author: PER CURIAM: ROWLEY, Judge,

text:
    567 A.2d 336
    Mario GALLELLI, Appellant, v. FIREMEN’S INSURANCE COMPANY and Underwriter’s Adjusting Company.
    Superior Court of Pennsylvania.
    Argued June 7, 1989.
    Filed Dec. 12, 1989.

      Bernard M. Gross, Philadelphia, for appellant.
    Paul A. Lawless, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   PER CURIAM:

Appeal quashed.

ROWLEY, Judge,

dissenting.

Although I respect the majority’s determination to follow and apply the mandate established by a panel of this Court in Palermo Development Corp. v. Bowers, 388 Pa.Super. 49, 564 A.2d 996 (1989), I nevertheless dissent in order to distance myself as far as possible from the decision in Palermo, the effect of which is to substitute the phrase “the irrevocable loss of a litigant’s rights” for the phrase “just and practicable” in amended Pa.R.A.P. 311(a)(1).

This action had its genesis in a September 16, 1987, automobile accident on Passyunk Avenue in Philadelphia, Pennsylvania. The appellant, Mario Gallelli, sustained serious personal injuries while road testing a motor vehicle owned by Maria Gallazo. Appellant subsequently filed an insurance claim to recover the medical costs and expenses associated with his accident. His insurance carrier, Firemen’s Insurance Company (Firemen’s), one of the appellees herein, reviewed the claim and responded with a letter denying appellant’s claim and asserting that his coverage under the policy did not extend to this accident.

On September 1, 1988, Gallelli instituted suit against Firemen’s and Underwriter’s Adjusting Company (Underwriter’s) for their failure to pay first party benefits. Both Firemen’s and Underwriter’s were served with a copy of the complaint on September 14, 1988. Neither appellee answered the complaint or filed a responsive pleading within twenty days as required by Pennsylvania Rule of Civil Procedure 1026. Pursuant to the mandate of Pennsylvania Rule of Civil Procedure 237.1, Gallelli’s counsel notified Firemen’s and Underwriter’s by certified and regular mail that he intended to take judgment by default unless they answered the complaint within ten days. This notice was dated October 12, 1988. On October 18, 1988, after being informed of the receipt by appellees of the ten day notice of intention to take default judgment, counsel for the appellees allegedly contacted appellant’s counsel’s secretary, and left a message requesting an extension of time to answer the complaint. In a letter dated October 25, 1988, appellees’ counsel attempted to confirm the extension of time by stating: “[t]his will confirm that you have allowed us a reasonable extension of time within which to Answer the Complaint filed in the above-captioned matter. I am preparing and filing an Answer presently.” The following day, however, appellant’s counsel filed the appropriate documents for the entry of a default judgment against Firemen’s and Underwriter’s.

On November 9, 1988, Firemen’s and Underwriter’s filed a petition to open or strike the default judgment entered on October 26, 1988. On January 13, 1989, the Honorable Samuel M. Lehrer entered an order in which he granted Firemen’s and Underwriter’s petition to open the default judgment, and denied their petition to strike the judgment.

This timely appeal from the order opening the judgment was filed on February 15, 1989. The trial court’s record was received in this Court on February 24, 1989. Appellant’s brief and reproduced record were filed on April 4, 1989. Appellee’s brief was filed on May 4, 1989, and the case was argued before us on June 7, 1989. At argument the question of the applicability of the amendment to Pa.R. A.P. 311(a)(1), which was not yet in effect, was never mentioned. Because I do not believe that under these circumstances the mandate of Palermo is either “just” or “practicable,” I dissent.

By its order of March 81, 1989, adopting the amendment to Rule of Appellate Procedure 311(a)(1), the Supreme Court provided that:

The amendments ... shall become effective July 1, 1989, and shall govern all matters thereafter commenced and, insofar as just and practicable, matters then pending. (emphasis supplied)

The phrase “insofar as just and practicable” qualifies the clause concerning “matters then pending.” Read in this light, the Court’s order provides that the amendment shall govern pending appeals only if quashing the appeal can be considered to be “just and practicable.” It seems clear to me, therefore, that the Supreme Court intended that application of the amended Rule to pending appeals should be determined on a case-by-case basis after due consideration is given to all of the relevant circumstances and an objective determination is made that such application is “just and practicable.”

On the other hand, the decision in Palermo dictates that the amendment is to be applied to “all cases pending an (sic) appeal.” The only qualification expressed by the Court to Palermo’s sweeping mandate is that if the appellant can establish that application of the amendment would “result in the irrevocable loss of” his or her “rights,” the amendment should not be applied. Since in my judgment “irrevocable loss of rights” does not have the same meaning as “just and practicable,” it appears to me that the Court, in Palermo, has rewritten the Supreme Court’s order. I decline to join in such an exercise.

Furthermore, I submit that what appears to be a qualification to the general rule mandated in Palermo is illusory. No set of circumstances has been suggested that would result in an irrevocable loss of an appellant’s right of appellate review if the appeal from an order opening a default judgment were quashed. To the best of my knowledge, that condition has not been found to be applicable in any of the cases pending in this Court to which Palermo has been applied. Nor have I been able to conceive of any set of circumstances where such an irrevocable loss would occur. Additionally, it is appropriate to note that neither the appellant in Palermo nor the appellant in this case has been extended an opportunity to tell us whether, in their opinion, they will sustain an “irrevocable loss” of a right by this Court’s orders quashing their appeals. Thus, as I perceive the holding in Palermo, all cases, without exception, pending in this Court on the effective date of the rule, where the appeal is from an order opening a default judgment, must be quashed without any consideration or concern for the practicability or justice of such an order. Because I believe such a mandate is contrary to the Supreme Court’s order, I dissent.

In the present case, the appeal was filed not only before amended Rule 311(a)(1) became effective, but also before the order adopting the amendment was entered. Thus, it is unquestionable that at the time appellant decided to file the appeal, it was not “premature.” Appellant then had an absolute right to take an immediate appeal, and appellant relied upon that right in deciding to undertake the cost of an appeal, including the cost of reproducing the record, retaining counsel for the appeal, and filing a brief. Moreover, this Court obtained unquestioned jurisdiction to decide the appeal upon its filing. It was only after the appeal had been perfected, after the reproduced record was filed, after appellant’s and appellee’s briefs were filed, and after the case had been argued that the amended Rule became effective. If the amended Rule is applied to the present case, there can be no question but that the efforts of counsel and the financial resources of the parties which have been expended will have been “irrevocably lost” through no fault of the parties or their counsel and without giving them an opportunity to be heard on the matter. Furthermore, it is entirely possible, because of the cost involved and the delay envisioned by “postponing” appellate review of the issue raised by appellant, that appellant’s right to appellate review of the issue, if not irrevocably lost, may, as a practical matter, have been lost.

Also, in making the determination of what is “just and practicable” in each individual case, the Court should consider not only the economic impact of application of the amended Rule on the parties, but practical considerations such as whether anything is to be gained by requiring the parties to pursue further proceedings in the trial court if it is apparent that the trial court erred in opening the judgment. To apply the amended Rule in such a situation would not only be a waste of the parties’ money and time, but also a waste of judicial resources, and an unwarranted delay in the administration of justice.

In Palermo, the court noted that where amended rules of civil procedure have been deemed to be inapplicable to cases pending on the effective date of the amended Rule, one of the significant reasons for the refusal to apply the rule to the pending case is “the injustice inherent in changing the rules in the middle of the game when the parties are relying on certain procedures.” Palermo, supra, 388 Pa.Super. at —, 564 A.2d at 998. In the instant case, the appellant properly relied on the version of Rule 311(a)(1) in effect when the appeal was filed. To hold that the amended Rule 311(a)(1), which became effective only after the appeal was properly perfected, must be applied to the present case, is to “change the rules” in the middle of the game. In the same manner that the court in Palermo finds “injustice inherent” in the changing of rules of civil procedure during the pendency of an action in the trial court, I find an inherent injustice in quashing this appeal on the basis of a rule which had not been adopted when the appeal was filed and was not effective until after it was argued.

Because the standard that the Supreme Court directed us to use when determining the applicability of the amended Rule 311(a)(1) to cases pending on appeal was whether or not it is “just and practicable” to do so, because on the facts of the instant case I find it to be unjust and impracticable to apply amended Rule 311(a)(1) to quash the instant appeal, because I believe the Supreme Court’s mandate set forth in its amendment to Rule 311(a)(1) is still the law of Pennsylvania, and because the “holding” of Palermo is in direct conflict with the amendment, I dissent.

      . I agree that new Rule 311(a)(1) is a welcome revision to appellate practice in Pennsylvania. My only disagreement is with this Court’s inflexible, retroactive application of the amendment to all appeals pending on the Rule’s effective date.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    567 A.2d 656
    COMMONWEALTH of Pennsylvania v. Charles COOPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1989.
    Filed Oct. 12, 1989.
    Reargument Denied Dec. 26, 1989.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before OLSZEWSKI, MONTEMURO and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the order of the Common Pleas Court that overturned a Municipal Court ruling that appellant’s retrial was barred by principles of double jeopardy. Appellant contends that retrial would violate his right against double jeopardy because, at his first trial, the municipal court sua sponte declared a mistrial in the absence of manifest necessity. For the reasons that follow, we agree and, accordingly, we reverse the order below and order appellant discharged.

