author: WIEAND, Judge. OLSZEWSKI, Judge, FORD ELLIOTT,

text:
    669 A.2d 360
    T.A., Individually and B.A. and H.A., Minors, by their guardian Meryl Kramer v. Eugene ALLEN and Elizabeth Ann Allen, his wife, Debbie Allen. Appeal of Elizabeth Ann ALLEN.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1995.
    Filed Dec. 20, 1995.

      Cathie J. Fagan, Pittsburgh, for appellant.
    Dennis St. J. Mulvihill, Pittsburgh, for T.A., B.A. and H.A., appellees.
    Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.
   WIEAND, Judge.

Does a tenancy by the entireties of a residence create a special relationship which, under Restatement (Second) of Torts § 315, imposes a duty upon a wife to protect the husband’s minor licensees against the husband’s criminal or tortious conduct? The trial court held that a wife owed a duty of reasonable care to protect her husband’s grandchildren (by a prior marriage) from sexual abuse by the children’s grandfather, and a jury awarded damages against the wife for the husband’s conduct. This is a difficult issue. After careful consideration, however, we reverse.

In February, 1989, Eugene Allen was convicted of offenses involving the serial abuse of his three grandchildren: T.A., born June 17,1973; B.A., born September 15,1979; and H.A., born October 31, 1980. The offenses were committed in a residence, in Wilkinsburg, Allegheny County, and a cottage in Crawford County, both of which were owned jointly by Allen and his second wife, Elizabeth Ann Allen.

The three grandchildren, by their natural mother, Debbie Allen, commenced a civil action against Eugene Allen and Elizabeth Ann Allen to recover damages for the abuse committed by Allen upon his grandchildren. The complaint charged Eugene Allen with counts of battery, intentional infliction of emotional distress and negligent infliction of emotional distress. The cause of action against Elizabeth Ann Allen was based on an alleged failure to exercise due care to protect the children against the misconduct of their grandfather. Eugene Allen also caused Debbie Allen, his daughter and the mother of the children, to be joined as an additional defendant. The case was tried in September, 1992, after which the jury found in favor of the children. The jury apportioned liability as follows: Eugene Allen, eighty percent (80%); Debbie Allen, fifteen percent (15%); and Elizabeth Ann Allen, five percent (5%). The jury awarded compensatory damages in the amounts of $2,500,000 for H.A.; $1,800,000 for T.A.; and $800,000 for B.A. Punitive damages were awarded against Eugene Allen in the amount of $10,000,000 for each of the plaintiffs and against Elizabeth Ann Allen in the amount of $230,000 for each plaintiff.

Following announcement of the verdicts, the defendants filed post-trial motions seeking judgments notwithstanding the verdicts or, in the alternative, a new trial. The plaintiffs filed a motion for delay damages pursuant to Pa.R.C.P. 238. The trial court awarded delay damages and denied the motions of the defendants for post-trial relief. The verdicts were molded to reflect the award of delay damages, and judgments were entered thereon. From the entry of judgment, Elizabeth Ann Allen, filed a timely appeal. After argument before a three judge panel of the Superior Court, the appeal was certified for argument before the Court En Banc.

“Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict.” Ludmer v. Nernberg, 438 Pa.Super. 316, 321, 640 A.2d 939, 941 (1994). “In reviewing a motion for judgment n.o.v., ‘the evidence must be considered in the light most favorable to the verdict winner, and he [or she] must be given the benefit of every reasonable inference of fact arising therefrom; [] any conflict in the evidence must be resolved in his favor.’ ” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992), quoting Broxie v. Household Finance Co., 472 Pa. 373, 380, 372 A.2d 741, 745 (1977). See also: Scarborough v. Lewis, 523 Pa. 30, 36, 565 A.2d 122, 124 (1989). “[J]udgment notwithstanding the verdict may be entered only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds could fail to agree that the verdict was improper.” Murray v. Philadelphia Asbestos Corp., 433 Pa.Super. 206, 212, 640 A.2d 446, 449 (1994). See also: DiFrancesco v. Excam, Inc., 434 Pa.Super. 173, 177-178, 642 A.2d 529, 531 (1994); Armstrong v. Paoli Memorial Hospital, 430 Pa.Super. 36, 41-42, 633 A.2d 605, 608 (1993).

In order for liability to be imposed upon a defendant in a negligence action, the plaintiff must establish:

the existence of a duty or obligation recognized by law; a failure on the part of the defendant to conform to that duty, or a breach thereof; a causal connection between the defendant’s breach and the resulting injury; and actual loss or damage suffered by the complainant. See Morena v. South Hills Health System, 501 Pa. 634, 642 fn. 5, 462 A.2d 680, 684 fn. 5 (1983).

Orner v. Mallick, 515 Pa. 132, 135, 527 A.2d 521, 523 (1987). See also: Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 213, 616 A.2d 657, 659 (1992). “ ‘Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time.’” Pittsburgh National Bank v. Perr, 431 Pa.Super. 580, 584, 637 A.2d 334, 336 (1994) (emphasis deleted), quoting Morena v. South Hills Health System, 501 Pa. 634, 642, 462 A.2d 680, 684 (1983).

“Where there is no duty of care, there can be no negligence.” Maxwell v. Keas, 433 Pa.Super. 70, 73, 639 A.2d 1215, 1217 (1994). See also: Boyce v. United States Steel Corp., 446 Pa. 226, 230, 285 A.2d 459, 461 (1971); Zanine v. Gallagher, 345 Pa.Super. 119, 123, 497 A.2d 1332, 1334 (1985). In Wenrick v. Schloemann-Siemag Aktiengesellschaft, 523 Pa. 1, 564 A.2d 1244 (1989), the Supreme Court said:

Before a person may be subject to liability for failing to act in a given situation, it must be established that the person has a duty to act; if no care is due, it is meaningless to assert that a person failed to act with due care. Certain relations between parties may give rise to such a duty. Although each person may be said to have a relationship with the world at large that creates a duty to act where his own conduct places others in peril, Anglo-American common law has for centuries accepted the fundamental premise that mere knowledge of a dangerous situation, even by one who has the ability to intervene, is not sufficient to create a duty to act.

