author:
HOFFMAN, Judge:
      WIEAND, Judge,

text:
    531 A.2d 796
    COMMONWEALTH of Pennsylvania v. Raymond GLAZE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 27, 1987.
    Filed Sept. 21, 1987.

      Shelley Stark, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for violations of the Controlled Substance Drug, Device & Cosmetic Act, 35 P.S. §§ 780-101 to -141.1. Appellant contends that his guilty plea counsel was ineffective for failing to file a motion to withdraw his guilty plea and his post-verdict motions counsel was ineffective for failing to allege that his guilty plea colloquy was defective. He also contends that his sentence is inappropriate. For the reasons that follow, we vacate the judgment of sentence and remand for further proceedings.

Appellant, represented by a member of the Public Defender’s Office in Pittsburgh, pleaded guilty to two counts of possession with intent to deliver a controlled substance, two counts of the sale and delivery of a controlled substance, and two counts of simple possession of a controlled substance. He was sentenced to a term of five-to-fifteen-years imprisonment. Represented by another member of the Public Defender’s Office, appellant filed a motion to modify his sentence. He then filed a pro se supplement to the motion to modify sentence, which included a motion to withdraw his guilty plea. Following a hearing, these motions were denied. New counsel, again a member of the Public Defender’s Office, was appointed, and this- appeal followed.

Appellant first contends that his guilty plea colloquy was defective because he was not informed of the range of possible sentences he could receive and that his former counsel were ineffective for failing to raise and preserve this issue for appeal.

When confronted with a claim of ineffective assistance of counsel, a reviewing court must first ascertain whether the issue underlying the charge of ineffectiveness is of arguable merit and, if so, it must be determined whether the course chosen by counsel had some reasonable basis designed to serve the interests of his client.

Commonwealth v. Buehl, 510 Pa. 363, 378, 508 A.2d 1167, 1174 (1986). Moreover, the petitioner must demonstrate how the ineffectiveness worked to his or her prejudice. Commonwealth v. Pierce, 515 Pa. 153, 159, 527 A.2d 973, 976 (1987) (adopting standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) as standard for prejudice).

We note that here, appellant’s guilty plea counsel, post-verdict motions counsel and counsel for this appeal are each members of the same Public Defender’s Office. Generally, a public defender may not argue the ineffectiveness of another member of that public defender’s office who represented the client at an earlier stage of the proceedings. Commonwealth v. Sherard, 477 Pa. 429, 430, 384 A.2d 234, 234 (1977); Commonwealth v. McNeal, 261 Pa. Superior Ct. 332, 336, 396 A.2d 424, 426 (1978). Similarly, individual counsel may not argue his or her own ineffectiveness. See Commonwealth v. Dancer, 460 Pa. 95, 100, 331 A.2d 435, 438 (1975). Our Supreme Court created an exception to this rule in Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). In Fox, the Court held that “this Court will entertain a claim of ineffective assistance of counsel on appeal by the same attorney who served as trial counsel if reversible error is apparent on the record____” Id., 476 Pa. at 479, 383 A.2d at 201. The rationale for this rule is as follows:

This limited exception is allowed because it is consistent with the principles underlying the general rule. First, appellant’s.right to effective counsel is not impaired because regardless of how many additional reasons for reversal a more zealous advocate might bring out the result would be the same: reversal. Second, judicial economy is promoted since the appeal may be disposed of without the further procedural steps required for appointment of new counsel.

Commonwealth v. Serianni, 337 Pa. Superior Ct. 309, 313, 486 A.2d 1349, 1351 (1984), allocatur denied. We extended this exception to allow one member of a public defender’s office to raise the ineffectiveness of another member of the same public defender’s office if reversible error is apparent from the record. See Commonwealth v. McNeal, supra. See also Commonwealth v. Adams, 341 Pa. Superior Ct. 546, 549 n. 1, 492 A.2d 1, 2 n. 1 (1985); Commonwealth v. Smoyer, 281 Pa. Superior Ct. 320, 322, 422 A.2d 189, 190 (1980).

Applying this rule to a claim of ineffectiveness of counsel, if, from a review of the record, we can determine that appellant’s underlying claim has arguable merit, counsel had no reasonable basis for his or her course of action, and counsel’s ineffectiveness prejudiced appellant, we may reverse without a remand for the appointment of new counsel and a hearing on ineffectiveness. Thus, we will first address whether appellant’s contention has arguable merit.

In a motion to withdraw a plea of guilty after sentencing, a petitioner must prove to the trial court that withdrawal is necessary to correct a manifest injustice. Commonwealth v. Schultz, 505 Pa. 188, 191, 477 A.2d 1328, 1329-30 (1984); Commonwealth v. Starr, 450 Pa. 485, 490, 301 A.2d 592, 595 (1973); Commonwealth v. Nelson, 319 Pa. Superior Ct. 66, 70, 465 A.2d 1056, 1058 (1983). Under this standard, one seeking to withdraw a guilty plea after sentencing must demonstrate that the plea was not voluntary or was entered without knowledge of the charge. Commonwealth v. Shaffer, 498 Pa. 342, 346, 446 A.2d 591, 593 (1982); Commonwealth v. Campbell, 309 Pa. Superior Ct. 214, 219, 455 A.2d 126, 128 (1983), allocatur denied.

Rule 319 of the Pennsylvania Rules of Criminal Procedure requires that a court shall not accept a guilty plea unless it has determined from an on-the-record inquiry that the plea is voluntarily and understanding^ entered. Pa.R. Crim.P. 319(a). The purpose of the rule requiring an on-the-record colloquy is to insure that the defendant fully understands the nature of the crimes to which he or she is pleading guilty and the rights that are being waived by the plea. Commonwealth v. Dello Buono, 271 Pa. Superior Ct. 572, 577, 414 A.2d 631, 633-34 (1979), rev’d on other grounds, 499 Pa. 308, 453 A.2d 322 (1982). A comment to the rule states that, in determining whether the plea is voluntarily and understanding^ entered, the court should ask questions in six particular areas. In Commonwealth v. Willis, 471 Pa. 50, 369 A.2d 1189 (1977), our Supreme Court held that inquiry into these six areas is mandatory in every guilty plea colloquy. Id., 471 Pa. at 51-52, 369 A.2d at 1190 (citing Pa.R.Crim.P. 319 comment). One of the six areas of inquiry is whether the defendant was made aware of the permissible range of sentences for the offenses charged. See Pa.R.Crim.P. 319 comment. A failure to make this inquiry will require that the defendant be allowed to withdraw his or her guilty plea. See Commonwealth v. Kulp, 476 Pa. 358, 360-61, 382 A.2d 1209, 1211 (1978); Commonwealth v. Fay, 294 Pa.Superior Ct. 332, 336, 439 A.2d 1227, 1230 (1982).

This question was framed recognizing that the decision to plead guilty to a charge could not be accepted as being knowingly and intelligently entered without an assurance that the accused fully comprehended the maximum punishment that might be imposed for his conduct. This information is obviously an integral part of the knowledge that should be possessed by one who is called upon to make the difficult decision whether to surrender his right to trial and to place himself at the mercy of the sentencing court. No civilized society could tolerate the waiver of such basic rights from one who was unaware of or misinformed as to such a critical fact.

Commonwealth v. Kulp, supra, 476 Pa. at 361, 382 A.2d at 1211.

Here, appellant was informed of the charges against him and whether they were felonies or misdemeanors. He was not, however, asked whether he was aware of the range of permissible sentences nor advised as to that range. See Guilty Plea Transcript. The absence of this inquiry from the transcript renders the colloquy defective and, accordingly, appellant’s claim has merit. We also note that counsels’ failures to preserve this issue was prejudicial to appellant because there were grounds for withdrawal of his plea and he was not given the opportunity to withdraw it. Cf Commonwealth v. Whiting, 358 Pa.Superior Ct. 465, 472, 517 A.2d 1327, 1331 (1986) (we will determine whether claim has merit and whether it has prejudiced appellant, before remanding for hearing).

Our inquiry does not end here, however, because counsel is not ineffective if there was a reasonable basis for his or her course of action designed to serve the best interests of the client. Although it is unlikely here that either counsel’s actions had a reasonable basis, we must consider that possibility. When it is impossible to discern from the record whether counsel’s actions had a reasonable basis, an appellate court will vacate the judgment of sentence and remand for an evidentiary hearing at which counsel will have an opportunity to explain the reasons for the course chosen. Commonwealth v. Gray, 339 Pa.Superior Ct. 385, 390, 489 A.2d 213, 216 (1985). See also Commonwealth v. Turner, 469 Pa. 319, 324, 365 A.2d 847, 849 (1976); Commonwealth v. Spotts, 341 Pa.Superior Ct. 31, 36, 491 A.2d 132, 135 (1985) (when counsel may have had some reasonable basis for failure to act, better course is to remand for ineffectiveness hearing). Here, because there is no record of a hearing at which appellant’s former counsel might have explained their reasons for failing to raise the issue presented here, we find it impossible to determine whether there was a reasonable basis for their actions. Accordingly, because reversible error is not apparent from the record, we must remand the case for an evidentiary hearing. Moreover, we must order the appointment of new counsel not associated with the Public Defender’s Office. See Commonwealth v. Willis, 492 Pa. 310, 312-13, 424 A.2d 876, 877 (1981) (because of inherent conflict of loyalties to one’s clients and to one’s associates, we can not assume that present counsel will fully explore inadequacy of prior counsel’s representation).

