author:
MONTEMURO, Judge:
      WATKINS, Judge,

text:
    434 A.2d 1273
    Lisa DeSANTIS, A Minor by her Parents and Natural Guardians, Raymond DeSantis and Lois DeSantis, Appellants, v. Lawrence L. YAW.
    Superior Court of Pennsylvania.
    Argued April 22, 1981.
    Filed Sept. 11, 1981.

      Richard K. Hohn, Philadelphia, for appellants.
    D. Barry Pritchard, Jr., Lansdale, for appellee.
    Before WICKERSHAM, MONTEMURO and WATKINS, JJ.
   MONTEMURO, Judge:

On January 7, 1980, plaintiff, Lisa DeSantis, a minor, brought suit in trespass against defendant, Lawrence L. Yaw, for injuries suffered by her in an automobile accident which occurred September 10, 1977. The defendant alleged as New Matter that the claim was barred by the statute of limitations.

The issue was argued, and the Court found for the defendant on the pleadings. The plaintiff filed a Concise Statement of Matters Complained Of On Appeal, and set forth as her sole ground for reversal of the decision barring her action that the statute of limitations should be unconstitutional as applied to minors.

The lower court’s opinion held that statutes of limitation are favoured in law, and that plaintiff’s constitutional arguments, while interesting, were without merit. This court, however, has examined the issue from an historic approach as well as from a constitutional perspective and has become convinced that the traditional approach of our courts to the statute of limitations as applied to minors no longer fits comfortably into the framework of the law. Review of the matter is timely.

Historically, western civilization has considered the minor child as the belonging of its father. The paterfamilias of Roman times had absolute power of his household, and could sell his children into slavery or kill them at will.

Under the English common law doctrine of paterfamilias a father still retained an “unquestioned right” to the services and custody of minor children, and it appears that this right did not depend upon fulfillment of corresponding duties, at least not upon any legally enforceable ones. Blackstone regarded the duty of support as a “natural” duty but absent statute not a legal one, and courts of the United States have also pronounced the duty merely “moral,” 42 Harvard Law Review, supra note 2, at 112.

The familiar doctrine of reciprocity of duties of support and rights to custody and services appears to have been the creation of common law judges interested in “spinning out a symmetrical pattern of rights and duties,” Id. Even in relatively modern times the right to recover for a child’s injury remained in the father alone and did not extend to a mother, even if widowed and providing nursing for a minor who had brought income to the household prior to an injury. Fairmont and Arch Street Passenger Railway Co. v. Stutter, 54 Pa. 375 (1867).

Interestingly, the Fairmont court also distinguished between intentional torts and negligent ones, and concluded that even a father would have been able to recover only for seduction of a daughter or battery of a son, which represented willful trespasses upon his own rights in his children. For negligent injury, recovery would lie in the child himself.

Then as now, an infant was required to bring his action through an adult as guardian or next friend. 13 Standard Pa. Practice, 325-326, 335. Presumably, therefore, the only recovery conceived of as possible in Fairmont, would be to the child for pain and suffering and for loss of earnings after reaching his majority, and these would have to be sued for by the parent as next friend.

That position appears to have been an anomaly even for the era in which the holding was published, for the identical court only three years before had reached a different result altogether in Oakland Railway Co. v. Fielding, 48 Pa. 320 (1864). The father in Oakland retained the recovery awarded him by the lower court for negligent injuries sustained by his son, and the appellate court approved damages limited to “compensation for loss of services, for nursing, and for surgical and medical attendance.” Id. at 327.

Within thirty years, however, the rights to recovery for both parent and child were clarified and codified in the Act of 1897. Act of May 12, 1897, P.L. 62 sec. 1, 12 P.S. § 1625; 13 Standard Pa. Practice, ch. 64 sec. 4, 328-329; 7 GoodrichAmranti, Rule 2228(b), “Joinder of Parent and Child” at 418. The actions of parent and child were recognized and ordered to be brought in the same case under penalty of barring the claim of the unjoined party, Id. Apparently no trace remained of the notion that the parents’ recovery depended upon the intentional nature of the tort as a deliberate invasion of parental rights. Most modern authorities, however, do still view the parents’ losses as “more properly treated as an action for damages to property rights,” than as a personal injury action. 59 Am.Jur.2d at 213; accord, 67A C.J.S. Parent & Child at 520-521.

The pattern codified in 1897 has continued to the present date. The child’s cause of action and the parents’ cause of action are independent of each other, yet both are left to the discretion of the parent and both are barred after the passage of two years from the date of the accident. The operation of 42 Pa.C.S.A. 5524 [the two-year statute of limitations for negligent tort recovery] in conjunction with 42 Pa.C.S.A. 5533 [disabilities do not extend a statute of limitations unless the statute itself so provides] accomplishes this result.

There is no doubt at all that the present law of this Commonwealth is expressed by the lower court’s opinion in the instant action. An example of facts congruent with the argument of the instant appellant’s counsel can be found in the case of Von Colln v. Pennsylvania Railroad Co., 367 Pa. 232, 80 A.2d 83 (1951). There, the appellant was a minor who had been injured while a resident of a Children’s Home. At a time well beyond the statutory limit, but while she was still a minor, appellant brought her action by her husband and guardian, an adult.

The Supreme Court of Pennsylvania affirmed, without soul-searching, the lower court’s decision that minors were bound by the provisions of the statute of limitations equally with adults.

“The settled rule is that infants as well as all others are bound by the provisions of such statutes.” Id., 367 Pa. at 234, 80 A.2d 83.

This court is therefore bound, as was the lower court, to follow the “settled rule” in the matter; and we affirm the Order of September 4, 1980, granting defendant judgment on the pleadings based on a statute of limitations defense.

The decision is not a comfortable one, however, and it is our opinion that this question deserves serious reconsideration by the courts at this time. Recent advances in the laws regarding children’s rights have made an automatic decision growing out of a tradition that viewed children as possessions completely unpalatable.

Our citizens are guaranteed the right to acquire, possess, and protect property, Constitution of Pennsylvania, Article 1, Section 1. A right to sue on “a chose in action,” despite its intangible nature, is ordinarily regarded as a form of property. 63 Am.Jur.2d, “Property,” § 26, p. 312; 30 P.L.E. “Property” § 43, p. 38. With perfect logic, the common law assumed that a father who “owned” his child’s chose in action had the prerogative of allowing that right to lapse. With the advances that recognized the child’s right to recover, that assumption became harder to sustain.

The capacity of the common law to adopt itself to changing mores has long been recognized as one of its greatest strengths. See e. g. Miller v. Monsen, 228 Minn. 400, 37 N.W.2d 543 (1949); Hurtado v. California, 110 U.S. 516, 4 S. Ct. 111, 28 L.Ed. 232 (1884). In the field of children’s rights it has made concrete gains by a complicated re-balancing of legal concepts: the relationship of parent and child has become a “status, not a property right,” see e. g. Commonwealth ex rel. Berg v. Catholic Bureau, 167 Pa.Super. 514, 76 A.2d 427 (1950); Commonwealth ex rel. Teitelbaum v. Teitelbaum, 160 Pa.Super. 286, 50 A.2d 713 (1947), and yet at the same time the property rights of children in their parents, corresponding to that of parents in children, have increasingly been recognized. A harder look at the outcome in juvenile criminal matters has led to re-assessment of constitutional rights in children, also on a decisional basis, see discussion infra.

Statutory law has tended to keep pace with the common law. Some states have already provided protection for minors against the running of the statute of limitations. Our own jurisdiction has provided partial protection by extending recognition of legal disability tolling the statute to a potentially huge class of injured minors—those harmed in vehicle accidents, Salvado v. Prudential Property and Insurance Co., 287 Pa.Super. 304, 430 A.2d 297 (1981). The court in Salvado squarely considered the awkwardness of permitting the causes of minors to continue to maturity:

We cannot disregard the clear meaning of [the No-Fault section tolling the statute of limitations] merely because, as appellee contends, a literal interpretation will adversely affect the ability of no-fault carriers to settle claims of minors. Id., 287 Pa.Super. 308, 430 A.2d at 299.

Appellee in the instant action naturally has stressed the salutary effects of the statutes of limitation. Its brief states that the object is “not to clean up dockets, but to force claimants to bring their actions while the events and evidence are still fresh.” (R. Brief of Appellee, p. 2). It then quotes the Supreme Court’s 1922 decision in United States v. Oregon Lumber Co., 260 U.S. 290, 43 S.Ct. 100, 67 L.Ed. 261, to the effect that statutes of limitations “promote repose,” “give stability to human affairs,” and “stimulate to activity and punish negligence.” (Id. at 299-300, 43 S.Ct. at 103). The brief then quotes a Federal Court decision, Pittman v. United States, 210 F.Supp. 763 (N.D.Cal.1962), aff’d 341 F.2d 739 (9th Cir. 1965), cert. den. 382 U.S. 941, 86 S.Ct. 394, 15 L.Ed.2d 351 (1962), which reiterates the viewpoint of our own Supreme Court in Von Colin, supra, that the “general rule” provides no special protection to infants, absent a statutory provision.

This once again begs the real question by, in essence, stating that whatever is, is right. It also places tremendous importance on a public policy favouring repose of actions and punishment for delay, while paying almost no attention at all to what certainly appears to be violation of a fundamental right: a chose in action is a form of personal property that without question now belongs to the injured child himself, and yet he is legally debarred from pursuing his claim.

The minor’s tender age has long been recognized as a legal disability, merely a lack of capacity, and not a punishable lack of moral fiber. A statute designed to “force” a claimant incapable of acting to act is certainly suspect. It is no answer to claim, as appellees do, that equal application of the statute “to minors and parents alike discriminates against no class or group and denies no one, either in law or in fact, the right to bring suit.....a limitation statute does not prevent any minor, simply because she is a minor, from bringing suit.” (R. Brief of Appellee at 4)

Plainly, under the law of this Commonwealth minors have never been permitted to initiate their own suits, even if they were old enough and wise enough to do so. Contrary to the statement in appellee’s brief, the law does in fact prevent minors, simply because of their status as minors, from bringing suit.

