author: ROWLEY, Judge:

text:
    504 A.2d 1321
    Rita BURNS and Joseph Burns v. CITY OF PHILADELPHIA, Appellant.
    Superior Court of Pennsylvania.
    Argued March 6, 1985.
    Filed Feb. 18, 1986.

      Michael Tolcott, Philadelphia, for appellant.
    Peter C. Gardner, Philadelphia, for appellees.
    Before ROWLEY, WATKINS and GEISZ, JJ.

       Judge John A. Geisz, Senior Judge of the Court of Common Pleas of Philadelphia County, Pennsylvania, is sitting by designation.

   OPINION OF THE COURT

ROWLEY, Judge:

Appellee, Rita Burns, was injured when she stepped into a “tree well” located on a walkway at Veteran’s Stadium in the City of Philadelphia. Mrs. Burns and her husband filed an action in trespass against the City to recover damages for her injuries. The trial judge, sitting without a jury, found the City negligent. In order for the tree well to be able to retain a sufficient amount of water for the tree, the surface level of the soil in the well was kept several inches below that of the surrounding walkway. Specifically, the court concluded that the well constituted a danger to person’s traveling on the walkway, and was the proximate cause of the injuries sustained by Mrs. Burns. The City of Philadelphia appeals from the judgment entered on the verdict in favor of plaintiffs-appellees, Rita and Joseph Burns.

By a per curiam order of this Court, the judgment was affirmed because the original record certified on appeal did not include appellant’s exceptions to the trial court’s decision, and the docket entries showed that appellant’s exceptions were filed eleven days late. Appellant filed an application for reconsideration or reargument asserting that it had timely filed its exceptions with the “post-trial motions clerk” of the Philadelphia Court of Common Pleas pursuant to Philadelphia Civil Rule 240, and the timely filing of its exceptions was noted on the docket maintained by the post-trial motions clerk. However, no such exceptions and docket entries, as indicated, were transmitted to the Superior Court with the original record when the appeal was filed. Reargument was denied, but reconsideration was granted, and the per curiam order and accompanying memorandum affirming the judgment were withdrawn. Both parties were directed to file briefs addressing the issue of the practice and procedure under Philadelphia Civil Rule 240 as well as its relationship to the Pennsylvania Rules of Civil and Appellate Procedure.

I.

Philadelphia Civil Rule 240(C) provides:

(C) Filing Procedure
(1) All exceptions and post-trial motions shall be filed in triplicate with the Post-Trial Motion Clerk and shall contain the telephone numbers of all counsel involved in the trial of the case. In addition, said motions and exceptions shall contain a Certification of Service on all counsel named therein, and, if desired, should be accompanied by a written request for argument of the exceptions or motions before a court en banc. Any request by opposing counsel for argument before a court en banc shall be filed in writing within five (5) days of the service of the exceptions or motions.
(2) Under the direction of the Court Administrator, the Post-Trial Motion Clerk shall maintain an Individual Court Docket for each Judge of the Common Pleas Court.
The Post-Trial Motion Clerk shall docket exceptions and post-trial motions in the Individual Docket of the Trial Judge and in the General Appearance Docket and forward copies of same to the Trial Judge and to the court stenographer who was assigned to the trial of the case. The Trial Judge shall, upon receipt of the exceptions or motions, indicate to the Post-Trial Motion Clerk whether or not he desires the exceptions or motions to be heard by a court en banc by entering an order indicating such. The Post-Trial Motion Clerk will promptly forward a copy of the order to all interested counsel.

42 Pa.C.S. § 2702 provides where documents are to be filed as follows:

Where jurisdiction of any matter is by law vested in a court of common pleas or in the Philadelphia Municipal Court, all applications for relief or other documents relating to the matter shall be filed in or transferred to the office of the clerk of the court of common pleas and handled by the appropriate office specified by or pursuant to this chapter.

42 Pa.C.S. § 2736 states:

All matters or documents required or authorized to be filed in the office of the clerk of the court of common pleas shall be filed in the office of the prothonotary.... (Emphasis added.)

Pa.R.A.P. 1921 describes the composition of the record on appeal and states:

The original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases.

There is no apparent inconsistency among Philadelphia Civil Rule 240, Pa.R.A.P. 1921 and 42 Pa.C.S. §§ 2702 and 2736. Philadelphia County Court of Common Pleas has the authority to promulgate rules for the efficient administration of its courts provided they do not conflict with rules of procedure promulgated by the Pennsylvania Supreme Court. Presumably, it is administratively more convenient for Philadelphia to have all post-trial motions filed and docketed in one place which is separate from the place for filing and docketing of all other matters relating to a case. Apparently, in Philadelphia, the post-trial motions clerk has an office separate from the Prothonotary, maintains separate files and keeps separate dockets and indexes. Thus, in Philadelphia, there are two (2) files for each case, maintained in separate offices with two (2) different dockets and indexes. Some documents and proceedings relative to a case are kept and recorded in one office (the Prothonotary), while other matters relative to the same case are kept in a separate office (the post-trial motions clerk). There is no single file, docket, index or office where all of the papers and proceedings relating to a case are kept and recorded.

In practice, with increasing frequency, when an original record is certified to this Court on appeal from Philadelphia, we have been furnished with an incomplete record. That is, the record from the Prothonotary’s office which is certified does not include the documents and proceedings kept and recorded in the office of the post-trial motions clerk. Thus, although there is no apparent inconsistency between the local rule and the Supreme Court’s rules, the fact is, that in practice, such an inconsistency exists.

42 Pa.C.S. § 2702 mandates that where the court of common pleas has jurisdiction of a matter, all documents relating to the matter shall be either filed in or transferred to the clerk of the court of common pleas. Thus,, in Philadelphia, the post-trial motions can be filed separately with the post-trial motions clerk, but if jurisdiction of the matter to which they relate is vested in the court of common pleas, the documents must then be transferred to the clerk of the court of common pleas, i.e., the Prothonotary. Furthermore, the fact that the post-trial motions filed with the post-trial motions clerk are filed at the same term and number as the other documents relating to the same matter which are filed with the clerk of the court of common pleas, demonstrates that they constitute “original papers” which, pursuant to Pa.R.A.P. 1921, comprise the record on appeal and therefore must be transmitted to the Superior Court as part of the original record.

What occurred in the instant case is just one of many instances which demonstrate that in practice, the Philadelphia rule is inconsistent with the state rule. In this case, the exceptions were filed with the post-trial motions clerk on February 16, 1983 and docketed therein pursuant to. Philadelphia Civil Rule 240. The exceptions were not transferred, in accordance with 42 Pa.C.S. § 2702, to the clerk of the court of common pleas which had jurisdiction of the matter (Prothonotary), and they were not transmitted to the Superior Court with the original record as required by Pa.R.A.P. 1921 even though they were original papers filed in the trial court. The filing of the exceptions was not noted in the docket of the prothonotary until March 2, 1983, well past the filing deadline. Because certified docket entries from only the prothonotary and not the post-trial motions clerk were included in the original record transmitted to the Superior Court, the Superior Court did not have the exceptions themselves nor a docket entry showing that they had been timely filed.

This established practice under Philadelphia Civil Rule 240, does not comport with 42 Pa.C.S. §§ 2702 and 2736 and Pa.R.A.P. 1921, and results in both time-consuming and expensive appeals because the Superior Court does not receive all the documents and docket entries before reviewing the appeal. Consequently, after the Superior Court affirms the judgment or dismisses the appeal because no issues have been preserved or because the record is inadequate, the parties must petition for reconsideration and belatedly explain why the entire record was not transmitted originally. Only after the Superior Court receives the whole record can it address the merits of the appeal. The instant case is only one of many such situations where such a protracted course has been necessary for proper disposition of a case. We hold that adherence to this established practice under Philadelphia Civil Rule 240 is in violation of 42 Pa.C.S. §§ 2702 and 2736 and Pa.R.A.P. 1921.

We expect that the Philadelphia trial court will remedy the practice under rule 240 so that documents filed somewhere other than with the clerk of the court of common pleas will be transferred thereto in accordance with 42 Pa.C.S. § 2702, and so that when an appeal is taken from a judgment or order of the Philadelphia Court of Common Pleas, all matters which have been filed and which relate thereto, regardless of where they have been filed, shall be transmitted to the Superior Court as the original record in accordance with Pa.R.A.P. 1921. All appeals filed subsequent to the date of this opinion must include in the original record certified to this Court all documents filed in the trial court with regard to the matter in issue and a certified copy of all docket entries relating thereto regardless of the office in which they were filed and docketed. Because appellant followed the standard practice under Philadelphia Civil Rule 240, however, which only today are we holding to be violative of the Judicial Code and the Supreme Court Rules, we will not penalize it, but will consider the merits of the appeal.

II.

