author: PER CURIAM:

text:
    528 A.2d 631
    COMMONWEALTH of Pennsylvania v. Barry Charles GORDON, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 5, 1984.
    Filed June 30, 1987.

      H. Robert Fiebach, Philadelphia, for appellant.
    Sandra L. Elias, Deputy District Attorney, Media, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and MONTGOMERY, JJ.
   PER CURIAM:

We have this appeal on remand from the Pennsylvania Supreme Court. In Commonwealth v. Gordon, 342 Pa.Super. 480, 493 A.2d 691 (1985), rev’d, 511 Pa. 481, 515 A.2d 558 (1986), we found insufficient evidence to support appellant’s convictions for possession and delivery of a controlled substance, holding that appellant’s status as a licensed and registered pharmacist exempted him from prosecution under clauses (16) and (30) of section 13(a) of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-113(a)(16), (30). We found that the provision of the Act applicable to appellant’s conduct was clause (14) of section 13(a), as amended, 35 P.S. § 780-113(a)(14), prohibiting the unlawful delivery of a controlled substance by a “practitioner.” Based on our determination, we ordered appellant discharged from his convictions under clauses (16) and (30). However, in Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558 (1986), the Supreme Court determined that we had erroneously interpreted the Act, and held that a practitioner who sold drugs on the street could be prosecuted the same as any other street dealer. The Court reversed our order vacating the convictions, and remanded the case to this Court for disposition of the two issues remaining on appeal which we did not address in our earlier decision. Having reviewed these issues, we conclude that neither warrants relief. Accordingly, we now affirm the judgment of sentence.

This case arises from a transaction conducted in a motel parking lot in which Mr. Gordon sold a bottle of 100 Dilaudid pills to a criminal informant without a prescription. Before the meeting, Gordon had arranged to sell the informant two bottles of the drug, each containing 100 pills, for a total of $1600. However, the police were able to supply the informant with only $800, and therefore when Gordon entered the informant’s car to deliver the drugs, the informant explained that his “contact” had fallen through and that he had been able to obtain only $800, enough for only one bottle. Consequently, Gordon sold only one of the two bottles he had brought with him, although he agreed to keep the second bottle overnight and sell it to the informant the following day.

A team of narcotics detectives had been stationed about the parking lot watching the transaction, and they had also managed to capture the conversation on audiotape. Before Gordon’s arrival, they had equipped the informant with an electronic recorder and transmitter which he wore secreted on his person. From a car near the scene, Detective Craig Siti, an officer specially certified in electronic surveillance, monitored and recorded the oral exchange between the parties, while in a separate car Officer Susan Cory and her partner listened in on the transmissions for the informant to say a code phrase that meant the transaction had been completed. When the informant said the word, the police moved in and arrested Gordon, who had exited the informant’s car and was opening the door to his own. From the front seat of Gordon’s car, the officers seized the $800 in traceable bills that the informant had given him and the unsold bottle of Dilaudid pills. From the informant, the officers secured the bottle of Dilaudid which Gordon had sold.

The case went to trial before the Honorable Charles C. Keeler in the Court of Common Pleas of Delaware County. During trial, the defense learned that Officer Cory had prepared a police report which the Commonwealth had not disclosed in response to a pre-trial discovery request. Upon learning of the report and after reviewing its contents, defense counsel moved for dismissal of the charges. The court denied the motion. The defendant also objected to the court’s admission of tapes and a transcript of his electronically recorded conversation. The court denied this objection as well, and proceeded to find the defendant guilty of one count of possession and one count of possession with intent to deliver and delivery of a controlled substance. After denying post-trial motions, the court sentenced Gordon to a prison term of eleven months to twenty-four months less one day. The court held that the simple possession count merged with the greater charges.

Presently before this court are Gordon’s contentions that his convictions should be reversed because 1) the Commonwealth failed to disclose before trial the existence of Officer Cory’s police report; and 2) the court received into evidence tapes and transcripts of an illegally intercepted conversation.

I.

Before trial the defendant had requested, pursuant to Pennsylvania Rule of Criminal Procedure 305(B)(1)(a), that the Commonwealth provide him with “any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth.” Defense counsel also asked to see any police reports made of the incident. The Commonwealth allowed counsel to review tapes and transcripts of the recorded conversation and Detective Siti’s report on the interception, but identified no other reports in its possession.

On the eve of trial, arresting officer Susan Cory appeared in the district attorney’s office to go over the case and there revealed for the first time that she had prepared a report of the incident. The prosecuting attorney then reviewed and copied portions of the report, but she inadvertently neglected to inform the defendant of its existence before trial began the next day. See generally Pa.R.Crim.P. 305(D) (“If, prior to or during trial, either party discovers additional evidence or material previously requested ... which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.”). The defense did not discover the report until recross-examination of Officer Cory at trial. Gordon now advances four reasons why late disclosure of the report allegedly prejudiced him in defending the case.

A.

Gordon focuses first on statements in the report that he had delivered only one bottle of Dilaudid rather than two. He juxtaposes these statements with one of the informa-tions filed against him by the district attorney, which charged that Gordon “did unlawfully, knowingly and intentionally have in his possession or under his control ... TWO BOTTLES DILAUDID (200 PILLS) with intent to deliver ... and did deliver same.” (Emphasis ours). Gordon maintains that the late disclosure of the Cory report violated the ruling of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), which established that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. at 1196-97; cf. Pa.R.Crim.P. 305(B)(1)(a) (codifying Brady doctrine as rule of discovery in Pennsylvania). We reject Gordon’s attempt to manufacture a Brady violation out of the discrepancy between the criminal information and the late-disclosed report, because the evidence in the report about the quantity of drug sold was neither withheld nor exculpatory.

Brady affirmed the grant of a new trial in the sentencing phase of a murder prosecution where the prosecutor had failed to inform Brady of his accomplice’s confession to the actual killing despite Brady’s pre-trial request for the accomplice’s extrajudicial statements. In Brady, however, the withheld confession “did not come to [Brady’s] notice until after he had been tried, convicted, and sentenced, and after his conviction had been affirmed.” 373 U.S. at 84, 83 S.Ct. at 1195. Therefore, Brady’s jury had imposed the death penalty unaware of a crucial piece of evidence mitigating Brady’s culpability in the murder. This, the Supreme Court held, denied Brady his constitutional right to a fair trial. (The Court left the verdict of guilt undisturbed on the ground that under Maryland law the accomplice’s confession would not have been admissible in the guilt-or-innocence phase of the trial). See id. at 88-90, 83 S.Ct. at 1197-98.

Here, by contrast, the undisclosed police report came to light at trial, and thereafter Judge Keeler reviewed the report and admitted it into evidence. Thus, anything in the report favorable to the defendant was before the learned finder of fact.

In Commonwealth v. Murphy, 493 Pa. 35, 425 A.2d 352 (1981), the Supreme Court of this State laid down the applicable rule where previously withheld Brady material is disclosed at trial, and said:

This is not a situation where the withheld information was discovered only after conviction, but one where the evidence became available to the defense during trial. Moreover, the defense had the opportunity to effectively present this evidence before the jury. Under these circumstances, we find no justification for granting a new trial. The rationale for doing so in Brady and [United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) ] was that the jury had convicted without the benefit of the non-disclosed testimony. Such a purpose would not be served in this case where the jury did consider the evidence in question before reaching its verdict. We therefore hold that even if the evidence would be deemed to be exculpatory[,] where it is effectively presented at trial and the belated disclosure does not prejudice the defense, no due process violation has occurred.

493 Pa. at 45-46, 425 A.2d at 357; accord United States v. Kaplan, 554 F.2d 577, 580 (3d Cir.1977); Commonwealth v. Bonacurso, 500 Pa. 247, 251, 455 A.2d 1175, 1177, cert. denied, 462 U.S. 1120, 103 S.Ct. 3090, 77 L.Ed.2d 1350 (1983); Commonwealth v. Lowery, 276 Pa.Super. 569, 581-82, 419 A.2d 604, 610-11, allowance of appeal denied, Oct. 29, 1980; Commonwealth v. Hicks, 270 Pa.Super. 546, 548-49, 411 A.2d 1220, 1221-22 (1979), allowance of appeal denied, Jan. 8, 1980; see also Commonwealth v. Rose, 483 Pa. 382, 394-97 & n. 7, 396 A.2d 1221, 1227-29 & n. 7 (1979) (late disclosure of eyewitness’s psychiatric treatment not reversible error under Brady where jury was told of treatment and of witness’s judgment and memory loss resulting from incident).

Because Gordon had the opportunity to effectively present the evidence in Cory’s report about the quantity of drug delivered, he has shown no prejudice to his defense on that issue, and “[t]his is fatal to his claim of error under Brady.” Bonacurso, 500 Pa. at 251, 455 A.2d at 1177.

The same observation serves to rebut Gordon’s tandem claim under Pa.R.Crim.P. 305 (B)(1)(a), which mimics Brady in requiring the prosecution to disclose “evidence favorable to the accused which is material either to guilt or to punishment.” Although this rule, under which Gordon sought discovery, clearly imposes a mandatory pre-trial duty of disclosure which continues through the time of trial, see Pa.R.Crim.P. 305(D); see also Murphy, 493 Pa. at 49, 425 A.2d at 359 (Roberts, J., concurring), a defendant seeking relief from tardy disclosure under the rule still must demonstrate prejudice, see Commonwealth v. Rodgers, 500 Pa. 405, 456 A.2d 1352 (1983), and this Gordon cannot do because the court admitted the “favorable” evidence in Cory’s report about the quantity of drug delivered. Cf. Murphy, 493 Pa. at 49, 425 A.2d at 359 (Roberts, J., concurring).

The court in Bonacurso rejected a similar dual claim of error under Brady and Rule 305. There the prosecutor had been unaware of exculpatory statements by an eyewitness in time to provide them in response to the defendant’s pre-trial discovery request, because the detective handling the case had failed to alert the prosecutor to the existence of the statements. However, the defendant learned of the witness at trial and called him to testify, and “[a]ll that he could say was put before the learned trial judge with every opportunity that an unhurried and careful bench trial provides.” 500 Pa. at 251, 455 A.2d at 1177. The Supreme Court held that the defendant’s advantageous use of the witness’s testimony precluded any claim for relief on appeal. Similarly, the late disclosure of Cory’s report did no harm to Gordon’s defense on the issue of how much drug he had delivered, because the court allowed him every opportunity to present the newfound statements in a favorable light, including through further cross-examination of Officer Cory had he wished. As it was, even before the report surfaced at trial Cory had testified to the circumstances under which one bottle of Dilaudid had been sold to the informant and the unsold bottle had been seized from Gordon’s car. Defense counsel had already cross-examined her on this issue, and he questioned her no further on it after reading the belatedly disclosed report, perhaps because nothing in the report contradicted her testimony. Cf. Commonwealth v. Starks, 304 Pa.Super. 527, 529-30, 450 A.2d 1363, 1364 (1982) (late disclosure of tape of interview with victim did not deny fair trial where defendant already had victim’s contemporaneous written statement, and de-dined court’s remedial offers); Commonwealth v. Williams, 295 Pa.Super. 369, 373-76, 441 A.2d 1277, 1279-80 (1982) (loss of victim’s formal statement did not deny due process where her testimony cohered with contemporaneous police report and defendant declined to test her credibility with aid of report).