Id. at 8, 564 A.2d at 1248. See: Restatement (Second) of Torts, § 314.

In this case, appellant did not cause injury to the grandchildren by her own, affirmative conduct. The allegation, rather, was that she had failed to protect her husband’s grandchildren from pedophilic tendencies of her husband of which she knew or should have known. At Section 315 of the Restatement (Second) of Torts, the applicable rule of law is recited as follows:

§ 315. General Principle
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.

Restatement (Second) of Torts, § 315. Therefore, “[a]s a general rule, a person is not liable for the criminal conduct of another in the absence of a special relationship imposing a pre-existing duty.” Elbasher v. Simco Sales Service of Penn sylvania, 441 Pa.Super. 397, 398-400, 657 A.2d 983, 984 (1995), citing Feld v. Merriam, 506 Pa. 383, 392, 485 A.2d 742, 746 (1984).

Section 314A of the Restatement lists the following special relations which give rise to a duty to act affirmatively to protect another:

(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.

Our review of the record fails to disclose any special relationship between the grandchildren and appellant which would impose upon appellant a duty of exercising due care to protect the children from criminal abuse by their own grandfather. The children were not appellant’s grandchildren; she happened to be married to their grandfather. When the minor plaintiffs visited their grandfather, they were his guests. They were not in appellant’s custody, and there is no evidence that on such occasions appellant assumed any responsibility for or special relationship to the children. It is difficult under these circumstances to find any legal basis for imposing upon appellant an affirmative duty to protect the children. They were her husband’s grandchildren, and they had come to visit their grandfather. Appellant “was not present when the wrong was done and had in no way aided or abetted, counselled or encouraged its commission.” Hinski v. Stein, 68 Pa.Super. 441, 442 (1917). Cf. Community Federal Savings & Loan Ass’n v. Luckenbach, 436 Pa. 472, 476, 261 A.2d 327, 329 (1970) (“a husband is not responsible for the tortious acts of his wife committed outside his presence and without his actual or implied consent or direction.”).

The court in this case held and charged the jury that appellant had a duty to protect minors who came upon entire-ties property from others on the premises who were know to present a danger to the minors. In so doing, the trial court

failed to recognize the crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person. In the former situation the land[ower] has effectively perpetuated the risk of injury by refusing to correct a know and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the conduct of the land[ower] but from the conduct of an unpredictable independent agent.

Feld v. Merriam, supra at 392, 485 A.2d at 746.

“The standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee, or business invitee.” Trude v. Martin, 442 Pa.Super. 614, 624, 660 A.2d 626, 630 (1995). See: Carrender v. Fitterer, 503 Pa. 178, 184, 469 A.2d 120, 123 (1983). These classifications have been explained as follows:

The Restatement (Second) of Torts § 329 defines a trespasser as “a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” See also Oswald [v. Hausman], supra, 378 Pa.Super. 245, 253, 548 A.2d 594, 598 (1988). In contrast, a licensee is “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.” § 330 of the Restatement; see also Oswald, 378 Pa.Super. at 254, 548 A.2d at 599. Finally, an invitee is described as follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with the business dealings with the possessor of the land.

Restatement (Second) of Torts § 332. Ott v. Unclaimed Freight Co., 395 Pa.Super. 483, 488, 577 A.2d 894, 896 (1990).

As to appellant, the grandchildren’s status could only have been that of licensees. The record does not show an invitation by appellant to her husband’s grandchildren. In fact, it was an invitation by the grandfather to which the children responded. Moreover and in any event, it is apparent they were not there to engage in business relations with appellant and, therefore, were not business invitees.

“Generally, a landowner owes to a mere licensee a duty to avoid injuring him through active negligence.” 27 P.L.E., Negligence, § 43, at 73. Section 342 of the Restatement, which requires a possessor of land to warn his or her licensees of certain “conditions on the land,” does not have application to the risk of injury from criminal acts of third persons. See: Feld v. Merriam, supra. See also: Restatement (Second) of Torts, § 344, which imposes a duty upon a possessor of land, who holds it open to the public to enter for business purposes, to exercise reasonable care to protect or warn against “the accidental, negligent or intentionally harmful acts of third persons or animals.” The Restatement does not impose upon a landowner a similar duty as to licensees. There is no special relationship between a possessor of land and a licensee which creates a duty upon the possessor of land to protect or warn licensees, whether adult or minor, against criminal acts committed on the land by a third person.

The children in the instant case were the guests of their grandfather. Appellant did not acquire a duty to protect them from the grandfather’s criminal misconduct merely because she was a tenant by the entireties with the grandfather, her husband, of the real estate on which the visits occurred. Indeed, to impose such a duty would be to place appellant in an untenable position between her husband and his grandchildren and impose upon her an impossible burden of insuring the safety of her husband’s grandchildren during visits between grandfather and grandchildren.

We hold, therefore, that the decision in this case is controlled by the legal principle contained in Section 315 of the Restatement (Second) of Torts. Under this rule, there is no duty to control the conduct of a third person so as to prevent him or her from causing physical harm to another person unless a special relationship exists between the actor and the third person or the actor and the person injured. In this case, the minor plaintiffs failed to prove a special relationship that would create an exception to the general rule. Therefore, appellant had no duty to control her husband’s conduct so as to protect the children whom he invited to visit and whom he surreptitiously abused. Appellant did not take on liability merely because she happened to be a co-owner of the building in which the criminal misconduct occurred.

Judgment reversed and entered n.o.v. in favor of appellant.

OLSZEWSKI, J., liles a concurring and dissenting opinion in which TAMILIA, J., joins.

FORD ELLIOTT, J., files a dissenting opinion in which SAYLOR, J., joins.

OLSZEWSKI, Judge,

concurring and dissenting.

Despite our agreement with the majority’s determination regarding Elizabeth Allen’s duty to protect, we would remand for a new trial on the issue of Elizabeth’s duty to warn.

Eugene Allen sexually abused his three grandchildren, for which he will spend the rest of his life in prison. In this civil suit, a jury also found that his acts of molestation constituted intentional torts so outrageous as to merit ten million dollars in punitive damages for each abused child. There can be no question that Eugene Allen’s actions caused enormous damage, and he has been punished commensurately. The question in this appeal is whether his wife Elizabeth can also be held hable because she co-owns the property where the abuse occurred.