Appellant raises four issues on appeal: 1) the trial court erred in not granting appellant’s motion for compulsory non-suit; 2) no cause of action lies against a municipality for providing insufficient artificial lighting; 3) if the tree well was defective, it was a trivial defect and does not constitute negligence; and 4) plaintiff was contributorily negligent as a matter of law and her negligence was greater than that of appellant; therefore, she is barred from any recovery under the Comparative Negligence Act, 42 Pa.C.S. § 7102. The second of these four issues we need not address because, not having been raised in appellant’s post-trial motions, it has been waived. Central Pennsylvania Savings Association v. Carpenters of Pennsylvania, Inc., 502 Pa. 17, 463 A.2d 414 (1983). We will consider, therefore, only the remaining three (3) issues presented by appellant.

A.

Appellant, in its first issue, contends that the trial court should have granted its motion for compulsory non-suit for three reasons: 1) appellee presented no expert testimony regarding the design of the tree well; 2) as a matter of law, the design of the tree well was not defective; and 3) the condition of the tree well was forseeable. A compulsory nonsuit can be granted only at the close of plaintiffs case and before the defendant presents any evidence. If the defendant elects to proceed, the non-suit stage is over and the correctness of the court’s ruling is moot. F. W. Wise Gas Co., Inc. v. Beech Creek RR. Co., 437 Pa. 389, 392, 263 A.2d 313, 315 (1970). Appellant elected to proceed and placed its entire case into evidence after appellees rested. Therefore, we do not rule on the correctness of the denial of the motion for compulsory non-suit as such. However, in considering appellant’s argument on this issue it appears to be made in support of its motion for judgment n.o.v. We will, therefore, consider the argument.

A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict winner. Atkins v. Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 414 A.2d 100 (1980). When the trial court, sitting without a jury, makes only general findings of liability, as here, and does not make specific findings of fact or conclusions of law, the trial court’s decision must be viewed by the same standards and accorded the same deference as a general verdict returned by a jury. Merion Spring Co. v. Muelles Hnos. Garcia Torres, 315 Pa.Super. 469, 462 A.2d 686 (1983). Therefore, our review is limited to reviewing the evidence and assessing its weight to determine whether the trial court committed clear error or abused its discretion. Id., 315 Pa.Superior Ct. at 480, 462 A.2d at 692.

Appellant argues, that in the absence of architectural expert testimony, the City could not be negligent for the defective design of the tree well. Where the matter in dispute is so simple and the lack of skill or want of care is so obvious as to be within the range of ordinary experience of non-professional persons, expert testimony is not necessary to prove negligence. Chandler v. Cook, 438 Pa. 447, 451 *, 265 A.2d 794, 796 * (1970). In this case, lack of care in having a recessed tree well six feet square on a walkway could be determined by a person untrained in architectural design. A trier of fact knowing the size, location, and depth of the tree wells could determine whether the wells were negligently designed. Therefore, failure of appellee to present expert testimony did not preclude the court’s finding of negligence and did not warrant the granting of judgment n.o.v.

Next, appellant argues: “It is clear as a matter of substantive law that a deliberately designed and properly maintained drop in level does not constitute a defect.” (Brief of appellant, at 16.) This is erroneous. As authority for its assertion, appellant cites Wecksler v. City of Philadelphia, 178 Pa.Super. 496, 115 A.2d 898 (1955). In Wecksler, the plaintiff fell when she stepped from the sidewalk into a driveway apron which was several inches lower than the sidewalk. She did not see the difference in elevation because cars parked in the driveway forcing her to walk near the curb were obstructing the light from the streetlight. Appellant sued on the theory that the city’s practice of allowing vehicles to park on the sidewalk created the semi-dark condition which resulted in her not perceiving the change in elevation and falling. Plaintiff did not contend that the change in elevation between the sidewalk and the driveway apron was a physical defect. Judgment n.o.v. in favor of the defendant was entered because a city is not liable for negligence in the regulation of the use of its streets. There was no issue of whether the drop in level between the sidewalk and driveway constituted a defect as a matter of law. Because it is not true that as a matter of law a deliberately designed and maintained drop in level is not defective, the trial court did not err for refusing to grant judgment n.o.v. for this reason.

Appellant also argues that the existence of the tree well, which was recessed several inches, was foreseeable, and therefore, the city owed no duty to protect its invitees from the condition. Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120 (1983). We agree that landowners are not subject to liability for conditions that are obvious. However, considering the testimony of appellee that at the time she fell, it was nearly dark, raining, and the area was not well lighted, whether the existence of the tree well was obvious was a question of fact for the court to determine. Considering the evidence in the light most favorable to the verdict winner, we cannot conclude that the defect was clearly obvious and that the trial court should have granted judgment n.o.v. because appellant owed no duty to appellee.

B.

In its third issue, appellant argues that if the tree well was defective, it was only a trivial defect from which there was no duty to protect appellee. Bosack v. Pittsburgh Railways Co., 410 Pa. 558, 189 A.2d 877 (1963). In Bosack, the defect which the court held to be trivial was several cobblestones which had sunk one and one-half to two inches. Similarly, in Bullick v. City of Scranton, 224 Pa.Super. 173, 302 A.2d 849 (1973), the court found a hole in the street three feet long, one inch wide, and one-half inch deep to be trivial. Appellant contends that the tree well in the case before us is trivial too.

The facts in the instant case are not capable of comparison to Bosack and Bullick. The size of the defective or dangerous area is far larger than the defect in Bosack and Bullick, and the mere fact that the tree well in the instant case has a smooth, regular parameter does not render the recess of the tree well trivial. The trial court did not err in determining that the six foot square tree well recessed several inches in the middle of an area specifically constructed as a pedestrian thorofare was not a trivial defect.

C.

Appellant’s fourth and final argument is that the court erred in determining that appellee’s contributory negligence was less than appellant’s. Under the Comparative Negligence Act, 42 Pa.C.S. § 7102, where a plaintiff’s negligence is greater than that of the defendant, plaintiff is entitled to no recovery. The standard for reviewing an apportionment of negligence was enunciated in Thompson v. City of Philadelphia, 320 Pa.Super. 124, 466 A.2d 1349 (1983). There, the appellant alleged that the trial court erred by granting a new trial on the issue of apportionment of negligence. The Superior Court agreed with appellant stating that when reviewing a jury’s apportionment of negligence under the Comparative Negligence Act, the standard to be applied is not whether the court would have come to a different conclusion, but whether there are “evidentiary circumstances or incontrovertible facts of such weight as to convince the court that an injustice has been done.” Id., 320 Pa.Superior Ct. at 134, 466 A.2d at 1354 (citations omitted). Similarly, where the trial court is the trier of fact in a non-jury trial, its apportionment of negligence should be accorded the same deference as a jury’s determination.

In the instant case, there is evidence of sufficient weight to support the court’s determination that appellee was only one-third negligent. Although appellee admitted that she did not look at the ground after perceiving the tree before she fell, it had been raining so there was little

difference in color between the wet concrete and the dirt in the tree well. Appellee also testified that it was nearly dark when she fell, and the area was not well lighted. Thus, the court could conclude that although appellee was negligent in not looking where she was walking, her negligence was only one-third of the cause of the accident. The trial court did not cause ah injustice by finding appellee only one-third negligent.

Judgment in favor of plaintiffs-appellees is affirmed.

      . In arriving at its decision, the trial court did not make specific findings of fact; these references are taken from the opinion filed subsequently.

      . Despite these specific instructions regarding the subject of the briefs, neither party addressed the issue of whether Philadelphia Civil Rule 240 conflicts with the Supreme Court Rules. The briefs are addressed solely to the practice with regard to Rule 240 and appellant’s compliance with it.

      . Appellees argue that the theory of their case was not defective design but a dangerous condition. Plaintiffs Complaint, ¶ 3, recites that the injuries were caused by the negligence of the city’s workmen in the scope of their employment in maintaining the parking lot areas in a dangerous and defective condition. The trial court’s opinion recites that the "condition of the walkway constituted a danger____’’ (Trial court opinion at 3.) Whether the wells were the result of a design or if they were simply a condition existing as a result of the placement of trees in the walkways is immaterial because, in this case, negligence in either design or maintenance of a condition was so apparent as to be determinable by a lay person.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    504 A.2d 1327
    George F. SCHREIBER and Nancy C. Schreiber, His Wife, Appellants v. Louis R. CICCONI and Catherine A. Cicconi, His Wife.
    Superior Court of Pennsylvania.
    Argued June 4, 1985.
    Filed Feb. 18, 1986.

      Harry F. Dunn, Jr., Media, for appellants.
    Ronald D. Ashby, Media, for appellees.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   BROSKY, Judge:

This case is before us on appeal from the trial court’s Order of November 5, 1984, granting appellees’ Motion for Post Trial Relief and dismissing appellants’ complaint. The sole argument made by appellants is that the trial court en banc erred in its construction of a restrictive covenant. We agree that the court misinterpreted the covenant, and we therefore reverse.

Appellants and appellees are owners of adjoining homes on Pole Cat Road in a community in Glen Mills known as Fox Valley. A Declaration of Conditions and Restrictions dated August 24, 1966, duly recorded in the Office of the Recorder of Deeds of Delaware County, a legally enforceable covenant running with the land, binds both properties. Paragraph 9 of the Declaration provides: “No radio, television or short wave reception Towers may be constructed separate from the main residence Building.”

