author: HUDOCK, Judge:

text:
    582 A.2d 353
    Anita M. HIMES, Appellant, v. NEW ENTERPRISE STONE & LIME COMPANY, INC., a Corporation; Raymond M. Eger and Nancy Eger; Victor Lingenfelter and Caroline Lingenfelter; Ernest E. Diehl and Catherine Diehl; Stephen J. Toth and Deborah Toth; Raymond Black; Madison F. Yohn and Larry M. Himes and Sheila D. Himes, Appellees, v. Logan E.C. STIFFLER, Sherry A. Stiffler, William C. Wright and Ramona B. Kay, Appellees. Jeremy MOYER, a Minor, by Sharon M. MOYER, His Guardian, and Sharon M. Moyer, Appellants, v. NEW ENTERPRISE STONE & LIME COMPANY, INC., a Corporation; Raymond M. Eger and Nancy Eger; Victor Lingenfelter and Caroline Lingenfelter; Ernest E. Diehl and Catherine Diehl; Stephen J. Toth and Deborah Toth; Raymond Black; Madison F. Yohn; and Larry M. Himes and Sheila D. Himes, Appellees, v. Sheila D. HIMES; Sharon M. Moyer; Logan E.C. Stiffler; Sherry A. Stiffler; William C. Wright; and Ramona B. Kay, Appellees.
    Superior Court of Pennsylvania.
    Argued June 6, 1990.
    Filed Sept. 28, 1990.
    Reargument Denied Nov. 9, 1990.

      J. Bradley Kearns, Pittsburgh, for appellants.
    Alan R. Krier, Altoona, for New Enterprise, appellee.
    R. Thomas Strayer, Johnstown, for Eger, appellees.
    Gerald M. Nelson, Hollidaysburg, for Lingenfelter, appellees.
    William J. Stokan, Altoona, for Black, appellee.
    Warren D. Ferry, Pittsburgh, for Yohn, appellee.
    Louis C. Long, Pittsburgh, for Himes, appellees.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   HUDOCK, Judge:

These appeals are from final orders of the Court of Common Pleas of Blair County granting summary judgment in favor of all the appellees in two separate personal injury cases. Because these cases involve substantially similar parties and issues, the merits of both appeals will be considered together. We affirm.

The two appeals arise from two separate incidents which occurred on a privately-owned bridge which provided the only means of access from Legislative Route 07049 to the individual appellees', (homeowners), residences. The bridge in question was allegedly designed and constructed by New Enterprise Stone & Lime Co., (New Enterprise), after the original steel-truss bridge collapsed in 1979. The bridge abutments, however, remained intact. Raymond Eger, on behalf of himself and the other residents of the area, sought to replace the cartway of the bridge with prestressed concrete beams. To this end, Eger entered into a contract with New Enterprise which provided that the latter would supply and install two pre-stressed concrete beams, with diaphragms, on the existing abutments. In its proposal, New Enterprise suggested the placement of a railing, and obtained a quote from a supplier of this product for installation on the bridge deck. This recommendation was rejected by the individual appellees due to the cost involved. While wheelstop pins were subsequently put in place, the wheelstops were never installed. Instead, unattached wooden planks from the prior bridge floor were placed along the inside of the pins so as to act as a wheelstop.

Briefly, the facts surrounding the appeal in which Anita Himes is appellant, (Himes appeal), are as follows: On June 28, 1987, Ms. Himes went to her brother’s residence in order to repair and test drive her motorcycle which had been stored there. She crossed the bridge in question, as she had at least one hundred times before, (Deposition Testimony of Anita M. Himes, p. 27), to get to her brother’s home. Ms. Himes made a test drive of her motorcycle from her brother’s residence, went across the bridge, then turned around and crossed back over the bridge. When she initially crossed the bridge, she noticed one of the planks that had been placed along the side of the bridge was out of place, protruding toward the center of the bridge deck. In her trip back across the bridge, Ms. Himes struck this plank, causing her to lose control of her motorcycle and fall over the side of the bridge to the creek eight to ten feet below.

A brief factual summary of the appeal in which Jeremy and Sharon Moyer are the appellants, (Moyer appeal), is as follows: On October 23, 1987, Jeremy Moyer, then six-years-old, alighted from his schoolbus near the highway to which the bridge in question provided access. A schoolmate of Jeremy removed a roll of tape from Jeremy’s pocket and threw it into the creek beneath the bridge. Jeremy proceeded to the residence of appellees Richard and Sheila Himes. Jeremy informed Sheila, who was baby-sitting his younger brother at the time, of what occurred regarding the tape. Although Sheila warned Jeremy not to attempt to retrieve the tape until the older children arrived home from school, Jeremy went down to the bridge to look for the tape. While standing near the edge of the bridge and looking down into the water, Jeremy lost his balance and fell into the creek below.

Appellants in both cases brought actions in trespass against the owners, past and present, of the residences located across the bridge and New Enterprise, the alleged seller of the bridge in question. The complaints alleged that the individual appellees negligently caused the appellants’ injuries by failing to maintain the bridge and install side rails or similar barriers upon it. A cause of action under Section 402A of the Restatement (Second) of Torts was alleged against New Enterprise on the ground that it sold a dangerously defective product, i.e., a bridge without railings or similar barriers. The appellees, in both cases, filed separate motions for summary judgment, which were granted by the trial court, and the appellants’ suits were dismissed. The trial court held that, as a matter of law, the individual appellees were under no duty to maintain the bridge by installing side rails or similar barriers, that the conduct of both appellants constituted assumption of the risk of harm, and that the homeowners did not violate any duty owed to appellants, who were both gratuitous licensees upon the land, at the time of their respective accidents. Having reached these conclusions, the trial court found it unnecessary to examine the merits of the strict liability claim against New Enterprise.

Both appellants argue that the trial court erred as a matter of law by granting summary judgment to each appellee, and raise several identical issues on appeal. Pennsylvania Rule of Civil Procedure 1035(b) provides that summary judgment shall be rendered if the “pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law.” Dume v. Elkcom Co., 368 Pa.Super. 280, 533 A.2d 1063 (1987). When reviewing a trial court’s imposition of summary judgment, this court has stated:

To determine the absence of a genuine issue of fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary Judgement is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (Citations omitted.)

Using these standards to guide us, we are thus required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law or a manifest abuse of discretion. Travaglia v. C.H. Schwertner & Son, 391 Pa.Super. 61, 570 A.2d 513 (1989). Thus, we must determine whether the trial court properly concluded that no genuine issue of material fact existed and whether both appellants’ claims were barred as a matter of law.

Appellants first claim that the trial court erred in finding that the homeowners did not owe a duty to them. All parties to these two cases agree that appellants’ status while on the bridge was that of a gratuitous licensee. After careful review, we agree that this was a proper characterization. The duty owed a licensee in Pennsylvania was established by our Supreme Court in Sharp v. Luksa, 440 Pa. 125, 269 A.2d 659 (1970) when it adopted the language of Section 342 of the Restatement (Second) of Torts. Section 342 provides:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land, if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

Id., 440 Pa. at 129, 269 A.2d at 661.

The conjunctive wording of the above-cited section of the Restatement makes it clear that a possessor of land is subject to liability only if all three criteria are present. The trial court concluded that subsection (c) was not present in either of these cases. We agree.

Applying the Restatement criteria to the Himes appeal, the deposition of Ms. Himes clearly indicates that she was very familiar with the bridge’s condition, having traversed it over a hundred times. She also testified that she was well aware of the position of the specific plank which she avoided successfully when first crossing the bridge on her motorcycle. These admissions by Ms. Himes render this case indistinguishable from the facts and holding in Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). In Carrender, a Mrs. Carrender drove her car to the defendant’s chiropractic clinic. She was quite familiar with the parking lot for the clinic because she had been receiving treatment there for approximately seven years. Although several convenient parking spaces were available that were free of ice and snow, Mrs. Carrender chose to park in a spot where a sheet of smooth ice covered the area between her car and an adjacent vehicle. She again observed the ice patch while exiting her car, but was able to traverse it by holding on to the car next to her. Upon her return from the clinic, Mrs. Carrender again encountered the icy condition. This time, however, as she stood on the ice and searched for her keys, she slipped and fell and fractured her hip.

The Pennsylvania Supreme Court, holding that the defendant clinic did not owe a duty to prevent harm to Mrs. Carrender from a known and obvious danger, reversed this Court and directed the trial court to enter a judgment n.o.v. The plaintiff in Carrender was a business invitee of the defendant and was, therefore, owed a duty to be protected from foreseeable harm. Id. This duty represents a higher standard of care than that owed Ms. Himes as a licensee in the present case. Nevertheless, as in Carrender, a duty on the part of the possessor of the land is not present in the present case because Ms. Himes knew or had reason to know of the condition of the bridge and the risk involved in traversing it.

Applying these same standards to the Moyer appeal, the trial court once again concluded correctly that the criteria of subsection (c) of Section 342 of the Restatement (Second) of Torts was not present. While this Court is aware that Jeremy was at a youthful age when the accident occurred and it may be more difficult for him to know the risk involved in many things, Pennsylvania courts have long since recognized that:

[N]o danger is more commonly realized or risk appreciated, even by children, than that of falling. Consciousness of the force of gravity results almost from animal instinct. Certainly, a normal child merely seven years of age—indeed any child old enough to be a child at large— knows that if it steps or slips from a tree, a fence, or other elevated structure it will fall to the ground and be hurt. It may be that some children, while realizing the danger will disregard it out of the spirit of bravado, or because, to use the language of the Restatement, “of immature recklessness,” but the possessor of land is not to be visited with responsibility for accidents due this trait of children of the more venturesome type.”

