text:
    561 A.2d 812
    Carl HELM, Appellant, v. EAGLE DOWNS-KEYSTONE RACETRACK, J.E. Burke Co., Reed Associates, Boops Aluminum Castings and Q Cast Aluminum, Appellees.
    Superior Court of Pennsylvania.
    Argued June 6, 1989.
    Filed Aug. 2, 1989.

      Anthony A. Witlin, Philadelphia, for appellant.
    Angelo L. Scaricamazza, Jr., Philadelphia, for appellees.
    Before CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   MONTEMURO, Judge:

The appellant, Carl Helm, appeals from an order of the Court of Common Pleas of Philadelphia County granting the appellee, Eagle-Downs Keystone Racetrack, a new trial on the issue of damages. For the following reasons, we affirm.

On October 11, 1984, the appellant filed a complaint in trespass against the appellee. In his complaint, the appellant alleged that while a patron at Eagle-Downs Keystone Racetrack, he was injured when the bench on which he was seated collapsed and damaged his right Achilles tendon. On March 23, 1988, following a jury trial, the appellant was awarded $90,000.00 in damages. ($3,000.00 for past medical expenses; $27,000.00 for past pain and suffering; and $60,-000. 00 for future pain and suffering) At trial, the court had instructed the jury that pursuant to certain mortality tables they could calculate that the appellant could be expected to live an additional twenty-five (25) years for purposes of assessing his damages for future pain and suffering. Subsequently, the appellee filed timely post-verdict motions alleging inter alia that the trial court’s use of mortality tables was improper and warranted the grant of a new trial. On January 3, 1989, the trial court agreed and granted the appellee’s request for a new trial. However, the court limited its grant of a new trial only to the issue of damages. Specifically, the trial court held that its use of mortality tables was improper because it failed to also instruct the jury that certain variables might affect an individual’s life expectancy, and therefore, the jury’s rigid application of these tables may have improperly influenced its damage award.

It is well settled that mortality tables are admissible in Pennsylvania for the purpose of determining a plaintiff’s future damages. Rosche v. McCoy, 397 Pa. 615, 627, 156 A.2d 307, 313 (1959). However, in instructing the jury on the use of such tables, the court is required to instruct the jury that certain variables must be taken into consideration in determining the possible duration of life. McKniff v. Wilson, 404 Pa. 647, 653, 172 A.2d 801, 804 (1961). The court’s instructions must include a survey of such matters as sex, prior state of health, nature of daily employment, and its perils, if any, manner of living, personal habits, individual characteristics, and other facts concerning the injured party which may affect the duration of his or her life. Rosche, supra, 397 Pa. at 627, 156 A.2d at 313. Since mortality tables are not to be applied rigidly, failure to adequately instruct the jury on their use constitutes reversible error and warrants the grant of a new trial on the issue of damages. McKniff, supra. Moreover, the decision on whether or not to grant a new trial is committed to the sound discretion of the trial court, and such a decision will not be reversed on appeal absent a showing that the trial court committed an error of law or palpably abused its discretion. Ecksel v. Orleans Construction Company, 360 Pa.Super. 119, 519 A.2d 1021 (1987).

In the present case, the court instructed the jury on the use of mortality tables as follows:

THE COURT: Ladies and gentlemen, with respect to future pain and suffering, there are standard life tables which have been issued by the [sic] government agency and which the court now takes judicial notice, which indicate that a man of Mr. Helm’s age, now 47, has a life expectancy statistically of 25 years. That does not mean that you have to use that figure. You could determine, if you feel it to be inappropriate under the evidence that you have heard or seen, that you would expect him to live longer or less long, that the statistical life expectancy is 25 years for a person of Mr. Helm’s status.

Trial Court Opinion at 10-11). Clearly, the trial court’s instructions on the use of these life expectancy tables was inadequate. The court failed to inform the jury that certain factors may affect the duration of the appellant’s life. Consequently, we concur with the trial court’s determination that its failure to instruct the jury on the proper use of these mortality tables may have improperly influenced their assessment of the appellant’s damages for future pain and suffering.

On appeal, the appellant maintains that the court’s instructions on the proper use of these mortality tables was correct. Specifically, the appellant asserts that there was no evidence adduced at trial which would limit the strict application of these tables. We disagree. The record is replete with references to a number of factors which may have an impact on the duration of the appellant’s life. The appellant testified that prior to this accident he exercised frequently and was in excellent physical condition. However, the appellant testified that since this accident he has been unable to exercise or participate in any of the activities he enjoyed prior to being injured. Additionally, the appellant stated that his quality of life has unquestionably diminished since this accident. We also note that the record contains a number of references to the nature of the appellant’s employment, his marital situation as well as his prior and current state of health. All of these factors may or may not have an affect on the appellant’s life expectancy. Nevertheless, they should have been presented to the jury for them to consider in conjunction with their evaluation of the aforementioned mortality tables. McKniff, supra. Therefore, we perceive no abuse of discretion in the trial court’s decision to grant the appellee a new trial on the issue of damages.

Order Affirmed.

      . We note that the appellee, Eagle-Downs Keystone Racetrack, is the only defendant still a party to this litigation.


source: Caselaw Access Project

author: BROSKY, Judge:

license: Public Domain

text:
    561 A.2d 1231
    James R. MARTIN, Appellant v. Grace G. MARTIN.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1989.
    Filed July 7, 1989.

      Michael A. Johnson, Mount Pleasant, for appellant.
    Joseph M. George, Uniontown, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, McEWEN, OLSZEWSKI, BECK, TAMILIA, POPOVICH and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the Order of the trial court granting the parties a decree in divorce and directing an award of equitable distribution between the parties.

Appellant raises the following issues for our consideration: (1) whether the trial court had the jurisdictional ability to make the Order it did; and (2) whether the trial court properly held that appellant’s Veteran’s Disability Compensation Benefits constituted marital property subject to equitable distribution under the Pennsylvania Divorce Code.

For the reasons that follow, we now vacate that part of the order as it pertains to equitable distribution, and remand for further proceedings consistent with this opinion. The provision in the order which grants the parties’ divorce is affirmed.

Appellant-husband and appellee-wife were married on June 17, 1950. Eleven children were born of the marriage; nine are surviving. During the majority of the time that the parties lived together appellant was a member of the Armed Services. In 1983 appellant filed a complaint in divorce alleging that the parties had been separated for a period in excess of three years and that the marriage was irretrievably broken.

Appellee made a claim for equitable distribution which was referred to the Master. A hearing was held on the matter on April 29,1987. At the hearing appellant testified that he was forced to terminate his service with the U.S. Air Force because of a physically disabling injury received while in the Air Force. The monies he has received since his termination have been in the form of Veteran’s Administration Disability Compensation Benefits, and not military retirement pay.

On September 11, 1987, the Master filed a report and recommendation, wherein he concluded that appellant’s Veteran’s Administration Disability Compensation Benefits are marital property subject to equitable distribution, and awarded 60 percent of the benefits to appellant and 40 percent to appellee.

Appellant filed exceptions to the Master’s report. The trial court, however, dismissed the exceptions and adopted the recommendations of the Master. This appeal followed.

The determination of whether appellant’s disability pay is distributable as marital property ultimately revolves around the interplay of Federal and Pennsylvania law. Both parties present law which, they contend, and with which we would agree, supports their position that appellant’s disability pay is or is not subject to distribution. According to appellant, federal law (the Uniformed Services Former Spouse’s Protection Act) prohibits distribution of his disability benefits. Appellee, asserts, however, that distribution is allowable and called for under Pennsylvania law.

Generally speaking, in matters of a domestic nature, including divorce and property settlement, the Federal government and courts refrain from infringing upon or impinging on the individual states authority to govern such matters. On certain occasions, however, there is a deviation from the general position. The matter of military pensions is one area where such a deviation has occurred.

Previously, under then governing federal law, military retirement pay was completely excluded from possible distribution as marital or community property, and although certain state laws purported to consider such retirement pay differently, the inability of the states to alter this treatment was determined by the United States Supreme Court in its decision in McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). The Court reasoned that to allow the states to alter the non-divisible status of such retirement pay would do “clear damage” to the Congressional intent that such pay reach the veteran and no one else. The Court thus concluded that to the extent a state law conflicted with federal law on divisibility of military pensions by considering such pension a marital asset, the state law was pre-empted by the Federal law. The Court did opine, however, that if Congress felt otherwise it was free to change the statutory framework governing the matter.

In response to the McCarty decision, Congress passed the Uniformed Services Former Spouses Protection Act which loosened or modified the non-divisible stance previously espoused. Under the Act, at 10 U.S.C. § 1408(c)(1), a service member’s “disposable retired ... pay ” may be treated “as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction.” Thus, the new Act allowed the states to decide whether or not such retirement pay shall be divisible as marital property.

Appellant argues, however, that disability pay, and retirement pay waived in order to receive disability pay, are exempt from the scope of the Former Spouses Protection Act and thus, retain a non-divisible status. It is exempt, it is argued, because it is explicitly excluded from the definition of disposable retired pay and thus, not of the class which the states are free to treat as marital property.

“Disposable retired pay” is defined by the Act as follows:
(4) “Disposable retired ... pay ” means the total monthly retired ... pay to which a member is entitled ... less amounts which—
(B) are required by law to be and are deducted from the retired ... pay of such member, including fines and forfeitures by court-martial,. Federal employment taxes, and amounts waived in order to receive compensation under ... title 88.

10 U.S.C.S. §§ 1408(a)(4)(B) (emphasis added). Under the statutory scheme, in order for a service member to obtain the V.A. disability benefits to which he is entitled, the member has to waive the amount of his retired pay equal to the amount of Y.A. disability compensation he is entitled to receive. Instantly, appellant had to waive all of his pension in order to receive disability benefits, as the disability represented a larger sum than his pension. And since, according to the federal statute, the amount of pension waived in order to receive disability compensation is expressly disallowed as distributable income, appellant would have no “disposable retired pay”, within the terms of the Act, to speak of.

