author: HESTER, Judge:

text:
    648 A.2d 42
    COMMONWEALTH of Pennsylvania, v. Peter David MOYER, Appellant.
    Superior Court of Pennsylvania.
    Argued June 30, 1994.
    Filed Sept. 19, 1994.

      Michael E. Moyer, Allentown, for appellant.
    Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before BECK, HUDOCK and HESTER, JJ.
   HESTER, Judge:

Peter David Moyer appeals from the February 8, 1993 Lehigh County Court of Common Pleas order which dismissed his petition for habeas corpus. The court determined that the Commonwealth had presented a prima facie case on the charges of involuntary manslaughter, homicide by watercraft while under the influence, operating a watercraft under the influence, and reckless and negligent operation of watercraft. Appellant argues that the Commonwealth failed to establish the requisite prima facie showing of careless operation of the watercraft, refutes the claim that he operated his motorcraft under the influence of alcohol, and maintains that there is insufficient evidence that his conduct caused the death of the victim. We are constrained to reverse in part and affirm in part.

The relevant facts and procedure follow. The Commonwealth’s sole eyewitness, Robert Williams, established that on July 19, 1992, at about 6:30 p.m., appellant was operating a “runabout” on the Lehigh River in an area known as Kimmets Lock and was traveling at approximately twenty-five miles per hour. Mr. Williams, an acquaintance of both appellant and the victim, gauged the speed at which the victim, Eric Hennigh, drove his jet ski to be about the same as appellant’s craft, and approximately forty feet to the right of appellant’s path. The witness explained that both the victim and appellant were acquaintances and had gathered at the river with a group of friends for the day. Mr. Williams stated that while he had observed appellant drink one beer while cooking on the beach earlier in the day, he had observed nothing about appellant’s behavior to indicate that he was intoxicated. On a trestle six to eight feet from the waterway, a group of swimmers had gathered, one of whom was Richard Moore. As the victim made what would be his last pass by the trestle, Moore, who was standing on exposed rocks near the trestle, swung a five to six foot stick at the victim as he drove past the trestle. Reproduced Record, (“R.R.”), at 149a. Uncontradicted eyewitness testimony established that after Moore swung the stick at the victim, the victim turned sharply to the left, lost control of the jet ski, and veered directly into the path of appellant’s craft. R.R. at 97a. Appellant’s boat collided with the jet ski. Mr. Williams admitted that he told appellant that appellant could not have avoided the accident, because it took only a “split second” for the jet ski to travel the forty feet into the path of appellant’s boat. R.R. at 67a, 46a. Moore fled the scene after the impact, but appellant, whose craft came to an abrupt halt following the collision, jumped into the river and swam over to aid the victim, who was floating face down. The victim was pronounced dead three hours later at Lehigh Valley Hospital. The autopsy determined that the victim died as the result of multiple traumatic injuries. It also revealed that the victim had an elevated blood alcohol level.

Lehigh County Sheriffs Department and Pennsylvania Fish Commission Deputy Waterways Conservation Officer Elwood Buchman, Jr. arrived at the scene within minutes after the victim and his passenger had been removed from the river and began their investigation. Officer Buchman testified that by virtue of his employment, he had received training in the detection of persons under the influence of alcohol and first aid. R.R. at 101a. He admitted, however, that he had never investigated a serious boating accident and could not be sure if the demeanor and reactions of people involved in an accident could be the result of shock or hysteria as opposed to intoxication. R.R. at 123a. Further, he admitted that it was possible that an individual could be angry or irate without being under the influence of alcohol, especially if they had just been involved in a serious boating accident.

Officer Buchman testified, however, that he concluded that appellant was intoxicated based upon several factors. Specifically, he observed appellant navigate through a grassy area of the park and over a gravel driveway to an area where the patrol car was located and determined that appellant was “a little unsteady on his feet, [and] swaying a little bit.” R.R. at 109a. Moreover, the officer noted that appellant was hostile and irate about the presence of children on the trestle and the officers’ continuing inability to control their pranks. Further, the officer testified that appellant admitted he was the operator of the boat and that he had been drinking a little. R.R. at 110a. Therefore, the officer concluded that appellant was under the influence of alcohol and not capable of operating his watercraft safely based upon his hostile, angry demeanor, his irate reaction to the presence of children on the trestle, his bloodshot eyes and constricted pupils, his swaggering gait, and the odor of alcohol on his breath. The officer could not determine how much alcohol appellant had consumed and did not ask appellant if he had anything to drink following the accident.

Allentown Police Detective Michael Millan arrived at the scene at about 8:00 p.m. He, too, had received training in the identification of individuals under the influence of alcohol. After speaking to appellant, he, too, concluded that appellant was intoxicated. He detected an odor of alcohol on appellant, noted his anger about the incident and the presence of children on the trestle, and observed appellant’s bloodshot eyes and heavy eyelids. Detective Millan asked appellant to accompany him to police headquarters and submit to a breathalyzer test. Appellant complied but was not told he could opt to decline and lose his operator’s license. Appellant took the test at 9:05 p.m., two and one-half hours after the incident. The results were recorded at .18%. No blood test was requested. Appellant’s boat and the victim’s jet ski were seized and searched. Sixteen empty beer cans were found on appellant’s boat, nine of which were appellant’s brand of choice.

Based upon the above evidence, appellant was arrested and charged with one count each of involuntary manslaughter, 18 Pa.C.S. § 2504(a); homicide by watercraft while operating under the influence, 30 Pa.C.S. § 5502.1(a); operating a watercraft while under the influence 30 Pa.C.S. § 5502(a)(1) and (a)(4); and reckless operation of watercraft, 30 Pa.C.S. § 5501(a). At appellant’s preliminary hearing on October 6, 1992, Richard Williams, the Commonwealth’s sole eyewitness and an acquaintance of both the victim and appellant, testified that he saw appellant drink one can of beer while standing on the beach but observed nothing to indicate that appellant was boating under the influence of alcohol. R.R. at 58a, 23a. Williams testified that appellant drove the runabout in a straight line and could have done nothing to avoid hitting the victim since only a “split second” of time elapsed after Moore swung the stick and the jet ski traversed the forty feet between the two vehicles. R.R. at 67a; see also R.R. at 46a. Williams could not ascertain whether appellant began decelerating prior to impact or tried to avoid hitting the victim’s jet ski. R.R. at 47a. Williams testified that he saw the victim drink one bottle of beer earlier in the day on the beach while he was cooking. Williams noted that appellant was extremely upset by the incident. R.R. at 96a.

Based upon the information gathered and testimony offered, the magistrate found a prima facie case on all charges. On December 2, 1992, appellant filed a petition for writ of habeas corpus, or in the alternative, requested a dismissal of all charges for lack of a prima facie case on each count. Appellant challenged the magistrate’s determination claiming there was no evidence to show reckless or careless operation of his boat, and there was ho evidence to show that appellant caused the collision. In an order dated February 8, 1993, appellant’s petition was dismissed. The court also dismissed appellant’s request to certify the case, pursuant to 42 Pa.C.S. § 702(b), for purposes of allowing an interlocutory appeal.

On March 10, 1993, appellant filed a petition for review to this court. On January 6, 1994, we granted appellant permission to pursue an interlocutory appeal. He now challenges the magistrate’s finding based upon a lack of evidence concerning causation. He argues that he was operating his boat in a straight line at a safe speed and distance from the victim. Further, appellant maintains that he did nothing to cause the victim to swerve into his path, but it was the victim’s evasive action with respect to Moore which caused the collision. He alleges that the Commonwealth’s evidence wholly fails to establish that he could have avoided the collision. Therefore, appellant asserts that the Commonwealth failed to show that his conduct caused the victim’s death. We agree.

The Commonwealth maintains that it presented sufficient evidence at the preliminary hearing to support all charges against appellant. It relies upon the observations of the investigating officers who concluded that appellant was operating his boat while under the influence of alcohol to a degree that rendered him incapable of operating the motorboat in a safe manner, the breathalyzer test, and the evidence of the empty beer cans seized from appellant’s boat. Further, the Commonwealth asserts that appellant was operating his motorboat recklessly because he was traveling at a speed higher than that which was safe in that area of the river and but-for the reckless operation of his craft, could have, but failed to, take evasive action even though he saw Moore strike the victim with the stick.

In considering the merits of appellant’s claim, we utilize the following well-settled standard for determining the sufficiency of the evidence presented at a preliminary hearing.

At a preliminary hearing the Commonwealth, bears the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983). To sustain that burden the Commonwealth must produce evidence that, if accepted as true, would warrant the ... trial judge to allow the case to go to the jury. Id., [466 A.2d] at 995-996. The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged; consequently, absence of evidence of a material element is fatal. Id. [466 A.2d] at 996-997. This standard does not require that the Commonwealth prove the elements of the crime beyond a reasonable doubt nor that evidence is available that would prove each element at trial beyond a reasonable doubt. Commonwealth v. Snyder, 335 Pa.Super. 19, 23, 483 A.2d 933, 935 (1984).

Commonwealth v. Styler, 411 Pa.Super. 133, 135, 600 A.2d 1300, 1301 (1991), quoting Commonwealth v. Austin, 394 Pa.Super. 146, 150-51, 575 A.2d 141, 143 (1990). It is with these principles in mind that we consider the evidence presented by the Commonwealth at the preliminary hearing.