For these reasons, we vacate the judgment of sentence and remand for a hearing to determine whether appellant’s guilty plea counsel had a reasonable basis for failing to file a motion to withdraw his guilty plea and whether his post-verdict motions counsel had a reasonable basis for failing to raise the issue that the colloquy was defective. We also remand for the appointment of new counsel not associated with the Public Defender’s Office to represent appellant at the hearing.

Judgment of sentence vacated and case remanded. Jurisdiction is relinquished.

WIEAND, J., files a concurring statement.

WIEAND, Judge,

concurring:

I concur in the result. In view of appellant’s averments that there was a plea bargain by which the District Attorney agreed to recommend a sentence of imprisonment for not less than two and one-half years nor more than five years, which was not placed on the record, and in view of guilty plea counsel’s failure to act when the District Attorney failed to comply therewith, appellant is entitled to an evidentiary hearing on the issue of his counsel’s stewardship. At that hearing he is entitled to be represented by counsel who is not associated with the Office of the Public Defender.

The need for such an evidentiary hearing, however, does not alone require that the sentence be vacated. I concur in the decision to vacate the sentence only because the trial court failed to comply with the mandate of Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), which requires that the reasons for the sentence be articulated on the record.

      . Because of our disposition of this case, we need not reach appellant’s other contention.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    531 A.2d 800
    COMMONWEALTH of Pennsylvania v. Vera Marie SEIBERT, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1987.
    Filed Sept. 29, 1987.

      Craig P. Miller, Lock Haven, for appellant.
    Donna L. Rae, Assistant District Attorney, Lock Haven, for Com., appellee.
    Before DEL SOLE, MONTEMURO and HESTER, JJ.
   DEL SOLE, Judge:

Appellant appeals the Judgment of Sentence which was imposed following her conviction by a jury of Driving Under the Influence in violation of Section 3731(a)(4) of the Vehicle Code.

In this appeal, Appellant initially asserts that the trial court erred in not dismissing the charge for which she was convicted. Appellant maintains that she was entitled to this relief because the arresting officer failed to file an affidavit of probable cause as required under Pa.R.Crim.P., Rule 134. This rule provides:

(a) In any proceeding initiated by complaint, the issuing authority shall ascertain and certify on the complaint that:
(1) The complaint has been properly completed and executed;
(2) There is probable cause for the issuance of process, in the form of an affidavit; and
(3) When prior submission to an attorney for the Commonwealth is required, that an attorney has approved the complaint.
(b) Upon ascertaining the above matters, the issuing authority shall:
(1) Accept the complaint for filing; and
(2) Issue a summons or warrant of arrest as the case may be.

Appellant contends that the complaint filed in the instant case contained a “verification” but lacked an affidavit as required by the Rule. We note from our examination of the complaint that the name John W. MacMillen appears above the line marked “Name of Affiant”. The complaint also sets forth the following statement:

I, PFC John W. MacMillen verify that the facts set forth in this complaint are true and correct to the best of my knowledge, information and belief. This is made subject to the penalties of Section 4904 of the Crimes Code (18 Pa.C.S. § 4904) relating to unsworn falsification to authorities.

This language is precisely that which is required by Pa.R. Crim.P., Rule 132(1) and (9). We further note that the definitional section of the Rules of Criminal Procedure define an affiant as “any responsible person capable of taking an oath who signs, swears to, affirms or, when permitted by these rules, verifies a complaint and appreciates the nature and quality of that person’s act.” Pa.R. Crim.P., Rule 3(a) (emphasis added). Accordingly, we find no fault with the complaint filed in this case, and we therefore dismiss Appellant’s claim of error.

Appellant next argues that the trial court abused its discretion in finding her competent to stand trial, in not delaying its competency determination and in not ordering a competency examination. The trial court in its Opinion dated December 9, 1986, issued in response to Appellant’s Post-Verdict Motions, accurately recounts the factual circumstances surrounding this claim. These facts properly support the trial court’s ruling and under the circumstances presented, we find no abuse of discretion by the trial court.

Judgment of sentence affirmed.


author: ROWLEY, Judge:

text:
    531 A.2d 801
    Norbert J. SCHMITT, Administrator of the Estate of Gerard E. Schmitt, deceased, on behalf of the Estate of Gerard E. Schmitt, deceased, and Norbert J. Schmitt, Administrator of the Estate of Gerard E. Schmitt, deceased, on behalf of the next of kin of Gerard E. Schmitt, deceased, Appellant, v. SEASPRAY-SHARKLINE, INC., a New York Corporation, and William Cohen, an individual and Olympia Pools, Inc., a Pennsylvania Corporation, and John S. Mihalov, an individual, v. Mr. and Mrs. Fred C. FOWLER, and Oceanic Pools, Additional Defendants, v. POOL CITY, INC., and Seaspray-Sharkline, Inc., a New York Corporation, as successor in interest to Sharkline Industries, Inc., Added Defendants.
    Superior Court of Pennsylvania.
    Argued June 16, 1987.
    Filed Oct. 1, 1987.

      Edward G. Shoemaker, Pittsburgh, for appellant.
    Scott T. Redman, Pittsburgh, for Seaspray-Sharkline, appellees.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

Appellant Schmitt appeals from an order sustaining the preliminary objections of defendants Seaspray-Sharkline, Inc. and William Cohen. Appellant contests the trial court’s order only as to defendant Cohen, whose preliminary objections were sustained for lack of personal jurisdiction. The issue is whether the trial court erred in finding that the exercise of personal jurisdiction over Mr. Cohen would be “unreasonable or unjustifiable.”

Appellant is the administrator of the Estate of Gerard E. Schmitt who died after suffering quadriplegia as a result of diving injuries. The deceased struck his head upon the bottom of a round, four-foot-deep, outdoor, vinyl-lined swimming pool. Appellant commenced this civil action against the alleged manufacturers and sellers of the pool based upon theories of Products Liability and Negligence.

Appellee Cohen, a New York resident and corporate officer of defendant Seaspray-Sharkline, Inc., argues that there are insufficient contacts with Pennsylvania to sustain in personam jurisdiction over him, and that any contacts which he did have with Pennsylvania were strictly within his corporate capacity as an officer of Seaspray-Sharkline, Inc.

Appellant argues that Cohen’s contacts are sufficient to sustain jurisdiction because, even if his contacts with Pennsylvania were strictly within his corporate capacity, he had the personal authority, duty, and responsibility to design, manufacture, sell, advertise, and recommend the pools, pool products, and decks involved in this litigation. Appellant further argues that the corporation is a “mere extension and creature of Cohen’s person and his individual will” such that Cohen was the designer, manufacturer, seller, advertiser, and recommender of the pools, pool products, and decks.

We find it unnecessary to address the question of whether a finding that Cohen’s contacts were within or without his corporate capacity is relevant to the jurisdictional issue. We must vacate and remand on procedural grounds.

Appellee properly contested jurisdiction by filing preliminary objections. The moving party has the burden of supporting its objections to the court’s jurisdiction. Holt Hauling and Warehousing v. Aronow Roofing, 309 Pa.Super. 158, 161, 454 A.2d 1131, 1133 (1983); Delaware Valley Underwriting v. William and Sapp, 359 Pa.Super. 368, 373, 518 A.2d 1280, 1283 (1986); Gulentz v. Fosdick, 320 Pa. Super. 38, 41 n. 1, 466 A.2d 1049, 1051 n. 1 (1983); Liggitt v. Liggitt, 253 Pa.Super. 126, 131, 384 A.2d 1261, 1263-1264 (1978). Once the plaintiff has produced some evidence to support jurisdiction, the defendant must come forward with some evidence of his own to dispel or rebut the plaintiff’s evidence. Alumbaugh v. Wallace Business Forms, 226 Pa.Super. 511, 516, 313 A.2d 281, 283 (1973). The moving party may not sit back and, by the bare allegations as set forth in the preliminary objections, place the burden upon the plaintiff to negate those allegations. Id. It is only when the moving party properly raises the jurisdictional issue that the burden of proving jurisdiction is upon the party asserting it. Biel v. Herman Lowenstein, Inc., 411 Pa. 559, 192 A.2d 391 (1963); Bergere v. Bergere, 364 Pa.Super. 100, 527 A.2d 171 (1987); Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183, 479 A.2d 500 (1984); Martin v. Gerner, 332 Pa.Super. 507, 481 A.2d 903 (1984); Crompton v. Park Ward Motors, Inc., 299 Pa.Super. 40, 445 A.2d 137 (1982); Whalen v. Walt Disney World Co., 274 Pa.Super. 246, 418 A.2d 389 (1980). If an issue of fact is raised, the court shall take evidence by deposition or otherwise. Lox, Stock and Bagels, Inc. v. Kotten Machine Company of California, Inc., 261 Pa.Super. 84, 88, 395 A.2d 954, 955 (1978) (emphasis supplied). The court may no,t reach a determination based upon its view of the controverted facts, but must resolve the dispute by receiving evidence thereon through interrogatories, depositions, or an evidentiary hearing. Delaware Valley Underwriting, supra, 359 Pa.Super. at 373, 518 A.2d at 1283. Accord: Luitweiler v. Northchester Corporation, 456 Pa. 530, 535, 319 A.2d 899, 902 (1974); Telstar Corporation v. Berman, 281 Pa.Super. 443, 448, 422 A.2d 551, 554 (1980); Envirosystems Corporation v. Weinhardt, 271 Pa.Super. 66, 68, 412 A.2d 577, 578 (1979). Where an essential factual issue arises from the pleadings as to the scope of a defendant’s activities within the Commonwealth, the plaintiff has the right to depose defendant as to his activities within the Commonwealth, and the court must permit the taking of the deposition before ruling on the preliminary objections. Manchel v. Weil, 272 Pa.Super. 591, 595, 416 A.2d 1054, 1056 (1979). Where neither party presents evidence by which the court can properly resolve the issue, it is appropriate to remand with directions that an order be entered allowing the parties a reasonable period of time in which to present evidence by deposition, interrogatories or otherwise. Lox, Stock and Bagels, Inc, supra, 261 Pa.Super. at 88, 395 A.2d at 956.