Additionally, and important to our analysis as we shall soon disclose, 38 U.S.C.S. § 3101(a) states the following:

§ 3101. Nonassignability and exempt status of benefits
(a) Payments of benefits due or to become due under any law administered by the Veterans’ Administration shall not be assignable except to the extent specifically authorized by law, and such payments made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claim of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary____

This, presumably, would also act as a bar to distribution of appellant’s disability benefits.

The Pennsylvania Divorce Code, however, takes a different approach toward disability benefits, and appellee asserts that its provisions support the actions of the trial court. 23 P.S. § 401(e)(6) states:

For purposes of this chapter only, “marital property” means all property acquired by either party during the marriage except:
Veterans’ benefits exempt from attachment or seizure pursuant to the Act of September 2, 1958 public law 85-857, 72 statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive veterans’ compensation, (emphasis added).

Appellant’s VA compensation is exempt from attachment under § 3101 quoted above and, as such, under the first part of the above quoted portion of the Divorce Code, would likewise be excluded from marital property. However, appellant’s compensation is brought back within the definition of marital property due to the fact that appellant waived retirement pay in order to receive it. Thus, it appears that the Pennsylvania statute is in direct conflict with 10 U.S. C.S. § 1408(a)(4), in that it expressly includes as distributable property those benefits received as a result of having waived military retirement pay. It was this provision upon which the Master and the trial court relied when permitting distribution of appellant’s disability benefits. Thus, we turn to the matter of resolving the conflict between federal and state law.

The United States Supreme Court has explained the right of state law to control as follows:

Insofar as marriage is within temporary control, the States lay on the guiding hand. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-594, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890). Federal courts repeatedly have declined to assert jurisdiction over divorces that presented no federal question. See, e.g., Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 50 S.Ct. 154, 74 L.Ed. 489 (1930). On the rare occasion when state family law has come into conflict with a federal statute, this Court has limited review under the Supremacy Clause to a determination whether Congress has “positively required by direct enactment” that state law be pre-empted. Wetmore v. Markoe, 196 U.S. 68, 77, 25 S.Ct. 172, 176, 49 L.Ed. 390 (1904). A mere conflict in words is not sufficient. State family and family-property law must do “major damage” to “clear and substantial” federal interests before the Supremacy Clause will demand that state law be overriden. United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 507, 15 L.Ed.2d 404 (1966).

Hisquierdo v. Hisquierdo, 439 U.S. 572, 99 S.Ct. 802, 808, 59 L.Ed.2d 1 (1979). Further, the Supreme Court stated: “[t]he approach must be practical. The federal nature of the benefits does not by itself, proscribe the entire field of state control ... The pertinent questions are whether the right as asserted conflicts with the express terms of federal law and whether its consequences sufficiently injure the objectives of the federal program to require non recognition.” Id. 99 S.Ct. at 809.

Hisquierdo involved the issue of whether Railroad Retirement Act benefits are divisible as community property in a divorce proceeding. There, the Court held that such payments were not to be considered community property as that would defeat the purpose of the Railroad Retirement Act. The Court reasoned that the Act was passed with the intention of providing an incentive for the employee to retire, and that by permitting that retirement amount to be diminished, it would frustrate the congressional objective. Further, the Court pointed out that, when passing the Act, Congress gave consideration to awarding a benefit to a divorced spouse but rejected the idea based upon the “perilous state of the Railroad Retirement Account, and the need to devote funds to other purposes.” Id. at 810.

There would appear to be little question as to whether or not state law regarding military pensions is pre-empted by Federal law to the extent the two are at odds. The previous discussion of McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981), which barred states from recognizing the community interest in nondisability, military retirement benefits, speaks quite definitively on the issue in an affirmative fashion. The question remaining relevant to our decision here is the effect of passage of the Former Spouses Protection Act upon the issue of pre-emption. This question has been decided by the recent decision in Mansell v. Mansell, —- U.S. —, 109 S.Ct. 2023, 104 L.Ed.2d 675 (1989).

The effect of the former Spouses Protection Act upon the pre-emption question was determined in a case out of California with very similar facts to the present case. In Mansell, the United States Supreme Court considered the distribution, per an agreement of the spouses, of military disability pay and retirement pay. Appellant had challenged the arrangement and argued, to no avail, in California court, that the Former Spouses Protection Act did not allow the division of retirement pay waived in order to receive disability pay.

The United States Supreme Court held in Mansell, supra, that although the Act had been passed to modify the position of federal pre-emption set forth in McCarty, the Act did not restore authority to the states to determine questions of divisibility as to all types of military retirement pay. The Act, they concluded, authorized that discretion only as to “disposable retired or retainer pay” and further held that, since that term expressly excluded from its scope retirement pay waived to receive disability pay, the states were without authority to divide that property. Their statement in this regard was quite unequivocal.

For the reasons stated above, we hold that the Former Spouses Protection Act does not grant state courts the power to treat, as property divisible upon divorce, military retirement pay that has been waived to receive veterans disability benefits. Id., — U.S. at —, 109 S.Ct. at 2031.

As such, it is clear that to the extent Pennsylvania’s Divorce Code allows equitable distribution of VA disability retirement pay, or pay waived to receive disability pay, the Code is pre-empted by federal law and cannot be given effect. Therefore, we must vacate the order of equitable distribution and remand this case to the trial court for a re-determination of equitable distribution.

Order affirmed in part and vacated in part. Case remanded. Jurisdiction relinquished.

      . We note that, following the decision in Hisquierdo, Congress amended the Railroad Retirement Act so that retirement annuities could be characterized as community property. 45 U.S.C. § 231m(b)(2) (1982 ed., Supp. Ill) (enacted in 1983).

      . Our decision today should not be construed to impair the decision of a panel of this court in Ciliberti v. Ciliberti, 374 Pa.Super. 228, 542 A.2d 580 (1980). There the panel found that the portion of a police officer’s disability pension which represented a retirement component could be divided as marital property. Ciliberti did not present a question of federal pre-emption and attempted only to provide a result consistent with the provisions of our Divorce Code.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    561 A.2d 1236
    COMMONWEALTH of Pennsylvania v. Kenneth C. MORRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 2, 1988.
    Filed July 7, 1989.
    William P. McVay, Public Defender, Bradford, for appellant.

      Before BROSKY, ROWLEY and MONTEMURO, JJ.
   ROWLEY, Judge:

This appeal of Kenneth C. Morris is from the judgment of sentence of life imprisonment that was imposed following a non-jury verdict of guilty of murder of the first degree but mentally ill. Appellant’s sole argument on appeal is that a defendant who has been found “mentally ill” pursuant to 18 Pa.C.S. § 314 is necessarily incapable of the “willful, deliberate and premeditated killing” upon which a guilty verdict of murder of the first degree, 18 Pa.C.S. § 2502, is based. For the reasons set forth below, we affirm the judgment of sentence.

The facts of the case, briefly summarized, are as follows: On August 30, 1986, appellant, accompanied by his girlfriend, Donna Kilpatrick, drove to the home of Kilpatrick’s daughter Tina in Bradford, Pennsylvania, in order to retrieve a hunting rifle belonging to appellant. Kilpatrick, fearing that appellant was suicidal, had earlier taken the rifle to her daughter’s home. As they were parked in the driveway outside Tina’s home, the couple argued, and Kilpatrick attempted to leave the car and go into the house. Appellant pulled her back into the car, stabbed her with a hunting knife that he had brought with him, and drove off. An autopsy revealed a total of nine stab wounds. Appellant eventually wrecked the car in New York State. After putting Kilpatrick’s body in the trunk of the car, he wrote a note explaining that a former girlfriend had “caused all this” and that “Donna was good to me so I wanted to take her with me.” At some point appellant also stabbed himself in the abdomen in an apparent suicide attempt. In statements to police officers, emergency and hospital personnel, and an examining psychiatrist, he admitted killing Kilpatrick.

At the non-jury trial, defense counsel attempted to prove that appellant was not guilty by reason of insanity. The expert witness for the defense, Dr. Jodh Sanghi, testified that he had diagnosed appellant as suffering from “bipolar illness,” formerly called manic-depressive disorder, and that he saw no evidence to indicate that appellant had the willfulness or the premeditation to commit harm to Kilpatrick (N.T., 151, 166). His testimony was disputed by that of the Commonwealth’s witness, Dr. Anthony Montecalvo, who diagnosed appellant as suffering from an adjustment disorder and not from bipolar illness (N.T., 244-47).

The trial court, after concluding that appellant had understood both the nature and the wrongfulness of his act, found him legally sane and guilty of murder of the first degree but mentally ill. Post-trial motions were filed and denied. On September 23, 1987, the court imposed a sentence of life imprisonment pursuant to 18 Pa.C.S. 1102(a) and directed that appellant receive treatment pursuant to the Mental Health Procedures Act, 50 P.S. § 7101 et seq. This timely appeal followed.

The argument raised by appellant in this appeal turns upon the Crimes Code’s allegedly incompatible definitions of “guilty but mentally ill” and “murder of the first degree.” Section 314(a) of the Crimes Code, 18 Pa.C.S. § 314(a), states that

[a] person who timely offers a defense of insanity in accordance with the Rules of Criminal Procedure may be found “guilty but mentally ill” at trial if the trier of facts finds, beyond a reasonable doubt, that the person is guilty of an offense, was mentally ill at the time of the commission of the offense and was not legally insane at the time of the commission of the offense.

