source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    611 A.2d 287
    Daniel J. INCOLLINGO and Sandra DePaul Incollingo, H/W and Natural Parents of Nicholas Incollingo, Deceased and Daniel J. Incollingo, Administrator of the Estate of Nicholas Incollingo, Deceased, Appellants, v. Daniel J. McCARRON, M.D. and William M. Kane, M.D. and Joseph I. McGuire, M.D. and Riddle Health Care Center I and Mercy Catholic Medical Center of Southeastern Pennsylvania and Cynthia Villasis, M.D. and Riddle Health Care Services.
    Superior Court of Pennsylvania.
    Argued May 27, 1992.
    Filed July 1, 1992.

      Scott A. Bennett, Philadelphia, for appellants.
    Timothy R. Lawn, Plymouth Meeting, for McCarron, Kane & McGuire, M.D., appellees.
    William E. Rapp, Philadelphia, for Mercy Catholic Medical Center and Villasis, M.D., appellees.
    Before CIRILLO, POPOVICH, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order entered August 26,1991 granting appellees, Mercy Catholic Medical Center of Southeastern Pennsylvania (“Mercy Catholic”) and Cynthia Villa-sis’ petition for transfer of venue, and denying appellants Daniel and Sandra Incollingo’s petition for reconsideration. Appellants contend that the trial court abused its discretion in ordering a transfer of venue from Philadelphia County to Delaware County on the basis of forum non conveniens. For the following reasons, we affirm.

In March of 1990, appellants commenced two actions in Philadelphia County against the following defendants: Dr. Daniel J. McCarron, Dr. William M. Kane, Dr. Joseph I. Maguire, Dr. Cynthia Villasis, Riddle Health Care Center I, Riddle Health Care Services and Mercy Catholic. The actions were consolidated for all purposes by order of the Honorable Samuel M. Lehrer, dated September 12, 1990.

Appellants seek recovery of damages pursuant to the Pennsylvania Wrongful Death and Survival Acts on account of the death of their infant son, Nicholas. Appellants also seek damages in their own right. All of the causes of action asserted by appellants are premised upon the defendants’ alleged failure to properly diagnose and treat Nicholas Incollingo’s diaphragmatic hernia prior to his birth.

On May 13, 1991, appellees Mercy Catholic and Dr. Cynthia Villasis filed a petition for transfer of venue to Delaware County pursuant to Pa.R.Civ.P. 1006(d)(1) based on forum non conveniens. On July 1, 1991, the trial court, by order of the Honorable Albert J. Sheppard, granted the petition and transferred the case to Delaware County. Appellants filed a petition for reconsideration on July 10. The trial court vacated its order, pending reconsideration. Oral argument on the petition was held on August 14. By order dated August 26, the court denied appellants’ petition for reconsideration and reinstated its July 1 order transferring the action to Delaware County. This timely appeal followed.

Initially we note that none of the parties contend that venue is improper in Philadelphia or Delaware County, and we find venue to be proper in either county as Mercy Catholic maintains a division in Philadelphia County, and all defendants regularly conduct business in Delaware County. Pa.R.Civ.P. 1006(c) and 2179(a)(2). Accordingly, our analysis will focus solely on whether the transfer was proper on the basis of forum non conveniens.

The standard of review for an appeal of the trial court’s order transferring venue is well-settled. Because Rule 1006(d) of the Rules of Civil Procedure vests considerable discretion in the trial judge to determine whether to grant a petition for a change of venue, the trial judge’s determination must stand absent an abuse of discretion. Brown v. Del. Val. Transplant Prog., 371 Pa.Super. 583, 538 A.2d 889 (1988); Fox v. Pennsylvania Power & Light Co., 315 Pa.Super. 79, 461 A.2d 805 (1983). An abuse of discretion includes not only an error of judgment but also, “if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill will, as shown by the evidence or record, discretion is abused.” St. Vladimir Ukrainian Orthodox Church v. Preferred Risk Mut. Ins. Co., 239 Pa.Super. 492, 497, 362 A.2d 1052, 1056 (1976).

Additionally, an abuse of discretion will result “if the trial court has not held the defendant to the proper burden or has clearly erred in weighing the factors to be considered.” Korn v. Marvin Fives Food Equip., 362 Pa.Super. 559, 564, 524 A.2d 1380, 1383 (1987). Moreover, the trial court must find that the transfer is convenient for both parties to the action or for the witnesses. Petty v. Suburban General Hospital, 363 Pa.Super. 277, 283, 525 A.2d 1230, 1233 (citing Nicolosi v. Fittin, 434 Pa. 133, 135, 252 A.2d 700, 701 (1969)).

A plaintiff should not be deprived of her choice of forum unless the defendant

clearly adduces facts that either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiffs convenience or (2) make a trial in the chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems. A court must balance these private and public interest factors but unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.

Petty, supra, 363 Pa.Super. at 281, 525 A.2d at 1232 (quoting Reyno v. Piper Aircraft Co., 630 F.2d 149, 159 (3d Cir.1980) (citations omitted)).

In evaluating a change of venue motion, a trial court should consider those elements which affect the private interests of the litigants which include: the relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling [witnesses], and the cost of obtaining attendance of willing witnesses; possibility of view of the premises if a view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive____ The court must also consider those elements in which the public has an interest and those include: problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation; the appropriateness of having the action tried in a forum where the court is familiar with the law that must govern the case, rather than having a court in some other forum step into a quick-sand of conflict of laws problems and foreign law.

Petty, supra, 363 Pa.Super. at 281-282, 525 A.2d at 1232.

In the instant case, appellants contend that the trial court abused its discretion in transferring their action to Delaware County because the appellees did not demonstrate on the record how trial in Philadelphia County adversely affects their ability to defend against appellants’ claims. Specifically, appellants argue that appellees had not made any demonstration on the record of hardship, nor had appellees identified any non-party witnesses to be called, what their testimony would be and how they would be inconvenienced. Furthermore, appellants argue that Delaware County is inconvenient for both parties.

Preliminarily we note that appellants’ arguments center on the private interest factors that a court must consider when determining whether to transfer. However, the trial court in granting the transfer did not rely solely upon the private interest factors but rather upon the private and public interest factors, placing great emphasis on the public interest factors. Consequently, even if we were to conclude that appellees did not demonstrate sufficient evidence on the record to establish hardship, the balancing of both the private and public interest factors that were established on the record may have tipped the balance in appellees favor and supported transfer of the action to Delaware County. See Petty, supra, 363 Pa.Superior Ct. at 281, 525 A.2d at 1232 (a court must balance the private and public interests factors and transfer only if the balance is strongly in defendant’s favor). Thus, we must proceed to review the factors upon which the trial court relied, determine if they were supported by the record and if they were sufficient to warrant a transfer of venue to Delaware County.

The trial court first considered that appellants are residents of Delaware County and that the place of injury was Delaware County. Because appellant admit the above, we find these factors to be supported by the record. See Plaintiffs’ Answer To Petition of Defendants For Transfer. Furthermore, these factors are relevant to the consideration of the public interest. See Petty, supra, 363 Pa.Superior Ct. at 281-82, 525 A.2d at 1232. (a court must consider those elements in which the public has an interest and those include: ... imposing jury duty on a community which has no relation to this litigation.); Ernest v. Fox Pool Corp., 341 Pa.Super. 71, 76, 491 A.2d 154, 156 (1984) (“[a court is] not required to accept and rely exclusively upon plaintiff’s choice of forum in preference to another forum found by the court ... to maintain more direct contact with the litigation.”) Thus, the trial court did not err in considering them.

The trial court next determined that appellees and the remaining defendants were located in Delaware County and that all of their employees, servants or agents are employed or reside there. The court then concluded that the Delaware County forum would be less costly and would facilitate the attendance of willing witnesses. Appellants argue that the court erred in making this determination because appellee Mercy Catholic has a division in Delaware County (Fitzgerald-Mercy) and a division in Philadelphia (Misc.icordia). Moreover, appellants argue that Mercy Catholic has not established on the record the residency of any of its employees, nor has it shown any inconvenience to these employees by having to travel to Philadelphia.

First, we agree with appellants that the record indicates that appellee Mercy Catholic does have a division in Philadelphia. However, appellants have admitted that all treatment rendered to appellant Sandra Incollingo and the decedent by appellees was administered in Mercy Catholic’s Delaware County division. See Plaintiffs’ Response to Petition of Defendants For Transfer. Moreover, appellants do not allege that Mercy Catholic’s Philadelphia Division is involved in the present dispute. Id. Thus, with regard to this case, the trial court did not err in concluding that all defendants were located in Delaware County.

Second, appellee Mercy Catholic did establish on the record the residency of those employees who were involved in the treatment of appellant Sandra Incollingo and the decedent. Appellee had placed on the record the affidavit of Georgia Dodd, Associate Counsel of Legal Affairs for Mercy Catholic. In her affidavit, Ms. Dodd listed the names and addresses of seven Mercy Catholic employees who participated in the care of appellant and the decedent and who may be called as witnesses. All of the witnesses listed resided in Delaware County.