Appellant first argues that the Commonwealth failed to sustain its burden of proof with regard to the element of causation on the involuntary manslaughter charge. While appellant incorrectly relies upon case law which pertains to stricter burdens of proof applied only at trial, we agree, nonetheless with his starting premise that the Commonwealth must provide some evidence as to causation in order to sustain the charge of involuntary manslaughter. Our review of the record reveals that the Commonwealth has failed in this regard.

The Commonwealth defends the district justice’s ruling and argues that it presented testimony which indicated that appellant was traveling at a high rate of speed and failed to take any action to avoid the collision. In it’s brief, the Commonwealth concludes,

All the evidence presented at the preliminary hearing clearly indicated that [appellant] either failed to perceive the risk of the collision with the victim, or that he perceived the risk and consciously disregarded such a risk. Based on the evidence, a jury may fairly conclude that such conduct by [appellant] involved a gross deviation from the standard of care that a reasonable person would observe in [appellant’s] situation.

Commonwealth brief at 13.

In order to sustain a charge of involuntary manslaughter, the Commonwealth must show that the appellant’s conduct was directly and substantially linked to the victim’s death. Commonwealth v. Long, 425 Pa.Super. 170, 624 A.2d 200 (1993). We have determined that in order to sustain a conviction for involuntary manslaughter, a defendant’s conduct must be the antecedent but-for which the result in question would not have occurred. Id. Specifically, it would be unfair to hold an individual responsible for the death of another if his actions are remote or attenuated and the victim’s death was attributable to other factors. Id.

The Commonwealth bases its theory of causation on the allegation that appellant could have avoided the collision by veering his boat in another direction. However, its evidence fails to establish that appellant could have changed the direction of his boat in time to avoid striking the victim. The Commonwealth presented no evidence regarding reaction times. Meanwhile, the eyewitness testimony provided a major stumbling block for the Commonwealth due to the fact that it repeatedly indicated there was nothing appellant could have done to avoid hitting the victim because he veered into appellant’s path in a “split second.”

A review of the record reveals that there was no evidence that appellant could have avoided this tragic accident. The Commonwealth presents no support for its conclusion that appellant could have swerved to avoid striking the victim. Specifically, the Commonwealth eyewitness testimony established that appellant and the victim were traveling between twenty-five and thirty miles per hour. Simple calculations indicate that at 30 miles per hour, a vehicle travels at the rate of forty-four feet-per-second, while traveling at 25 miles per hour, a vehicle travels at thirty-six feet-per-second. Eyewitness testimony also established that the victim was located ten to forty feet to the right of appellant’s motorboat when Moore struck him with the stick. In other words, in less than a second, two objects traveling about forty feet-per-second crossed paths. The Commonwealth presented no testimony on reaction time, either eyewitness or expert, to support its claim that any person could have swerved their boat, given the time frame that it established. Yet, the Commonwealth’s case on causation consists solely of its position that defendant caused the death by failing to swerve his boat. The evidence it presented, however, is inadequate to demonstrate that this inaction caused the victim’s death due to the fact that there is serious doubt as to whether any reasonable person could have avoided the unfortunate collision. See Commonwealth v. Gilliland, 281 Pa.Super. 354, 422 A.2d 206 (1980) (failure to see another boat in time to avoid collision does not rise to level of gross negligence necessary to convict of involuntary manslaughter).

Clearly, the Commonwealth is attempting to bootstrap the evidence concerning appellant’s state of intoxication into an inference that he could have avoided the accident. Meanwhile, the speed-to-distance ratios at which the vehicles traveled refute the assumption that any person in appellant’s position could have avoided the collision. It is the Commonwealth’s burden to present some evidence on each element, and they have not presented evidence with regard to causation.

Appellant also challenges the magistrate’s determination the Commonwealth proved a prima facie case on the charge of reckless operation of watercraft. Our review of the record reveals that the Commonwealth presented no eyewitness testimony to support its claim that appellant operated his boat in a reckless manner or in such a way as to evidence a disregard for human life or an indifference to consequences. All uncontradicted eyewitness testimony supports appellant’s assertion that he was driving in a safe manner, but the tragic accident was unavoidable. Instead, the Commonwealth relies on the investigating officers’ testimony that appellant failed to swerve as the basis for its claim that appellant operated his craft with careless disregard for the safety of others. It does not, however, provide us with any evidence to support the assertion that failure to swerve constitutes a gross deviation from the standard of care a reasonable person in appellant’s situation would observe. Instantly, there was one eyewitness to the accident, and he testified that the victim traveled into appellant’s path so quickly that appellant had no time to react. Since it is clear that the Commonwealth has failed to produce evidence that appellant caused the death of the victim because he acted in a reckless or grossly negligent manner, we must conclude that the Commonwealth failed to prove a prima facie case with regard to charge of the reckless operation of watercraft.

Next, we review appellant’s claim concerning the validity of the charge of homicide by watercraft while operating under the influence of alcohol. 30 Pa.C.S. § 5502.1 provides:

Any person who unintentionally causes the death of another person as the direct result of a violation of section 5502 (relating to operating watercraft under influence of alcohol or controlled substance) and who is convicted of violating section 5502 commits a felony of the third degree when the violation is the cause of death....

Appellant maintains that the Commonwealth has not proven a prima facie case as to the element of causation. Specifically, he argues that it did not prove that appellant caused the victim’s death because he was intoxicated. Appellant claims there was no eyewitness testimony that he could have swerved his boat, but only bold assertions from the investigating officers who were not present at the time of the accident to support the Commonwealth’s position that appellant’s level of intoxication prevented him from operating his vehicle in a safe fashion thereby causing the victim’s death due to alcohol consumption. While appellant may place undue reliance upon the case law he presents, we agree, nonetheless, with his premise regarding the Commonwealth’s failure to prove causation.

In Commonwealth v. Heck, 517 Pa. 192, 535 A.2d 575 (1987), our Supreme Court discussed the elements necessary to convict under 75 Pa.C.S. § 3732, homicide by vehicle, an analogous crime to the one at issue. First, the Commonwealth must establish that appellant deviated from the standard of care established by the underlying traffic regulation which has been violated and that the violation of the regulation caused the victim’s death. Accord Commonwealth v. Bartolacci, 409 Pa.Super. 456, 598 A.2d 287 (1991) (under section 3732, Commonwealth has the burden of proving beyond a-reasonable doubt the causal connection between the victim’s death and the defendant’s wrongful act).

Our review of the Commonwealth’s case reveals that its theory of causation combines the unsupported allegation that appellant could have, but failed to, swerve, with the fact that he had been drinking earlier in the day. It then concludes that appellant failed to swerve due to diminished reflex time relating to his alcohol consumption. Furthermore, we have established that the Commonwealth has not proven that appellant drove in a reckless manner or that swerving was a possible maneuver under the circumstances. Together, these deficiencies in the Commonwealth’s case constitute a gap in the weave of causation with regard to establishing a prima facie case for appellant’s preliminary hearing. There was no evidence that appellant operated his boat in an unsafe manner, and there was no evidence that appellant caused the accident.

Finally, appellant argues that the Commonwealth presented no evidence that he operated his motorboat while under the influence of alcohol where the amount of alcohol by weight in the blood of the person is 0.10% or greater. 30 Pa.C.S. § 5502(a)(4). We must disagree. Appellant does not dispute the observations of witnesses at the scene who testified that his pupils were constricted and his eyes bloodshot, that he walked with a swaggering gait, or that he was angry and used profanity. He argues, and his witnesses agreed, that this behavior was not proof positive that he was intoxicated but could have been a normal variant of the type of behavior an individual who recently had been traumatized would exhibit. Acquaintances of appellant denied that he smelled of alcohol or acted intoxicated, but the testimony of the investigating officers indicated otherwise. While the import of the breathalyzer test, taken hours after the accident might not be controlling or dispositive, it is evidence of intoxication. Further, the empty beer cans found on appellant’s boat create a presumption that appellant may have been drinking on the day of the accident. Certainly, the evidence presented was not conclusive as to time of consumption or the amount, and conversion calculations as to blood alcohol weight with regard to the breathalyzer test would be necessary before it could be considered conclusive evidence, but collectively the Commonwealth has presented evidence sufficient to bring its case to the jury.

In conclusion, we are constrained to conclude that the Commonwealth failed to establish a prime facie case to sustain the charges of involuntary manslaughter, reckless operation of a watercraft, and homicide by watercraft under the influence. Consistent with this memorandum, however, the Commonwealth has presented a prima facie case of boating while under the influence of alcohol, and appellant must face proceedings on this charge.

Order reversed in part and affirmed in part. Case remanded. Jurisdiction relinquished.

      . By order dated January 6, 1994, we granted appellant permission to appeal this interlocutory order.

      . There are no speed limit restrictions for motorcraft on the Lehigh River.

      . Allentown Police Officer Michael Millan testified that Richard Moore, who confessed to swinging the stick in front of the victim, estimated that the jet ski was traveling about ten feet away from appellant's boat.

      . The autopsy was performed at 10:20 a.m. on July 20, 1992. The victim was pronounced dead on July 19, 1992, at 9:28 p.m. The victim’s blood alcohol level was .05%. No calculation was presented to allow for diminished blood alcohol levels due to either the fifteen hours which had elapsed since the accident or the internal bleeding suffered by the victim.

      . Apparently, both in prior summers and earlier in the summer of 1992, boaters had filed complaints about the interference caused by children playing on the trestles. Appellant was not known to be one of the individuals who had filed a complaint. R.R. at 120a.

      . There is a dispute in the transcript as to who operated appellant’s boat at the time of the accident. Lisa Neetz, a passenger riding with appellant at the time the accident occurred, told officers that she was driving the craft at the time of collision. R.R. at 134a. Ms. Neetz was not asked to take a breathalyzer test.