Notwithstanding the above provision, in June, 1983, appellees had television dish reception equipment (a dish antenna) delivered to their property. Appellants and the Fox Valley Community Association, by means of specific discussions and written letters, conveyed to appellees their objections to construction of the antenna. Nevertheless, appellees began construction of the antenna on June 24, 1983, on permanent concrete legs, directly across a lake from appellants’ property.

On August 9, 1983, appellants filed a Complaint in Equity to enforce the restrictive covenant and have the antenna dismantled. After preliminary objections were filed and dismissed, appellees filed an Answer, and the parties proceeded to take depositions. Pursuant to a pre-trial conference, the parties agreed to a written Stipulation of Facts with photographic attachments. After consideration of the parties’ proposed findings of fact, conclusions of law, and briefs, the trial court entered a decree nisi, enjoining appellees from maintaining a satellite television dish antenna upon their property separate from their main residence building, and ordering appellees to dismantle the antenna.

Appellees filed a Motion for Post Trial Relief, challenging the trial court’s conclusion of law number 5, which found that the television reception dish erected by appellees was a television reception tower within the meaning of the Declaration of Covenants and Restrictions. By opinion and order dated November 5, 1984, the court en banc (with the trial judge and one other judge sitting to decide the post-trial motions) reversed the decree nisi and entered a final decree dismissing appellants’ complaint.

In reaching its original conclusion, the trial court found that paragraph 9 of the Declaration was not clear regarding what structures constituted “radio, television or shortwave reception towers.” In accord with Parker v. Hough, 420 Pa. 7, 215 A.2d 667 (1966), the trial court then attempted to ascertain the intention of the parties imposing the restriction by interpreting the language of the restriction in light of the subject matter of the restriction and the apparent object or purpose of the parties who had imposed the restriction. The court concluded that the subject matter of the restriction was any tower designed to facilitate the reception of radio, television, or shortwave signals; that the apparent object or purpose of the parties imposing the restriction was to preserve the aesthetic quality of the area; and that the construction upon permanent concrete legs of a television satellite reception dish ten feet in diameter would violate the apparent object or purpose of the restrictive covenant.

In reversing the trial court, the court en banc decided that the restriction in question was “unambiguous”. Relying on Burns v. Baumgardner, 303 Pa.Super. 85, 449 A.2d 590 (1982), for the proposition that restrictions on the use of land must be strictly construed, the court concluded that the antenna was not a “tower” within the normal usage or understanding of that term. The en banc court did not discuss the common meaning of the word.

In order to obtain a common meaning of the term, we turn to the dictionary definition. Webster’s Third International defines “tower” as “a building or structure designed primarily for elevation that is higher than its diameter____” We might find that the dish antenna in question comes within this definition, for it is clearly higher than it is wide, and, although it does not rise above the surrounding trees, the very fact that the dish is mounted on legs indicates that elevation is an intended aspect of its design. We find, however, that the word “tower” is a very general word, somewhat ambiguous, requiring interpretation in order to ascertain the intent of the drafter of the restrictive covenant.

Applying the guidelines set forth in Parker, it seems clear that the party imposing the restriction desired to prevent the construction of unsightly structures designed for radio and television reception in this rustic setting of beautiful homes. The word “towers” was undoubtedly used as a general term to include all the types of antennae then in general use for such reception. Had dish antennae been in general use for such purposes, a careful drafter might have chosen a word even broader than “towers” in order to accomplish his purpose. Considering the conditions existing in 1966 and the apparent purpose of the parties., we find that the Declaration’s prohibition against radio, television, or short wave reception towers was intended to apply to structures such as the satellite receiver dish in the case before us.

Accordingly, the final decree of the trial court en banc dismissing appellants’ complaint is reversed and vacated, and the case is remanded to the trial court for entry of a final decree in conformance with the decree nisi and with this opinion.


author: OLSZEWSKI, Judge:

text:
    504 A.2d 1329
    COMMONWEALTH of Pennsylvania v. Gerald E. ZIMMERMAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 3, 1985.
    Filed Feb. 20, 1986.

      Robert A. Longo, Lancaster, for appellant.
    Henry S. Kenderdine, Jr., District Attorney, Lancaster, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This appeal follows a judgment of sentence for murder of the first degree. Appellant has made numerous allegations of error. For the reasons that follow, we deem those allegations meritless and affirm the judgment of sentence.

On July 31, 1980, a young girl named Evelyn Fisher disappeared from her home. Her skeletal remains were found October 9, 1980, in the thick brush and foliage of the Welsh Mountains, about four miles from the girl’s home.

Appellant was arrested and charged with homicide. Michael J. Perezous was appointed as chief defense counsel. Pre-trial motions were filed and a suppression hearing was held on February 18, 1981. The lower court ruled that statements made by appellant would be admissible in the subsequent trial. Following a hearing March 20, 1981, appellant was found competent to stand trial. A change of venue was granted to counter the effects of adverse advance publicity. Trial commenced April 27, 1981 in Northampton County.

Commonwealth’s theory of the case was that appellant had lured the girl to his house, attacked her, then carried her to a secluded area where he bound her, assaulted her sexually, and left her for dead. In support of that theory, Commonwealth introduced evidence tending to establish that appellant had the motive, the opportunity and the means to commit the crime.

On May 6, 1981, appellant was found guilty of murder of the first degree and sentenced to life imprisonment. On June 2, 1981, appellant filed a pro se petition for appointment of new counsel. In it, he alleged ineffectiveness of trial counsel. New counsel was appointed and the allegations of ineffectiveness were explored more fully in an evidentiary hearing December 11, 1981. Post-verdict motions were filed, argued and denied. This appeal followed.

I

Appellant argues first that the lower court erred in failing to suppress statements made by him to the police during the night following Evelyn Fisher’s disappearance. The thrust of these statements was that appellant had indicated a “possibility” that he could have harmed the Fisher girl. Appellant, at the time he gave the statements, was contemplating taking his own life or running away. He now contends that in light of his mental condition at that time, the statements could not have been voluntary. In the alternative, he argues that the statements must be suppressed because the police had failed to advise him of his Miranda rights. We disagree.

The lower court made extensive findings of fact:

On the evening of July 31, 1980, Trooper Raymond Solt of the Pennsylvania State Police received a radio transmission to assist the Upper Leacock Township Police in a “possible hostage situation” taking place in Leola. At the time he received the radio transmission, Trooper Solt knew nothing of the disappearance of Evelyn Fisher.
Pursuant to the radio transmission, he went to the Leola Fire Company building and sometime between 11:00 p.m. and midnight of July 31, 1980, conferred with various Township police officers and other people, including defendant’s sister, Deborah Kieffer and her husband Eugene Kieffer. The purpose of this conference was to inform Trooper Solt about the actions of the defendant, who was at that time in his apartment at 73-B Main Street, Leola, which was a couple blocks away from the fire company. There were no flashing lights or sirens used by police vehicles as they arrived at the fire company.
As a result of his conversation at the fire company, Trooper Solt learned for the first time that Evelyn Fisher was missing from her home in New Holland and that the defendant had seen her on that day (July 31, 1980). In addition he also learned from Deborah Kieffer that the defendant had some mental problems and that there was a loaded rifle in defendant’s apartment.
It was ultimately decided that an attempt should be made to check out the defendant’s apartment. Thus at about 12:40 a.m. on August 1, 1980, Trooper Solt together with three other Pennsylvania State Police, all dressed in civilian clothes, wearing flack vests and armed, approached the apartment door of the defendant. When Trooper Solt reached the door, he knocked on it and requested the defendant to come out. He knocked a second time, heard movement in the apartment and soon saw the defendant appear at the door.
At that time Trooper Solt identified himself to the defendant and explained he was there to see if Evelyn Fisher was in the apartment. The defendant told him to come in and check, which Trooper Solt did. Prior to doing this, however, he asked the defendant to accompány the other three officers. Trooper Solt made this request for his own safety since his information at that time was that defendant had a loaded weapon in his possession. Trooper Solt then walked through the apartment and saw neither Evelyn Fisher nor a weapon. He then left the apartment and went down to the police cruisers, where Zimmerman was standing along with the other state policemen who by this time had removed their flack vests and placed their shotguns back in the vehicles. At this time he obtained general information from the defendant, such as his address and place of employment so that he could complete his report, the purpose of which was simply to negate the presence of Evelyn Fisher in the apartment. After giving this information, the defendant spontaneously began talking about the events of July 31st. Also at about 1:12 a.m. the defendant gave Trooper Solt permission to look in his car. After that the defendant suggested that the police check the house he had been renting at 115 Ranck Avenue, New Holland, Pennsylvania, which was located near the residence of Evelyn Fisher and where, according to the defendant, Evelyn Fisher had been sometime during the afternoon of July 31, 1980.
Upon arriving at the premises at 115 Ranck Avenue, the police gained admission to the house, to which all the doors were locked, when the defendant removed a window to allow entrance. A search of that house as well as the garage to the rear of the house did not disclose the presence of Evelyn Fisher and the police and the defendant returned to Leola, where Trooper Solt apprised other police officers as to what had taken place to date.
Trooper Solt, before leaving Leola, gave his card to Deborah Kieffer and offered his assistance if there were any further problems. He then returned to the Pennsylvania State Police barracks to return equipment and then began heading for home. En route, he received a radio message to go back to Leola immediately because the defendant was threatening to commit suicide. Upon his arrival back at the defendant’s apartment Trooper Solt conferred with the Kieffers and found out that a suicide note had been found at the apartment. At about 3:00 a.m., he again entered the apartment with defendant’s permission. The defendant was lying face down on a bed and he asked Trooper Solt to come in to the bedroom and talk to him. Solt did this and at that time the defendant talked about his depression over his impending divorce and other family problems. The defendant also told Solt that he had held a gun to his head but did not have the courage to use it.
At about this time Trooper Solt suggested that the defendant needed mental treatment but the defendant said he had been at St. Joseph Hospital and did not like it there. Finally he agreed to go to the hospital and Trooper Solt contacted Crisis Intervention to start the commitment procedures. During much of this discussion of defendant’s problems and the attempts to persuade him to go to St. Joseph Hospital, Eugene Kieffer, the defendant’s brother-in-law, was with Trooper Solt and the defendant.
By 6:00 a.m. on August 1, 1980, the defendant had been taken to St. Joseph Hospital. Also there with him besides Trooper Solt were Deborah and Eugene Kieffer as well as a representative of Crisis Intervention, who conducted a preliminary interview. Trooper Solt stayed at the St. Joseph Hospital during the admission procedures because the defendant had requested him to do so and because it was not certain at that time if there was a bed available for the defendant. In addition, Solt had been requested by hospital authorities to act as the petitioner to have the defendant committed to the hospital. During this time at the St. Joseph Hospital the defendant had requested Trooper Solt’s assistance in attempting to “put his day together” by going over the events of July 31, 1980. Sometime near the end of his stay at the hospital that morning, Trooper Solt was told by Eugene Kieffer that the defendant had asked him to get rid of fingernail clippings. Solt then had returned to the defendant and asked to take fingernail scrapings. The defendant was offended by this and said his nails were cut because the hospital regulations do not permit fingernail clippers and that he had known this from prior stays at the hospital.
Trooper Solt ultimately left the hospital around 8:50 a.m. on the morning of August 1, 1980 and because of the conversations concerning the fingernail clippings he asked the Kieff ers to return with him to the Pennsylvania State Police barracks.
As a result of his conversation with the Kieffers at the barracks, he learned several things which the defendant had told the Kieffers either before Trooper Solt had arrived for the first time on July 31, 1980 or before he had arrived after being called back to defendant’s apartment on August 1, 1980.
Several times after August 1, 1980, the Kieffers called the Pennsylvania State Police regarding things the defendant had told them. No one requested that the Kieffers report information to the Pennsylvania State Police or even suggested that they do so.
During all the time that Trooper Solt was involved with the defendant on July 31, 1980 and August 1, 1980, there was no evidence that a crime had been committed involving Evelyn Fisher. All that was known was that she was missing from her home as of July 31, 1980 and that defendant was a person who had seen her sometime on that day.
Although Deborah Kieffer periodically gave information to the police concerning statements the defendant made to her, she was never asked to work for the police or to obtain information at their request.
Finally, all of the conversations which defendant had with Trooper Solt were given by him in the absence of Miranda warnings. Thus there is no question that among other things the defendant was never told that the statements he was making to Trooper Solt could be used against him.
During the evening of July 31st and August 1st, defendant’s person was never searched by the police nor was his freedom ever restrained in any physical manner by the police. From their standpoint, he was never in their custody much less under arrest.

The lower court concluded that appellant was “a rational human being who had acted voluntarily in talking to Trooper Solt at various occasions on July 31st and August 1st.” The court also found that Miranda warnings were not necessary under the circumstances of that initial questioning.

In reviewing the order of the suppression court, we must consider the evidence of the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Silo, 480 Pa. 15, 18, 389 A.2d 62, 63 (1978). “Where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal.” Commonwealth v. O’Bryant, 479 Pa. 534, 537, 388 A.2d 1059, 1061 (1978). We find sufficient support in the record for the lower court’s findings of facts.

On the basis of these facts, we agree that appellant’s statements were at all relevant times voluntary. We note that appellant evinced no physical disability during his conversations with Trooper Solt. Even taking into account appellant’s acute depression and considering his history of mental problems, we find nothing in the record to indicate that appellant’s statements were the product of an irrational intellect. The testimony on record indicates that appellant at the time of questioning directed the police to 115 Ranck Avenue where he helped them gain admission to his former residence. Appellant discussed his problems concerning marriage and family. Sometime during those hours, he assessed the need to cut his fingernails for whatever reason and to attempt to dispose of the clippings. These factors in the totality of the circumstances point to a finding of voluntariness.

With respect to appellant’s claim of Miranda violations, it is true that a person must be informed of his Fifth Amendment rights before any custodial interrogation can take place. Pennsylvania case law has defined “custodial interrogation” as questioning which occurs while the suspect is physically deprived of his freedom in any significant way or where he is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983). The lower court found as a fact that appellant had never been physically deprived of his freedom. Together, the fact that appellant was never subjected to a search of his person, that he volunteered statements to Trooper Solt, that family members were present during much of the questioning, all counter a finding that appellant could reasonably have believed he was in custody at the time of the questioning. See Commonwealth v. Hanna, 267 Pa.Super. 15, 405 A.2d 1280 (1979) (suppression not required where nature of proceedings was investigatory, defendant was cooperative and investigation had not yet centered on defendant to the exclusion of others).

II

Appellant next contends that the trial court erred by admitting into evidence testimony and exhibits which tended to establish a sexual motive for the attack. He argues that the evidence was relevant only to “other, uncharged crimes.” Admission of the evidence in his trial for murder, appellant alleges, inflamed the passions of the jurors and unduly prejudiced his case.

The challenged evidence went to the position and condition in which the victim’s body was found. Police discovered her body naked. A pair of jeans had been looped through the girl’s arm bones. The arm bones were tied behind the girl’s back. A knee sock was found stuffed in the girl’s mouth. The clothing found in a pile approximately 125-130 feet away had apparently been cut from the girl’s body:

The bra was a Best Form label, size 34A. The bra was cut in three different places. It was cut up the center between the two bra cups, it was cut on one shoulder strap and the back strap was also cut, but the clasps to the bra were still fastened.
I next found under the bra and yellow and white terry cloth pullover shirt. The shirt was cut up the center and cut up each side and up through and including the sleeve area. Under the shirt was a pair of cotton cloth panties, a J.C. Penneys label, size 14. These panties were cut up-each side of the leg of the brief.

Testimony of John Ator. A pair of sneakers lay laced and tied atop the pile of clothing. The clothing and the sneakers were identified as those of Evelyn Fisher.

Commonwealth introduced these articles in an attempt to establish a sexual motive for the attack upon Evelyn Fisher. The prosecution posited that a sexual assault or molestation occurred contemporaneously with the killing. Under Commonwealth’s theory of the case, the homicide grew out of the circumstances of sexually related criminal activity. We note that Commonwealth failed to charge appellant with a sexual offense. The crime of felony-murder was not before the jury. We must reject any argument of relevance under a theory of felony-murder. It remains to be decided whether the evidence of sexual assault is relevant and admissible under some theory of criminal homicide.

Murder of the first degree requires proof that the killing was “willfull, deliberate and premeditated.” 18 Pa.C.S. Sec. 2502(a) and (d). Cut clothing and a nude body do not in themselves establish a specific intent to kill. To the extent that the evidence was arguably relevant to establish the sequence of events, that relevance must be weighed against the potential for prejudice which would follow admission of the evidence. Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978).

Murder of the third degree, however, consists of just two elements, causation and malice. See Jury Charge infra at footnote 5. Evidence which would tend to establish that appellant had pinioned the girl, gagged her, stripped her, struck her and left her to choke on her own blood would be relevant to the question of malice. See Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968) (blow to victim’s head with hardwood stick followed by dragging of victim for 80 feet and abandonment of him unconscious, half-naked on a winter night when victim was breathing but bleeding profusely HELD sufficient to establish malice). The evidence relevant and admissible to establish malice, the jury should have been instructed that the evidence was before it for that limited purpose, as tending to show malice. See Pennsylvania Suggested Standard Jury Instructions, Criminal No. 3.08, Evidence of Other Offenses, Relevancy Limited to Particular Issue. The subcommittee Note to Instruction 3.08 suggests that the instruction “be given whether or not requested when the court has received evidence of an uncharged offense by the defendant which tends to prove a particular contention advanced by the Commonwealth or to rebut a defense contention.” (emphasis added). Trial counsel failed to request a limiting instruction as to the relevance of the challenged testimony. Appellant has failed to raise a question as to counsel’s inaction. The issue, therefore, is waived. Commonwealth v. Quartman, 253 Pa.Super. 460, 464, 385 A.2d 429, 432 (1978).