As defined in 18 Pa.C.S. § 314(c)(1), a “mentally ill” person is “[o]ne who as a result of mental disease or defect, lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.” This definition establishes a less rigorous standard than, but is similar in language to, the M’Naghten rule, The Queen v. M’Naghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843), which since Commonwealth v. Mosler, 4 Pa. 264 (1846), has been the test for legal insanity in this Commonwealth, Commonwealth v. Reilly, 519 Pa. 550, 558-59, 549 A.2d 503, 507 (1988), and which is specifically preserved in 18 Pa.C.S. § 314(d). Under the M’Naghten rule, a person is legally sane, and therefore criminally responsible, unless at the time of the commission of the criminal act, due to a defect of reason or disease of the mind, he or she (1) did not know the nature and quality of the act or (2) did not know the act was wrong. Commonwealth v. Banks, 513 Pa. 318, 330, 521 A.2d 1, 7 (1987), cert. den., 484 U.S. 873, 108 S.Ct. 211, 98 L.Ed.2d 162 (1987); Commonwealth v. Tempest, 496 Pa. 436, 440, 437 A.2d 952, 954 (1981). It is settled law that a person may be mentally disturbed and still be judged legally sane under the M’Naghten test. Commonwealth v. Banks, 513 Pa. at 345-46, 521 A.2d at 15; Commonwealth v. Tempest, 496 Pa. at 441, 437 A.2d at 954; Commonwealth v. Demmitt, 456 Pa. 475, 481, 321 A.2d 627, 631 (1974).

A person who has been found guilty of first degree murder but mentally ill has been found to meet the definition of mental illness given by 18 Pa.C.S. § 314(c)(1), and also to have committed an “intentional killing,” 18 Pa.C.S. § 2502(a), which is defined as “[kjilling by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing,” 18 Pa.C.S. § 2502(d). Appellant contends, however, that any person who is “mentally ill” as defined in 18 Pa.C.S. § 314(c)(1) is incapable, as a matter of law, of the willfulness, deliberateness, and premeditation that are essential to a finding of guilty of first degree murder. He asks that we remand the case to the trial court with instructions to vacate the verdict of guilty, but mentally ill, of first degree murder, to render in its place a verdict of guilty, but mentally ill, of third degree murder, 18 Pa.C.S. § 2502(c), and to sentence appellant accordingly.

We note at the outset that the application of 18 Pa.C.S. § 314 is not limited to certain classes of offenses. Rather, under the terms of the statute, a person found guilty of any crime, including first degree murder, may also be found mentally ill. 42 Pa.C.S. § 9727, which governs the disposition of defendants found guilty but mentally ill, and 18 Pa.C.S. § 314 evidence the legislature’s “comprehensive attention to the problem of mentally ill offenders.” Commonwealth v. Comitz, 365 Pa.Super. 599, 608, 530 A.2d 473, 477 (1987). It strains logic to assume, as appellant would have us do, that the legislature enacted a comprehensive plan to address mentally ill offenders, but neglected to mention that first degree murder was the only offense for which a verdict of guilty but mentally ill could not be returned. We cannot accept appellant’s argument without violating the presumption, set forth at 1 Pa.C.S. § 1922(1), that the legislature does not intend an unreasonable result.

In interpreting the statutes at issue herein, our purpose is to effectuate the intention of the legislature. 1 Pa.C.S. § 1921(a). As this Court concluded in Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988), “the guilty but mentally ill verdict is merely the statutory articulation of our legislature’s desire to allow the finder of fact to hold responsible those mentally ill defendants who deviate from the laws of this Commonwealth, while at the same time providing them with the humane psychiatric treatment for their mental infirmities.” Id., 374 Pa.Superior Ct. at 577, 543 A.2d at 1120. Accord, Commonwealth v. Larkin, 518 Pa. 225, 228, 542 A.2d 1324, 1326 (1988); Commonwealth v. Cain, 349 Pa.Super. 500, 520, 503 A.2d 959, 969 (1986). The legislature was also concerned with limiting the number of persons “who ... were improperly being relieved of all criminal responsibility through utilization of the insanity verdict.” Commonwealth v. Trill, 374 Pa.Super. at 585, 543 A.2d at 1124. With regard to defendants found guilty but mentally ill,

the General Assembly determined that this classification of individuals is capable of possessing the requisite mens rea for the attachment of criminal responsibility. In other words, those individuals who have been found guilty but mentally ill are both “sick” and “bad” (i.e., criminally responsible).

Id., 374 Pa.Superior Ct. at 583, 543 A.2d at 1123. If, as prior case law indicates, the intent of the legislature was to hold guilty but mentally ill defendants responsible for their criminal acts, on the assumption that they possessed the requisite mens rea, we will not presume to find in the relevant statutes an unwritten, implicit exception for one class of defendants, those found guilty of first degree murder but mentally ill.

Appellant contends that this Court’s opinion in Commonwealth v. Johnson, 373 Pa.Super. 312, 541 A.2d 332 (1988), requires a different result. In Johnson, a panel of this Court concluded that “there was sufficient evidence to allow the jury to find that appellant was not mentally ill at the time of the killing and, therefore, that the killing was willful, deliberate, and premeditated.” Id., 373 Pa.Superior Ct. at 327, 541 A.2d at 339. According to appellant, it follows from this conclusion that if a defendant was mentally ill, as defined in 18 Pa.C.S. § 314(c)(1), at the time of the killing, then the killing was not willful, deliberate, and premeditated.

However, the issue before this Court in Johnson was whether the verdict of guilty of first degree murder was against the weight of the evidence and was unsupported by sufficient evidence, given testimony which allegedly showed that appellant’s “mental illness at the time of the offense negated an element of the crime of first degree murder, i.e., specific intent.” Id., 373 Pa.Superior Ct. at 321-25, 541 A.2d at 337-38. It was held that because the jury had been presented with conflicting evidence as to whether appellant was mentally ill at the time of the offense, the evidence of the specific intent necessary for first degree murder was sufficient and the verdict was not against the weight of the evidence. Id., 373 Pa.Superior Ct. at 325-26, 541 A.2d at 339. This Court was not presented with, and did not rule upon, the issue of whether a defendant found to have been mentally ill at the time of the offense can, as a matter of law, be found to have possessed the specific intent necessary to commit first degree murder. Accordingly, the Court’s opinion in Johnson does not support appellant’s argument.

If we were to conclude that appellant’s mental illness, as defined in 18 Pa.C.S. § 314(c)(1), at the time he committed the offense in question necessarily negated an element of the offense of first degree murder, we would, of course, be required to vacate the conviction of first degree murder. We conclude, however, that the finding of mental illness under § 314(c)(1) does not have such an effect. As our Supreme Court has explained, a willful, deliberate and premeditated killing, as is required for a finding of first degree murder, “is one where the actor has a specific intent to bring about the death of the victim.” Commonwealth v. Nelson, 514 Pa. 262, 270, 523 A.2d 728, 732 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987). In the present case, the trial court’s finding that appellant was “mentally ill” shows that appellant lacked substantial capacity either to appreciate that his conduct was wrong or to conform his conduct to the requirements of the law. It does not, however, indicate that appellant was unable to form a specific intent to bring about the victim’s death. Accordingly, we perceive no inherent inconsistency in a verdict of guilty of first degree murder but mentally ill.

Our analysis of the relevant case law and statutes indicates that in enacting the guilty but mentally ill statute, 18 Pa.C.S. § 314, the legislature did not intend to provide defendants charged with first degree murder with a statutory basis for negating the specific intent element of the offense. Instead, the legislature’s intent was to provide for the humane treatment of defendants who, although mentally ill, were nevertheless guilty of the offense charged. A finding that a defendant was mentally ill, as defined by the legislature, does not negate the specific intent element of the offense of first degree murder. Appellant’s claim is, therefore, without merit, and the judgment of sentence is affirmed.

Judgment of sentence affirmed.

BROSKY, J., files a concurring statement.

BROSKY, Judge,

concurring:

I join the opinion of the majority yet would like to write separately to stress one point. I believe the proper focus of our inquiry should be first on whether or not a finding of guilty but mentally ill is inconsistent with a finding of guilt as to murder in the first degree. I believe considerations of legislative intent should arise only to the extent necessary to answer that inquiry, if at all, and consequently, I believe we should refrain from such a discussion.

The majority quite aptly demonstrates that there is nothing to indicate the legislature’s belief that a guilty but mentally ill verdict cannot be returned on a first degree murder charge. However, the fact remains that the finding in this case, by virtue of the legislature’s definition, is tantamount to a finding that appellant lacked a substantial capacity to either appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. If by making this finding we would have to conclude that a necessary element of first degree murder was negated, we would be duty bound to vacate that conviction regardless of legislative intent. However, as also demonstrated by the majority, it appears that a finding of guilty but mentally ill does not necessarily negate an element necessary for first degree murder. Our Supreme Court described the elements of that crime in the following manner:

Section 2502(a) of the Crimes Code, 18 Pa.C.S. § 2502(a) states that “[a] criminal homicide constitutes murder of the first degree when it is committed by an ntentional killing ” (emphasis added). The phrase “intentional killing” is defined as a “willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). This Court has held that a “willful, deliberate and premeditated killing” is one where the actor has a specific intent to bring about the death of the victim.

Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987).

Although, the finding in the present case would indicate that appellant either lacked a substantial capacity to understand that stabbing the victim was wrong or, perhaps, knowing that this was wrong, lacked a substantial capacity to refrain from stabbing the victim regardless of that understanding, it would not necessarily mean that he was incapable of developing a specific intent to kill the victim. As such, and as noted in the majority opinion, the finding that appellant was guilty but mentally ill of first degree murder is not necessarily inconsistent.

      . We are required to proceed without the benefit of the Commonwealth’s response to appellant’s argument, as the Commonwealth has not filed an appellate brief.