      . Waterways Conservation Officer Fred Mussel testified that appellant told him that he had brought some of the empty beer cans with him, and others were picked up from the riverbank. Appellant also told Officer Mussel that he consumed his last can of beer around five o’clock.

      . There was no evidence presented at the preliminary hearing which indicated that appellant was speeding, or that appellant was able to avoid the collision given the proximity of the victim's jet ski to appellant’s motorboat. Specifically, uncontradicted testimony revealed that there are no speed limits for boats or jet skis on the Lehigh River.
      There was testimony that if appellant were operating his motorboat between 25 miles per hour and 35 miles per hour, then he would create a wake. If swimmers were present on the shore, then appellant would have been operating his boat in excess of the minimum slow swell height speed. There was testimony, however, that no swimmers were present on the shore at the time of the accident. See R.R. at 214a. Further, uncontradicted eyewitness testimony revealed that appellant could not have avoided the accident because it happened too quickly. See R.R. at 45-6.

      . "A person is guilty of involuntary manslaughter when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person.” 18 Pa.C.S. § 2504(a).
      18 Pa.C.S. § 302(b)(3) provides:
      A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.
      18 Pa.C.S. § 302(b)(4) provides:
      A person acts negligently with respect to a material element when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and intent of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

      . Reckless operation of a watercraft involves a gross deviation from the standard of care that a reasonable operator of a watercraft should observe under the circumstances. 30 Pa.C.S. § 5501(a).
      Negligent operation of a watercraft involves a deviation from the ordinary standard of care that a reasonable operator of a Watercraft should observe under the circumstances. 30 Pa.C.S. § 5501(b).


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    648 A.2d 49
    COMMONWEALTH of Pennsylvania, Appellee, v. Jeffrey L. FRANCIS, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Charles S. NIHART, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Jerry L. FRANCIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 5, 1994.
    Filed Sept. 26, 1994.

      Peter T. Campana, Williamsport, for appellants.
    Kenneth A. Osokow, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before ROWLEY, P.J., and KELLY and POPOVICH, JJ.
   POPOVICH, Judge:

This consolidated appeal is from the order of the Court of Common Pleas of Lycoming County, which denied appellants’ motions to vacate judgments of sentence and dismiss criminal informations. The court also denied appellants’ motion to disqualify the District Attorney of Lycoming County from further involvement in their cases. Upon review of the record, we find that the actions of the lower court were proper.

Herein, appellants contend that the lower court erred in denying their motions to vacate judgments of sentence and dismiss criminal indictments and their motion for disqualification of the Lycoming County District Attorney. Appellants submit that the District Attorney caused evidence which may have established their innocence to be totally consumed in a testing procedure which was unnecessary and not contemplated by the agreement between the Commonwealth and the defense. Thus, appellants, citing Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (1992), argue that the double jeopardy clause of the Pennsylvania Constitution bars retrial because of the District Attorney’s misconduct. Appellants also argue, in the alternative, that the District Attorney’s conduct was sufficiently egregious to warrant his disqualification from further prosecution of their cases.

In Smith, supra, our Supreme Court set forth the standard to be applied when .determining whether the double jeopardy clause of the Pennsylvania Constitution bars reprosecution of a defendant following a finding of prosecutorial misconduct. Therein, Mr. Justice Flaherty, for the unanimous court, wrote:

We now hold that the double jeopardy clause of the Pennsylvania Constitution prohibits retrial of a defendant not only when prosecutorial misconduct is intended to provoke the defendant into moving for a mistrial, but also when the conduct of the prosecutor is intentionally undertaken to prejudice the defendant to the point of the denial of a fair trial.

Smith, 532 Pa. at 185, 615 A.2d at 325. See also, Commonwealth v. Manchas, 430 Pa.Super. 63, 78-79, 633 A.2d 618, 626 (1993); Commonwealth v. Rightley, 421 Pa.Super. 270, 279, 617 A.2d 1289, 1293-1294 (1992). Therefore, the question we presently face is whether the District Attorney of Lycoming County intentionally performed DNA testing on blood, hair and tissue samples in a manner which could not obtain the desired results and which was designed to consume the samples so that no evidence would remain for appellant to test in the manner of their choosing.

A review of the record reveals the following: On February 19, 1988, appellants were convicted of rape and related offenses. On June 29,1988, Jeffrey L. Francis was sentenced to a period of incarceration of not less than eight nor more than sixteen years. Charles S. Nihart and Jerry L. Francis were sentenced to terms of confinement of not less than four nor more than eight years. Direct appeals were filed, and we affirmed their judgments of sentence on March 12, 1990. See, Commonwealth v. Jeffrey L. Francis, 499 HBG 1988; Commonwealth v. Nihart, 498 HBG 1988; Commonwealth v. Jerry L. Francis, 515 HBG 1988.

On August 3, 1990, appellants filed petitions pursuant to the Post-Conviction Relief Act, 42 Pa.C.S.A. § 9541 et seq., alleging ineffective assistance of trial counsel. Shortly thereafter, appellants petitioned the court to be allowed to inspect the evidence held by the Commonwealth and to perform genetic testing on the pants worn by the victim at the time of the rape in an effort to find exculpatory evidence. Appellants’ request to inspect and test the evidence was denied on December 24, 1990. Following a hearing, the petitions for post-conviction relief were also denied on June 19,1991. Timely appeals from the denial of their PCRA petitions were filed and docketed in the Superior Court.

While those appeals were pending before this court, appellants filed a motion in the lower court requesting a new trial on the ground of after-discovered evidence. Pursuant to a stipulation between appellants and the Commonwealth, we entered an order on April 8, 1992, remanding the matter for an evidentiary hearing. On May 15, 1992, a hearing on the matter was scheduled. However, the District Attorney proposed that the motion for after-discovered evidence be held in abeyance pending scientific testing, i.e., DNA genetic fingerprinting, to determine whether appellants could be excluded as the rapists. All parties agreed in principle that PCR-DNA testing would be performed by an impartial laboratory in a manner which would protect against possible tampering and would later permit either party to have an independent test performed if necessary. The District Attorney stated that if the testing established that none of the three appellants could have been involved in the rape, then he would nol pros all charges. The appellants were then released on bail pending the outcome of the tests. See, N.T., 5/15/92, pp. 2-5.

Defense counsel and the District Attorney later agreed that the appellant’s blood samples and the victim’s blood sample, along with the evidence gathered at the time of the rape including the victim’s clothing, hair samples and tissue samples, were to be sent to CBR Laboratories, Inc., in Boston, Massachusetts, for PCR-DNA analysis. Steps were taken to insure the integrity of the samples and impartiality of the testing. However, during the initial phase of the testing, the defense was unable to communicate with Dr. David H. Bing of CBR Laboratories, since the District Attorney had instructed Dr. Bing not to discuss the testing with anyone but him. Later, at the lower court’s direction, defense counsel was provided access to Dr. Bing who assured defense counsel that PCR-DNA testing would not consume all of the available samples in case a second test was desired.

On August 17, 1992, Dr. Bing prepared a report of the results of his PCR-DNA test. The test revealed that Charles Nihart could not be excluded as a possible “donor” of the DNA included in the vaginal smear taken from the victim after the rape. Consequently, the Commonwealth moved to revoke appellants’ bail. The lower court continued bail to allow for additional testing by the defense.

In September of 1992, the District Attorney and a Lycoming County Detective travelled to CBR Laboratories in Boston without notifying the defense. While defense counsel speculates that something untoward might have occurred during this visit, no evidence of impropriety was offered regarding the trip. In fact, as found by the lower court, the Commonwealth offered a reasonable explanation for the trip, i.e., the District Attorney wanted to learn more about the test results and any other tests which could be performed. N.T., 12/16/94, pp. 25, 63.

The evidence was then sent to defense expert Dr. Michael Baird at LIFECODES Corporation in Stamford, Connecticut. The report from Dr. Michael L. Baird and Richard Cunningham of LIFECODES indicated that there was an insufficient amount of human DNA in the samples from the rape kit to perform either RFLP-DNA analysis or D1S80-DNA testing via PCR amplification.

Appellants now argue that they were impermissibly prejudiced by the Commonwealth when it had CBR Laboratories perform PCR-DNA testing since that test could not reveal the type of results envisioned by the parties’ agreement. It is undisputed that at the hearing on May 15, 1992, the District Attorney, the defense and the judge all anticipated that DNA “finger-printing” would be performed, and the result of that test would conclusively reveal whether appellants were not involved in the rape. N.T., 5/15/92, p. 5; N.T., 12/16/92, pp. 7-8. Despite the fact that defense counsel specifically agreed to PCR-DNA testing on-the-record, N.T., 5/15/92, p. 3, appellants assert that PCR-DNA testing was not the type of test envisioned by the parties’ agreement. See also, Order of Court, 5/15/92.

Genetic “finger-printing” is commonly obtained via the RFLP test (Restriction fragment length polymorphism test), and the RFLP test can conclusively prove that two DNA samples came from two different sources. See, Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994); see also, N.T., 12/16/92, p. 4. Instantly, the parties attempted to have a RFLP-DNA test performed as early as December of 1987. However, they were informed by Cellmark Diagnostic Laboratories that there was not sufficient genetic material in the rape kit samples or on the victim’s clothing to reach any conclusion. N.T., 12/16/94, p. 4.