Appellant was charged with driving under the influence, in violation of 75 Pa.C.S.A. § 3731. On June 19, 1987, appellant appeared before Philadelphia Municipal Court Judge William Brady, and pled not guilty. Appellant then proceeded to a bench trial, where at the close of evidence, Judge Brady announced a verdict of guilty. Defense counsel informed the judge that he had not had an opportunity to argue. During counsel’s summation, a dispute arose concerning the legal effect of a breathalyzer reading over 0.10. Judge Brady believed he had misunderstood the appropriate standard of law and then declared a mistrial sua sponte. The Commonwealth objected to the declaring of the mistrial but the court overruled the objection and proceeded to set a date for a new trial. Prior to the second municipal court trial, appellant’s counsel filed a motion asking that the second trial be barred on double jeopardy grounds. On June 30, 1987, Philadelphia Municipal Court Judge Barbara Gilbert granted appellant’s motion. The Commonwealth appealed to the Common Pleas Court which reversed, and ordered the case be sent for trial. This appeal followed.

Appellant contends that he cannot be tried again consistent with the federal and state constitutional guarantees against double jeopardy. We agree.

The Fifth Amendment’s prohibition against placing a defendant ‘twice in jeopardy’ represents a constitutional policy of finality for the defendant’s benefit in ... criminal proceedings. A power in government to subject the individual to repeated prosecutions for the same offense would cut deeply into the framework of procedural protection which the Constitution establishes for the conduct of a criminal trial.

United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971) (plurality opinion); Commonwealth v. Shaffer, 447 Pa. 91, 288 A.2d 727, cert. denied Shaffer v. Pennsylvania, 409 U.S. 867, 93 S.Ct. 164, 34 L.Ed.2d 116 (1972). In United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165 (1824), JUSTICE STORY first articulated the standard for determining whether a retrial, following a declaration of a mistrial, without the defendant’s request or consent, constitutes double jeopardy:

We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances, which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and in capital cases especially, Courts should be extremely careful how they interfere with any of the chances of life, in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges under their oaths of office.

Id. at 580, 6 L.Ed. at 165. The United States and Pennsylvania Supreme Courts consistently have adhered to this formulation and have refused to apply a mechanical formula in determining whether a retrial would violate the Double Jeopardy Clause. See United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973); Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976); Commonwealth ex rel. Walton v. Aytch, 466 Pa. 172, 352 A.2d 4 (1976). As our Supreme Court has noted, “[n]o rigid rule for determining what constitutes ‘manifest necessity’ for a mistrial has been established.” Commonwealth v. Robson, 461 Pa. 615, 622, 337 A.2d 573, 576 (1975). Rather, “[e]ach case must turn on its facts.” Downum v. United States, 372 U.S. 734, 737, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100 (1963). Nonetheless, courts have stressed the critical nature of the trial court’s decision whether or not to declare a mistrial sua sponte, and have insisted that the decision not be made lightly. Thus, in United States v. Jorn, supra, JUSTICE HARLAN wrote that:

[T]he Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option [to have his trial completed by a particular tribunal] until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.

400 U.S. at 485, 91 S.Ct. at 557; see also Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616 (1974). Moreover, in Downum v. United States, supra, the Court emphasized that in determining whether a mistrial was properly declared “(w]e resolve any doubt ‘in favor of the liberty of the citizen, rather than exercise what would be an unlimited, uncertain, and arbitrary judicial discretion.’ ” 372 U.S. at 738, 83 S.Ct. at 1035 (quoting United States v. Watson, 28 F.Cas. 499, 501 (S.D.N.Y.1868) (No. 16651)). Similarly, if there is any doubt as to the existence of manifest necessity, the doubt must be resolved in favor of the defendant. Commonwealth v. Gains, 383 Pa.Super. 208, 219, 556 A.2d 870, 876 (1989); Commonwealth v. Adams, 349 Pa.Super. 200, 214, 502 A.2d 1345, 1353 (1986); see also Commonwealth v. Bycer, 485 Pa. 224, 401 A.2d 740 (1979); Commonwealth v. Shaffer, supra. Finally, we note that it is settled that before declaring a mistrial sua sponte, a trial court should consider whether there are any other less drastic alternatives; declaring a mistrial without considering those alternatives alone may be grounds for barring retrial. United States v. Jorn, supra; Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Ferguson, 446 Pa. 24, 285 A.2d 189 (1971); Commonwealth v. Bradley, 311 Pa.Super. 330, 457 A.2d 911 (1983); Commonwealth v. Dull, 257 Pa.Super. 192, 390 A.2d 777 (1978).

With these principles in mind, we turn to an examination of the instant case. After the court heard argument in appellant’s bench trial, it sua sponte declared a mistrial because there was confusion over the effect of a breathalyzer test in driving under the influence cases. The confusion was reflected in the following exchange:

Mr. Penneys [appellant’s counsel]: Defense rests, Your Honor.
The Court: All right, gentlemen, under all the evidence the Court has heard in this matter and the inferences therefrom, Court must adjudge Mr. Cooper guilty of driving under the influence here. And for purposes of our sentencing, Mr. Cooper, August the 5th, Room 916 the sentencing will take place.
Mr. Penneys: I was going to make some argument before you found him guilty.
The Court: Please do.
>H >[( * # 3¡«
Mr. Penneys: The problem with that, he said he was not drinking that day, that he might have been drinking the night before. That 1.4 [result of breathalyzer test] is only a presumption, not an absolute requirement that he’s intoxicated.
The Court: 0.14?
Mr. Penneys: Right.
The Court: Not absolute? Is that right?
Mr. Dworakowski [for the Commonwealth]: It’s a presumption. It’s not conclusive.
The Court: I’m thinking this is over 010.
Mr. Dworakowski: It is.
Mr. Penneys: Over that there’s a presumption. In order to be conclusive, there would have to be a mandatory statute. Only raises the presumption that he’s intoxicated. You have to look at other things to see whether or not, in fact, he was. All the other things the officer indicated to you, slurred speech, inability to understand him, that’s exactly the same way he was today on the stand. Hard to understand. Couldn’t understand us some of the time.
The Court: What do we consider 05 to 1.0? That is also a presumption? We’ve had cases where its 08 and the cases have held there have been convictions for that. Mr. Dworakowski: That’s correct.
The Court: What would that be? When you talk about presumption, after 10, 0.10, isn’t that more than presumption?
Mr. Penneys: No still a presumption. Not absolute mandatory statute. Court at that point can presume he’s intoxicated unless you see reasons to believe that he’s not. And I believe what you’ve done here, the Commonwealth has presented other witness — obviously if they just said he had 14 and rested, then you couldn’t find him guilty.
The Court: Repeat that last one thing.
Mr. Penneys: If the Commonwealth put the officer on and the officer said defendant was driving the car, then they put on the breathalyzer and say .14, you couldn’t find him guilty.
The Court: You agree with that?
Mr. Dworakowski: Yes, Your Honor.
The Court: All right, I’ll recuse myself and give him a new trial.
Mr. Dworakowski: Judge, we have more than just a breathalyzer here. We have an overwhelming amount of evidence here to find this defendant guilty. We have the breathalyzer which does raise presumption, but we have an enormous amount of evidence. We have the officer testifying defendant was staggering. We have the officer testifying defendant had a strong odor of alcohol on his breath. Officer testified that his eyes were bloodshot. The Court: Well, the Court took the position it was 0132, 0141, that that standing alone I was satisfied, my finding was on the basis of that alone is enough to convict him.
Mr. Dworakowski: But prior to finding him guilty, he hasn’t been adjudicated guilty yet because Mr. Penneys had opportunity to make argument.
The Court: I’m going to recuse myself. At any rate, we’ll give it a date.
The Crier: Are you declaring a mistrial, Your Honor? Mr. Dworakowski: Respectfully, no reason for His Honor to recuse himself because there’s been no finding of guilty yet.
The Court: Well, I did find him guilty and after argument and after the situation, I’m satisfied that I’m going to give it a new date. Court declares a mistrial, and give Mr. Cooper a new date.

N.T. June 19, 1987 at 23-28. Because appellant did not request the mistrial or consent to it, the only question we need resolve is whether the mistrial declared by the court was justified by “manifest necessity.” ,

Although there is no set test for determining when manifest necessity exists, Pennsylvania courts have recognized certain factors that are relevant in establishing its existence. For example, the courts have held that manifest necessity for a mistrial exists when the judge becomes very ill, see Commonwealth v. Robson, supra, when jurors become ill, see Commonwealth v. Brown, 451 Pa. 395, 301 A.2d 876 (1973); see also Commonwealth v. Hamilton, 460 Pa. 686, 334 A.2d 588 (1975), and when the jury is unable to reach a decision after appropriate time for deliberation, see Commonwealth v. Smith, 324 Pa.Super. 156, 471 A.2d 510 (1984). Conversely, manifest necessity has been found not to exist when the judge who was sitting as fact-finder in a non-jury trial is unwilling to decide issues of credibility, see Commonwealth v. Culpepper, 221 Pa.Super. 472, 293 A.2d 122 (1972), when the prosecution makes improper prejudicial comments, see Commonwealth v. Shaffer, supra, and where a co-defendant threatens the complaining witness, see Commonwealth v. Hatten, 344 Pa.Super. 362, 496 A.2d 837 (1985). From these cases, it would appear that a trial court's decision to declare a mistrial sua sponte is most likely to be upheld when an impediment to trial arises, that is the fault of neither party, and the impediment cannot be cured by a simple procedure or process. See generally, 3 W. LaFave, Criminal Procedure, § 24.2(b), at 70 & nn. 15-52.