Elizabeth Ann Allen is not biologically related to the appellees; she is their step-grandmother. The appellees sued her in negligence, arguing that as co-owner of the property, she had a duty to protect them from dangers on the property— namely, their pedophilie grandfather. The evidence at trial showed that Elizabeth Allen knew or had reason to know of her husband’s sexual tastes and practices. The evidence also showed that she averted her eyes to the abuse taking place in her home. Most decent members of society would no doubt agree that Elizabeth Allen had a moral obligation to do something to protect these children from their grandfather’s acts of molestation.

Moral obligations, however, do not automatically give rise to legal liability. Our law imposes no general duty to rescue, for example. A duty to act ordinarily will not lie absent some special relationship between the party in danger and the party charged with liability. See Restatement (Second) of Torts, §§ 314-20. Here, the trial court allowed the jury to find Elizabeth Allen liable to her step-grandchildren solely because of her status as co-owner of the property where the abuse occurred. We believe that the trial court misstated the nature of her legal duties, and as a result she is entitled to a new trial.

It is still the law in this Commonwealth that “the standard of care a possessor of land owes to one who enters upon the land depends upon whether the person entering is a trespasser, licensee, or invitee.” Carrender v. Fitterer, 503 Pa. 178, 183-185, 469 A.2d 120, 123 (1983). Appellees concede that with respect to Elizabeth Allen, they were licensees. Appellees’ brief at 19. Indeed, Elizabeth Allen never invited them onto the property, nor was she even present when the acts of abuse occurred. R.R. 1039a, 1044-46a, 1172-73a, 1196a, 1273-74a, 1315a. At most, Allen merely knew of their presence on the property, and acquiesced.

The trial court instructed the jury that as a property owner, Elizabeth Allen had a duty to protect appellees from the criminal acts of third parties. Specifically, the court charged:

... With regard to the duty owed by a property owner— now, this would be pertinent in the case against Elizabeth Ann Allen — you should know the following:
An owner of the premises, the property, has a duty to use reasonable care, reasonable care to eliminate any danger to minors who are on the premises with permission, or to protect said minors from any person the owner knows or should know poses a danger to the minors on the premises.

R.R. 1508a. We believe that this instruction correctly expresses the duties that a possessor of property owes to invitees, but not licensees. For gratuitous licensees like appellees, we think the most Elizabeth Allen could be legally required to do was to warn them of their potential peril.

I.

It is a fair statement of the law that a landowner has a duty to make his premises safe for invitees, including a duty to protect invitees from the criminal or tortious conduct of third persons. Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480 (1980); Restatement (Second) of Torts, § 344. If Elizabeth Allen had been offering piano lessons in her home, then it would not have sufficed to merely warn her young students: “Watch out for my husband — he’s a pedophile and might molest you.” Rather, Allen would either have to make her home safe for her students, or find another place to teach lessons.

Liability for the acts of third parties extends only to invitees, however. There is no general rule which holds landowners liable to licensees for the criminal or tortious acts of third parties. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). A landowner may well be liable to licensees for dangerous “conditions on the land.” See id.; Restatement (Second) of Torts, § 342. Indeed, for certain dangerous conditions, liability will extend even to trespassing children. Id. at § 343B (the attractive nuisance doctrine). In the context of a landlord’s liability to his tenants, our Supreme Court in Feld thoughtfully distinguished between conditions on the land and acts of third parties:

The threshold question is whether a landlord has any duty to protect tenants from the foreseeable criminal acts of third persons, and if so, under what circumstances. Well settled law holds landlords to a duty to protect tenants from injury rising out of their negligent failure to maintain their premises in a safe condition____ The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of one’s personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.

Feld, 506 Pa. at 390, 485 A.2d at 745 (citations omitted). Our high court went on to reaffirm its adoption of section 344 of the Restatement, that landowners can be liable to invitees for the criminal or tortious acts of third parties, but not to licensees. Id.

Since her step-grandchildren were licensees, Elizabeth Allen had no duty to protect them from the independent tortious acts of her husband. Nor was her husband a “condition on the land” which could trigger a duty to protect or warn the minor-appellees, regardless of their entry status. As the trial court noted, other jurisdictions have seen fit to erase the distinction between invitees and licensees, e.g. Anaya v. Turk, 151 Cal.App.3d 1092, 199 Cal.Rptr. 187 (1984), or between third parties and conditions on the land, e.g. Jobe v. Smith, 159 Ariz. 36, 764 P.2d 771 (1988); trial court opinion, 2/28/94 at 33. So far, our high court has not followed suit. Until it does, we are bound to observe these well-established distinctions.

Moreover, we believe there is still good reason for maintaining these distinctions. When one considers how Elizabeth Allen might attempt to discharge a duty to protect the appellees, the wisdom of the invitee/lieensee distinction becomes apparent. Elizabeth Allen could not call the sheriff to eject her husband because Eugene Allen co-owned the property. Nor could she necessarily assert any control over her husband’s activities. Cf. Restatement (Second) of Torts, § 318 (possessor of land may have a duty to control licensees, and prevent them from harming others). Nor could Elizabeth prevent the appellees from accepting their grandfather’s invitations to visit. As co-owner, Eugene had every right to invite appellees onto the property, and Elizabeth had no lawful power to exclude them. See, e.g., McGowan v. Bailey, 179 Pa. 470, 36 A. 325 (1897); 14 P.L.E. § 45.

If a business owner cannot insure the safety of her patrons, she has the option of closing up shop and moving to a new location. A landowner can simply stop inviting the public onto dangerous property, and thus avoid having to insure invitees against the potential torts of third parties. Imposing a duty to protect licensees upon a landowner who lacks the power to do so would effectively make the landowner an involuntary insurer of the licensees’ safety. The law cannot reasonably demand that a landowner protect the safety of people whom she cannot exclude, against dangers she cannot eliminate. Yet that is precisely the duty which the trial court’s instruction imposed on Elizabeth Allen.

II.