Not all children have parents. The minor in Von Colin did not. Appellee’s proposition that the limitation is fair “as to minors and parents” cannot be extended to assume that orphanages, foster parents, and juvenile homes have the emotional dedication to fight a prompt legal battle and to maintain the often slow progress through the court system. A foster mother may be honestly dedicated to hot meals and clean linen and emotional support yet quail at the thought of embarking on several years of legal battle for a member of her changeable brood. As to parents themselves, some are lazy or frightened or ignorant or religiously opposed to legal redress. Still, they have their remedy available to them if they choose to use it. A child does not. The situation comes to this: a personal property right belonging to a legally faultless citizen may and often has been forfeited because no legally competent party has volunteered to undertake an action in the child’s behalf. By the time the child reaches maturity the property has vanished. For this, it appears, no one is responsible. Can this lack of remedy comport with due process?

Although Terry Appeal and McKeiver Appeal, 438 Pa. 339, 265 A.2d 350 (1970) treat the very different problems posed by children in the criminal system, telling analogies to the instant problem can be discerned. The court in Terry remarked that the Supreme Court case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) was the first case in over sixty-five years which seriously considered the constitutional problems posed by the juvenile court system, and it pointed out that “unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.” Id., 438 Pa. at 343, 265 A.2d 350.

“The proper inquiry” of the court then became the decision as to whether a jury trial was as indispensable as a Constitutional safeguard for children as it had been determined to be for adults, Id., 438 Pa. at 348, 265 A.2d 350. In balancing the pros and eons of the right to jury trial, it is significant that every benefit weighed by the court went directly to a public policy to give the child extra protection; not one public policy rule based on the needs of the state, the court system, or the victim is enumerated.

The right to a jury is instead balanced off against the traditional benefits the juvenile system at its best offers the child. These benefits make a formidable list: an experienced Bench; access to an unusual amount of rehabilitative expert help; individualized treatment; privacy; a lack of adversary attitudes permitting flexibility of decision.

In short, Terry assumes that children may be treated differently from adults but that any deprivation of due process as permitted to children should be tested for its “fundamental” nature against gains to the child himself in the trade-off. By this test, of course, the statute of limitations as applied to children has no redeeming constitutional features. There is no way in which a minor child can be said to benefit by loss of his action after two years.

However, as discussed above, the statute of limitations problem is a civil matter, not a criminal one, and deprivation of the child’s right to property in the interest of a policy of bringing only fresh tort claims into court must necessarily be weighed on a different scale. It should, however, be weighed, and not simply subsumed under a “settled rule” of law.

Approaching the matter, therefore, from a civil viewpoint, we find that courts in the past have not hesitated to create new causes of action or abolish longstanding immunities when they have felt the need to conform the law to a changing society. Even a brief sampling of key cases from United States jurisdictions during this century makes the reader reflective: See e. g. International News Service v. Assoc. Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) [recognizing a news-gatherer’s interest in the news]; Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, (1950), overruled on other grounds, Smither & Co. v. Coles, 100 U.S.App.D.C. 68, 242 F.2d 220, cert. den. 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1129 (1957) [wife permitted loss of consortium]; Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957) [abrogating the doctrine of sovereign immunity]; Gelbman v. Gelbman, 23 N.Y.2d 434, 245 N.E.2d 192, 297 N.Y.S.2d 529 (1969) [abolishing intrafamily tort immunity for negligence]; Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) [allowing damages for violation of fourth amendment rights]; Ferriter v. Daniel O’Connell’s Sons, Inc.,-Mass.-, 413 N.E.2d 690 (1980) [children’s right to recover for loss of parental companionship and society].

Ferriter, supra, is of particular interest as it too concerns children’s rights. In Ferriter, the court re-examined an earlier argument put forth in the 1950 case of Nelson v. Richwagen, 326 Mass. 485, 95 N.E.2d 545. The Nelson court sustained a demurrer to a minor child’s action for enticement of her mother to desertion, largely on grounds that the child had no legal entitlement to her parent’s society. The Ferriter court, however, discovered that the situation had changed:

That proposition is no longer true. In an action for wrongful death, the children of the deceased are “persons entitled to receive the damages recovered . . . for “loss of the reasonably expected . . . society ... of the decedent.”

The court then decided that when a child suffers from loss of parental nurture through negligent injury rather than death, no sensible distinction could be made, and the Ferriter children were held to have a viable claim. By analogy, a provision of our own No-Fault law becomes relevant. Our legislature has afforded to minors injured in motor vehicle accidents an exception to the bar of the statute of limitations. The courts of Massachusetts could see no reason to distinguish loss of parental society because of death, from loss of parental society because of injury, the child was perceived as legally entitled to his relief from harm in either instance. Similarly, distinguishing tort by motor vehicle from other negligent injuries appears invidious. Whether the impairment that the injured adult suffers from is the result of a childhood vehicle injury, a hunting accident, or a fall from a rotting balcony is immaterial to his embarrassment, pain, and loss of future earning power. The legislature has already entitled children to relief from the statutory bar and has found legal entitlement to redress for tort injury under certain circumstances; logic would suggest that the entitlement be extended to cover tortious injuries indistinguishable in their effect on the injured person.

If the right is not extended, then an Equal Protection argument becomes apparent. Children injured tortiously during their minority are at present unequally treated: children injured by motor vehicle may bring suit during their entire minorities by an adult and for another two years in their own name. Children tortiously injured in any other manner have a two-year statutory limit and may enforce their claims only through the voluntary services of an adult, unless they happen to attain majority during the statutory period.

Tortiously injured children would appear to be a reasonable classification; certainly until passage of the No-Fault Law that group suffered equally in its legal treatment. No rational state policy leaps to mind to explain the present difference in treatment.

If the state is willing to condone long-outstanding cases for thousands of vehicle-injured children every year, from the infant enroute home from the hospital as well as the adolescent with a learner’s permit, why should it find preserving a cause of action for other negligent injuries more intolerable? Proof is never easy after the passage of many years, but no more so in one tort injury than in another. That an issue may be difficult of proof should not prevent a plaintiff from presenting proof if he can do so.

None of the arguments presented in this opinion is designed to advocate a view of equal protection for children that leads to what Professor Lawrence Tribe of Harvard Law School calls a “child-blind” society. We agree with the professor that to tie the movement for justice for children too firmly to a sense of “the historically-rooted oppression of a group properly classified as such” may at times run counter to the real needs of the group by “ignoring its distinctiveness.” As Tribe himself expresses it:

... in some settings, classification as a substitute for thought may itself work grave injustice—as when a person’s status as infant, child or adolescent is invoked as a sufficient justification for allowing others to speak, while the person most intimately affected remains unheard and often essentially unseen. Tribe, American Constitutional Law (1978) pp. 1077-1078.

In the civil cases of Ferriter and Hitaffer discussed supra, courts found that in logic and in law the child and the wife had legally protected interests in consortium despite ancient law declaring the contrary. In contrast, the criminal case of Terry held that the right to jury trial, although indispensable to adult justice, was not constitutionally mandated in juvenile cases. Positive protections available to the child justified the departure from adult procedure.

A flexible approach to matters affecting minors is important. We do not intend to substitute “classification as a substitute for thought.” It does appear, however, that the person’s status as infant is invoked under present law as sufficient justification for allowing other persons to act or not act in his behalf.

Argument for the State purposes as outlined has several serious flaws: a conspicuous lack of any balancing of benefits to the child, or any statement of inconvenience to the state beyond what is endured in vehicle cases, or any concept of equal protection to all tortiously injured children. It is time to rethink the law in this area and seriously consider change.

The order of the lower court is affirmed.

WATKINS, J., files concurring opinion.

WATKINS, Judge,

concurring:

I concur in the result reached by the Majority.

The Act setting forth the time periods in which a civil action may be maintained is not unconstitutional merely because it fails to make a special exception for minors. Von Colin v. Pa.R.R. Co., 367 Pa. 232, 80 A.2d 83 (1951). Furthermore any possible harm which may be suffered by a minor whose parents or guardians fail to initiate any action against a potential tortious wrongdoer within the appropriate time period may be outweighed by the chaos, uncertainty, and severe prejudice which will occur to those accused of tortious conduct, their insurance carriers, and ultimately to the insurance carriers’ ratepayers when lawsuits are permitted to be initiated decades after the occurrence of the incident giving rise thereto. Before such a sweeping change is made the question of “reserve requirements” imposed on insurance carriers and the resulting effect on insurance rates as well as many other issues must be addressed. The Legislature, and not the courts, is the proper forum for the resolution of such issues.

      . Hon. Harry M. Fisher, “Pater Familias—A Cooperative Enterprise,” 41 Ill.L.R. 27, 28 (1946) and authorities cited therein.

      . Note: Harvard Law Review, Vol. 42 at 112, “Reciprocity of Rights and Duties Between Parent and Child,” (1928), also Fisher, supra at 31-35.

      . Fairmont was argued in Philadelphia and Oakland in Allegheny county. Oddly, Woodward, C. J., participated in the decision in both cases, which makes the variance in decision especially hard to fathom.

      . The holding that recovery for the father depended upon the intentional nature of the tort and also upon an analogy to the master-servant relationship was not a quirk of the Fairmont court, however. The same arguments are presented in 3 Blackstone 140-142, and may be traced in case law, see e. g. Logan v. Murray, 6 Serg.R.Pa. 175.

      . The facts of the action presently at bar are less sympathetic to the argument counsel presents. There appears to be no reason why Lisa DeSantis’ parents could not have brought this action a few months earlier and avoided the statute of limitations problem altogether.

      . By 1924 the Oklahoma court in dictum recognized a tort of malicious interference with a child’s right to parental support. Sharum v. Sharum, 101 Okl. 273, 225 P. 682, and in the 1940’s three jurisdictions recognized a right of action in children for enticement away of a parent. See 12 A.L.R.2d 1178. The very recent Massachusetts case of Ferriter v. Daniel O’Connell’s Sons, see infra, has extended the right to recovery for loss of parental companionship and society to actions based on negligent tort injury of the parent.

      . See e. g. New Jersey Statutes 2A: 14-21.

      . In fact, the plaintiff in the instant action appears to belong to this class of injured minor. Although counsel mentioned some provisions of 40 P.S. § 1009.101 et seq. in the complaint, he has never advanced argument under § .106(c)(5) of the No-Fault Act, which is concerned with the statute of limitations and legal disability.

      . That the common law has a remarkable capacity for change cannot be doubted. See argument at text infra between Notes 11-12.