On the other hand, the PCR-DNA test (Polymer chain reaction test) is used when there is only a small quantity of .DNA in the sample. The PCR-DNA test amplifies an otherwise insufficient amount of genetic material and enables some information to be gleaned therefrom. Instantly, PCR analysis was performed using the Perkin Elmer HLA-DQ alpha Amphitype Kit which tests for the presence of six possible alleles. The results of the PCR/HLA-DQ test place the subject in one or more of twenty-one genotypes. The test revealed that Charles Nihart’s sample matched the male lysate taken from the victim’s vaginal smear, as would between 10.4% and 13.2% of the Caucasian population. In addition, the PCR amplification method can be used to study another series of critical alleles known as D1S80. Although the record is unclear, it appears that genetic “fingerprinting” results may be possible with the D1S80 test after PCR amplification. See generally, N.T., 12/16/92, pp. 2-59; Letter of 8/27/92 from Dr. Baird of LIFECODES to Donna J. Clemente explaining results of CBR Laboratories tests; Letter of 8/17/92 from Dr. Bing of CBR Laboratories setting forth test results; Letter of 10/27/92 from Richard Cunningham of LIFECODES setting forth test results. Appellants assert the D1S80 test should have been performed originally as it reveals a “fingerprinting” result as opposed to a genotype result.

After the hearings held on December 16 and 18, 1992, the lower court determined that appellants failed to establish that they were intentionally prejudiced by the DNA testing method and procedures and that the District Attorney’s actions were not sufficiently improper to warrant disqualification. The court also determined that the after-discovered evidence warranted the grant of a new trial. Appellants then filed these appeals which submits that the double jeopardy clause of the Pennsylvania Constitution prohibits their retrial.

Upon review of the record, we cannot conclude that the prosecution’s actions in this case were deliberately undertaken to prejudice appellant’s case, and, therefore, double jeopardy does not bar retrial of appellants. Smith, supra. Further, although we agree with the lower court that the Commonwealth violated the tenor of the parties’ agreement on at least two separate occasions, e.g., when the defense was initially denied access to CBR Laboratories and when the prosecution travelled to CBR Laboratories without advising defense counsel, we also agree with the court conclusion that such acts were not so egregious as to warrant disqualification and that they did not prejudice appellants.

Instantly, it was not prosecutorial misconduct which caused the samples to be subjected to and consumed in a genetic grouping test via PCR-DNA amplification. The record is quite clear that all parties agreed to PCR-DNA testing at the hearing on May 15, 1992. The problem, as the lower court correctly noted, was that the parties were not sufficiently educated regarding the various types of DNA testing available at the time they decided to go ahead with the PCR analysis. N.T., 8/28/92, p. 7. Simply put, no one realized until it was too late that the PCR-DNA test would not provide the desired result of genetic “fingerprinting.” N.T., 12/16/92, pp. 7-8, 22, 40. In addition, no one was even aware of the D1S80 test which could possibly provide “fingerprinting” results until after the PCR-DNA analysis had been performed. N.T., 12/16/92, pp. 24-25. Thus, it is incorrect to characterize the District Attorney’s actions as misconduct, much less misconduct which was intentionally designed to prejudice appellants ability to receive a fair retrial.

In sum, we find that double jeopardy does not bar retrial of appellants. The protections of the Pennsylvania Constitution, as envisioned by Smith, supra, clearly are inapplicable unless there is prosecutorial misconduct deliberately aimed at denying a defendant a fair trial. Presently, the record does not support a finding of prosecutorial misconduct rising to such a level. Rather, the record does reveal an unfortunate misunderstanding of the highly complicated field of genetic testing by the District Attorney, defense counsel and the court which caused them to agree upon a test which could not provide the desired “fingerprinting” type of result, assuming such a result could even have been obtained by another method.

Order affirmed. Case remanded for trial.

      . We note that the Commonwealth also filed appeals from the order granting a new trial. However, those appeals were quashed by this court.

      . Further, we note that appellants cannot establish that there would have been sufficient quantities of genetic materials in the samples to perform a D1S80 test if the PCR-DNA genetic grouping test had not been performed first. N.T., 12/16/92, pp. 28, 60. In addition, it should be noted that no appellate court of this Commonwealth has ruled upon whether genetic testing performed via any type of PCR amplification is admissible. See, Crews, supra, citing, Frye v. United States, 54 App.D.C. 46, 293 F. 1013, 1014 (1923) (performing Frye analysis for standard DNA testing without amplification).


author: HUDOCK, Judge:

text:
    648 A.2d 53
    Jean M. HEINRICH, individually and on behalf of her infant daughter, Molly A. Heinrich and Robert J. Heinrich, Sr., and Mary E. Heinrich, husband and wife, Appellants, v. CONEMAUGH VALLEY MEMORIAL HOSPITAL, a non-profit corporation, and Loretta Opila, M.D., an individual, and Andrew George, M.D., an individual and Elisabeth Cole, M.D., an individual, and Edward Devellen, M.D., an individual, and Pat Stock, an individual, and Clarice Ott, an individual, Appellees.
    Superior Court of Pennsylvania.
    Argued May 11, 1994.
    Filed Sept. 21, 1994.

      Caram J. Abood, Johnstown, for appellants.
    Robert J. Pfaff, Hollidaysburg, for Conemaugh Valley Memorial Hosp., appellee.

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

Appellants appeal from the order of the trial court granting the preliminary objections, in the nature of a demurrer, of Appellees in an action brought as a result of the conduct of Appellees in reporting suspected child abuse to the proper authorities after a child was presented to them at the hospital emergency room for treatment. We affirm.

The facts, as summarized from Appellants’ second amended complaint, are as follows: On or about September 25, 1991, Molly Heinrich (Molly), born February 17, 1991, was involved in an accident whereby her walker tipped over, causing her to strike the back of her head on the kitchen floor. On September 27, 1991, Appellant Jean Heinrich (Mother) noticed Molly was experiencing some discomfort associated in and around the area of her ears and scheduled an appointment with Dr. Romuald Caroff at 3:45 p.m. At approximately 5:15 p.m., Dr. Caroff examined Molly, diagnosed her as possibly beginning an ear infection, and prescribed an antibiotic, Amoxycillin. At approximately 10:30 a.m., on Saturday, September 28, 1991, Mother noticed swelling on and around Molly’s left temple, ear and eye. Because the swelling persisted, at approximately 11:30 a.m., on that same day, Mother and Appellants Robert and Mary Heinrich (Grandparents) brought Molly to the emergency room of Appellee Conemaugh Valley Memorial Hospital (Hospital). The hospital staff gathered the necessary insurance information and medical history, and, at approximately 12:15 p.m., Appellants were taken to an examining room in the emergency room at which time an emergency room nurse reviewed the information on the chart. Molly’s “injury” was classified by the triage coordinator as “non-urgent.” At approximately 12:30 p.m., Appellee Andrew George, M.D., examined Molly and then left. At approximately 12:45 p.m., Dr. George returned with Appellee Loretta Opila, M.D., who also examined Molly, and then both doctors left. According to the complaint, “Dr. George and Dr. Opila observed a non-life threatening swelling on the left side of the child’s head that exhibited no scrapes or abrasions of the skin and arbitrarily concluded that the child suffered a hematoma or bruises to that area of the child’s head without consulting a pediatrician and improperly rejecting the available medical history; that [Molly] was involved in the walker accident of September 25, 1991.” Appellants’ Second Amended Complaint, 8/18/93, at ¶22.

At approximately 12:50 p.m., Dr. Opila returned and asked Mother to consent to x-rays of Molly’s head and Mother consented. Appellants remained in the examining room while a nurse entered the room, looked at Molly’s swelling, and left without comment. Without any type of treatment being administered in the meantime, at approximately 2:00 p.m., Molly was taken for x-rays and was brought back to the emergency room at approximately 2:45 p.m. During this time, Mother and Grandparents were moved to another examining room which was farthest from the emergency room desk. From that distance, they could clearly hear a number of nurses at the emergency room desk loudly discussing Molly’s condition and treatment and the allegations of abuse and neglect in front of a busy emergency department waiting room. Appellant Robert J. Heinrich, Sr. (Grandfather) observed Drs. Opila and George reviewing x-rays of Molly. The x-rays were of Molly’s entire body and were not limited to x-rays of the child’s head to which Mother consented.

At approximately 3:00 p.m., Dr. George told Mother that the x-rays were negative and that he would attempt to contact Dr. Caroff to confirm the results of his examination of Molly on September 27, 1991. . Shortly thereafter, Dr. Opila returned and once again began questioning Mother and Grandparents as to the source of Molly’s injury. During this questioning, Dr: Opila opined that the swelling observed was most consistent with having had a blow in that area of the head. At approximately 3:30 p.m., Mother and Grandparents were introduced to Appellee Pat Stock, who identified herself as an employee of Appellee Hospital’s Department of Social Services. Ms. Stock stated that she had been contacted by Dr. Opila and asked to ascertain how Molly was injured or the source or cause of the swelling. Ms. Stock questioned Mother and Grandparents for approximately twenty minutes. During this time, Dr. George informed Mother and Grandparents that he had spoken with Dr. Caroff, who reported that there had been no swelling on Molly’s head when he examined her the day before. Mother responded angrily that she had told him earlier that she had not noticed any swelling prior to 10:30 a.m. on September 28, 1991.

Ms. Stock left and returned shortly thereafter to inform Mother and Grandparents that the physicians wanted to admit Molly in order to observe the head injury for twenty-four hours. Shortly thereafter, she again began to question Mother and Grandparents. Dr. George entered and informed Mother that he wanted to admit Molly for observation. Mother responded that she wanted Dr. Caroff to examine Molly, or, in the alternative, wanted to take Molly to another hospital since the child had not received any treatment for her swelling since arrival. Grandfather had been taking turns walking Molly in the hall in an effort to quiet her. When he attempted to walk into the waiting room with Molly, one of two security guards stepped forward and directed him to return to the examining room. He was further told that all members of his family had to remain in the assigned examining room.