The record in this case reveals that issues of fact were raised, and that the court failed to receive evidence through interrogatories, depositions, or an evidentiary hearing.

Appellant alleged the following in the complaint: that William Cohen is an individual whose home address is unknown and whose business address is that of defendant Seaspray-Sharkline, Inc.; that Cohen was at all times relevant to the cause of action the owner and/or President and/or primary managing and directing corporate officer/agent of and for Seaspray-Sharkline, Inc.; that because of the authority, responsibility and duties of Cohen, the corporation was a “mere extension and creature” of him; and that he, as well as the corporation, designed, manufactured, sold, advertised, and recommended the pools, pool products and decks.

Appellee, in his Preliminary Objections, averred that he has never resided in Pennsylvania; that he has never been domiciled in Pennsylvania; that Seaspray-Sharkline, Inc. has never had an office in Pennsylvania; that Seaspray-Sharkline, Inc. has never located its principle place of business in Pennsylvania; that, aside from the purchase of steel for the construction of swimming pools, Cohen has had no actual physical presence in Pennsylvania in connection with his business activities; and, finally, that in any event, any presence of Cohen in Pennsylvania was strictly and solely in connection with his activities as furthering the corporate business of Seaspray-Sharkline, Inc. and not in ány personal capacity. Appellee attached to the Preliminary Objections an affidavit and a verification which satisfies the verification requirement where the preliminary objections contain averments of fact not appearing on the record. See Biel v. Herman Lowenstein, Inc., supra., and Standard Pennsylvania Practice, § 25:15.

Appellant, in his Answer to Defendant’s Preliminary Objections, denies that Cohen is solely a domiciliary of New York. Appellant also denies that Cohen has never resided or been domiciled in Pennsylvania. Appellant denies that Seaspray-Sharkline, Inc. has never had an office in Pennsylvania or that it has never had its principle place of business in Pennsylvania. Appellant further denies that Cohen’s sole commercial or residency relationship with Pennsylvania is as to the purchase of steel for swimming pools. Finally, appellant denies that any presence of Cohen in Pennsylvania was strictly and solely in connection with his activities as furthering the corporate business of Seaspray-Sharkline, Inc. and not in any personal business capacity. Appellant then filed a Notice of Deposition of William Cohen and, eleven days later, a Notice of Service of Interrogatories Directed to William Cohen. The record contains no transcript of a deposition of William Cohen, nor does it contain answers to interrogatories, nor any indication that the trial court received evidence, as called for by Pa.R.Civ.P. 1028(c) and the case law, where issues of fact are raised.

While it is true that the plaintiff bears the burden of proof where the defendant, as here, properly raised the issue of jurisdiction, our procedural law requires us to vacate the Order of the trial court. Neither party has presented evidence by which the trial court or this Court could have properly decided the issue of jurisdiction. We therefore remand for the trial court to take evidence by depositions, interrogatories or an evidentiary hearing before determining whether jurisdiction lies. Order vacated insofar as it sustains preliminary objections of Defendant William Cohen and insofar as it dismisses Plaintiffs “Reinstate Complaint” against Defendant William Cohen. Case remanded. Jurisdiction relinquished.

      . Dismissal of a complaint as to one defendant in a multi-defendant lawsuit is a final and appealable order. Dash v. Wilap Corp., 343 Pa.Super. 584, 590, 495 A.2d 950, 953 (1985).
      The trial court’s order dismisses plaintiff's "Reinstate Complaint” and allows twenty days for amendment thereof. While Defendant Cohen’s preliminary objections were based upon lack of in personam jurisdiction, those of Defendant Seaspray-Sharkline, Inc. were based upon grounds other than lack of in personam jurisdiction. It is apparent that the leave to amend the complaint relates only to Seaspray-Sharkline’s preliminary objections. Plaintiff's complaint as it relates to Defendant Cohen effectively remains dismissed without leave to amend by the Order appealed from. Therefore, it is a final, appealable order.


author: WATKINS, Judge:

text:
    531 A.2d 805
    COMMONWEALTH of Pennsylvania v. Joseph Tyrone MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1987.
    Filed Sept. 30, 1987.

      Sally A. Frick, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for appellee.
    Before BROSKY, KELLY and WATKINS, JJ.
   WATKINS, Judge:

This case comes to us on appeal from the Judgment of Sentence imposed March 12, 1985, in the Court of Common Pleas of Allegheny County sentencing the appellant, Joseph Tyrone Moore, to a term of imprisonment of not less than three (3) nor more than six (6) years.

The history of this case as set forth in the trial court’s opinion is as follows:

On June 11, 1982, Defendant Joseph Tyrone Moore pled guilty at CC7902012 to the charge of robbery and was placed on five years probation. Probation violation charges were placed against Defendant, a hearing held and probation revoked. This Court sentenced Defendant to a term of 3-6 years at the State Correctional Institution at Pittsburgh. Defendant appeals.
During the revocation hearing, the Probation Officer introduced evidence of two arrests and convictions while Defendant was on this Court’s probation: November 10, 1983, on charges of robbery, aggravated assault and criminal conspiracy at CC8312053, to which he pled guilty before Judge Ralph J. Cappy who sentenced him to the State Correctional Institution at Pittsburgh for a period of 34-120 months; and August 27, 1984 on charges of robbery and receiving stolen property at CC8409418 on which charges he was convicted by Judge George J. Ross on February 20, 1985, Defendant was present and offered no objections or testimony.
(Trial court opinion, July 8, 1986, p. 1)

On appeal appellant contends that his right to effective assistance of counsel was violated by counsel’s failure to raise the claim of appellant’s right to a speedy probation revocation hearing. Appellant further contends that counsel was ineffective for failing to file a motion for modification of sentence and that the trial court erred in not advising appellant of his right to file a motion to modify sentence pursuant to Pa.R.Crim.Pro. 1405.

In Commonwealth v. Marchesano, 348 Pa.Superior Ct. 387, 502 A.2d 597 (1985). this Court stated:

In considering whether there was arguable merit to the speedy hearing claim we note:
Rule 1409 does not establish a presumptive period in which the Commonwealth must revoke probation, but, instead, the question is whether the delay was reasonable under the circumstances of the specific case, (citation omitted) In evaluating the reasonableness of the delay the court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay, (citations omitted).

The record of the probation revocation hearing in this case clearly indicates that there were two subsequent convictions which formed the basis for the violation hearing held on March 12, 1985; a guilty plea and sentence on December 13, 1984, and a conviction on February 20, 1985. The longest period of delay was three months. Appellant, however, has failed to point to any prejudice he may have suffered. Consequently, we find no arguable merit in appellant’s underlying claim. Commonwealth v. Sanders, 303 Pa.Superior Ct. 139, 449 A.2d 617 (1982). Counsel will not be found ineffective for failing to preserve a meritless claim.

In his second issue appellant claims that the trial court erred by not advising appellant of his right to file a motion to modify his sentence pursuant to Rule 1405 of the Rules of Criminal Procedure. Appellant further contends that counsel was ineffective for failing to file a motion for modification of sentence.

Rule 1405 of the Rules of Criminal Procedure requires the sentencing court to advise a defendant on the record of the right to challenge the propriety of his sentence and of the time limits within which a defendant must act. The sentencing court in the case sub judice failed to advise appellant of his right to challenge the propriety of his sentence. Accordingly, this case is remanded with directions to the trial court to entertain appellant’s motion for modification of sentence nunc pro tunc. Appellant shall have ten days from the filing of the record and this opinion in the trial court in which to file a motion for modification of sentence. Jurisdiction is relinquished.

      . Having found that the trial court erred in failing to advise appellant of his right to file a motion to modify his sentence, it is not necessary for us to discuss the merits of appellant’s ineffective assistance of counsel claim.


author: CERCONE, Judge:

text:
    581 A.2d 806
    COMMONWEALTH of Pennsylvania, v. Barry WHITE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1987.
    Filed Sept. 28, 1987.
    Application for Reargument En Banc Denied Sept. 28, 1987.

      Paul D. Boas, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before POPOVICH, CERCONE and HESTER, JJ.
   CERCONE, Judge:

Appellant, Barry White, was convicted by a jury of third degree murder and sentenced to five (5) to ten (10) years imprisonment. Appellant’s conviction arose out of his discharging a shotgun out of a car window in the early morning in downtown Pittsburgh, resulting in the death of the victim who was standing in an alley.