We agree with appellants, however, that appellees have only stated in a conclusory fashion that these witnesses would be inconvenienced by having to travel to Philadelphia. See Petition of Defendants, Mercy Catholic Medical Center and Cynthia Villasis, M.D., For Transfer of Venue. Appellees did not demonstrate on the record how the witnesses would be inconvenienced or how these witnesses would be more inconvenienced than those of appellant’s who have to travel from Philadelphia. Accordingly, we agree with appellant that the trial court’s conclusion that trial in Delaware County would make the attendance of willing witnesses easier — i.e. would be more convenient for the witnesses — is not supported by the record.

The next two factors relied upon by the court were jury duty considerations and the insufficient contacts the present action has with Philadelphia County. Appellants argue that the court erred in considering this latter factor, because this factor is considered only in determining subject matter and personal jurisdiction. We disagree. In Ernest v. Fox Pool Corp., supra, 341 Pa.Superior Ct. at 76, 491 A.2d at 156, this court noted that

[a court is] not required to accept and rely on the plaintiff’s choice of forum in preference to another forum found by the court to be more convenient to the parties and witnesses and which maintained more direct contacts vnth the litigation.

(emphasis added.) Moreover, in Petty v. Suburban General Hospital, supra, 363 Pa.Super. at 281-82, 525 A.2d at 1232, this court held that in determining whether to transfer, one of the factors to be considered is the imposition of jury duty on a community which has no relation to the litigation. Accordingly, in the instant case, the trial court did not err in considering the contacts with Philadelphia County. Furthermore, the court did not err in determining that there are few contacts between this action and Philadelphia County. Except for the several hours of emergency treatment performed on the decedent at Thomas Jefferson Hospital, just prior to his death, there are no other contacts that Philadelphia has with this case.

Finally, the court noted the substantial backlog of civil cases in the Court of Common Pleas of Philadelphia. Again, under Petty, this was a relevant factor for the court to consider. Id. Moreover, the substantial backlog of the Philadelphia trial courts is a serious problem that this court recognizes. Thus, the trial court did not err in considering this factor.

Viewing as a whole the factors relied upon by the trial court and supported by the record, we cannot conclude that the court abused its discretion in determining that the balance was tipped strongly in favor of transferring this action to Delaware County and that the transfer would be convenient for both appellants and appellees. Consequently, we affirm the court’s order.

Order affirmed.

      . By stipulation of counsel, Riddle Health Care Services was dismissed from the case.

        . Pa.R.Civ.P. 1006(d)(1) provides: “For the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought."

      . The remaining defendants, Dr. McCarron, Dr. Kane, Dr. Maguire and Riddle Health Care Center I, were not parties to the petition to transfer venue. However, the remaining defendants filed a response to appellant’s petition of reconsideration and joined appellees at oral argument, arguing in favor of transferring venue.

      . Although an order changing venue is interlocutory, an appeal to this court is proper pursuant to Pa.R.A.P. 311(c) which provides in relevant part: "An appeal may be taken as of right from an order in a civil action or proceeding changing venue____’’ Accordingly, we will review appellants’ contentions.

      . Particularly, the trial court found that the place of the alleged malpractice, the residence of appellants and appellees, as well as almost all of the appellees’ offices were located in Delaware County. Moreover, the court found that all of the appellee’s employees, servants and agents are or were employed or residing in Delaware County. As a result, the court concluded that trial in Delaware County would be less costly and would make the attendance of willing witnesses easier. The court next considered the substantial backlog of civil cases in the Philadelphia court system, the insufficient contacts that the present case had with Philadelphia and the impropriety of imposing jury duty on Philadelphia residents who have no relationship to the litigation. Considering all of the aforementioned factors, the court then granted the transfer. Opinion, Sheppard, J., November 25, 1991 at 5-6.

      . The court noted that while appellee Dr. Villasis was associated with Methodist Hospital in Philadelphia, at all times relevant to the present action, the doctor was an employee of Mercy Catholic in Delaware County. Moreover, the court noted that all of the treatment provided by the doctor to appellant Sandra Incollingo and the decedent was provided in Delaware County. Opinion, Sheppard, J., November 25, 1991, at 3. Accordingly, the court concluded that with regard to this action, appellee Villasis was located in Delaware County. We agree, and further note that in her affidavit, Dr. Villasis averred that her association with Methodist Hospital terminated in 1989.

      . Appellants argue that they intend to call to testify at trial health care employees from Thomas Jefferson Hospital, located in Philadelphia, who had provided emergency treatment to the decedent just prior to his death. See Plaintiffs Motion For Reconsideration.


author: TAMILIA, Judge.

text:
    611 A.2d 291
    COMMONWEALTH of Pennsylvania v. Elizabeth HATCH, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 15, 1992.
    Filed July 22, 1992.

      Terry Despoy, Altoona, for appellant.
    Ilissa Zimmerman, Asst. Dist. Atty., Duncansville, for Com., appellee.
    Before TAMILIA, KELLY and MONTGOMERY, JJ.
   TAMILIA, Judge.

Elizabeth Hatch appeals the judgment of sentence entered August 16, 1991 after a jury found her guilty of two counts of conspiracy, one count of possession of a controlled substance and one count of delivery of a controlled substance. The court sentenced appellant to a total prison term of nineteen (19) to thirty-eight (38) months.

The charges against appellant stemmed from two separate incidents. On April 5, 1990, appellant and co-conspirator Daniel T. Bowers sold marijuana to a police informant. Less than three weeks later on April 24th, they allegedly sold ten grams of hashish to an informant. In June of 1991, the appellant was convicted by a jury of the charges subject of this appeal. Prior to appellant’s trial, however, in exchange for a plea of guilty to two counts of violating the Controlled Substance Act, the. Commonwealth nolle prossed the charge of conspiracy against Bowers on April 9, 1991.

Appellant first contends the trial court erred in denying her demurrer on the charge of conspiracy. Citing Commonwealth v. Campbell, 257 Pa.Super. 160, 390 A.2d 761 (1978), aff'd, 484 Pa. 387, 399 A.2d 130 (1979), she argues the charge of conspiracy should be dismissed since Bowers’ nolle prosse was equivalent to an acquittal and since Bowers was her only-co-conspirator. We disagree. In Commonwealth v. Phillips, 411 Pa.Super. 329, 601 A.2d 816 (1992), this Court, in finding the Phillips trial court properly denied appellant’s motion for a directed verdict as to criminal conspiracy, specifically held “the prior acquittal of a sole co-conspirator in a separate trial does not preclude finding the subsequently tried co-conspirator guilty of conspiracy.” Id., 411 Pa.Superior Ct. at 337, 601 A.2d at 820. In reaching our decision in Phillips this Court carefully considered and discussed Campbell as well as Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980), in which our Supreme Court found a valid conviction for conspiracy will not be disturbed by a subsequent acquittal at separate trials of all alleged conspirators. The Byrd Court in its analysis cited United States v. Koritan, 283 F.2d 516 (3rd Cir.1960), aff'g, 182 F.Supp. 143 (E.D.Pa.), for the proposition “that [the fact] the prosecution has nolle prossed charges against one or all of the others indicted is equally insufficient to afford a single convicted conspirator any relief.” Byrd, supra, 490 Pa. at 551, 417 A.2d at 177. Although the Byrd Court declined to specifically reconsider the situation in Campbell, that is, where the co-conspirator was acquitted before appellant came to trial, in Phillips we stated “[w]e are convinced ... had the Byrd Court chosen to address the issue presently before this Court our Supreme Court would have found appellant is entitled to no relief.” Phillips, supra, 411 Pa.Superior Ct. at 337, 601 A.2d at 820. We now hold that in situations such as this, where a charge against one co-conspirator is nolle prossed prior to another co-conspirator’s trial, the result is the same as in Byrd and Phillips and the co-conspirator-appellant is not entitled to relief. “An acquittal at any trial [here a nolle prosse] is never a guarantee that no crime has been committed.” Byrd, supra, 490 Pa. at 552, 417 A.2d at 177. It follows that under circumstances such as those present in this case, the nolle prosse on one count in exchange for a guilty plea on other counts compels no finding on the merits of the conspiracy charge as to the co-conspirator who is subsequently tried. Accordingly, we find no merit to appellant’s first argument.

Appellant also argues the evidence was insufficient to convict her of possession and possession with intent to deliver in connection with the April 24, 1990 incident.

In reviewing the sufficiency of the evidence, we must determine whether the evidence, and all reasonable inferences deducible therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, are sufficient to establish all the elements of the crime(s) beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.

Commonwealth v. McCullum, 529 Pa. 117, 123, 602 A.2d 313, 316 (1992) (citations omitted).

