while the jury was here all day Friday waiting for you you weren’t here, were you?
MR. LIPSCHITZ: I object to that statement, argument, it is improper.
THE COURT: Objection sustained.
BY MS. WEINER:
Q. When the jury was sworn you weren’t here, were you? MR. LIPSCHITZ: I object.
THE COURT: Sustained.
BY MS. WEINER:
Q. You didn’t show up because you were guilty, did you? A. No.
MR. LIPSCHITZ: I object.
JUROR NO. 12: I can’t hear. I can’t hear.
THE COURT: Would you do the jurors a favor, speak up. Speak up.
JUROR NO. 14: No, no, it is her.
JUROR NO. 6: No, it is the DA.
THE COURT: Miss Weiner, speak up.
MS. WEINER: I will speak up.
BY MS. WEINER:
Q. You weren’t here Friday were you?
A. No.
Q. You weren’t in Philadelphia on Friday, were you?
A. No.
Q. Even though you knew you were on trial on Friday? MR. LIPSCHITZ: I object, if your Honor please.
THE COURT: Objection sustained.
BY MS. WEINER:
Q. You went out of town before Friday?
MR. LIPSCHITZ: I object, it is repetitive.
THE COURT: Sustained, sustained, sustained.
BY MS. WEINER:
Q. Sir—
THE COURT: That was covered by the court specifically-

Finally, in her closing statement, the prosecuting attorney advanced the following argument:

What about Mr. Holloman? We were here when we picked this jury July 3rd, 1989-91, two years the anniversary of this crime. July 5th I was here; you were here; he was here. Where is Mr. Holloman? He is not even here. Is that the act of someone who is an innocent man? Again you are going to hear from the judge about that. What did he tell you? He told you from the stand, no, I didn’t come to court on Friday. You know why? Because in his mind this is all a big joke. This is a big joke, the guns are a joke, the crack is a joke and I will live my life any way I see fit.
You know, Members of the Jury, the joke is over because quite frankly July 4th of 1991 it is this woman’s Independence Day. It is enough already for the fear and horror she has had to live with for two years now these people are finally before a court of law and now, Members of the Jury, it is your turn.

When a defense motion for mistrial was finally made, it was denied by the trial court.

In Commonwealth v. Babbs, 346 Pa.Super. 498, 499 A.2d 1111 (1985), the Superior Court held that the mere failure of a defendant to appear for trial, without evidence of flight or concealment, was an insufficient basis on which to base an inference of consciousness of guilt. The Court reasoned as follows:

The rule of law in this Commonwealth is that “[w]hen a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred.” Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782, 789 (1964). Accord: Commonwealth v. Whack, 482 Pa. 137, 142-143, 393 A.2d 417, 419-42(1 (1978); Commonwealth v. Tinsley, 465 Pa. 329, 333, 350 A.2d 791, 792-793 (1976). This rule has not heretofore been expanded to permit an inference of guilt merely because a defendant has failed to appear for trial. A failure to appear on the day set for trial does not have the same connotation as pre-arrest flight or concealment and cannot be said to point unerringly to consciousness of guilt.

Id. at 502, 499 A.2d at 1113. See also: Commonwealth v. Carter, 409 Pa.Super. 184, 193, 597 A.2d 1156, 1160 (1991); Commonwealth v. Barnes, 406 Pa.Super. 58, 61-62, 593 A.2d 868, 869-870 (1991).

Here, there was no evidence that appellant had fled or attempted to conceal his whereabouts to avoid prosecution. His failure to appear on the first day of trial was explained to the court but was not heard by the jury. The prosecuting attorney thereafter questioned appellant vigorously about his absence from court, ignored several rulings by the trial court which sustained defense objections to her line of questioning, and, finally, asked the jury in closing to consider whether appellant’s failure to appear was the act of an innocent man.

The prosecuting attorney also told the jury that the trial court would give them an instruction pertaining to appellant’s absence from court. The trial court, in fact, gave an instruction to the jury on flight and the inference of guilt which might be drawn therefrom, but the court’s instruction was directed to the conduct of the co-defendant, Rouse, who had attempted to flee to avoid prosecution. The court’s instruction was as follows:

Now, there was evidence, particularly with respect to Mr. Rouse, including the — there was evidence which tended to show that he fled from the police and as I recall it he took off for Chester County — Chester shortly after the incident, but at any rate that is for you to decide and not for me to decide, but with respect to that evidence, the credibility and weight of that evidence is for you to decide. Generally speaking, when a crime has been committed and a person thinks he is or may be accused of committing it and he flees, such flight is a circumstance tending to prove the person is conscious of guilt. However, such flight does not necessarily show consciousness of guilt in every case. A person may flee for some other motive and may do so even though innocent. Where the evidence of flight in this case should be looked at as tending to prove guilt depends upon the facts and circumstances of this case and especially upon motives which may have prompted the flight. You may not find the defendant guilty solely on the basis — that is Mr. Rouse — guilty solely on the basis of evidence of flight.