      . The Massachusetts Supreme Court has expressed itself on the issue of public policy versus rights of children as follows:
      Children enjoy the same right to protection and to legal redress for wrongs done them as others enjoy. Only the strongest reasons, grounded in public policy, can justify limitation or abolition of those rights. Sorensen v. Sorensen, 369 Mass. 350, 359, 339 N.E.2d 907, 912 (1975), accord, Ferriter, infra.

      . For the similar viewpoint of the Massachusetts court in civil matters, see preceding Note No. 10.

      . Again, this is a logical extension of the common law view. 3 W. Blackstone Commentaries at 143-144 (1768) states as follows:
      We may observe that, in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution of either the relation itself or at least the advantages accruing therefrom; while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior as the superior is held to have in those of the inferior; and therefore, the inferior can suffer no loss or injury. Lewis’ edition, p. 1139. (Notes omitted)

      . In fact, the recently decided case of Etevenia Salvado et al v. Prudential Property and Casualty Insurance, 287 Pa.Super. 304, 430 A.2d 297, 1981, determined that the two-year statute of limitations was tolled in the case of minors and that the two-year limit for further benefits after final payment of a first award was also tolled.

      . Hitaffer, supra, 183 F.2d at 816-817 makes a similar argument re the “legally protected” interest in consortium; prior to that holding a wife could recover only for intentional invasions and not for negligent ones, but the Hitaffer court found the distinction “neither legal nor logical.”


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    434 A.2d 1280
    Susan A. KOTVAS, Appellee, v. Robert KOTVAS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 15, 1981.
    Filed Sept. 18, 1981.

      Richard K. Brandt, Pittsburgh, for appellant.
    Gordon Michael Fisher, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and SHERTZ, JJ.
   CAVANAUGH, Judge:

The question before us is whether the appellee, Susan Kotvas, complied with the requirements of Pa.R.C.P. 1124(b) in the attempted service upon the appellant of a complaint in divorce. Susan Kotvas filed a complaint in divorce against Robert Kotvas, the appellant, on February 13, 1979. Constable William Martin’s attempts at service at the appellant’s last known address were unsuccessful. The constable executed an affidavit of attempted service indicating that appellant was “not found” at that address. Appellee thereafter sent a copy of the complaint by certified mail to appellant’s last known address, which was returned unclaimed.

On May 8, 1979 appellee filed the affidavit of attempted service, an affidavit of the mailing of the complaint, and an affidavit purporting to set forth the nature and extent of the investigation of the appellant’s present residence and whereabouts. On the same day appellee filed a praecipe for hearing and on May 11, 1979 the notice of the hearing (set for June 11, 1979) was sent by the prothonotary to the appellant by certified mail. Appellant accepted the notice, personally signed, as reflected on the certified mail return receipt.

On June 8,1979 the parties reconciled and the hearing was continued generally. However, on September 17, 1979 ap-pellee filed a second praecipe for a hearing and notice of the scheduled hearing was sent to the appellant’s address. The notice was returned by the postal service with the notations “notified September 19,1979” and “Second notice. No reply to first notice mailed”.

The hearing took place as scheduled before the Master in Divorce. Appellant made no appearance. The master recommended that the divorce be granted. However, her report contained a remark that “affidavit of diligent search indicates no effort to find [the defendant] other than certified mail; however, file shows reconciliation attempt and postponement after attempted services.” On October 25, 1979 a decree in divorce was granted by the lower court. We reverse.

Rule 1124 provides, in pertinent part:

(b) If service cannot be made under Subdivision (a)(1) or (a)(2) of this rule and has not been made under Subdivision (a)(3) of this rule, and the sheriff or constable has made a return or affidavit of “Not Found”, and if the plaintiff has made a good faith investigation to ascertain the present residence and whereabouts of the defendant, the plaintiff, without reinstatement of the complaint, shall have the right of service by
(1) sending a copy of the complaint by registered mail to the defendant’s last known address;
(2) filing an affidavit setting forth the nature and extent of the investigation; and
(3) filing an affidavit of the mailing of the complaint.

Thus service by registered mail is only proper “if the plaintiff has made a good faith investigation to ascertain the present residence and whereabouts of the defendant”. An affidavit setting forth the nature and extent of the investigation must be filed.

In the instant case the Affidavit of Diligent Search is completely devoid of any information concerning the nature and extent of the investigation. In fact, no investigation is claimed to have been conducted. The plaintiff-appellee merely claims that a certified letter, sent to defendant’s last known address, was returned unclaimed. This allegation merely claims compliance with Rule 1124(bXl) which requires the plaintiff to send a copy of the complaint to the last known address by registered mail. The only other information in the affidavit is that the plaintiff has no information as to the defendant’s whereabouts nor of anyone who would have this information. Appellee fails to describe what efforts, if any, were made to attempt to discover the defendant’s whereabouts.

Previously Rule 1124(b) provided that where the constable or sheriff properly made a return of “Not Found”, service by publication was required. As amended the Rule imposes more stringent requirements on the plaintiff in affecting service:

The amendment, in order to prevent abuse of the registered or certified mail service, requires the filing of an affidavit showing the nature and extent of the investigation to ascertain the address and whereabouts of the defendant and also requires an affidavit of the mailing of the complaint. These affidavits become part of the record and subject to the scrutiny of the master and the court. If the court concludes that the investigation was inadequate, it could rule that service had not been made in conformity with the Rule and that there was no jurisdiction to enter a decree in favor of the plaintiff. This is a substantial tool to avoid cases where the plaintiff deliberately seeks to avoid giving notice of the action to the defendant, although the defendant’s whereabouts are known.

Goodrich-Amram 2d § 1124(b) 1, p. 319 [footnote omitted]. Thus “efforts to ascertain the whereabouts of the defendant are essential. An affidavit which fails to specify these efforts is inadequate to support jurisdiction.” Id. citing Howell v. Howell, 32 Beaver Co.L.J. 62 (1972).

Although there is no appellate decision addressing this precise issue, the case of Doychak v. Doychak, 5 D. & C.3d 324 (1978) involves a similar situation. In that case the plaintiff’s affidavit stated that mail sent to defendant’s last known address was returned by the post office marked “Moved, left no address”. It also alleged that the plaintiff “knows no other address” and has “exhausted all efforts to determine the defendant’s whereabouts”. As in the instant case the nature and scope of the investigation were not set forth. The court held that the affidavit was totally inadequate to satisfy the requirements of Rule 1124(b).

We hold that the appellee’s failure to comply with the requirements of 1124(b) resulted in a lack of jurisdiction over the defendant. In its opinion the lower court held that the requirements of Rule 1124 were fully complied with. However, in reaching this conclusion the court relies on appellee’s Amended Affidavit of Attempted Service. This amended affidavit was filed on January 8, 1980, subsequent to the October 29, 1979 issuance of the divorce decree. The affidavit sets forth with much greater specificity the nature and extent of the investigation conducted into the defendant’s whereabouts prior to service by certified mail. Regardless of the nature and extent of the investigation this affidavit sets forth, it cannot confer jurisdiction retroactively-

Divorce decree vacated.

      . Rule 1124, Pa.R.C.P. has been rescinded. Service on a defendant to an action in divorce is now governed by Pa.R.C.P., Rule 1920.4.


author: DiSALLE, Judge:

text:
    434 A.2d 1282
    COMMONWEALTH of Pennsylvania, v. Alvin MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Sept. 18, 1981.
    Petition for Allowance of Appeal Denied Jan. 4, 1982.

      Kevin H. Way, Assistant Public Defender, Williamsport, for appellant.
    William S. Kieser, District Attorney, Williamsport, for Commonwealth, appellee.
    Before CAVANAUGH, DiSALLE and MONTEMURO, JJ.
   DiSALLE, Judge:

Appellant, Alvin Miller, was found guilty in a jury trial of kidnapping, unlawful restraint, false imprisonment, simple assault, terroristic threats, and theft. The jury rejected appellant’s contention that he was not guilty by reason of insanity. On April 14, 1980, appellant was sentenced to be imprisoned for a minimum of four years and a maximum of ten years. This appeal follows the denial of his post-trial motions.

Appellant’s first contention is that the lower court erred in not declaring a mistrial when the prosecution asked Dr. Brickhouse, a psychiatrist appearing on behalf of appellant, whether he was aware that appellant had been “found sane in Florida.” We disagree.

In reviewing a mistrial motion on appeal we are initially guided by the rule that trial courts are granted discretionary powers, . .. and their rulings “will not be reversed unless there is a flagrant abuse of discretion.” ... In determining whether to grant the request, the necessary inquiry is whether the alleged occurrence was prejudicial to the defendant, “that is, [whether] it is of such a nature . .. that it may reasonably be said to have deprived the defendant of a fair and impartial trial.”

(citations omitted). Commonwealth v. Farrell, 265 Pa.Super. 41, 52-53, 401 A.2d 790, 796 (1979).

Here, the offending question, taken in context, and followed, as it was, by the prosecution’s clarifying statement to the jury and the lower court’s curative instruction to the jury was not so prejudicial as to require a mistrial. The lower court, therefore, did not abuse its discretion in denying appellant’s motion. Id.

Appellant’s second contention is that the lower court erred in not permitting Dr. Patterson, another psychiatrist appearing on behalf of appellant, to testify as to the probable length of appellant’s treatment if he was adjudicated insane and committed to an institution. Appellant argues that such information is a “natural extension” of Commonwealth v. Mulgrew, 475 Pa. 271, 380 A.2d 349 (1977).

In Mulgrew, our Supreme Court held that a jury must be given an explanation of what would be the consequences of a verdict of not guilty by reason of insanity. The Court adopted as its rationale the language of Lyles v. United States, (citation omitted), which held:

“The issue of insanity having been fairly raised, the jury may return one of three verdicts, guilty, not guilty, or not guilty by reason of insanity. Jurors, in common with people in general, are aware of the meanings of verdicts of guilty and not guilty.. .. But a verdict of not guilty by reason of insanity has no such commonly understood meaning. ... It means neither freedom nor punishment. It means the accused will be confined in a hospital for the mentally ill until the superintendent of such hospital certifies, and the court is satisfied, that such person has recovered his sanity and will not in the reasonable future be dangerous to himself or others. We think the jury has a right to know the meaning of this possible verdict as accurately as it knows by common knowledge the meaning of the other two possible verdicts.” (Emphasis added.)