At approximately 4:00 p.m., a nurse administered a dose of Amoxycillin, the antibiotic prescribed by Dr. Caroff. This was the first visible sign of treatment which Mother and Grandparents observed. At this time, Mother noticed that Molly’s swelling had subsided. At approximately 4:45 p.m., Appellees Elisabeth Cole, M.D., and Edward Devellen, M.D., entered the examining room and introduced themselves as family practitioners. They then proceeded to examine Molly. During this time, Dr. Devellen cleaned Molly’s ears and observed that her eardrums were slightly red and stated that the swelling was not consistent with a blow to the head since there was no bruising. Mother spoke with an Eileen Stouffer by telephone, who introduced herself as a representative of Cambria County Children and Youth Services (CYS). She informed Mother that if she did not admit Molly, CYS would come to Appellee Hospital and take custody of the child. Mother informed Ms. Stouffer that she had never refused to admit the child, but had only objected to the fact that the child was not receiving any treatment for the swelling.'

Dr. Opila reentered and began to question Mother and Grandparents concerning other possible causes for Molly’s swelling. Throughout the time Appellants were in the emergency room, “various unidentified nurses, residents, doctors and other hospital employees, representatives and agents, entered the emergency room examining room without notice or introduction and without any cause such as examination, diagnosis, treatment or consultation, and left without further comment, creating an uneasy atmosphere for [Appellants] in which they felt they were ‘on display’ and treated with extreme suspicion.” Appellants’ Second Amended Complaint, 8/18/93, at ¶ 41.

At approximately 5:30 p.m., Mother went to admissions and completed the necessary paperwork. During this time, blood samples were taken from Molly. The nurse informed Mother that the swelling had been diagnosed by Dr. Devellen as Cellulitis, an infection of the soft tissue. This diagnosis had not been conveyed to Mother prior to this time. Mother and Molly were taken to a hospital room and Molly was started on an i.v. of Nafcillin, a strong antibiotic. Mother was informed that the emergency room doctors had prescribed Similac as a nutritional supplement. However, Mother told a nurse that Molly was allergic to Similac and stated that no emergency room personnel had inquired as to any allergies that Molly may have. At approximately 8:00 p.m., Ms. Stouffer visited Mother in Molly’s hospital room and explained that she was being investigated for suspected child abuse and then questioned Mother for approximately thirty minutes. Mother signed a medical records release form for CYS to review the medical records.

On September 29, 1991, Dr. Richard Green, who was covering for Dr. Caroff, examined Molly. He stated that the doctors had diagnosed the swelling as Cellulitis from an inner ear infection. On Monday, September 30, 1991, Dr. Caroff examined Molly at approximately 1:45 p.m. At this time, he informed Mother that he had already contacted CYS in an attempt to resolve any misunderstanding and to correct any misinformation. On October 1, 1991, at approximately 9:00 a.m., Dr. Caroff examined Molly. Dr. Caroff stated that he requested a pediatrician be consulted when he was contacted by the emergency room staff on September 28, 1991, but they failed to follow-up on his request. Dr. Caroff further stated that Dr. Joseph Sheridan of Johnstown Pediatrics Association would examine Molly later that day. At approximately 10:00 a.m., a pediatric resident of Johnstown Pediatrics Association examined Molly and reviewed the medical case history with Mother.

At approximately 5:00 p.m. on October 1, 1991, Dr. Sheridan and two of his associates examined Molly and further questioned Mother and Grandparents. Dr. Sheridan stated that the fall on her head was the cause of the swelling and diagnosed the child’s condition as a sub-aponeourosis hematoma, caused by a broken blood vessel caused by the fall in the walker. At this time, he directed the i.v. be discontinued since Molly was not suffering from an infection. He notified Mother that he was contacting Dr. Caroff concerning Molly’s discharge from Appellee Hospital. At 5:30 p.m., Ms. Clarice Ott, a social worker, spoke with Mother and informed her that she was still under investigation for suspected child abuse. At approximately 6:00 p.m., Molly was discharged from Appellee Hospital by authorization of Dr. Caroff. On Thursday, October 3, 1991, Mother was informed by Ms. Stouffer that the report of suspected child abuse was held to be unfounded and promised to destroy the paperwork as soon as possible.

Based upon the above events, Appellants, in their complaint, asserted that they, as well as Mother’s siblings, have been confronted by friends, family members, neighbors, and acquaintances who had independently learned of the above incident and the investigation of suspected child abuse. Appellants also asserted that they have suffered from such physical manifestations of the stress resulting from the above incident including, but not limited to, severe tension headaches, pain and stiffness, fatigue, anxiety, loss of sleep, loss of appetite, nausea, shortness of breath, upset digestive processes, irritability, and shortness of temper. Finally, Appellants asserted that the actions of Appellee Hospital, “by and through its employees, representatives and agents, and all individual [Appellees], individually and collectively, during the course of treatment of [Molly] and during their dealings and conversations with [them] were insulting, outrageous, malicious, intentional, willful, wanton, reckless, vexatious and taken in bad faith and with bad motive, due to their preconceived suspicions, biases and prejudice based on [their] economic situation, by their refusal to investigate the information provided by [them] and the delay in treating [Molly] and were with a reckless indifference to the rights of all [Appellants] and for the purpose to oppress [Appellants], with the knowledge that such actions would cause [Appellants] to suffer physical manifestations of the injuries that they suffered.” Appellants’ Second Amended Complaint, 8/18/93, ¶ 56.

As a result, Appellants filed a four count complaint in which they alleged causes of action against Appellee Hospital for corporate negligence and defamation, and causes of action for intentional and negligent infliction of emotional distress against all Appellees. Appellees filed preliminary objections, in which they raised, among other things, immunity from suit under section 6318 of the Child Protective Services Law (the Law), 23 Pa.C.S. § 6301, et seq. After hearing argument, the trial court issued an order in which it: 1) upon the representation of Appellants’ counsel, dismissed Appellees Dr. Cole, Dr. Devellen, and Clarice Ott from the lawsuit because they executed their duties in good faith, and because Appellants’ second amended complaint failed to provide specific material facts which would indicate bad faith in order to overcome the statutory presumption of good faith; 2) dismissed Appellants’ claim of corporate negligence on the basis that the facts alleged in the second complaint were insufficient to constitute a breach of duty, a legal injury, or legal causation; 3) allowed Appellants twenty days to plead more specifically their defamation claim; 4) dismissed Appellants’ claim for intentional and negligent infliction of emotional distress for failing to state facts that would support extreme and outrageous conduct which rose to and beyond all bounds of decency and for failing to set forth evidence of any physical or bodily injury; 5) dismissed Appellants’ claims for punitive damages for failing to state facts that show outrageous behavior on the part of Appellees; and 6) dismissed as defendants Appellee Hospital and Appellees Dr. Opila, Dr. George and Pat Stock under the protection of immunity.

Appellants raise the following issue on appeal:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION OR COMMITTED AN ERROR OF LAW IN GRANTING [APPELLEES’] PRELIMINARY OBJECTIONS TO [APPELLANTS’] SECOND AMENDED COMPLAINT?

Appellants’ Brief at p. 4.

The order at issue allowed Appellants twenty days to amend their complaint as to their defamation claim, and, ordinarily, an issue of appealability would arise. However, we note that the same order dismissed all Appellees from the lawsuit. The net effect of the order, then, was the dismissal of the entire case. When the grant of preliminary objections results in the dismissal of a cause of action, a court should sustain the objections only in cases that are clear and free from doubt. Meinhart v. Heaster, 424 Pa.Super. 433, 622 A.2d 1380 (1993). Our review is plenary; “[w]e must determine if the trial court correctly determined that, taking as true all properly pleaded material facts and disregarding all pleaded conclusions of law, under no circumstances will the law permit recovery on the complaint.” Pysh v. Security Pacific Housing Service, 416 Pa.Super. 64, 69, 610 A.2d 973, 975 (1992), alloc. den., 533 Pa. 625, 620 A.2d 491 (1993).

In general, preliminary objections are not available to raise the defense of immunity from suit. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985). Where a party erroneously asserts substantive defenses in preliminary objections rather than raising same by answer or in new matter, the failure of the opposing party to file preliminary objections to defective preliminary objections, raising erroneous defenses, waives the procedural defect and allows the trial court to rule on the preliminary objections. Preiser v. Rosenzweig, 418 Pa.Super. 341, 614 A.2d 303 (1992), allocatur granted, 535 Pa. 637, 631 A.2d 1009 (1993). Commonwealth Court has also overlooked the irregularity when opposing counsel fails to object, as well as where the defense of immunity is clear on the face of the pleadings. See generally, Swartz v. Masloff, 62 Pa.Cmwlth. 522, 437 A.2d 472 (1981). Commonwealth Court has also considered the defense of immunity raised by way of preliminary objections in the interests of judicial economy where the plaintiff did not object to the procedural defect. See Nicholson v. M & S Detective Agency, Inc., 94 Pa.Cmwlth. 521, 503 A.2d 1106 (1986).