Although no instruction was given to the jury regarding appellant’s failure to appear on the first day of trial, the jury was not specifically told that the court’s instruction regarding flight did not pertain to him.

After careful consideration, we are persuaded that the prosecuting attorney’s conduct, her disrespect for the court’s rulings, and her attempt to have the jury infer guilt from Holloman’s absence on the first day of trial, were of such character as to prejudice the defense unfairly and require the grant of a new trial. A jury, on this record, may well have determined that appellant’s failure to appear on the day following the 4th of July was, without more, some evidence of guilt. Indeed, this was precisely what the prosecuting attorney attempted to have the jury do.

We find no merit in appellant’s contention that his wife refused to testify as a defense witness because of threats by the prosecuting attorney to prosecute the wife if she testified on appellant’s behalf. The prosecuting attorney’s comments raising potential self-incrimination problems of the wife were made at side-bar, and the trial court thereafter appointed counsel to represent appellant’s wife. The reason for her leaving the courtroom does not appear. Therefore, it cannot be said that the trial court abused its discretion when it required that the trial proceed without the witness.

“In all criminal prosecutions, the accused shall enjoy the right ... to have compulsory process for obtaining witnesses in his favor.” United States Constitution, Amendment VI. “The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense.... This right is a fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967). See: Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297, 312 (1973) (“Few rights are more fundamental than that of an accused to present witnesses in his own defense.”). The defendant’s Sixth Amendment right to call witnesses favorable to his defense mandates that such witnesses be free to testify without fear of prosecutorial retaliation. United States v. Blackwell, 694 F.2d 1325, 1334 (D.C.Cir.1982). See: Commonwealth v. Jennings, 225 Pa.Super. 489, 493, 311 A.2d 720, 722 (1973) (“[T]he accused is entitled to protection from the state’s abuse of its prosecutorial machinery which tends to ‘effectively drive the witness off the stand.’”).

“Under certain circumstances, intimidation or threats that dissuade a potential defense witness from testifying may infringe a defendant’s due process rights.” United States v. Pinto, 850 F.2d 927, 932 (2nd Cir.1988), cert. denied, 488 U.S. 867 and 932, 109 S.Ct. 174 and 323, 102 L.Ed.2d 143 and 341 (1988). See, e.g.: Commonwealth v. Jennings, supra (due process violated where prosecutor’s warning to defense witness of right against self-incrimination was given in a manner designed to exert such duress upon witness as to preclude free and voluntary choice whether to testify at defendant’s trial). But compare: Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975) (prosecutor’s justifiable warning to potential defense witness of right against self-incrimination did not violate due process where the warning was not in the nature of a threat). See also: Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Jackson, 935 F.2d 832, 846-847 (7th. Cir.1991).

To establish a fourteenth amendment due process violation based on the denial of the right to compulsory process, a defendant must establish “more than the mere absence of testimony.” United States v. Valenzuelar-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982). There must be a plausible showing that an act by the government caused the loss or erosion of testimony that was both material and favorable to the defense. Id.

Griffin v. Davies, 929 F.2d 550, 553 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 223, 116 L.Ed.2d 180 (1991). Therefore, in order to prevail on such a due process claim, “an accused must, at a minimum, demonstrate some plausible nexus between the challenged governmental conduct and the absence of certain testimony.” United States v. Hoffman, 832 F.2d 1299, 1303 (1st Cir.1987). See also: United States v. Theresius Filippi, 918 F.2d 244, 247 (1st Cir.1990).

In the instant case, appellant has not been able to establish a causal nexus between the conduct of the prosecutor and the absence of his wife’s testimony. Our review of the record discloses that the assistant district attorney’s comments regarding appellant’s wife and her potential legal problems were directed to defense counsel and to the trial court, and not to appellant’s wife. Indeed, there is no indication in the record that appellant’s wife was even in the courtroom at the time the comments were made. Thus, the only support in the record for appellant’s position is the speculation of defense counsel that appellant’s wife “apparently heard” the prosecutor’s remarks and, therefore, left the courtroom because of fear that she would be prosecuted. Without evidence, we are unwilling to assume that the prosecuting attorney’s comments intimidated appellant’s wife and thereby deprived him of the benefit of her testimony at trial.