Mulgrew, 475 Pa. at 275-76, 380 A.2d at 351.

Here, the lower court instructed the jury that “when a defendant is found not guilty by reason of insanity, he may be the subject of an immediate court proceeding to commit him to a mental treatment facility; and if committed, his commitment will continue as long as there is found a reasonable probability that similar conduct will be repeated.” We find this instruction to be in compliance with Mulgrew.

We expressly reject appellant’s argument that we should expand Mulgrew. To permit, as appellant advocates, a defendant to present testimony as to the probable length of his commitment would only serve to cloud the issue of his guilt. The lower court correctly pointed out that, “[t]he length of commitment, be it to a penal institution or a mental institution, is not relevant to any determination in that the jury might properly be called upon to make.” See III ABA Standards For Criminal Justice § 18-1.1 (2d ed. 1980).

Appellant’s third contention is that the lower court erred in denying his motion for bifurcation of the trial. The Act of July 9,1976, P.L. 817, No. 143, § 404, effective in 60 days; 50 P.S. § 7404(c) (Supp.1981-82). He argues that the insanity defense made it difficult for the jury to consider the other defenses he raised, thereby denying him a fair and impartial trial. These other defenses consisted solely of appellant’s failure to remember or be aware of certain events: placing the rope around the victim’s neck, threatening the victim, and stealing the victim’s car.

The lower court determined that bifurcation was not necessary because the issues were “straightforward enough” and that bifurcation would result in two almost identical trials utilizing the same witnesses and evidence. We agree and hold that the lower court did not abuse its discretion in refusing bifurcation. 50 P.S. § 7404(c). See 1 Pa.C.S.A. § 1903 (“words .. . shall be construed according to their common and approved usage.... ”).

It is clear that appellant’s other defenses were not separate defenses, but were, in fact, rooted in his insanity defense. Therefore, once the jury rejected appellant’s insanity defense, they were free to find him guilty of the charges against him based upon the Commonwealth’s uncontested evidence.

Appellant’s final contention is that the lower court erred in not instructing the jury that they should return a verdict of not guilty by reason of insanity if they found that appellant’s actions were the offspring or product of a mental disorder. Appellant argues that our court should reexamine the presently used M’Naghten test for legal insanity in light of recent advancements in psychology.

We reject appellant’s argument and rely on our Supreme Court’s recent reaffirmation of the M’Naghten test in Commonwealth v. Hicks, 483 Pa. 305, 396 A.2d 1183 (1979). The lower court’s charge to the jury was in accordance with the M’Naghten test and, therefore, proper.

Judgment of sentence affirmed.

      . Appellant had testified, prior to Dr. Brickhouse, to having been arrested in Florida and placed in a mental hospital for nine months before being transferred to a Miami prison.

      . These two statements to the jury were:
      “BY MR. OSOKOW [Assistant District Attorney]:
      To clarify that last question, Your Honor, in reference to Florida, I did not mean to imply that there was an adjudication of sanity or insanity at all.
      BY THE COURT:
      All right. The Jury should not infer from the question that there was such a finding down there, as there was not. Now, proceed.”

      . § 7404(c) states:
      Hearing and determination of criminal responsibility; bifurcated trial
      (c) Bifurcation of Issues or Trial. Upon trial, the court, in the interest of justice, may direct that the issue of criminal responsibility be heard and determined separately from the other issues in the case and, in a trial by jury, that the issue of criminal responsibility be submitted to a separate jury. Upon a request for bifurcation, the court shall consider the substantiality of the defense of lack of responsibility and its effect upon other defenses, and the probability of a fair trial, (emphasis added)

      . Because of our disposition of this issue we will not address the question of appellant’s apparent failure to timely file his motion for bifurcation.

      . This definition of legal insanity is that articulated in Durham v. United States, 214 F.2d 862 (D.C.Cir.1954).

      . The M’Naghten test “relieves the actor of criminal responsibility if ‘at the time of the committing [of] the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing what was wrong.’ ” (citations omitted). Commonwealth v. Hicks, 483 Pa. 305, 310, 396 A.2d 1183, 1185 (1979).


author: POPOVICH, Judge: JOHNSON, Judge,

text:
    434 A.2d 1292
    Irving S. KARPE, Appellant, v. BOROUGH OF STROUDSBURG.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Sept. 18, 1981.

      Edwin Krawitz, East Stroudsburg, for appellant.
    Philip H. Williams, Stroudsburg, for appellee.
    Before BROSKY, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

The instant appeal comes before this Court on an appeal from an order dismissing plaintiff-appellant’s motions for a new trial and for judgment notwithstanding the verdict. For the reasons herein stated, that appeal will be quashed.

Appellant, Irving Karpe, received zoning and building permits from defendant-appellee in order to construct a parking lot. Approximately one year later, the permits were revoked. Instead of filing a direct appeal from the order revoking the permits, appellant filed an action against appellee in assumpsit and in trespass. The matter proceeded before a judge, sitting without a jury. Hearings were held, and the following verdict was issued:

“AND NOW, October 25, 1979, the Court finds in favor of the Defendant and against the Plaintiff, for failure of Plaintiff to prove the damages sustained.
BY THE COURT:
/s/ Harold A. Thomson Jr.,
J.”

(R. 45a, p. 3)

Appellant then filed two separate post-trial motions, a motion for a judgment notwithstanding the verdict and a motion for a new trial. (R. Nos. 41a and 43a) These motions were treated properly by the trial court as exceptions to the verdict and subsequently dismissed. No final judgment was entered, and this appeal followed.

Although the issue is not raised by either party, this Court may raise sua sponte the question of jurisdiction. See Penstan Supply, Inc. v. Hay, 283 Pa.Super. 558, 424 A.2d 950 (1981); Turner v. May, 285 Pa.Super. 241, 245 ftn. 2, 427 A.2d 203, 204 ftn. 2 (1981). Additionally, we have said that:

“An order dismissing exceptions following a trial without jury is in the same category as an order refusing a new trial. It is interlocutory and unappealable. The appeal should not be filed and may not be entertained until a final judgment has been entered.”
Penstan Supply, Inc. v. Hay, 283 Pa. Super, at 560, 424 A.2d at 951 (1981) (emphasis added). Accord Lattanze v. Silverstrini, 287 Pa.Super. 263, 429 A.2d 1201 (1981).

Because the trial court’s order of June 5, 1980, which dismissed appellant’s “exceptions” is interlocutory, an appeal from such an order cannot lie “until a final judgment has been entered.” Id. Consequently, this Court cannot address the merits of the issues raised by appellant.

Appeal quashed.

JOHNSON, J., files concurring statement.

JOHNSON, Judge,

concurring:

I join in the majority opinion of Judge Popovich, holding that the appeal be quashed. I am unable to agree with the majority on those issues discussed in footnote two relating to the notice provision contained in Pa.R.C.P. § 1038(d), which review is unnecessary to the decision in this case.

      . In its opinion, the trial court accurately stated that the motions (i. e., for judgment notwithstanding the verdict and for a new trial) filed by appellant were abolished in non-jury assumpsit and trespass actions. See Pa.R.C.P. 1038(d) and 1048; see also Stowe v. Booker, 284 Pa.Super. 53, 56 ftn. 2, 424 A.2d 1388, 1390 ftn. 2 (1981) and Churilla v. Barrier, 269 Pa.Super. 100, 104 ftn. 5, 409 A.2d 83, 85 ftn. 5 (1979). The trial court also correctly treated the improperly captioned motions as exceptions. See Norris Van Tops, Inc. v. Kopitsky, 278 Pa.Super. 77, 419 A.2d 1365 (1980) and Pa.R.C.P. 1048.

      . The existence of certain other procedural irregularities in the instant case does not affect the validity of this appeal. See Pa.R.A.P. 902.
      First of all, it appears that appellant’s “exceptions” were filed untimely given the fact that the time period under Pa.R.C.P. 1038(d) is to be calculated from the date that “the clerk makes the notation in the docket that notice of entry of the order has been given as required by Pa.R.C.P. 236(b),” as opposed to when notice was received by the parties. Pa.R.A.P. 108(b); See Sarver v. Sarver, 289 Pa.Super. 472, 474 ftn. 1, 433 A.2d 902, 904 ftn. 1 (1981), and Christie v. Open Pantry Marts, Inc., 237 Pa.Super. 243, 244, 352 A.2d 165, 166 (1975) (“Under Pennsylvania law, when a letter is mailed, there is a presumption of receipt); Accord Shafer v. A.I.T.S., Inc., 285 Pa.Super. 490, 498, 428 A.2d 152, 156 (1981); But see Allstate Ins. Co. v. Tallon, 6 Pa.D.& C.3d 732 (1978); See generally 2 Henry Pa.Evid. § 668 at 99 (4th ed. 1953). Under Pa.R.C.P. 236, the prothonotary is required to give written notice by ordinary mail of the entry of any court order, decree or judgment. See State Farm Mut. Auto. Ins. Co. v. Schultz, 281 Pa.Super. 212, 214 ftn. 1, 421 A.2d 1224, 1225 ftn. 1 (1979); Ruh v. Ruh, 268 Pa.Super. 82, 407 A.2d 447 (1979).
      The time stamp utilized by the Prothonotary’s office of Monroe County indicates that appellant’s “exceptions” were filed on November 15, 1979, which is more than ten days from October 26, 1979, the date appearing on the docket for when notice of the decision was mailed by the prothonotary to the parties.
      Although not ruling on the merits of the trial court’s actions in dismissing the untimely “exceptions”, we note that a trial court has broad discretion to entertain untimely procedural motions. See Leidy v. Deseret Enterprises, Inc., 252 Pa.Super. 162 ftn. 1, 381 A.2d 164, 167 ftn. 1 (1977).
      Second, appellee filed a motion for judgment on the pleadings and accompanying memoranda after notice of appeal was filed to this Court. As the case at that point was pending on appeal, the trial court appropriately has not ruled on the motion because jurisdiction is within the Superior Court. See Pa.R.A.P. 1701(a); See also Commonwealth v. Leatherbury, 269 Pa.Super. 194, 197 ftn. 4, 409 A.2d 431, 433 ftn. 4 (1979). The validity of that motion, also, does not affect this Court’s disposition of the appeal.


author: STRANAHAN, Judge:

text:
    434 A.2d 1294
    COMMONWEALTH of Pennsylvania, v. Mack KING, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Sept. 18, 1981.