The evidence reveals an undercover officer handed $140 to appellant for the purchase of the hashish and appellant placed the money in her pocket. Several hours later, co-conspirator Bowers and appellant met with the officer and informant and Bowers handed the informant the drugs. One of the elements of the crime of “possession with intent to deliver” is that the defendant maintain actual or constructive possession of the substance. Here, there was sufficient evidence for the jury to find appellant was in constructive control of the drugs during the course of the transaction. Appellant cites Commonwealth v. Warren, 298 Pa.Super. 349, 444 A.2d 1209 (1982), which we find to be inapplicable to this case. In Warren, the court discussed situations where the defendant handled neither the money nor the drugs during the transaction. Id., 298 Pa.Superior Ct. at 356-58, 444 A.2d at 1213. Here, not only did appellant handle the money, but she went back with her partner, got the drugs and sat next to her partner as he handed the drugs to the buyer.

Based upon the foregoing discussion, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 903.

      . 35 P.S. § 780-113(a)(31).

      . Id., § 780-113(a)(30).


author: MONTEMURO, Judge:

text:
    611 A.2d 293
    Farajollah ZIVARI and Ingeborg Zivari, h/w, Appellants, v. Richard WILLIS, Jr. and Evelyn Willis, h/w.
    Superior Court of Pennsylvania.
    Argued April 21, 1992.
    Filed July 23, 1992.

      David M. MacFarlan, Horsham, for appellants.
    William E. Benner, Doylestown, for appellees.
    Before ROWLEY, President Judge, and MONTEMURO and POPOVICH, JJ.
   MONTEMURO, Judge:

This is an appeal from a final decree in equity which dismissed appellants’ attempt to enjoin appellees from using a private road located on appellants’ property. On appeal, appellants, Farajollah and Ingeborg Zivari, assert that the chancellor erred in concluding that: (1) they had waived their right to prevent appellees, Richard and Evelyn Willis, from using the road; and, (2) they were estopped from denying appellees the right to use the road. We affirm the chancellor’s order.

The parties to this dispute own adjoining properties in a Bucks County, Pennsylvania, subdivision. Within this subdivision, there is a public road that culminates in a cul-desac upon which both properties abut. When appellees purchased their property, they accessed the cul-de-sac via a driveway located entirely on their property. Wishing to add various improvements to their property, appellees retained an architect and contractor. Appellees’ intent was to close their original driveway and construct a new driveway which they planned to connect to appellants’ private road, thereby gaining access to the cul-de-sac. This required that appellees be able to use approximately one-hundred feet of appellants’ road.

Without consulting appellants, appellees began constructing the new driveway. The chancellor found that two days later, Mr. Zivari questioned appellees as to what their intention was with regard to the construction project. Upon learning that appellees were building a garage and new driveway, Mr. Zivari made some comment about the project and then concluded the conversation by stating, “ ‘[w]ell of course, I’ll let you use it, but you should have asked.’ ” (N.T., 8/1/1991, at 55). This statement purportedly gave appellees the right to use appellants’ road. Appellees then proceeded with the construction of the garage and driveway.

A few months after the project was finished, appellants filed a complaint in equity seeking to enjoin appellees from using the road. After a hearing on the merits, the chancellor filed an adjudication and decree nisi dismissing appellants’ complaint. Appellants then filed a motion for post-trial relief. This motion was denied and the trial court entered an order making the decree nisi the final order of the court. This timely appeal followed.

Preliminarily, we note that our scope of review in this matter is particularly limited. We must accept the chancellor’s findings of fact and we will not reverse the chancellor’s determination absent a clear abuse of discretion or error of law. Gurenlian v. Gurenlian, 407 Pa.Super. 102, 595 A.2d 145 (1991); Werner v. Werner, 393 Pa.Super. 125, 573 A.2d 1119 (1990), alloc. denied, 527 Pa. 668, 593 A.2d 843 (1991). “[Wjhere the chancellor’s findings are largely dependent upon the credibility of witnesses, [as is the case here,] the findings are entitled to particular weight, as the chancellor had the opportunity to observe the demeanor of the witness.” Walley v. Iraca, 360 Pa.Super. 436, 441, 520 A.2d 886, 889 (1987).

This appeal presents a straight forward issue for our review. Specifically, whether appellants are estopped from asserting their right to deny appellees access to the road or whether they have waived their right to bar appellees from the road. We find that appellants have waived their right to bar appellees from the road and they are also estopped from denying appellees access to the road.

Under Pennsylvania law:

[e]quitable ‘estoppel arises when one by his acts, representations, of admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief, so that he will be prejudiced if the former is permitted to deny the existence of such facts. In this situation, the person inducing the belief in the existence of a certain state of facts is estopped to deny that the state of facts does in truth exist, aver a different or contrary state of facts as existing at the same time, or deny or repudiate his acts, conduct or statements.’

Northwestern Nat. Bank v. Commonwealth, 345 Pa. 192, 196-7, 27 A.2d 20, 23 (1942) (citations omitted). And, waiver is the:

act of intentionally relinquishing or abandoning some known right, claim or privilege. To constitute a waiver of legal right, there must be a clear, unequivocal and decisive act of the party with knowledge of such right and an evident purpose to surrender it[.] Waiver is essentially a matter of intention. It may be expressed or implied. ‘[I]n the absence of an express agreement a waiver will not be presumed or implied contrary to the intention of the party whose rights would be injuriously affected thereby, unless by his conduct the opposite party has been misled, to his prejudice, into the honest belief that such waiver was intended or consented to.’ In short, the doctrine of implied waiver in Pennsylvania applies only to situations involving circumstances equivalent to an estoppel, and the person claiming the waiver to prevail must show that he was misled and prejudiced thereby[.]

Brown v. City of Pittsburgh, 409 Pa. 357, 360, 186 A.2d 399, 401 (1962) (citations omitted and emphasis in original).

Here, the chancellor found that Mr. Zivari expressly consented to appellees’ use of the road. (Adjudication and Decree Nisi of November 23, 1990 at 9). Because the chancellor had the opportunity to observe the demeanor of the witnesses and assess their credibility, we are bound by this finding of fact as there is no evidence that the chancellor abused its discretion or committed an error of law when making this determination. Werner, supra.

When Mr. Zivari made this statement, he gave appellees the privilege of using the road subject to appellants’ power to revoke the privilege at will. Kovach v. General Tel. Co. of Pa., 340 Pa.Super. 144, 489 A.2d 883 (1985). However, once appellees relied on this statement to their detriment, appellants are estopped from denying appellees access to the road, Northwestern Nat. Bank, supra, and they have waived their legal right to revoke the privilege. Brown, supra.

Appellants assert that by finding estoppel and waiver, the chancellor created an easement by parol. This argument is meritless.

Initially, Mr. Zivari’s statement created a license revocable at will. Kovach, supra. However, this, otherwise revocable license, became irrevocable once appellees expended money and treated their own property in a manner that they would not otherwise have treated it, but for the license. Id., 340 Pa.Superior Ct. at 148-9, 489 A.2d at 885; Dailey’s Chevrolet, Inc. v. Worster Realties, Inc., 312 Pa.Super. 275, 458 A.2d 956 (1983); Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979). See Thompson v. McElarney, 82 Pa. 174 (1876) (oral license cannot be revoked where it induces another to incur expense that would not otherwise have been incurred); Huff v. McCauley, 53 Pa. 206 (1866) (grant of a license becomes irrevocable if followed by the expenditure of money on the faith of the grant). And once the license became irrevocable, appellants’ successors-in title take subject to the license if they have notice of the license before purchase. Kovach, supra; Harkins, supra.

Thus, it is apparent that appellees’ right to use the road is not an easement by parol, but rather an irrevocable license. Accordingly, we affirm the chancellor’s order.

      . Appellants assert that this statement was never made and that they have never given appellees permission to use their road.


author: HESTER, Judge:

text:
    611 A.2d 296
    Orin GOLDBLUM, Appellant, v. Julie GOLDBLUM.
    Superior Court of Pennsylvania.
    Argued May 20, 1992.
    Filed July 23, 1992.

      Henry E. Rea, Jr., Pittsburgh, for appellant.
    Gale Christine, Pittsburgh, for appellee.
    Before ROWLEY, President Judge and MONTEMURO and HESTER, JJ.
   HESTER, Judge:

Dr. Orin Goldblum appeals from the July 23, 1991 decree of equitable distribution entered by the Allegheny County Court of Common Pleas in this divorce action. Appellant argues that the trial court erred by including in the marital estate an increase in the value of his sole proprietorship medical practice when the increase occurred after the separation of the parties. This increase in value followed from a post-separation reduction in a debt related to the acquisition of the practice. Appellant contends that the trial court incorrectly included that portion of the debt reduction in the marital estate by utilizing the value of the practice on the date of distribution rather than on the date of separation. As a consequence of this, he argues that his post-separation earnings, which are not marital property, improperly were included in the distribution. We disagree and affirm the decree of the trial court.