Here, after carefully reviewing the record, we are constrained to conclude that the Municipal Court abused its discretion in declaring a mistrial. The difficulty in the case at bar is that there is no indication that the Municipal Court considered any less drastic alternatives before declaring the mistrial. As the trial excerpt reveals, during summation there was a disagreement between the court and counsel over the legal effect of blood alcohol test results of 0.132 or 0.14. Rather than attempting to resolve the dispute the court simply declared a mistrial. The court did not explain its decision to declare a mistrial rather than pursue less drastic alternatives. And, it is apparent that less drastic alternatives were available. For example, if the court disagreed with the parties’ characterization of the legal effect of the breathalyzer results, it could have delayed the verdict, and either examined the relevant sections of the Motor Vehicle Code, or directed the parties to brief the question. Conversely, if counsels’ mistaken argument convinced the court, it could have re-examined the evidence in light of the erroneous standard, and announced a verdict. We are aware that the confusion in this case resulted from counsels’ misstatement of the law regarding the legal effect of a blood alcohol level of 0.132 or 0.14, and we certainly do not condone counsels’ inaccurate representation of the law. Nevertheless, we must remain mindful that when there is doubt as to the existence of manifest necessity, the doubt must be resolved in favor of the defendant. See Downum v. United States, supra; Commonwealth v. Bycer, supra; Commonwealth v. Shaffer, supra; Commonwealth v. Gains, supra; Commonwealth v. Adams, supra. Here, because it is not apparent that the trial court considered any alternatives prior to declaring a mistrial, we must conclude that the municipal court abused its discretion. See United States v. Jorn, supra; Commonwealth ex rel. Walton v. Aytch, supra; Commonwealth v. Ferguson, supra; Commonwealth v. Bradley, supra; Commonwealth v. Dull, supra. Therefore, we hold that the Common Pleas court erred in concluding that the sua sponte declaration of a mistrial was justified by manifest necessity. Accordingly, we reverse the order below and order appellant discharged.

Order reversed. Appellant discharged.

      . U.S. Const.amend. V; Pa.Const. art. 1, § 10.

      . The Commonwealth argues that it is unnecessary to determine if manifest necessity existed because appellant waived his right to allege double jeopardy by not objecting to the judge's sua sponte declaration of a mistrial. We disagree. Our Supreme Court has stated that:
      "[M]ere silence by [a] defendant or his counsel to the proposed discharge of the jury by the trial Judge will not amount to waiver of this very important constitutional right of every person____”

        Commonwealth v. Bartolomucci, 468 Pa. 338, 347, 362 A.2d 234, 239 (1976) (quoting Commonwealth v. Baker, 413 Pa. 105, 115, 196 A.2d 382, 387 (1964)); see also Commonwealth v. Brooks, 225 Pa.Super. 247, 250, 310 A.2d 338, 339 (1973). In light of these cases, we cannot hold that appellant’s silence constituted a waiver of his double jeopardy rights.

      . Because the court heard evidence at appellant’s first trial there is no question that jeopardy attached. See Commonwealth v. Fooks, 345 Pa.Super. 145, 149, 497 A.2d 1346, 1348 (1985) ("In Pennsylvania, the prohibition of double jeopardy attaches in a non-jury situation when the court has begun to hear evidence.”); see also Commonwealth v. Arelt, 308 Pa.Super. 236, 241, 454 A.2d 108, 111 (1982).

      . Judge Brady was correct in his initial interpretation of the law. The Motor Vehicle Code provides in relevant part:
      A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: * * * the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S.A. § 3731(a)(4). Thus, under the statute, a blood alcohol reading of 0.10 or above is sufficient to convict. It appears that both counsel for the defendant and the prosecuting attorney confused the significance of the admissibility of the breathalyzer test, 75 Pa.C.S.A. § 1547(d), with its effect in the definition section for driving under the influence, 75 Pa.C.S.A. § 3731. Section 1547 provides in relevant part:
      If chemical testing of a person’s breath, blood or urine shows: * * * [t]hat the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating 3731.
      Id. at § 1547(d)(3).

      . We note that if the court chose this course, appellant would not have been prejudiced because he could have appealed for a trial de novo or petitioned for certiorari review. See Pa.R.Crim.P. 6006.


author: PER CURIAM. POPOVICH, Judge,

text:
    567 A.2d 660
    William J. LETTERI and Barbara A. Letteri, Husband and Wife, Appellants, v. Steven KUBIK and Ann Kubik, Husband and Wife, Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1989.
    Filed Dec. 1, 1989.
    Reargument Denied Jan. 10, 1990.

      Kelly M. Tocci, Aliquippa, for appellants.
    Edward A. Mihalik, Aliquippa, for appellees.
    Before McEWEN, POPOVICH and MONTGOMERY, JJ.
   PER CURIAM.

This is an appeal from a judgment entered on an order dismissing appellants’ complaint on the ground that the court did not have jurisdiction over the non-resident defendants. For the reasons below, we reverse.

Appellants entered into an agreement with appellees to purchase a residential dwelling in Center Township, Beaver County. When appellants ultimately took possession of the residence, they discovered several latent defects which, appellants allege, resulted in damages to them in excess of $10,000.00. Thereafter, appellants commenced this action alleging both breach of warranty and fraudulent misrepresentation of the defects in question. Appellees asserted, by way of preliminary objections, that the court lacked personal jurisdiction in that appellees currently reside in Arizona. The trial court agreed and dismissed the complaint. This appeal followed.

Appellants’ complaint alleges that appellees falsely and fraudulently misrepresented the condition of the property with the intent to induce appellants to purchase it. Thus, appellants argue that Pennsylvania has personal jurisdiction over appellees pursuant to 42 Pa.C.S. § 5322(a)(3) which provides:

(a) General rule. — A tribunal of this Commonwealth may exercise personal jurisdiction over a person (or the personal representative of a deceased individual who would be subject to jurisdiction under this subsection if not deceased) who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(3) Causing harm or tortious injury by an act or omission in this Commonwealth.

In dismissing appellants’ complaint, the trial court relied on Stepnowski v. Avery, 234 Pa.Super. 492, 340 A.2d 465 (1975). Stepnowski involved a breach of contract claim in regard to the sale of a residence. The plaintiffs therein sought jurisdiction under the “doing business” section of the Pennsylvania long-arm statute. This court held that an isolated sale of a personal residence by private individuals who thereafter become nonresidents is insufficient to meet the “doing business” requirement. The court noted that plaintiffs did not allege tortious conduct and therefore did not address the applicability of that section of the long-arm statute. Stepnowski, therefore, is not controlling.

The trial judge did not find that this distinction warranted a different result. Rather, he adopted the reasoning expressed in Hutchko v. Coll, 103 Mont.Co.L.R. 235 (1977), in which the trial court stated:

We believe the statute was not intended to apply to isolated contractual transactions but rather to acts which are purely tortious.

We are unable to agree that jurisdiction under subsection (a)(3) depends on what kind of tort is alleged.

There do not appear to be any Pennsylvania appellate cases deciding this issue. We find guidance, however, in several federal court decisions interpreting the Pennsylvania long-arm statute. In Allen Organ Co. v. Elka S.p.A., 615 F.Supp. 328 (E.D.Pa.1985), plaintiff Allen Organ brought a patent infringement action against Elka S.p.A., a corporation organized and doing business in Italy. The court found that jurisdiction was properly exercised because patent infringement is a tort and Allen Organ, a Pennsylvania resident, alleged harm from Elka’s actions. Similarly, in Techno Corporation v. Dahl Associates, Inc., 535 F.Supp. 303 (W.D.Pa.1982), plaintiff set forth a cause of action of intentional interference with prospective business relations, recognized as a tort in Pennsylvania. Noting that plaintiff had pleaded sufficient facts to establish a cause of action in tort, the court found that Pennsylvania law clearly provided for the exercise of personal jurisdiction.

In both of these cases, the district court looked to the pleadings to determine whether the complaint set forth a cause of action in tort. Having established that tortious conduct was alleged, the court found jurisdiction proper under the long-arm statute. In both of these cases, the tortious conduct arose out of contractual transactions. However, that fact does not change the nature of the cause of action; it is still a tort which is the basis of the complaint. The plain language of the long-arm statute confers jurisdiction where tortious injury is alleged. We are unable to agree with the trial court that the statute applies to some but not all tortious injury.

This does not conclude our inquiry, however, for we must still determine if there exist certain minimum contacts with Pennsylvania such that maintenance of the suit does not offend traditional notions of fair play and substantial justice. International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In VanNaarden v. Grassi, 488 F.Supp. 720 (E.D.Pa.1980), which is markedly similar to the instant case, the court held that such contacts existed where the defendants entered into an agreement to sell their residence in Pennsylvania, thus accepting the benefits and protections of Pennsylvania law and where the actions complained of (the false and fraudulent misrepresentations) occurred prior to and at the time of settlement when defendants were still residents of Pennsylvania. We cannot conclude that either fair play or substantial justice are offended by the exercise of jurisdiction over these defendants nor are fair play or substantial justice served by permitting defendants to escape liability merely by moving to another state after they have committed acts resulting in tortious injury.