We should also point out that Gordon had ample access before trial to information which showed that the Commonwealth’s evidence would prove the sale of only one bottle of Dilaudid. In response to the pre-trial discovery request the Commonwealth had allowed defense counsel to review the tapes and transcripts of the electronically recorded conversation between Gordon and the informant, and these sources disclosed how Gordon had come to the motel to sell two bottles of Dilaudid but had sold only one because, supposedly, the informant’s “contact” was no longer interested and the informant had scraped together his last $800. The tapes and transcripts also revealed Gordon’s agreement to hold the second bottle overnight for sale to the informant the following day. This version of events is entirely consistent with that portrayed in Officer Cory’s report.

Even more significant than the recorded conversation as a pre-trial source of evidence about the quantity of drug delivered was Officer Cory’s sworn affidavit of probable cause filed with the criminal complaint. The affidavit, in part, stated: “During this conversation there was talk of purchasing two bottles of pills (Dilaudids) for a price of $800.00 for each bottle. After a brief discussion, GORDON did deliver to the Co-operative, one bottle of Dilaudid pills, a controlled schedule II drug, in exchange for $800.00 in U.S. Currency.” (Emphasis ours). An analogous case is Commonwealth v. Haber, 351 Pa.Super. 79, 505 A.2d 273 (1986), where we found that a police officer’s destruction of his investigatory notes supplied no grounds for relief where the substance of the notes had been incorporated into the arrest warrant affidavit and therefore the notes were merely “cumulative” of evidence the defendant already had. 351 Pa.Super. at 87-88, 505 A.2d at 278. The evidence in Cory’s report that Gordon had sold only one bottle of Dilaudid was included in the arrest warrant affidavit, and therefore was merely cumulative of evidence he already had. See also Commonwealth v. Ignatavich, 333 Pa.Super. 617, 622, 482 A.2d 1044, 1046 (1984) (alternative holding) (prosecution’s failure to supply murder victim’s arrest record in response to discovery request was harmless error where defense had the necessary information), allowance of appeal denied, April 21, 1985; Commonwealth v. Gelormo, 327 Pa.Super. 219, 230-32, 475 A.2d 765, 770-71 (Commonwealth’s failure to produce witness’s plea agreement from another county did not impair defendant’s right to fair trial where defense knew of agreement, had transcripts of witness’s sentencing hearings, and cross-examined witness on every conceivable basis for bias), allowance of appeal denied, Aug. 21, 1984; Commonwealth v. Gibson, 271 Pa.Super. 499, 503, 414 A.2d 364, 366 (1979) (where defense became aware at suppression hearing that the only eyewitness initially had failed to identify defendant, no merit to contention Commonwealth withheld the evidence), affd per curiam, 500 Pa. 231, 455 A.2d 634 (1983); Commonwealth v. Wanamaker, 266 Pa. Super. 503, 505-06, 405 A.2d 932, 932-33 (per curiam) (Commonwealth’s failure to reveal murder victim’s possession of drugs when killed was harmless to self-defense claim based on alleged drug dispute where jury was given toxicology report showing presence of drugs in victim’s body), allowance of appeal denied, Oct. 3, 1979; cf Commonwealth v. Taylor, 340 Pa.Super. 87, 104, 489 A.2d 853, 862 (1985) (late disclosure of allegedly inculpatory statement not reversible error under Pa.R.Crim.P. 305(B)(1)(b) where withheld statement was only “minimally” more damaging than statement defendant testified to having made); Commonwealth v. Cason, 328 Pa.Super. 326, 331-32, 476 A.2d 1353, 1356 (late disclosed evidence that defendant had admitted ownership of incriminating shoes was both cumulative and harmless where Commonwealth had responded to discovery request by disclosing it had “defendant’s shoes,” and introduced shoes at trial without objection as those defendant had given police when asked for his shoes), allowance of appeal denied, Oct. 1, 1984; Commonwealth v. Romeri, 314 Pa. Super. 279, 294-95, 460 A.2d 1139, 1147 (admission of defendant’s inculpatory letter did not violate discovery rules where letter had been subject of pre-trial proceedings), aff'd, 504 Pa. 124, 470 A.2d 498 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984).

Furthermore, we must agree with Judge Keeler that, taken in context, the statements in Officer Cory’s report that Gordon had delivered only one bottle of Dilaudid were not material to either guilt or punishment. Offsetting the allegedly “exculpatory” nature of these statements were other statements in the report about Gordon’s unsuccessful plan to sell the second bottle, and its seizure from the front seat of his car. Whether Gordon actually “did deliver” the second bottle as the district attorney alleged in the boilerplate language of the criminal information, or only possessed it intending to deliver it as both Cory’s report and the evidence at trial indicated, he was equally guilty of violating the prohibitions of 35 P.S. § 780-113(a)(30) (proscribing both delivery and possession with intent to deliver), and equally subject to the same statutory penalties for either infraction. See 35 P.S. § 780-113(f).

B.

Gordon next invokes evidence from Officer Cory’s report indicating that several officers besides Detective Siti had listened in on the electronically intercepted conversation between Gordon and the informant, and argues that had he known of this evidence before trial he would have filed a pre-trial motion to suppress the contents of the conversation on the ground that “unlicensed” officers had monitored the interception. Of course, since this evidence about who had overheard Gordon’s conversation was not material to guilt or punishment, the due process rule of Brady did not compel its disclosure. Presumably Gordon bases his claim to this evidence on his pre-trial request for police reports, and on the rule that, “Where a specific request is made, evidence is material if it ‘might have affected the outcome of the trial.’ ” Commonwealth v. Rose, 483 Pa. at 396, 396 A.2d at 1208 (dictum) (quoting United States v. Agurs, 427 U.S. at 104, 96 S.Ct. at 2398). Gordon, however, misconstrues the authorities he cites, for each was the progeny of Brady and hence dealt solely with the discoverability of evidence material to guilt or punishment.

We need not, however, resolve whether the Commonwealth improperly withheld evidence relevant to a suppression claim, because Gordon has waived this contention. After the report came to light at trial and defense counsel had reviewed it, he did not assert that late disclosure of the report had deprived the defendant of evidence relevant to suppression, nor did he move for suppression of his client’s recorded statements based on anything found in the report. He argued only for dismissal of the charges for the purported withholding of exculpatory, i.e., Brady, material, focusing almost exclusively on those statements which related to the quantity of drug delivered.

This Court cannot review a case upon a theory different from that relied upon in the trial court, or raised for the first time on appeal. Commonwealth v. Hernandez, 339 Pa.Super. 32, 45 n. 7, 488 A.2d 293, 300 n. 7 (1985); Commonwealth v. Bradshaw, 324 Pa.Super. 249, 254-55, 471 A.2d 558, 560-61 (Cirillo, J., now P.J.), allowance of appeal denied, July 10, 1984; see also Commonwealth v. Cargo, 498 Pa. 5, 16-20 & n. 15, 444 A.2d 639, 645-47 & n. 15 (1982). A theory of error different from that presented to the trial jurist is waived on appeal, even if both theories support the same basic allegation of error which gives rise to the claim for relief. See Commonwealth v. Gravely, 486 Pa. 194, 203 n. 4, 404 A.2d 1296, 1300 n. 4 (1979) (plurality opinion) (different theories of double jeopardy); Commonwealth v. May, 485 Pa. 371, 373 n. 3, 402 A.2d 1008, 1009 n. 3 (1979) (different theories for withdrawal of guilty plea); Commonwealth v. Jackson, 464 Pa. 292, 296-97, 346 A.2d 746, 747-48 (1975) (different theories for suppression of confession); Commonwealth v. Negri, 414 Pa. 21, 32, 198 A.2d 595, 601 (1964) (different theories of illegality of arrest), remanded on other grounds on rehearing, 419 Pa. 117, 213 A.2d 670 (1965) (plurality opinion); Commonwealth v. Sweger, 351 Pa.Super. 188, 194, 505 A.2d 331, 334 (1986) (different theories for suppression of statements), allowance of appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987) ; Commonwealth v. Williams, 346 Pa.Super. 456, 464-65, 499 A.2d 1089, 1093-94 (1985) (different theories for obtaining victim’s juvenile record); Commonwealth v. York, 319 Pa.Super. 13, 20, 465 A.2d 1028, 1032 (1983) (different theories of prosecutorial misconduct); Commonwealth v. Beaver, 317 Pa.Super. 88, 104 n. 9, 463 A.2d 1097, 1106 n. 9 (1983) (different theories for mistrial); Commonwealth v. Clark, 287 Pa.Super. 13, 18 n. 15, 429 A.2d 695, 698 n. 5 (1981) (different theories of admissibility); Commonwealth v. Cohen, 270 Pa.Super. 90, 93-94, 410 A.2d 1264, 1265 (1979) (different theories of evidentiary insufficiency); Commonwealth v. Sojourner, 268 Pa.Super. 472, 480, 408 A.2d 1100, 1104 (1978) (different theories why jury instruction was erroneous), modified on other grounds on rehearing, 268 Pa.Super. 488, 408 A.2d 1108 (1979); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 321-24 & n. 9, 386 A.2d 1014, 1022-24 & n. 9 (different theories for evidentiary objection), allowance of appeal denied, July 20,1978; Commonwealth v. Harmes, 255 Pa.Super. 147, 153 & n. 1, 386 A.2d 551, 553 & n. 1 (1978) (different suppression theories); Commonwealth v. Waters, 248 Pa.Super. 123, 128-29, 374 A.2d 1348, 1351-52 (1977) (same); see also Commonwealth v. Nelson, 320 Pa.Super. 488, 494, 467 A.2d 638, 641 (1983) (request for discharge on grounds of insufficient evidence did not raise issue whether defendant should receive new trial at which improperly considered evidence would be excluded).