Appellees also argue that Elizabeth Allen owed them a duty of care by virtue of a special relationship, but nowhere state precisely what this relationship is. The sum of appellees’ argument is that they were children, while Allen was an adult with knowledge of the peril posed by their grandfather. Appellees’ brief at 27.

The question of when one has a duty to protect others is discussed in the Restatement (Second) of Torts, §§ 314-20. Appellees were not related to Elizabeth Allen, were never in her custody, and she never assumed any responsibility towards their protection. Appellees do not cite, nor are we aware of any Pennsylvania caselaw which recognizes a special relationship between adults and children generally, such that an adult with knowledge of a particular danger must act to protect any child subject to that danger.

The Restatement, however, does not speak kindly of the rule that people have no obligation to help others, absent a special relationship:

The result of the rule has been a series of older decisions to the effect that one human being, seeing a fellow man in dire peril, is under no legal obligation to aid him, but may sit on the dock, smoke his cigar, and watch the other drown. Such decisions have been condemned by legal writers as revolting to any moral sense, but thus far they remain the law. It appears inevitable that, sooner or later, such extreme cases of morally outrageous and indefensible conduct will arise that there will be further inroads upon the older rule.

Restatement (Second) of Torts, § 314 comment c. We believe that this is such a case.

The concept of duty is constantly evolving. Our high court has recognized that duties are not entirely constrained by prior caselaw, but may respond to current policy considerations:

In determining the existence of a duty of care, it must be remembered that the concept of duty amounts to no more than “the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection” from the harm suffered. To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times. The late Dean Prosser expressed this view as follows:
These are shifting sands, and no fit foundation. There is a duty if the court says there is a duty; the law, like the Constitution, is what we make it. Duty is only a word with which we state our conclusion that there is or is not to be liability; it necessarily begs the essential question.... In the decision whether or not there is a duty, many factors interplay: The hand of history, our ideas of morals and justice, the convenience of administration of the rule, and our social ideas as to where the loss should fall. In the end the court will decide whether there is a duty on the basis of the mores of the community, “always keeping in mind the fact that we endeavor to make a rale in each case that will be practical and in keeping with the general understanding of mankind.”

Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-55, 573 A.2d 1016, 1020 (1990) (quoting Sinn v. Burd, 486 Pa. 146, 164, 404 A.2d 672, 681 (1979)).

Just because there is no Pennsylvania precedent for imposing any duty upon Elizabeth Allen does not mean that this must be the rule in this case. The facts of this ease strongly implicate “our ideas of morals and justice” and “the mores of the community.” Appellees, while mere licensees, were children. They were particularly ill-equipped to recognize and deal with the danger posed by their grandfather. The bizarre details of Eugene Allen’s pedophilie practices which came out at trial demonstrate the exceptional magnitude of this danger. Also, Elizabeth Allen had first-hand knowledge of her husband’s pedophilie practices. These weighty factors must coalesce into some kind of duty.

While we believe that our law cannot and should not impose upon Elizabeth Allen the unworkable duty of protecting her step-grandchildren, we think the law can and should impose a duty to warn them of their grandfather’s known propensity for sexually abusing children. Accord Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980) (where wife knew that her husband was a sex offender and was inviting minors home while she was at work, wife had a duty to warn minor licensees of the danger).

III.

The trial court went further, however, and instructed the jury that Elizabeth Allen had a duty to protect her step-grandchildren. As we have set forth, such a duty goes too far. It was error to instruct the jury that Elizabeth Allen was legally required to do something which she was not legally empowered to do, and which sound rules of well-established law do not countenance. The most the trial court should have charged is that Elizabeth Allen had a duty to warn her step-grandchildren or their mother of the danger posed by their grandfather.

Nor can we consider the court’s instruction harmless error. On the basis of the court’s erroneous instruction, the jury apportioned the negligence 80% to Eugene Allen, 15% to Deborah Allen (the appellees’ mother), and only 5% to Elizabeth Allen. R.R. 1508a. Despite being told that Elizabeth Allen had a duty to protect the appellees, the jury still found their mother Deborah to be more culpable than Elizabeth. Had the jury been properly instructed that Elizabeth only had a duty to warn Deborah Allen and her children of Eugene’s pedophilia, it may have found her less culpable yet, or even entirely blameless. Accordingly, we would vacate the judgment against Elizabeth Allen and remand for a new trial.

TAMILIA, J., joins.

FORD ELLIOTT,

Judge, dissenting.

Having carefully reviewed both the majority opinion of my colleague Judge Wieand and the concurring and dissenting opinion of my colleague Judge Olszewski, I find that I must respectfully dissent as to both. I would affirm the order of the trial court denying appellant Elizabeth Ann Allen’s motions for post-trial relief. My reasons follow.

As do my colleagues, I recognize that Pennsylvania still adheres to the view that “‘[t]he standard of care which a possessor of land owes to an entrant upon the land depends upon whether the entrant is a trespasser, licensee, or business invitee.’ ” (Majority opinion at 309, quoting Trude v. Martin, 442 Pa.Super. 614, 624, 660 A.2d 626, 630 (1995).) I also agree with my colleagues that the children in the instant case were licensees. (Majority opinion at 308-309.) Additionally, I do not take issue with my colleagues’ statement of the duty generally owed by a possessor of land to a licensee. (Id. at 310, citing § 342 of the Restatement of the Law (Second) of Torts (possessor of land has a duty to exercise reasonable care to make a condition upon the land safe or to warn the licensee of the condition and the risk involved where the possessor of land knows or has reason to know of the condition and should realize it involves an unreasonable risk of harm to such licensees, and should also expect that the licensees will not discover or realize the danger).) It is at this point in the analysis, however, that I must part company with my colleagues, for different reasons.

The majority finds that the children were licensees, that appellant’s husband was not a condition on the land, and that, therefore, appellant had no duty as a possessor of land to protect the children from her husband. (Majority opinion at 310.) The majority then finds no “special relationship,” as that term is defined in the Restatement, between appellant and the children that would impose upon appellant a duty to control the conduct of third persons who might harm the children. (Id. at 311, citing Restatement (Second) of Torts § 315 (1965) and sections referred to therein.) Having thus found no duty as a possessor of land, and no special relationship that imposes a duty, the majority finds no duty at all.

