author: HOFFMAN, Judge:

text:
    477 A.2d 482
    CHERVENAK, KEANE & COMPANY, INC. (CKC ASSOCIATES) v. HOTEL RITTENHOUSE ASSOCIATES, INC., Appellant, Herbert S. Levin, Esq., Arbitrator.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed March 30, 1984.
    Reargument Denied June 5, 1984.
    Petition for Allowance of Appeal Denied Sept. 25, 1984.

      Michael H. Egnal, Philadelphia, for appellant.
    Alexander A. Disanti, Media, for Chervenak, appellee.
    Barnett Satinsky, Philadelphia, for Levin, appellee.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

Appellant challenges the lower court’s affirmance of an arbitration panel’s award in favor of appellee. We hold that the court, finding no violation of the arbitration procedure, correctly confirmed the award and entered judgment. Accordingly, we affirm the order entered below.

On June 12, 1979, appellant, Hotel Rittenhouse Associates (HRA), and appellee, Chervenak, Keane and Co. (CKC), entered into a contract whereby appellee was to provide advisory services in certain technical support areas incident to the construction and pre-opening of appellant’s hotel-condominium. Although the contract was for two years, appellant terminated appellee’s services four months into the performance period. Because the contract provided for common law arbitration in the event of any dispute, the matter was referred to an arbitration panel consisting of one member appointed by each of the two parties and a neutral member appointed by the lower court after the two initial appointees failed to agree on a third. Following a series of hearings before the panel, from December, 1980 to May, 1981, the majority of the panel determined that appel-lee was entitled to $100,020.00 damages incident to appellant’s breach and an additional $30,000.60 interest computed in accordance with the contract’s provisions. Appellee then petitioned the lower court to confirm the award and appellant petitioned for its vacatur. Following a hearing on the matter, the lower court confirmed the award and entered judgment in appellee’s favor. This appeal followed.

Appellant contends first that the lower court erred in refusing to accept as admissions averments included in appellant’s answer to appellee’s Petition to Confirm the Arbitration Award. We find no merit in this contention. Pa.R.Civ.P. 209 provides:

If, after the filing and service of the answer, the moving party does not within fifteen days:
(a) Proceed by rule or by agreement of counsel to take depositions on disputed issues of fact; or
(b) Order the cause for argument on petition and answer (in which event all averments of fact responsive to the petition and properly pleaded to the answer shall be deemed admitted for the purpose of the rule); the respondent may take a rule as of course on the moving party to show cause why he should not proceed as above ____

Appellant alleges that its averments numbered 18 through 35 must be accepted by the trial court as admitted by appellee and dispositive of the allegations contained therein. We find, however, that each of the averments in question was either unresponsive or improperly pleaded, and, as such, cannot be deemed admitted under Pa.R.Civ.P. 209(b). Appellant, after responding to paragraphs 1 through 17 in appellee’s petition, made additional averments in a new section, titled “Additional Answer”. None of the averments included in the “Additional Answer” responded to what was set out in appellee’s petition, but instead either challenged the arbitrators, their award or alleged gaps in the record, or constituted conclusions of law. Neither non-responsive or irrelevant averments, nor conclusions of law are deemed admitted under Pa.R.Civ.P. 209. See 1 Goodrich-Amram 2d 209:2; Wagner’s Appeal, 143 Pa.Superior Ct. 407, 412, 17 A.2d 662, 664 (1940) (“[AJnswer was unresponsive and the averment irrelevant. Hence the court below was not obliged to accept it as true unless overcome by sufficient evidence submitted in the form of depositions or otherwise.”). See also Walnut-Juniper Co. v. McKee, Berger and Mansueto, Inc., 236 Pa.Superior Ct. 1, 344 A.2d 549 (1975), citing Smith v. Dale, 405 Pa. 293, 296, 175 A.2d 78, 80 (1961) (If moving party fails to exercise right to take depositions, then “the averments of the answer so far as they are responsive to those of the petition, would have to be taken as true.”) (emphasis added). Accordingly, we find no merit in appellant’s first contention.

Appellant next alleges that the arbitrators’ award must be reversed because the arbitrators employed an incorrect measure of damages and because of bias on the part of the chairman of the arbitration panel. We find no basis for these contentions because they fail to raise the award to the level of irregularity required for reversal of a common law arbitration award. In an appeal from a common law arbitration determination, “the appellant must show by clear, precise and indubitable evidence that he was denied a hearing, or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable or unconscionable award____” Harwitz v. Selas Corp. of America, 406 Pa. 539, 542, 178 A.2d 617, 619 (1962). See Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978); Smaligo v. Fireman’s Fund Insurance Co., 432 Pa. 133, 247 A.2d 577 (1968); Sudders v. United National Insurance Co., 217 Pa.Superior Ct. 196, 269 A.2d 370 (1970), aff'd, 445 Pa. 599, 284 A.2d 500 (1971). “As to questions of law and fact, however [the arbitrators are] the final judge[s] and [the] award is not subject to disturbance of mistake of either.” Sudders v. United National Insurance Co., supra 217 Pa.Super. at 200, 269 A.2d at 372. “[A] contrary holding would mean that arbitration proceedings instead of being a quick and easy mode of obtaining justice, would be merely an unnecessary step in the course of litigation, causing delay and expense, but settling nothing finally.” Westinghouse Air Brake Co. Appeal, 166 Pa.Superior Ct. 91, 97, 70 A.2d 681, 684 (1950).

In an arbitration proceeding, an irregularity refers to the process employed in reaching the result of the arbitration, not to the result itself. Press v. Maryland Casualty Co., 227 Pa.Superior Ct. 537, 540, 324 A.2d 403, 404 (1974). In Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 116, 299 A.2d 585, 589 (1973), our Supreme Court noted that:

It is possible to hypothecate [sic] an arbitration award which imports such bad faith, ignorance of the law and indifference to the justice of the result as to cause us to give content to the phrase “other irregularity” since it is the most definitionally elastic of the grounds for vacatur.

In most cases where an irregularity is alleged, our appellate courts have denied relief. See, e.g., Runewicz v. Keystone Insurance Co., supra (appellant alleged arbitrator’s award contradicted insurance policy language; no irregularity even though award patently at odds with contract); Hain v. Keystone Insurance Co., 230 Pa.Superior Ct. 456, 459-60, 326 A.2d 526, 527 (1974) (“while the damages granted in this case may have been at variance with the language of [the insurance policy], we do not believe that the award meets the Fioravanti criteria for vacating an arbitration decision.”). Compare Paugh v. Nationwide Insurance Co., 278 Pa.Superior Ct. 108, 420 A.2d 452 (1980) (irregularity found when plaintiffs kept pertinent testimony from arbitrators, therefore precluding arbitrators from fashioning award limiting plaintiffs’ possible double recovery).

First, addressing appellant’s claim that the arbitrators’ award was irregular because of the measure of damages employed, we find no irregularity sufficient to mandate reversal. Our Supreme Court has approved the following measure of damages:

Where a contractor has partly performed an entire contract and is prevented from completing performance by the act of the other party or by law, we have said that he may recover in an action on the contract, and the measure of his damages is the contract price, less the reasonable cost of completing the work ....

Hottinger v. Hoffman-Henon Co., 303 Pa. 283, 286-87, 154 A. 598, 599 (1931). See also J.H. Harlow v. the Borough of Beaver Falls, 188 Pa. 263, 41 A. 533 (1898). In the alternative, however, the lower court and appellee lead us to W.T. Price, Inc. v. Robbins, 298 Pa. 568, 148 A. 849 (1930) wherein the Court stated:

True, defendant could stop the work during its progress, in which event the extent of his liability would be payment in full for work already done, and also such profits as plaintiff would have made on its completion.