It is to no avail that Gordon raised his present contention in a brief filed with post-trial motions, and that Judge Keeler, in his written opinion, then considered the claim that the Commonwealth had improperly withheld the information about who had monitored Gordon’s conversation. It was too late, at the post-verdict motions stage, for Gordon to raise for the first time an entirely new theory in support of his argument that the Commonwealth had wrongly withheld the report. See Commonwealth v. Jones, 478 Pa. 172, 178, 386 A.2d 495, 497-98 (1978); Commonwealth v. Williams, 476 Pa. 557, 569-70, 383 A.2d 503, 509 (1978); Commonwealth v. Black, 474 Pa. 47, 55 & n. 7, 376 A.2d 627, 631 & n. 7 (1977); Commonwealth v. Johnson, 467 Pa. 146, 159 n. 12, 354 A.2d 886, 893 n. 12 (1976); Commonwealth v. May, 466 Pa. 524, 526-27, 353 A.2d 815, 816 (1976); Commonwealth v. Harley, 275 Pa.Super. 407, 416, 418 A.2d 1354, 1358 (1980) (Montgomery, J.). “ ‘A litigant must do two things in order to preserve an issue. First, he must make a timely, specific objection at trial____ And second, he must raise the issue on post-trial motion.' Commonwealth v. Keysock, 236 Pa.Super. 474, 478-79, 345 A.2d 767, 769 (1975), allocatur denied, (citations omitted).” Commonwealth v. Butts, 495 Pa. 528, 534, 434 A.2d 1216, 1219 (1981). The lack of any motion or objection at trial specifically directed to the Commonwealth’s dilatory disclosure of evidence favoring a suppression claim waived this allegation of error for purposes of appeal, notwithstanding Gordon’s later inclusion of the claim in his brief in support of post-trial motions. See id.; Commonwealth v. Slaughter, 482 Pa. 538, 544-45, 394 A.2d 453, 456 (1978); Commonwealth v. Brown, 467 Pa. 512, 516-17, 359 A.2d 393, 395 (1976); Commonwealth v. Cooley, 465 Pa. 35, 40 n. 5, 348 A.2d 103, 106 n. 5 (1975); Commonwealth v. Newsome, 462 Pa. 106, 108-09, 337 A.2d 904, 906 (1975); Commonwealth v. Williams, 458 Pa. 319, 322, 326 A.2d 300, 302 (1974); Commonwealth v. Lopez, 455 Pa. 353, 355-56 & n. 2, 318 A.2d 334, 336 & n. 2 (1974); Commonwealth v. Dessus, 262 Pa.Super. 443, 455, 396 A.2d 1254, 1259-60 (1978), allowance of appeal granted, 262 Pa.Super. 443, 396 A.2d 1254 (Pa.1979); Commonwealth v. Gore, 262 Pa.Super. 540, 552, 396 A.2d 1302, 1308 (1978); see also Commonwealth v. Cargo, 498 Pa. at 16, 444 A.2d at 645 (dictum) (new allegations of error may not be raised for first time in brief on post-trial motions); Commonwealth v. Gravely, 486 Pa. at 198-99, 404 A.2d at 1297-98 (prospective ruling) (same); Commonwealth v. Rosenfield, 297 Pa. Super. 252, 443 A.2d 822 (1982) (same); Commonwealth v. Shain, 324 Pa.Super. 456, 467-68 & nn. 1-2, 471 A.2d 1246, 1251 & nn. 1-2 (finding it irrelevant that trial court considered unpreserved claims in its post-verdict opinion), allowance of appeal denied, 324 Pa.Super. 456, 471 A.2d 1246 (Pa.1984); cf Commonwealth v. Vernon, 324 Pa.Super. 395, 402, 471 A.2d 897, 900 (1984) (defendant’s failure to request remedy specifically under Pa.R.Crim.P. 305(E) didn’t waive issue of discovery violation where defendant had raised the issue at trial and in post-trial motions).

Our Supreme Court’s rules on issue preservation simply do not allow the parties to change their theories for relief indiscriminately as they move through the trial and appellate processes. Any less exacting procedure for attacking the rulings of trial courts would seriously undermine judgment finality and deprive both the courts and opposing parties of the means to respond adequately to such challenges. See Commonwealth v. Waters, 477 Pa. 430, 434, 384 A.2d 234, 236 (1978) (“At the trial level, counsel’s precise statement of issues and grounds relied upon ... insures that both the trial court and Commonwealth will have adequate notice of the legal theories being advanced.”). Here, had the Commonwealth known at trial that Gordon objected to late disclosure of the report because of its effect on his suppression claim, then the prosecutor could have offered evidence and argument designed to show that the necessary information was available to Gordon before trial, or that the late disclosure otherwise had not prejudiced his suppression claim. In the absence of any signal which raised this ground for relief at trial, we find it waived.

C.

Gordon alleges that, had he known of information in Cory’s report “crucial to impeachment” of her credibility, he would not have waived his constitutional right to a jury trial. Gordon does not specifically identify the evidence in the report which allegedly “impeached” the officer, making it hard for us to determine when or whether he brought the alleged evidence to the attention of the trial court. It is clear however, that in his brief filed with post-trial motions Gordon did not pursue any contention that the Commonwealth’s conduct had misled him into waiving a jury trial. Having “[t]hus deprived [the court] of the benefit of [this] legal theory underlying the assertion of error,” Commonwealth v. Williams, 476 Pa. at 570, 383 A.2d at 509, Gordon has abandoned this claim, and waived it for purposes of appeal. See Commonwealth v. Manigault, 501 Pa. 506, 509, 462 A.2d 239, 240-41 (1983); Commonwealth v. Holzer, 480 Pa. 93,100-01, 389 A.2d 101, 105 (1978); Williams, 476 Pa. at 570 & n. 11, 383 A.2d at 509-10 & n. 11; Commonwealth v. Byers, 349 Pa.Super. 162, 165, 502 A.2d 1324, 1326 (1986) (en banc); Commonwealth v. Hassine, 340 Pa.Super. 318, 353 n. 21, 490 A.2d 438, 456 n. 21 (1985); Commonwealth v. Kuhn, 327 Pa.Super. 72, 83-84, 475 A.2d 103, 109 (plurality opinion), allowance of appeal denied, Oct. 1, 1984; Commonwealth v. Pittman, 320 Pa.Super. 166, 170-71, 466 A.2d 1370, 1371-72 (1983); Commonwealth v. Dobson, 298 Pa.Super. 1, 6, 444 A.2d 144, 147 (1982); Commonwealth v. Perry, 279 Pa.Super. 32, 36, 420 A.2d 729, 731 (1980); Commonwealth v. Marcocelli, 271 Pa.Super. 411, 417, 413 A.2d 732, 735 (1979), allowance of appeal denied, Aug. 11, 1980; Commonwealth v. Tucker, 267 Pa.Super. 243, 246, 406 A.2d 785, 787 (1979); Commonwealth v. Dessus, 262 Pa.Super. at 452-53, 396 A.2d at 1258.

In any event, in his opinion in the Bonacurso case, Justice McDermott thoroughly refuted the type of claim Gordon now seeks to raise:

Appellant’s final contention is that if he had known of [an unfavorable] eye witness ..., he would not have waived trial by jury. Because this is belied by the fact that the Commonwealth never denied the existence of an eye witness, this contention is meritless. Furthermore, there are no differences in a defendant’s rights or the legal principles involved between a jury case and a non-jury case. The same rules of evidence apply and the same burdens of proof remain____
• • • [Ajppellant voluntarily ... chose a non-jury method of trial. The fairness of that method is not determined by the type of evidence offered or the number of witnesses introduced. Absent error of law, bias or prejudice there is no inherent unfairness in a bench trial as contrasted to a trial by jury. We cannot accept that, once chosen, one form of the right to an open and public trial is less productive of fairness than the other or that one is less capable of rendering a fair verdict upon the same evidence. Moreover, the appellant here made no motion for continuance or mistrial. He cannot await a verdict without protest and then complain.

500 Pa. at 255, 455 A.2d at 1179, 1180 (citations omitted); cf. Commonwealth v. Hussmann, 335 Pa.Super. 603, 485 A.2d 58 (1984) (rejecting defendant’s claim he would not have testified or would have testified differently had prosecution revealed it had his depositions from a related civil case).

D.

The final piece of evidence which Gordon extracts from the report is information showing that the Commonwealth knew he was a licensed pharmacist. In light of our high court’s ruling that Gordon’s status as a licensed pharmacist did not immunize him from prosecution under 35 P.S. § 780-113(a)(16) and (30), the pharmacist’s license was not exculpatory, and the Commonwealth’s pre-trial knowledge of it was irrelevant.

Even assuming the relevance of this information, we note that Detective Siti’s electronic surveillance report, which defense counsel did review before trial, twice referred to Gordon as a “pharmacist.”

Finally, whatever slight kernel of merit this claim may have contained, Gordon waived it by not including it in his brief on post-trial motions. See, e.g., Williams, 476 Pa. at 570 & n. 11, 383 A.2d at 509-10 & n. 11; Hassine, 340 Pa.Super. at 353 n. 21, 490 A.2d at 456 n. 21; Dessus, 262 Pa.Super. at 452-53, 396 A.2d at 1258; see also Commonwealth v. Quarles, 361 Pa.Super. 272, 279, 522 A.2d 579, 582 (1987) (Olszewski, J.).

In sum, we find that Gordon has demonstrated no Brady violation, and that the trial court’s measured response to his request for sanctions for an alleged violation of the rules of discovery was entirely appropriate. The court properly upheld Gordon’s right to review and use Officer Cory’s report in connection with her testimony by granting a short recess and allowing whatever favorable use could be made of the report. See generally Commonwealth v. Grimm, 249 Pa.Super. 441, 378 A.2d 377 (1977); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977); Commonwealth v. Cooper, 240 Pa.Super. 477, 362 A.2d 1041, vacated per curiam on other grounds, 468 Pa. 390, 363 A.2d 783, cert. denied, 429 U.S. 1048, 97 S.Ct. 758, 50 L.Ed.2d 763 (1976); Commonwealth v. Robinson, 229 Pa.Super. 131, 324 A.2d 441 (plurality opinion), allocatur refused, Oct. 24, 1974; Commonwealth v. Swierczewski, 215 Pa.Super. 130, 257 A.2d 336 (1969). Gordon’s request for dismissal of the charges, moreover, was out of proportion to the discovery violation alleged. Pennsylvania Rule of Criminal Procedure 305(E) provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

When a party has failed to comply with Rule 305, the trial court has broad discretion in choosing an appropriate remedy. Commonwealth v. Palmer, 319 Pa.Super. 56, 58, 465 A.2d 1050, 1052 (1983); Commonwealth v. Johnson, 310 Pa.Super. 389, 395, 456 A.2d 988, 993 (1983). However, we have found termination of the prosecution to be “a penalty far too drastic” for a prosecutor’s violation of discovery rules. Commonwealth v. Parente, 294 Pa.Super. 446, 452, 440 A.2d 549, 552, allowance of appeal denied, May 26, 1982 (Pa.1982); accord Commonwealth v. Yost, 348 Pa.Super. 297, 502 A.2d 216 (1985); see also Commonwealth v. Woodell, 344 Pa.Super. 487, 492, 496 A.2d 1210, 1213 (1985) (“It is conceivable, of course, that a violation may be so egregious as to recommend dismissing all charges. Such an order, however, was not warranted under the circumstances present in this case.”); cf. Commonwealth v. Melendez, 326 Pa.Super. 531, 474 A.2d 617 (1984) (new trial was appropriate remedy for late disclosure of inculpatory statement); Commonwealth v. Thiel, 323 Pa.Super. 92, 470 A.2d 145 (1983) (new trial appropriate for surprise disclosure of inculpatory rebuttal evidence). But cf. United States v. Beta, 60 F.R.D. 127 (M.D.Pa.1973) (dismissal “may” be appropriate remedy for obvious Brady violation).