      . At oral argument, counsel for appellant also asserted that there is a constitutional basis to appellant's challenge to the verdict of guilty of first degree murder but mentally ill. He did not set forth the basis of the constitutional claim, however. Appellant did not raise any constitutional claims in the trial court, nor has he discussed any such claim in his appellate brief. Accordingly, we decline to address any possible constitutional challenges. We note that Commonwealth v. Trill, 374 Pa.Super. 549, 543 A.2d 1106 (1988), contains an extensive discussion of the constitutionality of 18 Pa.C.S. § 314.

      . 42 Pa.C.S. § 9727(a) provides that
      [a] defendant found guilty but mentally ill or whose plea of guilty but mentally ill is accepted under the provisions of 18 Pa.C.S. § 314 (relating to guilty but mentally ill) may have any sentence imposed on him which may lawfully be imposed on any defendant convicted of the same offense. Before imposing sentence, the court shall hear testimony and make a finding on the issue of whether the defendant at the time of sentencing is severely mentally disabled and in need of treatment pursuant to the provisions of the [Mental Health Procedures Act, 50 P.S. § 7101 et seq.].
      42 Pa.C.S. § 9727 also addresses treatment, prerelease and parole, and probation in relation to persons found guilty but mentally ill.


author: OLSZEWSKI, Judge:

text:
    561 A.2d 1240
    COMMONWEALTH of Pennsylvania v. Donald GIBSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 10, 1989.
    Filed July 13, 1989.

      Sondra R. Rodigues, Philadelphia, for appellant.
    Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and OLSZEWSKI and WATKINS, JJ.
   OLSZEWSKI, Judge:

Donald Gibson appeals from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following his convictions for two counts of robbery and criminal conspiracy.

On January 17, 1983, Donald Gibson and an accomplice approached Randell Green and Josette Brown as they were walking down a street. Gibson and the accomplice wore ski masks. While Gibson asked the victims for the time, the accomplice proceeded to grab Josette Brown and point a handgun at her. The accomplice then ordered her into an alley where he proceeded to take her coat, camera, and wristwatch. While bending down to retrieve these items, Brown succeeded in knocking the accomplice’s gun to the ground. In response, the accomplice ripped off his ski mask, scrambled for the gun, grabbed the items on the ground, and fled with Gibson.

On August 1,1983, following a thorough colloquy, Gibson pled guilty to two counts of robbery and criminal conspiracy. The Honorable Ricardo C. Jackson accepted the guilty pleas and proceeded to defer sentencing pending the receipt of a pre-sentence investigation and mental health evaluation. Thereafter, Gibson was sentenced to consecutive terms of five years’ probation on each of the robbery counts, conditioned on his agreement to obtain his GED and employment. Gibson did not seek to modify this sentence and did not file an appeal.

Two years later, Gibson was convicted of simple assault and recklessly endangering another person. Since this violated his earlier ten-year probationary sentence, he was ordered to appear before Judge Jackson. Gibson, however, failed to appear.

One and one-half years later, Gibson was again arrested. Following a hearing before Judge Jackson, Gibson’s probationary sentences were revoked. Instead, Gibson was sentenced to consecutive terms of two and one-half to five years’ imprisonment on each count of robbery. The instant appeal followed.

On appeal, Gibson alleges that: (1) his guilty plea was not entered voluntarily, knowingly, and intelligently; (2) counsel was ineffective in failing to: (a) object to a Rule 1100 violation, (b) challenge the voluntariness of his guilty plea, (c) object to the trial court’s failure to specifically state its reasons for revoking his probation, and (d) file a motion to modify sentence; and (3) his due process rights were violated when the trial court failed to state the reasons for the revocation of his probation.

Initially, Gibson challenges the validity of his guilty plea. Gibson also alleges that counsel was ineffective in failing to challenge the voluntariness of this plea.

A review of the record reveals that Gibson has failed to file a direct appeal from the order of probation or a petition under the Post Conviction Hearing Act to challenge the validity of the guilty plea. As such, this issue is not properly before this Court since an appellant cannot challenge the propriety of this issue until it has been challenged in the trial court. Commonwealth v. Nance, 290 Pa.Super. 312, 434 A.2d 769 (1981); Commonwealth v. Christian, 302 Pa.Super. 253, 448 A.2d 623 (1982). Where, however, an appellant alleges that his failure to appeal from the order of probation did not constitute a knowing waiver, this Court has held that an appellant has not waived his right to challenge the validity of his guilty plea. Christian, supra. Accordingly, the issue for our review is whether Gibson has alleged that his failure to appeal from the order of probation was knowing.

In his brief, Gibson merely asserts that counsel was ineffective for failing to challenge the validity of the plea. He does not, however, allege that counsel failed to inform him of his right to appeal nor that counsel coerced him into entering the plea. This Court is inclined to hold that a bald allegation of ineffectiveness of counsel will not serve to preserve this issue for our review. Accordingly, Gibson has waived his right to attack the guilty plea.

Next, Gibson alleges that counsel was ineffective for failing to object to a Rule 1100 violation and to preserve this issue for appellate review.

A plea of guilty effectively waives all nonjurisdictional defects and defenses. Commonwealth v. Coles, 365 Pa.Super. 562, 530 A.2d 453 (1987). As such, this Court has unequivocably held that an alleged irregularity in proceedings prior to a plea of guilty, including an alleged violation of Rule 1100, would be reviewable to the extent that it affected the voluntariness of the guilty plea itself. Commonwealth v. Riviera, 254 Pa.Super. 196, 385 A.2d 976 (1978). Accordingly, although a violation of Rule 1100 would normally constitute reversible error, said violation may not be challenged where it does not affect the voluntariness of the plea. Id.

Where, however, the appellant can demonstrate that he did not knowingly waive his right to challenge said violation, and if he can demonstrate that the violation of Rule 1100 induced his guilty plea, he may be entitled to pursue his claim. Commonwealth v. Harris, 492 Pa. 381, 424 A.2d 1242 (1981). As such, the appellant may allege that the waiver resulted from the ineffective assistance of trial counsel. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). In asserting a claim of ineffective assistance of trial counsel, an appellant must demonstrate that his underlying claim is of arguable merit. Id. Where, however, the rights to a speedy trial were fully explained to an appellant at a hearing during which he proceeded to sign an agreement to waive such rights, counsel will not be deemed ineffective for failing to challenge an alleged Rule 1100 violation. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980).

Instantly, Gibson has failed to link his Rule 1100 claim to the voluntariness of his guilty plea. As such, he has not demonstrated that his ability to challenge the alleged Rule 1100 claim has not been waived. Moreover, a review of the record demonstrates that Gibson effectively waived his right to a speedy trial as there was an on-the-record colloquy establishing the waiver and a signed statement indicating that the waiver was made knowingly and voluntarily. Accordingly, counsel cannot be deemed ineffective for failing to challenge Gibson’s right to a speedy trial when Gibson knowingly and voluntarily waived this right. In sum, Gibson has waived his opportunity to challenge the propriety of his claim.

Next, Gibson asserts that his right to due process was violated when the trial court failed to state reasons for revoking his probation. Gibson also alleges that trial counsel was ineffective for failing to raise this issue and for failing to file a motion to modify sentence. Upon review of the instant case, it is apparent that since trial counsel failed to raise this issue, and thereby failed to preserve this issue for appellate review, this issue has been waived unless said failure is due to the ineffective assistance of trial counsel. Commonwealth v. Broadie, 339 Pa.Super. 394, 489 A.2d 218 (1985) (failure to file a motion to modify sentence waives all sentencing issues for appellate review, except those involving the legality of the sentence). Accordingly, we must first determine if counsel was ineffective for failing to raise this issue.

In pursuing a claim of ineffective assistance of counsel, an appellant must demonstrate that: (1) his underlying claim is of arguable merit; (2) counsel lacked any reasonable basis for his actions or inactions; and (3) he was prejudiced by counsel’s actions or inactions. Pierce, supra. With regard to Gibson’s underlying claim, a trial judge is required to state on the record his reasons for the imposition of a particular sentence. Commonwealth v. Kane, 315 Pa.Super. 212, 461 A.2d 1246 (1983). In doing so, this statement must reflect the judge’s consideration of the sentencing code, the circumstances of the offense, and the character of the offender. Id. Case law mandates that these requirements are equally applicable when the court imposes sentence following the revocation of probation. Id. Pursuant to Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988), however, which addressed the failure of a trial court to articulate its reasons on the record for the imposition of a particular sentence, the existence of a presentence report eliminates the need for an on-the-record articulation of the reasons for the imposition of a particular sentence. As such, since this Court has held that the same requirements are equally applicable to situations involving the imposition of sentence as to situations when the imposition of sentence follows the revocation of probation, the holding in Devers, supra, is equally applicable to the latter situation.

With this in mind, we may proceed to the merits of Gibson’s claim. In doing so, it is obvious that Gibson attacks the effectiveness of his trial counsel, but fails to allege any prejudice as a result of this claim. Accordingly, Gibson has failed to comply with all of the mandates of Pierce, supra. Further, in consideration that the trial judge was in possession of a presentence report and psychiatric examination report when imposing Gibson’s original sentence, the requirements set out in Devers have been met. It would be judicially uneconomical to insist that a trial judge reorder such reports pursuant to the revocation of probation, especially where the trial judge presided over a violation of probation hearing during which he had ample opportunity to entertain any and all relevant evidence. Accordingly, Gibson has failed to show that trial counsel acted ineffectively. As such, since a finding of ineffective assistance was required to preserve this issue for appellate review, the issue has been waived.

Accordingly, based upon the aforementioned reasons, this Court affirms the judgment of sentence.

      . It should be noted that all of the case law and statutory authority relied upon by Gibson clearly fails to support his underlying claim. In essence, the use of this authority serves no useful purpose.