Appellant contends that the trial court committed reversible error in allowing the Commonwealth to ask two voir dire questions which he alleges improperly informed the prospective jurors of the penalty for first degree murder. Appellant further contends that the trial court committed reversible error in allowing two veniremen to be struck for cause on the basis of their answers to those .voir dire questions. Appellant also asserts four claims of ineffectiveness of counsel. We find no error justifying reversal of the judgment of sentence and we find that trial counsel was not ineffective. Judgment of sentence is affirmed.

We note at the outset that the scope of voir dire rests in the sound discretion of the trial judge and his decision will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977); Commonwealth v. Hathaway, 347 Pa.Super. 134, 500 A.2d 443 (1985).

Voir dire questions # 9 and #10 read as follows:

9. The mandatory sentence for First-degree Murder is life imprisonment. Do you have any moral or conscientious scruples which would automatically prevent you from returning with a finding which would result in life imprisonment regardless of the law or the evidence?
10. Do you have any moral or conscientious scruples against imposing a verdict of First-degree Murder when the defendant was nineteen years old at the time of the crime?

Appellant’s first argument is that these questions improperly informed the veniremen of the penalty for first degree murder, in contravention of the established principle that the function of the jury is to determine guilt or innocence and not to consider the question of penalty. Appellant argues that the mere asking of those questions was highly prejudicial as it caused the jurors to become preoccupied with first degree murder and its penalties.

The numerous cases cited by appellant hold that jurors ought not be instructed by the court or advised by counsel in their closing arguments of the probable result of the verdict. See Commonwealth v. Lucier, 424 Pa. 47, 225 A.2d 890 (1967) (trial court erred in instructing the jury as to the penalties for voluntary manslaughter, second degree murder and first degree murder); Commonwealth v. Mills, 350 Pa. 478, 39 A.2d 572 (1944) (instructions to a jury concerning defendant’s eligibility for parole or pardon constituted reversible error); Commonwealth v. White, 350 Pa.Super. 457, 504 A.2d 930 (1986) (trial court was correct in refusing to instruct'the jury that a mandatory sentence would be imposed if appellant were found guilty); Commonwealth v. Waters, 334 Pa.Super. 513, 483 A.2d 855 (1984) (trial court was correct in prohibiting defense counsel from discussing the penalties of the offense in his closing arguments).

These cases, however, are not persuasive in the context of questioning potential jurors. Jury instructions and closing arguments are intended to directly affect and influence the jury in their determination of guilt or innocence, whereas voir dire examinations have a completely different function and purpose. Voir dire questions are permitted to provide the accused with a competent, impartial and unprejudiced jury. Commonwealth v. Hathaway, 347 Pa.Super. 134, 500 A.2d 443 (1985). Voir dire questions are asked to determine whether a prospective juror “is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence” Common wealth v. Colson, 507 Pa. 440, 454, 490 A.2d 811, 818 (1985). The voir dire questions in issue in this case were asked in furtherance of these proper purposes.

There is no inherent prejudice to a defendant when the state mentions a possible penalty during voir dire examination in an attempt to ensure that each prospective juror is able to render a verdict according to the evidence regardless of the penalty which may be imposed. This cannot be disputed in light of the many cases handed down by the United States Supreme Court and the courts of this Commonwealth which allow counsel to identify through voir dire questioning those who are morally opposed to capital punishment and furthermore, to remove for cause prospective jurors whose opposition to the death penalty is so strong as to prevent or substantially impair the performance of their duties as jurors. This process is referred to as “death-qualifying” the jury. See Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985); Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), reh. denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968); Commonwealth v. Peterkin, 511 Pa. 229, 513 A.2d 373 (1986); Commonwealth v. Datesman, 343 Pa.Super. 176, 494 A.2d 413 (1985).

Appellant contends that only in death penalty cases may prospective jurors be made aware of possible sentences because only in capital punishment cases do jurors impose punishment. We reject this contention. The right to a jury which has the ability to render a verdict according to the evidence, despite the penalty which may be imposed, extends to each party in every first degree murder case, whether or not capital punishment is sought.

Voir dire questions like the ones asked in this case have not been, nor should they be limited to death penalty cases but should extend to all cases in which the Commonwealth seeks a conviction for first degree murder. There are at least three Pennsylvania Supreme Court cases in which prospective jurors were informed on voir dire examination that murder of the first degree carried a mandatory life sentence and asked whether they had any conscientious objections to bringing back a verdict which would require imposition of a life sentence. See Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979); Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978); Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974). Commonwealth v. Kingsley specifically involved a challenge to the propriety of the voir dire question, albeit the challenge was made on different grounds from those put forth in the instant case. In Kingsley, appellant argued that he was unduly prejudiced by the question since the Commonwealth had no evidence of murder of the first degree. However, the Court disagreed, finding that at the time of voir dire the Commonwealth believed that its evidence could support a finding of murder of the first degree. Therefore, the Court held that there was no reversible error in allowing the question concerning the imposition of a life sentence. We interpret this holding to mean that as long as there is sufficient evidence for the Commonwealth to seek a conviction of first degree murder, voir dire questioning for the purpose of determining whether a prospective juror is free of any scruples which would impair the performance of his duties as an impartial juror, is proper.

We expressly limit our holding to first degree murder cases. The law clearly allows prospective jurors to be informed of one of the possible penalties for murder in the first degree, i.e. capital punishment. We find no prejudice or harm in allowing them to be informed of the other penalty for the same crime, i.e. life imprisonment. This is especially true in light of the fact that life imprisonment is a mandatory sentence, one which a jury is unable to affect.

Finally, the trial judge clearly and accurately instructed the jury that the verdict should be based on the evidence and not on what penalty might be imposed in the event of a conviction. The trial judge instructed:

Now, in arriving at your verdict, you should not concern yourselves with any possible future consequences of your verdict including what the penalty might be if you should decide the defendant guilty. It is only up to you to decide whether the Commonwealth has proven the defendant guilty beyond a reasonable doubt. Whenever a defendant has been found guilty, it then becomes the judge’s duty to fix the penalty unless you should find the defendant guilty of murder in the first degree. You have nothing to do with this, and you should not permit the possibility of punishment to influence you in any way.

We find that this instruction served to clarify any doubts in the minds of the jurors as to their proper roles.

For all of the foregoing reasons, we hold that voir dire questions which enable trial attorneys to discern which prospective jurors have moral views which would prevent or substantially impair the performance of their duties as impartial jurors, are proper in first degree murder cases which do not involve the death penalty as well as those in which capital punishment is sought.

Appellant’s second argument is that the trial court erred in allowing two veniremen to be struck for cause on the basis of their answers to the voir dire questions at issue in this case. While these veniremen expressed some moral or conscientious scruples against imposing a verdict of first-degree murder on a nineteen-year-old defendant, they did not express any scruples which would automatically prevent them from returning a verdict which would result in life imprisonment, in accordance with the law or the evidence. Appellant asserts that exclusion for cause on the grounds of the mere expression of conscientious scruples has been prohibited by the United States Supreme Court in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968) reh. denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968).

This issue has not been properly preserved for appellate review. A litigant must do two things in order to preserve an issue. First, he must make a timely, specific objection at trial. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974). Second, he must raise the issue in post-trial motions. Commonwealth v. Keysock, 236 Pa.Super. 474, 345 A.2d 767 (1975). Appellant took neither of these steps.

Before voir dire questioning began, appellant’s trial counsel challenged the propriety of the two voir dire questions only on the grounds that they improperly placed the question of penalty before the jury. He never raised the issue of when a juror may be excused for cause based on his answer to the voir dire question. When the Commonwealth first requested that a juror be struck for cause because of her answer to question # 10, appellant’s attorney renewed his previous objection on the same grounds. When the Commonwealth sought to exclude for cause a second juror based on her answer to question # 10, appellant’s attorney made no objection. We have consistently held that no allegation of error will be considered by this court unless it was properly raised by specific objection at the time of trial. Commonwealth v. Williams, 458 Pa. 319, 326 A.2d 300 (1974).

Furthermore, appellant’s Motion to Arrest Judgment and for a New Trial did not raise the Witherspoon issue. The fact that such issue was touched upon in appellant’s brief in support of post-trial motions, does not cure the failure to include the issue in written post-verdict motions. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979).

We recognize that the first two issues appellant raises are related, however we cannot review a case upon a theory different from that upon which it was presented to the court below. Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287 (1983); Commonwealth v. Hernandez, 339 Pa. Super. 32, 45 n. 7, 488 A.2d 293, 300 n. 7 (1985). Accordingly, the second issue is waived.

Appellant also raises four claims of ineffectiveness of counsel which we will address seriatim. When confronted with a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Furthermore, an appellant must show that any deficient performance by counsel caused prejudice to and affected the outcome of the trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986).

Appellant alleges that trial counsel was ineffective in failing to introduce evidence showing that appellant has deficient vision and that he was not wearing any corrective device on the morning of the shooting. Appellant asserts that such evidence would have gone towards proving that he was unable to see the victim in the alley; he mistakenly states in his brief, “[ejssential to that verdict [third degree murder] was the conclusion that Mr. White [appellant] knew that the victim was in the alley.” The flaw in this argument is that when one considers the correct definition of third degree murder, it becomes apparent that appellant could have been found guilty of third degree murder whether or not he saw his victim.

Malice is the gravamen of third degree murder and it is the distinguishing factor between murder and manslaughter. Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1980).