“The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” Commonwealth v. Simons, 342 Pa.Super. 281, 294, 492 A.2d 1119, 1126 (1985) (en banc) (quoting United States v. Morrison, 449 U.S. 361, 366, 101 S.Ct. 665, 669, 66 L.Ed.2d 564 (1981)), aff'd, 514 Pa. 10, 522 A.2d 537 (1987). The prosecutor’s inadvertent transgression of failing to timely reveal a police report produced no prejudicial “fruits” in this case, because the defendant had full use of the report at trial. The court offered sufficient redress for the late disclosure, and we can grant no further remedy on appeal.

II.

Gordon’s contention that the court should have suppressed his electronically recorded conversation is waived because he bases his argument on a different legal theory from that raised at trial.

Gordon argues on appeal that the contents of the conversation should have been suppressed under the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5721, because Officer Cory, who listened in on the transmissions, was not legally certified to conduct electronic surveillance. Section 5704(2) of the Act states, inter alia, that it is not unlawful for a law enforcement officer or someone acting at his request to intercept an oral communication where one of the parties to the communication has given prior consent. 18 Pa.C.S. § 5704(2)(ii). This section further provides, however, that such interceptions are subject to the recording and record-keeping requirements of section 5714(a), which requires that “[wjhenever an interception is being monitored, the monitor shall be an investigative or law enforcement officer certified under section 5724 (relating to training).” Id. § 5714(a) (emphasis added). Officer Cory was not certified under section 5724, and thus, Gordon maintains, the interception was illegal.

At trial, however, when the prosecutor moved to introduce the tapes and transcript of the intercepted conversation, and after Cory’s role in the surveillance had been fully disclosed, Gordon did not object to admission of the evidence on the ground that Officer Cory was uncertified under section 5724. Rather, he maintained only that the informant had not specifically consented to Officer Cory’s listening in on the conversation through a separate listening device. See generally id. § 5704(2)(ii) (consent to interception must be voluntary). To establish this point, Gordon cited the memoranda of consent signed by the informant, which identified Detective Siti and the equipment he was to use, but which did not mention Officer Cory.

Whether Officer Cory was legally certified by training to conduct electronic surveillance is a different legal question from whether the informant voluntarily consented to her interception of the conversation. The raising of one particular theory in support of a suppression claim is not sufficient to preserve all other possible legal grounds for suppression of the same evidence. See Commonwealth v. Jackson, 464 Pa. 292, 346 A.2d 746 (1975); Commonwealth v. Sweger, 351 Pa.Super. 188, 505 A.2d 331 (1986), allowance of appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987); Commonwealth v. Harmes, 255 Pa.Super. 147, 153 & n. 1, 386 A.2d 551, 553 & n. 1 (1978); Commonwealth v. Waters, 248 Pa.Super. 123, 374 A.2d 1348 (1977).

It is a firm rule in this jurisdiction that if the ground [for] an objection to the admission of evidence is specifically stated, all other reasons for the exclusion of the evidence are waived and may not be raised thereafter. Commonwealth v. Stoltzfus, [462 Pa. 43, 60, 337 A.2d 873, 881 (1975)]; Commonwealth v. McNeal, 456 Pa. 394, 398, 319 A.2d A.2d 669, 672 (1974); Commonwealth v. Budd, 443 Pa. 193, 195, 278 A.2d 879, 880 (1971); Commonwealth v. Raymond, 412 Pa. 194, 202-203, 194 A.2d 150, 154 (1963) [, cert. denied, 377 U.S. 999, 84 S.Ct. 1930, 12 L.Ed.2d 1049 (1964) ].

Commonwealth v. Williams, 476 Pa. 557, 569-70, 383 A.2d 503, 509 (1978); accord Commonwealth v. Pitts, 486 Pa. 212, 220, 404 A.2d 1305, 1309 (1979) (plurality opinion); Commonwealth v. Witherspoon, 481 Pa. 321, 324 n. 4, 392 A.2d 1313, 1314 n. 4 (1978); Commonwealth ex rel. Wilkes v. Maroney, 423 Pa. 113, 119, 222 A.2d 856, 860 (1966); Commonwealth v. Updegrove, 413 Pa. 599, 605, 198 A.2d 534, 537 (1964); Commonwealth v. Berry, 355 Pa.Super. 243, 256, 513 A.2d 410, 416 (1986); Commonwealth v. Williams, 346 Pa.Super. 456, 464, 499 A.2d 1089, 1093 (1985); Commonwealth v. Frederick, 327 Pa.Super. 199, 213-14, 475 A.2d 754, 762 (1984); Commonwealth v. Warren, 313 Pa.Super. 390, 894, 459 A.2d 1285, 1287 (1983); Commonwealth v. Ridall, 280 Pa.Super. 316, 320, 421 A.2d 740, 743 (alternative holding), allowance of appeal denied, 280 Pa.Super. 316, 421 A.2d 740 (Pa.1980); Commonwealth v. Harley, 275 Pa.Super. 407, 415, 418 A.2d 1354, 1357 (1980); Commonwealth v. Green, 251 Pa.Super. 318, 324 n. 4, 380 A.2d 798, 801 n. 4, allocatur refused, 251 Pa.Super. xxxiii (Pa.1977); Commonwealth v. Rhodes, 250 Pa.Super. 210, 218, 878 A.2d 901, 904-05 (1977); Commonwealth v. Williams, 230 Pa.Super. 259, 261, 326 A.2d 420, 421 (1974) (alternative holding); Commonwealth v. Markwich, 178 Pa.Super. 169, 172, 118 A.2d 823, 325, allocatur refused, June 16, 1955; see also Commonwealth v. Lawson, 315 Pa.Super. 84, 89, 461 A.2d 807, 810 (1983); Commonwealth v. Guess, 266 Pa.Super. 359, 373-74, 404 A.2d 1330, 1337 (1979); Commonwealth v. Weitkamp, 255 Pa.Super. 305, 324 n. 9, 386 A.2d 1014, 1024 n. 9, allowance of appeal denied, July 20, 1978. Therefore, Gordon’s present argument for exclusion of the evidence is waived, notwithstanding the trial court’s consideration and decision of the issue after Gordon raised it in his brief on post-trial motions. See Williams, 476 Pa. at 569, 383 A.2d at 509; see also Commonwealth v. May, 466 Pa. 524, 526-27 & n. 3, 353 A.2d 815, 816 & n. 3 (1976) (trial court’s consideration of untimely claim raised at post-verdict motions stage did not preserve issue for appeal); Commonwealth v. Shain, 324 Pa.Super. 456, 467-68 & nn. 1-2, 471 A.2d 1246,1251 & nn. 1-2 (same), allowance of appeal denied, June 7, 1984.

Affirmed.


source: Caselaw Access Project

author: BECK, Judge: JOHNSON, Judge,

license: Public Domain

text:
    528 A.2d 643
    PENN ELECTRIC SUPPLY CO., INC. and Coatesville Electric Supply Co., Inc., Appellants, v. BILLOWS ELECTRIC SUPPLY COMPANY, INC.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1986.
    Filed July 1, 1987.

      Gary Schildhorn, Philadelphia, for appellants.
    Jonathan Braff, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and JOHNSON, JJ.
   BECK, Judge:

The issue before us is whether in the context of a conversion action the court is required to accept the plaintiffs’ valuation of damages where defendant fails to identify and value the goods he converted. We find that the court is not required to accept the plaintiffs’ valuation and therefore affirm the trial court.

Plaintiff-appellants, Penn Electric Supply Company and Coatesville Electric Supply Company (hereinafter collectively Penn Electric), assert that in a conversion action the court must accept the plaintiffs valuation as to damages unless the defendant satisfies the burden of proving lesser damage. Penn Electric contests the dollar amount of damages awarded to them against defendant-appellee Billows Electric Supply Company, Inc. (Billows Electric) after Penn Electric prevailed in a bench trial in a conversion action.

This case involves a somewhat complicated series of transactions relating to certain goods, namely tools, electrical supplies and trailers, which we will hereafter refer to collectively as “the goods.” The goods originally belonged to B & W Electric Construction Company, Inc. (B & W). In 1971, appellee Billows Electric perfected a security interest in all of B & W's inventory, equipment, accounts receivable, furniture, machinery, and proceeds from the sale of any of the above. In 1973, B & W went out of business and, pursuant to the security agreement, Billows Electric alleges that it acquired ownership of the goods. After the demise of B & W, David L. White, its president, started Gar-Dan Electrical Construction Company (Gar-Dan) at the same address, and retained possession of the goods in a transaction the nature of which is in dispute. On October 14,1976, Penn Electric entered into a security agreement with Gar-Dan, under which Penn Electric procured a perfected security interest in all of the inventory, tools, equipment, accounts receivable and all the property of Gar-Dan. In March of 1977, Gar-Dan went out of business and then Billows Electric removed the goods.

Penn Electric filed a complaint in trespass against Billows Electric alleging that Penn Electric had a perfected security interest in the goods and that therefore Billows Electric converted the goods when it removed them. Billows Elec-trie defended on the ground that it had merely loaned the goods to Gar-Dan and thus Gar-Dan had only a possessory and not an ownership interest. Billows Electric contended, therefore, that Gar-Dan’s possessory rights in the collateral were not adequate to permit Penn Electric’s security interest to attach. Under this theory, Billows Electric could not be liable in conversion when it removed the goods.

The case was tried without a jury, and the trial court rendered a verdict in favor of Penn Electric and against Billows Electric in the amount of $14,500, plus interest from the date of conversion. Post-trial motions were denied. The verdict was reduced to judgment. Billows Electric appealed the judgment in favor of Penn Electric, and Penn Electric cross-appealed on the adequacy of the damages awarded to it. In this instant appeal, only the damages question is before us.