Order dismissing plaintiffs complaint is reversed and the judgment vacated; case remanded for further proceedings. Jurisdiction relinquished.

POPOVICH, Judge,

dissenting.

I respectfully dissent from the Opinion of the majority. I do not believe that the Legislature, when enacting the long-arm statute, contemplated the result herein reached. I am convinced that the long-arm statute does not confer personal jurisdiction over non-residents in a dispute arising out of an isolated sale of a private residence. Consequently, I would affirm the decision of the court below.

      . 42 Pa.C.S. §§ 8301-8311, repealed and replaced by 42 Pa.C.S. § 5322, effective June 27, 1978.

      . In these cases, jurisdiction was premised on 42 Pa.C.S. § 5322(a)(4) “causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth” whereas appellant herein seeks jurisdiction under (a)(3) "causing harm or tortious injury by an act or omission in this Commonwealth.” We do not believe the difference between the two subsections is significant in resolving the issue raised herein.


author:
CIRILLO, President Judge:
      BROSKY, Judge, ROWLEY, Judge, JOHNSON, Judge,

text:
    567 A.2d 663
    Calvin ALSTON and Dorothy Alston, his wife, Appellants, v. ST. PAUL INSURANCE COMPANIES, John T. Williams, M.D. and Vocational Rehabilitation Services, Inc. and Janet H. Rohrer.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Dec. 8, 1989.
    Reargument Denied Dec. 27, 1989.

      Joseph Lurie, Philadelphia, for appellants.
    Andrew J. Gallogly, Philadelphia, for St. Paul, appellee.
    Paul A. Barrett, Scranton, for Vocational Rehabilitation, appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN , OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON and MELINSON, JJ.

       Judge McEwen did not participate in the decision of this case.

   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Delaware County granting summary judgment in favor of St. Paul Insurance Companies, Vocational Rehabilitation Services, Inc., and John T. Williams, M.D. We affirm.

On April 24, 1981, while working on a ladder as a carpenter, appellant, Calvin Alston, fell and sustained numerous injuries including avulsion fractures of both wrists, a compression fracture of his spine, and aggravation of degenerative changes in his neck and back. Alston's workmen's compensation carrier, St. Paul Insurance Companies (St. Paul), assigned Alston’s file to Robert Dunham, a claims examiner, and began paying benefits.

Shortly thereafter, St. Paul contracted with appellee, Vocational Rehabilitation Services, Inc. (Vocational Services), to obtain Alston’s medical records, to monitor his recovery, and to report to St. Paul. In late February, 1982, Vocational Services assigned Alston’s file to Janet Rohrer, a “rehabilitation nurse,” and employee of Vocational Services.

In February, March, and early April, 1982, J. Brendan Wynne, D.O., met with Alston and evaluated his medical condition. During this time, Dr. Wynne treated Alston for aggravation of his pre-existing degenerative condition and possible traumatic pericarditis. Dr. Wynne indicated to Ms. Rohrer that he was unable to calculate a firm date upon which Alston could return to work. Ms. Rohrer reported Dr. Wynne’s findings to St. Paul, after which the company representatives allegedly held an in-house conference and apparently decided to institute a more aggressive approach toward Alston.

On May 14, 1982, Ms. Rohrer met with Mr. and Mrs. Alston to discuss Alston’s medical treatment and prognosis. At that time, Ms. Rohrer indicated that she intended to schedule an appointment with appellee, John T. Williams, M.D., whom she allegedly described as a “miracle worker.” According to the Alstons, Ms. Rohrer indicated that Dr. Williams would treat and cure Mr. Alston, although the appointment was ostensibly for the purpose of obtaining an independent medical examination.

On August 31, 1982, Alston appeared for Dr. Williams’ examination. Alston claims that at no time prior to that examination was he informed that an independent medical examination would occur, or that Dr. Williams had the ability to sign a physician’s affidavit of recovery, or that he was entitled to have his own physician accompany him to the examination. Allegedly without the benefit of Alston’s prior medical records, x-rays, or contact with his prior treating physicians, Dr. Williams conducted a twenty minute examination, and at the conclusion of that exam, told Alston that he was ready to return to work. Immediately after Alston’s departure, Dr. Williams notified Ms. Rohrer that he would sign an affidavit of recovery, which he did in fact execute later that same day.

Having secured the affidavit of recovery, a representative of St. Paul allegedly approached Alston in the hopes of negotiating a lump sum settlement of his workmen’s compensation benefits. Alston rejected the offer as insufficient, and shortly thereafter St. Paul filed a petition to terminate Alston’s benefits. Alston’s benefits were discontinued for nineteen months, until proceedings before a referee denied St. Paul’s petition to terminate, and reinstated the benefits. The referee also imposed attorney’s fees upon St. Paul. St. Paul appealed the referee’s decision to the Workmen’s Compensation Appeal Board, who affirmed the underlying decision, but reversed the award of attorney’s fees on its own finding of “reasonable contest.” No appeal was taken from this decision.

On July 6, 1984, Alston commenced this civil tort action through a complaint seeking both compensatory and punitive damages from St. Paul, Vocational Services, and Dr. Williams. The gravamen of Alston’s action is the allegation that the named defendants engaged in a course of tortious conduct through which they conspired to fraudulently deny Alston’s benefits due under the Pennsylvania Workmen’s Compensation Act. This conspiracy, Alston averred, was advanced by the parties’ negligent and intentional misrepresentation of facts to Alston.

A motion for summary judgment was filed on behalf of all three appellees. In that motion, the appellees argued that our decision in Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987), alloc. granted 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed 517 Pa. 460, 538 A.2d 495 (1988), holding that an employee’s tort action against her employer was barred by the exclusivity provision of the Workmen’s Compensation Act, precluded Alston’s action. On March 3, 1988, the Honorable Frank T. Hazel entered an order granting summary judgment in favor of St. Paul, Vocational Services, and Dr. Williams. This appeal followed.

Alston advances the following two issues for our review: (1) whether the trial court properly concluded that the Workmen’s Compensation Act provides statutory immunity from a civil lawsuit to workmen’s compensation insurance carriers who inflict injuries outside the scope of employment, by malicious and fraudulent conduct and by abuse of the legal process to terminate workmen’s compensation benefits; and (2) whether the trial court properly granted statutory immunity under the Workmen’s Compensation Act to appellees Williams and Vocational Services, neither of whom are employers or insurance carriers.

Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment:

The judgment sought shall be rendered 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 a judgment as a matter of law.

Pa.R.C.P. 1035(b); Dume v. Elkcom Co., 368 Pa.Super. 280, 533 A.2d 1063 (1987). When reviewing a trial court’s imposition of summary judgment, we have stated:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) (citations omitted). Thus, an appellate court is required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion. Lened Homes v. Department of Licenses and Inspections, 386 Pa. 50, 123 A.2d 406 (1956); Dume, supra. Applying these principles, we are faced with the task of determining whether the trial court properly concluded that no genuine issue of material fact existed and that Alston’s claim was barred as a matter of law.

Alston initially claims that the trial court erred in granting summary judgment in favor of St. Paul, Vocational Services, and Dr. Williams because their allegedly tortious conduct “did not arise in the scope of [his] employment under the act; did not occur on the employer’s premises and did not occur while [he] was acting in furtherance of his employer’s interest.” Since the incidents which gave rise to the cause of action occurred months after the initial on-the-job injury, Alston maintains that they do not fall within the ambit of the exclusivity provision of the Workmen’s Compensation Act. We cannot agree.

Pennsylvania is an industrialized state. In order to promote certainty in the legal affairs of Pennsylvania’s industrial base, while protecting employees and their families from economic devastation arising from work-related injuries, our legislature formulated Pennsylvania’s Workmen’s Compensation Act. The Act was designed to assure quick, fair, and certain compensation for employment-related injuries without requiring the complainants to resort to the courts for recovery. See Blouse v. Superior Mold Builders, Inc., 363 Pa.Super. 516, 518, 526 A.2d 798, 799 (1987).

The Act specifically delineates the coverage which it affords. Section 301(a) provides:

Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, without regard to negligence____

77 P.S. § 431. Although this “no-fault” system of recovery applies equally to all employment-related injuries, the legislature determined that employers should not be accountable for those injuries inflicted by third persons, as a result of nonemployment related matters. This concept is embodied in section 301(c), which states:

The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer____

77 P.S. § 411(1) (emphasis added). Aside from this exception, the Workmen’s Compensation Act clearly sought to provide the injured worker with his or her exclusive remedy at law. In essence, the Act was based on a theory of “trade-offs.” On the one hand, the employer is forced to surrender the numerous defenses which might be available in an employee’s action at common law. However, the injured employee’s recourse is strictly confined to those remedies provided by the statute itself, thus providing the employer with some degree of certainty in its legal affairs. Section 303(a) integrates the exclusivity principle into our statutory scheme, and provides:

(a) The liability of an employer under this act shall be exclusive and in plabe of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481 (emphasis added). Commenting upon this section of the Act, our supreme court has stated:

Section 303(a) of the Workmen’s Compensation Act, like its predecessor, is a version of the historical quid pro quo employers received for being subjected to a no-fault system of compensation for worker injuries. That is, while the employer assumes liability without fault for a work-related injury, he is relieved of the possibility of a larger damage verdict in a common law action.