      Margaret M. Boyce, Philadelphia, for appellant.
    Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

      Before SPAETH, STRANAHAN  and SUGERMAN, JJ.

      . Judge John Q. Stranahan, P. J., of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.

      . Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   STRANAHAN, Judge:

Appellant was charged with rape at No. 2037 August 1977, involuntary deviate sexual intercourse at No. 2035 August 1977, and indecent assault at No. 2033 August 1977. The above charges arose from the August 10, 1977 sexual assault of Ms. Marion Clayton.

At No. 75 September 1977, appellant was charged with attempted rape. At No. 77 September 1977 he was charged with indecent exposure. The latter two charges are the result of the July 23, 1977 sexual assault of Cheryl St. Cyr.

On November 21, 1977, the trial court heard evidence on appellant’s motions to suppress physical evidence and sever all of the above listed charges. The motions were denied and all of the charges involving both victims were consolidated for trial.

Appellant was convicted of all counts involving both victims after a trial by jury. Post-trial motions were timely filed and denied by the trial court. On March 28, 1978, appellant was sentenced to eight to twenty years incarceration for the offense involving Ms. Clayton. He received a concurrent sentence of one to two years incarceration for the offenses involving Ms. St. Cyr.

The appeal followed.

Appellant contends that the trial court improperly consolidated the cases involving Ms. Clayton and Ms. St. Cyr for trial, that his convictions were not based upon sufficient evidence, and that trial counsel was ineffective in failing to object to an alleged misstatement of fact in the prosecutor’s closing argument.

Appellant’s contentions are without merit and the judgment of sentence is affirmed.

SUFFICIENCY OF THE EVIDENCE:

Appellant maintains that the evidence was insufficient to support his conviction for rape, involuntary deviate sexual intercourse, and indecent assault with Marion Clayton as victim.

He further contends that the evidence was insufficient to support his convictions, for attempted rape and indecent exposure with Cheryl St. Cyr as victim.

Each case will be considered in turn.

The test for reviewing sufficiency of the evidence is delineated in Commonwealth v. Madison, 263 Pa.Super. 206, 209, 210, 397 A.2d 818, 820 (1979) as follows:

In testing the sufficiency of the evidence, we proceed in several steps. First, we accept as true all the evidence upon which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable references arising from that evidence. And finally, we ask whether the evidence, and the references arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. (Citations omitted)

A. Marion Clayton cases:

The evidence involving Marion Clayton as victim, viewed in light of the above standard, reveals that the victim, a nineteen year old woman, saw the following advertisement in the Reader, a local Philadelphia area newspaper, in June 1977.

Attention, get paid for your photographs from $15 to $300. No experience necessary, will train free. Children ages 1-16 must be accompanied by a parent. Adults 17 and over photographs will be taken by MBX professional photographer. Credit terms arranged. Call now. Staff operators on duty seven days 24 hours. M04-3941, BA8-0377. MBX of Pennsylvania.

Ms. Clayton called the listed numbers twice and gave the answering service information concerning her age, height, weight, address, and telephone number.

On August 10, 1977 at 5:30 p. m. the victim was telephoned by a man identifying himself as Mack King. The man questioned Ms. Clayton about the information provided the answering service, asked if she was interested in photography, and suggested that they meet. Ms. Clayton suggested meeting the next day, but agreed to the caller’s request that the meeting occur that evening. She agreed to meet the caller in front of a restaurant at 8:00 p. m. The caller described the clothing he would be wearing.

The victim went to the appointed place and waited fifteen minutes before being approached by the defendant, Mack King. The defendant was wearing the clothing described by the telephone caller. He showed Ms. Clayton an MBX business identification card bearing his photograph and suggested that the meeting continue in a nearby bar.

In the bar, they discussed appellant’s business and Ms. Clayton’s career prospects. Appellant displayed photographs of other young women and business papers carried in a briefcase marked with the initial MBX. Appellant told Ms. Clayton that she would, as a pre-requisite to her modeling career, have to enroll in his photography school at a cost of sixty dollars, with a five dollar deposit required. The prosecutrix completed an application and promised to pay the deposit the next day. In the bar, the victim consumed one glass of wine.

The appellant and the victim left the bar between 9:30 and 10:00 p. m. The appellant told the victim he wanted her to meet one of the women with whom she would be working. Ms. Clayton acquiesced and Mr. King led her to an apartment building located near the bar. He led the victim into the building through a side door leading to a staircase. They proceeded to a second floor landing.

Upon arriving at the landing, Mr. King ordered Ms. Clayton to stop and take off her jacket. She initially refused, but acceded when the demand was repeated and appellant approached. Appellant then attempted to unzip Ms. Clayton’s pants. She resisted, pushing him away. Appellant ordered her to unzip the pants. Ms. Clayton initially refused, but complied when appellant, stating that he was a karate expert, threatened to hurt her. After another threat from appellant, the victim pulled down her pants and lay on her back. Appellant raped Ms. Clayton, who unsuccessfully tried to push him away. He then ordered the victim to turn over and engaged in anal intercourse. Then, appellant ordered Ms. Clayton to engage in oral-genital intercourse. When she refused, appellant grabbed her head and forced her to do so. The victim then vomited during the oral intercourse. Appellant finally ordered Ms. Clayton to rub his stomach and genitalia until he ejaculated.

The prosecutrix was directed to dress and did so. Appellant grabbed and rummaged through her purse. The victim left the building and appellant approached her on the street, returned the purse, and told her to tear up her application to MBX and asked what she intended to do.

Ms. Clayton went to the home of her boyfriend, where she was joined by her mother. She was taken first to Temple University Hospital, then to Presbyterian Hospital, where she was examined and treated. The victim then went to the police administration building, where she reported the incident, describing her assailant. She returned to the site of the assaults with an officer.

The records custodian of Presbyterian Hospital testified that Ms. Clayton was in fact examined at that institution. A pelvic examination was “negative and normal.” She was not bruised. Counsel later stipulated that the police laboratory report indicated that no evidence of sperm was found during either the vaginal or rectal examinations of the victim.

Appellant contends that the evidence presented at trial is as consistent with his explanation that the victim consented to the sexual relations as it is with the victim’s allegation that she was raped. He points to the absence of physical injury and the victim’s conduct in spending time with him in a bar and accompanying him to the apartment building as indicia of consent.

These claims were meritless. The evidence was clearly sufficient to support the jury’s verdict.

The offense of rape is defined as follows:

Section 3121. Rape
A person commits a felony of the first degree when he engages in sexual intercourse with another person not his spouse:
(1) by forcible compulsion,
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;. ..
35 Pa. C.S. 3121.

In Commonwealth v. Irvin, 260 Pa.Super. 122, 393 A.2d 1042 (1978), this court stated that the degree of force involved in rape or involuntary deviate sexual intercourse is defined in terms of its effect on the volition of the victim rather than infliction of physical injury. The degree of force needed to support a conviction for rape or involuntary deviate sexual intercourse “need only be such as to establish lack of consent.” Cf. Commonwealth v. Rough, 275 Pa. Super. 50, 418 A.2d 605 (1980) panel decision and citations contained therein.

In this case, the victim pushed the appellant away when he attempted to unzip her pants. When the appellant demanded that the victim unzip her pants, she refused to do so until the appellant told her that he was a karate expert and that he would hurt her if she did not obey him. When the appellant demanded that the victim remove her pants, she refused to do so until he again threatened her. Clearly the “victim succumbed to the threat of forcible compulsion.” The Court finds, therefore, that there was sufficient evidence to convict the appellant of rape.

The offense of involuntary deviate sexual intercourse is defined as follows:

Section 3123. Involuntary deviate sexual intercourse.

A person commits a felony of the first degree when he engages in deviate sexual intercourse with another person:

(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution;...
18 Pa. C.S. 3123.

“Deviate sexual intercourse” is defined as “sexual intercourse per os or per anus between human beings who are not husband and wife.” 18 Pa. C.S. 3101.

In the case at hand, the victim engaged in oral intercourse only after the above described threats. Moreover, the oral intercourse was accomplished by the appellant grabbing the victim’s head and forcing the contact. Hence, there was more than sufficient evidence to convict the appellant of involuntary deviate sexual intercourse.

The offense of indecent assault is defined as follows: Section 3126. Indecent assault.
A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, ..., if:
(1) he does so without the consent of the other person;
18 Pa. C.S. 3126.

“Indecent contact” is defined as “any touching of the sexual or other intimate parts of the person for the purpose of arousing.or gratifying sexual desire, in either person.” 18 Pa. C.S. 3101.

In light of the evidence produced at trial, there is no question that there was sufficient evidence to convict the appellant of indecent assault.

B. CHERYL ST. CYR CASE:

The testimony of Cheryl St. Cyr, viewed in light of the standard of review enunciated above, reveals that the victim, age 17, learned of MBX from a friend who had seen the newspaper advertisement. Ms. St. Cyr completed the MBX application and paid a sixty dollar fee. At the conclusion of the six month course, she was to receive a portfolio and diploma. She attended several classes and posed for sketches drawn by appellant.

Ms. St. Cyr testified that on July 16, 1977, at a posing session, appellant attempted to kiss her. She rebuffed his advance, but continued her session, agreeing to a posing session in her home the next week.

On July 23, 1977, appellant met Ms. St. Cyr at her home. After completing some clerical work, appellant suggested a posing session. The victim donned a “sizzler”, a short dress without pants, and the session began. Appellant went into the bathroom at one point during the session. In his absence, the victim did warm up poses. She then noticed the appellant standing in the bathroom doorway and, with his penis exposed, masturbating. Ms. St. Cyr advised appellant that she was not interested in sexual activity and that her fiancé was scheduled to arrive. Appellant, in turn, intimated that she in fact desired such activity. Appellant then approached the victim and tried to force himself on top of her. She resisted, pushing him away by kneeing him in the chest. When this occurred, appellant’s zipper was open, but the complainant was uncertain as to whether his penis was exposed. She began crying after pushing appellant away. The timely arrival of the victim’s fiancé brought the incident to a close and appellant was directed to leave.

After appellant’s arrest for the offenses involving Ms. Clayton, Ms. St. Cyr was contacted by the police, who had obtained her name after reviewing material seized from appellant when he was arrested. She then reported the incident.