Appellant, Penn Electric, argues: (1) that the trial court erred in limiting damages to $14,500; and (2) that the trial court erred in declining to award Penn Electric punitive damages.

Penn Electric’s first argument is that the trial court should have awarded damages in excess of $50,000 based on the testimony of Penn Electric’s expert. Even though the figure suggested by the expert was clearly a broad estimate and was based on no precise accounting, Penn Electric argues that in a conversion action, once plaintiff establishes the measure of his damages, the burden of proof to rebut plaintiff’s claim is on the defendant. Therefore, since Billows Electric did not sustain its burden, Penn Electric argues, the trial court was required to accept Penn Electric’s calculation of damages, $50,000.

Penn Electric bases its assertion on Billows Electric’s wrongful taking of the goods and its inability to produce an inventory of them. Penn Electric argues that:

It is ... axiomatic that where a defendant .. by his own wrongdoing prevents another from accurately estimating the value of that which he took, the highest value in kind may be charged against him, and the burden is upon him to show what it was that he actually took.” McCrown [sic] v. Quigley, 147 Pa. 307, 309 [23 A. 805] (1892); see also, Jacob Greenberg & Sons, Inc. v. Melvin Kolb, Inc., 65 Lanc.Rev. 213, 217 (1976).

Brief of Appellant at 11.

Appellant cites McCown v. Quigley, 147 Pa. 307, 23 A. 805 (1892), as support for the broad principle that a defendant wrongdoer has the burden to show the identity and value of the goods in question. If he cannot satisfy this burden, then the court may assess damages against him based on the value asserted by the plaintiff. Translating this principle to the instant case, Penn Electric argues, the court should have assessed damages of $50,000 against Billows Electric. This figure represented Penn Electric’s valuation. The court, according to Penn Electric, was duty bound to accept the $50,000 figure because Billows Electric, having been found liable in conversion, did not satisfy its burden of identifying and valuing the goods it took. We disagree and conclude that Penn Electric misperceives the holding in McCown. In McCown the Pennsylvania Supreme Court affirmed the trial judge’s instruction which directed the jury to consider the reasonableness of the plaintiff's assessment of damages, thereby implying plaintiff had the burden of proving reasonable damages. In addition, however, and in conflict, the McCown trial court instructed the jury that the defendant wrongdoer had the burden of showing damages. In light of this contradiction we do not conclude that McCown requires a trial court to accept plaintiff’s assessment of damages once the defendant fails to identify and value the goods converted.

This principle of law which is urged upon us by Penn Electric is contrary to the traditional principle for establishing damages in this Commonwealth and in other jurisdictions. The general rule in this Commonwealth is that the plaintiff bears the burden of proof as to damages. Griffin v. Tedesco, 355 Pa.Super. 475, 513 A.2d 1020 (1986); Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243 (1983).

The determination of damages is a factual question to be decided by the fact-finder. Bolus v. United Penn Bank, 363 Pa.Super. 247, 525 A.2d 1215 (1987); Delahanty. The fact-finder must assess the testimony, by weighing the evidence and determining its credibility, and by accepting or rejecting the estimates of the damages given by the witnesses; Delahanty. Although the fact-finder may not render a verdict based on sheer conjecture or guesswork, it may use a measure of speculation in estimating damages. Id. The fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable, inferential, as well as direct and positive proof. Id. See also Rea v. Ford Motor Co., 355 F.Supp. 842, 879 n. 9 (W.D.Pa.1973), vacated on other grounds, 497 F.2d 577, cert. denied 419 U.S. 868, 95 S.Ct. 126, 42 L.Ed.2d 106 (1974).

In evaluating the proposition urged upon us by Penn Electric we have examined the law in other jurisdictions. We have not uncovered another jurisdiction that, in conversion actions, places the burden of proof as to damages on the defendant so as to require the court to accept the plaintiffs figure. See, e.g., Ball v. Posey, 176 Cal.App.3d 1029, 222 Cal.Rptr. 746 (1986); Epstein v. Automatic Enterprises, 6 Conn.App. 484, 506 A.2d 158 (1986); Hoover v. Louisiana, 393 So.2d 187 (La.Ct.App.1980); Willis v. Ed Hudson Towing, Inc., 109 Mich.App. 344, 311 N.W.2d 776 (1981); Fortune v. City National Bank & Trust Co., 671 P.2d 69 (Okla.Ct.App.1983); Industrial Welding Supplies v. Atlas Vending Co., 276 S.C. 196, 277 S.E.2d 885 (1981). The cases hold that plaintiff is not relieved of the burden of proving the amount of damages simply because the defendant “by his own wrong has precluded a more precise computation of damages.” Locklin v. Day-Glo Color Corp., 429 F.2d 873, 879 (7th Cir.1970), cert. denied 400 U.S. 1020, 91 S.Ct. 584, 27 L.Ed.2d 632 (1971). See also Spray-Rite Service Corp. v. Monsanto Co., 684 F.2d 1226, 1242 (7th Cir.1982), aff'd Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984). The general rule is that if the defendant wishes to argue for a reduction in damages or to rebut the adequacy of plaintiffs evidence, the burden of such a showing is on the defendant. But failure to meet this burden does not require the court to assess damages at whatever figure the plaintiff had shown, however uncertain. See Taylor Rental Corp. v. J.I. Case Co., 749 F.2d 1526 (11th Cir.1985); Knuth v. Erie-Crawford Dairy Cooperative Ass’n, 463 F.2d 470 (3rd Cir.1972), cert. denied 410 U.S. 913, 93 S.Ct. 966, 35 L.Ed.2d 278 (1973).

To place the burden of proof on the defendant, as Penn Electric suggests, would be unworkable. For example, a plaintiff with a modest loss could assert a very large loss. Unless defendant satisfies the burden of proof as to the identity and value of the goods, the plaintiff would be entitled to damages amounting to his asserted claim. Such a result deprives the fact finder of its traditional function of estimating damages.

We hold that in a conversion action it is for the trier of fact to consider the evidence of damages from both the plaintiff and the defendant and to measure the value of the damages in the context of plaintiff’s burden.

In the instant case the court was asked to accept the value of the total property converted as being “in excess of $50,000,” based on the testimony of Penn Electric’s witness Mr. Russell Fox, that concluded with this exchange:

Q. Mr. Fox, to the best of your recollection, what was the value of the items, including everything you’ve mentioned — the trailers, the benders, the wire, the electrical supplies, the other tools — that were removed by Billows during the week of March of 1977?
A. If I sat down — if I had a copy, which I don’t — Bruce has one copy and Dave White has the other copy, which is the owner of the Gar-Dan Electric — and if I sat down and itemized and priced every item, it would go way over $50,000 with all the material and tools.

N.T. October 9, 1985, at 15.

The trial judge, sitting as the trier of fact, considered testimony from both parties as to damages and awarded appellant Penn Electric damages in the amount of $14,500. In its opinion denying post-trial motions the trial court stated:

The trial judge in the instant case heard testimony on the value of property from a single witness of plaintiff, Mr. Russell Fox, a former employee of Gar-Dan Electric. Mr. Fox testified from his recollection that the value of the property taken eight years ago was in excess of $50,000 (N.T. 15), although he never priced the items (N.T. 23) either individually or as a lot. Mr. Irving Fuhs, an employee of Billows Electric Supply Co. of Haddon Heights, testified on behalf of the defendant that he examined the property taken from Gar-Dan (N.T. 97). Mr. Fuhs, based solely on his recollection, valued the serviceable material taken from Gar-Dan at $5,800.00
(N.T. 98-108):
12 gang boxes (at $50.00 each) 600.00
1 bender 1500.00
1 crimper 400.00
1 trailer 1800.00
wire 1500.00
Total 5800.00
In addition, Mr. Bruce Billow, of Billows Electric Supply, testified for the defendant that certain circuit breakers taken from Gar-Dan were valued at $2,000 (N.T. 138). The total valuation made by the defendant was $7,800. In assessing this testimony, it was the court’s opinion that plaintiff’s estimate was overstated and that defendant’s estimate was understated. Without more specific evidence proffered by the parties, it was the court’s opinion that $14,500.00 was a fair estimate of the true value of the converted property.

Trial op. at 4-5.

As we noted above, making such an estimate is within the power of the fact-finder. We conclude that the trial court did not abuse its discretion in setting damages at $14,500.

Penn Electric’s second contention is that the trial court should have awarded it punitive damages. Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). Whether to award punitive damages is within the discretion of the fact-finder. Delahanty.

Penn Electric’s assertions of alleged outrageous conduct by Billows Electric are not supported by the record. We find that the trial court did not abuse its discretion in declining to award punitive damages to Penn Electric.

Judgment affirmed.

JOHNSON, J., files concurring opinion.

JOHNSON, Judge,

concurring:

Although, I agree with the result reached by the majority, I fear that the majority gives appellant credit for a stronger argument than he actually has under McCown v. Quigley, 147 Pa. 307, 23 A. 805 (1892). McCown involved a haberdasher who was a partner in one firm and a sole proprietor in his own men’s furnishing shop. The issue in McCown was for the jury to decide the contents of the packages and boxes which Quigley had appropriated to his own account. The plaintiffs estimated the values assuming certain contents. The trial court charged the jury, in effect, that if Quigley wanted to dispute what was in the boxes, he had to come forward with affirmative evidence. Therefore, I do not read McCown as approving a jury charge that “the defendant wrongdoer had the burden of showing damages.” Slip Opinion, at 5. The trial judge merely stated that “the burden is upon [the wrongdoer] to show what it was that he actually took” This is not a question of “showing damages” so much as it is a statement that it is the responsibility of the wrongdoer to seek to rebut the plaintiffs testimony-

utilizing the preceding analysis, I concur in the holding of the majority that the trier of fact must consider evidence of damages from both the plaintiff and defendant and must measure the value of damages in the context of the plaintiffs burden to prove the value of the converted property.

      . The record does not establish conclusively that the property we refer to as “the goods” is in fact the same property in each transaction we describe herein. Since that fact is not at issue in this appeal, we assume without deciding that all transactions herein involved the same goods, for convenience in setting out the facts.

      . 526 A.2d 820, No. 782 Philadelphia 1986.


author: WIEAND, Judge:

text:
    528 A.2d 647
    COMMONWEALTH of Pennsylvania v. Lemuel REESE, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed June 23, 1987.

      Edward S. Bianarik, Jr., State College, for appellant.
    M. Eileen Tucker, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before WIEAND, BECK and WATKINS, JJ.
   WIEAND, Judge:

Lemuel Reese has filed an appeal from a judgment of sentence imposed for operating a motor vehicle while his driving privileges were under suspension. The substantive evidence of guilt is great, and Reese has not challenged its sufficiency. He contends, rather, that his conviction is procedurally defective.