Lewis v. School District of Philadelphia, 517 Pa. 461, 471, 538 A.2d. 862, 867 (1988) (citations omitted); see also 2A A. Larson, Workmen’s Compensation Law, § 65.11 (1987 ed.). In short, the exclusivity provision “bars tort actions flowing from any work-related injury.” Kline v. Arden H. Verner Co., 503 Pa. 251, 256, 469 A.2d 158, 160 (1983).

We note at the outset that this suit was not brought against Alston’s statutory “employer.” Rather, Alston instituted this civil action against St. Paul, his employer’s workmen’s compensation insurance carrier, as well as those individuals retained by St. Paul to shepherd his case through the compensation process. This fact, however, does not alter our analysis of Alston’s claim. The same immunity from tort liability enjoyed by an employer has been extended to workers’ compensation insurers by section 305 of the Act. Section 305 provides, in pertinent part:

Every employer liable under this act to pay compensation shall insure the payment of compensation in the State Workmen’s Insurance Fund, or in any insurance company ... authorized to insure such liability in this Commonwealth____ Such insurer shall assume the employer’s liability hereunder and shall be entitled to all of the employer’s immunities and protection hereunder....

77 P.S. 501 (emphasis added); see Jadosh v. Goeringer, 442 Pa. 451, 275 A.2d 58 (1971) (employer’s workmen’s compensation insurer was included within term “employer” as used in immunity provisions of Workmen’s Compensation Act and shares employer’s immunity from common-law liability); DeJesus v. Liberty Mutual Insurance Company, 439 Pa. 180, 268 A.2d 924 (1970) (same); Brown v. Travelers Insurance Company, 434 Pa. 507, 254 A.2d 27 (1969) (same); Leonard v. Harris Corp., 290 Pa.Super. 370, 434 A.2d 798 (1981) (same).

In Brown, supra, our supreme court stated:

[T]he relevant policy considerations reinforce our conclusion that the legislature intended that the insurance carrier would share in the employer’s immunity____ [I]f the appellant’s position were adopted, then a regrettable discrimination would result between employers who are insured by the State Workmen’s Insurance Fund or are self-insuring employers and those employers who carry private insurance____ Such discrimination would be inequitable and unjust both to the employers who utilize private insurance and to their employees: first, these employers would be placed at a competitive disadvantage since private insurance carriers would necessarily have to raise their rates to offset the increased liability placed upon them by the result urged by the appellant ... We cannot and do not believe that the legislature ever intended the Workmen’s Compensation Act to produce such discrimination.

434 Pa. at 514, 254 A.2d at 29. Similarly, in Jadosh, supra, Justice O’Brien opined:

Although [I] dissented in Brown v. Travelers Ins. Co., 434 Pa. 507, 254 A.2d 27 (1969), and again in DeJesus, supra, where it was held that the insurance carrier is included within the term “employer” as it is used in Section 303 of the Workmen’s Compensation Act and, therefore, shares the employer’s immunity from common-law liability, the issue has been finally determined____ Appellant argues, however, that the statute was only intended to allow the insurer to share the immunities of the employer when the employer itself is concerned, not when the insurer is also involved as an independent contractor____ Why, asks the appellant rhetorically, should immunity be granted to a third party merely because it also happens to be the compensation insurer for the employer? We do not think the circumstances were all that coincidental. We believe the language of the statute is clear. PMA ... was acting as an insurer and is, therefore, entitled to all of the employer’s immunity under the act.

442 Pa. at 455-56, 275 A.2d at 61. In short, it is abundantly clear that the express language of section 305, coupled with judicial interpretation of that section in relation to section 303(a), confers all of the employer’s immunities and protections under the Act to the workmen’s compensation insurer.

The legal immunity which is afforded to employers and their compensation insurers extends not only to acts of negligence, but also to claims based on intentional, wanton and willful misconduct, such as those advanced in the case before us today. In Poyser v. Newman & Company, 514 Pa. 32, 522 A.2d 548 (1987), the appellant, Stephen Poyser, filed suit against his employer, seeking redress for physical injuries he suffered while in the course of his employment. Poyser claimed that Newman disregarded governmental safety regulations and deliberately exposed him to a known hazard. Having committed willful and wanton disregard for his safety, Poyser maintained that Newman’s actions rose to the level of an intentional tort, which should pierce the shield of immunity. Newman, on the other hand, asserted that it was immune from Poyser’s trespass action because of the exclusivity provision in section 303(a). The trial court agreed with Newman and granted its motion for judgment on the pleadings. We affirmed, and the supreme court did likewise, reasoning:

There is no Pennsylvania judicial authority supportive of the result the appellant seeks. The argument he presents is one based entirely on his view of the relationship between the Act and other laws and regulations which bear upon safety in the workplace____ It is true that the appellate courts of some other states have held that wanton and willful misconduct by an employer is tantamount to an intentional tort, and as such, prevents the operation of a statutory exclusive-remedy provision. It must be noted, however, that those cases rested on provisions in the state workmen’s compensation statutes which expressly preserved the right of an employee to sue in tort where his injury was caused by the employer’s intentional wrongdoing. There is no such provision in The Pennsylvania Workmen’s Compensation Act. The appellant’s argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act an exception the legislature did not see fit to put there. A reading of the Act will disclose that the legislature was not unmindful of the issue of intentionally caused harm____ Since it is clear that the legislature had the issue of intentional harm in mind, and yet did not mention it in connection with section 303(a), we are constrained to conclude that the legislature did not intend the result for which the appellant argues.

514 Pa. at 38, 522 A.2d at 551. Applying Poyser to a case where an employee allegedly sustained injuries as the result of the employer’s intentional failure to warn of the known dangers of toxic chemicals, we stated:

As [the Poyser ] decision makes clear, where employees sustain injuries during the course of employment as a result of an alleged intentional wrongdoing by their employer, the employees’ exclusive remedy is under the Workmen’s Compensation Act; a civil action in tort for the same injuries will not lie.

Blouse, 363 Pa. Super at 521, 526 A.2d at 801.

The immunity discussed above has recently been extended to civil tort actions arising from the handling of a worker’s compensation claim. In Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987), alloc. granted 516 Pa. 635, 533 A.2d 93 (1987), appeal dismissed 517 Pa. 460, 538 A.2d 495 (1988), Joann Rosipal, an employee at Montgomery Ward, sustained an injury on her employer’s premises while performing her duties as a security guard. Montgomery Ward filed a notice of compensation payable, and initiated wage indemnity payments. Almost two months later, Montgomery Ward, along with its workmen’s compensation carrier, Aetna Insurance Company, filed a petition for termination of compensation supported by a physician’s affidavit of recovery. Rosipal’s benefits were curtailed; however, following a hearing before a workmen’s compensation referee, compensation benefits were reinstated.

Rosipal then commenced a civil action against Montgomery Ward alleging economic duress, intentional infliction of emotional distress, procuring a “false, fraudulent and perjured affidavit [of recovery],” and breach of compensation agreement. In response, Montgomery Ward filed preliminary objections in the nature of a demurrer, averring that it was immune from Rosipal’s action pursuant to section 303(a) of the Act. The trial court overruled Montgomery Ward’s demurrer, and concluded that Rosipal’s claim “did not arise from an employment related accident such as would be covered by the Workmen’s Compensation Act.” Following a petition to review to this court, we reversed the order of the trial court, and sustained Montgomery Ward’s demurrer thereby dismissing the complaint.

In rejecting the trial court’s finding that the injury did not arise from an employment related accident such as would be covered by the Act, we stated:

We disagree with this analysis as the underlying factor in the present action is the alleged injury suffered by the employee while she was acting as a security guard. In the absence of the injury, there would have been no workmen’s compensation proceedings out of which the instant civil action arose.... The appellee has failed to state a cause of action in her complaint as all of the allegations have as the ultimate basis an injury compensable under the Workmen’s Compensation Act and her claims must be considered within the framework of the Act.

360 Pa.Super. at 573-74, 521 A.2d at 50-51 (emphasis added).

It is apparent from our supreme court’s pronouncement in Poyser, as well as our holdings in Blouse and Rosipal, that when employees sustain injuries during the course of their employment, because of an intentional wrongdoing by their employer, the employees’ exclusive remedy, for the injury itself or the handling of the claim, lies within the framework of the Workmen’s Compensation Act, not in a civil action sounding in tort. The express terms of section 305 extend this statutory immunity to workers’ compensation insurers, as well as to the employers of the injured worker.