Appellant contends that his convictions of attempted rape and indecent exposure are not supported by sufficient evidence. He advances three bases for this contention.

First, appellant argues that Ms. St. Cyr’s testimony is not worthy of belief. He points to an alleged inconsistency between her trial and preliminary hearing testimonies regarding the date on which appellant exposed himself. This claim properly goes to the weight of the evidence, rather than its sufficiency. Assuming arguendo that such an inconsistency did exist, it is the function of the trier of fact to weigh and evaluate witnesses credibility. The jury chose to accept Ms. St. Cyr’s testimony as credible, which was its prerogative. Absent evidence that the jury’s decision was manifestly erroneous, it will not be disturbed on appellate review. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). There is no such evidence in this case.

Appellant next maintains that the victim’s uncertainty about whether or not appellant’s penis was exposed precludes a finding that he took a substantial step toward the completion of rape. Criminal attempt is defined in part as follows:

Section 901 Criminal Attempt
(a) Definition of attempt—A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
18 Pa. C.S. 901.

Appellant’s conduct falls within the gambit of the criminal attempt statute. The Commonwealth’s evidence indicates that appellant exposed himself, indicated a desire to have sexual intercourse despite the victim’s remonstrances, approached the victim and forcibly laid down on top of her. He was forced away by the victim’s resistance. Clearly, appellant did an act constituting a substantial step towards completion of the crime.

Appellant finally contends that the testimony of Ms. St. Cyr in regard to the charge of Indecent Exposure was insufficient to sustain the verdict. Indecent exposure is defined as follows:

Section 3127 Indecent Exposure
A person commits a misdemeanor of the second degree if, for the purpose of arousing or gratifying sexual desire of himself or of any person other than his spouse, he exposes his genitals under circumstances in which he knows his conduct is likely to cause affront or alarm. 18 Pa. C.S. 3127.

Appellant argues that Ms. St. Cyr’s failure to testify that she was “affronted or alarmed” by his conduct was a flaw fatal to the Commonwealth’s case. We disagree. The evidence indicates that appellant excused himself from the posing session. When he reappeared, his penis was exposed and he was masturbating. Ms. St. Cyr’s response, telling appellant to stop is an indiction that his activity caused affront or alarm. Additionally, the statute requires only that the defendant “knows his conduct is likely to cause affront or alarm.” It can be inferred from the surrounding circumstances that appellant knew his conduct was likely to cause affront or alarm. Commonwealth v. Back, 255 Pa.Super. 603, 389 A.2d 141 (1978).

CONSOLIDATION:

Appellant contends that the trial court erred in ordering consolidation of the Clayton and St. Cyr cases for trial.

In Commonwealth v. Fiorini, 257 Pa.Super. 185, 189, 390 A.2d 774, 776 (1978), this court stated:

It is well established that decisions with regard to consolidation or severance of indictments from trial are matters of discretion with the trial judge, whose conclusion will be reversed only for a manifest abuse of discretion or prejudice and injustice to the defendant. Citing Commonwealth v. Loch, 239 Pa.Super. 331, 334, 361 A.2d 758, 759 (1976).

This Court has consistently interpreted “abuse of discretion” in light of the Supreme Court’s decision in Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973) by holding that no abuse of discretion occurs if the offenses to be consolidated are easily separable in the minds of the jurors, and if evidence of one offense would have been independently admissible at a separate trial of the other offense. Commonwealth v. Rhodes, 250 Pa.Super. 210, 378 A.2d 901 (1977). Commonwealth v. Morris, 258 Pa.Super. 24, 391 A.2d 653 (1978).

In the case at bar, both standards were met and the trial court did not abuse its discretion in consolidating the Clayton and St. Cyr cases for trial.

First, as the opinion of the trial court notes, the evidence of the Clayton and St. Cyr cases was not complex. The testimony was relatively brief with the bulk of the evidence against appellant coming from the two victims. The demeanor of the victims was dissimilar, providing the jury with a ready means of distinguishing their testimony. Appellant’s only assertion that the jury may have been confused arises from the Commonwealth having submitted hospital records regarding Ms. Clayton at the conclusion of its case, rather than at the conclusion of her testimony. The records, however, dealt only with Ms. Clayton and the prosecution explained the reason for their late introduction to the jury.

In summary, evidence of the Clayton and St. Cyr offenses was easily separable. Hence, the first standard governing consolidation met in this case.

This leads then to examination of the second prong of the test: the evidence of each crime must be independently admissible in the trial of the other if the crimes were tried separately.

Generally, evidence of other crimes allegedly committed by a defendant is not admissible at trial. As the court stated in Commonwealth v. Bradley, 243 Pa.Super. 208, 212, 364 A.2d 944, 945, 946 (1976):

One of our most fundamental and prized principles in the administration of criminal law is that a distinct crime, except under certain special circumstances, cannot be given in evidence against a defendant who is being tried for another crime. This is because the fact that a person has committed one offense is not proof that he has committed another and because the effect of such testimony upon a jury is nevertheless bound to create prejudice and an emotional reaction on their part against the defendant. Commonwealth v. Burdell, 380 Pa. 43, 47, 110 A.2d 193, 195 (1955).

Special circumstances constituting exceptions to the general rule have been found to exist when the evidence of other crimes “tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial—in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.” Commonwealth v. Peterson, 453 Pa. 187, 197, 198, 307 A.2d 264, 269 (1973). Cited in Commonwealth v. Hude, 256 Pa.Super. 439, 442, 443, 390 A.2d 183, 184, 185 (1978).

If one of the above listed special circumstances is found to exist, the trial court must then balance “. . . on the one side, the actual need for the other-crimes evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that other crimes were committed and that the accused was the actor, and the strength or weakness of their other-crimes evidence in supporting the issue, and on the other, the degree to which the jury will probably be roused by the evidence to overmastering hostility.” McCormick on Evidence, sec. 190 at 453 (2nd Ed. 1972), cited in Commonwealth v. Hude, supra, 256 Pa.Super. at 445 and 390 A.2d at 186.

In the case at bar, the Clayton and St. Cyr sexual assaults form part of a common scheme, plan, or design so distinctive that proof of one tends to prove the other. In each offense, MBX of Pennsylvania was the device used by appellant to contact and isolate his victim. MBX had no office or studio. All classes and sessions were held in the home of the student. The advertisement which brought both Ms. Clayton and Ms. St. Cyr into contact with appellant was directed at, among others, young women. Both Ms. St. Cyr and Ms. Clayton became aware of MBX through the advertisement. Both completed applications, and paid or arranged to pay a tuition fee. Appellant made sexual advances to Ms. St. Cyr at the first lesson held in her home. The sexual assault of Ms. St. Cyr occurred eight days later at a second session, held in the victim’s home when the victim was alone with appellant. Less than three weeks later, Ms. Clayton, immediately after “enrolling” in MBX was assaulted by the appellant. Appellant lured Ms. Clayton to an isolated location, on the pretext of visiting the residence of another MBX model and so was able to complete the attack in privacy. In sum, both the Clayton and St. Cyr cases are promoted by MBX, which was used by appellant as the means of contacting, isolating and attacking the two victims. The attacks thus constituted a common scheme to use MBX as a vehicle for appellant to gain access to young women for the purpose of sexual gratification. See Commonwealth v. Morris, 258 Pa.Super. 24, 391 A.2d 653 (1978). Affirmed by an equally divided court.

Additionally, the appellant’s identical use of MBX in both cases tends to prove both intent and absence of mistake or accident. Evidence of each of these two offenses, therefore, would be admissible at the trial of the other if the offenses were tried separately. Commonwealth v. Peterson, supra.

The appellant alleges that he was unduly prejudiced by the consolidation. We disagree. In this case, the probative value of the “other crimes” evidence outweighs any potential prejudice suffered by appellant.

The lower court properly consolidated the Clayton and St. Cyr cases for trial.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Appellant now contends that his trial counsel was ineffective, mandating an award of a new trial.

The alleged ineffectiveness arises from the closing arguments of both defense counsel and the prosecutor. Appellant’s counsel appears to have argued that Ms. Clayton developed her testimony regarding appellant’s failure to ejaculate inside her to conform with a laboratory report which showed no evidence of spermatozoa inside the victim. The prosecutor then argued that the police lab report, not the hospital medical report, contained the evidence in question and that Ms. Clayton was unaware of the contents of the police lab report and, hence, she could not have so tailored her testimony. Appellant argues that the prosecutor referred to facts not contained in the record by stating that tests for spermatozoa were not conducted at the hospital and that Ms. Clayton was unaware of the results of said tests.

The record clearly indicates that the police laboratory rather than the hospital conducted the tests for spermatozoa. While less clearly, the record also appears to indicate that Ms. Clayton was unaware of the results of the spermatozoa testing.

Counsel was, therefore, not ineffective for failure to pursue a frivolous issue. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974); Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977).

This Court, therefore, affirms the judgment of sentence imposed against the appellant by the lower court.


author: PER CURIAM:

text:
    434 A.2d 1301
    Henry F. RYMAN, Appellant, v. MICROCOM CORP., Frank Shandelman, Marvin Steinberg and Charles Rosen.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1981.
    Filed Sept. 18, 1981.

      Andrew C. Hecker, Philadelphia, for appellant.
    George J. Hartnett, Philadelphia, for appellees.
    Before HESTER, DiSALLE and POPOVICH, JJ.
   PER CURIAM:

This appeal is taken from an order of court dismissing appellant, Henry Ryman’s, suit for failure to comply with Montgomery County Rule of Civil Procedure 302(d) (hereinafter Rule 302(d)). Appellant argues that Rule 302(d) was incorrectly applied to this case. We agree.

Initially, appellant’s suit was dismissed pursuant to Pennsylvania Rules of Judicial Administration No. 1901 and Montgomery County Rule 406. On November 27, 1979, appellant filed a Petition to Open. On December 24, 1979, after appellees had filed their Answer, the Court ordered the case to be placed “on the Argument List, upon the filing of a praecipe, .... and allowing thirty (30) days for taking depositions if such be deemed necessary.” On April 14, 1980, appellees, the non-moving parties, filed a praecipe to place the case on the Argument List. Appellant filed a transcript of his deposition on April 30, 1980. Appellant, however, did not file a brief and on May 19, 1980, the court ordered appellant’s Petition to Open dismissed pursuant to Rule 302(d). Appellant’s Petition for Reconsideration was denied and this appeal was taken.