Nevertheless, for the reasons cited, a new trial is necessary.

The judgment of sentence is reversed and the case is remanded for a new trial. Jurisdiction is not retained.

      . Holloman was tried jointly with a co-defendant, Michael Rouse. Rouse was also convicted of robbery and criminal conspiracy but acquitted of aggravated assault, theft by receiving stolen property and possession of an instrument of crime.

      . This sentence followed a motion to modify sentence after the trial court had initially imposed a sentence of imprisonment for not less than ten (10) years nor more than twenty (20) years.

      . At the hearing on post-trial motions, appellant did not call his wife to testify, nor did he in any other way substantiate the allegation that his wife had been coerced by the Commonwealth not to testify. See: Commonwealth v. DiGiacomo, supra 463 Pa. at 453-454, 345 A.2d at 607.


author: CIRILLO, Judge.

text:
    621 A.2d 1054
    BANKERS TRUST COMPANY, Trustee for American Housing Trust, Appellant v. John E. FOUST.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed March 23, 1993.

      Valentina G. Viletto, Philadelphia, for appellant.
    Plenry J. Sommer, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CIRILLO, Judge.

This is an appeal of an order entered by the Court of Common Pleas of Philadelphia County sustaining preliminary objections and dismissing the complaint in ejectment. We reverse.

Appellant Bankers Trust Company (mortgagee), through its assignor, entered into an installment contract for the sale of real estate with appellee John E. Foust (mortgagor). The mortgagor failed to make timely payments under the mortgage and the mortgagee sent notice of its intention to terminate the installment contract and take possession of the real estate pursuant to the Pennsylvania Act of 1974, No. 6, 41 P.S. § 101 et seq. (the Act or Act 6). The mortgagor filed preliminary objections to the complaint in ejectment and alleged that the notice sent to him was defective pursuant to section 403 of the Act. The trial court found that notice was defective and dismissed the complaint based on the lack of subject matter jurisdiction. We are asked to consider the following issues:

1. Whether Act 6 notice which conforms with the notice prescribed by the Secretary of Banking properly complies with the requirements of section 403?
2. Whether section 403 requires a mortgagee to provide all necessary formulas, to enable a debtor to calculate interest, fees and other charges that accrue from the date of default up to the date of curing the default, in the Act 6 notice?
3. Whether section 403 requires a mortgagee to include in the Act 6 notice that there is an absolute right to have a buyer assume the mortgage?

Act 6 is essentially a comprehensive interest and usury law with numerous functions. Beckett v. Laux, 395 Pa.Super. 563, 577 A.2d 1341 (1990) (citation omitted). The Act’s provisions regulating loan interest and notice of foreclosure for owners of relatively modest homes was intended to afford homeowners who are in dire economic straits a measure of protection from overly zealous “residential mortgage” lenders. Continental Bank v. Rapp, 336 Pa.Super. 160, 485 A.2d 480 (1984). The installment plan contract at issue in the instant case qualifies as a residential mortgage and accordingly, the mortgagor was entitled to the notice protections afforded under the Act. Anderson Contracting Co. v. Daugherty, 274 Pa.Super. 13, 417 A.2d 1227 (1979), appeal dismissed, 492 Pa. 630, 425 A.2d 329 (1980).

Before a mortgagee may proceed to foreclose or accelerate payment under the mortgage, section 403 provides that notice be given of the mortgagee’s intention and that the mortgagor be provided at least thirty days to cure the default. 41 P.S. § 403(a). Section 403 provides that the notice of intention by the mortgagee must consist of the following:

(b) Notice ... shall be in writing, sent to the residential mortgage debtor by registered or certified mail at his last known address and, if different, at the residence which is the subject of the residential mortgage.
(c) The written notice shall clearly and conspicuously state:
(1) The particular obligation or real estate security interest;
(2) The nature of the default claimed;
(3) The right of the debtor to cure the default as provided in section 404 of this act and exactly what performance including what sum of money if any, must be tendered to cure the default;
(4) The time within which the debtor must cure the default;
(5) The method or methods by which the debtor’s ownership or possession of the real estate may be terminated; and
(6) The right of the debtor, if any, to transfer the real estate to another person subject to the security interest or to refinance the obligation and of the transferee’s right, if any, to cure the default.

41 P.S. § 403(b), (c) (emphasis added). This court has previously considered Foust’s third issue presented in N. Y. Guardian Mortg. v. Dietzel, 362 Pa.Super. 426, 524 A.2d 951 (1987). In N.Y., this court found that a notice of foreclosure under section 403(c)(6) of the Act did not require the mortgage lender to specifically include a statement that there was an absolute right to have the buyer assume the mortgage. This finding was premised upon the plain and common meaning to be given to the words in the Act. Instantly, it is the emphasized portion of subsection (3) that is the focus of this appeal. We find that, as was the case in N.Y., Foust’s contentions pertaining to subsection (3) are likewise contrary to the plain meaning of the Act and are without merit.