... Malice in its legal sense exists not only where there is a particular ill will, but also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty ...
“To summarize: If there was an unlawful killing with (legal) malice, express, or implied, that will constitute murder even though there was no intent to injure or kill the particular person who was killed and even though his death was unintentional or accidental....’’ Commonwealth v. Commander, 436 Pa. 532, 537, 260 A.2d 773, 776 (1970), quoting Commonwealth v. Gooslin, 410 Pa. 285, 189 A.2d 157 (1963) (emphasis added, citations omitted).
Thus, malice may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979).

Id., 494 Pa. at 227-28, 431 A.2d at 232. Accordingly, appellant is unable to show that the decision not to introduce evidence regarding appellant’s vision caused prejudice to him or affected the outcome of the trial.

Next, appellant alleges that trial counsel was ineffective in failing to renew his objection to the court’s refusal to charge the jury on intoxication, after the charge was given. We do not find, though, that counsel’s failure to object was prejudicial since appellant was convicted of third-degree murder. Intoxication is a defense only to crimes which require specific intent to commit an act. See Commonwealth v. Gibson, 264 Pa.Super. 548, 400 A.2d 221 (1979). By contrast, the requisite mental state for murder in the third degree is malice rather than specific intent. See Commonwealth v. Frederick, 327 Pa.Super. 199, 475 A.2d 754 (1984).

Appellant also argues that trial counsel was ineffective for failing to introduce expert testimony regarding the synergistic intoxicating effect of the asthma medicine taken by appellant the morning of the shooting. Such evidence would have been relevant to the first degree murder charge in order to negate the element of intent. However, since the jury returned a verdict of third degree murder which is not a crime of specific intent, and to which a defense of diminished capacity is inapplicable, appellant is unable to show any prejudice.

Appellant’s final claim of ineffectiveness is that trial counsel failed to adequately attack the credibility of Officer Devault. The officer testified that he observed appellant’s car slow down and make a deliberate movement to the right at which time the officer heard a loud report (the discharge of the weapon). Appellant claims that the “obvious” inference to be drawn from this testimony is that the shooting of the victim was intentional.

At trial, the defense attorney rebutted Officer Duvault’s testimony by introducing evidence to show that the Officer’s vehicle was not present on William Penn Way when the shot was fired and therefore, the officer could not have seen appellant’s vehicle slow down and pull to the right. Such rebuttal evidence was accomplished in two ways. First, trial counsel cross-examined Officer DeVault and a detective about a report prepared by the detective the morning of the murder wherein it stated that Officer Devault had reported that he lost sight of the vehicle until after he heard the shot. Second, trial counsel elicited the testimony of a security guard who stated that he was in an elevated guard box when he heard the shot, and only afterwards did he see a police car turn the corner and pass in front of the crime scene.

Appellant now argues that although trial counsel did rebut Officer Devault’s testimony, he did not use all available means to do so. Perhaps optimal representation by trial- counsel would have used any and all possible methods of challenging the officer’s credibility. However, optimal representation is not required either by the constitution or common sense. What is required is effective representation. Commonwealth v. Garrity, 509 Pa. 46, 500 A.2d 1106 (1985). Under that standard, appellant was not denied his Sixth Amendment right to effective counsel, nor was he predjudiced by counsel’s assistance.

Judgment of sentence is affirmed.

      . Although these kinds of questions generally operate to benefit the state’s case, the principles involved also serve to protect the rights of defendants by enabling defense attorneys to identify veniremen who are predisposed to the imposition of harsh penalties regardless of the evidence peculiar to the case and of the law pertaining to that case. See, e.g., Johnson v. State, 713 S.W.2d 741 (Tex.App.1986) in which a prospective juror originally stated on voir dire that she could not assess the minimum punishment of five years for murder regardless of the evidence. The court held that it would not have been proper to exclude her, only because she was rehabilitated by further questioning when she unequivocally stated that she would consider the minimum sentence in a murder case if she felt that it was the right thing to do. See also, Ross v. State, 717 P.2d 117 (Okl.Cr.1986) which held that a juror who stated that he would automatically impose the death penalty upon conviction and was unwilling to follow the law by considering life imprisonment, should have been excused.

      . 42 Pa.C.S.A. § 9711 provides that after a verdict of murder of the first degree is recorded, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.

      . Appellant argues that Commonwealth v. Kingsley, 480 Pa. 560, 391 A.2d 1027 (1978) and Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974) are inapplicable because during the time those cases were at trial, Pennsylvania law required that the court inform the jury prior to their deliberations as to the penalties for the various degrees of murder. 18 Pa.C.S.A. § 1311. Therefore, an objection to the "life-qualifying" question on the grounds that it improperly informed the jurors of penalties would have been meaningless at that time.
      In 1978, the statute was amended, deleting the requirement that jurors be informed of the possible penalties. The statute is now silent on this point, and neither prohibits nor requires a discussion of penalties. 42 Pa.C.S.A. § 9711.
      Although Kingsley and Weeden were decided when the prior law was in effect, the same “life-qualifying” question was asked in Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979) which was decided under current law. A review of this statutory history indicates that at one time the legislature mandated that penalties be disclosed to the jury. We find this history to belie appellant’s assertion that it is inherently prejudicial for the jury to be given such information.

      . As has been made apparent, we disagree with appellant’s characterization as a "steadfast rule” the principle that the jury has no concern with the consequences of a verdict. By way of further example, when insanity is raised as a possible defense to criminal charges, a jury must be instructed concerning the consequence of a verdict of not guilty by reason of insanity. In so holding, the Court in Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977) reasoned that explaining the consequences of acquittal by reason of insanity to a jury will assist the jury in properly determining the guilt or innocence of a defendant. In Commonwealth v. Geschwendt, 500 Pa. 120, 125, 454 A.2d 991, 994 (1982) the Supreme Court described Mulgrew as a rejection of the "simplistic view ... that punishment [is] not the concern of the jury.”

      . Witherspoon, reversed a death sentence imposed by a jury whose selection was performed by disqualifying for cause all who expressed conscientious or religious scruples against capital punishment. The Supreme Court stated that a jury so selected was not neutral but one "uncommonly willing to condemn a man to die." Id. 391 U.S. at 520-21, 88 S.Ct. at 1776.

        The Supreme Court established, however, that a trial court could strike for cause those veniremen:
      ... who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.

        Id. at 522 n. 21, 88 S.Ct. at 1777 n. 21. The Supreme Court has subsequently dispensed with the reference to "automatic" decision-making; the relevant inquiry now is whether the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with instructions and his oath. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986); Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).

      . Appellate counsel did not represent appellant at trial; it is not asserted on appeal that trial counsel was ineffective in failing to preserve this issue.


author: BECK, Judge:

text:
    531 A. 2d 1122
    Henry BUCZEK and Jeanne Buczek v. FIRST NATIONAL BANK OF MIFFLINTOWN and J. Alan Zendt.
    Superior Court of Pennsylvania.
    Argued April 2, 1987.
    Filed Oct. 2, 1987.

      Jesse J. Cooper, Harrisburg, for appellant.
    Thomas A. French, Harrisburg, for Zendt, appellee.
    Before WIEAND, BECK and CERCONE, JJ.
   BECK, Judge:

This is a civil action based on a four-count Complaint filed by plaintiff-appellants, Henry and Jeanne Buczek (Buczeks), against defendant-appellees First National Bank of Mifflintown (Bank) and J. Alan Zendt (Zendt), an officer of the Bank. The Bank and Zendt both filed preliminary objections in the nature of a demurrer. This is an appeal from the trial court’s order sustaining both defendant-appellees’ preliminary objections and dismissing the Buczeks’ Complaint. We affirm.

On June 29, 1979, the Buczeks purchased certain real estate located in Juniata County known as the “Hetrick Farm.” The purchase was financed in its entirety by a loan from the Bank, which was arranged by Zendt. The loan was secured by a first mortgage in favor of the Bank against the property. According to the Complaint, there followed a course of dealings between the Buczeks and Zendt whereby the Buczeks attempted to satisfy their obligation to the Bank through various payments and refinancing arrangements.

The Complaint further states that, in the fall of 1980, the Buczeks entered into an agreement to sell the “Hetrick Farm” to Mr. Deamer. The agreement is alleged to have been contingent upon financing. According to the Complaint, when Mr. Deamer applied to the Bank for a purchase money mortgage, Zendt required additional collateral to secure the loan. Deamer refused to put up this collateral, and the sale fell through. The Buczeks contend that the demand for additional security was unreasonable, given Deamer’s financial situation. They claim that because of Zendt’s refusal to make the loan without additional collateral, the Buczeks were unable to sell the farm until March, 1984, causing them damages in the amount of the interest paid on the mortgage in the interim. The Buczeks further allege that from January, 1980 to the spring of 1983, Zendt engaged in a course of harassment of the Buczeks that was designed to allow him to obtain for himself various properties of the Buczeks at a price well below fair market value. The Buczeks seek compensatory and punitive damages.

The Buczeks’ Complaint demands judgment on four counts. The trial court sustained defendant-appellees’ demurrers on the basis that none of the counts stated a cause of action. • The court explained its order in a two-page Memorandum Opinion filed June 4, 1986. On appeal, the Buczeks challenge that ruling as to each count by stating the following questions:

A. Does count I of Plaintiffs’ complaint state a cause of action against the defendants for an accounting?
B. Does Count II of Plaintiffs’ complaint state a cause of action against the defendants arising from defendants’ alleged unjustified refusal to grant financing to a purchaser of plaintiffs’ property?
C. Does Count III of Plaintiffs’ complaint state a cause of action against the defendants for intentional infliction of emotional distress?
D. Does Count IY of the Plaintiffs’ complaint state a cause of action against defendant bank on a respondeat or negligence basis?