The concurring and dissenting opinion of Judge Olszewski, on the other hand, would find a duty based upon appellant’s status as a possessor of land, but would limit that duty to a duty at most to warn the children licensees of the danger posed by their grandfather. (Concurring and dissenting opinion at 312-313.) Judge Olszewski recognizes, however, that licensees are only protected from conditions upon the land. In addition, Judge Olszewski acknowledges that Pennsylvania has yet to find a special relationship between adults and children, generally, that would impose upon adults with knowledge of a particular danger to children a duty to act to protect a child subject to that danger. (Id. at 314-317.) Nevertheless, Judge Olszewski, recognizing the “shifting sands” upon which the law imposes a duty of care, is willing to find, from the children’s status as children, from “our ideas of morals and justice,” and from “the mores of the community,” a duty on the part of appellant to warn the children of the danger posed by their grandfather. (Id. at 316-317, quoting Gardner by Gardner v. Consolidated Rail Corp., 524 Pa. 445, 454-55, 573 A.2d 1016, 1020 (1990) (other citations omitted).)

I agree with Judge Olszewski that:

[T]he concept of duty amounts to no more than ‘the sum total of those considerations of policy which led the law to say that the particular plaintiff is entitled to protection’ from the harm suffered. To give it any greater mystique would unduly hamper our system of jurisprudence in adjusting to the changing times.

Concurring and dissenting opinion at 316, quoting Gardner, supra at 454-55, 573 A.2d at 1020 (other citations omitted). As a result, I would agree with him that appellant had a duty to warn; however, I would find that duty encompassed within a broader duty to protect, for the following reasons.

Pennsylvania has adopted the so-called “attractive nuisance” or “child trespasser” doctrine, which states:

§ 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Restatement (Second) of Torts § 339 (1965) (emphasis added). See Carter by Carter v. United States Steel Corp., 390 Pa.Super. 265, 276-77, 568 A.2d 646, 651 (1990) (noting that the Pennsylvania Supreme Court adopted § 339 in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949)), affirmed in part, reversed in part on other grounds, 529 Pa. 409, 604 A.2d 1010 (1992), cert. denied sub nom. U.S. Steel v. Carter, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992). It is thus clear that Pennsylvania, as well as almost every other jurisdiction, recognizes a distinction between children who enter upon the land, even as trespassers, and adults who do likewise. The possessor of land who knows that children are likely to trespass on his or her land, and who also knows of an artificial condition on the land that poses a threat of serious bodily injury or death, owes the children the same duty he or she would owe an invitee; namely, a duty to protect. See § 343(c), Restatement (Second) of Torts (1965). See also § 369 (possessor of land is subject to liability for physical harm caused to children by an artificial condition maintained by him on the land so close to the highway that it involves an unreasonable risk to such children because of their tendency to deviate from the highway).

The reason for our heightened protection of children is grounded in the public policy that society should protect those who are too young, too innocent, or too defenseless to protect themselves. As a result, we recognize that a sign posted beside a swimming pool would do little to deter a young trespassing child, even if he or she could read, from jumping in on a hot day. Throughout the law, there exists this heightened protection afforded to children. We grant immunity from criminal or civil liability to those who make a good-faith report of suspected child abuse, 23 Pa.C.S. § 6318(a), and we presume good faith. 23 Pa.C.S. § 6318(b). Physicians, nurses, teachers, day-care workers, and others who encounter suspected instances of child abuse in the course of their employment are required by law to report these instances to child protective agencies, and may face summary or misdemeanor charges for the willful failure to comply. 23 Pa.C.S. §§ 6311, 6319. We impose upon social hosts civil liability for the consequences of serving alcoholic beverages to minors. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). We also impose criminal accomplice liability upon adults who obtain alcoholic beverages for minors. 18 Pa.C,S.A. §§ 306, 6308. See generally 18 Pa.C.S.A. §§ 6301-6314 (minors). As a society, we do all of this in recognition of the fact that children aré usually not able to appreciate the risk inherent in their actions, and that even warnings are inadequate to protect those who are too immature or too innocent to understand the danger.

The majority argues that finding a duty on the part of appellant to protect children coming onto her property from the harmful acts of third parties is precluded by our supreme court’s decision in Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984). With all due respect to the majority, I must disagree. In Feld, a couple was abducted and brutally assaulted by an unknown assailant in the parking garage of the large apartment complex in which they resided. In refusing to extend to the apartment complex owners a duty to protect tenants from the criminal acts of unknown third parties, the supreme court stated:

The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of oné’s personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.

Feld, supra at 390, 485 A.2d at 745 (emphasis added). The Feld court continued:

The Superior Court viewed the imposition of this new duty [to protect against harmful acts of third persons] as merely an extension of the landlord’s existing duty to maintain the common areas to be free from the risk of harm caused by physical defects. However, in so holding that court failed to recognize the crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal acts of a third person. In the former situation the landlord has effectively perpetuated the risk of injury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the conduct of the landlord but from the conduct of an unpredictable independent agent. To impose a general duty in the latter could effectively require landlords to be insurers of their tenants [sic] safety; a burden which could never be completely met given the unfortunate realities of modern society.

Id. at 392, 485 A.2d at 746 (emphasis added). Clearly, the facts of the instant case are distinguishable. Under Feld, I could not impose upon appellant a duty to protect children from the unpredictable acts of unknown third parties; rather, I would impose upon her a duty to protect them from the predictable acts of known third parties, because she effectively perpetuated the risk of injury by refusing to respond to a known and verifiable risk to the children. As in Judge Olszewski’s example, just as appellant would owe a duty to protect the child who comes to her home for piano lessons, as a business invitee, from her husband’s known abuse, so too should appellant owe the same duty to protect the child who comes to her home as a licensee merely to practice on her piano. Similarly, the child who comes to one’s home as an invitee to purchase home-made candy should receive no more protection from the known propensity of a person on the premises to contaminate the candy than would the child who comes to one’s home as a licensee to trick-or-treat on Halloween. To require anything less is to countenance an absurd result.