As this Court has noted, the purpose of the Law “is to bring about quick and effective reporting of suspected child abuse so as to serve as a means for providing protective services competently and to prevent further abuse of the children while providing rehabilitative services for them and the parents.” In Interest of J.R.W., 428 Pa.Super. 597, 602, 631 A.2d 1019, 1021 (1993). To this end, the Law requires, under threat of criminal penalty, that health care professionals and others report suspected abuse:

§ 6311. Persons required to report suspected child abuse
(a) General Rule. — Persons who, -in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child. The privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.
(b) Enumeration of persons required to report. — Persons required to report under subsection (a) include, but are not limited to, any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, a Christian Science practitioner, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official.

23 Pa.C.S. § 6311(a) and (b) (emphasis added). Immunity is clearly provided to those who report under the Law:

§ 6318. Immunity from liability
(a) General rule. — A person, hospital, institution, school, facility or agency participating in good faith in the making of a report, cooperating with an investigation or testifying in a proceeding arising out of an instance of suspected child abuse, the taking of photographs or the removal or keeping of a child pursuant to section 6315 (relating to taking child into protective custody) shall have immunity from any civil or criminal liability that might otherwise result by reason of those actions.
(b) Presumption of good faith. — For the purpose of any civil or criminal proceeding, the good faith of a person required to report pursuant to section 6311 (relating to persons required to report suspected child abuse) shall be presumed.

23 Pa.C.S. § 6318. There is no dispute that all Appellees fall within the protection provided under the Law. Appellants were afforded three opportunities to amend their complaint so as to assert sufficient specific facts tending to show that the Appellees acted in bad faith and thus overcome the statutory presumption. The trial court concluded that Appellants had failed to do so on each occasion. We agree.

Appellants argue that Appellees’ preliminary objections should not have been granted because the question of whether Appellees acted in good faith is a question of fact for the jury, and their complaint makes sufficient, specific allegations of bad faith. We cannot agree. A review of Appellants’ second amended complaint reveals that it contains general language with regard to the motives of the individual Appellees and allegations of maliciousness. Such allegations are insufficient to overcome the statutory presumption. See Roman v. Appleby, 558 F.Supp. 449 (E.D.Pa.1983) (good faith of defendant must be judged against an objective standard rather than alleged motives or allegations of maliciousness), cited with approval in Brozovich v. Circle C Group Homes, Inc., 120 Pa.Cmwlth. 417, 548 A.2d 698 (1988). Moreover, with regard to Appellants’ claim that the Appellees failed to investigate the true source of Molly’s injury, we adopt as sound the rationale of our sister court:

However, the Law requires the Circle C Appellees to immediately report suspected abuse. The urgency of prompt reporting is stressed throughout the Law’s provisions.... To adopt Appellants’ position that these Appellees were somehow required to verify Landino’s allegations of abuse prior to reporting them runs contrary to the express purpose of of [sic] the Law____ The [Law] does not envision any pre-reporting investigation, and, in light of the mandatory reporting procedure and the Law’s presumption of good faith, we are unwilling to presume that the failure to conduct such an investigation was in bad faith.

Brozovich, at 421, 548 A.2d at 700 (emphasis in original) (footnote omitted).

Appellants cite to Brown v. Delaware Valley Transplant Program, 420 Pa.Super. 84, 615 A.2d 1379 (1992) (en banc), alloc. den., 535 Pa. 652, 634 A.2d 216 (1993), to support their proposition that the issue of good faith is a question of fact to be determined by the factfinder. In Brown, this Court was presented with the issue of whether the appellee hospital acted in good faith in harvesting the decedent’s bodily organs pursuant to the Uniform Anatomical Gift Act (the Act), 20 Pa.C.S. §§ 8601-8607. Although the Act does not contain a presumption of good faith, it does provide a specific standard of conduct to be followed before the organs are taken. Citing with approval a New York decision, this Court concluded that good faith may be determined as a matter of law when the statute involved provides specific criteria regarding a standard of conduct by which the defendants’ conduct can be measured. Thus, this Court, finding that the appellee hospital acted in good faith as a matter of law, affirmed the entry of summary judgment. The good faith provision of the Act was once again at issue in Callsen v. Cheltenham York Nursing Home, 154 Pa.Cmwlth. 541, 624 A.2d 663 (1993), wherein Commonwealth Court was presented with the issue of whether preliminary objections were properly sustained, on the basis of immunity, with regard to the appellees action in transporting the decedent’s body to Temple University for the purpose of dissection. Because the averments of the complaint did not assert what efforts were expended by the appellees in their effort to locate the decedent’s next of kin, Commonwealth Court could not find good faith as a matter of law, and remanded the case for further proceedings.

As noted above, the Law, unlike the Act, provides a presumption of good faith. In addition, while, like the Act, the Law provides specific criteria regarding a standard by which Appellees conduct can be measured, the Law provides a specific reporting procedure which leaves little question as to whether the procedure was followed. The Act, on the other hand, provides a procedure whereby the medical person or agency must make a good faith effort to contact the decedent’s next of kin; the quality of the effort made to contact relatives is more susceptible to a jury question. We find that the Law requires an exercise of good faith which is different in kind from that required under the Act. Thus, immunity can be found in the present case as a matter of law.

Decisions of our sister states have also dismissed similar complaints on the basis that no showing was made by the plaintiff which would overcome the statutory presumption of good faith. See e.g., Lehman v. Stephens, 148 Ill.App.3d 538, 101 Ill.Dec. 736, 499 N.E.2d 103 (1986), app. den., 113 Ill.2d 576, 106 Ill.Dec. 48, 505 N.E.2d 354 (complaint against reporting physician properly dismissed wherein suspicious nature of child’s “twisting type” fracture and cavalier attitude of parents gave physician reasonable cause to believe child was abused and parents failed to present anything which would rebut statutory presumption); Kempster v. Child Protective Services, 130 A.D.2d 623, 515 N.Y.S.2d 807 (1987) (summary judgment properly granted in favor of hospital where nurse had reasonable cause to suspect that infant presented to emergency room with swelling of her nose, allegedly as a result of a fall two days earlier, and, as revealed by subsequent x-rays, a healed fracture of her right wrist, for which the mother could provide no explanation, might have been abused; good faith of reporter is presumed, qualified immunity is not predicated upon actual or conclusive proof of abuse or maltreatment, and mother offered no evidence to rebut statutory presumption); Awkerman v. Tri-County Orthopedic Group, P.C., 143 Mich.App. 722, 373 N.W.2d 204 (1985) (summary judgment properly granted; allegations of negligent diagnosis of cause of minor’s frequent bone fractures not sufficient, as a matter of law, to overcome statutory presumption of good faith, and immunity provision precludes recovery for consequential damages such as shame and humiliation); Gross v. Haight, 496 So.2d 1225 (1986) (summary judgment properly entered in a defamation case wherein parents failed to set forth specific facts showing there was a genuine issue of the hospital officials’ lack of good faith in reporting suspected child abuse or of publication to anyone who was not privileged to receive the information). See also Thomas v. Beth Israel Hospital, 710 F.Supp. 935 (S.D.N.Y.1989) (federal court, applying New York law, dismissed with prejudice complaint against hospital where plaintiffs allegations of fraudulent reporting of child abuse was factually incorrect and insufficient to rebut the statutory presumption that hospital acted in good faith).

In Brozovich, supra, Landino, who was then nineteen years old, alleged that she was the victim of child abuse when, as a minor, she was in the care of the Brozoviches, her foster parents. As quoted above, Commonwealth Court held that the Circle C Appellees were not required to investigate Landino’s claims before reporting them. In the present case, the alleged victim of child abuse was an infant. Thus, Molly could not confirm the source of her injury. For much the same reasons, we are unpersuaded by Appellants’ attempt to assert bad faith because Molly’s injury was minor and did not fall under the statutory definition of child abuse. Molly, a seven-month-old infant, was presented at Appellee Hospital’s emergency room with swelling of unknown origin. We cannot fault Appellees, given the criminal penalty imposed for failing to report suspected child abuse, from making a report under these circumstances.

As our review of Appellants’ complaint reveals that each count stated therein is based on the conduct of Appellees, leading to the reporting of suspected abuse, we find that the immunity provided under the Law applies to all of them.

Order affirmed.

      . "A person or official required by this chapter to report a case of suspected child abuse who willfully fails to do so commits a summary offense for the first violation and a misdemeanor of the third degree for a second or subsequent violation.” 23 Pa.C.S. § 6319.

      . Indeed, we find Appellants’ argument contradictory. Appellants claim that the several Appellees did not provide treatment promptly to alleviate Molly’s suffering, yet at the same time argue the lack of severity of Molly's swelling did not afford the several Appellees reason to believe that she was subject to child abuse.


author: HOFFMAN, Senior Judge:

text:
    648 A.2d 60
    Marjorie A. FARABAUGH v. David V. KILLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 30, 1994.
    Filed Sept. 30, 1994.

      Thomas M. Kalinyak, Johnstown, for appellant.
    Theresa Homady, Asst. Dist. Atty., Edensburg, for Com., appellee.
    Before POPOVICH and SAYLOR, JJ., and HOFFMAN, Senior Judge.
   HOFFMAN, Senior Judge:

This appeal arises from the November 18, 1993 trial court order increasing appellant David V. Killen’s child support payments. Appellant presents three issues for our review:

I. Did the lower court abuse its discretion when it applied the newly revised statewide child and spousal support guidelines, which became effective January 27, 1993, to the appellee’s petition to increase child support filed on May 22, 1991 without first determining whether the appellee met her burden of proof to show that there was a substantial and material and permanent change of circumstances since the original Support Order dated November 20, 1989 instead of the uniform guidelines in effect at the time, specifically Pa.R.C.P. 1910.19 including its explanatory comments [sic]?