We have reviewed the briefs, the arguments of parties, the record, and the trial court opinion, and we conclude that the Buczeks' arguments are meritless. The trial court opinion economically states our view, and we adopt the trial court’s reasoning. However, for purposes of a full exposition of the facts and applicable law, we supplement that reasoning with the following analysis.

In Count I of their Complaint, the Buczeks allege the following: “Despite some attempt after the fact to explain the application of the payments by Defendant Bank, Plaintiffs are still unable to ascertain fully exactly what happened to the monies paid by them to the bank.” As a result, the Buczeks demand that the Bank and Zendt account to them for all monies received by the Bank from the Buczeks. On appeal, the Buczeks claim that a confidential relationship existed between them and Zendt, thereby creating a cause of action in assumpsit for an accounting. Alternatively, the Buczeks allege a cause of action for an accounting in equity, on the basis that relevant facts are “particularly within defendants’ knowledge.” Neither claim has merit.

The right to demand an accounting at law is found in Pa.R.Civ.P. 1021(a), which provides:

Any pleading demanding relief shall specify the relief to which the party deems himself entitled. Relief in the alternative or of several different types, including an accounting, may be demanded.

The right to relief in the form of an accounting pursuant to Rule 1021 is merely an incident to a proper assumpsit claim. The Complaint does not, however, allege that funds paid by the Buczeks to the Bank were not due and owing and properly payable. Nor is it claimed that the Buczeks overpaid sums owed to the Bank. Indeed, the only allegations of the Complaint which touch on this point state that payments were made to satisfy the debt owed. The fact that the Buczeks do not understand what the Bank did with the money after it was received does not state a cause of action for breach of contract or any other assumpsit claim. Thus, the Buczeks have no cause of action at law for an accounting. See Haft v. United States Steel Corp., 346 Pa.Super. 404, 499 A.2d 676 (1985).

Nor do the Buczeks have a cause of action in equity. Pursuant to Pa.R.Civ.P. 1530, an equitable accounting is not proper where there is no fiduciary relationship between the parties, no fraud or misrepresentation is alleged, where the accounts are not mutual or complicated, or where the plaintiff possesses an adequate remedy at law. Ebbert v. Plymouth Oil Co., 348 Pa. 129, 34 A.2d 493 (1943); Shaw v. Newingham, 279 Pa. 180, 123 A. 783 (1924); Graham v. Cummings, 208 Pa. 516, 532, 57 A. 943, 949 (1904). Equitable jurisdiction for an accounting does not exist merely because the plaintiff desires information that he could obtain through discovery. Neither the Bank nor Zendt acted as agent or trustee for the Buczeks. The Bank received money in payment from a debtor. The Complaint fails to allege any facts which could transform the debtor-creditor relationship between the Buczeks and appellees into a fiduciary relationship. See Federal Land Bank of Baltimore v. Fetner, 269 Pa.Super. 455, 461, 410 A.2d 344, 348 (1979), cert. denied, 446 U.S. 918, 100 S.Ct. 1853, 64 L.Ed.2d 273 (1980); Grace v. Moll, 285 Pa. 353, 355, 132 A. 171, 171-72 (1926).

In Count II of their Complaint, the Buczeks allege that Zendt “improperly and unreasonably prevented Kenneth Deamer from obtaining financing which would have enabled him to purchase the Hetrick Farm from [the Buczeks] in the fall of 1980 ...” This claim does not state a cause of action, because the Bank had an absolute right to refuse the Buczeks’ application for a mortgage loan. Todd v. Shelly, 384 Pa. 423, 120 A.2d 906 (1956).

The Buczeks also assert that, even if a bank owes no duty to make a loan, the failure to grant a loan requested by a purchaser under an agreement of sale containing a financing contingency states a claim for intentional interference with contract. This claim is likewise meritless.

Our Supreme Court has adopted the Restatement (Second) of Torts § 766 (1977):

Intentional Interference with Performance of Contract by Third Person
One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the third person’s failure to perform the contract.

Alder, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978). Under the language of the Restatement, a defendant must have interfered with the performance' of a contract, by intentionally and improperly acting, or failing to act where a duty to do so exists. Where the complaint fails to allege circumstances which establish that a defendant’s actions were “unprivileged” or “improper,” the complaint is properly dismissed on preliminary objections. Raneri v. DePolo, 65 Pa.Commw. 183, 441 A.2d 1373 (1982). See also S.N.T. Industries, Inc. v. Geanopulos, 363 Pa.Super. 97, 525 A.2d 736 (1987). Moreover, in their brief the Buczeks concede that their Complaint fails to allege any intent to cause harm by Zendt. Thus, Count II was properly dismissed.

Count III of the- Buczeks’ Complaint alleges that Zendt harassed the Buczeks and engaged in a course of self-dealing in violation of his fiduciary obligation to them as a bank officer, and in so doing, engaged in extreme and outrageous conduct, causing emotional distress and “upsetment” for which compensatory and punitive damages are demanded. The Buczeks allege that this Count states a cause of action for the tort of intentional infliction of emotional distress. We disagree.

The Restatement (Second) of Torts § 46(1) (1965) defines this tort:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

The conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society,” and where the requisite outrageous conduct is not alleged, dismissal of the claim on preliminary objections is appropriate. See D’Ambrosio v. Pennsylvania National Mutual Casualty Ins. Co., 494 Pa. 501, 511 n. 8, 431 A.2d 966, 971-72 n. 8 (1981); Restatement (Second) of Torts § 46 comment d (1965). The actions that Zendt is alleged to have taken in an effort to collect the Buczeks’ overdue loans and to purchase their property do not satisfy this standard, particularly when viewed in the commercial context alleged in the Complaint.

As their final argument, the Buczeks contend that Count IV of their Complaint states a cause of action against the Bank. The Buczeks claim that the Bank is responsible for Zendt’s actions either on a respondeat superior basis, or alternately, on a theory that the Bank was negligent for failing to properly supervise him. Neither claim has merit. Since, as we have demonstrated above, the Buczeks have not stated a cause of action against Zendt, the Bank cannot be liable to them on a respondeat superior basis. Nor did the Complaint alleged any facts which would constitute an act or omission by the Bank that would support a negligence action. Thus, we conclude that the Buczeks had no cause of action against the Bank. See Todd v. Shelly.

Order affirmed.

      . We note that the Supreme Court has recently clarified that it has never adopted Section 46 as the law of the Commonwealth. Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). The Court expressed concern that the subjective nature of the concept of outrageousness "renders the cause of action one which tends to defy principled adjudication.” Id., 515 Pa. at 195, 527 A.2d at 993-994. In an attempt to render proof of the tort more objective, the Kazatsky Court held that "if Section 46 of the Restatement is to be accepted in this Commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Id., 515 Pa. at 197, 527 A.2d at 995.


text:
    531 A.2d 1125
    Pamela ROBERTS, Appellant, v. The ESTATE OF Carl BARBAGALLO, Northwood Services, Inc., Trading and D/B/A Northwood Realty Company, and Mary Ann DiPasquale (two cases). Pamela ROBERTS v. The ESTATE OF Carl BARBAGALLO, Northwood Services, Inc., Trading and D/B/A Northwood Realty Company, and Mary Ann DiPasquale. Appeal of NORTHWOOD SERVICES, INC., T/A/D/B/A Northwood Realty Co.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1986.
    Filed Oct. 1, 1987.

      Raymond G. Hasley, Pittsburgh, for appellant (at 1508 and 1509).
    James N. Perich, Pittsburgh, for appellant (at 1572) and for appellee (at 1508 and 1509).
    Kirby L. Boring, Pittsburgh, for appellee.
    Before BROSKY, ROWLEY and POPOVICH, JJ.
   ROWLEY, Judge:

In March, 1982, Louise Barbagallo, executrix of the Estate of Carl Barbagallo, deceased, executed an exclusive real estate listing agreement with Northwood Services, Inc. (Northwood) for Northwood to sell a residence which was owned by the Decedent and which had been occupied by himself and his sister, Louise Barbagallo (Miss Barbagallo), until his death. Northwood was a member of the West Penn Multilist Group (West Penn) which in turn was a member of the Greater Pittsburgh Board of Realtors (Board of Realtors). In early December, 1982, a sales representative for Northwood showed the residence to Miss Pamela Roberts two times. On neither occasion was Miss Barbagallo at home. Upon viewing the property it was apparent that the second floor of the house was equipped to be used as a separate apartment, and there was some discussion between Miss Roberts and Northwood’s representative concerning the use of the property as a duplex dwelling. On December 22, 1982, Miss Roberts signed an agreement of sale to buy the property. The closing was set for March 1, 1983.