Pennsylvania’s Workmen’s Compensation statute provides a host of administrative remedies for those claimants who believe their compensation has been wrongfully suspended or terminated by the workmen’s compensation insurer. Aggrieved claimants can receive interest on all past due compensation; litigation costs; and counsel fees where the insurer did not have a reasonable basis to contest the claim. In addition, they can receive remuneration for fees paid to witnesses, medical examinations, and lost time to attend the proceedings to contest the termination or suspension. Moreover, they may recover against the insurer in an amount up to twenty percent of the benefits due in cases of unreasonable or excessive delays. Those insurers who repeatedly or unreasonably fail to pay prompt compensation may have their license to transact business revoked or suspended by the Insurance Commissioner. See generally, 77 P.S. §§ 774.1-997. Thus, in addition to assuring quick, fair and certain compensation, our legislators also considered the plight of an injured worker who might be intimidated or disadvantaged by the superior bargaining position of an insurance company, and responded with sanctions and procedures designed to obviate the need for common law actions. This system may not be perfect, but its weaknesses should be cured by further legislation rather than the creation of a parallel scheme for judicial inquiry into an area so carefully legislated by our General Assembly. “Where statutory remedies are provided, the procedure prescribed by the statute must be strictly pursued to the exclusion of other methods of redress.” Interstate Traveler Services v. Commonwealth Department of Environmental Resources, 486 Pa. 536, 542, 406 A.2d 1020, 1023 (1979).

We are not unfamiliar with case law emanating from other jurisdictions which allow common law actions against workmen’s compensation insurers. See, e.g., R. Schnechter, Bad Faith Handling of Workers’ Compensation Claims: Demise of the Exclusivity Provision, 24 Trial 66 (1988); B. Lown, Remedies of Workers Compensation Claimants Against Workers’ Compensation Carriers, 30 New Hamp. B.J. 21 (1988). However, as Chief Justice Nix noted in Poyser, our lawmakers considered the issue of intentional acts while drafting our Workmen’s Compensation Act, and nonetheless decided to preclude civil tort actions stemming from those acts. Reconsideration of that policy determination is more appropriately left to the wisdom of our General Assembly, and not the courts. Addressing a claim similar to the one before us today, Chief Justice Phillips of the Texas Supreme Court cogently noted:

The Workers’ Compensation Act is by no means perfect, as recent criticisms from representatives of workers, employers, and insurers have made clear. Nonetheless, thousands of claims are resolved under its auspices every year. In this, it serves it primary legislative purposes of assuring certain and timely resolution of claims. In my view, this court’s [recognition of a cause of action against the workmen’s compensation insurer] invites the proliferation of lawsuits and the possibility of double recoveries and inconsistent findings of fact. To permit a tort remedy in addition to the remedies provided by statute betrays the bargain implicit in the Act and necessarily impairs the function of the compensation system.

Aranda v. Insurance Company of North America, — Tex. —, —, 748 S.W.2d 210, 218 (1988) (Phillips, C.J. dissenting). Having viewed all the evidence proffered in this case in the light most favorable to Alston, and resolving any doubts against entry of judgment, we conclude that Judge Hazel properly determined that appellees were entitled to judgment as a matter of law.

We also dismiss Alston’s claim that the trial court erred when it held appellees Williams and Vocational Services immune from suit. The social policies underpinning the grant of immunity to employers and their compensation insurers apply equally to those individuals employed by the insurer to review the case. To hold otherwise would thwart the clear legislative mandate of providing workmen’s compensation benefits as the employee’s exclusive remedy.

Order affirmed.

ROWLEY, J., files a dissenting statement and joins dissenting statement by JOHNSON, J.

Concurring and dissenting opinion by BROSKY, J.

Dissenting statement by JOHNSON, J.

MELINSON, J. joins dissenting statement by ROWLEY and JOHNSON, JJ.

BROSKY, Judge,

concurring and dissenting.

I am in general agreement with the dissenting members of the panel that the term “injury”, within the meaning of the Workmen’s Compensation Act, does not include fraudulent actions of an insurer as alleged here.

Thus, were an individual able to demonstrate that an insurer fraudulently deprived him or her out of benefits I would find such an action outside the scope of the Act and subject to redress in tort. However, I hesitate to join completely in dissent simply because the Workmen’s Compensation Appeal Board found that the insurer had a “reasonable contest.” This finding, which was neither appealed nor pursued further, it seems to me, would be preclusive of a fraud action in the present case since it would be res judicata in any subsequent proceedings, including the one contemplated here. I simply cannot see the appellant moving to trial in the face of a conclusive determination that the insurer had a reasonable contest to further workmen’s compensation claims. However, in general, I find the majority’s analysis quite suspect.

It is true that Pennsylvania is an industrialized state and that workmen’s compensation provides a useful purpose with mutual trade-offs by both employer and employee. However, nowhere within the concept of work related injury under the Act can you reasonably fit a fraudulent deprivation of a rightfully acquired benefit under the Act. Nor are the purposes of the Act furthered to any perceivable degree by providing a shield to insurers relating to post accident matters and unconnected to the workplace. Allowing a tort action against an insurer which happens to fraudulently deprive an individual of a benefit should not in any way hinder or impair industrial growth and operation, nor should it work to unfairly impose unlimited liability to a good faith employer for events occurring naturally during the course of operating a business. These are general purposes, on the employer’s side, for passage of the Act.

In contrast, preventing an individual from the subject action will in no way aid the injured employee in assuring fair and prompt monetary compensation for injury suffered in the workplace regardless of fault. This is the primary purpose for passage of the Act on the employee’s side and certainly it cannot be beneficial to this interest to limit the legal responsibility of an insurer who engages in fraudulent practices to limit its own expenditures to injured employees. Thus, I can concur only in the result reached by the majority.

ROWLEY, Judge,

dissenting.

I join the Dissenting Statement by Judge Johnson. I also join in the compelling analysis by Judge Brosky contained in the last two paragraphs of his Concurring and Dissenting Opinion. However, I do not agree with Judge Brosky’s conclusion that the findings by the Workmen’s Compensation Appeal Board are res judicata as to the claims asserted by appellants in the present case.

MELINSON, J., joins.

JOHNSON, Judge,

dissenting.

For the reasons set forth in my Dissenting Opinion in Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987), and because I continue to believe that Kuney v. PMA Insurance Company, 379 Pa.Super. 598, 550 A.2d 1009 (1989) (pet. for alloc, filed at 241 E.D. Allocatur Docket 1989, 3-13-89) is a correct statement of the law, I must dissent.

I cannot believe that our legislature intended the use of the word “injury” in the Workers’ Compensation Act to encompass intentional fraudulent acts of insurance companies and their employes designed to deny benefits due Pennsylvania workers.. Cf., Reed v. Hartford Accident and Indemnity Co., 367 F.Supp. 134 (E.D.Pa.1973).

MELINSON, J., joins.

      . In dismissing Alston’s claims, we expressly overrule our panel decision in Kuney v. PMA Insurance Company, 379 Pa.Super. 598, 550 A.2d 1009 (1988). The majority in Kuney relied upon Reed v. Hartford Indemnity Company, 367 F.Supp. 134 (E.D.Pa.1973), in finding that the immunity provided to employers under the Workmen’s Compensation Act did not extend to an insurer when its conduct was "separate and apart” from claimant’s work-related injury. We note, however, that after the injuries occurred which gave rise to the Reed case, the Pennsylvania Workmen’s Compensation Act underwent a substantial revision. In 1972, the General Assembly eliminated the phrase “accident in the course of employment,” and broadened the language to encompass "an injury to an employee ... arising in the scope of his employment and related thereto.” 77 P.S. § 411(1). Without the "accident” language, the employee could no longer avoid the exclusive remedy provision by showing that the injury did not arise from an "accident." See Note, Intentional Employer Misconduct and Pennsylvania's Exclusive Remedy Rule after Poyser v. Newman & Co.: A Proposal for Legislative Reform, 49 U.Pitt.L.Rev. 1127, 1129 (1988). More importantly, Kuney contravenes the express statutory language contained in section 305, and our supreme court’s mandate in Poyser.


author: CAVANAUGH, Judge:

text:
    567 A.2d 671
    COMMONWEALTH of Pennsylvania, Appellee, v. Max B. BASLICK, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 16, 1989.
    Filed Dec. 11, 1989.
    Michael M. Apfelbaum, Sunbury, for appellant.
    Before CAVANAUGH, MONTEMURO and POPOVICH, JJ.
   CAVANAUGH, Judge:

The present appeal is from a sentence of a fine for vehicular speeding in violation of the vehicle code. The trial court found the appellant, Max E. Baslick, guilty in a trial de novo after an appeal from a summary conviction. The speeding citation was issued after observation of appellant’s tractor trailer by a trooper aboard an aircraft which was on aerial patrol over the Pennsylvania Turnpike. Appellant argues that we should reverse the conviction because of an alleged discrepancy in the color identification of the vehicle as reported and recorded by the aerial observer and the trooper on the highway who issued the citation. The air and ground personnel maintained radio contact. Appellant fails to articulate whether his argument is that the evidence was insufficient or whether the verdict is against the weight of the evidence. We have nevertheless reviewed the record under both standards and find no merit to the appeal. The argument as to a conflict in the color description of the offending vehicle was but a single factor in the trial before the court. The court resolved all issues of credibility in favor of the Commonwealth and found that appellant’s vehicle was continuously observed from the time the speeding was timed until it was stopped by the officer on the highway.

Appellant’s sole citation of authority is the case of Commonwealth v. LaPaglia, 22 D & C 3d 28 (1981) wherein the court in an aerial surveillance speeding case held:

Accordingly, because of the misgivings we have already expressed as to the inherent difficulties with the method of identification here used, we hold that it is so fraught with risk of innocent error that it must be scrutinized with care and received with caution before being accepted as true by the factfinder. Commonwealth v. LaPaglia, 22 D & C 3d, 34.