The arbitrators evidently felt that this latter pronouncement was the appropriate measure of damages in the instant case. The arbitrators heard many hours of testimony and considered all of the parties’ evidence and arguments concerning the proper measure of damages to be employed, including what the arbitrators considered adequate proof of appellee’s expenditures. That the arbitrators chose to employ a measure more favorable to appellee may reflect on the existence of opposing interpretations of the law of damages but falls far short of “such an ignorance of the law and indifference to the justice of the result as would cause a court to vacate the award.” Hain v. Keystone Insurance Co., supra 230 Pa.Super. at 460, 326 A.2d at 528. Thus, we fail to find the award irregular because of the measure of damages.

Appellant also challenges the award on the ground that the chairman of the arbitration panel evidenced such partiality during the proceedings as to prejudice appellant and result in an unconscionable award. The record reveals that on several occasions appellant’s counsel caused proceedings scheduled in this case to be postponed, terminated or frustrated. Yet, appellant’s counsel now complains that the chairman of the panel exhibited anger and bias against him. We note that the chairman specifically mentioned in his Supplemental Report to the lower court that his short-lived anger was directed at appellant’s counsel and in no way prejudiced his view of appellant. Upon review of the record, we must agree with the lower court’s comments regarding appellant’s contention:

We are both shocked and saddened by the actions of counsel in making this unwarranted assertion of bias on the part of [the chairman]. While we recognize the duty of counsel to advocate fully the cause of his client, we cannot and will not countenance unjustified and unsupported statements even when made as part of a legal memorandum.
An examination of the record here shows several hearings over a period of time, the testimony of which resulted in a transcript of 1875 pages. All witnesses offered were permitted to testify and all counsel were given great leeway in questioning of the witnesses. [The chairman] extended every courtesy to counsel in the face of conduct by counsel for the Defendant which could have easily warranted much less courteous treatment. The matter referred to by [the chairman] during the discussion which led to counsel’s request for disqualification is but one example of this conduct. After all counsel, the arbitrators and the parties had agreed far in advance on a series of hearing dates, counsel scheduled conflicting engagements and then left a hearing prior to its conclusion. Despite this, [the chairman] required the witness, who had to come from New York, to return at a later date so that counsel could complete his cross-examination.
We could cite other examples of [the chairman’s] judicious and proper handling of this very difficult matter, but we do not believe it necessary. The remarks made by [the chairman] were justified and in no event provide any basis for recusal.

(Lower Court Op. at 15-16).

Accordingly, having found no merit in appellant’s contentions, we affirm the order of the court below confirming the arbitration panel’s award.

Affirmed.

      . Appellee would have us characterize a number of the additional averments as affirmative defenses thereby requiring that they be pled as new matter. Appellee further argues that if new matter is unaccompanied by a notice to plead, then the additional averments are not deemed admitted if not responded to. See Pa.R.Civ.P. 1026, 1030. We do not find it necessary to determine whether any of appellant’s additional averments are correctly labeled affirmative defenses because of our conclusion that these averments do not respond to appellee’s petition, and as such, are not deemed admitted under Pa.R.Civ.P. 209.

      . Appellant’s reliance on Reynolds Securities, Inc. v. Macquown, 459 F.Supp. 943, 945 (E.D.Pa.1978), is misplaced. Appellant alleges that Reynolds supports its claim that an arbitration award may be reversed if "the arbitrator understood and correctly stated the law but proceeded to ignore it.” Id. at 945. As the lower court noted, however, the Reynolds court, notwithstanding this comment, "held that in light of the limited scope of review to which it was bound, the Motion to Vacate the Award had to be denied. The Court, although it did not cite Pennsylvania law nevertheless did hold that 'A mere ambiguity or difference of interpretation is insufficient grounds for upsetting the decision rendered by the arbitrators.’ Reynolds, supra, 459 F.Supp., at 945.” (Lower Court op. at 11).


source: Caselaw Access Project

license: Public Domain

text:
    477 A.2d 487
    CHERVENAK, KEANE & COMPANY, INC. (C.K.C. ASSOCIATES) and Herbert S. Levin, Esquire, Intervening Petitioner, v. HOTEL RITTENHOUSE ASSOCIATES, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 15, 1983.
    Filed May 4, 1984.
    Reargument Denied July 10, 1984.
    Petition for Allowance of Appeal Denied Jan. 7, 1985.

      See also 477 A.2d 482.

      Michael H. Egnal, Philadelphia, for appellant.
    Barnett Satinsky, Philadelphia, for appellees.
    Before SPAETH, President Judge, and BROSKY and HOFFMAN, JJ.
   HOFFMAN, Judge:

In this appeal appellant challenges the' lower court’s refusal to open a default judgment and the court’s imposition of counsel fees and costs. Finding no merit in appellant’s contentions, we affirm the order of the court below.

Appellant, Hotel Rittenhouse Associates, and Chervenak, Keane and Co. (CKC), contracted in mid-1979, for CKC to advise appellant incident to the building of a hotel-condominium. After the contract was prematurely terminated, and pursuant to their earlier agreement, the parties submitted damage claims to an arbitration panel, consisting of one arbitrator appointed by each party, and appellee, a neutral arbitrator appointed by the lower court to act as panel chairman. The arbitrators’ award of $130,020.60 in favor of CKC was appealed to our court by appellant in a companion case, No. 146 Philadelphia, 1982. The instant case arose subsequent to appellant’s refusal to pay the full compensation (fee and costs) owed appellee. Upon appellant’s refusal, appellee filed a Petition to Compel Defendant to Pay the Fee of the Independent Arbitrator on October 15, 1981. On November 2, 1981, appellant’s preliminary objections were denied with leave to file an answer within fifteen days. Appellant thereupon filed an appeal of that denial which was quashed by this Court on December 28, 1981. Finally, on January 7, 1982, the lower court entered a default judgment against appellant because it had failed to file an answer to appellee’s Petition to Compel Payment within the allotted fifteen days. The lower court then ordered appellant to pay a $350 fee to appellee’s counsel for the proceedings surrounding the January 7 judgment. After appellant filed a motion to open and/or strike the judgment, the lower court denied the motion and requested that appellee provide a statement of supplemental fees and costs incurred by appellee. Appellee complied and the lower court granted additional fees in the amount of $4,039.99. Appellant’s exceptions to the fee determination were denied. This appeal followed.

Appellant contends first that the default judgment must be stricken because it was entered prematurely and sua sponte by the lower court. We find no merit in this contention. With regard to the time of the judgment’s entry, appellant avers that during the pendency of its appeal to the Superior Court, the lower court was stayed from acting in the case and that, consequently, the fifteen day period in which appellant was entitled to file an answer had not yet run when the lower court entered the default judgment on January 7. The pertinent chronological events are as follows:

Oct. 15, 1981 Appellee petitions to compel payment of arbitrator’s fee
Oct. 28, 1981 Appellant files preliminary objections
Nov. 2, 1981 Preliminary objections denied after hearing with leave to file answer within 15 days
Nov. 10, 1981 Appellant files appeal
Nov. 19, 1981 Appellee files motion to quash appeal
Nov. 24, 1981 Appellant answers motion to quash
Dec. 28, 1981 Motion to quash granted by the Superior Court
Jan. 4, 1982 Appellee’s Oct. 15, 1981 petition granted after appellant failed to file an answer
Jan. 7, 1982 Default judgment entered on Jan. 4 order

Pa.R.A.P. 1701 indicates that, except in enumerated circumstances, following the filing of an appeal, a trial court cannot proceed further until disposition of the appeal. Here, however, we agree with the lower court that it took no action during the pendency and disposition of appellant’s appeal and appellee’s motion to quash. Appellant had been granted fifteen days from November 2, 1981, within which to file an answer. Eight days elapsed prior to appellant’s filing the appeal with this court. After appellee’s motion to quash the appeal was granted on December 28, ten days elapsed before the lower court entered the default judgment against appellant on January 7, 1982. Accordingly, we find that, excluding the period of time for disposition of the appeal, 18 days were available for appellant to file an answer to appellee’s petition. Because appellant did not file an answer, the lower court correctly entered judgment in favor of appellee.