The record reveals the following. Appellant and appellee, Julie Goldblum, were married on May 17,1981, shortly after appellant graduated from the University of Pittsburgh Medical School. At the time, appellee was employed by the City of Pittsburgh as an urban planner. The parties subsequently moved to Baltimore for appellant’s internship in dermatology at Johns Hopkins Hospital. Appellee was employed while they were in Baltimore as a computer operator but she stopped working shortly before the birth of the couple’s only child, Alex, on May 7, 1985. Appellee subsequently remained at home as a homemaker. The parties returned to Pittsburgh in 1985, and appellant negotiated an agreement to purchase the practice of a sole practitioner who was retiring to Florida.

The purchase price was $300,000 and was financed by the seller. The debt was intended to be repaid through income generated by the practice and was secured by a seven-year installment promissory note and a second mortgage on the home owned by the parties. The purchase agreement specified that $50,000 was for equipment, $200,000 for goodwill, and $50,000 for a non-competition agreement. The seller was required to practice with appellant for six months. Appellee later began working part-time as a bookkeeper for the practice.

The parties separated on February 14, 1988. Appellant filed a divorce complaint on April 4, 1988. Appellee responded by filing a counter complaint seeking equitable distribution, alimony, and child support. Appellant paid $3,500 per month in temporary spousal and child support which was converted into alimony pendente lite on April 23, 1990. This was calculated on appellant’s net income of $10,614 per month and appellee’s lack of income. Appellant’s net income was calculated after the debt payments were deducted from the gross income of the practice. During this period, the Bell Atlantic Yellow Pages omitted listing appellant’s practice and he filed suit contending that he consequently suffered a reduction in the number of patients and his gross income as a result of this oversight. This suit has not yet been resolved. A divorce decree was entered on April 23, 1990. After entry of the divorce decree, appellee obtained a master’s degree in business administration and currently is seeking employment. This appeal followed the entry of the decree of equitable distribution resolving the economic aspects of the divorce.

Appellant’s argument is premised upon section 3501(a)(4) of the Divorce Code, as amended, which excludes from the marital estate “property acquired after the final separation until the date of the Divorce except for property acquired in exchange for marital assets.” He argues that his post-separation payments on the debt were made with post-separation earnings and that appellee should not receive the benefit from the increase in value from the reduction in debt which occurred after separation but prior to equitable distribution. The first issue is whether the reduction in debt increases value.

For purposes of this appeal, we will assume that appellant’s argument is correct that the reduction in debt increased the goodwill value of the practice for a potential purchase by a third party. Appellant had paid $300,000 for the practice. The principal debt owed on the purchase of the practice declined from $235,158 on the date of separation to $131,962 at the time of trial. This reduction of $103,196 in debt increased the net value of the practice by a corresponding amount if other, independent factors such as changes in the number of patients and gross income during this period are not considered. We note that appellant’s argument differs from his contention at trial that the current net earnings of the practice constituted a more accurate indication of value than did the purchase price. Nevertheless, it makes sense to us that a reduction of the debt would increase the goodwill value of the practice. Instantly, the trial court awarded appellee fifty-five percent of the net value ($300,000-$131,962 equaling a value of $168,038), or an award to her of $92,420. If the date of separation values had been used, the award would have been fifty-five percent of $64,842 ($300,000 less $235,158), or $35,663.

Appellant argues that the mere fact that his post-separation earnings increased the value of a marital asset does not convert these payments into marital property since the increase in value did not occur during the marriage and there was no intent to benefit appellee. See Diamond v. Diamond, 360 Pa.Super. 101, 519 A.2d 1012 (1987) (increase in value of land owned during marriage due to erection of apartment buildings after separation was not includible in the married estate since it occurred after separation and the buildings represented so substantial a change that they should be considered a new asset rather than appreciation in value of a marital asset); See also Kohl v. Kohl, 387 Pa.Super. 367, 564 A.2d 222 (1989) (repayment of a husband’s loan by the father after separation did not cause increase in the marital estate by reduction of debt; there was no evidence that the father intended to also benefit the wife). In Kohl we stated, “Only if the outstanding loan had been paid off with income generated during the marriage would the property have acquired the status of marital property.” Id., 387 Pa.Super. at 376, 564 A.2d at 226. Therefore, appellant asserts his post-separation earnings did not become marital property. We agree that the non-marital post-separation property of appellant which contributed to the increase in value, considered by itself in isolation, should not have- been included in the value of the marital estate by the trial court.

Contrary to appellant’s arguments, however, we find that the trial court properly valued the practice as of the date of trial rather than the date of separation for purposes of achieving fairness and justice between the parties in the equitable distribution. See Sutliff v. Sutliff, 518 Pa. 378, 543 A.2d 534 (1988), in which our Supreme Court held that the Divorce Code did not specify a date to be used for equitable distribution but determined:

In the usual case, however, given that the parties’ present needs and circumstances are to be a major factor in distributing marital assets, it would be impossible to construct a distribution scheme that would be fully responsive to those needs and circumstances if the court were to act without taking cognizance of the current values of the assets being distributed.

Id., 518 Pa. at 383, 543 A.2d at 537. Utilization of the value on the date of separation by the trial court would not have been fair in this instance since the major asset which the parties owned, other than their home which was mortgaged and had little equity, was the medical practice. It was rendered illiquid by the joint debt. Without utilizing appellant’s post-separation earnings as a way to convert the unrealized goodwill of the practice by reduction of the debt, there would be no other way that the practice as a marital asset could be distributed. The joint debt was incurred to attain something of value. Although the debt was a joint marital debt, its repayment originally was premised solely on appellant’s earning capacity. The parties could not have relied upon appellee’s earning capacity for repayment nor is it realistic to assume that appellee could contribute much to reduce this debt. Moreover, the practice remained a joint asset until equitable distribution. The only other alternative would have been to have assigned one-half the debt to appellee and to have increased the level of appellant’s support to enable appellee to repay her portion. Accordingly, we do not find an abuse of discretion in the trial court’s utilization of the date of the trial for assigning value to the medical practice.

Additionally, this is not an appropriation of appellant’s property. The trial court, instead, already had reduced appellant’s obligation of support and alimony pendente lite by recognizing that his net earnings occurred subsequent to his payment of the debt obligation. Therefore, the trial court, in effect, already had reduced the interim alimony payments due to appellee if she were to pay her portion of the debt and instead, deducted the debt payments from appellant’s gross income. Thus, in our view, the court recognized that the payment on the debt, though drawn from appellant’s post-separation earnings, in actuality was being paid jointly by the parties. The money paid to reduce the debt otherwise would have been available to appellee through increased support and alimony with which she could have paid her portion of the debt.

Further, appellant is obligated by law to continue his best efforts and not to reduce intentionally either his earnings or waste marital assets, which in this case include the goodwill value of the medical practice. This recognizes that the professional practice, although a sole proprietorship, is an asset and its income and expenses essentiálly represent appellant’s earnings and expenses which are shared by both parties until equitable distribution finally renders them separate. Finally, this increase is not such a significant change in the character of the asset that it clearly is separable as in the case of Diamond v. Diamond, supra, relied upon by appellant.

We confirm our conclusion with our examination of the support guidelines. The support that appellant was paying prior to trial was based on his net income after the debt payments. Thus, the payments did not represent solely post-separation earnings since these earnings were reduced already by payment on the joint debt of the parties. Accordingly, we find that the trial court properly rejected appellant’s argument that the post-separation increase in goodwill value due to the reduction in the debt should not have been included in the marital estate for equitable distribution.

Decree affirmed.

      . The caption incorrectly refers to an appeal from a judgment.


text:
    611 A.2d 299
    Anthony COCO, Appellant, v. Karen Ann VANDERGRIFT and Craig Vandergrift.
    Superior Court of Pennsylvania.
    Argued June 23, 1992.
    Filed July 29, 1992.

      James C. Dalton, Doylestown, for appellant.
    Paul R. Beckert, Jr., Bensalem, for Craig Vandergrift, appellee.
    Before JOHNSON, FORD ELLIOTT, and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the September 5, 1991 order granting the preliminary objections of Karen and Craig Vandergrift (appellees herein) and dismissing appellant Anthony Coco’s complaint. Appellant contends that his complaint is sufficient to set forth a claim for custody. For the reasons that follow, we affirm.

On June 21, 1991, appellant filed a complaint seeking legal and physical custody and/or partial physical custody of appellee Karen Vandergrift’s daughter. Appellees filed preliminary objections in the nature of a demurrer, asserting that the complaint failed to state a cause of action for which relief may be granted because appellees are husband and wife, the child was born during the marriage and has been held out to be the child of the marriage, and that there was no allegation of non-access or impotency. The trial court granted appellees’ preliminary objections and dismissed appellant’s complaint. Appellant then filed this timely appeal.

Appellees are husband and wife. During their marriage, appellee Karen Vandergrift gave birth to a girl who is now four-years-old. Appellant claims that he is the father and seeks partial custody of the child. In his complaint, he alleged that during the period the child was conceived, the mother, Karen Vandergrift, did not engage in sexual intercourse with her husband, Craig Vandergrift. He further asserted that he has established a meaningful relationship with the child over the last three years and that the defendants have facilitated both partial custody and visitation of the child. Additionally, appellant averred that blood testing of the parties and the child would establish that he, not appellee Craig Vandergrift, is the father of the child.