Nor is there a valid public policy consideration behind refusing to impose a duty on appellant in the instant case, as there was in Feld. The Feld court was properly concerned with making apartment complex owners insurers of their tenants’ safety in a world in which “[t]he criminal can be expected anywhere, any time, and has been a risk of life for a long time.” Feld, supra at 391, 485 A.2d at 746. Recognizing that providing such “insurance” would dramatically increase the costs of owning apartment complexes, and that these costs would inevitably be passed along to tenants, the Feld court wisely decided it could not impose such a duty. Instantly, however, the cost of protecting the children from a known child abuser could amount to nothing more than the cost of a telephone call — to the parents, the police, or the local child protection service.

While no one section of the Restatement, and no Pennsylvania case, directly imposes upon possessors of land a heightened duty toward children to protect them from the harmful acts of known third persons regardless of their status as trespassers, licensees or invitees, several sections recognize such a duty where a special relationship exists between the possessor of land and the person coming on the land. See Restatement (Second) of Torts §§ 315, 314A, & 320 (1965), cited with approval in Maxwell v. Keas, 433 Pa.Super. 70, 639 A.2d 1215 (1994); Troxel v. A.I. duPont Institute, 431 Pa.Super. 464, 636 A.2d 1179 (1994); Johnson v. Johnson, 410 Pa.Super. 631, 644, 600 A.2d 965, 971-72 (1991); Stupka v. Peoples Cab Co., 437 Pa. 509, 264 A.2d 373 (1970). Section 314A(3), for example, recognizes a special relationship between a possessor of land who holds it open to the public and members of the public who enter in response to his invitation, even where their presence on the land is not in furtherance of any pecuniary interest of the possessor of land. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 61, at 421-424 (5th ed. 1984). As a result, such a possessor of land would have a duty to protect those coming onto his land by invitation from the harmful acts of third persons. See § 315. Section 344 imposes upon a possessor of land who holds it open to the public for entry for his business purposes a duty to protect those members of the public on his land from the accidental, negligent or intentionally harmful acts of third persons or animals. See Johnson v. City of Philadelphia, 657 A.2d 87 (Pa.Cmwlth.1995) (citing § 344 with approval but holding that plaintiff must still show that alleged negligent conduct falls within an exception to immunity provided state employees). Section 509 imposes absolute liability on a dog owner who is aware of the animal’s vicious propensities, and whose dog injures a person coming on the land, regardless of the status of the person. While this section has not been adopted in Pennsylvania, our supreme court has adopted the theory that a dog owner is liable for negligently failing to control or restrain a dog when he knows of the dog’s vicious propensities. Andrews v. Smith, 324 Pa. 455, 188 A. 146 (1936). Accord Deardorff v. Burger, 414 Pa.Super. 45, 606 A.2d 489 (1992), allocatur denied sub nom. Deardorff v. Miller, 532 Pa. 655, 615 A.2d 1312 (1992).

The only instances in which the Restatement addresses the duty of landowners to children specifically occur in § 339, set forth supra, and in § 369. It is instructive that in both instances, the Restatement abandons the distinctions among trespassers, licensees, and invitees as they pertain to children who come onto the land and are harmed by an artificial condition upon the land. See § 343B. I would find guidance from these sections, and hold that the distinction also blurs, with regard to children who are harmed by a known third person with known “vicious propensities.” To extend such protection merely acknowledges that which the law of Pennsylvania has already acknowledged; that children are, by their very nature, in need of greater protection than adults. Such a result also enables us to avoid the anomaly of imposing a duty upon one such as appellant to protect a child who comes onto her property from drowning in her swimming pool, while imposing no duty to protect a child who comes onto her property from the known harmful acts of a known third person. See Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980).

Both the majority and the concurrence and dissent make much of the fact that appellant may have been unable to keep the children from coming onto her property since they were her husband’s grandchildren, and he eo-owned the property. See majority opinion at 311 (“Indeed, to impose such a duty would be to place appellant in an untenable position between her husband and his grandchildren and impose upon her an impossible burden of insuring the safety of her husband’s grandchildren during visits between grandfather and grandchildren”); concurring and dissenting opinion, Olszewski, J. at 315 (“The law cannot reasonably demand that a landowner protect the safety of people whom she cannot exclude, against dangers she cannot eliminate.”). First, I note that the law imposes just such a duty in the case of child trespassers; namely, a duty to protect these children, who by definition cannot effectively be excluded, from a danger that cannot be eliminated. See § 339 of the Restatement (Second) of Torts, set forth supra. More importantly, however, the issues raised by my colleagues are not issues that go to appellant’s duty toward the children; rather, these are issues that go to the reasonableness of appellant’s efforts to protect the children, and are therefore properly questions for the jury. The duty imposed should be a duty to eliminate the danger or otherwise to protect, where protection subsumes warning an appropriate adult if a warning would be adequate to protect the child. In the instant case, whether merely warning the children’s mother of their grandfather’s abusive practices would have sufficed to meet this duty is not an issue before us, because appellant has never argued that she tried, but failed, to warn or otherwise to protect. Rather, she has argued only that she owed no duty whatsoever to these children, related by marriage, who came to her door, entered her home, and therein were systematically abused by a man who appellant knew kept a studio devoted to sexual experiments on young children. I do not believe that “our ideas of morals and justice” allow of such a result.

As a result of the foregoing, I would find that the trial court’s instruction to the jury on the issue of duty, which charged that appellant had a duty to eliminate the danger or to protect the children, accurately reflected the appropriate duty of a possessor of land to any child coming onto his or her property. While the trial court did not specifically mention a duty to warn, which duty is subsumed by the duty to protect, I would find such an omission harmless in view of the total lack of evidence that any warning was given, either to the children or to an appropriate adult.

As Judge Olszewski observed, the late Dean Prosser described the concept of duty as one built upon shifting sands: “There is a duty if the court says there is a duty ... Duty is only a word with which we state our conclusion that there is or is not to be liability....” Concurring and dissenting opinion, Olszewski, J. at 316-317, quoting Gardner, supra at 454-55, 573 A.2d at 1020 (other citations omitted). To the extent that the law does not yet impose a duty upon a possessor of land such as appellant to protect children from the known harmful acts of known third persons, I would seize this opportunity to do so, and would affirm.