Appellant next maintains that the lower court abused its discretion in denying appellant’s petition to open and/or strike the judgment. Again, we find no basis for this claim. A petition to open a default judgment is addressed to the equitable powers of the lower court, whose decision will not be disturbed absent an abuse of discretion. Balk v. Ford Motor Co., 446 Pa. 137, 285 A.2d 128 (1971); Carducci v. Albright Galleries, Inc., 244 Pa.Superior Ct. 48, 366 A.2d 577 (1976). A default judgment may be opened when three factors coalesce:

(1) the default may be reasonably excused;
(2) the petition to open has been timely filed; and
(3) a meritorious defense has been averred.

Queen City Electrical Supply v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980); Balk v. Ford Motor Co., supra. The above-mentioned factors must be considered in light of equitable considerations. Toplovich v. Spitman, 239 Pa.Superior Ct. 327, 361 A.2d 425 (1976). We need not address the first two requirements, finding, upon review, that they have been satisfied. We disagree, however, with appellant’s assertion of a meritorious defense. Appellant claims that if the judgment were opened, its defenses, i.e. that appellee as panel chairman displayed bias and prejudice resulting in an unconscionable award and that the panel majority rendered an irregular award because of its measure of damages, would prove meritorious. As we stated in the companion case to the instant appeal, wherein appellant sought to overturn the panel’s award, “That the arbitrators chose to employ a measure [of damages] more favorable to appellee may reflect on the existence of opposing interpretations of the law of damages but falls far short of ‘such ignorance of the law and indifference to the justice of the result as would cause a court to vacate the award.’ Hain v. Keystone Insurance Co., 230 Pa.Superior Ct. [456] at 460, 326 A.2d [526] at 528.” Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, 328 Pa.Superior Ct. 357, 477 A.2d 482 (1984). Additionally, in the companion case, we agreed with the lower court that appellee did not exhibit such alleged prejudice and bias sufficient to cause reversal of the award. Accordingly, having found no merit in appellant’s two direct challenges to the award, we find that neither challenge would present a meritorious defense at trial. Thus, the lower court correctly denied appellant’s petition to open and/or strike the judgment.

Appellant contends finally that the lower court erred in awarding appellee counsel fees and costs for proceedings arising from and including appellee’s Petition to Compel Payment of Fees and Costs. We find that the lower court properly awarded counsel fees. 42 Pa.C.S.A. § 2503(7) provides for the imposition of reasonable counsel fees “as a sanction against [a] participant for dilatory, obdurate or vexatious conduct during the pendency of a matter.” Vexatious conduct was defined in Santoro v. City of Philadelphia, 59 Pa. Commonwealth Ct. 114, 121, 429 A.2d 113, 117 (1981), as conduct “instituted without sufficient grounds and serving only to cause annoyance.” (quoting The Webster New Encyclopedic International Dictionary, 1975). See also In re Estate of Roos, 305 Pa.Superior Ct. 86, 451 A.2d 255 (1982). In the instant case, appellant had agreed to share equally with CKC the costs and fees incident to appellee’s chairing of the arbitration panel. According to the record, appellant paid part of the amount it owed, but refused to remit the remainder, thereby forcing appellee to petition to compel payment. From October 15, 1981 until July, 1982, when appellant’s exceptions to the default judgment and additional fee award were denied, appellant continually refused to pay the previously agreed upon fees and instead, employed various procedural tactics, to avoid payment, i.e. interlocutory appeal, refusal to answer appellee’s petition, petition to open default judgment, challenge to counsel fee award. In all of these proceedings, appellant relied upon the same claim: (1) that the arbitration panel employed an erroneous measure of damages and (2) appellee evidenced such bias and prejudice as to have rendered an unconscionable award. Evidently based on this procedural history, the lower court awarded counsel fees and costs to appellee who needed to retain counsel for all of these proceedings instituted by appellant. Because the lower court had on many occasions, informed appellant that its contentions were without merit, and had found appellee’s behavior to be commendable, unbiased and fair, we cannot help but conclude that appellant’s continued attempts to challenge the award and the imposition of costs and fees were “instituted without sufficient grounds and serv[ed] only to cause annoyance.” Santoro v. City of Philadelphia, supra 59 Pa. Commonwealth Ct. at 121, 429 A.2d at 117. Accordingly, although in our discretion we may have awarded a different amount, we find that the lower court did not abuse its discretion in awarding counsel fees and costs for all of the proceedings incident to appellant’s refusal to pay appellee’s fee.

Finding no merit in appellant’s several contentions, we affirm the order entered below.

Affirmed.

      . Appellant and CKC had agreed to split the cost of appellee’s fee of $150 per hour.

      . The motion to quash was granted December 28, 1981 and the order allegedly mailed to appellant on December 30. Even if we were to exclude those two days from our calculations, fifteen days would still have elapsed. See Pa.R.A.P. 108(a).

      . Because of our conclusion that appellee did not timely file an answer and that the lower court did not act during the pendency of the appeal, we decline to address the parties' competing contentions concerning appellant’s right to appeal from the court's denial of its preliminary objections.
      In its Petition to Strike and/or Open Judgment, appellant claimed only that the lower court entered judgment without waiting for the 15-day leave period to elapse. Appellant’s additional assertion that the lower court entered that judgment sua sponte is therefore waived, not having been addressed in that petition. (R. at 79a-83a). See Pa.R. A.P. 302(a).

      . Having found that the lower court acted within its discretion in awarding counsel fees and costs, we must conclude that the court considered its earlier award of $350 when it determined that appellee was entitled to an additional $4039.99.


author: SPAETH, President Judge:

text:
    477 A.2d 491
    Karen CULBRETH, Marie Goff, Elbert Walker, Jr., Mildred Walker and Beatrice Tyner on Behalf of Themselves and All Others Similarly Situated v. LAWRENCE J. MILLER, INC., Ira L. Straff, Michael S. Straff, Paul Straff and Seth Straff d/b/a Insurance Adjustment Bureau on Behalf of Themselves and All Others Similarly Situated. Appeal of Karen CULBRETH and Marie Goff on Behalf of Themselves and All Others Similarly Situated.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1983.
    Filed May 11, 1984.

      David A. Scholl, Bethlehem, for appellants.
    Alan Kear, Philadelphia, for appellees.
    Before SPAETH, President Judge, and MONTEMURO and POPOVICH, JJ.
   SPAETH, President Judge:

This is an appeal from an order dismissing appellants’ amended complaint for failure to state a claim upon which relief may be granted. The amended complaint alleges, in Count I, that appellees, as licensed public adjusters, violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq., and, in Count II, the Federal Trade Commission Act, 15 U.S.C. § 41 et seq. We hold that a claim has been stated for violation of the Consumer Protection Law but not for violation of the Federal Trade Commission Act. We therefore reverse in part and affirm in part.

The action is a class action seeking damages and injunc-tive relief. Appellants’ amended complaint alleges that after suffering property losses due to fire, they entered into insurance adjustment contracts with appellees as licensed public adjusters, but that appellees failed to inform them of their right to cancel the contracts, and failed to honor valid cancellations of the contracts. In Count I of the complaint appellants allege that appellees thereby violated section 7 of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-7, and in Count II, the Federal Trade Commission Act, 15 U.S.C. § 41 et seq., more specifically, the Federal Trade Commission Rule regarding door-to-door sales, 16 C.F.R. § 429. Appellees filed preliminary objections that appellants had failed to state a claim upon which relief could be granted because, they contended, neither the Consumer Protection Law nor the Federal Trade Commission Rule applies to public adjusters or public adjuster contracts. The trial court sustained the preliminary objections and dismissed the amended complaint. (The court denied other preliminary objections, but that ruling is not at issue.)

-1-

Appellants argue that the trial court erred in holding that appellees, as public adjusters, are not subject to the provisions of section 7 of the Consumer Protection Law, 73 P.S. § 201-7. We agree.