      . It should also be noted that since Gibson’s claim challenged the discretionary aspects of sentencing, he should have, but failed to, comply with the procedural mandates set forth in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), which requires compliance with the provisions of Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f). Commonwealth v. Chilquist, 378 Pa.Super. 55, 548 A.2d 272 (1988). Since, however, the Commonwealth failed to challenge this failure, Gibson’s noncompliance would not have resulted in the waiver of his claim had we found his ineffectiveness allegation to be of arguable merit. Commonwealth v. Phillips, 368 Pa.Super. 231, 533 A.2d 1039 (1987).


author: DEL SOLE, Judge:

text:
    561 A.2d 1244
    COMMONWEALTH of Pennsylvania v. Frank IAFRATE, Jr., Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1989.
    Filed July 14, 1989.

      Richard J. Makoul, Allentown, for appellant.
    Glennis L. Clark, Assistant District Attorney, Allentown, for Com., appellee.
    Before DEL SOLE, MELINSON and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal of a judgment of sentence following a trial by jury where the Appellant was found guilty of one count of simple assault, not guilty on another count of simple assault, and not guilty of the summary offense of obstructing and loitering.

This conviction stemmed from an incident which occurred at 8:15 p.m. on September 29, 1985, involving Appellant and a police officer. The police officer attempted to issue a loitering citation to Appellant who was kneeling on the curb next to a car parked on a heavily traveled portion of a public thoroughfare. Appellant was arrested that evening. The next day, September 30, was Appellant’s eighteenth birthday. Prior to trial, Appellant filed a motion to quash and transfer the case to juvenile court. This motion was denied and Appellant was tried as an adult.

In this appeal, Appellant raises four claims of trial court error: (1) the trial court erred in denying his motion to transfer his case to Juvenile Court; (2) the trial court erred in permitting the introduction of his statement concerning hiring an attorney, when that statement was made while Appellant was in custody but had not been advised of his constitutional rights; (3) the trial court erred in prohibiting defense counsel from eliciting evidence from the prosecuting police officer that the arrest of Appellant was illegal; (4) the trial court erred in prohibiting introduction of photographs of the crime scene.

Prior to trial, Appellant filed a motion to transfer his case to Juvenile Court pursuant to 42 Pa.C.S.A. § 6322(a) which states, “if it appears to the court in a criminal proceeding other than murder, that the defendant is a child, this chapter [the Juvenile Act], shall immediately become applicable.” As defined by statute, a child is an individual who is under eighteen (18) years of age. 42 Pa.C.S.A. § 6302, Definitions. Thus if Appellant were a child at the time the crime was committed, then a transfer to Juvenile Court would have been required.

According to common and accepted usage, an individual is seventeen years of age until his or her eighteenth birthday, the anniversary of the date of birth. Therefore, it is generally and commonly understood that prior to that birthday a person is “under eighteen years of age.”

However, the common law of this state does not follow this prevailing usage, and instead, for reasons founded on arcane principles of early common law, a person is deemed to attain a given age on the day before his or her birthday. Commonwealth v. Howe, 35 Pa.Super. 554 (1908); Gerson v. Daly, 337 Pa. 346, 11 A.2d 148 (1940);

Thus, because we are constrained by precedent from our court and from the Pennsylvania Supreme Court, we must affirm the trial court’s holding that Appellant was not a “child” on the day before his eighteenth birthday, and was not entitled to trial under the Juvenile Act.

However, we would ask the Supreme Court of Pennsylvania and the General Assembly of Pennsylvania to take note of this archaic rule. Because we, as an intermediate appellate court, can not decide to change established precedent, we ask that these bodies reconsider whether they intended that Pennsylvania statutes which specify certain ages for the purposes of determining attainment of majority, should be construed according to this common law method of age computation which unnecessarily complicates matters and contravenes accepted usage.

We are aware of several states which have changed the common law rule, either legislatively or judicially. See, People v. Stevenson, 17 N.Y.2d 682, 269 N.Y.S.2d 458, 216 N.E.2d 615 (1966); United States v. Tucker, 407 A.2d 1067 (Dist.Col.App., 1979); State of Minnesota v. Stangel, 284 N.W.2d 4, 5 (1979); State v. Alley, 594 S.W.2d 381 (1980, Tenn.) We would urge the same course here, noting the words of Justice Holmes speaking in the Path of the Law, 10 Harv.L.Rev. 457, 469 (1897):

It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.

Next we consider whether it was error for the court to admit certain testimony which was offered, over objection, by the arresting officer in this case. This officer stated that after Appellant was arrested and taken to police headquarters he was very boisterous and obnoxious. While the officer was attempting to speak on the telephone the Appellant was saying, among other things, that he wanted his attorney present to get him off.

Appellant contends not only that, “testimonial reference to an accused’s silence and his request for a lawyer at the time of arrest is a constitutionally impermissible violation of the accused’s Fifth Amendment Right,” Commonwealth v. Haideman, 449 Pa. 367, 370, 296 A.2d 765, 766 (1972), but permitting such reference constituted reversible error.

At the outset, it is clear that if a person in custody is to be subjected to interrogation, that individual must be informed of the Fifth Amendment right to remain silent, and the right to have counsel present at any interrogation to protect this right. Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1624-25, 16 L.Ed.2d 694 (1966). Furthermore, the prosecution is prohibited from making any reference to an accused’s silence in the face of such interrogation, reflecting the court’s desire that an accused not be penalized for the exercise of constitutional rights. Id., 384 U.S. at 470, n. 37, 86 S.Ct. at 1625, n. 37; Commonwealth v. Greco, 465 Pa. 400, 404, 350 A.2d 826 (1976).

However, in the instant case, the record reveals that Appellant, though clearly in custody, was not being interrogated. He blurted out this statement while the officers were doing the paperwork for his arrest and talking on the telephone. Therefore, he had no right to have counsel present, because there was as yet no need to protect Appellant’s Fifth Amendment right to remain silent in the face of custodial interrogation.

Our court has stated on this issue in Commonwealth v. Hackney, 353 Pa.Super. 552, 510 A.2d 800 (1986);

It is the Fifth Amendment protection against compelled self-incrimination which provides the right to counsel during custodial interrogation. After arraignment, the right to counsel during interrogation is provided also by the Sixth Amendment guarantee of the assistance of counsel. “The arraignment signals ‘the initiation of adversary judicial proceedings’ and thus the attachment of the Sixth Amendment ...; thereafter, [law enforcement] efforts to elicit information from the accused, including interrogation, represent ‘critical stages’ at which the Sixth Amendment applies.” Michigan v. Jackson, 475 U.S. 625 [628-29], 106 S.Ct. 1404, 1407-1408, 89 L.Ed.2d 631, 638 (1986) (emphasis added).

Because Appellant requested the presence of counsel prior to his arraignment, his Sixth Amendment right to have an attorney present at the initiation of judicial proceedings did not yet attach. Therefore, testimonial reference to Appellant’s request for counsel, does not act to penalize or burden the exercise of either the Fifth Amendment right to remain silent, or the accused’s right to counsel under the Sixth Amendment. As a result, we find no error in the trial court’s ruling which permitted reference to Appellant’s request for counsel.

Appellant next claims, in the third issue raised for our review, that it was error for the trial court to prohibit defense counsel, during cross-examination, from eliciting testimony that his arrest of the Appellant for loitering was an illegal arrest. A Commonwealth objection to this line of questioning was sustained on the basis that the legality of the arrest was relevant only to the summary offense of loitering which is heard and decided by the trial judge without the aid of a jury.

Appellant argues that prohibiting this line of questioning constitutes reversible error because it precluded attacks on the police officer’s credibility and his interest, or motive for testifying against the Appellant. He also claims that these questions would have illuminated Appellant’s state of mind, because Appellant is presumed to know the law and if the jury were permitted to understand that Appellant realized that the officer was breaking the law, the Appellant was reasonably justified in believing that the officer was attempting to place him in physical danger. The Slatington borough ordinance in question requires that before arresting someone for loitering, the police must, unless exigent circumstances exist, afford suspects the opportunity to identify themselves and explain their presence and conduct. Absent compliance with these pre-arrest procedures, no conviction for loitering will stand. Slatington Borough Ordinance, 707.03(c).

Appellant relies on Commonwealth v. Sullivan, 485 Pa. 392, 402 A.2d 1019 (1979); Commonwealth v. Shands, 338 Pa.Super. 296, 487 A.2d 973 (1985), and Commonwealth v. Robinson, 507 Pa. 522, 491 A.2d 107 (1985), for the proposition that it is error for the trial court to refuse evidence which tests a police officer’s story, impeaches credibility, or establishes motive or bias. These cases have in common that the police officers under cross-examination had all been allegedly involved in wrong-doing in matters significantly related to the underlying criminal charge, and therefore their motive or bias in testifying, and hence their credibility, was implicated by the line of questioning which was ruled inadmissible.

Here, there were no allegations that the officer faced disciplinary charges, or was under investigation for allegedly issuing an illegal loitering citation, so there is no basis in the record to show motive or bias which might have led to false testimony on the part of the officer.

Furthermore, the arguments concerning the Appellant’s state of mind and belief that the officer was placing him in physical danger and that he was justified in resisting that police officer, could have been made and were in fact made without reference to the police officer’s alleged illegality. The scope of cross-examination lies within the sound discretion of the trial court whose decision will not be reversed absent palpable error. Commonwealth v. Ross, 345 Pa.Super. 571, 498 A.2d 972 (1985). Here, the record shows that the Appellant had adequate latitude in cross-examination to argue self-defense, and thus there was no palpable error or abuse of discretion.