SAYLOR, J., joins.

      . Guardians were appointed to represent B.A. and H.A., but T.A., who had attained the age of 18 by the time of trial, was permitted tc proceed as a plaintiff in her own right.

      . In an unpublished memorandum decision, the Superior Court rejected an appeal by Eugene Allen and affirmed the judgment against him. See: Allen v. Allen, 441 Pa.Super. 663, 657 A.2d 45 (1994). There is no indication in the record that Debbie Allen ever filed an appeal from the judgment entered against her.

      . Because we agree with appellant that she was entitled to a judgment n.o.v., we find it unnecessary to address the remaining issues which she raised as follows:
      2. Whether the lower court erred in permitting testimony and/or the introduction of other evidence of a third person’s abuse on minors other than the plaintiff-appellees during plaintiff-appellees’ case against a party other than the third person-abuser?
      3. Whether ihe lower court erred in permitting testimony concerning evidence of criminal activity hidden or locked away by a third person and/or permitting the introduction of such evidence in the plaintiff-appellees’ case against a party other than the third person abuser?
      4. Whether the lower court erred in permitting testimony concerning a third person’s diaries of criminal activity (e.g., the “criminal trial diaries”) and the introduction of said third person's diaries in the plaintiff-appellees' case against a party other than the third person author without proper authentication?
      5. Whether the lower court erred in permitting testimony and/or evidence regarding defendant-appellant’s pre-marital relationship with a co-defendant, while excluding testimony regarding defendant-appellant’s childhood and personal family history?
      6. . Whether the lower court erred in denying the disclosure of a pre-sentence report prepared in the criminal trial of a co-defendant during the discovery phase and/or trial of the within civil action?
      7. Whether the defendant-appellant may properly be held liable for punitive damages?
      8. Whether the lower court erred in instructing the jury regarding the proper measure of damages applicable to the instant matter?
      9. Whether the lower court erred in granting plaintiff-appellees’ Motion to Add Damages for Delay for emotional injuries?
      10. Whether the lower court erred in the manner in which it molded the compensatory damage award to include delay damages?
      11. Whether the lower court erred in denying defendant-appellant's Motion to Disqualify plaintiffs’ law firm from the representation of the plaintiffs?

      . "An owner or occupant of premises is under no higher duty of care and liability toward infant licensees than is imposed on him with respect to adult licensees.” 27 P.L.E., Negligence, § 49, at p. 97.

      . Section 343B recognizes that situations in which a possessor of land is subject to liability to children as trespassers also subjects the possessor of land to liability to children who are licensees and invitees.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    669 A.2d 372
    In re Nalonni Renee DIAZ. Appeal of Yvonne LAVENTURE.
    Superior Court of Pennsylvania.
    Submitted Sept. 25, 1995.
    Filed Dec. 22, 1995.

      James D. Wolman, Lancaster, for appellant.
    Heather J. Mumma, Mount Joy, for appellee.
    David E. Alspach, Lancaster, for Children & Youth Services, participating party.

      Before CAVANAUGH, BECK and MONTGOMERY, JJ.
   CAVANAUGH, Judge:

In 1992, the Lancaster County Children and Youth Social Service Agency (CYS) filed a petition under 23 Pa. Cons.Stat. Ann. § 2511 to terminate the rights of Yvonne Laventure (mother) and William Diaz, also known as William Merced, to their daughter Nalonni Renee Diaz. The trial court entered a decree nisi terminating parental rights. Yvonne Laventure filed exceptions to the decree nisi, which the trial court dismissed. She now appeals from a final decree terminating parental rights. After careful review of the record, we affirm.

Yvonne Laventure had just reached her sixteenth birthday when she gave birth to Nalonni on March 16, 1989. They lived with Ms. Laventure’s mother in Lancaster County. On April 7, 1989, CYS took physical custody of Nalonni due to unsafe and unsanitary living conditions in the home. On April 17,1989, after a hearing, the court adjudicated Nalonni dependent.

On May 4, 1989, CYS approved a placement plan amendment which outlined the prerequisites for Nalonni’s return to her mother. The plan required mother to “obtain clean and stable housing, lead a drug free lifestyle, improve her knowledge of child development and parenting skills, and find acceptable caretakers for the child in the mother’s absences.”

CYS referred mother to drug and alcohol counselling, and education and employment training. CYS further provided transportation assistance, and began efforts to assist mother with housing needs. Mother moved to several locations in Lancaster, Reading and New York between May, 1989 and November, 1992, making visitation more difficult. Lancaster County CYS gave referrals to agencies in New York and Reading, yet mother never followed through with the assistance, nor did she complete the plan.

Mother’s visits with Nalonni decreased over time. The following chart reflects this decrease:

Time Period No. visits/No. scheduled

5/89 to 10/89 11 of 16

10/89 to 5/90 4 of 8

3/90 to 10/90 2 of 7

10/90 to 3/91 1

3/91 to 9/91 no contact

9/91 to 11/92 1

Since March, 1991 the mother has done virtually nothing to parent Nalonni. During the four visits since March, 1990, Nalonni cried and clung to the foster parent or caseworker during the mother’s visits, and barely recognized mother.

Appellant presents the following issues for review:

The trial court abused its discretion and erred as a matter of law in involuntarily terminating mother’s parental rights because:
1. The agency violated federal law when it failed to render adequate services before removing Nalonni from mother’s home.
2. The agency failed to render any services to mother, herself a juvenile, to address the same conditions of neglect which necessitated the removal of the child.

For cases involving involuntary termination of parental rights, the standard of review is stated in In re J.W., 396 Pa.Super. 379, 387, 578 A.2d 952, 956 (1990), as follows:

In cases where there has been involuntary termination of parental rights our scope of review is limited. We are bound by the findings of the trial court which have adequate support in the record so long as the findings do not evidence capricious disregard for competent and credible evidence. The trial court is free to believe all, part, or none, of the evidence presented, and is likewise free to make all credibility determinations and resolve conflicts in the evidence. Though we are not bound by the trial court’s inferences and deductions, we may reject its conclusions only if they involve errors of law or are clearly unreasonable in light of the trial court’s sustainable findings.