As a corollary, appellant argues that the trial judge erred in allowing photographs of the victim’s clothing at the scene to accompany the jury in its deliberations. Admission of photographs in a criminal case lies within the sound discretion of the trial court. Absent a flagrant abuse of that discretion, we will not disturb the decision of the lower court. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978).

In determining whether to admit photographs of a crime scene, “the trial court must apply a balancing test as to the value of the evidence offered against its tendency to unduly inflame the jury’s considerations.” Commonwealth v. Allen, 239 Pa.Super. 83, 92, 361 A.2d 393, 397 (1976). The court determined that the evidence should be viewed by the jury. We note that the court permitted only the photographs of the sock and other articles of clothing to accompany the jury in deliberations. It did not allow the actual articles of clothing to go to the jury. It is well-established that the potential for prejudice is diminished where the photographs depict the crime scene rather than the body of the victim. See Commonwealth v. Miller, 268 Pa.Super. 123, 407 A.2d 860 (1979). We find no error in the lower court’s choice.

Ill

Appellant raises a single challenge to the jury charge. He argues that the trial court erred in failing to correct its instruction on the doctrine of diminished capacity. Specifically, he alleges that the trial judge failed to explain the role and purpose of expert psychiatric testimony concerning appellant’s mental capacity to form the specific intent required for a conviction of first-degree murder. See Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976). He contends further that the trial judge neglected to inform the jurors that proof of diminished capacity could reduce the crime to murder of the third degree.

Our inquiry proceeds in stages. First we must decide whether a defendant in any event would be entitled to a charge on diminished capacity. Next, we determine whether the evidence in this case warranted such a charge. Finally, we assess the adequacy of the charge as given. “An accused offering evidence under the theory of diminished capacity concedes general criminal liability. The thrust of this doctrine is to challenge the capacity of the actor to possess a particular state of mind required by the legislature for the commission of a certain degree of the crime charged.” Commonwealth v. Walzack, 468 Pa. at 221, 360 A.2d at 919-920. Appellant was charged, and the Commonwealth sought conviction, under a theory of murder of the first degree. Section 2502 of the Crimes Code defines murder of the first degree as “criminal homicide ... committed by an intentional killing.” 18 Pa.C.S. Sec. 2502(a). The Commonwealth, in the instant case, had the burden of proving beyond a reasonable doubt that appellant possessed the specific intent to kill. Commonwealth v. Walzack, 468 Pa. at 218-19, 360 A.2d at 918. Evidence of appellant’s diminished capacity was submitted for consideration of the jury. If believed, it could have negated the intent to kill necessary for a conviction of murder in the first degree. Appellant was entitled to a charge to that effect. See Commonwealth v. Capitolo, 324 Pa.Super. 61, 471 A.2d 462 (1984) (an accused has a fundamental right to submit to the jury whatever defenses are legally available to him); cf. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975) (defendant is entitled to instruction that evidence of substantial intoxication, if believed, may negate element of intent to kill necessary for conviction of murder in first degree).

By stipulation of counsel, the trial court read into the record the reports of three doctors who had treated appellant. Dr. Truman E. Mast, the principal attending psychiatrist during appellant’s first and second hospitalizations at St. Joseph Hospital, wrote in a report dated September 24, 1980 that appellant was rambling, confused and subject to auditory hallucinations. Dr. Mast diagnosed appellant’s condition as major depression with psychotic features, paranoid personality disorder with history of some psychotic symptoms. On September 16, 1980, Dr. Lawrence Dresdale, a psychologist at St. Joseph’s, filed a report regarding psychodiagnostic testing administered to appellant. Dr. Dresdale’s report noted severe signs of thought disorder in appellant’s speech:

Gerald Zimmerman is currently functioning in the average range of intelligence with some loss of intellectual efficiency. By his report, he has had relatively long standing personality maladjustment associated with anxiety in social situations and paranoid ideation of a loosely structured nature. Drug and alcohol use apparently have contributed to his emotional disturbance. Personality testing reveals a though disordered individual with a rather considerable depressive component. The possibility exists that under emotional stress he could also experience disassociative reactions.

In a report dated October 7, 1980, Dr. Moscoso of the Harrisburg State Hospital diagnosed appellant’s condition as depressive neurosis with paranoid features.

The defense then introduced Ann Woodland, a psychologist, who testified to the results of her psychological testing of appellant. She found a paranoid personality disorder as well as substance organic mental disorder resulting from appellant’s drug and alcohol involvement. Woodland had questioned appellant about his involvement with the victim:

He told me that he had used Evelyn as a babysitter, that he knew her well, the family knew each other, and when Jerry spoke about the events that happened, there was lapses in his memory and confusion. He could not sequence the events from the day before to the day of the alleged crime. He did mention to me that he struck her. He recalls doing that. From then on, Jerry couldn’t remember what happened.

Dr. Robert J. Kurey, qualified as an expert witness in psychiatry, gave his opinion that appellant “at the moment I feel of the alleged crime had a diminished capacity.”

On the testimony presented, we conclude that the issue of diminished capacity had been fairly raised. The duty fell therefore to the trial judge to instruct the jury fully and accurately as the applicable legal principles. Cf. Commonwealth v. Demmit, 456 Pa. 475, 483, 321 A.2d 627, 632 (1974) (“There must be some evidence in the case from whatever source____”).

The lower court charged the jury that:

There was testimony by the defendant’s — the witness called by the defendant, the psychiatrist, as to the diminished capacity. Murder in the first degree, as you well know by now, is an intentional killing. It is willful, deliberate and premeditated. The killer must make a conscious decision to kill and must have a fully formed intent to kill. In determining whether or not the defendant committed the kind of intentional killing required for first degree murder, you should consider the evidence of the expert witnesses as well as all other evidence which may shed light on what was going on in the defendant’s mind at the time of the alleged killing.

The charge as given was deficient in several respects. It failed to either define diminished capacity or explain its relevance. More importantly, the charge failed to apprise the jury that a finding of diminished capacity would reduce the crime to murder of the third degree.

Our Supreme Court, in Commonwealth v. Zettlemoyer, 500 Pa. 16, 36, 454 A.2d 937, 947 (1982), cert. denied, Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), approved a charge defining the defense of diminished capacity as “a contention that because of the mental capacity of the defendant he did not have the ability to form a specific intent to kill at the time he committed the crime.” Accord Commonwealth v. Weinstein, 499 Pa. 106, 112-13, 451 A.2d 1344, 1347 (1982), citing Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976) (psychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill). The charge approved in Zettlemoyer made clear:

The burden of proof rests with the Commonwealth to prove such element of the crime beyond a doubt. Therefore, in order to meet the burden of proof required for murder of the first degree, the Commonwealth must prove beyond a reasonable doubt that the killing was willful, deliberate and premeditated and that at the time of the killing the defendant was not acting with a diminished capacity.
* * * * * *
The mere fact that the Commonwealth produced evidence tending to show that the defendant may have had a motive to kill or that he planned and premeditated the killing does not necessarily eliminate the defense of diminished capacity. If you have a reasonable doubt that during that time period in which the defendant planned and premeditated that he suffered a mental illness, defect or abnormality which prevented him from fully forming the specific intent required for murder of the first degree then you must find him not guilty of first degree murder.

500 Pa. at 37, 454 A.2d at 947. The charge in the instant case mentions, but does no more than mention, the partial defense of diminished capacity. In light of the gravity of the offense, the “narrow” nature of the diminished capacity defense, Commonwealth v. Zettlemoyer, 500 Pa. at 39-40, 454 A.2d at 949, and the fact that Commonwealth relied entirely on circumstantial evidence to establish intent, something more was needed.

At the very least, the trial court should have defined the concept of diminished capacity, explained the relevance of diminished capacity to the requisite intent to kill and instructed the jury that proof of diminished capacity could reduce the crime to murder of the third degree. Cf. Pennsylvania Suggested Standard Jury Instructions, Criminal No. 5.01B:

5.01B (Crim) DIMINISHED CAPACITY — RELEVANCE OF EXPERT TESTIMONY TO SPECIFIC MENS REA
(1) As I told you earlier, you cannot find the defendant guilty of first degree murder unless you are satisfied beyond a reasonable doubt that he had the specific intent to kill. A specific intent to kill is a fully formed intent to kill of which the defendant was conscious. The defendant asserts that as a result of an abnormal mental condition he was at the time of the killing incapable of that kind of intent. Obviously, you cannot find him guilty of first degree murder unless you are satisfied beyond a reasonable doubt that the defendant’s claim is wrong and that he was capable of the specific intent to kill.

Date of Last Revision, October 1983. Trial counsel did request the judge to instruct the jurors that: “evidence of diminished mental capacity, if believed by them, is sufficient to reduce the degree of the crime of murder. Not only might it be sufficient to reduce the degree, but (it) is evidence to be considered by them in order to determine whether to reduce the degree.” The trial judge declined to do so.

While we believe that the better practice would have been to issue the requested charge, we note that the court did properly instruct the jury as to the elements of first and third degree murder. Reading the jury charge as a whole, we cannot say that the lower court’s failure to instruct the jury on “diminished capacity” constitutes reversible error. See Commonwealth v. Ohle, 503 Pa. 566, 470 A.2d 61 (1983) (jury instruction must be read as a whole).