Appellant’s final claim of error concerns the court's refusal to admit into evidence photographs taken in preparation for trial for the purpose of showing the placement of the vehicles on the street at the time of the incident. The trial court refused to admit the photographs because they were of limited probative value given the different lighting conditions, the different distances of the car from the curb, and the insufficient foundation laid for the photo depicting Appellant posed by a car.

The admissibility of photographs is within the discretion of the trial judge. Excluding photographs of dubious probative value does not constitute reversible error. Commonwealth v. Yachymiak, 351 Pa.Super. 361, 505 A.2d 1024 (1986). We therefore hold that the trial court’s refusal to admit the photograph evidence was not error and constitutes a sound exercise of discretion.

We therefore find no merit in any of Appellant’s arguments and affirm the trial court’s judgment of sentence.


author: WIEAND, Judge: POPOVICH, Judge,

text:
    561 A.2d 1248
    Amos COBAUGH, Appellee, v. KLICK-LEWIS, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1989.
    Filed July 14, 1989.

      Robert M. Frankhouser, Jr., Lancaster, for appellant.
    Wiley P. Parker, Lebanon, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   WIEAND, Judge:

On May 17, 1987, Amos Cobaugh was playing in the East End Open Golf Tournament on the Fairview Golf Course in Cornwall, Lebanon County. When he arrived at the ninth tee he found a new Chevrolet Beretta, together with signs which proclaimed: “HOLE-IN-ONE Wins this 1988 Chevrolet Beretta GT Courtesy of KLICK-LEWIS Buick Chevy Pontiac $49.00 OVER FACTORY INVOICE in Palmyra.” Cobaugh aced the ninth hole and attempted to claim his prize. Klick-Lewis refused to deliver the car. It had offered the car as a prize for a charity golf tournament sponsored by the Hershey-Palmyra Sertoma Club two days earlier, on May 15, 1987, and had neglected to remove the car and posted signs prior to Cobaugh’s hole-in-one. After Cobaugh sued to compel delivery of the car, the parties entered a stipulation regarding the facts and then moved for summary judgment. The trial court granted Cobaugh’s motion, and Klick-Lewis appealed.

Our standard of review is well established. A motion for summary judgment may properly be granted only if the moving party has shown that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. French v. United Parcel Service, 377 Pa.Super. 366, 371, 547 A.2d 411, 414 (1988); Thorsen v. Iron and Glass Bank, 328 Pa.Super. 135, 140, 476 A.2d 928, 930 (1984). Summary judgment should not be entered unless a case is clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983); Dunn v. Teti, 280 Pa.Super. 399, 402, 421 A.2d 782, 783 (1980).

The facts in the instant case are not in dispute. To the extent that they have not been admitted in the pleadings, they have been stipulated by the parties. Therefore, we must decide whether under the applicable law plaintiff was entitled to judgment as a matter of law.

An offer is a manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it. Restatement (Second) of Contracts § 24; 8 P.L.E. Contracts § 23. Consistent with traditional principles of contract law pertaining to unilateral contracts, it has generally been held that “[t]he promoter of [a prize-winning] contest, by making public the conditions and rules of the contest, makes an offer, and if before the offer is withdrawn another person acts upon it, the promoter is bound to perform his promise.” Annotation, Private Rights and Remedies Growing Out of Prize-winning Contests, 87 A.L.R.2d 649, 661. The only acceptance of the offer that is necessary is the performance of the act requested to win the prize. Id. See also: Robertson v. United States, 343 U.S. 711, 72 S.Ct. 994, 96 L.Ed. 1237 (1952) (“The acceptance by the contestants of the offer tendered by the sponsor of the contest creates an enforceable contract.”); 17 C.J.S. Contracts § 46.

The Pennsylvania cases which have considered prizewinning contests support the principle that an offer to award a prize in a contest will result in an enforceable contract if the offer is properly accepted by the rendition of the requested performance prior to revocation. See: Olschiefsky v. Times Publishing Co., 23 D. & C.2d 73 (Erie 1959) (overruling demurrer to action against newspaper for failure to award prize to winner of puzzle contest); Holt v. Wood, Harmon & Co., 41 Pitt.L.J. 443 (1894) (holding offer to award house to person submitting name selected for new housing development resulted in binding contract). See also: Aland v. Cluett, Peabody & Co., 259 Pa. 364, 103 A. 60 (1918); Palmer v. Central Board of Education of Pittsburg, 220 Pa. 568, 70 A. 433 (1908); Trego v. Pa. Academy of Fine Arts, 2 Sad. 313, 3 A. 819 (1886); Vespaziani v. Pa. Dept. of Revenue, 40 Pa.Cmwlth 54, 396 A.2d 489 (1979).

Appellant argues that it did nothing more than propose a contingent gift and that a proposal to make a gift is without consideration and unenforceable. See: Restatement (Second) of Contracts § 24, Comment b. We cannot accept this argument. Here, the offer specified the performance which was the price or consideration to be given. By its signs, Klick-Lewis offered to award the car as a prize to anyone who made a hole-in-one at the ninth hole. A person reading the signs would reasonably understand that he or she could accept the offer and win the car by performing the feat of shooting a hole-in-one. There was thus an offer which was accepted when appellee shot a hole-in-one. Accord: Champagne Chrysler-Plymouth, Inc. v. Giles, 388 So.2d 1343 (Fla.Dist.Ct.App.1980) (bowling contest); Schreiner v. Weil Furniture Co., 68 So.2d 149 (La.App. 1953) (“Count-the-dots” contest); Chenard v. Marcel Motors, 387 A.2d 596 (Me.1978) (golf tournament); Grove v. Charbonneau Buick-Pontiac Inc., 240 N.W.2d 853 (N.D. Sup.Ct.1976) (golf tournament); First Texas Savings Assoc. v. Jergins, 705 S.W.2d 390 (Tx.Ct.App.1986) (free drawing).

The contract does not fail for lack of consideration. The requirement of consideration as an essential element of a contract is nothing more than a requirement that there be a bargained for exchange. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 541, 526 A.2d 1192, 1195 (1987); Commonwealth Dept. of Transp. v. First Nat’l Bank, 77 Pa. Cmwlth. 551, 553, 466 A.2d 753, 754 (1983). Consideration confers a benefit upon the promisor or causes a detriment to the promisee. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 72 n. 6, 384 A.2d 1228, 1232 n. 6 (1978); General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 167, 199 A.2d 540, 543 (1964). By making an offer to award one of its cars as a prize for shooting a hole-in-one at the ninth hole of the Fairview Golf Course, Klick-Lewis benefited from the publicity typically generated by such promotional advertising. In order to win the car, Cobaugh was required to perform an act which he was under no legal duty to perform. The car was to be given in exchange for the feat of making a hole-in-one. This was adequate consideration to support the contract. See, e.g.: Las Vegas Hacienda, Inc. v. Gibson, 77 Nev. 25, 359 P.2d 85 (1961) (paying fifty cents and shooting hole-in-one was consideration for prize). See also: First Texas Savings v. Jergins, supra (enforcing duty to award prize in free drawing where only performance by plaintiff was completing and depositing entry form).

There is no basis for believing that Cobaugh was aware that the Chevrolet automobile had been intended as a prize only for an earlier tournament. The posted signs did not reveal such an intent by Klick-Lewis, and the stipulated facts do not suggest that appellee had knowledge greater than that acquired by reading the posted signs. Therefore, we also reject appellant’s final argument that the contract to award the prize to appellee was voidable because of mutual mistake.' Where the mistake is not mutual but unilateral and is due to the negligence of the party seeking to rescind, relief will not be granted. Rusiski v. Pribonic, 326 Pa.Super. 545, 552, 474 A.2d 624, 627 (1984), rev’d on other grounds, 511 Pa. 383, 515 A.2d 507; McFadden v. American Oil Co., 215 Pa.Super. 44, 53-54, 257 A.2d 283, 288 (1969).

In Champagne Chrysler-Plymouth, Inc. v. Giles, supra, a mistake similar to that made in the instant case had been made. There, a car dealer had advertised that it would give away a new car to any bowler who rolled a perfect “300” game during a televised show. The dealer’s intent was that the offer would continue only during the television show which the dealer sponsored and on which its ads were displayed. However, the dealer also distributed flyers containing its offer and posted signs advertising the offer at the bowling alley. He neglected to remove from the alley the signs offering a car to anyone bowling a “300” game, and approximately one month later, while the signs were still posted, plaintiff appeared on a different episode of the television show and bowled a perfect game. The dealer refused to award the car. A Florida court held that if plaintiff reasonably believed that the offer was still outstanding when he rolled his perfect game, he would be entitled to receive the car. See also: Grove v. Charbonneau Buick-Pontiac Inc., supra (car dealer required to award prize to participant in 18-hole golf tournament played on nine-hole golf course where it had offered to award a car “to the first entry who shoots a hole-in-one on Hole No. 8” and plaintiff aced the hole marked No. 8 while driving from the seventeenth tee).

It is the manifested intent of the offeror and not his subjective intent which determines the persons having the power to accept the offer. Restatement (Second) of Contracts § 29. In this case the offeror’s manifested intent, as it appeared from signs posted at the ninth tee, was that a hole-in-one would win the car. The offer was not limited to any prior tournament. The mistake upon which appellant relies was made possible only because of its failure to (1) limit its offer to the Hershey-Palmyra Sertoma Club Charity Golf Tournament and/or (2) remove promptly the signs making the offer after the Sertoma Charity Golf Tournament had been completed. It seems clear, therefore, that the mistake in this case was unilateral and was the product of the offeror’s failure to exercise due care. Such a mistake does not permit appellant to avoid its contract.

Affirmed.

POPOVICH, J., filed a dissenting opinion.