Section 7 of the Consumer Protection Law, 73 P.S. § 201-7, provides a right of recission in favor of a purchaser of goods or services having a sales price of $25 or more when the sale or contract of sale is made in connection with a call at the buyer’s residence. 73 P.S. § 201-7(a). Under section 7, when the buyer signs the contract or makes the purchase, the seller must inform the buyer of the right to cancel the transaction at any time before midnight of the third business day after the transaction, id. at § 7(d), and provide the buyer with both a contract or receipt containing notice of the right to cancel and a completed “Notice of Cancellation” form, id. at § 7(b), (c). If the language principally used in the oral sales presentation was other than English, both the contract and the cancellation form must be in that language, as well as in English. Id. at § 7(b). The three-day cancellation period does not begin to run until the buyer is informed of the right to cancel and is provided with the cancellation form. Id. at § 7(e). Within ten business days after receipt of the buyer’s Notice of Cancellation, the seller must refund all payments made under the contract or sale. Id. at § 7(g). The buyer may waive the right to cancel, but only if the goods or services are needed to meet “a bona fide immediate personal emergency” of the buyer and the buyer makes a handwritten, signed personal statement describing the situation and expressly waiving the right to cancel. Id. at § 7(j).

Section 3 of the Consumer Protection Law, 73 P.S. § 201-3, provides in relevant part: “Unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce ... are hereby declared unlawful.” Section 2(3) of' the Consumer Protection Law defines “trade” and “commerce” as “the advertising, offering for sale, sale or distribution of any services and any property____” (emphasis added). This already broad language is to be construed broadly so as to effectuate as fully as possible the Legislature’s purpose of preventing unfair or deceptive practices. Thus in Commonwealth v. Monumental Properties, 459 Pa. 450, 329 A.2d 812 (1974), the Supreme Court held that the leasing of residences falls within the Consumer Protection Law. The Court rejected the argument that leasing was not included within the Law’s definition of “trade” and “commerce” because the definition explicitly refers only to “sale or distribution.” The Court recognized the fact that the Legislature did not use the word “lease,” but looked to the breadth of the Legislature’s purpose of preventing unfair or deceptive practices.

The business of a public adjuster is to sell to an insured the service of representing the insured in settling with the insured’s carrier the insured’s claim for loss. See 40 P.S. § 301. Clearly, this business is within the Consumer Protection Law’s definition of “trade” and “commerce.”

The Legislature expressly excluded certain businesses from regulation under the Consumer Protection Law. Thus the Consumer Protection Law provides an express exclusion from its provisions for “any owner, agent or employee of any radio or television station, or ... any owner, publisher, printer, agent or employee of a newspaper or other publication, periodical or circular, who, in good faith and without knowledge of the falsity or deceptive character thereof, publishes, causes to be published or takes part in the publication of such advertisement.” 73 P.S. § 201-3. However, the Consumer Protection Law provides no express exclusion from its provisions for public adjusters or public adjuster contracts. Accordingly, there is no exclusion. Commonwealth v. Monumental Properties, Inc., supra, 459 Pa. at 457 n. 5, 329 A.2d at 815 n. 5 (“There is no indication of an intent to exclude a class or classes of transactions from the ambit of the Consumer Protection Law. When the Legislature deemed it necessary to make an exception from the Law’s scope, it did so in clear language.”).

Appellees nevertheless insist that they are excluded from regulation under the Consumer Protection Law because, they say, under the Unfair Insurance Practices Act, 40 P.S. § 1171.1, et seq., and the Public Adjuster Law, 40 P.S. § 301 et seq., the Legislature gave the Insurance Department the exclusive authority to regulate them and their contracts with insureds. This argument is without merit.

The Unfair Insurance Practices Act provides that no “person” shall engage in any trade practice defined or determined to be an unfair method of competition or an unfair or deceptive act in the “business of insurance.” 40 P.S. § 1171.4. The purpose of the Act is to “regulate trade practices in the business of insurance in accordance with the intent of congress as expressed in the [McCarran-Ferguson Act, 15 U.S.C. § 1011 et seq.).” 40 P.S. § 1171.2 (emphasis added).

In construing the McCarran-Ferguson Act in Union Labor Life Insurance Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 3008, 73 L.Ed.2d 647 (1982), the United States Supreme Court identified three factors relevant to determining whether a particular practice is part of the “business of insurance”: “first, whether the practice has the effect of transferring or spreading a policyholder’s risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance industry.” After considering these three factors, the Court held that an insurance company’s use of a peer review committee to evaluate policyholders’ claims for chiropractic treatments was not a part of the “business of insurance.” See also Group Life & Health Insurance Co. v. Royal Drug Co., 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979) (provider agreements negotiated to carry out policy obligations not part of “business of insurance”); Securities & Exchange Comm’n v. National Securities, Inc., 393 U.S. 453, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969) (merger of two insurance companies not part of “business of insurance”). With respect to the first factor the Court observed that use of a peer review committee plays no part in spreading or underwriting a policyholder’s risk. The Court noted that risk is transferred by means of the insurance policy and that the transfer is complete when the contract is entered into. With respect to the second factor the Court viewed the use of a peer review committee as a separate arrangement between the insurer and third parties, and a matter of indifference to the policyholder. With respect to the third factor the Court observed that use of a peer review committee involves third parties wholly outside the insurance industry. The dissent viewed the peer review committee as essentially the insurance company’s claims adjuster. It further viewed claims adjustment as an integral part of the relationship between the insurer and the insured and therefore a part of the “business of insurance.” The majority rejected this view, stating that the peer review committee was not the claims adjuster because the committee’s evaluation was nonbinding. The Court therefore viewed the use of the peer review committee as ancillary to the claims adjustment process.

A consideration of public adjuster contracts in light of the three factors identified in Pireno leads to the conclusion that public adjuster contracts are not a part of the “business of insurance.” Just as in Pireno, it is clear that public adjuster contracts do not play a part in transferring or spreading a policyholder’s risk. Also, a public adjuster contract is not an integral part of the policy relationship between the insurer and the insured. Just as in Pireno, the public adjuster contract involves an arrangement between one party to the insurance policy, in this case the insured, and a third party. And just as in Pireno, the arrangement is a matter of indifference to the insurance company. Whether an insured is represented, and if he is, the particulars of the agreement, are of no concern to the insurance company. The agreement that an insured has with a third party who represents him, whether, as in some cases, it be a public adjuster, or, as in other cases, an attorney, is not a part of the claims adjustment process itself, which involves the relationship and interaction of the insured or his representative with the insurer or its representative. With respect to the third factor, unlike a peer review committee, a public adjuster is not a party wholly outside the insurance industry. The very service offered by a public adjuster is the representation of an insured. Nevertheless, no one factor is conclusive, and consideration of all three factors leads to the conclusion that a public adjuster contract is not a part of the “business of insurance.” Cf. Securities & Exchange Comm’n v. National Securities, Inc., supra (merger of two insurance companies not part of “business of insurance” even though both companies are entities within the insurance industry).

This conclusion is supported by the Unfair Insurance Practices Act’s definition of “person” as “any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyds insurer, fraternal benefit society, beneficial association and any other legal entity engaged in the business of insurance, including agents, brokers and adjusters ____” 40 P.S. § 1171.3 (emphasis added). An “adjuster” is commonly understood to be an agent of the insurance company, i.e., the person who represents the company in settling the loss with the insured, see Webster’s Seventh New Collegiate Dictionary (1965) (adjust: “to determine the amount to be paid under an insurance policy in settlement of (a loss)”). We are inclined to adopt this understanding of “adjuster,” for common words are to be construed according to their common usage. 1 Pa.C.S. § 1903(a). As thus understood, “adjuster” excludes the public adjuster, who represents not the company but the insured. Further, it would appear that the Legislature intended this exclusion, for it knew, and knew how to express, the difference between a public adjuster and an adjuster employed by an insurance company; the Public Adjuster Law expressly makes the distinction. See 40 P.S. § 301 (“The term ‘public adjuster,’ as used in this act, shall include every person ... holding himself or itself out to the public, as an adjuster of claims for losses or damages arising out of policies of insurance . .\ and receiving any compensation or reward for the giving of advice or assistance to the assured in the adjustment of claims for such losses____ The term does not include an agent or employee of an insurance company, association, or exchange, through whom a policy of insurance was written, in adjusting loss or damages under such policy____”).