IV

Appellant challenges the effectiveness of assistance rendered by trial counsel. At the time of trial, lead counsel for the defense was a candidate for judge of the Court of Common Pleas of Lancaster County. Counsel had received the endorsement of the Republican party; he ran unopposed in the primary election which took place several days after the close of appellant’s trial. This case had generated a tremendous amount of publicity adverse to appellant; for that reason, a change of venue had been granted. Appellant argues that the conflict created by counsel’s candidacy and concommitant need to maintain a favorable public image effectively precluded presentation of an unimpaired defense.

The Code of Professional Responsibility provides that: “Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests.” Code of Professional Responsibility DR 5-101(A) (adopted by the Supreme Court of Pennsylvania on February 27, 1974). The Code explains: “The desires of a third person will seldom adversely affect a lawyer unless that person is in a position to exert strong economical, political, or social pressures upon the lawyer. These influences are often subtle, and a lawyer must be alert to their existence.” Code of Professional Responsibility EC 5-21.

To show ineffective assistance of counsel, appellant must establish that counsel’s outside interests impinged on his representation of appellant at trial. “Counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth v. Dancer, 460 Pa. 95, 103, 331 A.2d 435, 439 (1975).

Appellant, in support of his claim of ineffectiveness, objects to various statements made by counsel during closing argument. Counsel began his argument by cautioning the jury not to confuse the lawyer with his client:

Lawyers often get asked well, why are you involved in that case. How can you be involved in that case. I hope that this quotation provides the answer.
'From the moment that any advocate can be permitted to say that he will or will not stand between the crown and the subject charged in the Court where he daily sits to practice, where the advocate or the lawyer can make that decision, the liberties of England are at an end. If the lawyer refuses to defend from what he may think of the charge or of the defense, he assumes the character of the Judge. Nay, he assumes it before the hour of judgment and in proportion to his rank and reputation, puts the heavy influence of perhaps a mistaken opinion into the scale against the accused.’

He characterized the case as a “very hot potato,” “a gruesome case,” and “not a pleasant duty.” He instructed the jury that malice is an ingredient in murder of the first degree. He told the jurors: “You know I can look each of you right in the eye and I can say to you that I don’t think it’s a verdict of not guilty.”

At a post-trial evidentiary hearing, counsel explained he had wanted the jury to understand that he knew the case was a very serious one. The characterizations, a “very hot potato,” “a gruesome case” and “not a pleasant duty” can be deemed fairly calculated to impress upon the jury the seriousness of the task before it. Counsel’s statement regarding malice, though potentially misleading, see Pennsylvania Suggested Standard Jury Instructions, Criminal No. 15.2502A, must be weighed against his repeated cautions that the judge would ultimately instruct the jury on the law. The judge did subsequently charge the jury on the constituent elements of the various types of criminal homicide. We find no reversible error here.

Again, counsel’s assertion that his client was guilty of some type of criminal homicide may be interpreted as a tactical choice designed to establish credibility with the jury. Cf Code of Professional Responsibility DR 7-106(c)(4) (“In appearing in his professional capacity before a tribunal, a lawyer shall not ... (a)ssert his personal opinion ... as to the guilt or innocence of an accused____”).

We are troubled still by the quote with which counsel commenced his close to the jury. The quote, which counsel later explained came from Thomas Erstine’s defense of Thomas Paine, served only to tell the jury why he, counsel, was involved with this “gruesome case.” It is impossible to assess the impact of this statement. A reasonably foreseeable effect would have been to isolate the defendant still further and to strip from him whatever credibility he may have derived from association with counsel. We note the mandate of Disciplinary Rule 7-101: “A lawyer shall not intentionally ... (p)rejudice or damage his client during the course of the professional relationship____” Code of Professional Responsibility DR 7-101(A)(3). We are sensitive to problems facing an attorney charged with the defense of an unpopular case. Once the attorney undertakes representation of that client, however, he must subsume his personal feelings of dismay to the best interests of his client. See ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function, The Defense Function, Standard 1.6, Client interests paramount (“whether privately engaged, judicially appointed or serving as part of a legal aid system, the duties of a lawyer to his client are to represent his legitimate interests, and considerations of personal and professional advantage should not influence his advice or performance”). On the facts of this case, we do not find reversible error in counsel’s inopportune statements during close.

Appellant also alleges ineffective assistance for counsel’s failure to object to various statements made by the district attorney during closing argument. The gist of these statements was to characterize the offense as a sex crime:

And it is clearly, it should come as no surprise to anyone, the contention of the Commonwealth that there was a sexual motivation, although it is an uncharged crime, and sexual advances on his part.
He drove back further on the firetrail, and at a location farther back the trial, removed her from the car, cut off her clothing in an effort to have his way with her.
* Sf! * * * Sfc

A sexual assault.

Although appellant had not been charged with a sexually-related crime, Commonwealth had been permitted to introduce evidence tending to suggest that appellant’s motive was sexual in nature. Once the evidence was admitted, the district attorney could fairly argue the facts and evidence and legitimate inferences therefrom. Commonwealth v. DeMarco, 281 Pa.Super. 62, 67-68, 421 A.2d 1147, 1150 (1980). Further, as defense counsel explained at the post-trial evidentiary hearing, strategy dictated that he not bring “attention to that particular statement, sexual advances. We didn’t want to draw any more attention to it by the jury.” Finding a reasonable basis for counsel’s inaction, we reject appellant’s claim. Commonwealth v. Dancer, 460 Pa. at 104, 331 A.2d at 439.

Judgment of sentence affirmed.

CAVANAUGH and HOFFMAN, JJ., concur in result.

      . Commonwealth introduced evidence that appellant was, at the time of Evelyn Fisher’s disappearance, separated from his wife. Witnesses testified that Evelyn Fisher bore a strong physical resemblance to appellant’s estranged wife. Although trial counsel objected to admission of testimony that appellant was sexually frustrated, Commonwealth argued "He missed all the affection that his wife formerly had given him and he wanted to get some affection from Evelyn Fisher____ A sexual assault. That’s it.”
      To establish means, Commonwealth presented Paul N. Bowman who attested to appellant’s proficiency in martial arts. On cross-examination, Bowman explained that the philosophy of martial arts is "extremely defensive” in nature.
      Commonwealth’s evidence of opportunity consisted of testimony that appellant had called Evelyn Fisher and asked her to clean his house. The girl left to go to appellant’s house which was next-door to her parents' home. That was the last she was seen alive.
      An elderly woman, who lived between appellant’s house and the woods where Evelyn Fisher’s body was eventually found, testified that she had seen appellant’s car stop by her house that afternoon. In the car, a man turned “and with both fists, started punching someone on the back seat.”
      Various witnesses testified to appellant’s actions later that day. From the testimony, an inference could fairly be drawn that appellant was attempting to establish an alibi for that afternoon.
      The defense introduced Ann Woodland, a psychologist who testified that appellant had told her he struck the girl: "He recalls doing that. From then on, Jerry couldn't remember what happened.”

      . Extending the argument, appellant contends that his sister had effectively acted as an agent of the police and so any statements made to her during his stay in the psychiatric unit of St. Joseph’s Hospital must also be suppressed. Appellant has failed to develop this argument. We deemed it waived. See Pa.R.A.P., Rule 2119, 42 Pa.C.S.A.. Further, we note that the court found as fact that Deborah Kieffer, appellant's sister, was never asked to work for the police nor was she asked to obtain information for them.

      . Section 2502 of the Crimes Code defines murder of the second degree as "criminal homicide ... committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.” 18 Pa.C.S. Sec. 2502(b).

      . The evidence would, of course, also tend to establish a sexual motive for the attack. Proof of motive is not required for a conviction of murder of the first degree. See 42 Pa.C.S. Sec. 2502(a). Motive may, however, be probative of intent to kill if the evidence establishes a motive to kill. See Commonwealth v. Tomoney, 488 Pa. 324, 412 A.2d 531 (1980) (testimony indicated that accused had a desire to retaliate for an earlier killing); Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976) (jury could reasonably have inferred that defendant had intended to vent his malice toward his estranged wife and her employer). In contrast, the evidence in this case would tend to establish a motive for a sexual attack. Under a theory of felony-murder, that motive would be relevant to the question of transferred intent. The Commonwealth, we note, has failed to charge appellant with any felony. On the facts of this case, proof of motive is of dubious relevance to a specific intent to kill.

      . We note that counsel failed to request cautionary instructions. Compare Commonwealth v. Allen, 239 Pa.Super. at 92, 361 A.2d at 397 (“Also, the record shows that the lower court properly cautioned the jury to avoid prejudice against the defendants because of these exhibits.”)