McHugh v. Reading Company, 346 Pa. 266, 269, 30 A.2d 122, 123 (1943).

The deposition of Jeremy Moyer amply demonstrates that he was aware of the fact that the bridge had no guardrails and of the danger posed by such a condition. Jeremy further testified that he had traversed the bridge many times without assistance. He also testified that he had been specifically warned that it was possible to fall off the bridge. Finally, Jeremy testified that it was of his own volition that he was peering over the side and lost his balance. Thus, we conclude that Jeremy was both aware of the condition of the bridge and the risk involved in encountering it, thereby precluding him from meeting the requirements of subsection (c) of Section 342 of the Restatement (Second) of Torts.

Appellants next claim that the trial court erred in deciding, as a matter of law, that the homeowners were under no duty to maintain the bridge. In support of this assertion, appellants rely on a clause within a right-of-way agreement that the parties thereto shall share equally “all costs of maintenance, reconstruction, repairs and renewal of the said driveway and of the bridge across the creek to the highway.” This agreement creates a duty upon each homeowner or their successors to share an equal portion of the costs incurred in maintaining the bridge. This financial duty owed to one another does not impose upon the homeowners the type of duty to third parties which the appellants claim is created. As previously discussed, the duty owed to each appellant is determined by their individual status as gratuitous licensees.

Although questions as to whether the danger arising from a condition on a possessor’s land, and the risk attendant thereto, were known are usually questions of fact for the jury, this question may be decided by the court where reasonable minds could not differ as to the conclusion. Carrender v. Fitterer, supra. In both cases now under consideration, the appellants’ own testimony compels the conclusion, as a matter of law, that the homeowners were under no duty to provide further safety features for the bridge or to warn of its present condition. Having found no such duty to exist, we need not reach the claims of error regarding assumption of the risk.

Appellants’ final claim is that the trial court erred in determining, as a matter of law, that appellee New Enterprise owed no duty to them under Section 402A of the Restatement (Second) of Torts. In support of their claim, appellants assert that New Enterprise was a seller of a substantially defective product, namely the bridge in question. New Enterprise maintains that it sold only the two concrete beams to the individual appellees and that it is not liable for the failure of the individual appellees to accept their recommendation of side rails for the bridge. Moreover, New Enterprise maintains that the railings they recommended for installation on the bridge were not an item manufactured or sold by them. Thus, New Enterprise claims that the appellants have misidentified the product which was allegedly defective. We agree. A careful review of the record discloses undisputed evidence that the bridge design recommended by New Enterprise was not to be completed solely by that corporation and that the concrete beams supplied by New Enterprise were merely one component of the entire bridge. Appellants have not alleged any defect as to the beams supplied by New Enterprise. Rather, their claim is that the bridge as constructed was a defective product.

The fact that New Enterprise designed the bridge to include railings does not, as suggested by appellants, subject them to liability irrespective of the homeowners’ decision to install them. In Wenrick v. Schloeman-Siemag Aktienge-Sellschaft, 523 Pa. 1, 564 A.2d 1244 (1989), Mr. Wenrick was crushed by an extrusion press while he was making repairs to the machine. Wenrick’s wife brought an action in strict liability, negligence and breach of warranty against SMS AG, the manufacturer and designer of the press, and Eaton Corp., the successor to Cutler-Hammer, Inc., the supplier of the electrical control system of the press. Mrs. Wenrick’s theory at trial was that the press was inadvertently triggered by a workman descending a pair of steps into the service pit beneath the press. The defect identified by experts for both parties was indeed an unguarded condition of an electrical switch near the pair of steps in question. The jury verdict was in favor of Wenrick as to the strict liability and negligence counts against SMS AG and Eaton Corp. Eaton Corp. filed post-trial motions, including a motion for judgment n.o.v., which were denied by the trial court. On appeal, this Court reversed the order denying Eaton Corp.’s judgment n.o.v. as to both the strict liability and negligence counts. Upon further appeal, the Pennsylvania Supreme Court upheld this Court’s ruling.

In upholding the reversal of the trial court regarding its decision on the motion for judgment n.o.v., our Supreme Court recognized that the mere fact Eaton Corp.’s corporate predecessor designed the electrical system did not subject it to liability:

Specifically, there is no evidence that Cutler-Hammer, in designing the electrical control system, had any indication of the placement of the service pit located under the press or of the steps into the pit. Since, as the plaintiff’s expert testified, the defect consisted of an unguarded switch located above these access steps, and since the placement of the pit, the steps, the rails on which the switch was located, and the switch itself were all decisions made by SMS AG in manufacturing the press, and none were dictated by the electrical design supplied by Cutler-Hammer, the evidence is not sufficient to sustain the strict liability claim against Eaton, Cutler-Hammer’s successor.

Id., 523 Pa. at 6, 564 A.2d at 1246-47.

In the present cases, the defect alleged was the failure to install guardrails on the side of the bridge. The undisputed evidence in the record clearly reflects that the placement of these rails was not dictated by New Enterprise. The decision regarding their placement was a determination to be made by the individual appellees. Thus, a genuine issue of material fact did not exist and the trial court did not abuse its discretion in granting New Enterprise's motion for summary judgment on the strict liability claim.

The orders at No. 01565 Pittsburgh 1989 and No. 00042 Pittsburgh 1989 are affirmed.

      . Ms. Himes’ brother, Larry M. Himes, and his wife, Sheila D. Himes, are two of the appellees in both appeals.

      . Even though we would be inclined to agree that both appellants assumed the risk of their injuries, the trial court’s decision to discuss the merits of this claim in each case was unnecessary once no duty was found to exist. See Carrender v. Fitterer, 503 Pa. at 187, 469 A.2d at 125.


source: Caselaw Access Project

author: BROSKY, Judge.

license: Public Domain

text:
    582 A.2d 359
    David K. LONG and Dixie M. Long, Appellants, v. Craig BROWN and Rebecca Brown.
    Superior Court of Pennsylvania.
    Submitted April 30, 1990.
    Filed Sept. 26, 1990.
    Reargument Denied Nov. 19, 1990.

      Karen L. Steele, Altoona, for appellants.
    Clyde 0. Black, II, Hollidaysburg, for appellees.
    Before ROWLEY, TAMILIA, and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal from a final decree in an equitable proceeding to quiet title or compel specific performance of an alleged contract to sell real estate.

Appellants raise several issues, among them is whether a deed, signed by the purported grantors to be charged, but not legally delivered to the grantees, can be used in satisfaction of the Statute of Frauds. Implicit in this issue is an assertion that the court erred in finding that the Statute of Frauds was not satisfied by the documents offered by appellants in satisfaction of the statute. Because we believe the Statute of Frauds was satisfied in the present case, and because we also find that a contract for the sale of land was consummated, we reverse the decree.

Appellants and appellees are distantly related through marriage. Appellants had been attempting to sell their home for several years and were finally successful in that endeavor. Upon selling their property they began searching for a lot in the Morrison Cove area in Blair County upon which they could build a new home. Having little luck they called appellees upon the suggestion of their uncle, who was also appellees’ uncle. Appellees’ owned a “double lot” of approximately two acres in size and indicated to appellants that they might be willing to sell some land to appellants. A meeting at appellees land was set up at which time Mr. Brown and Mr. Long walked the property and discussed the possibility of a sale.

The testimony varied to some degree as to what occurred subsequently. Mr. Long indicated that Mr. Brown agreed on the day of the meeting to sell approximately one acre to appellants. Mr. Brown indicated that he made no firm commitment to sell on that day. In any event, certain steps were carried out consistent with an impending sale of the property, all with apparent approval of appellees. A survey was conducted to set the exact lines of the parcel of land in question, a title search was conducted and a deed was prepared. Additionally, as there was a restriction in the deed preventing subdivision of lots, a release of restrictions was prepared which, if agreed to by all property owners in the subdivision, would allow the sale to take place. All the necessary signatures were obtained, including those of the appellees. However, also during this period of time, Mr. Brown asked Mr. Long to look at some other land in the area as a possible alternative to the Brown’s lot. Mr. Long agreed to look at the land, but having done so, indicated he wanted to proceed with the sale of the Brown property. Mr. Brown, at some point during the negotiation, also indicated that there would be restrictions applicable to the sale. They were discussed in general and Mr. Brown was told to write them down at which time they would be given to the lawyer for inclusion in the deed.

Pursuant to these discussions, Mr. Brown prepared a written document entitled “Restrictive Agreement” which was signed by himself and which set forth ten separate provisions. Although there was some expressed reservation about one provision restricting the use of a public road, there was a general agreement to the provisions. However, another provision was reworded as it prevented the erection of buildings north of a power line. Mr. Long preferred reference to a fixed point rather than a movable one, consequently it was reworded to restrict buildings within one hundred feet of the Browns’ southern boundary line. At about the same time Mr. Long told Mr. Brown that a deed had been prepared and asked that he and his wife go to his lawyer’s office to sign the deed so that they could proceed to get a mortgage. Mr. Brown went by himself to the lawyer’s office and signed the deed but found it lacking the restrictions he had prepared. He took the deed home for reading and had it returned with his wife along with the written restrictions. Mr. and Mrs. Brown’s understanding was that the restrictions would then be added to the deed. Mrs. Brown then signed the deed in the presence of the secretary after which the Browns left for vacation. Upon returning from vacation they saw that the lot had been cleared and that stakes had been set for the building of the house. Mr. Brown was, by his testimony, shaken upon seeing that the house was being positioned more towards the center of the lot than he had anticipated. He called Mr. Long and was told that the positioning of the house was being dictated by the septic field and, after some conversation, Mr. Brown agreed to eliminate the restriction as to the public road and to change the restriction on the buildings from 100 feet to 95 feet. A couple of days later Mr. Long was down on the property measuring distances at which time Mr. Brown went down to assist him. When the measurement of the one stake (indicating the corner of the home to be built) came out to 94 feet, Mr, Long asked Mr. Brown if they would modify the restriction to 94 feet. Mr. Brown then stated no they would not change the restriction and that they had changed their minds about selling the property and that they no longer thought it was a good idea.