We disagree and see no reason for a stricter standard of proof in aerial observation speed cases. The testimony in this case from the trooper was that he was a passenger in the aircraft in the “air enforcement program” when he observed appellant’s vehicle travelling at a speed noticeably greater than the rate of other traffic, thereafter he recorded the time elapsed while the truck passed between several marked (and duly certified) distance markers on the surface of the turnpike. The officer testified:

Q. While you were observing this vehicle pass over these lines, what did you do?
A. As the front of the tractor trailer combination approached the first set of lines, which was at mile post marker 270.0, and as it then crossed it, I activated my stopwatch, an electronic stopwatch which I had there in the aircraft, and permitted that instrument to continue to function until the front of that tractor trailer combination crossed over the second line. It was in the left lane throughout that period of time, and that second location was at mile post marker 270.6 eastbound.
Q. And after you made that observation what did you do?
A. As the front of its passed over the second line, I deactivated the instrument and looked at the digital readout to observe the elapsed time over that three-tenths mile.
Q. And what was the elapsed time over that three-tenth of a mile?
A. The elapsed time over the three-tenths mile was 14.9 seconds.
Q. And from that information, were you able to determine the speed at which that vehicle was travelling?
A. I knew from that elapsed time that the vehicle was worthy of continued observation in that it was a shorter elapsed time than would normally be the case with a speed of fifty-five miles per hour.
Q. And did you determine how fast the vehicle was going?
A. Yes, sir. After I had confirmed that the vehicle that I checked was subsequently pulled over by my associate, Trooper Ferry, I checked the precalculated chart to determine what was the actual rate of speed over that given distance of three-tenths mile with an elapsed time of 14.9 seconds. And using the standard scientific equation of speed is equal to the distance over the time, those two factors being known, I determined that the rate of speed was 72.4 miles per hour.
Q. The watch which you were using, what type of watch was it?
A. This was a Heuer stopwatch.
Q. And is that stopwatch authorized to be used by the Pennsylvania Department of Transportation?
A. Yes, sir, it is. It is an approved type.

The accuracy of the watch was duly certified. As to the identity of the vehicle he stated:

I was constantly aware of the vehicle that I had checked and watched it constantly and continuously until I confirmed to Trooper Ferry that it was pulled over and was the correct vehicle.
Q. So the vehicle that you timed is the vehicle that Trooper Ferry pulled over.
A. Yes, sir. Indeed, it was.

While, of course, credibility is an issue for the factfinder, we see nothing in the circumstances of these cases which would require that we adopt a more strict standard of proof or requirement of heightened scrutiny simply because the citation was issued as the result of aerial observation. To the extent that the LaPaglia decision requires a stricter standard of proof in cases where motor vehicle speeding prosecutions are based upon aerial observation, it is overruled.

Judgment of sentence affirmed.

      . The violation is determined by measurement, (with the use of a certified stopwatch), of time elapsed while a vehicle passes between marked portions of the highway at posted mile markers.


author: CERCONE, Judge:

text:
    567 A.2d 673
    COMMONWEALTH of Pennsylvania v. William D. NELSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 18, 1989.
    Filed Dec. 13, 1989.

      Maryann F. Swift, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Beforé ROWLEY, KELLY and CERCONE, JJ.
   CERCONE, Judge:

Appellant, William D. Nelson, was charged with recklessly endangering another person, theft by unlawful taking or disposition, theft by receiving stolen property, simple assault, robbery, possessing an instrument of crime generally and possessing an instrument of crime in the form of a concealed instrument. After a jury trial, appellant was convicted of all counts. Motions for new trial and in arrest of judgment were filed timely, argued and denied. Appellant was sentenced to five (5) to ten (10) years incarceration on the robbery count and a concurrent term of one (1) to five (5) years incarceration for the two offenses related to possessing an instrument of crime. For the purposes of sentencing, the other crimes merged with the robbery offense.

Trial counsel timely filed a notice of appeal, but we dismissed this appeal when he failed to file a brief on appellant’s behalf. After appellant filed a petition under the Post-Conviction Relief Act, (hereinafter referred to as “PCRA”), the PCRA court reinstated his appellate rights. New counsel filed a notice of appeal and instant counsel was appointed to represent appellant. We affirm the judgment of sentence.

As determined by the lower court, the facts underlying this case are as follows. On November 10, 1985, at approximately 6:30 p.m., the appellant, armed with a gun entered the Mobil gas station at Roosevelt Boulevard and Rhawn Street in Philadelphia County and proceeded to rob the gas station attendant at gunpoint. The armed man forced the gas station attendant to open up the cash register and empty its contents, along with rolls of change not in the cash register, into a plastic bag. The amount of money taken was in excess of $200.

Appellant raises six issues for our review: (1) whether the lower court erred in not granting a continuance to allow an alibi witness to testify when she was out of the jurisdiction but was expected to return within a week of the trial date; (2) whether trial counsel was ineffective for failing to file a notice of alibi witness and for failing to argue the first issue in post-trial motions; (3) whether the trial court erred in allowing the Commonwealth to introduce evidence of a prior robbery under the identification exception to the general rule that evidence of prior criminal conduct is not admissible to prove guilt; (4) whether the lower court erred in not using a jury instruction requested by appellant; (5) whether the trial counsel was ineffective for failing to argue the fourth issue in post-trial motions; and (6) whether the prosecutor committed prosecutorial misconduct when in closing he referred to a prior proceeding at which the fairness of the identification was determined. We will address each issue seriatim.

Appellant’s initial claim is that the lower court erred in not granting a continuance to allow an alibi witness to testify. Appellant alleges in his brief that the witness was out of the jurisdiction but expected to return within a week of the trial date. Initially, we note that there is nothing in the record to indicate that appellant requested a continuance. We must decide a case on the basis of the facts of record and not on allegations of fact contained in a party’s appeal brief. Commonwealth v. Marchesano, 348 Pa.Super. 387, 502 A.2d 597 (1985), order vacated on other grounds, Commonwealth v. Marchesano, 519 Pa. 1, 544 A.2d 1333 (1988). Further, although this issue was included in appellant’s post-verdict motions, it was not briefed or argued. We are required to deem those issues identified on appeal but unsupported by argument in the brief to have been abandoned. Commonwealth v. Jackson, 494 Pa. 457, 459 n. 1, 431 A.2d 944, 945 n. 1 (1981); Commonwealth v. Gibbons, 379 Pa.Super. 285, 295, 549 A.2d 1296, 1301 (1988); Pa. R.A.P., Rule 2119, 42 Pa. C.S.A. In the lower court opinion, the trial judge concluded that this issue was waived for this reason. We agree with the lower court and find that the appellant waived his right to appellate review on this issue.

Appellant’s second argument involves a claim of ineffective assistance of trial counsel. Claims of ineffectiveness of counsel are subject to a three part analysis. First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. Commonwealth v. Tavares, 382 Pa.Super. 317, 321, 555 A.2d 199, 201 (1989) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. Commonwealth v. Chin, 373 Pa.Super. 163, 540 A.2d 573 (1988). Counsel will not be deemed ineffective for failing to assert a baseless claim. Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173, (1985); Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989). Since appellant’s contention is that his trial counsel was ineffective for failing to file a notice of alibi witness and for failing to argue the first issue in post-trial motions, we must consider the underlying merits of the first issue.

An “alibi” is a defense that places the defendant at the relevant time in a different place than the scene involved and so far removed therefrom as to render it impossible for him to be the guilty party. Commonwealth v. Pounds, 490 Pa. 621, 631, 417 A.2d 597, 602 (1980) quoting Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963). In the instant case, appellant alleges that if given the opportunity, his aunt would have testified that on the date of the crime, he had been staying with her in her Pennsauken, New Jersey home for approximately two weeks. First, we note that appellant had sufficient time to ensure that his aunt was present for the trial so that she could testify as to this alibi defense. Second, we have no indication of what prevented her from being present at the trial other than that she was out of the jurisdiction. Further, appellant does not allege that his aunt would be able to place him with her at the exact time in question. Appellant instead vaguely indicates that he was living with her for two weeks at the relevant time. Finally, appellant could have testified on his own behalf and asserted this alibi defense. While appellant had this opportunity, he did not attempt to offer this defense himself. He instead chose to exercise his right not to testify.

Based on the limited information before us, and assuming arguendo, that there was a motion for continuance, we find that the lower court did not abuse its discretion in denying the motion for continuance. Appellant has not shown that his aunt would qualify as an alibi witness. Under these circumstances, we cannot say that trial counsel’s failure to file a notice of alibi witness and to argue this issue in post-trial motions was an unreasonable decision as it relates to the alibi defense. Commonwealth v. Early, 377 Pa.Super. 219, 546 A.2d 1236 (1988) (wherein we held that robbery defendant’s counsel was not ineffective for failing to call alibi witness absent showing that witness would have testified unequivocally as to defendant’s whereabouts at time of crime).