II. Or in the alternative, did the lower court misapply the statewide uniform support guidelines effective January 27, 1993 to the parties’ income levels to determine whether an increase should be granted without first requiring the appellee to prove by competent evidence that there was a substantial and material permanent change of circumstances of the parties?

III. Whether the lower court miscalculated appellee’s income when it did not include therein monthly rentals and her income tax refunds?

Appellant’s Brief at 5. For the reasons stated below, we reverse and remand.

On June 2, 1980, appellant and appellee, Marjorie A. Farabaugh, were married. Two children were born of the marriage. The parties separated on August 27, 1987, and on August 4, 1989, appellee filed a complaint for child support against appellant. The parties agreed that appellant should pay $400.00 per month in child support and an order enforcing the agreement was entered on November 20, 1989. Appellee filed a complaint for divorce on March 29, 1990. On November 19, 1990, the parties entered into a marriage settlement agreement. The settlement agreement provided that appellee would not seek an increase in child support if appellant made timely child support payments. On May 22, 1991, appellee filed a petition to increase child support, asserting that the existing child support order was insufficient due to changed circumstances. On July 7, 1991, appellant filed preliminary objections, alleging that the petition violated the terms of the marriage settlement agreement. The trial court entered an order granting appellant’s preliminary objections. On appeal, this Court reversed the order and remanded the case for further proceedings. See Marjorie Anne Farabauyh, formerly Marjorie Anne Killen v. David Vernon Killen, 424 Pa.Super. 653, 617 A.2d 395 (1992). Following a hearing, a Domestic Relations Hearing Officer, using the Child Support Guidelines, recommended that appellant pay $766.00 in child support per month, as well as pay all child support in arrears from the date when the petition to increase child support was first filed. On June 29, 1993, the trial court entered an order adopting the master’s recommendation. On July 12, 1993, appellant filed preliminary objections to the order. Subsequently, on November 18, 1993, the trial court vacated the order and entered another order directing appellant to pay $746.00 per month in child support, to pay child support in arrears at a rate of only $200.00 per month, beginning December 1993, and to be responsible for sixty percent of unreimbursed medical expenses.

First, appellant contends that the trial court erred in applying the 1993 amended child support guidelines as the instant petition was filed in 1991. A careful review of the record reveals, however, that the trial court applied the more stringent pre-1993 Rule 1910.19(a) in granting appellee’s petition. Accordingly, this issue is meritless.

Next, appellant claims that the trial court erred in increasing appellant’s child support payments as there was no substantial or material change in circumstances. We disagree.

A trial court may only modify a child support order when the party requesting modification shows a material and substantial change in circumstances since the order was entered. Crawford v. Crawford, 429 Pa.Super. 540, 559, 633 A.2d 155, 164 (1993). Our Court has noted that changed circumstances include proof of an increase in expenditures for litigants’ children, along with other facts which could demonstrate that a previous support order should be reconsidered. See Newman v. Newman, 409 Pa.Super. 108, 114, 597 A.2d 684, 687 (1991), alloc. denied, 530 Pa. 660, 609 A.2d 168 (1992).

In the instant case, there were adequate grounds for the trial court to find that a material and substantial change in circumstances had occurred since the entry of the initial support award. There had been a substantial increase in expenditures for both children. One child required tutoring for a learning disability and both children needed substantial orthodontic work. In addition, appellee had experienced necessary household expenses, including approximately $3,000 to replace the furnace. See Commonwealth ex rel. Sladek v. Sladek, 386 Pa.Super. 490, 496, 563 A.2d 172, 175 (1989) (specific increase in cost of living, which affects expenditures on children, constituted change of circumstances under Rule 1910.19(a)). Accordingly, we find that the court did not abuse its discretion by modifying appellant’s obligation of child support. Kelly v. Kelly, 430 Pa.Super. 31, 633 A.2d 218, 219 (1993) (child support order won’t be disturbed absent abuse of discretion by trial court).

Finally, appellant argues that the trial court erred in its calculation of appellee’s net income under the guidelines. Specifically, appellant claims that money received from the rental of appellee’s mobile home as well as two income tax refunds were not included in appellee’s net income. We agree.

The child support guidelines state as follows:

The amount of support to be awarded is based in large part upon the parties’ monthly net income.... The term “income” is defined by the support law, 23 Pa.C.S. § 4302, and includes income from any source. The statute lists many types of income including:

... (2) net income from business or dealings in property. Pa.R.Civ.Pro. 1910.16-5(b). Here, appellee had been receiving monthly payments from the renting of her mobile home. These rental receipts were not, however, included in the trial court’s calculation of appellee’s net income. Moreover, the trial court failed to include appellee’s income tax refunds for 1991 and 1992 in this figure. Young v. Muthersbaugh, 415 Pa.Super. 591, 595, 609 A.2d 1381, 1383 (1992) (tax refunds are included in parties’ net income figure when determining child support under guidelines).

As the trial court should have included the rental receipts and the two refunds in the calculation of appellee’s net income, we reverse and remand for proceedings consistent with this Opinion.

Reversed and remanded. Jurisdiction is relinquished.

      . As the newly amended Rule 1910.19(a) does not state whether it can be applied retroactively, the trial court was correct to apply the old version. 1 Pa.C.S. § 1926 ("No statute shall construed to be retroactive unless clearly and manifestly so intended by the General Assembly.”)

      . We note that under the language of the newly amended Rule 1910.19(a), a hearing court may now modify a child support order upon a showing that the support guidelines recommends a higher child support figure than had been previously ordered. Commonwealth v. Harner, 533 Pa. 14, 20, 617 A.2d 702, 705 (1992) ("When language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning.”).


author: WIEAND, Judge: McEWEN, Judge,

text:
    648 A.2d 326
    June L. FRAMPTON, Administratrix of the Estate of Donald H. Frampton, Sr., Deceased, and Richard Boaz, Appellants, v. DAUPHIN DISTRIBUTION SERVICES COMPANY, Pennsylvania Power & Light Company, Scholl, Sowers and Associates, Inc., Shane Construction, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1994.
    Filed Aug. 16, 1994.
    Reargument Denied Oct. 18, 1994.

      Barry L. Gross, Newton, for appellants.
    William A. Addams, Carlisle, for Scholl, Sowers & Associates, appellees.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   WIEAND, Judge:

Does an architect who has been hired to prepare construction drawings and a foundation design for a proposed warehouse have a duty to warn construction workers of the presence of an existing, overhead power line? The trial court held that no such duty existed in the absence of a contractual assumption thereof. We agree that this is a correct statement of the law. Under the facts of this case, therefore, we will affirm the summary judgment entered in favor of the architect in this action to recover damages on behalf of workmen who were killed or injured when the scaffolding which they were moving came into contact with the power line.

In 1988, Dauphin Distribution Services Company (Dauphin) contracted with Shane Construction, Incorporated (Shane) to construct a distribution facility in Hampden Township, Cumberland County. Pursuant to the terms of the agreement, Shane was responsible for supervising all construction activity. Shane was also charged with initiating, maintaining and supervising safety precautions associated with the construction work. According to the express terms of the agreement, the architect was not to be responsible for and was not to have control over construction activities or safety measures. By separate agreement, Shane contracted with Scholl, Sowers & Associates, Incorporated (Scholl), an architectural firm, for the preparation of the project’s construction drawings and foundation design. Pursuant to the terms of this agreement, Scholl’s responsibility was limited to the preparation of documents.

R.A. Marker & Sons Steel Erector Company (Marker) was one of the subcontractors involved in the construction project. On December 8, 1988, Marker employees, Richard Boaz and Donald Frampton, Sr., were involved in an accident while installing metal siding on the building which was then under construction. The accident occurred when they allowed the scaffolding which they were maneuvering around the corner of the budding to come into contact with an overhead, uninsulated power line. As a result of the contact, Boaz sustained severe injuries and Frampton was electrocuted. Boaz and June Frampton, the administratrix of Donald Frampton’s estate, commenced separate actions against Dauphin, Pennsylvania Power & Light Company, Shane and Scholl. The two actions were subsequently consolidated by stipulation of the parties.

With respect to Scholl, the plaintiffs alleged that the defendant had been negligent in failing to warn workers of the hazards involved in working in close proximity to a power line and in failing to take any steps to minimize the danger posed to the workers by the power line. After the pleadings had been closed and limited discovery conducted, Scholl moved for summary judgment. The trial court granted Scholl’s motion, and the plaintiffs appealed.

A motion for summary judgment may be granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Marks v. Tasman, M.D., 527 Pa. 132, 134, 589 A.2d 205, 206 (1991), quoting Pa.R.C.P. 1035(b). In determining whether summary judgment has been properly granted, a reviewing court must examine the record in the light most favorable to the nonmoving party and resolve all doubts against the moving party. E.J.M v. Archdiocese of Philadelphia, 424 Pa.Super. 449, 453, 622 A.2d 1388, 1390 (1993). Summary judgment, is proper only in cases where the right is clear and free from doubt. Marks v. Tasman, M.D., supra 527 Pa. at 134-135, 589 A.2d at 206.

In order to prove a cause of action for negligence, a plaintiff must show

the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant’s breach and the resulting injury; and actual loss or damage suffered by the complainant.

Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987). See also: Pittsburgh Nat’l Bank v. Perr, 431 Pa.Super. 580, 583-85, 637 A.2d 334, 336 (1994); Reilly v. Tiergarten, Inc., 430 Pa.Super. 10, 14-16, 633 A.2d 208, 210 (1993). Absent a duty of care, however, a negligence claim cannot be sustained. Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985).