Eventually the present suit was filed by the appellants seeking to quiet title to the property or, alternatively, a specific performance of the agreement. The trial court found that there had been no delivery of the deed thus, quiet title was an unavailable remedy. The court also found insufficient documentation of the alleged agreement to satisfy the Statute of Frauds. Thus, the court denied specific performance as well. The court did, however, award damages to appellants for out of pocket costs based upon justifiable reliance.

Turning to the trial court’s decision, an integral part of the reasoning behind the decision below was the conclusion that the Statute of Frauds was not satisfactorily overcome after it was affirmatively raised by appellees. The Statute of Frauds instructs that a purported transfer of an ownership interest in real property is not enforceable unless evidenced in writing and signed by the party(ies) granting the interest. See, 33 P.S. § 1. It has been established that the writing(s) offered must set forth the essential terms of the contract, and that one or more writings can be utilized as long as all are signed or annexed to a signed writing. See, Hessenthaler v. Farzin, 388 Pa.Super. 37, 564 A.2d 990 (1989).

In all, three documents were offered by appellants in an effort to overcome the Statute of Frauds. One document was the release of restrictions which was signed by all homeowners in the sub-division, including appellees. This document states in relevant part: “Whereas, Craig Brown and Rebecca Brown are the owner of Lot No. 8 containing 2.00 acres, and are desirous of conveying a portion thereof, containing 1.002 acres to David K. Long and Dixie M. Long, ...” Another document offered was the “Restrictive Agreement” which was prepared by Mr. Brown and states: “The following restrictions agreed to on July 31, 1987, between David Long and Craig Brown, are binding on David Long and any subsequent owner of the property being sold. This property is one acre of land comprising the southern half of parcel # 8 (T-8) of Fox Hill estates, ...” This document was likewise signed by Mr. Brown under the heading “Seller.” The final document offered was the deed itself, which was also signed by the Browns. The deed, as one would expect, purported to transfer ownership of the property to the appellants for the sum of $12,024. As indicated earlier, the deed was signed by both of the appellees. However, there is a legitimate dispute as to whether or not there was a “delivery” of the deed to the appellants.

As the deed signed by appellees did not contain the restrictions which were undisputably part of the bargaining process, appellants argued that the deed was not delivered because there was no intention of delivery by the signing of that version of the deed. Appellants argue, however, that the deed was conditionally delivered. The condition being that there was subsequent agreement to, and inclusion of, the restrictions left with the attorney. Since there was a subsequent agreement on the restrictions, they argue, delivery was completed at that time. This point became rather important in the development of the case because the trial court concluded that a signed but undelivered deed could not be used in satisfaction of the Statute of Frauds. However, our own review of the law finds this position unsupported in law.

In reaching its conclusion, it is notable that the trial court did not find a case indicating that an undelivered deed cannot be used in satisfaction of the Statute of Frauds. In fact, the trial court distinguished a Pennsylvania Supreme Court case which seemed to support appellants’ theory. In Keil v. Good, 467 Pa. 317, 356 A.2d 768 (1976), our Supreme Court reviewed a trial court’s decision granting a motion for judgment on the pleadings based upon the affirmative defense of the Statute of Frauds. The appellants there asserted in a specific performance action that there existed an executed deed to the land in question. In vacating the order the court stated:

... plaintiffs allege the existence of a writing which, if its existence is proven, would remove the bar of the Statute of Frauds. In paragraph 8, plaintiffs allege that defendants had executed a deed to the property at issue. In their answer defendants deny the execution of such a deed. Thus, the pleadings framed a factual issue which, depending on whether plaintiffs’ allegations or defendants’ allegations were ultimately proven, might have removed the Statute of Frauds____

356 A.2d at 771.

In its interpretation of this case, the trial court focused on the last phrase of the quote above, particularly the word “might” and concluded that “more evidence than the executed deed was required.” (Trial Ct.Op. at 12) However, such a reading is completely too isolated, the phrase is prefaced with the comment “depending on whether the plaintiffs’ allegations or the defendants’ allegations were ultimately proven.” When read together it is clear that the qualifying word “might” relates only to proof of the allegation, it does not indicate that more is necessary to remove the Statute. As such, we must disagree with the trial court’s reading of the above precedent. Furthermore, there is nothing in the general law of the writing requirement to support this reading. In Hessenthaler v. Farzin, 388 Pa.Super. 37, 564 A.2d 990, 992 (1989), we stated:

[t]he purpose of the Statute is to prevent the possibility of enforcing unfounded, fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence signed by the party creating the interest____ Pennsylvania courts have emphasized that the Statute is not designed to prevent the performance or enforcement of oral contracts that in fact were made.

(citations omitted, emphasis in original). In Beeruk Estate, 429 Pa. 415, 241 A.2d 755 (1968), our Supreme Court said, in reference to the Statute, “we should always be satisfied with ‘some note or memorandum’ that is adequate ... to convince the court that there is no serious possibility of consummating fraud by enforcement.” Certainly a deed satisfies all of these policy considerations. As there is a lack of law or logic to support the trial court’s position, we must conclude that a deed signed but not legally delivered can be used to satisfy the Statute of Frauds.

When the deed is considered along with the other written documents, the Statute must be deemed satisfied. There is ample documentation indicating a desire to transfer the property in question, the property is adequately described and the consideration is stated. Thus, all the requisite factors for removal of the Statute are present. However, the trial court is correct to the extent that it asserts that more may be necessary to prove the existence of an agreement. It is possible, as implied by the trial court, that a deed may be executed without the requisite intent to transfer, or with a conditional intent. This is, perhaps, one reason why delivery of the deed is considered essential to a transfer of title since it conveys objective intent to transfer.

We are concerned here, at least with respect to this issue, only with the applicability or non-applicability of the Statute of Frauds. The mere removal of the Statute does not necessarily compel a finding that a contract was entered into, or that an agreement reached is absolutely valid. These issues rely upon other areas of contract law. However, the removal of the Statute of Frauds allows the court to conclude that an agreement was entered into as well as enforce it, a conclusion which, under the Statute, cannot be reached until a signed writing is produced. Of course, the signed writing is itself rather substantive evidence tending to prove an agreement to sell and should be given due consideration. Which takes us to the next relevant inquiry, whether or not there existed a contract for the sale of the land in question.

As indicated earlier, appellants offered three separate documents, which when considered together and also in conjunction with the oral testimony, leads us to conclude that a contract for the sale of the property was reached. When the whole of the testimony is assimilated the reasonable interpretation of the events indicates that appellees assented to the appellants’ efforts to purchase a tract of their land. Although appellees indicated that they maintained some reservations about consummating the deal, they in fact, made an objective manifestation of assent to the sale of their property. Under contract law the objective manifestation is the governing factor, regardless of subjective beliefs and reservations. In Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478, 482-483 (1984), we stated:

A true and actual meeting of the minds is not necessary to form a contract.... In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.... In the instant case, it matters not whether Walsh truly believed a contract did not exist i/his manifested intent reasonably suggested the contrary to Ingrassia. Furthermore, a contract could be formed even if Walsh did not contemplate that legal consequences would attach to the transaction.

Upon review of the record, the applicability of these excerpts are apparent. First, appellees signed a document, the release of restrictions, that states they are desirous of conveying the parcel in question. Secondly, Mr. Brown prepared a document setting forth several restrictions on the property or connected promises and signed under the heading “seller.” Thirdly, appellees acquiesced in the appellants’ efforts to have the land surveyed and Mr. Brown, in fact, helped Mr. Long and the surveyor conduct the survey. (N.T. 220) They further acquiesced through the preparation of a deed and as the land was graded in preparation of building. Appellees also signed the deed prepared by appellants’ attorney.

Appellees’ testimony also supports appellants’ theory. Mr. Brown testified that after telling Mr. Long that there was a possibility of a steel company moving in nearby that he expected the Longs to decline a purchase. However, “[h]e surprised me in the fact that he said we’re still interested and still want the land. At that time I felt somewhat pressured into the situation and told him that I would go ahead a (sic) sell him the property----” (N.T. 219). Mr. Brown also testified to telling Mr. Long that he would go with him to the neighbors’ houses and assist him in obtaining the signatures for the “Release of Restrictions.” (N.T. 225). Mr. Long further testified that after the release had been signed and when he was urging Mrs. Long to go and sign the prepared deed he told her that the deal hadn’t been finalized because the restrictions hadn’t been agreed to. He also testified that he told his wife that they were signing the deed conditional upon all the restrictions being agreed to by the Longs. (N.T. 236).

The objective manifestation of appellees’ actions and words supports the conclusion that they had, indeed, assented to the sale of the property. All of the signed documents convey that intent, and Mr. Brown admits as much, although he indicated that he maintained reservations about selling. The most favorable construction to appellees suggests that they expressed only conditional assent. However, the conditions expressed by Mr. Brown were met. There was a subsequent agreement of the Longs to the restrictions set forth by the Browns, and there was a slight modification of the 100 feet restriction which Mr. Brown agreed to.