Appellant’s third claim is that the trial court erred in allowing the Commonwealth to introduce evidence of a prior robbery. As a general rule, evidence of one crime is inadmissible against a defendant being tried for another crime because the fact of the commission of one offense is not proof of the commission of another. Commonwealth v. Clayton, 506 Pa. 24, 483 A.2d 1345 (1984). Exceptions to this rule exist such that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (8) 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, i.e. where there is such a logical connection between the crimes that the proof of one will naturally tend to show that the accused is the person who committed the other. Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). Additional exceptions are applicable if the probative value of the evidence outweighs the tendency to prejudice the jury. Commonwealth v. Banks, 513 Pa. 318, 521 A.2d 1 (1987), cert. den. Banks v. Pennsylvania, 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1988). Even if a particular exception applies, the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984), appeal after remand, 343 Pa.Super. 189, 494 A.2d 420 (1985) overruled on other grounds by Commonwealth v. Anderson, 379 Pa.Super. 589, 550 A.2d 807 (1988). A trial court’s decision to admit evidence of other crimes committed by a defendant will not be reversed on appeal unless the trial court abused its discretion. Commonwealth v. Green, 351 Pa.Super. 170, 505 A.2d 321 (1986).

In the case presently before us, the lower court permitted the Commonwealth to introduce evidence with regard to a previous robbery that the appellant allegedly committed. However, the lower court specifically instructed the jury as to the limited purpose for which this evidence was admitted and directed them not to consider the prior occurrence in reaching their decision in the instant case. The similarities between these two crimes are as follows: (1) they both occurred at Mobil gasoline service stations; (2) both stations were on Roosevelt Boulevard; (8) the stations were within a quarter mile of each other; (4) both robberies occurred within a week of each other; (5) both incidents involved a young black male; (6) the robber exclaimed: “This is a holdup” in both cases; (7) there was a tendency to socialize with the victim in each instance; (8) a chrome-plated revolver was used in both robberies; and (9) the perpetrator in each case provided a plastic bag to his victim to contain the money. In addition, appellant was positively identified by the two victims, i.e. the gas station attendant from each of the two Mobil stations.

Appellant attempts to undermine the significance of these identifications by pointing out that one victim described the robber as being 5’10” and 150 pounds while the other victim described him as being 5’8” and 150 to 180 pounds. Appellant alleges that he is actually 5’4” and 121 pounds and the victims must have incorrectly identified him as the robber. Trial counsel thoroughly cross-examined each of the victims on this discrepancy at trial. In response to this questioning, the victims explained that they concentrated more on the robber’s facial characteristics than on his height and weight. One of the victims further testified that he was not a good judge of height and weight.

We are not persuaded by appellant’s concern with regard to this distinction. It is reasonable that the jury believed the victims’ explanation for their poor estimate of the perpetrator’s height and weight. It is within the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded to the evidence produced. Commonwealth v. Favinger, 358 Pa.Super. 245, 516 A.2d 1386 (1986). We will not engage in a reevaluation of the testimony of witnesses found credible by the jury. Commonwealth v. Nelson, 337 Pa.Super. 292, 486 A.2d 1340 (1984). The decision of the fact finder with respect to the credibility of a witness will not be disturbed unless the evidence offered is so unreliable and/or contrary as to make any verdict based thereon pure conjecture. Commonwealth v. Kerston, 333 Pa.Super. 343, 482 A.2d 600 (1984). It is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Commonwealth v. Lyons, 382 Pa.Super. 438, 555 A.2d 920 (1989).

Based on the fact that the lower court instructed the jury as to the limited purpose of the admission of evidence of the prior occurrence, the similarities set forth above and the positive identification of the appellant by the victims, we find that the lower court did not abuse its discretion by permitting the Commonwealth to introduce evidence with regard to the previous robbery. See Commonwealth v. Zigler, 353 Pa.Super. 168, 509 A.2d 389 (1986) (wherein we held that evidence of other crimes is admissible where the proof of one crime naturally tends to show who committed the other crime). Finding no merit to appellant’s third contention, we affirm the decision of the lower court on this issue.

Appellant’s fourth argument is that the lower court erred in not using a jury instruction requested by appellant on the issue of identification testimony. However, it is well settled that the trial court is not required to accept language submitted by counsel but rather is free to select its own form of expression in instructing the jury. Commonwealth v. Smith, 511 Pa. 343, 513 A.2d 1371 (1986) cert. den. sub nom. Smith v. Pennsylvania, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987). It is equally well settled that there is no right to a particular form of instruction. Commonwealth v. Alvin, 357 Pa.Super. 509, 518, 516 A.2d 376, 381 (1986) (en banc) allocatur den. 515 Pa. 603, 529 A.2d 1078 (1987). Upon review, jury instructions must be read and considered as a whole; error cannot be predicated on isolated excerpts as it is the general effect of the charge that controls. Commonwealth v. Woodward, 483 Pa. 1, 394 A.2d 508 (1978). The only issue we may consider on appeal is whether the jury instruction framed by the lower court adequately and accurately presents the relevant law of Pennsylvania. Commonwealth v. McComb, 462 Pa. 504, 509, 341 A.2d 496, 498 (1975); Commonwealth v. Bryant, 316 Pa.Super. 46, 462 A.2d 785 (1983)

In the instant case, it is clear from reading the entire charge on identification evidence that no prejudicial error was committed. The trial judge began his instruction by noting that a mistake can be made in identifying a person even by a witness who is attempting to be truthful. The lower court then set forth the factors to consider in determining whether or not to accept as accurate the identification testimony. Finally, the trial judge explained that the jury must make the determination as to the credibility of the testimony presented to them by both Commonwealth and defense witnesses. We see no error in the lower court’s presentation, nor has appellant drawn our attention to any specific error of law. Finding no merit to appellant’s fourth contention, we necessarily reject his fifth argument that trial counsel was ineffective for failing to argue this issue in post-trial motions. See Commonwealth v. Silo, 509 Pa. 406, 502 A.2d 173, (1985) and Commonwealth v. Cook, 383 Pa.Super. 615, 557 A.2d 421 (1989) (counsel will not be deemed ineffective for failing to assert a baseless claim).

The final issue before us is whether the prosecutor committed prosecutorial misconduct when in closing he referred to a prior proceeding at which the fairness of the identification was determined. The decision of whether the language employed by a prosecutor has violated the standards of permissible conduct is not for the appellate court to make. Commonwealth v. D’Amato, 514 Pa. 471, 489-91, 526 A.2d 300, 309 (1987). Rather, it is the duty of the trial judge to rule upon prosecutorial comments. Id. Our scope of review on appeal is limited to whether the trial court abused its discretion in making this determination. Id.; Commonwealth v. Brawner, 381 Pa.Super. 265, 276, 553 A.2d 458, 462-63 (1989). When appropriateness of a prosecutor’s statement is in question, a new trial will not be granted unless it is inevitable that the prosecutor’s remark prejudices defendant to such a degree that it prevents the jury from weighing the evidence and rendering a true verdict. Commonwealth v. Sheaff, 365 Pa.Super. 613, 530 A.2d 480 (1987). Not every improper remark made by a prosecutor requires granting of a new trial and allegedly improper remarks must be read in the context of the case as a whole, with a particular view to the evidence presented and reasonable inferences drawn therefrom, in order to determine whether they are indeed prejudicial. Commonwealth v. Dennis, 313 Pa.Super. 415, 460 A.2d 255 (1983). All reasonable inferences that may be derived from the evidence presented are permissible. Commonwealth v. Beasley, 504 Pa. 485, 495, 475 A.2d 730, 736 (1984).

In the instant case, appellant complains that there was prosecutorial misconduct during the Commonwealth’s closing argument. Specifically, appellant alleges that the assistant district attorney committed prosecutorial misconduct when in closing he told the jury that the identification of appellant by the witnesses was not suggestive as the Judge had already ruled on the issue during pretrial omnibus motions. During closing argument, the prosecutor actually stated:

Now, the defense attorney read you some lines of a famous case called United States v. Wade, about the vagaries or problems you run into of identification. We know that. That’s why we had a hearing before this case, to decide whether there was anything unfair about the identification.

Before the prosecutor could continue with this argument, defense counsel immediately objected and asked for a mistrial. The decision of whether to declare a mistrial of a criminal prosecution is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Larkins, 340 Pa.Super. 56, 489 A.2d 837 (1985). The trial judge denied the motion for a mistrial, but carefully instructed the jury that they were not to consider any reference to any hearing that took place prior to the beginning of the trial. He also cautioned the prosecutor that he was not to make any further references to anything of this nature in his argument. The assistant district attorney complied with the lower court’s instruction and refrained from making any further such references. We agree with the lower court that this problem was resolved during the course of the trial. There was no need for the lower court to declare a mistrial. Trial counsel properly objected and the trial judge took the necessary action to correct the prosecutor’s attempt at misconduct. The lower court did not abuse its discretion in denying appellant’s motion for a mistrial. We affirm the decision of the lower court on this issue.

Judgment of sentence affirmed.

      . 18 Pa. C.S.A. § 2705.

      . Id. § 3921.

      . Id. § 3925.

      . Id. § 2701.

      . Id. § 3701.

      . Id. § 907(a).

      . Id. § 907(b).

      . Although the lower court in its opinion indicates that the armed man had a paper bag, both the Commonwealth and the appellant correctly point out that the testimony established that it was a plastic bag. This inaccuracy on the part of the lower court as to this particular fact does not affect the result reached.