On November 4, 1983, Reese was arrested and charged with driving while his operating privileges were under suspension. The charge was dismissed on procedural grounds by a district justice in Centre County because he believed that the arresting officer had violated Pa.R.Crim.P. 51(A)(1)(a) by failing to issue a citation to Reese at the time of arrest and by causing a citation to be filed thereafter with the issuing authority. The Commonwealth petitioned the court of common pleas and obtained a writ of certiorari directing the district justice to forward the record for review. Upon review, the common pleas court determined that Criminal Rule 51(A)(1)(a) had not been violated. The case, therefore, was remanded to the district justice to hear and determine the case on its merits. On June 29, 1984, Reese was found guilty of driving while his operating privileges were under suspension. He then appealed to the court of common pleas, where a hearing de novo was held. Following that hearing, Reese was again found guilty. Post-trial motions were filed nunc pro tunc, but they were denied and a judgment of sentence was imposed. Reese appealed. He argues (1) that the Commonwealth should not have been allowed to appeal from the order of the district justice dismissing the prosecution and (2) that the prosecution was brought in violation of Pa.R.Crim.P. 51(A)(1)(a). We find no merit in these arguments and affirm the judgment of sentence.

The decision of the district justice to dismiss the charge was based on procedural grounds and was entered prior to hearing. It did not pertain to the guilt or innocence of the accused. Therefore, the Commonwealth had a right of appeal. Commonwealth v. Cruz, 355 Pa.Super. 176, 178, 512 A.2d 1270, 1270 (1986), citing United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). How, then, was the Commonwealth to exercise this right of appeal?

The Judicial Code, at 42 Pa.C.S. § 934, provides that “[u]nless and until changed by general rule, the judges of the courts of common pleas ... shall have the power ... to issue writs of certiorari to the minor judiciary.” In the instant case, the trial court issued a writ of certiorari to the district justice in order to review the legal basis on which the district justice had caused the charges to be dismissed. This is the function of a writ of certiorari. See: Commonwealth v. Cook, 226 Pa.Super. 273, 308 A.2d 151 (1973).

Pa.R.Crim.P. 67(g) abolished writs of certiorari only as a means “of appealing from a summary conviction.” Where there has been a summary conviction, the exclusive means by which a defendant can obtain review by the court of common pleas is by appeal. In such cases, common pleas is mandated to hear the summary charge de novo. See: Pa.R.Crim.P. 67(f).

Where a summary charge has been dismissed on purely procedural grounds, there has been no conviction. In such event, an appeal by the Commonwealth and a hearing de novo before the common pleas court are inappropriate. An original hearing before the district justice has not been held, and there has been no conviction. By virtue of its specific language, Rule 67(g) has no application where there has been no conviction. We conclude, therefore, that the only feasible means for obtaining common pleas review of a district justice’s refusal to hear and decide a summary case on its merits is by certiorari. The trial court did not err when it granted the Commonwealth’s request for certiorari in the case sub judice.

Appellant was not entitled to have the charge of driving while under suspension dismissed because the arresting officer had failed to issue a citation to him simultaneously with his arrest. The pertinent rule is not Pa.R. Crim.P. 51(A)(1)(a), as appellant contends, but Pa.R.Crim.P. 51(A)(1)(b), which provides as follows:

(b) A citation (rather than a complaint) shall be filed with an issuing authority by a police officer when the offense charged is a violation of a traffic ordinance or is a summary offense under the Vehicle Code, when the police officer is not in uniform, or when it is not feasible for him to issue a citation to the defendant, or when evidence is discovered after the issuance of a citation which gives rise to additional summary charges against the defendant resulting from the same incident. The issuing authority shall thereupon issue a summons and not a warrant of arrest except as provided in Section B(3) of this Rule. (Emphasis added).

The state trooper who stopped appellant was able to use the computer in his vehicle to learn that appellant’s operating privileges were under suspension. However, in accordance with the cautionary response given by the computer, the trooper did not rely upon this information. Instead, he elected to delay a citation until he could obtain a certified copy of appellant’s official driving record. The citation was filed only after the trooper had obtained this record and had thereby assured himself that appellant’s driving privileges were actually under suspension. The conduct of the trooper was commendable; it did not violate either the letter or the intent of the Rules of Criminal Procedure. After he had acquired this essential information, he could properly cause a citation to be filed with the issuing authority. This was precisely the procedure contemplated by Pa.R.Crim.P. 51(A)(1)(b). See: Commonwealth v. Fischl, 363 Pa.Super. 173, 525 A.2d 775 (1987).

The evidence in this case demonstrated unequivocally that appellant had been driving a vehicle on a public highway while his license was under suspension. He is not entitled to have his conviction set aside on procedural grounds.

The judgment of sentence is affirmed.

      . This rule was rescinded on July 12, 1985, effective January 1, 1986.

      . Now Pa.R.Crim.P. 86(g).

      . Now Pa.R.Crim.P. 86(f).


author: JOHNSON, Judge:

text:
    528 A.2d 649
    Nicholas BABICH, Appellant, v. George KARSNAK, Joan Karsnak, his wife, Columbia Chase Corp., Columbia Fluidized Coal Energy, Inc., Columbia Chase Combustion Division, Edward L. Chase, Francis M. Chase, Surftex Company, Inc., and L. Sheldon Daly (Two Cases).
    Superior Court of Pennsylvania.
    Argued Feb. 3, 1987.
    Filed June 29, 1987.

      Lindsley W. Love, Pittsburgh, for appellant.
    David E. Tungate, Pittsburgh, for Columbia Chase Corp., Columbia Fluidized Coal Energy, Inc., Columbia Chase Combustion Div., Edward L. Chase, Francis M. Chase, Surftex Co., Inc., and L. Sheldon Daly, appellees.
    Before BROSKY, JOHNSON and MONTGOMERY, JJ.
   JOHNSON, Judge:

This case arises from an amended complaint filed by plaintiff-appellant Nicholas Babich against several corporate and individual defendants. The complaint sets forth claims of fraud, breach of contract and fiduciary duty, restitution, unjust enrichment and emotional distress against George Karsnak, Joan Karsnak and Surftex Company. It also alleges unjust enrichment and breach of fiduciary duty against appellees Columbia Chase Corporation (CCC), Columbia Chase Combustion Division (CCCD), Columbia Fluidized Coal Energy, Inc. (CFCE), Edward Chase, Francis Chase and Sheldon Daly. Following the deposition of Mr. Babich, the Columbia companies collectively moved for summary judgment, arguing that they owed no fiduciary duty to Babich and received no money or benefit from him. The trial court granted the motion on May 22, 1986 and dismissed the complaint as to the corporate appellees. The individual appellees, Edward Chase, Francis Chase and Sheldon Daly, filed preliminary objections challenging the trial court’s personal jurisdiction over them. The objections were sustained on June 11, 1986 and the complaint was dismissed as to the Chases and Daly. Nicholas Babich brings these consolidated appeals from the May 22 and June 11 orders.

Appellant’s first contention is that the trial court improperly granted summary judgment in the face of factual questions concerning (1) whether the defendant corporations owed him a fiduciary duty as the creditor of an insolvent corporation and (2) whether the defendant corporations were unjustly enriched at his expense. Rule 1035 of the Pennsylvania Rules of Civil Procedure provides that summary judgment may be properly rendered “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 judgment as a matter of law.” Pa.R.C.P. 1035(b).

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party, giving that party the benefit of all reasonable inferences. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt.

Pennsylvania Gas and Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 298, 467 A.2d 330, 333 (1983) (citations omitted).

In arguing that summary judgment was improper, appellant points solely to the allegations in his amended complaint as creating genuine issues of material fact. This appellant cannot do.

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Pa.R.C.P. 1035(d). See also Pennsylvania Gas & Water Co., supra, 320 Pa.Super. at 299, 467 A.2d at 333-334. The policy underlying the foregoing rule was explained by our Supreme Court in Phaff v. Gerner, 451 Pa. 146, 303 A.2d 826 (1983):

The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The ... doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule.

Id., 451 Pa. at 151, 303 A.2d at 829, quoting, Federal Rules of Civil Procedure, Rule 56, Notes of Advisory Committee on 1963 Amendment, 28 U.S.C.A. p. 416. As a result, we may rely on appellant’s amended complaint for uncontro-verted facts but must ignore the pleadings as to controverted facts when passing on the propriety of summary judgment. Phaff v. Gerner, supra, 451 Pa. at 151-152, 303 A.2d at 829.

Viewed in a light most favorable to appellant, the uncon-troverted allegations in the amended complaint, as well as appellant’s depositions and the various exhibits found in the record, reveal no genuine issue as to the following factual scenario. Appellant Nicholas Babich is the president and owner of Babich and Stotler, Inc. — an industrial contracting firm involved in technological research and development. Over the years, Babich and his firm have endeavored to develop a process by which coal, oil and water can be mixed into a cost-efficient liquid fuel. In the early part of 1980, Mr.' Babich became acquainted with George Karsnak through discussions concerning liquid fuel programs. In February of 1980, Karsnak persuaded appellant to visit a prototype coal/oil/water (C.O.W.) facility being operated in Bruin, Pennsylvania.

During his tour of the Bruin facility, Mr. Babich observed a C.O.W. integration process developed by Camille Barthi-aume, an engineer with CCC. Babich was “amazed” with the material produced by the integrator, proclaiming the process to be “the greatest thing that anybody encountered” and the “missing link” that had eluded him for years. Karsnak explained that CFCE would be further developing and marketing this C.O.W. mixture and that Surftex Company, which was owned by Karsnak, in turn owned half of the CFCE enterprise. CFCE was incorporated pursuant to a joint venture agreement between Surftex and CCC in which the former was to hold 49% of the stock and the latter was to hold 51%. Under the terms of the agreement, Surftex and CCC were each to pay their own expenses incidental to promoting the joint venture, with CFCE to reimburse these expenses if and when it became profitable. Babich read the joint venture agreement and understood its terms and conditions.

By May of 1980, Karsnak, Babich and two other individuals had formed Black Circle Energy Corporation (BCE) for the purpose of acquiring and supplying microparticle coal to the proposed CFCE operation. In order to provide BCE with operating capital, Babich injected personal funds and co-signed on loans to BCE. Babich was aware that some of these funds were used to pay for Surftex expenses, and when BCE eventually folded, Babich gave money directly to Surftex. In return for these substantial investments in excess of $100,000, Karsnak pledged 10 shares of stock representing a 50% ownership in Surftex company. Kars-nak also promised to make Babich vice president of Surftex. It is clear that under the foregoing arrangements, Babich was to own 50% of Surftex, which in turn held 49% of CFCE. Neither Karsnak nor Babich personally owned stock in the CFCE corporation.