From an objective standpoint, any doubt as to the formation of a contract previously would have been removed upon the Longs’ agreement to the restrictions. It appears that possibly Mr. Brown’s belief was that they were merely in negotiations, or, perhaps, that there was not a legal contract until closing or that he could change his mind up until that time. Such subjective beliefs are immaterial to the actual formation of a contract and the objective manifestations were clearly consistent with the formation of a contract to sell. As such, we feel compelled to reverse the trial court’s holding that the Statute of Frauds prevented a finding of an agreement to sell real estate and the conclusion that appellants are not entitled to specific performance of the contract.

The decree of the trial court is reversed. Case remanded for appropriate actions in furtherance of specific performance of the contract. Jurisdiction relinquished.

      . It would seem rather incongruous to allow virtually any other type of writing to satisfy the Statute yet not allow a signed deed. A deed is a rather formal writing and is widely known to have legal significance. Thus, it would seem to support the reasoning behind the statute, which is the prevention of fraud. We would think that virtually no one would frivolously sign a deed purporting to transfer their land. Furthermore, a deed is more likely to include the relevant information in its final negotiated state.

      . Even if the precise moment that a contract was formed is not discernible it will not prevent the formation of a contract if there is indeed a manifestation of assent. In Ingrassia, supra, we stated "[o]ffer and acceptance need not be identifiable and the moment of formation need not be pinpointed.” 486 A.2d at 483.


author: CERCONE, Judge:

text:
    582 A.2d 364
    Homer M. WAGNER and Robert N. Wagner, t/d/b/a Wagner & Wagner, Appellants, v. APOLLO GAS COMPANY.
    Superior Court of Pennsylvania.
    Argued March 29, 1990.
    Filed Nov. 9, 1990.

      Blair F. Green, Kittanning, for appellants.
    Joseph L. Robinson, Pittsburgh, for appellee.
    Before TAMILIA, KELLY and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from an order granting appellee’s motion for summary judgement. We reverse and remand for proceedings consistent with this opinion.

The pertinent facts, as outlined by the lower court, are as follows.

[Appellants] and [appellee] entered into a natural gas purchase [contract] (via their predecessors in interest) on December 8, 1970 (hereinafter referred to as “Contract”). [Appellants were] to supply natural gas to [appellee], which was to pay 34 cents per 1000 cubic feet of natural gas. [Appellants] contend that [appellee] failed to pay price increases that became effective on May 6, 1974, November 29, 1974 and July 30, 1975. There has been no gas produced and taken by [appellee] since November 15, 1975 and [appellee] removed its gas meter in October of 1981.
[Appellants] instituted a declaratory judgment action on February 9, 1987 and an action for damages on January 8, 1988. [These] actions were consolidated by order of this Court on June 9, 1988.
Subsequently, [appellee] moved for summary judgment, claiming that [appellants’] actions [were] time barred.

Appellants contend that the lower court erroneously granted appellee’s motion for summary judgment with regard to its declaratory judgment action. As noted supra, the lower court found appellants time-barred from suing appellee for breach of contract. Appellants argue, however, that the pertinent statute of limitations barred only their recovery of damages. Moreover, appellants state that the declaratory judgment action is necessary to ascertain the remaining rights and obligations of the parties. We agree.

“Declaratory judgments are nothing more than judicial searchlights, switched on at the behest of a litigant to illuminate an existing legal right, status or other relation. They may not be used to search out new legal doctrines.” Doe v. Johns-Mansville Corp., 324 Pa.Super. 469, 473, 471 A.2d 1252, 1254 (1984). Under the Declaratory Judgment Act, “[c]ourts ... have the power to declare rights, status and other legal relations whether or not further relief is or could be claimed." 42 Pa.C.S.A. § 7532 (emphasis added).

Under section 7533 of the Act, “[a]ny person interested under a deed, will, written contract ..., may have determined any question of construction or validity arising under the instrument, or ... contract, and obtain declaration of rights, status, or other legal relations thereunder.” In this case, the lower court properly dismissed appellants’ action for damages pursuant to our commercial code’s statute of limitations. Still unresolved, however, are the parties’ remaining rights and obligations pursuant to the gas purchase contract.

As noted supra, our legislature has stated that a litigant has the right to pursue a declaratory judgment “whether or not further relief is or could be claimed.” 42 Pa.C.S.A. § 7532. Furthermore, it is well established in this Commonwealth that “[a] contract may be construed either before or after there has been a breach thereof.” 42 Pa.C.S.A. § 7536. Thus, with these principles in mind, we hold that a party may pursue a declaratory judgment pursuant to section 7532 despite an unsuccessful damages claim. We must still ascertain, however, whether appellant’s declaratory judgment claim is also time-barred pursuant to a statute of limitations. See 42 Pa.C.S.A. §§ 7538 and 5525.

In its opinion, the lower court found that a contract for the sale of gas must be deemed a contract for the sale of goods under our Commonwealth’s codification of the Uniform Commercial Code. 13 Pa.C.S.A. § 2107. As a result, the lower court correctly stated that appellant’s breach of contract claim was time-barred pursuant to the applicable statute of limitations. 42 Pa.C.S.A. § 5525(2). We note, however, that this section is applicable only to actions for breach of contract, with the limitations period starting at the time of the breach. 13 Pa.C.S.A. §§ 2725(a) and (b). Thus, while we agree with the trial court’s conclusion that appellants’ breach of contract case is time-barred, we reach a different conclusion with regard to appellants’ declaratory judgment action.

Our research fails to reveal the prescription of a specific statute of limitations with regard to declaratory judgment actions. More importantly, we find the aforementioned statute of limitations inapplicable. To start the running of the statute of limitations in a declaratory judgment action from the time of a contract breach when such a cause of action may arise regardless of the existence of a breach is both inconsistent and illogical. Since we find no specific articles of Section 5525 applicable, we find the four year “catch all” statute of limitations appropriate in this instance. 42 Pa.C.S.A. § 5525(8).

In order to sustain an action under the Declaratory Judgment Act, a plaintiff must demonstrate an “actual controversy” indicating imminent and inevitable litigation, and a direct, substantial and present interest. Avrich v. General Accident Ins., 367 Pa.Super. 248, 251, 532 A.2d 882, 884 (1987). Because an action for declaratory judgment cannot be sustained until these elements can be shown to exist, it follows that a cause of action for declaratory judgment does not arise until such “actual controversy” exists. Petition of Malick, 133 Pa.Super. 53, 58-60, 1 A.2d 550, 553-54 (1938).

In the instant case, the controversy is over the continued validity of the contract. Appellants claim that it is null and void while appellee stands ready to resume performance under the contract. This controversy may not have come into existence when appellee allegedly breached the contract by failing to pay the price increases in 1974 or 1975, or when appellants stopped supplying gas in 1975 or removed the gas meter in 1981. Causes of action for breach of contract may have allegedly arisen at the time, but there has been no indication that a controversy arose as to the continued validity of the contract. It appears from the correspondence contained in the record that some time before March 5, 1985, the parties began to negotiate the possibility of resuming the sale of gas produced from that lease. Appellee wanted those sales to be governed by the terms of the 1970 contract while appellants wanted that contract released or its terms renegotiated. Appellants then filed a declaratory judgment action in February 1987. Thus, we find that the present controversy ripened into a cause of action for declaratory judgment in 1987 and is not barred by the pertinent statute of limitation.

The order of August 7, 1989 is vacated. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.


author: CERCONE, Judge.

text:
    582 A.2d 367
    COMMONWEALTH of Pennsylvania SCHOOL EMPLOYEE’S RETIREMENT FUND v. Barbara TERRELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 10, 1990.
    Filed Nov. 13, 1990.

      Alan M. White, Philadelphia, for appellant.
    Lawrence T. Phelan, Philadelphia, for appellee.
    Before ROWLEY, McEWEN and CERCONE, JJ.
   CERCONE, Judge.

This appeal is from an order of the Court of Common Pleas of Philadelphia County granting appellee’s motion for summary judgment. We reverse.

On May 2, 1973, appellant purchased a home by executing and delivering a mortgage to Colonial Mortgage Service Company. The mortgage, which is insured by the Federal Housing Administration (FHA) was assigned to appellee on August 7, 1979. In May, 1989, appellee instituted the instant action in mortgage foreclosure based upon appellant’s default in mortgage payments beginning August 1, 1988. At the close of the pleadings, appellee filed a motion for summary judgment. In her answer to that motion, appellant alleged in an affidavit that she had been laid off from her job in the summer of 1988 and received unemployment compensation of less than $200.00 per month. Appellant indicated that she was able to secure new employment, at substantially lower pay, in October, 1988. She also stated that she was, at the time of the affidavit, able to resume her previous payments of $119.00 per month, but would be unable to immediately repay the past due amounts on the mortgage. Appellant asserted that she had proposed several alternative repayment plans to appellee, but her proposals had been rejected. She also asserted several legal defenses to the mortgage foreclosure action.

The lower court granted appellee’s motion for summary judgment after which appellant filed this timely appeal. On appeal, appellant raises the following issue:

Did the lower court err in granting summary judgment for the plaintiff, finding that defendant had no legal defenses, when defendant submitted an affidavit in support of her three well-pleaded defenses to mortgage foreclosure, including the F.H.A. servicing defense recognized by this Court in F.N.M.A. v. Smith, 530 A.2d 919 (Pa.Super. 1987)? [sic]

Summary judgment should be entered only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law....” Pa.R.C.P., Rule 1035(b), 42 Pa.C.S.A. In deciding a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party, and any doubts must be resolved against the entry of the judgment. Yaindl v. Ingersoll-Rand Company, 281 Pa.Super. 560, 422 A.2d 611 (1980).