As a general rule, an architect may be held liable only if he fails to exercise the ordinary skill of his profession and this results in the erection of an unsafe structure which causes injury to another who is lawfully on the premises. 5 Am. Jur.2d Architects § 25. See also: Annotation, Architect’s Liability for Personal Injury or Death Allegedly Caused by Improper or Defective Plans or Design, 97 A.L.R.3d § 455 (1980). Pennsylvania courts, consistently therewith, have refused to impose a duty on an architect to protect workers from hazards on a construction site in the absence of an undertaking by the architect, either by contract or course of conduct, to supervise and/or control the construction and to maintain safe conditions on the construction site. Young v. Eastern Engineering and Elevator Co., Inc., 381 Pa.Super. 428, 433-434, 554 A.2d 77, 79 (1989). See also: Marshall v. Port Authority of Allegheny County, 106 Pa.Commw. 131, 525 A.2d 857 (1987), aff'd, 524 Pa. 1, 568 A.2d 931 (1990) (engineer has no duty to worker injured during bridge demolition absent evidence he was responsible for assuring safe working conditions). Compare: Heath v. Huth Engineers, Inc., 279 Pa.Super. 90, 420 A.2d 758 (1980) (engineer liable for negligence where contract required engineer to supervise work, periodically inspect it, and assist in safeguarding owner against defects by contractor).

In the present case, Scholl was not hired to supervise construction or to act as the owner’s representative on the construction site. Scholl was employed by the general contractor to do design work and to prepare certain drawings. Neither Scholl’s contract with Shane, nor Shane’s contract with Dauphin can be construed as imposing upon Scholl a duty to supervise the construction work or be responsible for the safety of workers.

Similarly, there is no suggestion that Scholl undertook, by course of conduct, to supervise the construction work or provide for the safety of workers. Therefore, under all the existing law, it is clear that the architect did not have a duty to warn employees of a subcontractor regarding hazardous conditions which existed on the construction site. See: Young v. Eastern Engineering and Elevator Co., Inc., supra; Marshall v. Port Authority of Allegheny County, supra.

Appellants argue that Young is distinguishable on its facts in that it involved a hazard created by the construction work itself and not a hazardous condition which existed prior to the commencement of construction. The overhead line, however, was as readily visible to the subcontractor and his workmen as it was to the architect. The architect had no greater knowledge of the hazard caused by an overhead electric power line than the contractor, the subcontractor or any of the workmen.

Although our research has disclosed no Pennsylvania appellate court decisions which are on all fours factually with the instant case, in Patin v. Industrial Enterprises, Inc., 421 So.2d 362 (La.App.1982), the facts were similar. There, a construction worker was killed when a section of gutter which he had been holding came into contact with an uninsulated electric line. The decedent’s spouse commenced an action against various parties, including the engineer who had drawn the plans for the building which had been under construction at the time of the accident. The plaintiff alleged that the engineer had been negligent in drawing plans for a building situated in close proximity to an electrical servitude, in failing to warn of the close proximity of the wires and in failing to provide instructions for safe construction in an area containing uninsulated wires. The court observed that the workers were aware of the presence of the wires and that the engineer, who had been hired only to draw up the plans for the building, had no responsibility for construction supervision. Therefore, the court held that the engineer had no duty to warn the workers of the presence of the wires or to provide instructions for safe construction in that area and affirmed the entry of summary judgment in favor of the engineer.

A California court has held that an architect may be found negligent for failing to delineate on plans, which he prepared, an underground high voltage line of which the architect had knowledge and which was located where an excavation was to be made. See: Mallow v. Tucker, Sadler & Bennett, Architects and Engineers, Inc., 245 Cal.App.2d 700, 54 CalRptr. 174 (1966). See also: Chastain v. Atlanta Gas Light Co., 122 Ga.App. 90, 176 S.E.2d 487 (1970) (where architect is alter ego of owner on the job site, his failure to indicate the location of underground gas utility on design plans precludes the entry of summary judgment in his favor). But compare: Kaltenbrun v. City of Port Washington, 156 Wis.2d 634, 457 N.W.2d 527 (1990) (architect had no duty to perform subsoil tests or design safety features for site’s ingress and egress routes to assure that routes would withstand weight of construction equipment). In all of these cases, however, the hazard was not readily observable to the contractor and his employees.

In the instant case, as in Patin v. Industrial Enterprises, Inc., supra, the electric power line was above ground and was readily visible. It was also identified on site plans which had been prepared by the engineer. The architect had no superior knowledge regarding the location of the electric line. The architect, as we have observed, had not been hired to supervise the construction work and had no contractual obligation to oversee the manner in which the several contractors and their employees performed their work. He also had no duty to determine whether the electric power line was properly insulated. Absent a greater duty imposed by contract or course of conduct, an architect’s liability is limited to instances of unsafe or defective design of a structure. An architect, in the absence of a duty specially imposed by contract or course of conduct, has no duty to take affirmative action to protect workers from hazards on the job site which are either known or readily ■visible.

Here, it is clear that Scholl did not contractually assume any duty to supervise the construction work or provide for the safety of workers. The responsibility for safety on the job site was fixed by contract on the general contractor; and the contract between contractor and architect required the architect only to design the foundation and prepare construction drawings. It follows that Scholl had no duty to take affirmative steps to minimize the risk of coming into contact with a visible overhead power line during the course of construction.

The summary judgment entered in favor of the appelleearchitect is affirmed.

McEWEN, J., files a dissenting statement.

McEWEN, Judge,

dissenting:

The author of the majority view has, in his usual fashion, proceeded to so perceptive and persuasive an expression of position that I am hesitant to differ. Nonetheless, I am obliged to this statement of dissent. Simply put, I would impose upon the architect a duty to protect workers from hazards on construction sites, and would not restrict that duty by imposition of a condition precedent that the architect have agreed, either by contract or course of conduct, to supervise and/or control the construction or the maintenance of safe conditions on the construction site.

The complaint, specifically, paragraph 14, includes an allegation that the architect was negligent by reason of a failure to warn of the hazards, including, the fact that the power line was not insulated. While, as the majority opines, the overhead line itself was as visible to the sub-contractor and his workmen as it was to the architect, (1) even a workman with 20/20 vision lacks the depth perception needed to determine the meaningful proximity of the wire, and (2) a workman should not be required to test the line to determine if the wire is insulated. Rather, it strikes me that the architect, in this era of an enlightened concern for the safety of the worker, has a duty to the workers who will perform the construction delineated on the plans to highlight upon those plans the life-threatening aspects of their working environment.

Our Supreme Court long ago ruled that visibility of a power line is not the critical element in cases arising from injuries sustained by a worker from a power line:

The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. “Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case.” Lehigh, on the other hand, was bound to know the degree of danger involved. Those handling electricity of high voltage are not only bound to know the extent of the danger but to use the very highest degree of care practicable to avoid injury to everyone who may be lawfully in proximity to such wires and liable to come accidentally or otherwise in contact with them.

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The further argument is presented “that the law of Pennsylvania does not require an employee to work in a dangerous position and if he does so with knowledge of the potential danger and continues to work without protest he assumes the risk.” We have no quarrel with this rule but deem it inapplicable to the facts of the present case. There was no proof that plaintiff knew of the potential danger.

Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 9-10, 130 A.2d 123, 128-129 (1957) (citations omitted) (emphasis supplied). See also: Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 249 A.2d 773 (1969).

The majority does not fault the California Appeals Court for imposing liability upon an architect who failed to delineate on plans an underground high voltage line. Mallow v. Tucker, Sadler & Bennett, Architects & Engineers, Inc., 245 Cal. App.2d 700, 54 Cal.Rptr. 174 (1966). I am unable to detect a significantly intrinsic difference between the dangers to the work environment posed by that invisible line and the instant fine of blurred proximity and unknown danger.

The posture of the case is, as I see it:

The complaint asserts that the architect had a duty to provide appropriate warning as to the perilous power line. The architect delivered deposition testimony that even though he knew of the perilous power line, he expressed no warning.

Appellants, during discovery, provided testimony by an expert that the architect knew of the hazardous power line, knew that the design of the building compelled workers to work in precarious proximity to the lines, and failed “to take reasonable steps consistent with customary architectural practice to identify the hazardous condition in anticipation of workers being exposed.... ” (Emphasis supplied).

Since I am of the mind that the architect had a duty “to take reasonable steps consistent with customary architectural practice to identify” the hazard so as to alert and thereby protect the worker, the architect is not, in my view, entitled to judgment as a matter of law. Thus it is that I would reverse the order granting summary judgment and permit appellants to proceed to the presentation of their claims to the jury.

      . The author of the dissenting opinion relies on decisions by the Supreme Court in Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957) and Janowicz v. Crucible Steel Company of America, 433 Pa. 304, 249 A.2d 773 (1969). In Stark, however, recovery was allowed against the owner of the plant and the power company which supplied the power; and in. Janowicz, the action was against the owner of the trestle on which the plaintiff was working when scaffolding came into contact with an electric power line. In neither of these cases did the Court consider or discuss the potential liability of an architect who was employed only to prepare drawings and who neither had nor exercised control over the work site. We conclude, therefore, that neither decision is helpful in deciding the issue of first impression which has been presented by this appeal.

      . We find it unnecessary to determine in this case whether the contract between the general contractor and the architect violated the provisions of 49 Pa.Code § 9.165. In any event, there was no duty on the architect under the facts of this case to protect workers from coming into contact with the obvious power line.