Even if we were to conclude that a public adjuster contract is a part of the “business of insurance”, and that a public adjuster is encompassed within the term “adjuster” under the Unfair Insurance Practices Act, still, the Act does not expressly provide nor does it evidence an intent that the regulation of public adjusters thereunder be exclusive. Indeed, the very existence of the Public Adjuster Law, which expressly regulated to some extent public adjusters and public adjuster contracts, defeats the argument that any regulation of public adjusters or public adjuster contracts under the Unfair Insurance Practices Act was intended to be exclusive. Further, the recent enactment of a new law setting up a more comprehensive scheme for the regulation of public adjusters and public adjuster contracts, see supra note 2, evidences the Legislature’s view that at least until that time there did not exist any statute providing such comprehensive regulation that regulation under the Consumer Protection Law would be precluded.

The Public Adjuster Law, 40 P.S. § 301 et seq., clearly did regulate public adjusters and public adjuster contracts, but the regulation was limited, and nothing in the Law manifested the intent that the regulation should be exclusive.

The Public Adjuster Law provided that no person could act as a public adjuster within the Commonwealth unless licensed by the Insurance Commissioner. 40 P.S. § 302. The Commissioner was required to issue a license to any applicant whom he deemed “trustworthy and competent,” but the Commissioner could not issue a license to anyone with an interest in a salvage business. Id. at § 303. Each public adjuster was required to use a form of contract approved by the Commissioner. Id. Each public adjuster was required to keep a record of each transaction open to inspection, at all times, without notice, by the Commissioner, Id. Each public adjuster was required to execute and deliver to the Commissioner a $5,000 bond. Id. at § 304. The bond was conditioned on the public adjuster’s compliance with the requirements of the Public Adjuster Law and the public adjuster not embezzling, fraudulently converting to his own use, or, with the intent to use, disposing of any money or property received by him as a public adjuster contrary to the instructions or without the consent of the insured. Id. Any person who entered into a contract with a public adjuster and suffered loss due to the public adjuster’s failure to comply with the Public Adjuster Law was permitted to intervene in any action brought by the Commonwealth and have his claim determined, subject to the priority of the claim of the Commonwealth. Id. The Insurance Commissioner was required to revoke the license of a public adjuster who violated any provision of the Act, made a material misrepresentation in the application for a license, committed fraudulent practices, or demonstrated his incompetency or untrustworthiness. Id. at § 306. The Commissioner in his discretion could also impose fines for violations of the Public Adjuster Law. Id. Finally, violations of the Law constituted misdemeanors punishable by fine. Id. at § 308.

The Public Adjuster Law contained no provision either stating or implying that the regulation under the Law of public adjusters or public adjuster contracts should be exclusive. Cf. Koeune v. State Bank of Schuylkill Haven, 134 Pa.Super. 108, 4 A.2d 234 (1939) (Public Adjuster Law was passed as a police measure to regulate “in some degree” the business of an insurance adjuster as a public calling; it did not prohibit an oral modification of a written public adjuster contract that was on a form approved by the Insurance Commissioner). Rather, it is apparent that the Public Adjuster Law was a licensing statute; it did not purport to set up a comprehensive scheme of regulation of public adjusters or public adjuster contracts, but instead, its remedial and enforcement provisions were limited to providing only for the revocation of license, the imposition of fines, and recovery on the bond. In contrast, the Consumer Protection Law does set up a comprehensive scheme of regulation, encompassing all unfair and deceptive trade practices, and a comprehensive remedial and enforcement scheme, including injunctive relief, the imposition of fines, private recovery, assurances of voluntary compliance, and the forfeiture of the right to do business. See infra pp.

The fallacy of appellees’ argument is to suppose an irreconcilable conflict or inconsistency between the Pub-lie Adjuster Law and the Consumer Protection Law. See Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975) (in absence of manifestly contrary intention of Legislature, two apparently conflicting statutes must be construed so that both are allowed to operate). Under the Public Adjuster Law the Insurance Commissioner was given the authority to approve public adjuster contracts and to license public adjusters. Although a public adjuster was prohibited under the Public Adjuster Law from using a form of contract not approved by the Commissioner, the Law contained no provision regarding the content of the public adjuster contract. There is no inconsistency between the Public Adjuster Law providing for the approval of contracts by the Insurance Commissioner and the Consumer Protection Law providing in part what those contracts must contain. The authority to approve a contract does not imply the exclusive authority to determine the contents of the contract. Similarly, although the Insurance Commissioner was given the authority under the Public Adjuster Law to revoke a public adjuster’s license or impose fines, or both, if the public adjuster demonstrated his incompetency or untrustworthiness or committed fraudulent practices, the Law contained no provision defining what constitutes incompetency, untrustworthiness or fraudulent practices. Again, there is no inconsistency between the Public Adjuster Law giving the Insurance Commissioner authority to impose penalties for certain acts and the Consumer Protection Law providing explicitly what some of those acts are. The power to license, revoke a license, or impose a fine does not imply exclusive authority to determine the standards governing the exercise of the power.

Appellees argue that public adjuster contracts necessarily require prompt action to minimize the loss suffered by the insured, and that to allow the three-day cancellation period provided in the Consumer Protection Law would be in conflict with protection of the insured. But the Consumer Protection Law expressly recognizes and provides for the waiver of the buyer’s rights under section 7 in emergency situations. If, therefore, prompt action is in fact required to minimize the loss suffered by the insured, the public adjuster may secure a valid waiver of the insured’s right to cancel the contract.

The Commonwealth Court has twice declined to use another statute as the basis of finding the Consumer Protection Law inapplicable. In Safeguard Investment Corp. v. Commonwealth, 44 Pa.Commw. 417, 404 A.2d 720 (1979), the court rejected the appellants’ argument that the Consumer Protection Law is inapplicable to activities alleged to be unlawful under either the usury statute of 1858 or the usury statute of 1974. The court noted that the 1858 statute was not a comprehensive statute, but simply fixed maximum interest rates and provided a limited right of recovery, while the 1974 statute expressly provided that it was not meant to affect remedies provided in any other act. In Pennsylvania Bankers Association v. Commonwealth, Bureau of Consumer Protection, 58 Pa.Commw. 170, 427 A.2d 730 (1981), the court rejected the argument that the Banking Department has exclusive authority to regulate the state banking industry and that therefore the debt collection regulations promulgated under the Consumer Protection Law may not be applied to state chartered banks. The court found no reason why state banks should be exempt from the Consumer Protection Law regulations, although, given the express provision in the Banking Code that “[e]xcept where otherwise specifically provided, the [Department of Banking] shall enforce and administer all laws of this Commonwealth which relate to any institution ...,” the court left open for full hearing the issue whether the Banking Department is charged with plenary administration and enforcement of the debt collection regulations.

Similarly, we decline to use the Public Adjuster Law as the basis of finding the Consumer Protection Law inapplicable to public adjusters and public adjuster contracts. Rather, we hold that public adjusters and public adjuster contracts were subject to regulation under both the Public Adjuster Law and the Consumer Protection Law. This conclusion is compelled by a comparison of the two statutes, which, as we have discussed, discloses: that the Public Adjuster Law contained no provision that its regulation of public adjusters or public adjuster contracts should be exclusive; that the Consumer Protection Law clearly encompasses public adjusters and public adjuster contracts; and that the provisions of the two statutes were not irreconcilable.

Although the trial court therefore erred in holding that public adjusters and public adjuster contracts were not subject to the provisions of the Consumer Protection Law, we may nevertheless uphold its order dismissing the complaint for failure to state a claim upon which relief may be granted if the order may be affirmed on any basis. Commonwealth v. Cunningham, 471 Pa. 577, 370 A.2d 1172 (1977); Commonwealth v. Hinton, 269 Pa.Super. 43, 409 A.2d 54 (1979); Commonwealth v. Fierst, 257 Pa.Super. 440, 390 A.2d 1318 (1978). Appellees argued alternatively to the trial court that appellants failed to state a claim because the Consumer Protection Law does not provide a private cause of action for a violation of section 7. This argument, however, is also without merit.