“On appeals from orders granting motions for judgment on the pleadings or preliminary objections in the nature of a demurrer, we accept as true the opposing party’s well-pleaded averments of fact and consider against him only those facts which he specifically admits.” Zelik v. Daily News Pub. Co., 288 Pa.Super. 277, 279, 431 A.2d 1046, 1047 (1981) (citations omitted).

Appellant follows two courses to rebut the presumption that the child conceived and bom during appellees’ marriage is the child of Craig Vandergrift. First, he asserts husband’s non-access. Second, he seeks blood testing of the parties. He contends that the trial court incorrectly concluded that his complaint was insufficient to overcome the presumption. Specifically, he argues that his complaint adequately established circumstances that would render the presumed father’s access impossible. Additionally, he claims that the trial court erred in ruling that the presumed parents cannot testify as to sexual non-access in order to overcome the presumption of legitimacy. Thus, he argues that he is entitled to a hearing on his claim for custody. We disagree.

The presumption that a child conceived and born during a marriage is a child of the mother’s husband is one of the strongest presumptions in the law. Traditionally, courts have permitted the presumption to be overcome only by evidence which clearly and convincingly establishes ‘non-access or that the husband was impotent or had no sexual intercourse with his wife at any time when it was possible in the course of nature for the child to have been begotten.’

Jones v. Trojak, 402 Pa.Super. 61, 66, 586 A.2d 397, 399 (1990), appeal granted, 527 Pa. 673, 594 A.2d 658 (1991). See also Donnelly v. Lindenmuth, 409 Pa.Super. 341, 343, 597 A.2d 1234,1235 (1991); Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990); Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1990), 527 Pa. 673, 594 A.2d 658 (1991).

The strength of this presumption is evidenced by our Supreme Court’s recent decision in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, — U.S.-, 111 S.Ct. 140,112 L.Ed.2d 107 (1990). There, the Court held that a putative father, seeking custody or visitation, could not compel blood testing to rebut the presumption of a husband’s paternity where, despite evidence of the mother’s extramarital sexual relationship, the mother, child and husband had been living together as a family and the husband had assumed parental responsibility.

The facts of John M., supra, are similar to those of the instant matter. In that case, John, a party outside the marriage, filed a petition against Paula and her husband Michael (the presumptive father), alleging that he was the father and seeking partial custody and/or visitation of the child. He sought a court order compelling Michael to submit to blood testing pursuant to the Uniform Act on Blood Tests to Determine Paternity (“the Act”), 42 Pa. C.S.A. §§ 6131-37. The trial court denied the motion, this court reversed, and our Supreme Court subsequently reversed our decision and reinstated the order of the trial court. The Supreme Court noted that the Act only provides for testing of the mother, child, and John, the alleged father. The Court then reasoned that because the husband was the presumptive rather than the alleged father, the Act was inapplicable. In addition, the Court emphasized the fact that Commonwealth’s interests in the stability of the intact family outweighed the interests of the alleged father in establishing his paternity.

The Court also expressed a belief that the presumption should be irrebuttable in all cases in which the mother, child and husband lived together as a family with the husband assuming parental responsibility, including those in which an outside party claims non-access or impotency of the husband. In a concurring opinion, Chief Justice Nix stated that “a third party who stands outside the marital relationship should not be allowed, for any purpose, to challenge the husband’s claim of parentage. I believe the presumption [that the child is the issue of the husband] in this situation is irrebuttable and conclusive.” Id., 524 Pa. at 323, 571 A.2d at 1389. All of the justices joined in Justice Nix’s opinion, even Justice Larsen who was the author of the majority opinion. Although Justice Nix’s opinion went beyond the precise issues of the case at hand and thus may be considered dicta, there is little doubt the concurrence is a clear expression of the Supreme Court’s view on this matter.

Under the facts of the instant case, the presumption that the child is the issue of the husband is irrebuttable, and a hearing on the issue of non-access or impotency would be superfluous. Accordingly, we affirm the trial court’s order granting appellees’ preliminary objections and dismissing appellant’s complaint.

Affirmed.

      . Justice Larsen noted that the holding of the majority opinion was confined to the precise issues raised by the parties, namely the applicability of the Uniform Act of Blood Tests to Determine Paternity. Id., 524 Pa. at 308 n. 1, 571 A.2d at 1381 n. 1.


author: JOHNSON, Judge:

text:
    611 A.2d 301
    COMMONWEALTH of Pennsylvania, Appellant, v. James BIGELOW.
    Superior Court of Pennsylvania.
    Argued May 20, 1992.
    Filed July 30, 1992.

      Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Michael E. Wallace, Philadelphia, for appellee.
    Before BECK, JOHNSON and HUDOCK, JJ.
   JOHNSON, Judge:

The Commonwealth appeals an order granting an arrest of judgment on the conviction of James Bigelow for third degree murder. We vacate the order in arrest of judgment on the charge of third degree murder and the judgment of sentence on the charge of criminal conspiracy. We remand for reinstatement of the original verdict and for sentencing thereon.

On July 31, 1989, Bigelow and three other men were standing on the steps of a business establishment owned by Roosevelt Corbin. Corbin testified at trial that the four men were threatening to engage in a fight with the victim, Vance Davis. Bigelow had apparently lent Davis fifty dollars which Davis had not repaid. Shortly thereafter, the four men surrounded Davis, kicking and punching him while he lay on the ground. Davis stood up and fled the scene but was pursued by Bigelow and the other attackers. Twenty minutes later, Bigelow and the other three men returned past Corbin’s place of business. One of the four attackers was carrying a stick measuring three and one-half feet in length.

After the attack, Davis approached a police patrol car and told the officer that he had been beaten by three or four men. When the officer noticed a trickle of blood flowing from Davis’ temple, he took Davis to Temple University Hospital where he died two weeks later from the head injury sustained during the attack.

After his arrest, Bigelow admitted to initiating a fight with Davis over the unpaid debt. However, Bigelow denied that others were involved in the fight or that any weapon was used. Bigelow also insisted that the fight took place at only one location.

Following a non-jury trial before the Honorable Lisa A. Richette, Bigelow was convicted of third degree murder and conspiracy. Post-trial motions were filed requesting, in the alternative, a new trial or arrest of judgment. The trial court granted Bigelow’s motion to arrest judgment on the. conviction for third degree murder and subsequently imposed sentence only on the conviction for criminal conspiracy. Bigelow was then sentenced to a period of four to eight years of incarceration.

The Commonwealth contends that the trial court erred in reconsidering the facts of this case at the time of post-trial motions and in granting Bigelow’s motion in arrest of judgment. We agree.

The verdict rendered by the trial judge after a non-jury trial is a general verdict and after recording such a verdict, the authority of the trial judge over it would be the same as in the case of verdict by jury. Commonwealth v. Bursick, 526 Pa. 6, 584 A.2d 291 (1990); Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982). The standard of review for the trial court as it passes upon a motion in arrest of judgment, is limited to a determination of the absence or presence of that quantum of evidence necessary to establish the elements of the crime. Commonwealth v. Meadows, 471 Pa. 201, 208, 369 A.2d 1266, 1269 (1977); Commonwealth v. Carson, 405 Pa.Super. 492, 592 A.2d 1318 (1991), appeal denied, 529 Pa. 616, 600 A.2d 533 (1991). The trial court is required to view the evidence in the light most favorable to the Commonwealth, as verdict winner, and may not alter the verdict based on a redetermination of credibility or a re-evaluation of the evidence. Meadows, supra; Commonwealth v. Reading, 412 Pa.Super. 239, 603 A.2d 197 (1992). Before granting an arrest of judgment, the trial court must find the evidence supporting the verdict to be so weak and inconclusive that a jury of reasonable persons would not have been satisfied as to the accused’s guilt. Commonwealth v. Blevins, 453 Pa. 481, 487, 309 A.2d 421, 425 (1973).

A review of the record, in light of this standard, establishes that Bigelow, in retaliation for Davis’ failure to repay a debt, joined with three other men in beating and kicking Davis. Bigelow and his accomplices then chased Davis for several blocks and continued the attack. When Bigelow and the other attackers returned to the place of the original attack, they were wielding a long stick. Testimony by the medical examiner established that the subdural hematoma which caused Davis’ death was inflicted by a blow to the head with a narrow, heavy, blunt object. N.T., March 5,1991 at 30. Testimony was also introduced at trial of Bigelow’s statement, immediately after the attack, admitting that he “got” Vance Davis. N.T., March 5,1991, at 45.

The trial court, after the presentation of all evidence, stated:

I want to say this to you, Mr. Wallace [defense counsel]: I have a very stringent definition of reasonable doubt, and I try to apply that in all the cases that I hear without a jury. I just don’t have a reasonable doubt that your client participated in this attack.

N.T., March 13, 1991, at 144.