Appellant’s first argument is that the lower court erred in granting summary judgment because appellant properly denied in her pleadings that appellee was entitled to foreclose on the mortgage because of appellee’s failure to properly service the mortgage. In support of this argument, appellant cites Fleet Real Estate Funding Corp. v. Smith, 366 Pa.Super. 116, 530 A.2d 919 (1987) and Union National Bank of Little Rock v. Cobbs, 389 Pa.Super. 509, 567 A.2d 719 (1989). In Smith, a panel of this court reversed the lower court’s grant of summary judgment where the mortgagor of a mortgage insured by the Federal Housing Administration (FHA) raised as a defense to a foreclosure action the mortgagee’s failure to comply with the forbearance provisions in the regulations and handbook issued by the federal Department of Housing and Urban Development in relation to FHA loans. The Smith court held that such a defense, equitable in nature, could be appropriately raised in such a case, and that since the appellant in Smith had alleged by pleading and affidavit the mortgagee’s failure to service the loan according to the regulations, the lower court erred in granting summary judgment. Fleet Real Estate Funding Corp. v. Smith, supra, 366 Pa.Super. at 123-25, 530 A.2d at 923-24. In Cobbs, an identical result was reached in relation to a loan federally insured by the Veterans’ Administration. Union National Bank of Little Rock v. Cobbs, supra, 389 Pa.Super. at 517-18, 567 A.2d at 723-24.

We have reviewed the pleadings and affidavits in the instant case, and find that they raise the same issue as was addressed in Smith, supra. Appellant in the instant case has alleged that she sought appellee’s assistance and approval of her proposals to deal with the default in payments during the time of her unemployment and immediately thereafter. She also alleged her ability to resume regular monthly payments at the same rate as prior to the default, as well as appellee’s refusal to consider her proposals or to work with her to restore her loan to a current payment status. This, she alleged, was in contravention of the HUD handbook and regulations.

Under this court’s holding in Smith, supra, appellant’s allegations were sufficient to put in issue the equitable defense of appellee’s compliance with the loan servicing provisions relevant to loans insured by the FHA. Appellant placed this defense in issue and alleged facts supporting such defense. Viewing the record in the light most favorable to appellant, the non-moving party, the record establishes that a material issue of fact exists as to whether appellee complied with the requirements of the HUD handbook prior to instituting the instant foreclosure action. As a material issue of fact exists, we must reverse the order of the lower court granting summary judgment on appellee’s motion, and remand the case to the lower court for further proceedings which will permit full consideration of appellant’s properly raised equitable defense. Given this result, we need not address appellant’s remaining arguments on appeal.

Order reversed; case remanded for further proceedings consistent with this opinion; jurisdiction relinquished.


author: MONTGOMERY, Judge.

text:
    582 A.2d 369
    David G. BOWSER and Judith A. Bowser, Husband and Wife, Appellants, v. LEE HOSPITAL and John L. Bennett, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Filed Nov. 15, 1990.

      James F. O’Malley, Johnstown, for appellants.
    John L. McIntyre, Hollidaysburg, for Lee Hosp., appellee.
    M. David Halpern, Altoona, for Bennett, appellee.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

This medical malpractice action was instituted by the plaintiff-appellants, David G. Bowser and his wife Judith, against the defendant-appellees, Lee Hospital and John L. Bennett, M.D. Mr. Bowser claimed that the defendants failed to properly diagnose his injuries and/or treat him after an accident. Mrs. Bowser’s claims were for loss of consortium. The case went to trial before a jury, but at the conclusion of the plaintiffs’ case, the trial judge granted a compulsory nonsuit against the plaintiffs. They filed post-trial motions, seeking to have the nonsuit removed. After the denial of such motions, the plaintiffs filed the instant appeal to our court. They assert that the trial court committed a number of errors in its handling of their case.

Prior to reviewing the issues presented on this appeal, it is appropriate to note that the entry of a nonsuit in our Commonwealth is governed by Pa.R.C.P. 230.1, 42 Pa.C. S.A., which provides:

In a case involving only one defendant, at the close of plaintiffs case on liability and before any evidence on behalf of the defendant has been introduced, the court, on the oral motion of a party, may enter a nonsuit if the plaintiff has failed to establish a right to relief. If the motion is not granted, the trial shall proceed. If the motion is granted, the plaintiff may file a written motion for the removal of the nonsuit.

In the instant case, in which two defendants are involved, Pa.R.C.P. 2231(c) and (d), 42 Pa.C.S.A., are also relevant. They state:

(c) The trial of an action in which parties have joined or have been joined under Rules 2228 and 2229 shall be conducted as if independent actions between such parties had been consolidated for trial.
(d) Except as otherwise provided by these rules, the joinder of parties in any action shall not affect the procedural rights which each party would have if suing or sued separately, and the verdicts and judgments entered therein shall be joint, several or separate according to the nature of the right or liability therein determined.

We also find guidance in this situation in Pa.R.C.P. 2232(d), 42 Pa.C.S.A., which declares:

(d) When a plaintiff joins two or more defendants and the evidence does not justify a recovery against all of them, the court shall enter a nonsuit or direct a verdict in favor of any defendant not shown to be liable either jointly, severally or separately, and the action shall continue and determine which of the remaining defendants are jointly, severally or separately liable with the same effect as though the defendants found to be liable were the only ones joined. As in other cases the court may enter judgment notwithstanding the verdict in favor of or against any of such defendants.

Further, in resolving this appeal, we must recognize the well-established maxim that a compulsory nonsuit may be entered only when the plaintiff cannot recover under any view of the evidence, resolving every doubt against its entry, and drawing all inferences most favorably to the plaintiff. Scott v. Purcell, 490 Pa. 109, 415 A.2d 56 (1980). In the consideration of a nonsuit, all conflicts in the evidence are to be resolved in favor of the plaintiff. A.J. Aberman, Inc. v. Funk Building Corporation, 278 Pa.Super. 385, 420 A.2d 594 (1980).

The record shows that the genesis of this case was an automobile accident which occurred on November 8, 1983. In that accident, plaintiff David Bowser was injured while sitting in his parked vehicle when it was struck by a vehicle operated by one Craig Neff. Mr. Bowser was transported from the accident scene to the Emergency Department at defendant Lee Hospital, where he was examined by defendant Dr. Bennett. Among other injuries, the plaintiff had swelling in the orbit of the left eye at the bridge of his nose. Although other injury areas were x-rayed, no x-ray was taken of the plaintiff’s skull. There was evidence that although Mr. and Mrs. Bowser requested that a skull x-ray be taken, Dr. Bennett did not order x-rays or a CAT scan of the victim’s skull. After the emergency room examination, Mr. Bowser was discharged from the hospital by Dr. Bennett.

The swelling or lump in Mr. Bowser’s eye orbit appeared to him to be growing. Thus, in late November, he sought advice from Dr. Nicholas Masciotra, an ear, nose, and throat specialist. Dr. Masciotra suspected a possible bony tumor and ordered an x-ray of the area. The x-ray confirmed the presence of an osteoma or bony tumor in the frontal sinus cavity. Dr. Masciotra indicated that there was no evidence of a lump in the area when he had examined Mr. Bowser in April, 1983. He expressed the opinion, on cross-examination, that the development of the osteoma probably preexisted the motor vehicle accident.

Although the presence of the tumor was confirmed as of the November 21, 1983 x-ray, no immediate medical action was taken by Dr. Masciotra with regard to it. Mr. Bowser had surgery on his shoulder in December, 1983. Afterward, another x-ray was taken of the sinus area of the skull where the osteoma had been discovered by Dr. Masciotra. At that time, it was discovered that the osteoma had grown very rapidly, and surgery was promptly scheduled to remove it. The surgery was performed by Dr. Masciotra. The plaintiffs have contended that Mr. Bowser suffered permanent brain damage as a result of the osteoma and related problems. More detailed aspects of the evidence offered at trial will be referred to, as appropriate, in our discussion of specific issues raised on this appeal by the plaintiffs.

In paragraph 13 of their complaint, the plaintiffs asserted the following, to describe their theory of Mr. Bowser’s right to a recovery:

As a result of the failure of the defendants to properly care for and treat the plaintiff, he developed an osteoma of the frontal sinuses, which remained undiagnosed for a period of time, and resulted in his being required to have substantial surgery, and has caused permanent and disabling brain damage.

Further, they declared in the complaint that the defendants had been negligent in a number of specific regards, including the failure to x-ray Mr. Bowser's skull, or otherwise to detect problems in that area, as part of the emergency room diagnosis and treatment process.

As indicated at the outset of this opinion, the plaintiffs have raised a number of claims of error on the part of the trial court in its conduct of the trial. Prior to discussing such issues however, we deem it appropriate to focus on the broad rationale expressed by the trial court for its order entering a nonsuit. The trial judge found that the plaintiffs had not offered any evidence whatsoever to establish a relationship between any act or omission by either defendant, and the subsequent medical problems which were experienced by Mr. Bowser.

More specifically, the trial court pointed out that the plaintiffs proceeded on the theory that the defendants’ failure to have arranged for x-rays or a CAT scan of Mr. Bowser’s skull during his emergency room visit either caused the osteoma or somehow contributed to its development, and to his resulting brain damage. The trial court found that the plaintiffs had failed to produce any evidence to establish a causal connection between the alleged neglectful failure to take x-rays or a CAT scan and the medical problems experienced by the plaintiff husband.

We have carefully reviewed the record evidence in a light most favorable to the plaintiffs, giving them the benefit of all possible inferences. Having done so, we find ourselves in agreement with the trial court’s conclusion that a compulsory nonsuit was appropriate in this case. It is noteworthy that in their argument and in their brief to our court, the plaintiffs have not identified any specific testimony, exhibits, or other evidence which arguably established any relationship between the alleged malpractice of the defendants, and the harm experienced by Mr. Bowser.