Section 2(4) of the Consumer Protection Law defines “unfair methods of competition” and “unfair or deceptive acts or practices.” Sixteen different acts or practices are enumerated, and then a seventeenth, which is defined as: “Engaging in any other fraudulent conduct which creates a likelihood of confusion or misunderstanding.” Section 2(4) (xvii). Section 3 of the Consumer Protection Law provides that the practices defined in section 2(4) and in the regulations promulgated under section 3.1 are unlawful. Section 9.2 of the Consumer Protection Law creates a private cause of action for any purchaser of consumer goods or services who suffers an ascertainable loss as a result of any practice declared unlawful by section 3. Appellants alleged in Count I of their amended complaint that they had suffered a loss as a result of appellees having engaged in a practice declared unlawful by section 7 of the Consumer Protection Law. That was the same as alleging that appellees had engaged in a practice declared unlawful by section 3, because, contrary to appellees’ argument otherwise, conduct in violation of section 7 is within section 2(4)(xvii), and therefore within section 3, as “fraudulent conduct which creates a likelihood of confusion or misunderstanding.” Section 2(4)(xvii) “was designed to cover generally all unfair and deceptive acts or practices in the conduct of trade or commerce.” Commonwealth v. Monumental Properties, Inc., supra, 459 Pa. at 478, 329 A.2d at 826 (emphasis added).

In addition, we note that the public enforcement provisions of the Consumer Protection Law primarily refer to practices declared unlawful by section 3. See 73 P.S. § 201-4 (injunction by the Attorney General or a district attorney for practices declared unlawful by section 3); 73 P.S. § 201-4.1 (order for payment of costs and restitution in connection with permanent injunction under section 4); 73 P.S. § 201-8 (civil penalties for violation of injunction issued under section 4 and for willful use of practices declared unlawful by section 3); 73 P.S. § 201-9 (forfeiture of right to do business for violation of injunction issued under section 4). If, as urged by appellees, section 9.2 were interpreted as not extending to violations of section 7, none of these remedies would be available for a violation of section 7. The only remedies that would be available would be those provided by section 5, which allows the Attorney General to accept an assurance of voluntary compliance, and section 8, which provides for the imposition of civil penalties for the violation of the terms of an assurance of voluntary compliance. We are satisfied that the Legislature did not intend to provide for the enforcement of the provisions of section 7 only through the acceptance of assurances of voluntary compliance.

Accordingly, in Count I of their amended complaint appellants have stated a claim upon which relief may be granted. We shall therefore reverse the order of the trial court insofar as it dismissed Count I, and remand for further proceedings.

-2-

Appellants argue that the trial court also erred in dismissing Count II of their amended complaint for failure to state a claim upon which relief may be granted. This argument may be summarily disposed of, although on reasoning different from the trial court’s. See Commonwealth v. Cunningham, supra (order of trial court may be affirmed if supportable on any legal basis).

Count II of the amended complaint alleged violations of the Federal Trade Commission Rule regarding door-to-door sales, 16 C.F.R. § 429, promulgated under the Federal Trade Commission Act, 15 U.S.C. § 41 et seq. It is well-established, however, that there is no private cause of action for violations of the Federal Trade Commission Act, Alfred Dunhill, Ltd. v. Interstate Cigar Co., Inc., 499 F.2d 232 (2d Cir.1974); Holloway v. Bristol-Meyers Corp., 485 F.2d 986 (D.C.Cir.1973); Carlson v. Coca-Cola Co., 483 F.2d 279 (9th Cir.1973). We shall therefore affirm the order of the trial court insofar as it dismissed Count II of appellants’ complaint.

The order of the trial court is reversed insofar as it dismissed Count I of the amended complaint, and the case is remanded; the order is affirmed insofar as it dismissed Count II of the amended complaint. Jurisdiction is relinquished.

      . When appellants' complaint was filed, the Insurance Department had issued no regulations pertaining to public adjusters. Later, however, the Department did promulgate regulations, 31 Pa.Code § 115.1 et seq., effective August 15, 1980. While these regulations substantially track section 7 of the Consumer Protection Law, they differ in several significant respects. The provisions of section 7 will be discussed in a moment. However, the regulations apply to all public adjuster contracts, not just those made in connection with a call on the buyer at his residence; do not require that the notice of the right to cancel and the notice of cancellation form be written in any language other than English; do not provide for the waiver of a buyer’s right to cancel; but do provide that the buyer remains "liable for reasonable and necessary emergency out-of-pocket expenses or services which were paid for or incurred by the public adjuster during the three-day period to protect the interests of the insured,” 31 Pa.Code § 115.3(f).
      The trial court held that there was an irreconcilable conflict between these regulations and the provisions of section 7 of the Consumer Protection Law. Then, in reliance on the rule of construction that the specific prevails over the general, 1 Pa.C.S. § 1933, the court held that the regulations are controlling and that appellants therefore do not have a cause of action under the Consumer Protection Law. On appeal, the parties have presented extensive arguments on the issue of whether there is a conflict between the regulations and the statute, and if there is, which should prevail.
      The trial court’s analysis and the parties’ arguments in this respect have in large part missed the relevant issue. If public adjusters and public adjuster contracts are excluded from regulation under the Consumer Protection Law, then the provisions of the Consumer Protection Law are inapplicable and the regulations are controlling, but if public adjusters and public adjuster contracts are not so excluded, then the provisions of the Consumer Protection Law are applicable and the Insurance Department cannot override those provisions by promulgating regulations. See Commonwealth v. Di Meglio, 385 Pa. 119, 124, 122 A.2d 77, 79 (1956) (“The power of an administrative agency to prescribe rules and regulations under a statute is not the power to make law, but only the power to adopt regulations to carry into effect the will of the Legislature as expressed by the statute.”); Wilbert v. Harleysville Mutual Insurance Co., 254 Pa.Super. 217, 385 A.2d 987 (1978) (administrative agency may not promulgate regulations contrary to legislative intent expressed in statutory provision to which regulation relates); Robeson v. Philadelphia Tax Review Board, 13 Pa.Commw. 513, 319 A.2d 201 (1974) (fundamental proposition of law that rule or regulation of an administrative agency may not be inconsistent with or contrary to provisions of a statute). In either event, the initial inquiry is whether public adjusters and public adjuster contracts are excluded from regulation under the Consumer Protection Law, and this can be determined only by an analysis of the relevant statutes and a determination of the Legislature’s intent. If the Legislature did not intend that the Insurance Department should have exclusive authority to regulate public adjusters, and did intend that public adjusters should be subject to the provisions of the Consumer Protection Law, then the Insurance Department does not have the power to promulgate regulations in conflict with the Consumer Protection Law.
      Therefore, in the ensuing discussion we shall consider whether public adjusters and public adjuster contracts are excluded from regulation under the Consumer Protection Law, and whether the Legislature did intend that the Insurance Department should have exclusive authority to regulate them.

      . The Public Adjuster Law was recently repealed and replaced by the Act of December 20, 1983 (No. 72), effective immediately, entitled, “An act providing for the licensing and regulating of public adjusters and public adjuster solicitors.” 1983 Pa.Legis.Serv. 519 (Purden). This Act is not here at issue, and we therefore do not now decide whether under it the Legislature has given the Insurance Department the exclusive authority to regulate public adjusters and their contracts with insureds.

      . We, of course, need not decide and therefore express no view on whether the regulation of insurance companies under the Unfair Insurance Practices Act is exclusive, so that insurance companies are not subject to regulation under the Consumer Protection Law. Cf. Layton v. Liberty Mutual Fire Insurance Co., 577 F.Supp. 1 (E.D.Pa.),
        aff’d, 725 F.2d 668 (3 Cir.1983) (summary judgment granted for insurance company in suit by insured under Consumer Protection Law; Unfair Insurance Practices Act provides exclusive remedy).


author: MONTEMURO, Judge:

text:
    477 A.2d 501
    COMMONWEALTH of Pennsylvania v. Vincent THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 23, 1984.
    Filed May 11, 1984.
    Petition for Allowance of Appeal Denied Sept. 18, 1984.