The trial court then found Bigelow guilty of third degree murder and criminal conspiracy stating:

So stand up Mr. Bigelow.
I’ve considered the evidence very carefully. I have listened to the arguments of your able lawyer, and I have concluded that you are guilty of third degree murder in this case. You are not guilty of involuntary manslaughter, nor are you guilty of robbery. And you are guilty of a criminal conspiracy.
So that is my verdict, third degree murder and criminal conspiracy.
I don’t know how all this happened, why $50 was so important to you that you would beat up somebody. But you did it, and somebody is dead ...

N.T. March 13, 1991, at 145-146.

The verdict rendered clearly indicates that the trial court found the evidence sufficient to uphold a conviction for third degree murder. However, the trial court when reviewing post-trial motions re-evaluated the evidence and found that the failure of the Commonwealth to place the stick used in the beating in Bigelow’s hand “makes it impossible to conclude that the defendant was the stick-wielder.” Trial court opinion at 8.

The trial court misstates the proof required of the Commonwealth in this case. A person may be convicted of third degree murder where the killing is neither intentional nor committed during the perpetration of a felony, but when there is malice aforethought. Commonwealth v. Pigg, 391 Pa.Super. 418, 571 A.2d 438 (1990) appeal denied, 525 Pa. 644, 581 A.2d 571 (1990); 18 Pa.C.S. § 2502(c). Malice in its legal sense exists not only where there is particular ill will, but also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty. Commonwealth v. Smouse, 406 Pa.Super. 369, 594 A.2d 666 (1991).

When rendering its verdict, the trial court found that malice could be inferred from Bigelow’s actions in planning and participating in the beating of Davis. N.T., March 13, 1991 at 141. Even at the time of sentencing the trial court continued to find that Bigelow “led this pack of people to attack a defenseless person”. N.T., July 9, 1991 at 12. A finding of such wanton conduct is indicative of the fact that Bigelow acted with malice.

The Commonwealth may prove third degree murder by reasonable inferences drawn from the circumstances of the killing. Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990). Bigelow’s undisputed participation in the conspiracy which resulted in Davis’ death supports Bigelow's conviction of third degree murder. Commonwealth v. Vaughn, 459 Pa. 35, 326 A.2d 393 (1974). The Commonwealth did not need to place the stick in Bigelow’s hand as the only means of proving his culpability for the killing. Despite the fact that an individual co-conspirator did not contemplate a killing, where such is a natural and probable consequence of a co-conspirator’s conduct, killing is not beyond the scope of the conspiracy. Commonwealth v. Riley, 330 Pa.Super. 201, 479 A.2d 509 (1984). Even if the killing blows were struck by someone involved in the beating other than Bigelow, the law of this Commonwealth mandates that each conspirator is criminally responsible for the acts of his cohorts. Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986).

The trial court, when pronouncing final sentence, clearly found that Bigelow engaged in a conspiracy to “commit an aggravated assault and even a murder on this man [Davis]”. N.T., July 9, 1991, at 5. The evidence of record is sufficient for the trial court to have inferred, when rendering its verdict, that Davis’ death was the natural and probable consequence of the severe beating he received at the hands of Bigelow and his co-conspirators.

In light of the fact that the initial verdict was guilty, it was not the function of the trial court, in reviewing post-trial motions, to reweigh the evidence presented at trial. The evidence, when reviewed in light of the appropriate standard of review for a post-trial motion in arrest of judgment, is sufficient to uphold Bigelow’s conviction on the charge of third degree murder. We, therefore, conclude that the trial court erred in arresting judgment on the charge of third degree murder.

Accordingly, we vacate the order of the trial court in arrest of judgment on the charge of third degree murder. We also vacate the judgment of sentence on the charge of criminal conspiracy. As the disposition of this case on appeal may alter the sentencing scheme of the trial court, it is within our power, as an appellate court, to remand the entire case to the trial court for reconsideration of the sentence imposed. Commonwealth v. Goldhammer, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987); Commonwealth v. Sutton, 400 Pa.Super. 291, 583 A.2d 500 (1990), appeal denied, 528 Pa. 610, 596 A.2d 156 (1991); 42 Pa.C.S. § 706. We, therefore, remand to the trial court for reinstatement of the original verdict and for sentencing thereon.

Order in arrest of judgment and judgment of sentence vacated and case remanded for reinstatement of the original verdict and for sentencing thereon.


author: CIRILLO, Judge.

text:
    611 A.2d 305
    COMMONWEALTH of Pennsylvania v. Pedro RODRIGUEZ, a/k/a Pedro Berrios, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 8, 1992.
    Filed July 31, 1992.

      Joel P. Trigiani, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before CIRILLO, FORD ELLIOTT and BROSKY, JJ.
   CIRILLO, Judge.

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Philadelphia County. We reverse.

On September 19,1990, Pedro Rodriguez was convicted at a bench trial of possession with intent to deliver a controlled substance (cocaine). After Rodriguez’s post-trial motions were denied, he was sentenced to a minimum of four years and a maximum of eight years of incarceration, to be followed by two years of probation. This timely appeal followed.

In October of 1988, Rodriguez was arrested and charged with possession and possession with intent to deliver cocaine. Pending trial Rodriguez was released on bail. Rodriguez appeared as required on four prospective trial dates; however, each time the proceedings were continued to a later date. On March 13, 1990, Rodriguez entered a jury demand. Six months later, following additional continuances necessitated by the defense, the matter was assigned to the Honorable Pamela Pryor Cohen for trial. Unknown to Rodriguez, the case was listed as a non-jury trial.

On the date designated for trial, Judge Cohen gave Rodriguez a full jury waiver colloquy. At the conclusion of the colloquy, the following exchange occurred:

COURT: Do you understand?
RODRIGUEZ: Yes, I understand.
COURT: Very good. Unless you have any more questions, then we will ask you if you are ready to waive the jury
RODRIGUEZ: I’d like to speak with my attorney. COURT: Very Good. Go Ahead.
(PAUSE)
RODRIGUEZ’S ATTORNEY: Your Honor, if I may be heard. I advised my client that at this point it would be in our best interests to waive a trial by jury and have a trial today. However he’s now insisting on a jury trial. He is, not me.
COURT: Tell your client I regard this as an abuse of the system because this case has already gone to the jury program and come down, and one way or another I will find him a jury judge who will start him today. And I don’t think he’ going to be happy with the results of that. Tell him so he understands the difference. (Emphasis added)
(PAUSE)
COURT: I’m also going to revoke any bail. This is outrageous.
(PAUSE)
COURT: Call the Sheriffs. I’m revoking his bail. ******
RODRIGUEZ: I always understood this was going to be a jury trial. (Emphasis added)
******
(Defendant signs the waiver form)

Rodriguez now presents the following issue for our review:

Whether the court erred in failing to grant defendant a new trial where after an on the record colloquy as to waiver of jury trial, defendant indicated specifically on the record that he wished a jury trial. The court specifically indicated that he would be put in jail through revocation of bail as to render the waiver involuntary.

The right to a jury trial for non-petty criminal offenses is clearly stated in the Pennsylvania Constitution. Pa. Const., art. I, §§ 6 & 9. The right to a jury trial, as well as to other constitutional rights, will not lightly be deemed to have been waived, and courts indulge every reasonable presumption against waiver of such important and fundamental rights. Commonwealth v. Baxter, 282 Pa.Super. 467, 470, 422 A.2d 1388, 1389 (1980) (emphasis added); see also Commonwealth v. Stokes, 450 Pa. 167, 172, 299 A.2d 272, 276 (1973). When a waiver is considered by a defendant, Pennsylvania Rule of Criminal Procedure 1101 requires the trial judge to determine, through an on-the-record colloquy, whether the waiver is a voluntary, knowing, and intelligent decision by the defendant. Commonwealth v. Shablin, 362 Pa.Super. 289, 293, 524 A.2d 511, 513 (1987).

The scope of a trial court’s discretionary powers to deal with the factual circumstances it confronts in determining the voluntariness of a jury waiver is broad, but it is not unlimited. Commonwealth v. Powell, 527 Pa. 288, 297, 590 A.2d 1240,1244 (1991). On appeal, we will reverse the trial court when it is apparent there was an abuse of that discretion. Id. An abuse of discretion is “ ‘not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.' (citations omitted).” Commonwealth v. Wade, 485 Pa. 453, 467, 402 A.2d 1360, 1367 (1979).

On March 13, 1990, Rodriguez requested a jury trial as was his right under the Pennsylvania Constitution. His jury demand is recorded on the official docket, on a subpoena dated March 13, 1990, and on the contemporaneous handwritten chronology of the case. The latter notation is signed by the Honorable Mary Colins, the presiding judge at that time. Contrary to Judge Cohen’s statement after the jury waiver colloquy and in her opinion, nowhere in the record is there any indication that Rodriguez ever changed his mind and requested a bench trial.