Rule 302(d) provides, in pertinent parts, that:

[T]he moving party or parties shall file its brief within thirty (30) days of the filing of the Motion, Petition or Preliminary Objection,. . . .
If the briefs of either the moving party or responding party are not timely filed within the period above stated, unless the time shall be extended prior thereto by the Court for good cause and reason shown, .. . the Court shall, without further notice, mark the Motion, Petition or Preliminary Objection granted or dismissed, depending upon which party does not comply with the brief filing requirements of this rule.

We find Rule 302(d) to be inapplicable to the instant case. First, the Rule requires a brief to be filed within 30 days of the filing of a “Motion, Petition or Preliminary Objection,” not within 30 days of the filing of a praecipe. Furthermore, the Rule provides that “[t]he moving party shall file a praecipe... at the time it files its Appealable matter . . . . ” Here, the non-moving parties filed the praecipe, and the wording of the court order gave appellant no clear indication that the briefing requirements of Rule 302(d) would be activated by the filing of the praecipe.

The Order is vacated and the case is remanded for the filing of briefs and a hearing.

POPOVICH, J., concurs in the result.


text:
    434 A.2d 1302
    COMMONWEALTH of Pennsylvania ex rel. Linda SACKS v. Robert D. SACKS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 9, 1981.
    Filed Sept. 25, 1981.
    Andrew F. Malone, Lansdale, for appellant.
    Lynne Z. Gold-Bikia, Philadelphia, for appellee.
    Before SPAETH, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM:

This is an appeal from an order awarding custody of appellant’s two sons to their mother, appellee. Having reviewed the decision of the lower court, we remand this case for further hearing at which the testimony of the sons is to be transcribed. The court shall then enter a new order, accompanying it with a comprehensive opinion. Any further appeal must be from such new order. Meanwhile, custody of the children is not to be disturbed.

SO ORDERED.


author: LIPEZ, Judge:

text:
    435 A.2d 181
    Roy W. TAYLOR, individually, and Roy W. Taylor and Joyce Taylor, as husband and wife, and Joyce Taylor, as the wife of Roy W. Taylor, individually, Appellants, v. Stanislaw TUKANOWICZ, M.D., Selim El-Attrache, M.D. and Henry Clay Frick Community Hospital, v. F. W. FEIGHTNER, M.D.
    Superior Court of Pennsylvania.
    Argued April 16, 1980.
    Filed April 3, 1981.
    Reargument Denied July 10, 1981.
    Petition for Allowance of Appeal Denied Jan. 11, 1982.

      John J. Dean, Pittsburgh, for appellants.
    John W. Jordan, IV, Pittsburgh, for Tukanowicz, appellee.
    George E. McGrann, Pittsburgh, for El-Attrache, appellee.
    John E. Kunz, Pittsburgh, for Henry Clay, appellee.
    Before SPAETH, WICKERSHAM and LIPEZ, JJ.
   LIPEZ, Judge:

This is an appeal from the entry of summary judgment in favor of appellees under Pa.R.C.P. No. 1035. The lower court’s grant of summary judgment in this malpractice action was premised upon the expiration of the two year personal injury statute of limitations prescribed by 12 P.S. § 34. We reverse.

In April 1972, appellant Taylor underwent back surgery (a laminectomy) performed by appellee doctors Tukanowicz and El-Attrache at Frick Hospital. This operation is the act from which the malpractice action arises. Taylor’s deposition testimony establishes that the following events occurred subsequent to the operation and more than two years prior to his filing of the present action: 1) Taylor noticed increased pain in his back; 2) Taylor noticed pain radiating through his right leg, an area which had not been subject to pain prior to the operation; 3) immediately after the operation a doctor informed Taylor that he should be able to return to work within a few months, but despite this advisement Taylor was unable to return to work and, in late 1972, he was declared totally disabled by the Social Security Administration; 4) Taylor ceased receiving treatment from Tukanowicz and El-Attrache approximately five months after the operation, and beginning in November 1972 he sought treatment from numerous other physicians; 5) in late 1973 or early 1974 other surgeons performed a second lami-nectomy on Taylor’s back. In his deposition, Taylor testified that despite these occurrences he did not become aware, nor was he advised by any of these physicians, that he had received improper medical care until January 1976, when he was so advised by his lawyer. Taylor filed this trespass action on September 14, 1976, a period of some 47; years after the operation.

In their new matter in response to Taylor’s complaint, appellees asserted that the two year personal injury statute of limitations barred the action. Taylor’s answer to new matter alleged, in general, that although he acted with due diligence he was unable to discover the true nature and extent of his injury until less than two years before he filed the lawsuit.

After the pleadings were closed appellees filed motions for summary judgment based upon the bar of the statute of limitations. These motions were granted by the lower court which held that, in light of the post operation occurrences, “Taylor knew or should have known of his injury by October 12, 1972, at the very latest, which was his last visit to Dr. El-Attrache.”

All parties apparently concede that the applicable statutory limitation period is subject to the “discovery” rule. This rule, a creation of case law, grounded on considerations of basic fairness, has been applied in determining the appropriate limitation period in malpractice actions since Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959). While the rule has been given various formulations, in essence it provides that where “the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitation period does not begin to run until the discovery of the injury is reasonably possible.” Schaffer v. Larzelere, 410 Pa. 402, 406, 189 A.2d 267, 270 (1963). See also, Ayers v. Morgan, supra; Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978). To determine when discovery of the injury becomes reasonably possible, a diligence standard is applied. “[I]t is the duty of one asserting a cause of action against another to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right to discovery is based and to institute the suit within the prescribed statutory period .. . Mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the statute.” Schaffer, supra, 410 Pa. 405, 189 A.2d 267. See also, Huber v. McElwee-Courbis Constr’n Co., 392 F.2d 1379 (E.D.Pa. 1974).

"While Taylor does not dispute the applicability of the two year statute of limitations and the discovery rule, he argues that a genuine issue of material fact exists as to when his discovery of his injury became reasonably possible. Because of the existence of this issue, he contends, summary judgment was improperly granted. We agree.

Summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. No. 1035(b); Toth v. City of Philadelphia, 213 Pa.Super. 282, 247 A.2d 629 (1968). In addition, we are mindful that in considering a motion for summary judgment the court must examine the record in the light most favorable to the non-moving party; that the court’s function is not to decide issues of fact but merely to determine whether any such issues exist; and that all doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party. Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968); Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971). We also note that “ordinarily most questions relating to the applicability of the defense of the statute of limitations are questions of fact to be determined by the jury.” 2 Standard Pennsylvania Practice 289. Specifically, the question of whether a plaintiff has exercised due diligence in discovering the incidence of his injury is usually a jury question. Irrera v. Southeastern Pennsylvania Transportation Authority, 231 Pa.Super. 508, 331 A.2d 705 (1974); Carney v. Barnett, 278 F.Supp. 572 (E.D.Pa.1967). “Whether the statute has run on a claim is usually a question of law for the judge, but where, as here, the issue involves a factual determination, i. e. what is a reasonable period, the determination is for the jury.” Smith v. Bell Telephone Company of Pennsylvania, 397 Pa. 134, 142, 153 A.2d 477, 479 (1959).

This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where the plaintiff fails to plead facts sufficient to toll the statute, Mangino v. Lieber, 442 Pa. 594, 227 A.2d 823 (1971), Thompson v. York Valley Motel, 87 York Leg.Rec. 99 (1973), or admits facts sufficient to admit the limitations defense (See: Ritmanich v. Jonnel Enterprises, Inc., 219 Pa.Super. 198, 280 A.2d 570 (1971); Goodrich-Amram 2d § 1035(b)(4), or fails in his response, by affidavits, or as otherwise provided, to set forth facts showing that there is a genuine issue for trial, Pa.R.C.P. No. 1035(d), or where the evidence relied upon by the plaintiff is inherently incredible (See Smith, supra, 397 Pa. at 138, 153 A.2d at 480). However, none of these factors appear to be operative in the present case. The pleadings properly raised the issue of the diligence of the discovery of the injury and Taylor has made no admissions decisive of the issue. Taylor’s deposition testimony, examined in the light most favorable to the nonmoving party, sets forth facts marginally sufficient to raise the discovery question, and the evaluation of the truth and credibility of such oral testimony is a jury function. Cooper v. Columbia Gas of Pennsylvania, Inc., 433 Pa. 179, 248 A.2d 852 (1969); Wilf v. Philadelphia Modeling and Charm School, Inc., 205 Pa.Super. 196, 208 A.2d 294 (1965).

In sum, if all doubts as to the existence of a material fact are resolved in Taylor’s favor, as they must be, there exists a genuine issue as to when his discovery of his injury was reasonably possible. Given the existence of a genuine issue of material fact, the lower court’s grant of summary judgment was incorrect.

The order of the lower court is reversed and the case remanded for further proceedings.

      . 12 P.S. § 34 is now substantially re-enacted at 42 Pa.C.S.A. § 5524(2) (1976).

      . See the excellent discussion of the historical dvelopment of the discovery rule in Anthony v. Koppers Company, 284 Pa.Super. 81, 425 A.2d 428 (1980).


author: BROSKY, Judge:

text:
    435 A.2d 184
    Kathleen MORRIS, Appellant, v. John F. MOSS.
    Superior Court of Pennsylvania.
    Argued Dec. 1, 1980.
    Filed May 15, 1981.
    Reargument Denied Oct. 15, 1981.

      Gerard J. Jackson, Philadelphia, for appellant.
    Edward J. Carney, Jr., Media, for appellee.
    Before SPAETH, BROSKY and HOFFMAN, JJ.
   BROSKY, Judge:

This case arises from an automobile accident in which the automobile driven by the appellee struck the appellant who was a pedestrian. A jury found the defendant not to have been negligent. Appellant argues that certain evidence was improperly admitted and that the charge to the jury failed to include points which appellant claims should have been explained to the jury. Finding error in the instructions given to the jury, we reverse the order of the lower court and remand for a new trial.

Appellant’s first allegation of error is the admission of testimony by a policeman who arrived at the scene of the accident after it occurred and who testified as to his estimate of the speed at which appellant was traveling. Appellant objects to the use of his testimony on the grounds that the witness was not properly qualified as an expert and that he testified on an ultimate issue in the case. Neither argument calls for the exclusion of the testimony.