      Raymond R. Williams, Assistant Public Defender, Media, for appellant.
    Vram Nedurian, Jr., Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WICKERSHAM, MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

On May 27, 1982, the appellant, Vincent Thomas, was found guilty after a jury trial of two counts each of rape, involuntary deviate sexual intercourse, recklessly endangering another person, terroristic threats, possessing instruments of crime generally, possessing instruments of crime weapon, and a single count of burglary. These charges (hereinafter No. 6925). arose out of two incidents involving the same victim. On May 28, 1982, the appellant was found guilty after a jury trial of one count each of rape, simple assault, recklessly endangering another person, terroristic threats, and of possessing instruments of crime. These charges (hereinafter No. 6924) arose subsequent harassment of a different victim.

On July 28, 1982, the appellant’s post-verdict motions in both cases were denied by the trial court. On October 1, 1982, the appellant was sentenced on both Nos. 6924 and 6925 to a total of eighteen (18) to thirty-six (36) years imprisonment. This appeal followed.

In this appeal covering both trials, five allegations of error are raised: (1) that the trial court (at No. 6925) erred in consolidating for trial the charges arising out of incidents which occurred three weeks apart; (2) that the trial court (at No. 6924) erred in not granting defense counsel two challenges for cause during voir dire; (3) that the trial court (at No. 6924) erred in denying appellant’s motion for a mistrial because of remarks by the district attorney during his opening statement; (4) that the trial court (at No. 6924) erred in allowing the Commonwealth to amend the informa-tions immediately before trial; and (5) that the trial court erred in denying appellant’s motion for a mistrial after the Commonwealth introduced evidence of crimes subsequent to the original rape. We have examined each of the appellant’s claims and find them to be without merit.

The charges against the appellant arose out of a series of events occurring in the autumn of 1981. In late September, 1981, the appellant met Lisa Harper outside Chester High School as she was leaving an evening class. The appellant knew Harper as a consequence of their mutual employment at Teledyne Wirz and they had been out socially on a previous occasion. On this particular evening, Harper accompanied the appellant to his parents home where they ate hot sausages and watched television. Harper said she had to leave, and appellant offered to walk her home. At some point during the walk, after luring Harper to the area of Interstate 95 with the promise of a ride, the appellant grabbed Harper’s arm and twisted it behind her back. He then pushed her up an embankment to some railroad tracks. When Harper attempted to run away, the appellant pushed her to the ground and stated that he was going to rape her; he thereupon removed her clothing and his own. After several attempts by appellant were foiled by the victim’s deceptions, he finally achieved penetration. He immediately withdrew and apologized.

Subsequent to this incident the appellant began calling Harper to beg her forgiveness. He further addressed his pleas to her at their place of employment. Whenever Harper threatened to go to the police, the appellant reacted by threatening to kill her and her boyfriend. One day, while at work, the appellant produced a sharp tool, pointed it at her and stated: “I got a knife. Scared you, didn’t I?” (N.T. May 28, 1982, at 81). This rape and the subsequent harassment comprise the basis for the charges at No. 6924.

On October 22, 1981, Rosie Lee Givens left her evening class at Widener University and saw the appellant waiting by her car. She had met the appellant during the summer through a group of acquaintances who frequented Memorial Park in Chester. Givens expressed surprise at seeing the appellant, to which he replied that he was there to see her home safely. Givens offered to give the appellant a ride home.

During the ride home, the appellant instructed Givens to pull over and produced a knife. She stopped the car and attempted to flee, whereupon, the appellant seriously cut her left thumb with the knife. The cut produced a great amount of blood which stained the interior of the vehicle. Givens then ran away only to be pursued and caught by the appellant. He tied her hands behind her back and forced her into a wooded area, ripped off her clothes and subjected her to an act of sexual intercourse all the while berating her with questions regarding her sexual conduct with her boyfriend. The appellant then pulled her deeper into the woods where he forced her to engage in fellatio. Once again, appellant forced her deeper into the woods and engaged in an act of sexual intercourse. During these acts he stuffed the victim’s bra into her mouth. He threatened to kill her, and after she begged the appellant not to kill her, he apologized and said that he had never done anything like this before. In order to gain his confidence, she promised to make up a story in which another man attacked her and the appellant scared him away. She told this story to the police who had found her bloody vehicle in the interim.

Subsequent to this incident, the appellant called Givens numerous times saying the police were questioning his story. He wanted to meet with Givens to get their fabricated version of the events straight. She refused.

On Sunday, November 15, 1981, Givens went out at approximately 11:00 P.M. in order to give her mother a ride to work. When she returned, she found the appellant in the bathroom. He grabbed her and threw her to the floor. He cut her neck with the same knife he used in the previous incident. He tied her hands behind her back and stuffed a washcloth in her mouth. He then engaged in sexual intercourse and cunnilingus while berating her with questions about her sexual conduct with her boyfriend. The charges arising out of these two incidents were tried together at No. 6925.

Only one of the allegations of error raised by the appellant concerns the charges at No. 6925. We shall dispose of this issue first. Prior to trial on the charges at No. 6925, which concerned the rapes on October 22, 1981 and November 15, 1981, defense counsel moved for severance of the charges on the two dates. The motion was denied. The appellant contends this ruling was erroneous.

The grant or denial of severance or the consolidation of charges for trial is a matter of discretion with the trial judge, and his decision will be reversed only for manifest abuse of discretion, or prejudice to the defendant. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981); Commonwealth v. Larkins, 302 Pa.Super. 528, 449 A.2d 42 (1982); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982).

The test of whether consolidation is proper is related to the test of whether evidence of one crime may be admitted at the trial for another. The present rule in Pennsylvania is that consolidation is proper ... if (1) the facts and elements of the two crimes are easily separable in the minds of the jury; and (2) the crimes are such that the fact of the commission of each crime would be admissible as evidence in a separate trial for the other. (Citations omitted).

Commonwealth v. Galloway, id., 302 Pa.Super. at 154, 448 A.2d at 573 (quoting Commonwealth v. Terrell, 234 Pa.Super. 325, 328, 339 A.2d 112, 114 (1975)). See also, Commonwealth v. Boyd, 315 Pa.Super. 308, 461 A.2d 1294 (1983); Commonwealth v. Matthews, 314 Pa.Super. 38, 460 A.2d 362 (1983). Evidence of other crimes is admissible 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 other; or (5) identity. Commonwealth v. Peterson, 453 Pa. 187, 307 A.2d 264 (1973); Commonwealth v. Booth, 291 Pa.Super. 278, 435 A.2d 1220 (1981).

We find no error in the trial court’s denial of appellant’s motion to sever. The facts of the two incidents which led to the charges at No. 6925 were easily separable in the minds of the jury. Moreover, we find the two incidents so similar that they can properly be categorized in that rare class of crimes where they are deemed to be of a common scheme, plan or design. In support of the conclusion we cite the following factors: (1) the same victim was involved; (2) the same knife was used; (3) the appellant tied the victim’s hands behind her back with a piece of rope in both episodes; (4) both times the appellant stuffed the victim’s mouth with a cloth article to muffle her shouts; (5) the appellant committed acts of intercourse and involuntary deviate sexual intercourse in each case; and (6) in each case he inquired into her sexual conduct with her boyfriend. We find the identity of factors in the two episodes so striking that they in fact are like a signature linking the appellant to the crime. As such, evidence of each of the incidents would be admissible in a trial for the other. Consequently, we find no error in the trial court’s determination.

Appellant’s next contention is that the trial court, at No. 6924, erred during voir dire in refusing to dismiss two veniremen for cause. In Commonwealth v. Johnson, 299 Pa.Super. 172, 176, 445 A.2d 509, 511 (1982) this court stated:

A prospective juror should be excused for cause in two situations:
The first is where the prospective juror indicates by his answers that he will not be an impartial juror.... The second is where, irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the juror has such a close relationship, be it familial, financial, or situational, with any of the parties, counsel, victims or witnesses.
Commonwealth v. Stamm, 286 Pa.Superior Ct. 409, 415-416, 429 A.2d 4, 7 (1981), quoting Commonwealth v. Colon, 223 Pa.Superior Ct. 202, 299 A.2d 326 (1972).