Previously, in April, 1982, the U.S. Consumer Products Safety Commission had issued a ban on the future use of ureaformaldehyde foam insulation (UFFI), effective August 1, 1982. Northwood received notice of the ban through the Board of Realtors and West Penn. Northwood also received an Advisory, sent by the National Association of Realtors to its members, that contained suggested forms to be used to determine from owners/sellers the type of insulation used in a house which was listed for sale. The members were advised to disclose to both buyers and sellers the presence of UFFI, if known, and the possible effects of UFFI. The Advisory specifically stated that “the existence of a potential health hazard from U.F.F.I. is a material fact concerning the condition of property____”

Beginning on January 1, 1983, West Penn Multilist supplied its members, including Northwood, with forms requiring the owner of property to indicate whether or not the house to be sold contained UFFI and to sign the form. This form was much simpler than the forms accompanying the National Association of Realtors’ Advisory and did not indicate what UFFI is or what potential risks were involved with its use. The form also contained no place for a buyer’s signature indicating that the buyer had been informed of the nature of UFFI or of the seller’s knowledge or lack of knowledge as to its presence in the property to be purchased. West Penn required that its members have the forms completed for any new property listing to be included in the multilist catalogue after January 1, 1983. In addition, during January, 1983, the Northwood sales representatives were directed to have the disclosure forms completed for properties listed prior to January 1, 1983. Also at the beginning of 1983, the Allegheny County Health Department issued a guideline which stated that .1 ppm. of formaldehyde fumes may cause irritation to normally healthy people.

In February, 1983, The Northwood listing agent for the Estate property, Miss DiPasquale, contacted Miss Barbagallo to ascertain what type of insulation was in the residence. Miss Barbagallo did not know what kind of insulation had been used, but she did know that Decedent had contracted to have it blown into the walls. On February 10, 1983, the disclosure form showing that Miss Barbagallo did not know the type of insulation was placed in Northwood’s file for the Estate property. The certificate contained the name, initials and purported signature of Miss Barbagallo. However, the signature was misspelled and was not written by Miss Barbagallo.

On March 5, 1983, following the March 1, 1983 closing, Miss Roberts had a contractor examine the house to estimate the cost of certain renovations. In examining the house to make his bid, the contractor noted that the insulation looked like UFFI, and he notified Miss Roberts of his suspicions and of what he knew about UFFI. Miss Roberts immediately had the insulation tested and the tests confirmed that the insulation was UFFI. On March 14, 1983, Miss Roberts sent a letter to the Estate demanding rescission of the deed on the basis of the existence of UFFI, but the Estate refused. Thereafter, on March 19, 1983, Miss Roberts had the air inside the house tested for formaldehyde fumes. The test results showed that there were .1 ppm. formaldehyde fumes inside the house. Miss Roberts and her mother, who suffered from sinus problems and allergies and with whom Miss Roberts had intended to occupy the house, never moved into the residence.

Following the Estate’s refusal to rescind the deed, Miss Roberts filed, in the Orphans’ Court Division, a claim against the Estate based on the seller’s failure to disclose the presence of UFFI. She sought rescission of the sale and the deed, reimbursement of the closing costs, and such additional relief that the Court deemed necessary to make her whole. In the alternative, if the property were sold, she claimed damages for all of her losses resulting from the sale. The case was transferred from the Orphans’ Court Division to the Civil Division of the Court where the claim was treated as a complaint in equity. The Estate joined Northwood as an additional defendant alleging that if the Estate were found liable, the Estate was entitled to contribution and indemnity. The Estate also requested that punitive damages be assessed against Northwood. Northwood then joined Miss DiPasquale averring that Miss DiPasquale was directly liable to Miss Roberts, or, if Northwood was found liable, Miss DiPasquale was liable to Northwood for contribution and indemnity.

Following commencement of the suit, Miss Roberts, with the permission of the Estate, attempted to sell the residence. In January, 1984, Miss Roberts received an offer of $20,000 for the house contingent upon her obtaining a double-occupancy permit. The local building inspector and the Zoning Hearing Board denied Miss Roberts’ request for the occupancy permit, so the prospective buyer did not purchase the real estate from Miss Roberts. Miss Roberts appealed the decision of the Zoning Hearing Board to the Court of Common Pleas which, subsequent to the filing of the appeal in the instant case, rejected Miss Roberts’ contention that use of the property as a duplex was a non-conforming use, and denied the double-occupancy permit. The basis of the trial court’s decision was that although the subject property encompassing 5,040 square feet had been used as a duplex until 1976, from 1976 until 1982, when the Borough enacted a new zoning ordinance requiring a minimum lot size of 6,000 square feet, the property was not used as a duplex, but was shared by the Decedent and Miss Barbagallo.

Following the filing of an adjudication and Decree Nisi, and consideration of exceptions filed by the parties to the court’s findings of facts and conclusions of law, a Final Decree was entered denying Miss Roberts’ claim for rescission but entering judgment in favor of Miss Roberts and against Northwood in the amount of $9,420 (the cost of removal of the UFFI plus interest); judgment was also entered in favor of the Estate, and in favor of Miss DiPasquale. Miss Roberts has appealed. On appeal, she argues that the trial court should have granted her request for rescission of the sale of the property because of the mutual or unilateral mistake as to the type of insulation and a misrepresentation as to the house being useable as a duplex. In the alternative, Miss Roberts argues that judgment should have been entered against both Northwood and the Estate and that she should have received compensatory damages not only for the cost of removal of the UFFI, but also for loss of rental income, her loss from having to make mortgage payments on a house in which she did not live, and the loss of an opportunity to otherwise invest the money she used for a downpayment. Finally, Miss Roberts argues that punitive damages should have been assessed against Northwood because it intentionally failed to disclose the presence of UFFI.

Northwood has also appealed and argues on appeal: 1) that a sales representative has no duty to investigate or disclose the type of insulation in an existing structure which is being sold; 2) that UFFI has not been proven to be harmful to healthy people; 3) that the type of insulation in a structure is not a material fact which must be disclosed; 4) that the sales representatives are independent contractors and not agents and therefore, Northwood cannot be liable for the failure of the sales representative to provide notice of the UFFI, or alternatively, if the sales representative is an agent, Northwood cannot be liable because the agent was found to be not liable; and 5) if Northwood is liable, it is entitled to contribution and indemnity from the sales representative. The appeals have been consolidated for disposition, and we reverse.

Our scope of review of an adjudication in equity is well established. The chancellor’s findings of fact are to be accorded the weight of a jury verdict and will not be reversed on appeal if the evidence is adequate to support them and they are not founded upon erroneous inferences and deductions or errors of law. Piercing Pagoda, Inc. v. Hoffner, 465 Pa. 500, 351 A.2d 207 (1976). Conclusions of law, however, may be reviewed at the liberty of the appellate court. Presbytery of Beaver-Butler v. Middlesex, 507 Pa. 255, 489 A.2d 1317, cert. den., 474 U.S. 887, 106 S.Ct. 198, 88 L.Ed.2d 167 (1985). Facts supported by competent evidence are binding. Id.

I. Liability for Nondisclosure of UFFI

The trial court, by analogy, based its finding of liability of Northwood on those cases which have held that sellers or their agents are liable to purchasers for nondisclosure or misrepresentation with regard to termite infestation. Quashnock v. Frost, 299 Pa. Super. 9, 445 A.2d 121 (1982); Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979); Shane v. Hoffmann, 227 Pa.Super. 176, 354 A.2d 532 (1974). The liability in these cases was premised on § 353 of the Restatement, Second, of Torts which provides that a vendor of land who fails to disclose or conceals any condition which involves an unreasonable risk to people on the land is subject to liability.

In the instant case, Miss Roberts presented no evidence from which the court could conclude that UFFI created an unreasonable risk of harm. The evidence of the federal ban on UFFI which was in effect when the sale of the property occurred is not evidence that UFFI created an unreasonable risk because the Fifth Circuit Court of Appeals specifically rejected the ban for failure to prove that UFFI constituted an unreasonable risk of harm. Gulf South Insulation v. U.S. Consumer Products Safety Commission, 701 F.2d 1137 (5th Cir.1983). The evidence which was admitted demonstrated only that UFFI was in the house and that there were .1 ppm. formaldehyde fumes within the house. Miss Roberts presented no evidence that .1 ppm. formaldehyde fumes create an unreasonable risk or that the formaldehyde fumes within the house emanated from the insulation. Because there was no proof that the UFFI caused an unreasonable risk of harm, the trial court’s reliance on Quashnock, Glanski, and Shane was misplaced.

However, a vendor or his agent may be liable not only for failure to disclose a dangerous condition but also for failure to disclose material information. Section 550, Restatement, Second, of Torts provides:

§ 550 Liability for Fraudulent Concealment
One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.

Liability under this section is encompassed by the Supreme Court’s rule that fraud may arise by: 1) the making of a knowingly false representation of fact; 2) an intentional concealment of true facts which is calculated to deceive the other party; or 3) a nonprivileged failure to disclose certain facts to the other party. DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958). Here there is no evidence that the executrix or the decedent himself knew of the type of insulation. Therefore, the Estate could not have fraudulently concealed or misrepresented knowledge of UFFI. For this reason, there is no basis for concluding that the Estate is independently liable to Miss Roberts.

An agent, however, may be liable to an injured third party for his own deceit in a transaction on behalf of his principal. Section 348 Restatement, Second, of Agency. Here no one disputes the trial court’s finding that North-wood was the agent of the Estate. Therefore, Northwood, as agent of the Estate, may be liable to Miss Roberts for its own deceit. Because the deceit in this case is not misrepresentation but nondisclosure, we look to the elements of fraudulent concealment as discussed in § 550 of the Restatement, Second, of Torts as the standard by which to examine Northwood’s actions.