When Rodriguez refused to waive his jury demand on September 19, 1990, Judge Cohen revoked his bail. Our supreme court, in a similar situation, determined that a trial court’s revocation of bail upon the defendant’s request for a jury suggests a coercive atmosphere where one cannot voluntarily waive his right to a jury trial. Powell, 527 Pa. at 296, 590 A.2d at 1244. Additionally, even when Rodriguez agreed to sign the waiver of his jury rights, he reiterated that he had always believed he would be tried by a jury. Clearly, it was only after Judge Cohen’s indignant reaction to his jury request, his own attorney’s recrimination that he was going to jail, and the revocation of his bail that Rodriguez finally acquiesced to a non-jury trial.

The trial court states that revocation of bail did not constitute coercion sufficient to render Rodriguez’s waiver involuntary and cites Commonwealth v. Jordan, 215 Pa.Super. 537, 258 A.2d 688 (1969), as controlling. We do not agree. Jordan is factually distinguishable from the case at hand. There is nothing in Jordan to indicate the defendant had previously requested a jury trial. Defendant Jordan had waived his right to a jury trial after both the trial court and his own attorney had “gotten mad” at him for requesting a jury. The Jordan court, after voicing its disapproval of the jury request, immediately made preparations for a jury trial. On appeal, this court held that since the judge did not threaten to incarcerate Jordan for requesting a jury, and immediately sought to find a jury, Jordan could not be deemed to have been intimidated by the trial court’s remarks. Moreover, Jordan stated that he had not been coerced and that he had made his waiver voluntarily. Jordan, 215 Pa.Super. at 542, 258 A.2d at 691.

Unlike Jordan, here Rodriguez had made a jury demand six months before his case came before Judge Cohen. When Rodriguez restated his desire for a jury after the required colloquy, Judge Cohen accused him of abusing the system. The trial court promptly revoked his bail and ordered the sheriffs into the courtroom. Such a swift and accusatory reaction from the judge, in conjunction with the summoning of sheriffs to detain him, suggests a coercive atmosphere. Powell, supra.

In its opinion, the trial court states that it was necessary to revoke Rodriguez’s bail since there was a possibility that he “would flee upon learning that the case was finally going to trial.” We find this explanation disingenuous. While on bail, Rodriguez had been issued ten subpoenas to appear for court dates. Each time he presumably expected to go trial. Yet, without exception, Rodriguez appeared on every one of the appointed dates. No circumstances had changed in the interim. Therefore, we do not agree that revoking Rodriguez’s bail was necessary to insure his appearance at trial. We find that the intimidating manner in which bail was revoked precluded a voluntary waiver. Shablin, supra.

The trial court’s reaction to Rodriguez’s jury demand was based on the mistaken belief that Rodriguez had waived his jury demand and had opted for a bench trial instead. We find no indication in the record that the case had “gone to the jury program and come down” to the waiver trial division. However, the following excerpt from the sentencing hearing suggests that the confusion stemmed from poor record keeping on the part of the Commonwealth.

COURT: And what happened then?
ADA: Then it was summer, Your Honor; and for some reason all my colleague wrote was court continuance, July 23rd, ’90, and went back to 625, keep it on his calendar, September 17, 1990, indicated it would be a waiver and that’s when we came to this room.

Consequently, we find that the prosecution, not Rodriguez, was responsible for the incorrect designation of the case as a waiver trial.

The trial court also states that its actions were directed solely toward resolving a case that had been lingering for 683 days and had already been continued numerous times. While this case had encountered multiple postponements, the record reveals that Rodriguez was not to blame for these delays. See footnote one, supra. The record simply does not support the trial court’s presumption that Rodriguez’s jury demand was an attempt to prolong the adjudication of his case. While we are cognizant of the enormous caseloads our trial courts must bear, and the resultant need for judicial efficiency, we cannot allow a defendant’s fundamental right to a trial by jury to be lost in an attempt, however noble, to conserve scarce judicial resources.

Finally, the trial court determined that since the issue of involuntary waiver was not raised in Rodriguez’s post-trial motions, he has waived this claim on appeal. It is true that Rodriguez did not raise the issue in his written post-trial motions. However, prior to sentencing, the trial court asked if “there was any argument that he wished to incorporate in addition to” what was contained in his written motions. Rodriguez responded affirmatively and addressed the issue of the voluntariness of his waiver. Thus the claim has not been waived for failure to include it in post-trial motions. Commonwealth v. Markovitch, 388 Pa.Super. 244, 565 A.2d 468 (1989).

Indulging every reasonable presumption against finding a voluntary waiver of the right to a jury trial, Baxter; supra, we conclude that the trial court misapplied the law and thereby abused its discretion, in determining that Rodriguez had voluntarily waived his right to a jury trial. Wade, supra; Hewett, supra. We, therefore, reverse the judgment of sentence and remand the case for a new trial. Jurisdiction relinquished.

Judgment of sentence reversed; case remanded. Jurisdiction relinquished.

FORD ELLIOTT, J., concurs in the result.

      . All of the continuances were granted with just cause and were occasioned primarily by defense counsel's busy trial schedule.

      . At the sentencing hearing, Rodriguez testified that during this pause his attorney said to him "You’ve ruined everything ..., no matter what, even if the case isn’t seen today, you are going to jail.” It is important to note that this testimony was entered into the record, without objection from the Commonwealth, and stands uncontroverted.

      . Even if Rodriguez had waived his right to a jury trial prior to the court’s colloquy, under the Pennsylvania Rule of Criminal Procedure 1102, at any time prior to the commencement of trial a defendant has the absolute right to withdraw his or her waiver of the right to trial by jury. Commonwealth v. Hewett, 380 Pa.Super. 334, 551 A.2d 1080 (1988).


text:
    611 A.2d 309
    COMMONWEALTH of Pennsylvania v. Siegfried William AMUNDSEN, Appellant.
    Superior Court of Pennsylvania.
    Argued May 19, 1992.
    Filed July 31, 1992.

      Charles F. Gilchrest, Sharon, for appellant.
    James P. Epstein, Dist. Atty., Hermitage, for Com., appellee.
    Before ROWLEY, P.J., and MONTEMURO and HESTER, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered after appellant pled guilty to two counts of homicide by motor vehicle related to driving while under the influence of alcohol in violation of 75 Pa.C.S.A. § 3735. Appellant raises the following issues on appeal:

1. Whether the mandatory minimum sentence of imprisonment in 75 Pa.C.S.A. § 3735 is an unconstitutional legislative infringement on the constitutional grant of power to district attorneys in Article IX, Section 4 of the Pennsylvania Constitution to participate in sentencing decisions;
2. Whether the mandatory minimum sentence of imprisonment in 75 Pa.C.S.A. § 3735 unconstitutionally infringes on prosecutorial discretion in sentencing decisions in violation of the due process of law clause of the Fifth and Fourteenth Amendments to the United States Constitution and Article 1, Section 9 of the Pennsylvania Constitution; and
3. Whether the mandatory minimum sentence of imprisonment in 75 Pa.C.S.A. § 3735 denies a defendant the equal protection of the laws because the prosecuting authority has no discretion as to whether to request the minimum sentence while other so called mandatory sentences do provide such prosecutorial discretion and there is no reasonable basis for such different treatment of persons convicted of crimes.

For the reasons set forth below, we affirm.

75 Pa.C.S.A. § 3735, in pertinent part, provides:
Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

Although appellant asserts three issues regarding the unconstitutionality of the mandatory sentence provision in this section, he actually raises only one argument, i.e. that the mandatory sentence provision denies the prosecutor the right and discretion to request the court not to impose the mandatory sentence. As a result, appellant claims that this section is unconstitutional.

In Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985), we considered a constitutional challenge to the validity of 75 Pa.C.S. § 3735. In that case the appellant argued that § 3735 was unconstitutional because it violated the separation of powers between the judiciary and the legislature and because it placed excessive and unreviewable discretion in the hands of the prosecuting authority. In dismissing the claims we held that:

Although it is the judiciary’s function to impose sentences upon conviction, it is for the legislature to establish criminal sanctions, and, as one of its options, it may prescribe a mandatory minimum term of imprisonment.

Id., 339 Pa.Superior Ct. at 39, 488 A.2d at 297. See also Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985) and Commonwealth v. Kostra, 349 Pa.Super. 89, 502 A.2d 1287 (1985). Furthermc -e, we stated that “it is neither new nor unique that the legislature has prescribed mandatory sentences” and since the selection of the mandatory sentence is a legislative determination, “it carries a strong presumption of validity, and of constitutionality.” Id. 339 Pa.Super. at 39, 488 A.2d at 297.