POPOVICH, Judge,

dissenting:

“Golf ... is ... a game of relaxed recreation and limitless enjoyment for millions and a demanding examination of exacting standards ...” (Robert Trent Jones, Preface of The Golf Course, Geoffrey S. Cornish and Ronald E. Whit-ten, The Rutledge Press, Revised Edition, 1987). In short, golf — as demonstrated by the vast majority of its practitioners who never have and never will score a round at par — is a sport requiring precise skills.

Making a hole-in-one, however, is such a fortuitous event that skill is almost an irrelevant factor. Because of that fact (an element of chance), combined with the payment of an entry fee to the East End Open Golf Tournament (consideration) and the automobile prize (reward), my view is that the necessary elements of gambling are present thus rendering the contract sub judice unenforceable as violating the Commonwealth’s policy against gambling. As our Supreme Court stated eighty-five years ago in Davis v. Fleshman, 245 Pa. 224, 91 A. 489 (1914):

It is equally well settled in this jurisdiction that all mere wagering contracts are illegitimate transaction which the law declares void and which will not be enforced at the insistence of either party to the contract. It will not aid the winner to recover from the loser the amount of the stake, and it will not give assistance to the loser to recover back the amount of the bet after the transaction has been closed. It will leave the parties as it finds them. The law will not attempt to settle disputes arising between gamblers by enforcing their alleged rights arising out of an illegal transaction.

I raise this issue sua sponte since we have no jurisdiction to enforce a contract in violation of public policy. In re Estate of Pedrick, 505 Pa. 530, 534, 482 A.2d 215, 222 (1984) (public policy dictates court must raise “unclean hands” sua sponte); Rossi v. Pennsylvania State University, 340 Pa.Super. 39, 489 A.2d 828 (1985) (propriety of summary judgment raised sua sponte).

By couching this transaction in terms of a unilateral contract, the majority seems to opine that scoring a hole-in-one is an act of skill which a golfer can choose to undertake. The truth is quite the opposite.

While every golfer dreams of the day when his ball flawlessly flies into the cup, few ever experience the thrill of a hole-in-one. So few in fact that “aceing” a hole is truly an act of “luck” not skill. Consider the following statistics: In 1988, approximately 21.7 million golfers played 434 million rounds of golf with only 34,469 holes-in-one being reported to the United States Golf Association. Golf Digest, using figures amassed since 1952, estimates that a golfer of average ability playing a par-3 hole of average difficulty has a mere 1 in 20,000 chance of aceing the hole.

While the chances increase for a professional golfer, the possibility of a hole-in-one, even for the world’s best players, is still remote. Last year only 22 holes-in-one were recorded during the Professional Golf Association’s tournament schedule. With approximately 300 touring professionals playing in 47 tournaments (four rounds per tournament, four par-3’s per round), the odds increased to approximately 1 in 10,000.

However, even at 10,000 to 1, the professional’s chances of aceing a hole are more akin to an act of God than a demonstration of skill. Clearly, the possibility of a hole-in-one is sufficiently remote to qualify as the necessary gambling requirement of an element of chance.

Since all of the elements of gambling are present, I see no reason to enforce this so-called unilateral contract, rather I would find that an unenforceable gambling contract was created. While I recognize that there are a variety of socially acceptable forms of gambling indulged in by the public for the most charitable of purposes and the worthiest of causes, they are nonetheless illicit under Pennsylvania law. Dollar raffle tickets for the benefit of a hospital or a Little League Baseball Association are bought and sold innocuously and routinely, and, yet, raffles constitute unsanctioned gambling. Only recently, under strict control, has bingo, a popular and social form of gambling been legalized. 10 Pa.C.S.A. § 301 et seq. See also 4 Pa.C.S.A. § 325.101 et seq. (horse racing); 72 Pa.C.S.A. § 3761-1 et seq. (state lottery). Millions of citizens spend billions of dollars each year on sports betting in office pools or with the local bookmaker. However, only in one state, Nevada, is it legal so to do.

Thus, when such a rare case as this comes into court, it may be difficult to re-assert a public policy which everyday is violated by common experience, especially, such as here, where there probably was no thought of gambling or “breaking the law.” Nevertheless, we cannot usurp the role of the legislature or turn our heads away from the fundamental substance of this transaction: it is a contract, a contract covering the context of gambling. Hence, it is unenforceable no matter how much condoned or indulged.

      . The issue of an illegal contract, as the author of the dissent concedes, was not raised by appellant in the trial court or on appeal. Indeed, it was not pleaded as "new matter” as required by Pa.R.C.P. 1030 and was not the subject of evidence or argument at trial.
      Even if, as the dissent contends, this Court may act sua sponte to refuse enforcement of an illegal contract, it should not do so unless the illegality is clear. It is not clear in this case that to offer an automobile as a prize for a hole-in-one during a charity golf tournament was to introduce illegal gambling to the tournament. Courts of other jurisdictions have found similar offers legal and enforceable. See: Las Vegas Hacienda, Inc. v. Gibson, supra (contest to award prize to golfer who, having paid fee, scored a hole-in-one was not gambling and, therefore, created valid and enforceable contract). See also: State v. American Holiday Ass’n, Inc., 151 Ariz. 312, 727 P.2d 807 (1986) (discussing cases).
      Finally, there was no evidence in this case that an element of chance was the dominant factor in shooting the hole-in-one. See: Commonwealth v. Laniewski, 173 Pa.Super. 245, 98 A.2d 215 (1953) (chance must be dominant factor). Even if this Court could legitimately consider the "facts” which the dissent introduces from a popular magazine, those statistics demonstrate that a professional golfer is generally twice as likely to shoot a hole-in-one as an amateur golfer. Under these circumstances, it cannot be said that skill is “almost an irrelevant factor." See: Las Vegas Hacienda, Inc. v. Gibson, supra, 77 Nev. at 29-30, 359 P.2d at 87 (where expert testified that “a skilled player will get it (the ball) in the area where luck will take over more often than an unskilled player,” there was sufficient evidence to sustain a finding that the shooting of a hole-in-one was a feat of skill).

      . Under Pennsylvania law, the three elements of gambling are consideration, a reward and an element of chance. Commonwealth v. Weisman, 331 Pa.Super. 31, 479 A.2d 1063 (1984); In re: Gaming Devices Seized at American Legion Post No. 109, 197 Pa.Super. 10, 176 A.2d 115 (1961). Illegal lotteries, gambling and bookmaking are strictly prohibited as delineated in 18 Pa.C.S.A. §§ 5512 (lotteries), 5513 (gaming devices, gambling) and 5514 (pool selling, bookmaking).

      . "In order to win the car, Cobaugh was required to perform an act which he was under no legal duty to perform. The car was to be given in exchange for the feat of making a hole-in-one.” Majority Op. at 592.

      . The statistics are courtesy of Lois Hains, Assistant Editor, and Hope Johnson, Chief of Research, Golf Digest, the foremost comprehensive periodical on the sport of golf.

      . For the record, we note that female professional golfers playing in Ladies Professional Golf Association events had 20 holes-in-one in 1988.


author: POPOVICH, Judge:

text:
    561 A.2d 1253
    Rodney SMITH, Lyman Smith and Marion Smith, Appellants, v. Donald BRINK, James Baldwin, Anthony Basehore and Swatara Township, Appellees.
    Superior Court of Pennsylvania.
    Submitted April 18, 1989.
    Filed July 13, 1989.

      Rowley, J., concurred in result.
    Spero T. Lappas, Harrisburg, for appellants.
    Frank J. Lavery, Jr., Harrisburg, for appellees.
    Before ROWLEY, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

This appeal from an order of the Court of Common Pleas of Dauphin County presents an opportunity to explain the doctrine of election of remedies as it applies to a plaintiffs choice of pursuing a contract action for breach of a settlement agreement or litigating the underlying claim. Applying the doctrine of election of remedies, the lower court herein sustained the appellees’ demurrer and dismissed the appellants’ complaint alleging breach of a settlement agreement by the appellees. Though we find that the trial court’s reliance on the doctrine of election of remedies was misplaced, we affirm.

On February 16, 1986, Rodney Smith was allegedly assaulted and subjected to an illegal arrest by the appellees who are officers of the Swatara Township Police Department. Lyman and Marion Smith, Rodney’s parents, witnessed the alleged use of excessive force.

Based on the aforementioned event, the appellants filed suit on August 1, 1986, in the United States District Court for the Middle District of Pennsylvania. Rodney alleged violation of his civil rights and malicious prosecution. In the same suit, his parents alleged intentional infliction of mental or emotional distress.

On September 28, 1986, the District Court granted summary judgment in favor of the appellees on the claims of Rodney’s parents due to a lack of subject matter jurisdiction. During the ensuing months, counsel for the parties discussed settlement of the federal lawsuit and the parents’ state claims. The appellants contend that the parties reached an agreement whereby all claims would be settled for a sum of $22,000. However, on August 12, 1987, the appellees retained new counsel who allegedly informed the appellants that his clients would not comply with the agreement. Thereafter, Lyman and Marion filed a complaint in the Dauphin County Court of Common Pleas at 2752 S 1986, setting forth their claims for intentional infliction of emotional distress. This action is still pending.

The federal lawsuit went to trial on October 26, 1987. Although Lyman and Marion testified on behalf of their son, the jury trial resulted in a verdict in favor of the defense. Nevertheless, on December 10, 1987, the appellants filed the instant complaint at 3327 S 1987, alleging breach of the settlement agreement.

In their preliminary objections, the appellees demurred to the complaint. Since Rodney had tried his claims in federal court and lost, the lower court sustained the demurrer based on the doctrine of election of remedies and dismissed all counts of the complaint, including those of Lyman and Marion. This appeal followed.