Here, the trial court held that section 403(c)(3) not only required a mortgagee to provide notice of the amount of the monthly payment, the months this amount was not paid, the amount of late charges that have accrued since default and the total amount presently due as of the date of notice, but also required the mortgagee to provide a daily accounting of late charges, the day of the month that late charges accrued, the day on which additional monthly payments began to accrue, and the formulas which the mortgage company used to compute the late charges. In essence, the trial court is requiring the mortgagee to include the precise formula for calculating all charges from the date of default, up to the date of notice, and the amount of charges that will accrue daily up to and ending on the thirtieth day curing period. •

The lender argues that it provided proper notice under section 403 and further relies on the model notice of foreclosure promulgated and provided by the Secretary of Banking. The Act provides that the Secretary of Banking shall prescribe regulations to carry out the purposes of the Act. 41 P.S. § 601. Pursuant to section 601 and the authority located in 7 P.S. § 6020-166, the Secretary issued regulation 10 Pa.Code § 7.4 setting forth a model form of notice to be used by lenders. The mortgagor argues that the model form is discretionary and therefore contrary to the full disclosure intended by the legislature in passing the Act. Where, as here, there is a conflict between a statute and a regulation, the regulation must give way. See Commonwealth v. DeFusco, 378 Pa.Super. 442, 549 A.2d 140 (1988), appeal dismissed, 523 Pa. 425, 567 A.2d 1043 (1990); Lookenbill v. Garrett, 340 Pa.Super. 435, 490 A.2d 857 (1985). The trial court agreed and found that is was not constrained to follow an improperly conceived administrative regulation which contradicts the statute under which it was promulgated. See Consulting Engineers v. Licensure Bd., 522 Pa. 204, 560 A.2d 1375 (1989).

The impetus for the trial court’s decision comes from a vast number of Philadelphia County decisions which have evolved since 1979. The trial court and the appellee also rely on several Eastern District of Pennsylvania bankruptcy decisions that have held that a mortgagor’s failure to provide the formula to the debtor to calculate the “exact” amount due to cure the default violated the Act. See In re Mosley, 85 B.R. 942 (1988); In re Rowe, 110 B.R. 712 (1990); Werts v. FNMA 48 B.R. 980 (1985). This precedent offers no guidance as these bankruptcy decisions garnered their understanding and interpretation of existing Pennsylvania case law from the Philadelphia Court of Common Pleas decisions.

It is highly impractical, especially when you consider that this class of homeowners requires extra protection due to its status, that the lender be required to provide complex formulas with fluctuating variables to help them determine the amount owed to cure the default on any given day over the following thirty days. Accordingly, we disagree with the trial court that the form promulgated by the Secretary of Banking contradicts the provisions of the Act and that notice was defective.

Words of a statute must be construed according to their common and accepted usage. 1 Pa.C.S.A. § 1903; Fireman’s Fund Ins. v. Nationwide Mut. Ins., 317 Pa.Super. 497, 464 A.2d 431 (1983). Subsection (3) states that the mortgagee must give notice of the exact amount to be tendered to cure the default. It says nothing about requiring a mortgagee to provide detailed formulas to allow a mortgagor to calculate the amount to be tendered over the next thirty days of the curing period. Rather, we read the plain language of subsection (3) as indicating that a mortgagee need only provide the amount to cure the default which has accrued as of the date of notice. Should a mortgagor be left with any questions regarding the amount due because of his or her continued default after the date of the notice, the mortgagee’s inclusion of a phone number to provide assistance sufficiently cures any potential notice defects.

Resolution of the instant matter turns on the degree of disclosure the legislature intended under section 403 notice provisions. A court interpreting a statute must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. 1 Pa.C.S.A. §§ 1921, 1922; Consulting, supra. Interpreting the words of the statute according to their common and accepted usage, we find that the trial court erred in its determination that the notice was deficient. The trial court’s interpretation of section 403(c)(3) would effectuate a modification of the notice provisions that cannot be ascertained from the plain language of the Act. The legislature does not intend a result that is absurd and unreasonable. 1 Pa.C.S.A. § 1922; Consulting, supra. Instantly, we find that the legislature did not intend such unworkable and impracticable ramifications in passing the Act. Specifically, we find that the trial court’s determination that the section 403 notice in the instant was case was deficient to be error.