The record shows that one of the plaintiffs’ experts, Dr. Keddie, offered testimony that the exercise of reasonable medical care would have called for x-rays and/or a CAT scan of Mr. Bowser’s skull during his emergency room visit. However, Dr. Keddie did not express any opinion suggesting that the lack of such testing at that time caused the osteoma or related problems, contributed to their development, or created any increased risk to Mr. Bowser with respect to these medical conditions. Dr. Keddie’s testimony could only support a finding that the defendants’ failure to x-ray or take a CAT scan of the skull was negligent, but not to establish any relationship between such alleged neglect and the subsequent difficulties experienced by the plaintiff husband.

Dr. Masciotra also testified for the plaintiffs. Like Dr. Keddie, he offered no opinion to establish any link between any act or omission of the defendants and the osteoma, related problems, and/or brain damage suffered by Mr. Bowser. In addition, the plaintiffs called Dr. Acosta, a neurologist, and Mary Ann Murphy, Ph.D., to testify regarding the severity of Mr. Bowser’s brain damage and other physical problems. Neither offered any testimony to support the plaintiffs’ burden of establishing some relationship between the alleged medical malpractice and the harm suffered by the plaintiff husband.

In Mitzelfelt v. Kamrin, 379 Pa.Super. 121, 549 A.2d 935 (1988), the court stated the following regarding a plaintiff’s burden of proof in a medical malpractice case:

The general rule in this Commonwealth is that in order to establish a cause of action for medical malpractice, the plaintiff must present expert testimony establishing variance from accepted medical practice and that this deviation from community standards caused the plaintiff’s injuries____The only exception to the general requirement that expert testimony must be produced is “where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of ordinary experience and comprehension of even nonprofessional persons.” ... As in other negligence cases, the plaintiff in a medical malpractice case bears the burden of proving a causal nexus between the wrongful conduct and the injury as part of the prima facie case. The plaintiff’s “burden of proof” on this issue encompasses two separate and distinct burdens____The first burden, the burden of production, refers to the responsibility of the plaintiff to present evidence of sufficient quality and weight that reasonably intelligent men could believe in the existence of the causal link sought to be established. If the plaintiff fails to satisfy this initial burden, it becomes incumbent upon the trial judge to remove the issue from consideration by the jury, since any decision reached by the jury based on consideration of this evidence would involve an inordinate amount of speculation and conjecture____If the plaintiff succeeds in presenting evidence of sufficient quality and weight so that the evidence is allowed to reach the jury, he or she must then satisfy the second burden, the burden of persuasion. The burden of persuasion involves convincing the jury that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to the plaintiff. 379 Pa.Super. at 126-127, 549 A.2d at 938. (citations omitted)

Under these standards, it is evident that the trial court did not err in finding that the plaintiffs failed to present evidence to establish the crucial element of causation. Given this state of the record, we shall now examine each of the contentions raised by the plaintiffs.

First, they maintain that the trial court erred in granting a compulsory nonsuit after allegedly permitting the defendants to introduce evidence during the course of cross-examination. As pointed out earlier, Pa.R.C.P. 230.1 provides that a nonsuit may be entered only before any evidence on behalf of the defendant has been introduced. It has long been the rule that a compulsory nonsuit may not be entered by the court when a defendant offers exhibits into evidence during the plaintiff’s case. See Highland Tank & Manufacturing Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966), and cases cited therein. In Atlantic Richfield Company v. Razumic, 480 Pa. 366, 390 A.2d 736 (1978), our Supreme Court described this rule as one that is strictly enforced, and declared that even where the defendant exceeds proper bounds of cross-examination so as to elicit matters constituting a defense to the cause of action, the trial court is precluded from entering a nonsuit. However, in a case somewhat analogous to the instant one, our court held in Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61 (1988) that a violation of this general rule may not result in a reversal if it is evident that the admission of some defense evidence prior to the declaration of a nonsuit was harmless error.

In their brief to our court, the plaintiffs asserted that the trial court permitted the defendants to ask Dr. Acosta about causation. In that regard, Dr. Acosta did not respond in any way favorable to the plaintiffs, inasmuch as he attributed the problems experienced by Mr. Bowser to the injuries received in the automobile accident. It is clear that the trial judge did not consider such negative evidence in finding that the plaintiffs had failed to produce any affirmative evidence of a relationship between the omission of the defendants to take x-rays or a CAT scan of Mr. Bowser’s skull in the emergency room, and the osteoma and brain damage he suffered. Thus, even if we found that such questioning of Dr. Acosta by the defendants exceeded the reasonable bounds of cross-examination, we would not conclude that the information elicited had any demonstrable impact upon the failure by the plaintiffs to establish any link between the alleged omissions of the defendants and the physical problems experienced by Mr. Bowser. Accordingly, the admission of Dr. Acosta’s opinion concerning causation, rendered in response to defense questions, had no bearing on the question of whether a compulsory nonsuit was appropriate, and any error which may have occurred would have to be considered harmless.

It also appears that during cross-examination of Mrs. Bowser, defense attorneys inquired about a prior suit filed by the plaintiffs against the operator of the motor vehicle which injured her husband. In addition, she was asked to identify a copy of the complaint which was filed in that case, and also to identify income tax records. None of the documents which were identified by the plaintiff wife during this process were offered into evidence as exhibits by the defendants. In fact, plaintiffs’ counsel chose to introduce the tax documents as exhibits. Our review of the defendants’ cross-examination of Mrs. Bowser leads us to conclude that it did not amount to the introduction of any evidence by the defendants, contrary to Pa.R.C.P. 230.1. The questioning did not exceed the proper bounds of cross-examination, and the defendants did not offer any of the documents identified by the plaintiff wife as defense exhibits in the case. Thus, we cannot find that the trial court erred in ordering a compulsory nonsuit after the questioning of Mrs. Bowser by the defendants.

We next address the plaintiffs’ claim that the trial court improperly precluded the plaintiffs from entering into evidence a deposition of the testimony of Dr. Castellón, who had formerly been employed as the chief emergency physician in the Lee Hospital Emergency Department. In late January, 1986, plaintiffs’ counsel advised the court that Dr. Castellón had requested to be relieved from testifying in the case on behalf of the plaintiffs. The plaintiffs’ counsel indicated he would obtain a substitute expert. Based upon that assurance, the plaintiff was granted a continuance in the proceedings. Further, the trial court entered an order providing that a substituted expert’s report had to be produced by the plaintiffs and filed with the court at a later date. The plaintiffs complied with that ruling.

A trial judge is granted broad discretion in the determination of whether the testimony of a particular expert ought to be admitted in a case, and unless there is a clear abuse of that discretion, no basis for reversal will be established. Klyman v. Southeastern Pennsylvania Transportation Authority, 331 Pa.Super. 172, 480 A.2d 299 (1984). In the instant case, there had been a clear understanding between the parties and the court that Dr. Castellon’s testimony would not be offered at the trial as an expert on behalf of the plaintiffs. His deposition had only been taken for purposes of discovery. Moreover, the plaintiffs do not suggest that any aspect of Dr. Castellon’s deposition testimony would have established or helped to establish that there was any relationship between any alleged negligence on the part of the defendants and the osteoma, other problems, and brain damage which Mr. Bowser suffered. It is also evident that his testimony would have been of the same nature as that offered by the plaintiffs through Dr. Keddie. In light of these circumstances, we conclude that the trial court did not commit reversible error in ruling that the plaintiffs could not introduce the deposition testimony of Dr. Castellón in support of their claims in the case.

The plaintiffs next argue that the trial court improperly granted a nonsuit in a case involving multiple defendants, prior to the time that all other defendants had presented evidence. In support of this position, the plaintiffs cite cases involving situations in which it was held that it was improper for a nonsuit to be entered as to one or more defendants, while several other defendants had not yet presented their testimony on the question of who might be liable for any harm experienced by the plaintiff. However, it is certainly appropriate to enter a nonsuit as to all of the defendants in a multi-defendant case when there is no evidence in the plaintiffs case to establish a right of recovery against any of the defendants. As an example of such a situation, where our court held that it was proper to enter a nonsuit as to the only two defendants in the case, before either had presented any defense proof, see Gallegor v. Felder, 329 Pa.Super. 204, 478 A.2d 84 (1984). There is no arguable merit in this contention of error by the plaintiffs.

Next, we address an argument by the plaintiffs that the trial court should not have denied them the right to introduce into evidence medical records from defendant Lee Hospital, which pertained to Mr. Bowser’s treatment and condition. The records in question, according to the plaintiffs, established a substantial change in Mr. Bowser's condition during the rapid growth of the osteoma from the time of the accident until his subsequent surgery. The plaintiffs argue that such evidence would have been significant in establishing the increased risk of harm to plaintiff husband “... due to the failure to x-ray and the resulting delay in surgery.”

As has been previously discussed, the plaintiffs presented no expert medical opinion that the failure by the hospital to x-ray the plaintiff’s skull, or to order a CAT scan, during the emergency room visit, increased the risk of harm from the osteoma or related problems. The introduction of the hospital records in issue, without such expert medical opinion evidence, would not have furthered the plaintiffs’ case on an increased risk of harm theory. Accordingly, even if it would be determined that the hospital records should have been admitted by the trial judge, his rejection of them did not prejudice the plaintiffs’ case. In the absence of relevant medical opinion on the theory of increased risk of harm, the records had no clear relevance in the case, except to substantiate the testimony offered concerning the worsening of the plaintiffs’ condition after the accident. In that respect, the records would merely have been cumulative to other evidence. Therefore, we reject the plaintiffs’ contention that the trial court committed error in refusing to allow the introduction of the medical records in question into evidence.