Throughout the period outlined in the amended complaint, the funds invested by Mr. Babich went directly to Surftex or BCE either in the form of advancements to those companies or in the form of cancelling their debts. The amended complaint also alleges that Babich injected additional capital into the prototype plant at Bruin, Pennsylvania. In his deposition, however, Babich conceded that Catch-Forty Systems, as owner of the Bruin facility, is solely answerable for these investments.

Believing himself to be a 50% owner and vice president of the Surftex Company, Babich offered his money and services in a desire to advance Surftex’s interests in what he perceived to be a viable C.O.W. venture. Karsnak, however, never delivered the promised stock to Mr. Babich. Things turned sour around December of 1981 when Kars-nak received $250,000 from Westinghouse Corporation pursuant to a stock option contract between Westinghouse and Surftex. Babich looked to this $250,000 for reimbursement of his investments, but despite Karsnak’s verbal assurances, Babich was never reimbursed. Shortly thereafter, a discrepancy was discovered in the issuance of Surftex stock. Westinghouse lost interest in its option to purchase Surftex Company, and Karsnak lost credibility with CCC. Ultimately, CFCE was dissolved.

Based upon this factual background, it is clear that the Columbia companies were entitled to judgment as a matter of law. Appellant was not a shareholder of CCC or CFCE, nor was there any evidence of a relationship between appellant and these companies which would give rise to a fiduciary duty. While appellant contends that CCC owed him a fiduciary duty by virtue of the principles ennunciated in Brown v. Presbyterian Ministers Fund, 484 F.2d 998 (3d Cir.1973), his reliance on Brown is clearly misplaced. There, the Third Circuit held that an officer of an insolvent corporation, acting with knowledge of the corporation’s insolvency, may not appropriate corporate opportunities and assets to the detriment of the corporation’s creditors. Id. at 1005. The Court stated that “[a]s an officer, director and principle stockholder of an insolvent corporation (as well as being its mind, hands and pockets), Nathan Hoffman was duty bound to act with adequate fidelity to both creditors and stockholders.” Brown, supra at 1005. Here, although CCC was a principle stockholder of CFCE corporation, there is absolutely nothing to indicate that appellant was a shareholder or creditor of CFCE.

Appellant’s contention that the Columbia companies were unjustly enriched at his expense is similarly belied by the factual record. Pursuant to the joint venture agreement, Surftex and CCC were to bear their own costs in promoting the CFCE venture. Understanding the terms of this agreement, Babich advanced funds to BCE and Surftex in exchange for Karsnak’s promise of Surftex stock. Appellant contributed his money and services in order to advance his own interests in Surftex. If Babich conferred any benefit upon CCC or CFCE, it was incidental to pursuing his own. While it appears that appellant may have meritorious claims against George Karsnak and Surftex Company, the Columbia companies are simply not answerable for appellant’s misfortunes. To prevail on his claim of unjust enrichment, appellant must be able to show that CCC or CFCE “wrongly secured or passively received a benefit that would be unconscionable to retain.” Martin v. Little, Brown and Co., 304 Pa.Super. 424, 431, 450 A.2d 984, 988 (1982). We find no genuine issue as to a material fact which would allow appellant to make that showing. With respect to CCCD, it is an unincorporated subdivision of CCC, not a separate legal entity capable of being sued. See In re Sugar Industry Antitrust Litigation, 579 F.2d 13,18 (3d Cir.1978); Western Beef, Inc. v. Compton Investment Co., 611 F.2d 587, 591 (5th Cir.1980). Accordingly, CCCD was also entitled to judgment.

Appellant’s second and final contention is that the trial court erred in dismissing the complaint as to Edward Chase, Francis Chase and Sheldon Daly for lack of personal jurisdiction. Under the Pennsylvania “Long Arm Statute,” 42 Pa.C.S. § 5322(b), Pennsylvania courts may exercise personal jurisdiction to the fullest extent permissible under the due process clause of the United States Constitution. As a result, federal cases are highly instructive to our inquiry.

It is undisputed that the Chases and Daly are not residents of Pennsylvania, nor were they physically present within the Commonwealth at the time process was served. It is also beyond dispute that any contacts these individuals had with Pennsylvania was in their corporate capacity on behalf of CCC. Federal district courts sitting in Pennsylvania have professed that the issue of personal jurisdiction over such individuals is a somewhat confusing area of law which has divided courts in this circuit for at least a decade. Rittenhouse and Lee v. Dollars and Sense, Inc., (E.D.Pa. 1987), (Slip Opinion filed April 15, 1986) [Available on WESTLAW-DCT data base]. The dispute has focused on the due process analysis of International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny, grappling with the question of whether non-resident officers acting in their corporate capacity should “reasonably anticipate being haled into court” as individual defendants, and whether they “purposefully availed [themselves] of the privilege of conducting activities” within Pennsylvania. See, World Wide Volkswagen Corp v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985), quoting, Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958).

Generally speaking, three approaches have developed to the problem presently before us. See, e.g., Rittenhouse and Lee v. Dollars and Sense, supra. The approach espoused by appellant is set forth in Donner v. Tams-Witmark Music Library, 480 F.Supp. 1229 (E.D.Pa.1979), wherein the court concluded that acts committed by individuals in their corporate capacity may be considered in assessing the constitutionality of jurisdiction over their person. The court reasoned that corporate officers should not be permitted to avoid personal jurisdiction with the corporate shield if they are personally engaged in activity which would subject them to individual liability. The Donner theory of jurisdiction is based on the rule of joint and several liability, which holds corporate officers personally liable for corporate torts if they participated in the tortious conduct.

Subsequent district court decisions have criticized the Donner theory, suggesting that it is unconstitutional to force corporate officers to defend suits in their individual capacities based upon their corporate activities within the forum. See Rittenhouse and Lee v. Dollars and Sense, supra. The weight of authority seems to adopt a bright line approach barring any consideration of an officer’s corporate contacts for the purpose of asserting personal jurisdiction over him. See, e.g., Simkins Corp. v. Gourmet Resources Int’l., 601 F.Supp. 1336 (E.D.Pa.1985) and cases cited therein.

The third approach is a flexible due process analysis which would allow personal jurisdiction to be based upon an individual’s corporate contacts under some circumstances. One such example might be an officer who personally engages in affirmative and egregious activity on behalf of the corporation. See Moran v. Metropolitan District Council, 640 F.Supp. 430 (E.D.Pa.1986).

We need not determine, however, which of the foregoing paths to follow. Assuming arguendo that the Donner analysis urged by appellant should be applied, appellant has failed to assert an adequate basis for the exercise of personal jurisdiction. The cornerstone of the Donner approach is that “corporate officers are personally liable for alleged tortious conduct of the corporation if they personally took part in the commission of the tort, or if they specifically directed other officers, agents or employees of the corporation to commit the act.” Donner, supra, 480 F.Supp. at 1233. Appellant has utterly failed to establish such personal involvement on the part of Edward Chase, Francis Chase or Sheldon Daly. We find nothing in the facts of record, nor anything in the amended complaint, to support the exercise of personal jurisdiction over these individuals. “When, as here, a defendant properly raises an objection on the ground of a lack of in personam jurisdiction, the plaintiff has the burden of proving that the exercise of jurisdiction is permissible.” Temtex Products, Inc. v. Kramer, 330 Pa.Super. 183,190, 479 A.2d 500, 503 (1984). Appellant has failed to meet that burden.

Orders affirmed.


author: DEL SOLE, Judge:

text:
    528 A.2d 654
    MELLON BANK (EAST) NATIONAL ASSOCIATION, Appellant v. PENNSYLVANIA RESTAURANT OF A.B.E., INC., and James L. Long and Marilyn J. Long his wife and Daniel Ruotolo and Beverly M. Ruotolo.
    Superior Court of Pennsylvania.
    Argued April 30, 1987.
    Filed July 10, 1987.

      Richard H. Martin, Blue Bell, for appellant.
    Before OLSZEWSKI, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order which established that the fair market value of certain premise was $300,000.00. The trial court order was issued following a hearing and in response to Appellant’s petition pursuant to the Deficiency Judgment Act, 42 Pa.C.S. § 8103 et seq.

Three issues are raised by Appellant on appeal. We are asked to consider whether there is sufficient evidence to support the trial court’ valuation of the premises, whether the court erred in admitting the opinion testimony of real estate broker, John J. Breedy, and whether the court erred in restricting the cross-examination of a party-witness. Because after reviewing the record in light of these questions we perceive no error, we affirm the trial court order.

At the hearing held to receive evidence relative to the fair marked value of the subject premises, Appellant presented one witness, an appraisor, Mr. Moore. Appellees also had an appraisor, Mr. Breedy, testify in addition to Mrs. McGough, the Director of Finance of the Allentown Economic Development Corporation and James Long, a named respondent in the petition. The subject property consisted of real estate upon which was built a structure used in the past as a restaurant, and a parking lot. Mr. Moore, the appraisor testifying on behalf of Appellant, valued the property at $225,000.00, while Mr. Breedy opined that the fair market value was $300,000.00. Appellant maintains the court erred in accepting Mr. Breedy’s valuation since his appraisal was made more remote in time to the hearing than was Mr. Moore’s and because he was not as experienced in this area of appraisals as was Mr. Moore.

The weight to be given to expert testimony on valuation of land is for the trier of fact. Tinicum Real Estate Holding Corp. v. Commonwealth of Pennsylvania Dept. of Transportation, 480 Pa. 220, 389 A.2d 1034 (1978). It is within the province of the trier of fact to weigh the credibility of valuation witnesses’ testimony and to determine the fair value of the land. Redevelopment Authority of City of Philadelphia v. Cohen, 31 Pa.Cmwlth. 173, 375 A.2d 881 (1977). Further, the Superior Court must accept findings of the trial court with respect to credibility of witnesses. Kembel v. Schlegel, 329 Pa.Super. 159, 478 A.2d 11 (1984).

The trial court herein clearly relied on the testimony of Mr. Breedy in reaching its conclusion as to the value of the premises. The court recognized that Mr. Breedy’s appraisal was made three years earlier for the Allentown Economic Development Corporation and noted that Mr. Breedy’s opinion as to the value of the property remained unchanged. The court remarked that Mr. Moore’s opinion was based on a more recent appraisal, July of 1986, but also noted that the subject property and parking areas far exceeded the lot size and capacity of the comparable sales upon which Mr. Moore relied in rendering his market data approach appraisal. The court also found noteworthy the fact that unlike Mr. Moore’s appraisal, Mr. Breedy’s appraisal was not made for the benefit of one of the parties. The trial court therefore judged Mr. Breedy’s appraisal to be more reliable since it had an “arm’s length nature”.