Order reversed.

      . Proper notice requirements pursuant to Act 6 are a prerequisite to the court’s subject matter jurisdiction over the mortgagee’s foreclosure action. Philadelphia Housing Authority v. Barbour, 405 Pa.Super. 140, 592 A.2d 47 (1991), allocatur granted, 528 Pa. 631, 598 A.2d 284 (1991).

      . For a transaction to qualify as a residential mortgage under the Act there must be an obligation to pay an original bona fide principal amount of $50,000.00 or less, and it must be evidenced by a security document, secured by a lien upon real property in Pennsylvania, and contain two or fewer residential units or on which two or fewer residential units are to be constructed. 41 P.S. § 101. Both parties to the action agree that resolution of the instant matter is to be determined under the provisions of the Act


author: JOHNSON, Judge: TAMILIA, Judge,

text:
    622 A.2d 286
    Renee Y. HACKNEY, Appellant, v. John O. WOODRING, Jr. & Lipco, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1992.
    Filed Jan. 25, 1993.
    Reargument Denied April 2, 1993.

      Robert Glessner, York, for appellant.
    Larry C. Heim, York, for appellee.

      Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

This is an appeal from the grant of judgment notwithstanding the verdict on the ground that the evidence presented at trial was insufficient, as a matter of law, to create an issue of fact for the jury on a claim of intentional infliction of emotional distress. We reverse.

On July 9, 1979, Renee Hackney filed a Complaint seeking damages for various torts, including assault, battery, false imprisonment, and intentional infliction of emotional distress based on the conduct of her employer, John Woodring, at the Little People Day Care Center. Hackney, an eighteen year old college student, was employed as a teacher’s aide at the day care center during the time when the conduct occurred. Hackney contended that Woodring had, during numerous incidents, forcibly held her down on his lap, and engaged in unwanted touching, fondling, and spanking. Hackney also told of one incident in which Woodring threatened Hackney’s life while ripping off her clothes and exposing himself before the presence of a janitor on the school grounds forced him to stop his attack. Hackney testified that whenever she had contact with Woodring, she became frightened and upset and broke out in a red blotchy rash. Her grades at college fell. Hackney also testified that while she suffered from humiliation, loss of self-esteem, nightmares and insomnia, she never sought the help of a physician or psychologist for her problems. Woodring, after spreading rumors about Hackney, eventually discharged her from her job at the school, after publicly praying over her. Hackney testified that her loss of self-esteem and humiliation were so great she felt forced to relocate to another state.

A jury trial was held on August 5 and 6, 1991. The jury found in favor of Woodring on the claims for assault, battery, and false imprisonment, but, found in favor of Hackney on the claim for intentional infliction of emotional distress. The jury awarded Hackney $15,000 in compensatory damages.

Following the jury verdict, Woodring filed a motion for judgment notwithstanding the verdict, pursuant to Pa.R.C.P. 227.1(a)(3), on the ground that Hackney, by failing to introduce expert medical testimony, had not sustained her burden of proof as to damages. The trial court granted Woodring’s motion. It is from this order that Hackney appeals.

When reviewing the grant of a judgment notwithstanding the verdict, the appellate court must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference which can be drawn from the evidence and rejecting all unfavorable testimony and inferences. Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 605 A.2d 373 (1992). Judgment notwithstanding the verdict may only be granted in the clearest of cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). It is under this standard that we will review the present case.

Hackney contends that the trial court erred in granting a judgment notwithstanding the verdict. She asserts that where there is sufficient evidence of outrageous conduct and resulting emotional distress, expert medical testimony is unnecessary in order for the jury to find liability for the tort of intentional infliction of emotional distress. We agree.

The courts in this jurisdiction have recognized a cause of action under the Restatement (Second) of Torts § 46 for the intentional infliction of emotional distress. See e.g. Field v. Philadelphia Electric Co., 388 Pa.Super. 400, 565 A.2d 1170 (1989). That section states in pertinent part:

§ 46. Outrageous Conduct Causing Severe Emotional Distress
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

To prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove that defendant, by extreme and outrageous conduct, intentionally or recklessly caused the plaintiff severe emotional distress. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). Liability will be found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, § 46 comment d. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” Id. The extreme and outrageous character of conduct may arise from an abuse by a person in a position of actual or apparent authority over another, or by one with the power to affect the other’s interests. Restatement (Second) of Torts § 46 comment e.

It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery. Restatement (Second) of Torts § 46 comment h. Motheral, at 423, 583 A.2d at 1188. Where reasonable persons may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. Restatement (Second) of Torts § 46 comment h; Motheral, at 423, 583 A.2d at 1188.