Although the claims in Hernandez were different than the challenges raised herein, we find that the reasoning of the court is equally applicable to this case. Contrary to the argument raised in appellant’s brief, it is the judiciary, and not the prosecuting authority, who has the right to impose sentences upon conviction. This function of the judiciary, as we held in Hernandez, is not unconstitutionally violated by the mandatory sentencing provisions in § 3735 as it is the duty of the legislature to establish criminal sanctions. The prosecuting authorities, as part of the executive branch of government, have the primary function of enforcing the laws of the Commonwealth, not to determine the penalties to be imposed when a crime has been committed. See e.g. Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). Although we have held that the grant of discretionary authority to a prosecutor to decide whether to invoke statutory mandatory minimum sentencing provisions is constitutionally permissible, Commonwealth v. Pittman, 515 Pa. 272, 528 A.2d 138 (1987), we did not hold that such a delegation of authority must be given to the prosecuting authority. It is the legislature’s duty to inform the prosecutors and the courts as to the permissible punishment alternatives, and the court’s duty to determine which of the punishments outlined by the legislature is most suitable for the particular offender and society as a whole. The prosecutor, on the other hand, has the duty to decide what charges should be brought against a particular offender and then to prosecute the offender according to that law. A prosecutor is vested with considerable discretion in deciding who will or will not be charged and what they will be charged with. By determining in the first instance whether or not to initiate a prosecution based on § 3735, the prosecutor retains his prosecutorial discretion in enforcing the criminal laws. Accordingly, finding no constitutional infirmities in 75 Pa.C.S.A. § 3735, we affirm the sentence imposed by the trial court.

Judgment of sentence affirmed.


author: MONTEMURO, Judge.

text:
    611 A.2d 311
    Thomas W. HAWLEY, Appellant, v. James David DONAHOO, Jr.
    Superior Court of Pennsylvania.
    Submitted June 4, 1992.
    Filed July 31, 1992.

      Gerald A. Keene, New York, for appellant.
    Gary Weber, Williamsport, for appellee.
    Before MONTEMURO, KELLY and CERCONE, JJ.
   MONTEMURO, Judge.

This is an appeal from an order denying appellant’s motion for a new trial and/or judgment notwithstanding the verdict. The sole issue raised on review is whether the trial court erred in denying appellant a new trial after the jury awarded him zero damages for his personal injuries. Finding that the trial court erred, we reverse.

On March 24, 1989, appellant, Thomas Hawley, was involved in an automobile accident with appellee, James Donahoo, near Ulster, Pennsylvania. Appellee conceded liability, and also conceded that appellant suffered a compression fracture of the L-3 vertebra as a result of the accident. However, since appellant had a prior history of back injuries, the extent of the damage caused by the instant injury was contested.

Appellant claimed damages for: a compressed L-3 vertebra; a continuing lumbar strain that was of a permanent nature; lost wages; and loss of enjoyment of life. Appellee asserted that the fractured vertebra was a minor injury which healed in, at most, six weeks, and that any pain appellant was presently suffering was a result of a serious pre-existing condition. The only evidence presented at trial was the testimony of the appellant, his wife, his employer, and two of his physicians, Dr. Cohen and Dr. Coughlin. Appellee presented no witnesses. During cross-examination, appellee attacked appellant’s credibility, calling into question the veracity of appellant’s claim that he is suffering an ongoing injury as a result of the accident. After the jury awarded appellant zero damages, appellant asserted that the verdict was inadequate, and requested a new trial, or in the alternative, an entry of judgment against the appellee in a fair and reasonable amount. The trial court denied appellant’s request for relief and this appeal followed.

It is axiomatic that the amount of a damage award is an issue for the jury which should rarely be altered on appeal. As our Supreme Court noted in Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959):

It is the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by witnesses. If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for the jury’s. The mere fact that the verdict is low does not mean that it is inadequate.

Id., 396 Pa. at 115,152 A.2d at 240. In more graphic terms, a “reversal on grounds of inadequacy of the verdict is appropriate only where ‘the injustice of the verdict (stands) forth like a beacon,’ ” Deitrick v. Karnes, 329 Pa.Super. 372, 376, 478 A.2d 835, 837 (1984) quoting Elza supra, 396 Pa. at 118,152 A.2d at 241. Determining the adequacy of a verdict is a matter for the sound discretion of the trial judge which should not be reversed absent a clear abuse of discretion. Sharpe v. Steel, 205 Pa.Super. 95, 208 A.2d 43 (1965). Despite our narrow standard of review, this Court has not abdicated its role in assessing the adequacy of damage awards.

The trial court found that the question as to the existence of compensable pain is one of credibility which should be left to the trier of fact. Appellant counters that since it is uncontested that he suffered a compressed vertebra, he is entitled to compensation as a matter of law for at least the pain and suffering associated with this known source of pain.

The general rule is that victims must be compensated for all their losses caused by the negligence of another. Boggavarpu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988). However, not every injury results in compensable pain. In Boggavarpu, plaintiff was bitten by his neighbor’s dog. Plaintiff claimed that the tetanus shot administered in the hospital subsequent to this bite, pierced his sciatic nerve. It was uncontested that plaintiff was bitten; however, the extent of the injury to the sciatic nerve was disputed. The jury awarded plaintiff damages solely for the cost of hospital care, thereby excluding damages for loss of consortium and pain and suffering. The trial court concluded that the tort dictated some compensation, and ordered a new trial. Our Supreme Court reversed this determination, finding that all pain is not compensable. The Boggavarpu court stated:

there are injuries to which human experience teaches there is accompanying pain. Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952). Those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering. Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961); Yacabonis v. Gilvickas, 376 Pa. 247,101 A.2d 690 (1954); Todd, supra.

Id. 518 Pa. at 167, 542 A.2d at 518.

However, if the pain is subjective, and has no identifiable medical source, it must be believed to be compensable. Id. The triers of fact are not to be faulted, “if they do not believe all they are told and all that their common experience does not accept. This is not to say, they may disregard obvious injury. It is, however, to say that they are not obliged to believe that every injury causes pain or the alleged pain.” Id. Furthermore, a jury is free to believe that suffering a dog bite is a

transient rub of life and living, a momentary stab of fear and pain, or neither. Indeed, too loud a cry of pain, on small occasion, may dilute belief in even the occasion itself. Jurors may perceive interests beyond momentary pain: interests of opportunity that to the juror’s minds become oppressive even for an obvious tortfeasor. Id.

In Brodhead v. Brentwood Ornamental Iron Inc., 435 Pa. 7, 255 A.2d 120 (1969), negligent conduct on the part of the defendant was established; however, the defendant contested the extent of the injuries suffered. The Brodhead court found that even though there was no direct evidence contradicting testimony of the plaintiff and his treating physicians as to the existence of contusions, it was within the jury’s province to pass on the credibility, and to find that the injury did not exist. The court, in reviewing the record, found that such disbelief by the jury was not wholly unwarranted.

However, our review of the record in the present case indicates that the existence of the fractured vertebra was not questioned by the appellee on cross-examination, and therefore the jury's refusal to believe in the existence of this injury was unwarranted. The uncontested evidence was that appellee was negligent and that this negligence caused a compression fracture of appellant’s L-3 vertebra. As a result of this injury, appellant was hospitalized for three days. His treating physician testified that while the fracture was not particularly serious, and that every person’s tolerance of pain is different, this type of injury causes acute pain for a period of three days to a week, and that after six weeks the pain tapers off.

Indeed, appellee’s counsel recognized the existence of this pain in his closing argument:

there was an accident, that the accident was caused by Mr. Donahoo, and that there was an injury to Mr. Hawley. But I indicated to you ... that the injury was a compression fracture of a vertebra and it was a fairly minor injury, and that the injury resolved after a period of time, approximately four to six weeks ... Mr. Hawley is entitled to be compensated for that injury, but he is not entitled to be compensated for injuries which are not related to the accident.

(N.T. 7/11/91 at 1-2).

While the jurors are the sole judges of credibility, and appellant’s inconsistent and perhaps exaggerated testimony could have been perceived as an indication of appellant’s interests of opportunity beyond pain which could dilute their belief in the existence of the occasion itself, the jury is not free to ignore an obvious injury. As our Supreme Court stated in Thompson v. Iannuzzi, 403 Pa. 329, 169 A.2d 777 (1961): “It is true that the jury is the final arbiter of facts but it may not, in law, ignore what is patent to the eye, obvious to the mind and clear to the normal process of ordinary computation.” Id., 403 Pa. at 332, 169 A.2d at 778-789. Based on the uncontested evidence of the compression fracture, we find that appellant suffered compensable pain from a known medical source which was more than a mere transient rub of life.

The case law cited by appellee in support of a zero damage award is distinguishable from the present facts. In Holland v. Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984), this court upheld a zero damage award on appeal. The issue presented in Holland was whether the plaintiff was really suffering pain, and if so, whether the pain had been caused by the defendant’s conduct. Thus, unlike the present case, both the existence and the cause of the injury were contested. Similarly, in Boggavarpu, supra, the specific cause of the pain, an allegedly punctured sciatic nerve, was contested, and rejected by the jury. “That rejection reduced the issue from one of obvious injury to one of subjective pain. Jurors are not compelled to find pain where there was no objective injury.” Boggavarpu, supra 518 Pa. at 168, 542 A.2d at 518-519. Thus, while “[w]e are loath to deny a trial judge his view on what constitutes grounds for a new trial,” the facts present an obvious injury and compensable pain that the jury ignored. Id., 518 Pa. at 168, 542 A.2d at 519. As such, appellant is entitled to a new trial.

Reversed and remanded for a new trial.

Jurisdiction is relinquished.

      . Appellant’s medical expenses were not at issue in this action.