      . The lower court defined third degree murder as consisting of two elements:
      The first element, again, the same as in first degree murder, is you must find the death of Evelyn Fisher would not have occurred but for the defendant’s act.
      The second element of murder of the third degree is that the defendant acted with malice, and malice has a meaning in law which is as follows:
      Malice consists either of an intent to kill or inflict great bodily harm or of a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty indicating unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. Malice may be either expressed by the defendant or implied from his words or contact.
      We note that appellant has failed to challenge the sufficiency of the evidence to sustain his conviction for murder of the first degree.


text:
    504 A.2d 1341
    COMMONWEALTH of Pennsylvania, Appellant, v. Charles FLENORY, Jr., Appellee.
    Superior Court of Pennsylvania.
    Argued Sept. 12, 1985.
    Filed Feb. 10, 1986.

      Robert Johnson, Assistant District Attorney, Greensburg, for Com., appellant.
    Irving M. Green, New Kensington, for appellee.
    Before OLSZEWSKI, POPOVICH and MONTGOMERY, JJ.
   OLSZEWSKI, Judge:

This is a challenge to the order dismissing the criminal information against appellee. Appellee was convicted of a November 10, 1982 assault. At the time of trial, an information had been filed against appellee for the September 17,1983 intimidation of a victim-witness to the assault. The court below found that the crimes rose from a single criminal episode and dismissed the information. We disagree.

Appellee and eight co-defendants were charged with criminal homicide, aggravated assault, and criminal conspiracy in connection with the death of one person and the injury of another on November 10, 1982. The cases against appellee and seven co-defendants were consolidated for trial. On September 17, 1983, appellee allegedly met with the surviving victim, a prosecution witness. The confrontation took place in a bar where appellee threatened and tried to bribe the witness, and brandished a handgun. On October 28, 1983, three days before trial began, the criminal information that is the subject of this appeal was filed against the appellee. The charges relating to the September, 1983 incident contained in the information were not raised at the trial for the November, 1982 incident.

Section 110 of the Pennsylvania Crimes Code provides in relevant part as follows:

Although a prosecution is for a violation of a different provision of the statutes than a former prosecution or is based on different facts, it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title (relating to when prosecution barred by former prosecution for the same offense) and the subsequent prosecution is for:
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense ____

18 Pa.Con.Stat.Ann.Sec. 110 (Purdon’s 1985). The charges against appellee stemming from the September, 1983 incident were dismissed pursuant to Section 110 on the grounds that they arose from the same criminal episode as the November, 1982 charges for which appellee had already been tried. The only question before us is whether the incidents arise from the same criminal episode.

Whether incidents are part of a single criminal episode depends on the facts of each case. See Commonwealth v. Stewart, 493 Pa. 24, 425 A.2d 346 (1981) (where stop and frisk revealed gun and heroin, the offenses of carrying firearm and possession of heroin were single criminal episode, as simultaneous possessory offenses); Commonwealth v. Taylor, 334 Pa.Super. 242, 482 A.2d 1315 (1984) (harassment with gun at one location, and arrest for carrying concealed weapon 15 minutes later at different location where defendant had gone to conceal gun were part of same criminal episode); Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984) (theft by receiving stolen property and unlawful possession of controlled substance discovered in course of search connected with theft not same episode, not rendered part of same episode because evidence found during same search). The determination involves consideration of: (1) the temporal sequence of events; (2) the logical relationship between the acts, and (3) whether they share common issues of law and fact. See Commonwealth v. Hude, 500 Pa. 482, 458 A.2d 177 (1983); Commonwealth v. Stewart, 325 Pa.Super. 465, 473 A.2d 161 (1984).

The incidents in the instant case are not temporally close or contiguous. See, e.g., Commonwealth v. Green, 232 Pa.Super. 134, 335 A.2d 493 (1975) (stabbings of three people all part of same criminal episode, even though they occurred in different places, when fight moved from porch to driveway). They occurred ten months apart. They were not part of a continuing series of occurrences. See Hude, 500 Pa. at 484-487, 458 A.2d at 178-179.

There is a relationship between the acts, but it is not the type of logical relationship that will bar the subsequent prosecution. If the appellee had not attacked the victim, then the appellee would not have been arrested or charged with the injury, ten months later the appellee would not have been scheduled for trial, the victim would not have been scheduled to testify against the appellee, and the appellee, presumably, would not have threatened the victim and tried to convince him, with the aid of a gun, not to testify. The relationship is too far removed from the initial offense. The offenses were not steps necessary to accomplish an objective. See Taylor, 334 Pa.Superior Ct. at 246, 482 A.2d at 1317. In Taylor, this court was influenced by the fact that there was no “break” in the criminal activity. Id. Here, the break was of ten months duration.

The incidents do not share common issues of law and fact, although evidence of the intimidation may have been admissible at the first trial to infer guilt, and evidence of the assault may be admissible at the second trial to show motive, neither crime is necessary to prove the other. They involve different facts and different issues. They are offenses unrelated in kind — one is an assault on a person, the other a possessory offense and an obstruction of justice. Factually, they are separated by time and distance.

The Pennsylvania Supreme Court has stated that “where a number of charges are logically and/or temporally related and share common issues of law and fact, a single criminal episode exists, and separate trials would involve substantial duplication and waste of scarce judicial resources.” Hude, 500 Pa. at 494, 458 A.2d at 183. In this case, not only are appellee’s crimes not part of a single criminal episode, but consolidation of the charges for a single trial may have necessitated severance of appellee’s case from that of the seven co-defendants with whom he was tried for the first offense. The eight cases consolidated in that trial arose from a single incident and involved many of the same issues of law and fact. A separate trial for. defendant on those charges would necessitate the “substantial duplication and waste of scarce judicial resources” that our Supreme Court sought to avoid in Hude. Hude, 500 Pa. at 494, 458 A.2d at 183.

Accordingly, the order of the court below is reversed. We remand this case for further proceedings and relinquish jurisdiction.


author: HOFFMAN, Judge:

text:
      504 A.2d 1343

    OAK RIDGE CONSTRUCTION COMPANY v. Roy R. TOLLEY and Aureline Tolley, his wife, Appellants.
    Argued April 3, 1985.
    Decided Dec. 27, 1985.
    Reargument Denied March 3, 1986.

      Brenda M. Flock, Philadelphia, for appellants.
    Peter J. O’Brien, Mount Pocono, for appellee.
    Before CAVANAUGH, OLSZEWSKI and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the lower court’s judgment awarding appellee, Oak Ridge Construction Co. (Oak Ridge), damages for appellants’, the Tolleys’, anticipatory breach of a construction contract. The Tolleys contend on appeal that the lower court erred in (1) finding that they, rather than Oak Ridge, had breached the contract; (2) striking testimony as to the unreasonableness of drilling an 800 foot well; and (3) awarding damages to Oak Ridge. We affirm in part, reverse in part, and remand for further proceedings.

In June, 1982, the Tolleys and Oak Ridge entered into a contract pursuant to which Oak Ridge agreed to construct a residence on the Tolleys’ property for $64,500. The Tolleys provided Oak Ridge with specifications, which were incorporated into the contract, and a plot plan. The specifications contained, inter alia, the following provision:

20. Water Supply
Drill well 150' deep with 40' of 6" casing, lk H.P. submersible pump and a 21 gallon storage tank. Should well be more than 150' a charge of $6.50 per ft. will be made. Should casing be over 40' a charge of $7.00 per ft. will be made. Should well depth require a deep lift pump, extra cost to be borne by owner. Well depth over 100' may require a larger pump.

(Emphasis in original). Before drilling began, Oak Ridge warned the Tolleys that the well might be very deep because other wells in the area had been drilled to depths of 760 and 975 feet. Oak Ridge then drilled the well at a place indicated by one of the Tolleys’ employees after referring to the plot plan. It was completed on August 24, 1982, after being drilled to a depth of 800 feet. On August 27, Oak Ridge sent the Tolleys an invoice including charges of $4225 for the extra 650 feet of drilling and $616 for an extra 88 feet of casing, amounts computed using the rates specified in the contract. On September 2, Mr. Tolley wrote Oak Ridge stating that those charges were “in dispute or disagreement. All work under item 20 (Water Supply) ... are [sic] to cease pending satisfactory resolution or settlement under item 13 (Arbitration) of our construction agreement.” Oak Ridge replied on September 7, stating that it believed that the Tolleys had breached the contract by refusing to pay the invoice and that it was giving them ten days notice under paragraph seven of the contract (Termination by Contractor), which provides as follows:

Should owner in any manner, by act or omission, violate or breach any covenant herein, then CONTRACTOR may, at his option, terminate this agreement, upon ten (10) days written notice to OWNER of any such violation or breach. Upon failure of OWNER to correct the same within the ten (10) day period, then, and in such event of termination, CONTRACTOR shall be entitled to receive payment for all unpaid materials, labor, and work of sub-contractors, for work and materials completed, installed, delivered on site, and ordered but undelivered and not installed, plus 20% of the total contract price as liquidated damages. In the event CONTRACTOR shall stop work hereunder, he shall in no way be liable for any loss or damage whatsoever as a result thereof.

Oak Ridge also notified the Tolleys that it was stopping work on the house and named an arbitrator in response to Mr. Tolley’s letter and pursuant to paragraph thirteen of the contract. On September 10, Mr. Tolley responded, stating, “arbitration under our contract is not advised at this time.”