We find no fault with the trial court’s acceptance of Mr. Breedy’s opinion as to valuation, and accordingly, we find there is sufficient evidence to support the trial court’s ruling.

In a related vein, Appellant argues that the court should not have admitted the testimony of Mr. Breedy since his appraisal of the property was more than three years old. Mr. Breedy’s qualifications as an expert were clearly established at the hearing and the fact he had not appraised the instant property in more than three years goes to the weight and credibility of his testimony. These factors, as we have said, were within the province of the trial judge sitting as fact finder and the court’s finding will not be disturbed on appeal.

Appellant’s final claim concerns the trial court’s ruling restricting Appellant’s cross-examination of Mr. Long, a party-witness. Appellant had called as its only witness Mr. Moore. Appellees then put forth their evidence which included the testimony of Mr. Long who sought to establish that the nature of the premises had remained unchanged in the past few years. When Appellant sought to cross-examine Mr. Long about a recent offer to purchase the property, Appellees objected. The court ruled that the sought testimony would be relevant, but sustained Appellees’ objection because Appellant was attempting to cross-examine Mr. Long on matters not brought forth in the witness’ direct examination.

Appellant asserts that it was error for the trial judge to restrict his cross-examination of Mr. Long since Mr. Long was a party in the case. Citing Greenfield v. City of Philadelphia, 282 Pa. 344, 127 A. 768 (1925). Appellant relies on the general rule that the restriction of cross-examination of a witness to matters developed during direct examination is inapplicable when the witness is also a party to the case. In Greenfield v. City of Philadelphia, Id. the defendant sought to cross-examine plaintiff on matters not brought forth in the witness’ direct examination. Under these circumstances a more open cross-examination was permitted. The court reasoned:

To say that a party to litigation may be cross-examined as to all relevant matters follows as a logical conclusion from the fact that if a party has not been called as a witness in his own behalf he may be put upon the stand by his opponent and be compelled to testify as under cross-examination.

Id., 282 Pa. at 349, 350, 127 A. 768.

After examining Appellant’s claim in light of the record, we find we do not need to address the question of whether the cross-examination of Mr. Long, a party-witness, was unduly restricted. The testimony Appellant sought to elicit from Mr. Long would have been inadmissible to establish fair market value of the property and, therefore, it was properly excluded. See: Commonwealth v. Shaw, 494 Pa. 364, 431 A.2d 897 (1981) (an appellate court may affirm a decision of the trial court if the result is correct on any ground without regard to the grounds upon which the trial court itself relied.)

In the instant case, Appellant wished to present evidence of an offer to purchase the property in an attempt to show that the fair market value was not as high as Appellees’ witness, Mr. Breedy, had opined. Counsel for Appellant argued to the court: “If there is a purchaser there, then I believe that your Honor can take notice as to whether that offer is equated to the fair market value or has some relevance to determine the fair market value.” N.T. 10-86 at 64.

An offer to purchase particular premises may have some evidentiary value at trial, such as to show that the property is desirable and marketable. Kelly v. Redevelopment Authority of Allegheny County, 407 Pa. 415, 180 A.2d 39 (1962), Union National Bank of Pittsburgh v. Crump, 349 Pa. 339, 37 A.2d 733 (1944). However the amount of the offer to buy cannot be used to show the value of property at issue. Stine v. Commonwealth of Pennsylvania, Dept. of Transportation, 26 Pa.Commw.Ct. 292, 364 A.2d 745 (1976); Commonwealth of Pennsylvania, Dept. of Transportation v. Lutz, 14 Pa.Commw.Ct. 448, 322 A.2d 800 (1974).

Appellant clearly was not intending to show that the property was “desirable” and “marketable” through this line of questioning. It was Appellant’s position that the property was worth less than the $300,000.00 figure rendered by Appellees’ witness. Appellant sought to have the offer admitted through the testimony of Mr. Long in order to establish evidence of the fair market value of the premises. This line of questioning was properly not permitted. In a situation such as this involving a distress sale, an offer to purchase the property is not appropriate to a determination of the actual value of the property. It is for this reason, we find no error in the trial court’s action.

Order affirmed.


author: BROSKY, Judge:

text:
    528 A.2d 657
    Jill R. COHEN, Esquire v. Gustine J. PELAGATTI, Esquire and National Auto Brokers Corporation (“NABCOR”) and Frank Maiorana. Appeal of NATIONAL AUTO BROKERS CORPORATION (“NABCOR”) and Frank Maiorana.
    Superior Court of Pennsylvania.
    Argued March 24, 1987.
    Filed July 13, 1987.

      Carl Person, Philadelphia, for appellants.

      Jonathan Wheeler, Philadelphia, for appellee.
    Before BROSKY, BECK and TAMILIA, JJ.
   BROSKY, Judge:

This is an appeal from an order sustaining preliminary objections, in the nature of a demurrer, to appellants’ counterclaims, and dismissing said counterclaims with prejudice. Appellants’ sole contention on appeal is that the trial court erred in dismissing their counterclaims, arguing that a civil conspiracy case cannot be dismissed on the basis of demurrer, even where damages claimed may exceed damages ultimately recoverable. Upon review of the record below, we now affirm.

The current litigation involves a rather complex factual and procedural history. The relevant portion of that history is as follows: On August 19, 1983, appellee, Jill R. Cohen, Esquire, filed a complaint in trespass against appellants, alleging harassment, defamation, invasion of privacy, and intentional infliction of emotional distress in connection with what has come to be known as the NABCOR (“National Auto Brokers Corporation”) litigation. Appellee had served as the judicial law clerk to the Honorable Bernard Snyder, during the NABCOR trial, in which a multi-million dollar verdict had been handed down in favor of the NAB-COR plaintiffs. In an unrelated matter, the Edgehill case, appellee was called to testify pursuant to a motion for the recusal of Judge Snyder from the Edgehill trial. Appellee was prepared to testify that Judge Snyder and plaintiffs’ counsel in the NABCOR case, Gustine Pelagatti, Esquire, had colluded improperly in the NABCOR matter. An offer of proof was made as to the substance of appellee’s testimony. The testimony was disallowed, but the substance of the offer of proof became publicly known through an article in the Philadelphia Inquirer.

Following publication of the newspaper article, Gregory Harvey, Esquire, counsel for defendant Philadelphia National Bank in the NABCOR case, suggested to Pelagatti that he intended to use appellee’s testimony to challenge the NABCOR verdict. Soon thereafter, Pelagatti attempted to dissuade Harvey by relating that he had information that “a Jill Cohen” had been a mental patient at Fairmount State Hospital in May, 1981, prior to appellee’s clerkship with Judge Snyder. Pelagatti then began to issue ex parte subpoenas for appellee’s educational records. The Honorable Harry Takiff issued an order and opinion enjoining Pelagatti from this course of conduct. In the meantime, appellee filed the current suit against Pelagatti and the appellants in this matter, NABCOR and Frank Maiorana. Appellants answered the complaint, and counterclaimed, alleging a civil conspiracy involving appellee to deprive the NABCOR plaintiffs of their verdict. Appellee filed preliminary objections to appellants’ counterclaims, arguing that the claims were premature prior to actual deprivation of the verdict. On May 7,1986, the Honorable Joseph T. LaBrum, specially presiding by assignment of the Chief Justice, sustained appellee’s preliminary objections, and dismissed the counterclaims, with prejudice, as not ripe. This timely appeal followed.

A civil conspiracy becomes actionable when some overt act is done in pursuance of the common purpose or design held by the conspirators, and actual legal damage results. Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498, 506 (1974). It is the damage, and not the agreement itself, that is the gravamen of a civil conspiracy suit, and permits a recovery. Daly v. Bright, 345 F.Supp. 11, 14 (E.D.Pa. 1972). As such, the existence of identifiable damages, even if nominal, must be established by the facts alleged in support of the cause of action; it is the fact of damages, rather than the amount, that is the key inquiry. See Baker, supra; also see Mariscotti v. Tinari, 335 Pa.Super. 599, 485 A.2d 56, 57 (1984). Where the harm alleged is either speculative, or involves a threat of future harm only, the fact of damages is uncertain, and does not suffice to create a cause of action. Id.

In the case sub judice, appellants’ counterclaims alleged a civil conspiracy to deprive appellants of their verdict in the NABCOR case. However, at the time these counterclaims were filed, the post-trial motions in NABCOR had yet to be argued, let alone decided; moreover, the matter is still pending, as there is no final judgment. Hence, appellants’ counterclaims were not ripe at the time of filing, but set forth a cause of action for speculative or future harm only. A complaint, and likewise, a counterclaim, for civil conspiracy must set forth all of the elements, including actual damages, to withstand a challenge to its legal sufficiency. Baker, supra. As such, the trial court acted correctly in finding merit to appellee’s demurrer. Furthermore, where a claim’s deficiencies cannot be cured by amendment, dismissal of the claim, with prejudice, is appropriate. Spain v. Vicente, 315 Pa.Super. 135, 142-143, 461 A.2d 833, 837 (1983). The instant counterclaims could not be cured by amendment, as amendment could not make them ripe when appellants had yet to be deprived of the NABCOR verdict through final judgment. As such, the trial court’s dismissal of the counterclaims, with prejudice, was proper.

Appellants rely upon the case of Commonwealth v. Musser Forest, Inc., 394 Pa. 205, 146 A.2d 714 (1958), contending that Musser forbids the dismissal of a civil conspiracy claim on the basis of demurrer where at least nominal damages have been established. However, appellants’ reliance upon Musser is misplaced. Musser involved a civil conspiracy action to recover damages for the wrongful conversion of trees. The Musser court concluded that a prima facie cause of action had been alleged, as the Commonwealth had already sustained actual damage: the trees had already been converted and sold. It was only the proper measure of damages that was uncertain at the time the Commonwealth filed suit. This is clearly distinguishable from the instant matter, where the court found that appellants’ counterclaims were premised upon damages, nominal or otherwise, which appellants had yet to sustain. It was not the measure of damages alleged with which Judge LaBrum found fault; it was the lack of any damages as of the date of filing. Musser, hence, is inapposite.

Order affirmed.

      . See Cohen v. Pelagatti, 342 Pa.Super. 626, 493 A.2d 767 (1985).

      . In the meantime, a court en banc has heard oral argument on PNB’s post-trial exceptions. The court en banc did not include Judge Snyder, who was removed from the bench in 1985. The court en banc has granted a new trial on all issues. See NABCOR v. PNB, 14 Phila. 651 (1986).