In the present case there is no allegation that the prospective jurors should have been excused because of a “close relationship”. Thus, if the appellant is to prevail we must determine if either of the jurors demonstrated partiality by their answers.

In making this determination, we note that, “much depends upon the answers and demeanor of the potential juror as observed by the trial judge and therefore reversal is appropriate only in case of palpable error.” Commonwealth v. Johnson, id. 299 Pa.Super. at 512, 445 A.2d at 512; Commonwealth v. Colon, 223 Pa.Super. 202, 207, 299 A.2d 326, 330 (1972).

Applying the above-stated standard, we find no error in the trial court’s ruling. One juror stated that he had either read of the incident, or heard of it on the radio a year earlier; and that he felt an emotional reaction at that time. However, he went on to state that he felt he could listen to the evidence and reach a fair and impartial decision. The second juror stated that he would be “fidgety” if the trial was longer than one day because he had an important concert on the upcoming Saturday night. This prospective juror also stated that .he could decide the case fairly and impartially. In short, we find no abuse of discretion by the trial court.

The appellant next alleges error in the trial court’s denial of a motion for a mistrial made during the prosecution’s opening statement. During the statement, the assistant district attorney remarked that the appellant attempted to flee as the police, were about to arrest him. In the course of the Commonwealth’s case, the prosecution attempted to elicit testimony from the apprehending police officer concerning defendant’s attempted flight but was prevented from doing so when a defense objection was sustained by the trial court.

It is apparently the appellant's contention that a mistrial was warranted because the prosecutor made reference to facts which were inadmissible at trial. We note again that our standard of review is whether the trial court abused its discretion in denying the motion for mistrial. Moreover, “[a] district attorney’s remarks in his opening statement must be fair deductions from the evidence the Commonwealth in good faith expects to develop, not merely assertions intended to inflame the passions of the jury.” Commonwealth v. Stetler, 494 Pa. 551, 562, 431 A.2d 992, 997 (1981); Commonwealth v. Hughes, 477 Pa. 180, 187, 383 A.2d 882, 886 (1978); Commonwealth v. Galloway, supra.

In the present case, the inadmissibility of the proffered evidence concerning appellant’s flight at the time of arrest was by no means clear cut. The prosecutor’s expectation that the evidence of flight would be admissible was clearly reasonable as it was grounded on prior case law. Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969); Commonwealth v. Rough, 275 Pa.Super. 50, 418 A.2d 605 (1980). Consequently, we find no error in the trial court’s denial of the mistrial motion.

The appellant next alleges that the trial court erred in granting the Commonwealth’s pre-trial motion to amend the informations. Our analysis of this claim of error requires a brief explanation of the facts. The criminal complaint filed against the appellant on December 15, 1981 charged the appellant only with rape. A preliminary hearing was held on January 13, 1982, at which time the victim, Lisa Harper, testified not only to the rape, but also to the subsequent threats, harassment and display of a knife by the appellant. Subsequent to the preliminary hearing, the district attorney’s office filed informations charging rape, simple assault, recklessly endangering another person, terroristic threats [specifically, threats to murder], possessing instrument of crime generally, and possessing instrument of crime weapon. Each of these informations alleged that the date of the offense was August 30, 1981.

Following jury selection, but prior to trial, the Commonwealth moved to amend the date of each of the informa-tions. On the rape, recklessly endangering, and simple assault charges, the Commonwealth requested an amendment to sometime after September, 1981. The appellant alleges that the latter amendment allowed the Commonwealth to charge, try and convict the appellant of additional and different offenses than those originally charged.

The amendment of criminal informations is governed by Pa.R.Crim.P. 229, which states:

Rule 229. Amendment of Information
The court may allow an information to be amended when there is a defect in form, the description of the offense, the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense. Upon amendment the court may grant such postponement of trial or other relief as is necessary in the interest of justice.

In Commonwealth v. Stanley, 265 Pa.Super. 194, 212-13, 401 A.2d 1166, 1175 (1979) aff'd 498 Pa. 326, 446 A.2d 583 (1982) this court explained:

The purpose of Rule 229 is to insure that a defendant is fully appraised of the charges against him, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed. See Commonwealth v. Jones, 250 Pa.Super. 471, 378 A.2d 1245 (1977); Commonwealth v. King, 227 Pa.Super. 168, 323 A.2d 260 (1974). In effecting this purpose, the courts of this Commonwealth employ the test of whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or the elements or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. (Footnotes omitted)

See also, Commonwealth v. Casuccio, 308 Pa.Super. 450, 459, 454 A.2d 621, 626 (1982).

We perceive the appellant’s argument to be that he was led to believe that all of the charges against him arose solely out of the incident on the railroad tracks, and that he was unaware that he was also being tried for the charges arising out of his subsequent harassment of the victim. We cannot subscribe to this argument.

The charges, other than rape, were filed subsequent to the preliminary hearing. At that hearing, the victim testified about both the incident of rape and the appellant’s later threats to kill the victim and her boyfriend; threats made by telephone and at their mutual place of employment. She further testified that the appellant pointed a weapon at her at their place of employment. Nowhere in the victim’s testimony regarding the incident of rape is there any mention of a weapon, nor of a threat to kill.

Under the circumstances, we conclude that the appellant was fully alerted to the fact that he was being tried for both the rape and the subsequent harassment. The charges of possessing an instrument of crime and terroristic threats (murder) only make sense with regard to the later events, and are completely irrelevant to the original rape at which no weapon was used and no threats to kill were made. The Commonwealth filed these charges after the preliminary hearing and based on the testimony presented therein. The use of the incorrect date on the information by the Commonwealth was inadvertent. Through the informations, the appellant was on notice of the charges filed against him, and because of the preliminary hearing, he was on notice of the factual basis for those charges. We refuse to allow him to take advantage of a clerical error for which he could not have suffered any prejudice. We find no error in the trial court’s allowance of the amendment. Cf. Commonwealth v. Swint, 465 Pa. 450, 350 A.2d 851 (1976). Error to allow amendment of date on information charging weapons offense from date of murder to date of arrest where defendant used a .38 calibre gun for murder and a .32 calibre gun when arrested approximately one month later.

The appellant finally alleges that the trial court erred in denying his motion for mistrial which was advanced when the Commonwealth introduced at trial evidence of the crimes committed by the appellant in his campaign of harassment against the victim. Again we note that the trial court’s determination is subject to an abuse of discretion standard. Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007 (1980); Commonwealth v. Werts, 483 Pa. 222, 395 A.2d 1316 (1978). Under the analysis we have already set forth, supra at 505, we conclude that the trial court did not err. Clearly, the facts of the rape and the subsequent harassment and the elements of the respective charges, are not so complex as to prevent the jury from clearly understanding them. Moreover, evidence of the rape and related charges would be admissible at a trial on the terroristic threats and related charges as evidence relevant to the appellant’s motive. In a similar vein, evidence of the terroristic threats and related charges would be admissible at a trial on the rape charge because it would demonstrate his consciousness of guilt by showing his attempts to conceal the fact of the commission of the rape through a course of conduct utilizing threats and displays of force. Commonwealth v. Hawkins, 295 Pa.Super. 429, 441 A.2d 1308 (1982). Again, we find no abuse of discretion in the trial court’s determination.

Having found no merit in any of the appellant’s arguments, the judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 3121.

      . 18 Pa.C.S.A. § 3123.

      . 18 Pa.C.S.A. § 2705.

      . 18 Pa.C.S.A. § 2706.

      . 18 Pa.C.S.A. § 907(a).

      . 18 Pa.C.S.A. § 907(b).

      . 18 Pa.C.S.A. § 3502.

      . 18 Pa.C.S.A. § 2701.