At the outset of our discussion we note that:

Rulings on evidence are within the discretion of the trial judge and will not be reversed absent a manifest abuse of that discretion. Capan v. Divine Providence Hospital, 270 Pa.Super. 127, 410 A.2d 1282 (1980), Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975).

In establishing that Officer Boyer was an expert qualified to state an approximate rate of speed based on skid marks, the appellee’s counsel asked the witness what courses he had taken which would be of assistance in interpreting skid marks. The witness stated that he had taken college seminars in traffic safety and traffic accidents and had also attended State Police seminars on traffic safety. He also testified that at the time of the accident he had been an officer for eight years. The witness was asked to estimate the speed at which appellee had been traveling based on these experiences.

In Rosato v. Nationwide Insurance Company, 263 Pa.Super. 340, 397 A.2d 1238 (1979), this court said “However, an officer may, based upon skid measurements and his expertise, state the approximate speed of a car even though he was not present at the accident.” 263 Pa.Super. at 345, 397 A.2d at 1241. See: Rutovitsky v. Magliocco, 394 Pa. 387, 147 A.2d 153 (1959). We would add that, as with the admission of evidence, the question of the qualifications of an expert witness is one for the discretion of the trial court. Commonwealth v. Williams, 270 Pa.Super. 27, 410 A.2d 880 (1980). “If a witness has any reasonable pretension to specialized knowledge on the subject under investigation he or she is qualified as an expert.” Kravinsky v. Glover, 263 Pa.Super. 8, 396 A.2d 1349 (1979). The lower court did not abuse its discretion in this matter.

Appellant cites the cases of Brodie v. Philadelphia Transportation Company, 415 Pa. 296, 203 A.2d 657 (1964) and Algeo v. Pittsburgh Railways Company, 202 Pa.Super. 548, 198 A.2d 415 (1964) as supporting his argument. The cases are easily distinguished from the one before us.

In the present case, the officer testified, in relevant part, only to the speed at which he estimated the appellee to have been driving. In Brodie, the witness whose testimony was found improperly admitted had testified additionally that the car in question had been out of control and was traveling too fast for conditions. His testimony went beyond the estimate of speed, based on skid marks, found permissible in Rutovitsky and Rosato.

In Algeo, the witness testified that the accident could not have occurred in the manner in which the opposing party contended it had. This testimony also included statements beyond those permitted by Rutovitsky and Rosato. The exclusion of testimony in Brodie and Algeo does not justify its exclusion here.

Appellant also argues that the introduction of the hospital record was error in this case because the notation contained in the record that appellant was conscious while in the emergency room is one of opinion, not fact, and as such does not fall into the hearsay exception found in the Business Records Act. We agree.

Hospital records are admissible to show the fact of hospitalization, treatment prescribed and symptoms found. Commonwealth v. DiGiacomo, 463 Pa. 449, 345 A.2d 605 (1975), Platt v. John Hancock Mutual Life Insurance Company, 361 Pa. 652, 66 A.2d 266 (1949).

As was explained in Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979):

No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts, such as the event of hospitalization, treatment prescribed, symptoms, given, or the existence of some readily ascertained substance or chemical within the body. Id., 266 Pa.Super. at 592, 405 A.2d at 1264.

A determination that a person is conscious is not a fact free from doubt. As is explained in The Attorney’s Textbook of Medicine, vol. 3A, page 83-14 (1980), “in clinical medicine, a person is ‘conscious’ if he is fully aware of his surroundings, even though he may be misinterpreting or falsely interpreting these surroundings.” We believe that this determination is of a different character than the routine findings of fact permissible under the business records exception to the hearsay rule since it requires the application of scientific principles. The notation in question in this case is found in the section of the report entitled “Physician’s Findings.” The introduction of such evidence should be by testimony of the person who made the determination.

Despite the error of the lower court, we would not reverse on this issue alone. Appellant testified that she drifted in and out of consciousness while in the hospital. The hospital record stated only that she was conscious at the time of the examination. It provides no real refutation of appellant’s own position and its admission was therefore harmless error.

Appellant also claims that the charge to the jury was erroneous in three respects.

In analyzing appellant’s claim, we have been guided by the principle that a charge to the jury is to be read as a whole. Galizia v. McKim, 210 Pa.Super. 144, 149, 232 A.2d 213, 216 (1967).

Appellant first argues that the following charge should have been given.

A driver cannot carelessly inflict injuries on users of highways between crossings. His duty is governed entirely by the circumstances of whether he saw such persons in the way in time to avoid hitting them, or whether he should have anticipated their acts when they had committed themselves to a dangerous position.

Appellant complains that the charge given did not inform the jury that a driver can be required to anticipate the acts of pedestrians who have committed themselves to dangerous positions. The case from which appellant drew the language for the proposed charge is Purdy v. Hazletine, 321 Pa. 459, 184 A. 660 (1936). The Purdy court was quoting language from an earlier opinion in which the court also said:

... if at a designated place where there is anything to challenge his attention, and warn him that he should expect heedless acts, it becomes the duty to avoid, if possible, an accident .. . 321 Pa. at 461, 184 A. at 661.

The charge given in the present case complied with the description of a driver’s duty found in Purdy. In relevant part, the instruction was:

However, if a pedestrian before being hit has been on the highway for a long enough period of time so that a careful driver could see her and avoid the accident, and if the pedestrian is then hit, you may conclude that negligence has then been established on the part of the driver, whether or not that took place in this case will, like all of the other facts be for you to determine. The operator of a vehicle is under a duty to be attentive, to discover the presence of a pedestrian in the highway ahead of him. He has an affirmative duty to observe pedestrians in his range of vision and to take precautions not to injure them. His failure to see a pedestrian in the middle of the road just before striking him is evidence of negligence.

Appellant argues next that the judge should have charged the jury that “If a pedestrian commits himself or herself to crossing a street substantially ahead of an approaching automobile, the pedestrian has a right of way superior to that of the automobile.”

Appellant cites the case of Clarke v. Hughes, 108 Pa.Super. 586, 165 A. 532 (1933) as support for his proposition. That case is factually different than the present one, though, since the pedestrian in that case was crossing the street at an intersection. Pedestrians have the right of way at intersections, but not between them.

The controlling statute provides as follows:

“3542. Right of way of pedestrians in crosswalks.
(a) General Rule.—When traffic-control signals are not in place or not in operation, the driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.”
“3543. Pedestrians crossing at other than crosswalks. (a) General Rule.—Every pedestrian crossing a roadway at any point other than a crosswalk at an intersection or any unmarked crosswalk shall yield the right-of-way to all vehicles upon the roadway.”

Act of June 17,1976, P.L. 1621 No. 81 § 1, 75 Pa. CSA §§ 3542, 3543. Of course it is true, as appellant states, that a driver cannot carelessly inflict injuries on pedestrians, regardless of who has the right of way. The jury was so instructed, as is apparent from a reading of the aforementioned section of the charge.

The point proposed by appellant went further, however, saying, in effect, that a pedestrian acquires a right of way if he proceeds into the intersection at any place. We find no law to support this position and indeed, it is contrary to the statute.

Finally, we come to appellant’s allegation that the jury should have been instructed that a driver who is proceeding on a roadway at a point between intersections has a duty to sound his horn if, under the circumstances, he has a reasonable apprehension that a pedestrian may appear in his path. We agree with appellant that this instruction should have been given to the jury.

In McAvoy v. Kromer, 277 Pa. 196, 120 A. 762 (1923) our Supreme Court said that “[between crossings] .. . drivers are not required to sound their horns, unless they see danger ahead or have reasonable apprehension to believe a child or adult will appear in their path.” 277 Pa. at 199, 120 A. at 763. In McAvoy the court found that the driver did not have such a duty because the pedestrian whom he hit was not in the roadway long enough to be seen. Similarly in Justice v. Weymann, 306 Pa. 88, 158 A. 873 (1932), cited by appellee, the pedestrian was not within the view of the driver prior to the accident. The decisions in Justice and McAvoy provide no support for appellee’s argument.

In the present case, the driver testified that he saw the pedestrian a “couple hundred feet” before hitting her and that he reduced his speed upon seeing the appellant. The appellee therefore had the warning that was absent in the McAvoy and Justice cases and his reduction of speed indicates that he perceived the possibility of danger to the pedestrian. Appellant was standing in the roadway in full view of the appellee. Her position was such as to suggest danger. The jury could have found that appellee had a reasonable apprehension that a pedestrian would appear in his path. The jury should therefore have been instructed that if they found that appellee had such apprehension, he had a duty to sound his horn.

We reverse the order of the lower court and remand for a new trial at which the jury is to be charged as appellant requested in her proposed charge on sounding the horn. At the new trial, the hospital record should not be introduced to show the notation of no loss of consciousness.

SPAETH and HOFFMAN, JJ., concur in result.

      . Uniform Business Records as Evidence Act, Act of July 9, 1976, P.L. 586, No. 142, § 2; 42 Pa. CSA § 6108.


text:
    November 7, 1980.
    429 A.2d 734
    Commonwealth v. Crawford, Appellant.
    Submitted December 6, 1979.
    John W. Packel, Chief Appeals, Assistant Public Defender, for appellant;
    Eric B. Henson, Assistant District Attorney, for Commonwealth, appellee.

      Before BROSKY, WICKERSHAM and ROBERTS, JJ.

       Justice Samuel J. Roberts of the Supreme Court of Pennsylvania is sitting by designation.

   Judgment affirmed.

ROBERTS, J. concurred in the result.


text:
    429 A.2d 734
    Commonwealth v. Hamlett, Appellant.
    Submitted November 16, 1979.
    H. David Rothman, for appellant; Robert L. Eberhardt, Assistant District Attorney, for Commonwealth, appellee.
    Before PRICE, HESTER and CAVANAUGH, JJ.
   Order affirmed.

CAVANAUGH, J. filed a memorandum concurring opinion.


text:
    429 A.2d 734
    Commonwealth v. Hartmire, Appellant.
    Submitted March 6, 1980.
    Blake E. Martin, Public Defender, for appellant; David W. Rahauser, Assistant District Attorney, for Commonwealth, appellee.
    Before CERCONE, P. J., and WATKINS and MONTGOMERY, JJ.
   Judgment of sentence affirmed.