In the present case, the jury, under the direction of the trial court, found Woodring’s behavior to be so outrageous that they awarded Hackney $15,000 in compensation. Woodring does not contest the nature of his actions but rather, alleges that there is a lack of proof as to the damages suffered by Hackney. Woodring argues that the judgment notwithstanding the verdict should be affirmed because in order to establish that she suffered severe emotional distress, Hackney was compelled to offer expert medical testimony as proof of her suffering.

The trial court, in granting judgment notwithstanding the verdict, relied upon Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1988), as authority requiring the introduction of expert medical testimony to establish the tort of intentional infliction of emotional distress. This reliance is misplaced.

In Kazatsky, the appellants had filed a claim against the owners of a cemetery for the intentional infliction of emotional distress with regard to the treatment they had received after purchasing cemetery plots for their deceased children. There, the appellants, after purchasing the cemetery plots, refused to pay the cemetery for the perpetual care and maintenance of the plots. The appellants were informed that there would be no care of the gravesites unless the fee was paid. After observing the deteriorating conditions at the gravesites over time, the appellants filed suit against the cemetery. Our supreme court found that the appellants had failed to establish their claim, as the only evidence of their emotional distress was their own unsupported testimony. Id. at 191, 527 A.2d at 992.

The present case contrasts with the controversy presented in Kazatsky. In Kazatsky, the dispute was primarily contractual, even though the subject of the dispute, cemetery plots, could perhaps evoke strong emotions in some individuals. Here, we are confronted with the sexual harassment, intimidation, abuse, and retaliatory discharge of a young woman, just eighteen years of age, in her first job, by her employer, a man in a position of authority. Hackney’s testimony, which was supported by the testimony of two of her fellow workers, was compelling. After describing numerous incidents of unwanted touching and fondling by Woodring during school hours, Hackney described one incident which happened when she accompanied Woodring, at his request, to the school “home office”:

■ And he was holding me down and he was threatening me and told me that if I didn’t do what he said, that he would kill me and that nobody would believe me anyway and that my job depended on it, and he tried — kept telling me this was for my self-esteem.
And he put his hands all over me, and I kept trying to tell him to stop and push away and to leave, and he kept telling me, This is for your self esteem, you’ll feel better.
He had my — I was standing up at one point in the resistance, and he pulled me back down. Sometimes I would stand back up. He pulled me back down. .
At one point when I stood up, he stood up and pulled the top of my pants where they unsnap and kind of zip down. Then I set back — he pulled me back down. I stood back up, and he pulled my pants down not all the way to the floor but down close to my knees, and he kept telling me I had to do it, it was for my self-esteem, that nobody would believe me, and that Carolyn and everybody would be really mad at me, that nobody would believe me if I told it, that everybody would think I was lying.
At one point when he had me pushed up against the desk, we heard a noise out in the hall. And he looked at me and he said, that must be the janitor. So he told me to get behind the door and not say anything or he would kill me, and I was — I was scared.
t* * * * *
He told me nobody would believe me, and he told me that he would kill me. And he had told me on other occasions that he had a gun in the office.

N.T., August 5, 1991, at 63-65. Several times, Hackney described her emotional trauma. At one point, she stated:

I had nightmares about this. I couldn’t sleep sometimes ‘cause — I was afraid, too, ‘cause he had threatened me on more than one occasion, and he told me that at some point he was going to come and talk to my parents. And he really made me afraid.
And so I felt like in my situation the best thing was just to leave, ...

N.T., August 5, 1991 at 78.

Unlike in Kazatsky, where the appellants found the demand for payment for the care and maintenance of the gravesites to be “infuriating and extremely upsetting”, in the present case, Hackney’s testimony reveals a history of continued sexual harassment and abuse suffered at the hands of her employer.

The Restatement addresses the issue of proof of severe emotional distress in comment j to § 46 of the Restatement (Second) of Torts. There, emotional distress is described as including all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, chagrin, disappointment, worry, and nausea. Restatement (Second) of Torts § 46 comment j. This comment also states:

The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. The intensity and the duration of the distress are factors to be considered in determining its severity. Severe distress must be proved; but in many cases the extreme and outrageous character of the defendant’s conduct is in itself important evidence that the distress existed.

Id. Nowhere in § 46, or the comments to that section, is the introduction of expert medical testimony required or even mentioned. The question, in this case, of whether severe emotional distress existed, is one of fact, which can be decided by a jury, unaided by expert testimony.