Based upon these facts, the court below found that the Tolleys had committed an anticipatory breach of the contract justifying Oak Ridge’s termination. See Lower Court Opinion dated October 1, 1984 at 11. We disagree.

“An anticipatory breach of a contract occurs whenever there has been a definite and unconditional repudiation of a contract by one party communicated to another. A statement by a party that he will not or cannot perform in accordance with agreement creates such a breach. See 4 Corbin on Contracts § 959, p. 852-856 (1951).”

Jonnet Development Corp. v. Dietrich Industries, Inc., 316 Pa. Superior Ct. 533, 543, 463 A.2d 1026, 1031 (1983), quoting Wolgin v. Atlas United Financial Corp., 397 F.Supp. 1003, 1014 (E.D.Pa.1975), aff'd 530 F.2d 963, 966 (3d Cir.1976). See also McClelland v. New Amsterdam Casualty Co., 322 Pa. 429, 433, 185 A. 198, 200 (1936); Restatement (Second) of Contracts § 250 (1981) [hereinafter cited as Restatement].

In order to constitute a repudiation, a party’s language must be sufficiently positive to be reasonably interpreted to mean that the party will not of cannot perform. Mere expression of doubt as to his willingness or ability to perform is not enough to constitute a repudiation, although such an expression may give an obligee reasonable grounds to believe that the obligor will commit a serious breach and may ultimately result in a repudiation____ However, language that under a fair reading “amounts to a statement of intention not to perform except on conditions which go beyond the contract” constitutes a repudiation. Comment 2 to Uniform Commercial Code § 2-610.

Restatement, supra § 250 comment b (emphasis added).

In the instant case, we cannot say that the language in Mr. Tolley’s letter constituted a “definite and unconditional repudiation” of the contract which “amounts to a statement of intention not to perform except on conditions which go beyond the contract.” The letter merely stated that the charges for work performed under item twenty of the contract’s specifications were “in dispute or disagreement” and requested resolution of the dispute under the arbitration clause of the contract. The letter did not contain an unequivocal refusal to pay the drilling charges or a repudiation of the entire contract. Thus, when Oak Ridge gave the Tolleys ten days notice that it was terminating the contract, the Tolleys had not committed an anticipatory breach.

We must therefore turn to the Tolleys’ contention that Oak Ridge breached the contract either by (1) drilling the well to the allegedly unreasonable depth of 800 feet or (2) stopping work on the house. In connection with their first allegation, the Tolleys argue that the lower court erred in striking testimony concerning the reasonableness of drilling a well to that depth. We disagree.

Questions of the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Lewis v. Mellor, 259 Pa.Superior Ct. 509, 393 A.2d 941 (1978). The court may exclude evidence that is irrelevant or merely cumulative of other evidence. Id.

Burch v. Sears, Roebuck & Co., 320 Pa.Superior Ct. 444, 455, 467 A.2d 615, 621 (1983). At trial, the Tolleys sought to introduce testimony to show that it was unreasonable for Oak Ridge to drill an 800 foot well because (1) most wells in the area were not that deep and (2) water found in wells of that depth may be of poor quality. However, item twenty of the contract specifications required Oak Ridge to drill a well 150 feet deep, unless a deeper well was necessary to ensure an adequate water supply, and the well location was established by the plot plan provided by the Tolleys. Furthermore, Oak Ridge warned the Tolleys that other wells in the area had been drilled to depths as great as 975 feet and that a deep well might be necessary to achieve an adequate water supply. Under these circumstances, where the contract required Oak Ridge to dig a well at the site specified by the Tolleys and they had been warned that a deep well might result, we find that evidence concerning the depth of other wells in the area was irrelevant and the lower court did not abuse its discretion in excluding it. In addition,

it is well settled law that a contract to dig a well presents a different question from that presented in contracts by manufacturers or builders____ While there is an implied understanding in the contracts of manufacturers and builders that the completed subject of the contract shall be reasonably suitable for its purpose, this implication is based upon the supposed superior knowledge of the manufacturer or builder. However, since the quantity, if any, and the quality of water a well will furnish is unknown to both parties, there is no implication, if the contract is silent in these respects, that the well when completed will be a producing well; or, if it is productive, there is no implication as to the quantity or quality of water to be obtained therefrom. 55 A.L.R. 1550(f).

Ferguson v. Burge, 194 Pa.Superior Ct. 202, 205-06, 166 A.2d 288, 290 (1960). In the instant case, the contract was silent as to the quality of the water to be produced. We therefore find that the lower court did not abuse its discretion in striking testimony concerning the quality of the water in this well and others of its depth when such quality was not properly at issue.

The Tolleys also allege that Oak Ridge breached the contract by stopping work on the house on September 7. “When performance of a duty under a contract was due, any nonperformance is a breach.” Restatement supra § 235(2). If a breach constitutes a material failure of performance, then the non-breaching party is discharged from all liability under the contract. See Greentree Borough v. Tortorete, 205 Pa.Superior Ct. 532, 535, 211 A.2d 76, 78 (1965); Restatement, supra § 237. In determining whether a failure of performance is material, we consider the following factors:

a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
b) the extent to which the injured party can be adequately compensated for that part of that benefit of which he will be deprived;
c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
d) the likelihood that the party failing to perform or offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
e) the extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing.

Restatement, supra, § 241.

Here, having found that the Tolleys did not anticipatorily breach the contract, we must find that Oak Ridge breached it by stopping work on the house on September 7 without justification. We must therefore consider whether that breach was material in light of the factors enumerated above. The Tolleys, as the injured party, were deprived of the expected benefits of their contract (i.e., receiving a completed home) by Oak Ridge’s work stoppage, and could be adequately compensated for that deprivation by an award of damages. Furthermore, Oak Ridge’s letter of September 7 gave no indication that the company would cure its failure to perform, and, in fact, the record indicates that Oak Ridge never did so act. Of course, a finding of material breach will result in forfeiture for Oak Ridge (i.e., the Tolleys will be discharged from all liability on the contract), however Oak Ridge will be entitled to restitution for any benefit conferred upon the Tolleys by part performance or reliance (i.e., the cost of digging the well) in excess of the loss Oak Ridge caused by its own breach. See Restatement, supra, §§ 241 comment d, 374(1). We note that the record contains no evidence concerning whether Oak Ridge’s conduct “comports with standards of good faith and fair dealing.” Under these circumstances, we find that Oak Ridge’s breach constituted a material failure of performance thereby discharging the Tolleys from all liability under the contract.

Finally, the Tolleys contend that the lower court erred in awarding damages to Oak Ridge for the Tolleys’ anticipatory breach of the contract. In view of our holding that Oak Ridge, rather than the Tolleys, breached the contract, we agree and remand the case to the lower court for a determination of damages.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. Jurisdiction is not retained.

      . The contract provided that, after the Tolleys’ payment of a $500 deposit, the remainder of the contract price was to be paid as follows: 10% when the foundation was laid; 30% when the roof and walls were erected and the house' enclosed; 30% when rough plumbing, wiring, and wall finish were completed; and 30% when the house was ready for occupancy. See Defendants’ Exhibit No. 4 at 1.

      . At the time that the instant dispute arose, the Tolleys had paid Oak Ridge 70% of the contract price pursuant to the schedule outlined above. See supra note 1.

      . Paragraph 13 of the contract provides as follows:

        The parties' agree, in the event of any dispute or disagreement hereafter arising between them under this contract, or any other matter in connection herewith, the same shall be referred to three arbitrators, one to be selected by OWNER, one to be selected by CONTRACTOR, and a third to be selected by appointee of OWNER and CONTRACTOR, and the decision of the majority shall be final and binding upon the parties, hereto. All appointments hereunder shall be made within ten (10) days after notice from either party that a dispute exists. If for any reason said appointments are not made within the time allowed, then either party shall have the right to their remedies at law. The cost of said arbitration (herein defined as the record costs and the fees of arbitrators) shall be equally borne between OWNER and CONTRACTOR, each to pay his own expenses and attorney’s fees.

      . The Tolleys also argue that Oak Ridge breached the contract by drilling a well in excess of 150 feet without written authorization from them. In support of this contention they cite paragraph six of the contract, which provides:
      No alteration (and/or extras) shall be made in the work, except upon written agreement of the OWNER and the CONTRACTOR, and the amount to be paid by the OWNER by virtue of such alterations is to be stated in said agreement, which shall be a separate contract and shall in no way impair the within agreement. Payment for said alterations (and/or extras) shall be made prior to the commencement of work on such alterations and/or extras.
      We find this contention meritless. The drilling done beyond 150 feet was not an "extra" or alteration but a contingency for which specific provision was made in item 20 of the contract’s specifications. Item 20 does not require the Tolleys’ authorization for drilling in excess of 150 feet, and any excess charges thereunder are not payable in accordance with the prepayment provision of paragraph six.

      . While the Tolleys’ subsequent refusal to arbitrate the dispute on September 10 may have given Oak Ridge the right to resort to the termination clause, see paragraph thirteen supra note 3, that refusal cannot be relied upon to justify Oak Ridge’s actions on September 7.