Under § 550, the concealment must be intentional and it must relate to material information. The trial court concluded that Northwood had an intentional policy of nondisclosure concerning UFFI. This conclusion has not been contested on appeal and is supported by the record. The trial court also found that Northwood believed information concerning UFFI to be material to a sale of real estate. Our review of the record shows that not only did North-wood believe that knowledge of UFFI was material, but on the facts of this case, knowledge of UFFI was in fact material.

Because of the unique relationship of Northwood’s former owner and its president with the Board of Realtors and the West Penn Multilist, Northwood was undeniably aware of the federal ban on UFFI in new housing prior to the sale of the property in this case, and it was also aware of the potential health risks involved in the use of UFFI. Northwood also knew that the professional Board of Realtors had recommended to its members, including West Penn Multilist, that information concerning UFFI was material and that it should be disclosed to both buyers and sellers and that some effort should be made to try to ascertain whether UFFI had been used in properties being listed for sale. Moreover, at least, prior to the closing, the Allegheny County Health Department had issued a regulation indicating that certain levels of formaldehyde-fumes could cause eye, nose and throat irritations to normally healthy people. Thus, at the time that the property was sold in this case, the combination of the federal ban, the local guideline, and the professional organization's recommendation- demonstrated that knowledge of the possible effects of UFFI and of its existence was information material to a real estate transaction.

We find further support for this conclusion in comment (b) to § 550 which suggests that there is liability for fraudulent concealment if the defendant prevents the plaintiff from making an investigation he would otherwise have made. In this case, Miss Roberts made an investigation into the type of insulation in the house immediately upon learning that UFFI might be in the house and upon learning of the possible effects from UFFI. Considering her prompt action upon obtaining knowledge of UFFI and considering that she intended to live in the house with her mother who suffered from sinus problems, we find it indubitably clear that by failing to disclose information regarding UFFI, Northwood succeeded in preventing Miss Roberts from investigating the insulation in the house prior to the signing of the agreement of sale or the closing, and that had Miss Roberts been advised of UFFI prior to the sale, she would have conducted such an investigation. Because Northwood intentionally did not disclose the information concerning UFFI and because such information was material to the real estate transaction in this case, we conclude that North-wood was liable to Miss Roberts for fraudulently concealing information.

[71 Although Northwood argues that it cannot be liable either because the sales representative was not its agent but an independent contractor or, if she is found to be an agent, because the sales representative was found to be not liable, this argument minimizes the fact that Northwood, independent of the actions and knowledge of the sales representative (e.g., that the insulation had been blown into the house), owed a duty to Miss Roberts. Because North-wood had a policy of nondisclosure, at least as to purchasers of property, and because Northwood did not instruct the sales representatives to disclose UFFI to purchasers, North-wood is independently liable. It is unnecessary to determine whether the sales representative was an agent or an independent contractor, and it is irrelevant that the agent was found to be not liable.

The conclusion that Northwood is liable to Miss Roberts for fraudulently concealing information about UFFI does not terminate our inquiry as to the liability for nondisclosure of UFFI. Contrary to the conclusion of the trial court that the Estate could not be liable for Northwood’s fraud because it neither authorized nor knowingly permitted Northwood to conceal information concerning UFFI, we conclude that the Estate, too, is liable.

In Aiello v. Ed Saxe Real Estate, 508 Pa. 553, 499 A.2d 282 (1985) (which had not been decided when the trial court rendered its decision) the Supreme Court held that

a principal is liable to innocent third parties for the frauds, deceits, concealments, misrepresentations, torts, negligences and other malfeasances or misfeasances of his agent committed in the course of his employment, although the principal did not authorize, justify or participate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them.

Id., 508 Pa. at 562, 499 A.2d at 287 (footnotes omitted). The reason for the Court’s holding was that to hold otherwise would violate public policy and permit the person who held out his agent as trustworthy not only to escape liability for the frauds of his agent, but also to enjoy the benefits of his agent’s fraud at the expense of an innocent third party.

The Estate argues that Aiello is distinguishable from the instant case because the Court in Aiello did not hold that a principal must be liable, but that it could be liable. We find this argument unpersuasive. The Estate contends that the specific question before the Court in Aiello was whether the trial court had erred when it had charged the jury that the principal “could” be found liable for the agent’s misrepresentations. Although the propriety of the jury charge was the reason for the appeal in Aiello, the Court made explicitly clear in stating its holding and the reason for its holding that it was reaffirming the rule that a principal is liable to third parties for the deceits of his or her agent. If the rule simply were that a principal could, but did not have to, be liable for the frauds of its agent, the rule would not effectuate the public policy of protecting innocent third parties. Rather, it would leave to the fact finder to determine, on an ad hoc basis, whether the innocent third parties should be protected. Because the Aiello Court adopted the rule of a principal’s liability for its agent’s fraud in order to ensure protection of innocent third parties, we hold that the principal is liable for the agent’s conduct, and the liability of the principal, where the agent has acted fraudulently, is not a question for the fact finder but is a question of law for the court. See also: Cohen v. Blank, 359 Pa.Super. 93, 518 A.2d 582 (1986) (Judgment n.o.v. reversed because the principal’s scienter at the time of the agent’s misrepresentation is not necessary to hold the principal liable).

II. Remedy

Miss Roberts argues that the trial court erred by refusing to grant her rescission of the deed. The general rule is that where a purchaser has been harmed by a real" estate broker’s misrepresentations, the purchaser has a choice of remedies. The purchaser may elect to rescind the deed and to seek a return of the purchase money, or the purchaser may elect to sue for damages. National Building Leasing Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). The election as to which remedy to pursue belongs to the purchaser. 2 COA 691 §§ 23 and 24. This general rule is also supported by § 259 of the Restatement, Second, of Agency, which provides that where one is induced to enter into a transaction by untrue material representations made by an agent authorized to conduct preliminary or final negotiations, the person deceived has the right to elect to rescind the transaction.

In this case, Miss Roberts was first informed about UFFI by her contractor on March 5, 1983. She immediately had the insulation tested, and on March 14, 1983, gave notice of her election to rescind. When the Estate refused to rescind the deed, Miss Roberts then filed the claim against the Estate seeking rescission. These facts clearly evidence Miss Roberts’ election to rescind the deed as was her right. Because Miss Roberts unambiguously evidenced her election to rescind, and because this decision was communicated forthwith to the Estate, the trial court erred in denying her the remedy of rescission.

Because Miss Roberts has elected the remedy of rescission, Miss Roberts should be returned to the position she was in before the sale occurred. To accomplish this she is entitled to receive the purchase money and any other cash expenditures, such as closing costs, which were required to purchase the propérty. She ought also to account for any items of income or expense, such as fire insurance and taxes or any repairs to the property, arising since the date she took title in order to determine the amount necessary to be paid by the Estate to Miss Roberts to restore her to the status quo. See: Arcan v. Hatch, 94 Montg.Co.L.R. 366 (1971); Baker v. Simon, 92 Montg.Co.L.R. 289 (1970); Shotz et ux. v. Sherzer et ux., 1 D & C2d 568 (1954).

Miss Roberts also argues that the trial court erred in denying her punitive damages against Northwood for its intentional and outrageous deceit. However, there can be no award of punitive damages until the plaintiff proves actual damages. Hilbert v. Roth, 395 Pa. 270, 149 A.2d 648 (1959); Sulecki v. Southeast National Bank, 358 Pa.Super. 132, 516 A.2d 1217 (1986). Election of the remedy of rescission precludes recovery of damages. The remedies of rescission and damages are mutually inconsistent and one is entitled to either one remedy or the other but not both. 37 Am.Jur.2d Fraud and Deceit § 328. The remedies are inconsistent because the one is based on the abrogation of the sale and the other is based on the continued existence of the sale. 77 Am.Jur.2d Vendor and Purchaser § 554. Because the punitive-damage claim is dependent upon the establishment of compensatory damages and because when one is permitted to rescind a transaction one is forclosed from pursuing a compensatory-damage claim, where one is permitted to rescind a transaction, one cannot also obtain punitive damages. Therefore, Miss Roberts is not entitled to receive any punitive damages.

Judgment in favor of the Estate is reversed; judgment against Northwood in the amount of $9,420 is vacated. The case is remanded to the trial court to enter a decree rescinding the sale. At that time the trial court can determine the appropriate amount of the purchase money to be returned to Miss Roberts and any other sums necessary to return Miss Roberts to the position she was in before the sale. On remand, the court shall also resolve the Estate’s claim against Northwood for contribution or indemnity. Jurisdiction is not retained.

      . The ban was subsequently invalidated by the United States Fifth Circuit Court of Appeals which found that the Commission had failed to prove that UFFI did not create an unreasonable risk of injury. Gulf South Insulation v. U.S. Consumer Products Safety Commission, 701 F.2d 1137 (5th CCA, 1983).

      . No one has appealed the judgment in favor of Miss DiPasquale and therefore, the issue of the propriety of the judgment in her favor is not before us.

      . The trial court made no specific findings of fact and conclusions of law regarding the duplex zoning issue, although in its opinion of December 2, 1985, written in response to the exceptions to the decree nisi, it purported to address and dispose of the issue despite the lack of a final order granting or denying the double-occupancy permit. We find it unnecessary to address either the trial court’s procedural treatment of the issue or the merits of the issue because of our disposition of the other issues raised in this appeal.