The emotional reactions discussed in comment j to § 46 predate the advent of psychiatry and can readily be established without the testimony of one learned in that area of medical science. Kazatsky, 515 Pa. at 199, 527 A.2d at 996 (Larsen, J., concurring). The introduction of expert testimony only becomes necessary when the testimony is so distinctly related to some science, skill or occupation as to be beyond the knowledge or experience of the average layperson. Commonwealth v. Dunkle, 529 Pa. 168, 181, 602 A.2d 830, 836 (1992); Taylor v. Celotex Corp., 393 Pa.Super. 566, 582, 574 A.2d 1084, 1092 (1990).

Here, Hackney’s testimony, supported by that of her coworkers, revealed the severe emotional trauma which Woodring caused her to suffer. The suffering, described by Hackney, is within the understanding of the average juror. While the average juror may not have personally experienced the extreme fright, humiliation, embarrassment and loss of self-esteem to which Hackney testified, these feelings are within the realm of common understanding which all jurors bring with them to the jury box. Expert testimony was not necessary to explain the issues in this case, and would have only served the purpose of buttressing Hackney’s credibility, thus usurping the province of the jury. See e.g. Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988).

The greater the outrage, the less should be required of a plaintiff, by way of proof, to establish severe distress; the distress can be inferred from the nature of the conduct itself. Restatement (Second) of Torts § 46 comment j; Kazatsky, 515 Pa. at 200, 527 A.2d at 996 (Larsen, J., concurring). Expert testimony may be useful in certain cases in which the plaintiff wishes to establish suffering from a specific malady with which the average person is unfamiliar, or where the evidence of the outrageous nature of the defendant’s behavior is not self-evident. This is not such a case.

Moreover, conduct that deserves the label “outrageous” is outrageous precisely because it tends to produce distress in normally constituted persons. Kazatsky, at 200, 527 A.2d at 996 (Larsen, J., concurring). In the present case, once Woodring’s conduct was revealed, he blamed Hackney, charging that she was unstable and needed psychiatric care. N.l\, August 5, 1991, at 73. Seeking a psychiatrist’s care, in order to relieve psychic distress, is a notion yet to be accepted by a large portion our population. In fact, Hackney proudly testified at trial that at no time was she under the care of a psychiatrist. N.T., August 5, 1991, at 74. To have required Hackney to have seen a psychiatrist at a time of severe distress provoked, not by her own psychological problems, but by treatment inflicted upon her by another, could have compounded the stress that she was already experiencing. See Kazatsky, at 199, 527 A.2d at 996 (Larsen, J., concurring); Brief for Appellant at 13.

To require “expert proof’ of severe emotional distress will eliminate recovery under this tort for large segments of our population including those unaccepting of psychiatry as a method of addressing personal distress, as well as those who have neither the funds to pay for, nor the access to, a psychiatrist. This is unacceptable,, as a matter of public policy.

We conclude that expert testimony was not required under the facts and circumstances of the present case. Therefore, the judgment notwithstanding the verdict cannot stand. Accordingly, we reverse and remand to the trial court with instructions to reinstate the jury’s verdict.

Order granting judgment notwithstanding the verdict is REVERSED. Case REMANDED with instructions. Jurisdiction relinquished.

TAMILIA, J., files a Dissenting Opinion.

TAMILIA, Judge,

dissenting.

I respectfully dissent to the Opinion of the majority which reverses the trial court decision granting judgment n.o.v. and remands the case for reinstatement of the verdict in favor of the plaintiff, Renee Y. Hackney.

This is an appeal from' the November 21, 1991 Order granting defendants’ motion for judgment notwithstanding the verdict in which it was averred appellant had failed to present competent medical evidence to establish her claim of intentional infliction of emotional distress. Appellant, then an 18-year employee at Woodring’s day care center, alleged appellee’s repeated improper behavior toward her, which included sexual innuendos and unwanted touching, caused her, inter alia, to become emotionally and physically distraught resulting in a loss of self-esteem, reputation and plummeting college grades. Nevertheless, during this indeterminate time period, appellant did not seek medical attention. A jury found in favor of defendant on Hackney’s claims of assault and battery and false imprisonment but in favor of appellant on the claim of intentional infliction of emotional distress and awarded her $15,000 in damages. The trial court, however, reversed the verdict and granted appellee’s motion for judgment n.o.v.’, relying on the Supreme Court case of Kazatsky v. King David Memorial Park Inc., 515 Pa. 183, 527 A.2d 988 (1987), which held the plaintiffs’ failure to establish the existence of alleged emotional distress by competent medical evidence barred their claim. Id. Plaintiff has brought this appeal arguing expert medical testimony is unnecessary to establish intentional infliction of emotional distress provided she has proven defendant’s outrageous conduct toward her, as defined in Comment d. of section 46 of Restatement (Second) of Torts.