Finally, the appellants argue that the trial judge improperly refused to apply the rule enunciated by the Supreme Court of Pennsylvania in the case of Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). In that case, our Supreme Court adopted Section 323 of the Restatement (Second) of Torts, in holding that after a plaintiff in a medical malpractice case has demonstrated that a defendant’s acts or omissions have increased the risk of harm to the plaintiff, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resulting harm. In effect, a demonstration that there was an increased risk of harm establishes the necessary proximate cause relationship to justify a fact-finder’s verdict against the defendant medical provider.

While the rule enunciated in Hamil v. Bashline, supra, is still established law in our Commonwealth, we find no basis in the record before us to justify the plaintiffs’ contention that the trial court should have applied that theory of recovery instead of ordering a compulsory nonsuit. The plaintiffs’ complaint did not allege that the actions of either defendant increased the risk of harm to the plaintiff husband. Moreover, even if the words of the complaint could be construed to assert a right of recovery under the principles enunciated in Bashline, the plaintiffs failed to introduce any medical testimony that any conduct or omission by either defendant increased the risk of harm to Mr. Bowser. In the absence of such evidence, there would have been no justification for the trial court to consider the case under the Bashline standard. Therefore, we dismiss the final claim of error by the plaintiffs.

The order of the lower court is hereby affirmed.


text:
    582 A.2d 376
    COMMONWEALTH of Pennsylvania v. David Phillip NOCERO, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 17, 1990.
    Filed Nov. 16, 1990.

      Ray H. Scott, Clarion, for appellant.
    William M. Kern, Dist. Atty., Clarion, for the Com., appellee.
    Before OLSZEWSKI, KELLY and BROSKY, JJ.
   BROSKY, Judge.

This is an appeal nunc pro tunc from the judgment of sentence entered by the trial court following appellant’s conviction for institutional vandalism.

Appellant presents the following questions for review: (1) whether the trial court erred in prohibiting appellant from cross-examining the arresting police officer with regard to a similar incident of vandalism at Clarion University; (2) whether the trial court erred in failing to award appellant a new trial on the basis of after-discovered evidence; and (3) whether the trial court erred in failing to grant appellant’s motion to arrest judgment where another individual subsequently admitted to committing the crime. For the reasons set forth below, we affirm the judgment of sentence.

The relevant facts of this case are as follows. On October 7, 1987, appellant, David Nocero, and a friend entered a student lounge located in one of the dormitories on the Clarion University Campus. In the lounge, Nocero and his companion encountered Elise Ditson, another Clarion student. After blowing cigar smoke into Ditson’s face, the boys left the lounge area. Later that evening, Nocero, his friend, and a third boy returned to the area outside of the student lounge. Ditson observed the three boys standing near a water fountain which was located outside of the student lounge. After hearing a scraping sound, Ditson noticed that the water fountain was pulled away from the wall and that one of the boys, later identified as Jeffrey Scott Henry, was kneeling by the base of the water fountain while the others watched and laughed. According to Ditson, the boys pulled the water fountain away from the wall while Henry disconnected or broke the water line. As a result of the broken line, water flooded into the hallway and the elevator shaft of the dormitory. Following the commission of this destructive act, Nocero and his friends left the building.

Nocero was subsequently convicted by a jury on October 7, 1988. Post-trial motions were timely filed with the trial court, but were denied. Appellant was then sentenced on January 24, 1989. No direct appeal was filed on appellant’s behalf at this time. On August 28, 1989, appellant filed a petition for post-conviction relief under the Post Conviction Hearing Act. After holding a hearing on appellant’s petition, the trial court entered an order on April 4, 1990, which reinstated appellant’s right of direct appeal .from the judgment of sentence. In accordance with this order, appellant timely filed a nunc pro tunc appeal with this court.

Appellant first argues that the trial court erred in prohibiting defense counsel from cross-examining one of the arresting officers with regard to another similar act of vandalism which occurred in the same dormitory two days after the incident for which appellant was convicted. In reviewing this issue, we observe that

‘[t]he trial judges of this Commonwealth exercise broad powers while presiding at the trial of cases assigned to them. These powers include ruling on the admission or exclusion of evidence and controlling the scope of examination or cross-examination of witnesses. Such matters are committed to the sound discretion of the trial judge.’ ... Commonwealth v. Pittman, 320 Pa. Super. 166, 172-173, 466 A.2d 1370, 1373 (1983) (citation omitted). Decisions regarding such matters will not be reversed on appeal absent a clear abuse of discretion. Commonwealth v. Sisco, 484 Pa. 85, 398 A.2d 955 (1979); Commonwealth v. Jackson, 336 Pa.Super. 609, 486 A.2d 431 (1984).

Commonwealth v. Grove, 363 Pa.Super. 328, 332-333, 526 A.2d 369, 371-372 (1987), allocatur denied, 517 Pa. 630, 539 A.2d 810 (1987). We shall address appellant’s arguments with this standard in mind.

In support of his argument, appellant relies on the fact that the second incident of vandalism, which Scott Henry admitted to committing, also involved a broken water line to a water fountain that was located in the same dormitory. In addition, appellant avers that he planned to introduce evidence to the effect that he was not in Clarion when the second offense was committed. Essentially, appellant argues that because of the similar nature of the incidents, and because he was not present at the time the second offense was committed, it was unlikely that he was the perpetrator of the first incident. We find appellant’s reasoning to be erroneous, however.

The general rule in Pennsylvania is that “evidence of distinct crimes are not admissible____ However, evidence of other crimes and/or violent acts may be admissible in special circumstances where the evidence is relevant____” Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d 491, 497 (1988). Thus, evidence of other crimes may be introduced to prove:

(1) motive;
(2) intent;
(3) absence of mistake or accident;
(4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or
(5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed [or in this case, that the accused did not commit] the other.

Lark, 518 Pa. at 303, 543 A.2d at 497. See also, Commonwealth v. Boyle, 470 Pa. 343, 359, 368 A.2d 661, 669 (1977) and Commonwealth v. Smith, 502 Pa. 600, 609, 467 A.2d 1120, 1125 (1983), for the proposition that evidence of other crimes or bad acts is admissible to establish that another person or persons had the requisite motive or were engaged in a common plan, scheme or design to commit the offense for which the defendant was accused. See also, L. Packel & A. Poulin, Pennsylvania Evidence § 405.2 (1987). In reviewing the above exceptions to the general rule, it is evident that the first four exceptions are unrelated to the issue in this case. Thus, our analysis must focus on whether there is such a logical connection between the crimes that proof of one will naturally tend to show that the same person committed the other.

In ascertaining the identity of the perpetrator of the offense, the Supreme Court has recognized that the evidence of the other like crimes must be

so nearly identical in method as to earmark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature____ [Moreover], ‘[t]here must be such a high correlation in the details of the crimes that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the others.’

Commonwealth v. Bryant, 515 Pa. 473, 478, 530 A.2d 83, 86 (1987) (emphasis in original), citing C. McCormick, Evi dence § 190 (2d ed. 1972) and quoting Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 720-721 (1981). In addition, the Supreme Court has indicated that remoteness is a factor which must also be considered in determining the similarity of the crimes. See Commonwealth v. Clayton, 506 Pa. 24, 33, 483 A.2d 1345, 1350 (1984), appeal after remand, 516 Pa. 263, 532 A.2d 385 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988). In reviewing the above authorities, we therefore find the following factors to be relevant in determining whether evidence of the other uncharged offense or bad act is admissible: (1) the time lapse between the commission of the two crimes; and (2) the resemblance between the methodologies of the two crimes.

Application of the first factor to the present case reveals that the crimes occurred within two days of each other. This court has previously held that where two separate crimes are committed within one hour in the same geographic area, evidence of the uncharged crime is admissible. See Commonwealth v. Middleton, 379 Pa.Super. 502, 509-510, 550 A.2d 561, 564-565 (1988). However, where there is a time lapse of several years or months between the time that the offenses were committed, then evidence of the other crime has been held to be inadmissible. See Commonwealth v. Campbell, 342 Pa.Super. 438, 445, 493 A.2d 101, 105 (1985) and Commonwealth v. Bryant, supra. Unfortunately, we have been unable to discover a case involving a time lapse of two days. Given the facts present in this case, we believe that the lapse of two days between the commission of the first and second offenses was not such a lengthy period of time as to render evidence of the second offense inadmissible.

In addition to the time factor, we must also evaluate the methodologies used in the commission of the two crimes. Both of the crimes in this case involved the disconnection of a water line from the base of a water fountain. As stated by the trial court in its opinion, “ripping a water fountain from its base is not such a unique type of vandalism that the jury could infer [that] the same person did both acts. To this Court’s knowledge^] there is only one way to rip a free standing refrigerated water fountain from its mooring.” See Trial Court Opinion, at p. 5. We are inclined to agree with the reasoning of the trial court, and find that the two crimes were not so distinctive or unusual as to be like a signature or the handiwork of the same individual.

Even if we were to agree with appellant that the two crimes were so nearly identical so as to be the handiwork of the same person, we would still find that the evidence was properly excluded by the trial court. First, we note that despite appellant’s argument to the contrary, appellant was not attempting to show that another individual committed the crime. At trial, Elise Ditson testified that in addition to appellant, Scott Henry and another individual also participated in the commission of the crime. See N.T., 10/7/88, at pp. 10-11, 13 and 16-17. Thus, the jury was aware of the fact that two other individuals besides appellant were responsible for the disconnection of the water fountain line. Based on this testimony, it is evident that appellant was not trying to establish that another individual committed the crime. Rather, the evidence of the second incident, when coupled with appellant’s testimony that he was not in Clarion at the time the second incident occurred, was an attempt to prove that appellant could not have been present during the commission of the first crime since he was absent during the commission of the second offense. Consequently, the principles addressed in Boyle and Smith, supra, regarding the admission of evidence pertaining to other crimes in order to establish the identity of the perpetrator of the crime, are inapposite to the facts of this case.