On appeal, the Smiths question whether the lower court correctly applied the doctrine of election of remedies when it granted the appellees’ demurrer and denied not only Rodney’s claim but also Lyman’s and Marion’s. When considering preliminary objections in the nature of a demurrer, the trial court must consider the pleadings and inferences drawn therefrom in a light most favorable to the party against whom the motion was filed. The demurrer may be granted only in cases which are so free from doubt that a trial would certainly be a fruitless exercise. Karns v. Tony Vitale Fireworks Corp., 436 Pa. 181, 183, 259 A.2d 687, 688 (1969). See also, Cantwell v. Allegheny County, 506 Pa. 35, 37, 483 A.2d 1350, 1351 n. 1 (1984); E-Z Parks v. Phil. Parking Authority, 110 Pa.Cmwlth. 629, 532 A.2d 1272, 1275 (1987).

The doctrine of election of remedies was recently described and defined by the Superior Court in Wedgewood Diner, Inc. v. Good, 368 Pa.Super. 480, 534 A.2d 537 (1987).

An election of remedies has been defined as the act of choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. The phrase has also been used in a more restrictive sense to denote the doctrine that the adoption, by an unequivocal act, of one of two or more inconsistent remedial rights has the effect of precluding a resort to the others. The doctrine has frequently been regarded as an application of the law of estoppel, on the theory that a party cannot, in the assertion or prosecution of his rights, maintain inconsistent positions, and that where there is a choice of two remedies which proceed upon opposite and irreconcilable claims of right, the one taken must exclude and bar the prosecution of the other.

Wedgewood, 534 A.2d at 538, quoting “Election: Rescission of Damages,” 40 A.L.R. 4th 627, 630-631. See also: 25 Am.Jur.2d, Election of Remedies §§ 1, 2, 27.

Instantly, the lower court held that Rodney’s federal tort action and the appellants’ state action for breach of contract (settlement agreement) pursued inconsistent remedial rights and, thus, Rodney’s adoption of the federal tort suit precluded later resorting to a breach of contract suit. While we agree that the appellants can not prevail in their present action for breach of the settlement agreement, we are convinced that the doctrine of election of remedies is inapposite.

The doctrine of election of remedies is best exemplified by its application in contract disputes. In a breach of contract suit, the plaintiff either may rescind the contract and seek restitution or enforce the contract and recover damages based on expectation. In such a case, the inconsistent nature of those actions is obvious — one can not attempt to terminate his contractual obligations and, at the same time, seek to enforce the contract and enjoy its full benefits in an action for breach. See e.g., Wedgewood, 534 A.2d at 538-539; Raw v. Lehnert, 238 Pa.Super. 324, 329, 357 A.2d 574, 576 n. 3 (1976). Applying the doctrine, a plaintiffs decision to follow avenue A automatically precludes travel down avenue B, and visa versa. To allow a plaintiff to pursue both claims at the same time would allow the possibility of double recovery for the same wrong. However, such is not the present situation.

While an action for breach of a settlement agreement can not survive a verdict on the underlying claim and a suit on the underlying claim can not survive a verdict in favor of the plaintiff on a settlement breach action, logic dictates that an action for breach of a settlement agreement may be litigated to a defense verdict prior to a suit on the underlying claim without sacrificing a trial on the merits of the underlying claim.

Consider the following illustration: plaintiff is injured in an automobile accident where defendant was allegedly at fault. Plaintiff files a tort action after which the parties allegedly enter into a settlement agreement. Plaintiff then contends the agreement is breached by defendant. Prior to the resolution of the underlying tort claim, plaintiff files a complaint for breach of contract. The court (or jury), based on reasons other than defendant’s liability, determines that the alleged settlement agreement never existed. Applying the doctrine of election of remedies as interpreted by the trial court, plaintiff chose to pursue the breach of contract claim to the automatic preclusion of the co-existent tort remedy.

However, it is clear that the two actions are not inconsistent — the set of facts used to determine whether a contract was formed, though related, is not the same set used to answer the question of liability. Moreover, the possibility of a double recovery does not exist, i.e. either the settlement is enforced or plaintiff recovers after the subsequent tort litigation or defendant prevails in both actions. While an action on the original tort is inconsistent with a subsequent action on the settlement contract, the doctrine of election of remedies does not preclude a suit on the tort following a defense verdict on the contract action.

Before explaining why the appellants can not prevail despite the misapplication of the doctrine of election of remedies, we point to Burrus v. American Casualty, 518 F.2d 1267 (7th Cir., 1975), of which the facts are on all fours with those before us. Therein, the 7th Circuit, applying Indiana’s doctrine of election of remedies, held “when a settlement contract is breached, the plaintiff has two coexistent but inconsistent remedies available: he may treat the compromise agreement as rescinded and sue on the original tort, or he may sue on the contract, (cite omitted) The plaintiff may not, however, prosecute one of these remedies to judgement and then sue on the other.” 518 F.2d at 1269. Thus, the 7th Circuit affirmed the District Court’s dismissal of the plaintiff’s breach of contract action brought after a verdict on the merits of the underlying tort. While we believe the Court of Appeals’ reliance on the doctrine was also misplaced, the problem is really one of semantics, rather than substance. This is especially evident in light of the Court of Appeals reliance on Ludlow v. Free, 222 Ind. 568, 55 N.E.2d 318 (1944) (“the filing of the original complaint did not constitute an election of the remedies which would preclude the [plaintiffs] from amending the complaint to include an action on the contract.”)

Though we have found that the doctrine of election of the remedies does not apply to the facts sub judice, we are absolutely certain that the appellants can not prevail. The present action alleges that “the agreement to settle the federal and state lawsuits for the combined sum of $22,-000.00 was a legal, enforceable, and contractual agreement and that the Defendants had breached it by failing to pay.” Appellants’ brief at 5. It is axiomatic that a settlement, like any other agreement, to be enforceable, must possess all the elements of a valid contract. It may be attacked for want of authority or consideration or on equitable grounds which warrant it be set aside. Sale v. Ambler, 335 Pa. 165, 169, 6 A.2d 519, 521 (1939); Gogel v. Blazofsky, 187 Pa.Super. 32, 36, 142 A.2d 313, 315 (1958).

Instantly, Rodney fully litigated his federal tort suit to a final verdict in favor of the appellees. Therefore, the present suit must fail for want of consideration since the settlement was based in part upon the existence of Rodney’s federal action. Moreover, the appellants decision to forego litigation on the breach of contract action until after the final resolution of Rodney’s tort claim acted, in effect, as a repudiation of the alleged settlement agreement.

Having reviewed the record and the parties’ briefs, we affirm the trial court’s decision to dismiss the appellants’ breach of contract action. Viewing the facts in a light most favorable to the appellants, we find it clear that the appellant could not prevail upon the merits, and a trial would be a fruitless exercise. The appellants now seek to profit from their “wait-and-see” approach to litigation of this action. We neither approve nor condone such duplicity. Accordingly, order affirmed.

Order affirmed.

ROWLEY, J., concurs in the result.

      . On appeal, we may affirm the decision of the trial court even though our affirm rests upon a rationale other than that employed by the court below. Jones v. P.M.A. Ins. Co., 343 Pa.Super. 411, 495 A.2d 203 (1985); Perri v. Broad Street Hospital, 330 Pa.Super. 50, 478 A.2d 1344 (1984).
      In their preliminary objections, the appellees raised six specific demurrers to the appellants’ complaint. The lower court based its decision exclusively upon appellants’ first demurrer which reads:
      Plaintiffs’ Complaint fails to state a cause of action in that the claims averred in said Complaint are wholly barred in that the Complaint indicates that Plaintiff has elected remedies.
      Wherefore, Defendants respectfully request that this Honorable Court dismiss Plaintiffs’ Complaint with prejudice.
      We, however, prefer to ground our decision upon the appellees’ fourth demurrer which reads:
      Plaintiffs’ complaint fails to state a cause of action against Defendants in that the claims set forth in said Complaint are barred by failure of consideration, on the part of Plaintiffs which appears on the face of Plaintiffs’ complaint.
      Wherefore, Defendants respectfully request that this Honorable Court dismiss Plaintiffs’ Complaint with prejudice.

      . Fearing summary judgment in their federal action, on August 19, 1986, Lyman and Marion had a writ of summons issued from the Court of Common Pleas of Dauphin County based solely upon their state claims of intentional infliction of emotional distress.

      . Specifically, the court stated:
      As the sole plaintiff in the federal trail, Rodney Smith chose to litigate his claim in federal court rather than sue on the settlement agreement. Thus, he is precluded from suing on the settlement agreement at the present time under the Doctrine of Election of Remedies. Plaintiffs argue that at the very least, Lyman and Marion Smith should be allowed to pursue the instant action since they were dismissed from the case prior to the federal trial. However, the settlement agreement negotiated with all three plaintiffs was predicated on the existing pending federal action. Since Rodney Smith litigated the action in federal court to a verdict, there is no pending federal action and thus no settlement agreement on which to sue. Therefore, not only is Rodney Smith precluded from suing on the original settlement agreement, but his co-plaintiff parents are precluded as well.
      As the Court based its decision on the Doctrine of Election of Remedies, the remaining preliminary objections will not be discussed as they are moot.
      Opinion of Judge Natale, at p. 4.

      . See discussion, infra.

      . See Consolidation Coal Co. v. District 5, United Mine Workers of America, 336 Pa.Super. 354, 485 A.2d 1118 (1984) (claim arising out of settled action merges into settlement agreement).

      . At no time during that litigation did Rodney allege a settlement agreement existed or was breached. Had he done so, the federal District Court would have held a hearing to determine whether a valid settlement agreement had been reached, Fox v. Consolidated Rail Corp., 739 F.2d 929 (C.A.Pa., 1984), cert. denied 469 U.S. 1190, 105 S.Ct. 962, 83 L.Ed.2d 968; Pugh v. Super Fresh Food Markets, Inc., 640 F.Supp. 1306 (E.D.Pa., 1986), and this controversy would be res adjudicata..