The grant of judgment n.o.v. may be entered only in a clear case where the facts are such that no two persons could fail to agree the verdict is improper and should not be entered where evidence is conflicting upon a material fact. Kearns v. Phila. Life Ins. Co., 401 Pa.Super. 292, 585 A.2d 53 (1991). On an appeal from the Order of a trial court granting judgment n.o.v., the Superior Court is required to consider the evidence and all reasonable inferences therefrom in the light most favorable to the verdict winner. Lowry v. State Farm Ins. Co., 392 Pa.Super. 77, 572 A.2d 700 (1990). For the reasons which follow, I would affirm the trial court’s Order denying relief to the appellant.

Before addressing the crux of the issue before this Court, I am constrained to disagree with the majority which holds intentional infliction of emotional distress is an actionable tort in Pennsylvania. See Kazatsky, supra; see also Baker v. Morjon Inc., 393 Pa.Super. 409, 574 A.2d 676 (1990) (cause of action for intentional infliction of emotional distress is denied because plaintiff failed to comply with the standards in Kazatsky, that is, neither the requisite degree of the defendant’s outrageousness or the nature and extent of the emotional injuries alleged justified a finding of liability); Ford v. Isdaner, 374 Pa.Super. 40, 44, 542 A.2d 137, 139 (1988) (“Kazatsky makes clear that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania”). Until such time as our Supreme Court rules otherwise, this Court is obliged to follow the findings and reasoning of Kazatsky and its progenies.

Assuming, however, for the sake of argument, Pennsylvania has recognized this tort, I turn now to the issue before this Court: whether expert medical testimony is required to substantiate a claim for intentional infliction of emotional distress. In Kazatsky, the most recent Supreme Court case to address the viability of the tort of intentional infliction of emotional distress, the parents of twins who died shortly after birth brought an action in equity seeking, among other claims, damages for the emotional distress caused by cemetery caretaker’s allegedly outrageous conduct of using threats to coerce the plaintiffs into purchasing a perpetual care contract for the children’s gravesites. Because a compulsory nonsuit was entered, the jury was not required to determine whether the defendant’s conduct reached the level of outrageousness that would support a claim for damages as contemplated under Comment d of section 46 of the Restatement (Second) of Torts, which sets forth the standard for what constitutes extreme and outrageous conduct. The Kazatsky Court did provide, however, for our guidance, an in-depth discussion of Pennsylvania law addressing recovery for psychic injury:

It is basic to tort law that an injury is an element to be proven. Given the advanced state of medical science, it is unwise and unnecessary to permit recovery to be predicated on an inference based on the defendant’s “outrageousness” without expert medical confirmation that the plaintiff actually suffered the claimed distress. Moreover, the requirement of some objective proof of severe emotional distress will not present an unsurmountable obstacle to recovery. Those truly damaged should have little difficulty in procuring reliable testimony as to the nature and extent of their injuries. We therefore conclude that if section h6 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.

Kazatsky, supra, 515 Pa. at 197, 527 A.2d at 995 (emphasis added). This excerpt from the Supreme Court’s opinion indubitably declares expert medical testimony is a necessary element of any possible successful cause of action for intentional infliction of emotional distress. The majority’s unconvincing attempt to distinguish Kazatsky from the case before us because the former action emanates from a contractual dispute while the latter stems from alleged sexual harassment is illogical. Surely the emotional distress suffered by parents of the deceased twins in Kazatsky, despite the fact the premise on which they based their claim sounded in contract as opposed to tort, was no less than that suffered by the plaintiff herein. Additionally, I am unable to fathom how the nature of the underlying lawsuit alters the prerequisites to establish a legitimate cause of action for the tort under consideration. Contrary to the majority’s Opinion, this is a case in which expert testimony is crucial. Although, if true, I find appellee’s behavior as described in detail by the majority to be abominable, and I most certainly have no reason to doubt the sincerity of appellant’s distress, the fact remains she has offered no tangible proof of the mental and physical anguish she has allegedly endured. Unfortunately for the appellant and all those who suffer at the hands of an emotionally abusive individual, mental anguish endured and its lingering aftermath are not readily identifiable or easily recognizable by a lay individual and, therefore, the need for expert testimony to establish the same is paramount. See Taylor v. Celotex Corp., 393 Pa.Super. 566, 574 A.2d 1084 (1990).

Because appellant failed to present expert testimony to substantiate the existence of the emotional distress allegedly suffered by her as a direct result of appellee’s actions, I would affirm the November 21, 1991 Order granting judgment n.o.v. in favor of the defendants.