In addition, we believe that the trial court properly excluded the evidence of the second offense because it was irrelevant to the issue at trial. As stated by this court,

[t]he basic requisite for the admissibility of any evidence in a criminal case is that it be competent and relevant____ Though “relevance” has not been precisely or universally defined, the courts have repeatedly stated that evidence is admissible if, and only if, the evidence logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.

Commonwealth v. Davis, 381 Pa.Super. 483, 491, 554 A.2d 104, 108 (1989), allocatur denied, 524 Pa. 617, 571 A.2d 380 (1989) (internal citations omitted).

As stated above, the jury was aware of the fact that Scott Henry and another boy were definite participants in the crime. See N.T., 10/7/88, at pp. 10-11, 13 and 16-17. Thus, the only question to be resolved at trial was not whether Henry or the other boy rather than appellant committed the crime, but whether appellant was present during the incident and actively participated in the incident along with Henry and the other individual. When viewed in this light, we are unable to infer that appellant’s lack of participation in the second incident renders it more probable than not that appellant was also absent when the first water fountain was disconnected. Simply stated, appellant’s absence from Clarion during the commission of the second offense does not negate his presence and participation in the first incident. Because we find that the evidence of the second incident was irrelevant to the issue presented at trial, we affirm the trial court’s exclusion of the evidence.

Appellant next contends that he was entitled to receive a new trial on the basis of after-discovered evidence. A new trial may be granted on this basis only if the new evidence

(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative;
(3) will not be used solely for impeaching [the] credibility of a witness; and
(4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Hunter, 381 Pa.Super. 606, 618, 554 A.2d 550, 555 (1989). Moreover, we recognize that “absent a clear abuse of discretion, the trial court’s refusal to grant a new trial on the basis of after-discovered evidence will not be disturbed on appeal.” Id. We shall address appellant’s arguments in accordance with this standard.

While the record indicates that Henry did not voluntarily reveal this information until after the conclusion of the trial, appellant offers no explanation as to why this evidence could not have been obtained prior to the conclusion of the trial through the exercise of reasonable diligence. See e.g., Commonwealth v. Frey, 512 Pa. 557, 564, 517 A.2d 1265, 1268 (1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987). At trial, Ditson testified that Scott Henry was the individual who disconnected the water line. Moreover, appellant was aware of Scott Henry’s involvement in the second offense, since the Commonwealth had previously requested that Henry’s trial be consolidated with Nocero’s trial. Finally, appellant’s trial counsel asked for the admission into evidence of Officer Marsili’s Affidavit of Probable Cause in which Scott Henry was identified as one of the participants in the incident. See N.T., 10/7/88, at pp. 24-25, and Affidavit of Probable Cause, dated December 3, 1987, at p. 3. Therefore, as the record clearly indicates, appellant was certainly aware of the fact that Scott Henry was involved in the commission of the crime prior to the conclusion of the trial. However, there is no indication in the record as to why appellant could not have attempted to secure Henry’s testimony until after the conclusion of the trial. In view of the fact that appellant has offered no reasonable explanation for his failure to investigate the incident and learn of Henry’s participation in the crime, we believe that the first element of the test has not been met.

The next element of the test requires appellant to show that the after-discovered evidence is not merely cumulative or corroborative of the evidence produced at trial. In this case, Ditson testified that another male and appellant had their hands on the water fountain and laughed while Scott Henry broke the water line. See N.T., 10/7/88, at pp. 11, 13 and 15-18. Further, appellant denied any involvement in the incident and testified at trial that he was not present in the dormitory at the time the water fountain was damaged. See N.T., 10/7/88, at pp. 35-38. Henry corroborated Ditson’s testimony in that he admitted to disconnecting the water line from the water fountain. See N.T., 11/7/88, at p. 5. Henry’s testimony also corroborated Ditson’s observations that he was accompanied by two other males at the time the water line was disconnected. See N.T., 11/7/88, at p. 6. Henry’s testimony further supported appellant’s defense in that Henry indicated that appellant was not present during the water fountain incident. See N.T., 11/7/88, at p. 3. Based on our review of this testimony, we find that Henry’s statements were merely cumulative or corroborative of the evidence produced at trial. Accordingly, we find that appellant has failed to prove that the second element has been met.

The third element of the test requires that the after-discovered evidence not be used for the sole purpose of impeaching the credibility of a witness. Henry indicated that Ditson’s story was incorrect with regard to the manner in which the water line was disconnected. Ditson stated that Henry “fiddled with something at the back of the water fountain. See N.T., 10/7/88, at pp. 10, 11, 13, and 16-17. Henry, however, suggested that Ditson’s testimony was false and full of discrepancies because he had no difficulty in disconnecting the water line and was able to “rip it off real easy”. See N.T., 11/7/88, at pp. 5, 11 and 13. Further, Henry stated that one of his friends had an appearance which was similar to appellant’s, see N.T., 11/7/88, at p. 13, thereby indicating that Ditson had identified the wrong individual. Finally, as mentioned above, Henry denied that appellant was involved in the commission of the offense. See N.T., 11/7/88, at p. 3. In reviewing this testimony, it is evident that appellant’s sole purpose in introducing Henry’s testimony was to impeach the testimony offered by Elise Ditson. Consequently, we conclude that appellant has not satisfied the third prong of the test.

Even if we were to assume for the sake of argument that appellant had successfully satisfied the above requisites, a new trial may only be awarded if the evidence is of such nature and character that a different verdict will likely result. In this case, Henry did not divulge any information to the authorities until the criminal charges which were pending against him had been successfully resolved. Thus, Henry had nothing to lose by offering testimony which was favorable to appellant. More importantly, Henry admitted that he had lied about this incident on two prior occasions. As observed by our Supreme Court,

the fact that this statement was given by a convicted co-defendant in this crime who only made the statement after he had been sentenced for his participation and therefore had nothing to lose by attempting to aid the cause of his co-conspirator raises a significant question as to its reliability. We have long recognized that post-verdict accomplice testimony must be viewed with a jaundiced eye.

Commonwealth v. Frey, supra, 512 Pa. at 565, 517 A.2d at 1268-1269; see also Commonwealth v. Treftz, 465 Pa. 614, 630, 351 A.2d 265, 272-273 (1976), cert. denied, 426 U.S. 940, 96 S.Ct. 2658, 49 L.Ed.2d 392 (1976). In view of the above reasoning, we agree with the trial court that Henry’s evidence was not of such nature and character that it would likely result in a different verdict.

The final issue raised by appellant is whether the trial court erred in failing to grant his motion in arrest of judgment on the basis of the after-discovered evidence. After-discovered evidence does not entitle appellant to have judgment arrested, since a motion in arrest of judgment is directed to the sufficiency of the evidence produced at trial. See Commonwealth v. Groff, 378 Pa.Super. 353, 362-363, 548 A.2d 1237, 1242 (1988) and Commonwealth v. Yapsuga, 369 Pa.Super. 336, 339, 535 A.2d 187, 188 (1987). Thus, where evidence is discovered following a defendant’s trial and the evidence meets the four criteria outlined above, the appropriate remedy would be to award a defendant a new trial, rather than to arrest judgment. As previously discussed, appellant has failed to establish that the after-discovered evidence satisfies the four prongs of the Hunter test. Accordingly, Scott Henry’s exculpation of appellant does not require that judgment be arrested in this case.

In sum, we conclude that the trial court did not err in prohibiting appellant from introducing evidence of the second water fountain incident because this incident was irrelevant to the question of whether appellant participated in the first incident. Further, we find that the after-discovered evidence in the form of Scott Henry’s confession did not entitle appellant to the receipt of a new trial since appellant failed to establish that any of the requisite criteria had been satisfied in this case. Similarly, the after-discovered evidence does not entitle appellant to have judgment on his conviction arrested. In view of the reasoning set forth above, we perceive no basis for overturning appellant’s conviction, and therefore, affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3307(a)(3). Although appellant was also charged with criminal mischief, see 18 Pa.C.S.A. § 3304(a)(1), it was determined that the latter offense merged for the purpose of trial. Thus, appellant was only tried and convicted with regard to the institutional vandalism offense.

      . The Post Conviction Hearing Act (PCHA) was subsequently amended by the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. § 9541-9551. Because the new act went into effect on April 13, 1988, appellant’s petition should have been brought under the PCRA, rather than the PCHA.

      . We note that the order reinstating appellant’s appellate rights is dated April 4, 1988, but was docketed on April 6, 1990. In view of the fact that the order was entered during appellant’s PCRA hearing on April 4, 1990, we assume that the trial court intended the order to be dated for the year 1990 rather than the year 1988.

      . Contrary to appellant’s belief, Scott Henry testified that he did not commit the second incident, but merely accepted responsibility for committing the crime. See N.T., 11/7/88, at pp. 9-10.

      . Consolidation of the two cases never occurred because Henry wanted to proceed with a non-jury trial, whereas Nocero wanted his case to be heard by a jury. See Order, dated September 7, 1988.

      . Henry was placed on ARD in lieu of other punishment for his involvement in the one or both of the water fountain incidents. See N.T., 11/7/88, at p. 12.

      . Specifically, Henry admitted that he lied to Campus security and had lied at his preliminary hearing. See N.T., 11/7/88, at pp. 3-4, 7-8 and 10-11.

      . Appellant does not argue that the evidence produced at trial was insufficient to sustain his conviction. As a result, we need not address this question.