Id.

In this case, the trial court entered a decree terminating parental care after finding that the statutory elements were met under § 2511(a)(1), (2) and (5). The relevant portions of the statute provide:

(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(1) The parent by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions within a reasonable period of time, the services or assistance reasonably available to the parent are not likely to remedy the conditions which led to the removal or placement of the child within a reasonable period of time and termination of the parental rights would best serve the needs and welfare of the child.
(b) Other considerations. — The court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent.

23 Pa. Cons.Stat.Ann. § 2511.

The statute for terminating parental rights outlines certain irreducible minimum requirements which parents must provide for their children. See In re J.W., 396 Pa.Super. 379, 391, 578 A.2d 952, 958 (1990). “The necessary implication of the language in the Juvenile Act is that a parent who cannot or will not meet the irreducible minimum requirements set by the Juvenile Act within a reasonable time following intervention may properly be considered “unfit,” and may properly have parental rights terminated.” Id.

The trial court found that CYS established by clear and convincing evidence that appellant failed to provide this minimal parental care to Nalonni, as required by the statute. Interestingly, appellant concedes that CYS met the statutory burden to terminate parental rights. Appellant, however, contends that CYS caused the conditions necessary to meet the elements of the statute terminating parental rights. She asserts that her own failure to undertake parental duties should be excused in light of CYS’s actions.

Specifically, appellant claims that CYS violated federal law by failing to make reasonable efforts to preserve family unity. Appellant bases these elaims on the mandate of the Adoption Assistance and Child Welfare Act; 42 U.S.C.A. § 671 (1995). Under this act, a state is eligible for federal matching funds if it has a plan for child welfare services. The state’s plan must provide “that, in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home.” 42 U.S.C.A. § 671.

This Court considered the ramifications of this law in a dependency action in Interest of S.A.D., 382 Pa.Super. 166, 168, 555 A.2d 123, 124 (1989), as follows:

Paramount to compliance is the requirement of due process and an appropriate judicial determination that removal of a child from his home was required. 55 Pa.Code § 3130.71(a). Prior to removal is the requirement that the agency make reasonable effort to prevent removal. 62 P.S. 703 et seq.; 55 Pa.Code §§ 3130.11, 3130.13, 3130.35--.42. The federal and state law requires periodic court monitoring which is the role of the Juvenile Court, 42 Pa.C.S. § 6351, 55 Pa. Code § 3130.71, and it also involves case plans for services for the child, parents and foster parents (55 Pa.Code § 3130.67) to: (1) improve conditions in the home (§ 3130.-67(6)(7)(8)); and (2) facilitate the child’s return home or plan for permanent placement (§ 3130.61-67).
Ultimately, the goal is to rehabilitate the family, reunite the child with his family or, after reasonable efforts over an appropriate period of time have failed, to terminate parental rights and free the child for adoption pursuant to the Adoption Act of 1980, Subchapter B, Involuntary Termination, 23 Pa.C.S. § 2511(a). Fallaro v. Yeager, 364 Pa.Super. 408, 422, 528 A.2d 222, 229 (1987).

Interest of S.A.D., 382 Pa.Super. 166, 168, 555 A.2d 123, 124 (1989).

Appellant asserts that CYS failed to render services to prevent Nalonni’s placement in a foster home and provided inadequate services to remove the conditions which led to placement. While CYS clearly had a statutory duty to undertake these services, we find that they met this duty.

The trial court stated that CYS removed Nalonni due to “unsafe and unsanitary conditions.” The record clearly supports this finding, and reflects the following. The Laventure’s refused to allow CYS caseworkers to enter their house to investigate complaints about unsanitary conditions. The caseworkers returned with a dependency petition for Nalonni. They discovered six dogs and a rabbit living in the house with Ms. Laventure, her parents and Nalonni. The house was dirty, it smelled of dog feces and at least one window was broken. The three-week old Nalonni was lying on a sofa with a Chihuahua on her. CYS caseworkers took custody of Nalonni, and she was adjudicated dependant. CYS adopted a plan signed by mother for Nalonni’s return. This plan stressed that mother must find suitable housing to regain custody of Nalonni.

The trial court further found that CYS made a good faith effort to assist mother in completing the plan for Nalonni’s return. The court summarized the services provided by CYS. as follows:

The agency initially referred mother to drug and alcohol counselling at Human Services and provided LIST tickets to assist her with transportation to these programs. Mother was referred to the Community Action Program for GED classes and employment training. The agency' had also begun working on housing options. Mother did not follow through with any of these referrals. The lack of success of these efforts is not attributable to the agency, but resulted from mother’s failure to cooperate and her relocation to Reading shortly after the plan was approved.
Subsequently, the agency referred' mother to the Berks Youth Counselling Center in Reading for drug and alcohol counselling and a parenting program. Berks County Children and Youth Services also provided such referrals. Mother refused to attend the recommended drug treatment program and never completed the parenting program. When attempts were being made to have her admitted to an intensive outpatient drug treatment program, mother moved to New York.
The agency responded to this change in mother’s circumstances by contacting the appropriate social service agency in New York regarding drug and alcohol referrals for mother. The latter, agency referred mother to an appropriate program which she did not attend. The New York agency also performed an interstate home study of mother’s residence at her request.
When mother returned to Lancaster County in 1990, the agency again provided referrals for drug and alcohol treatment. Throughout the period of placement until the time of the filing of the petition for involuntary termination, visits with her child were available to mother. ' The evidence estáblishes clearly that despite mother’s frequent relocation and refusal to cooperate, the agency has consistently put forth a good faith effort to assist her.

The trial court’s findings are supported by the record, and they demonstrate that CYS performed its duty under federal and state law to assist appellant.

Although we find that CYS properly undertook its duties, we note that any failure by CYS does not justify appellant’s continuing neglect of Nalonni. The Commonwealth is not a “guarantor of the success of efforts to help parents assume their parental duties.” In re J. W., 396 Pa.Super. 379, 392, 578 A.2d 952, 959 (1990). Clearly, mother had a corresponding duty to use her best efforts to overcome obstacles to perform her parental duties. In re V.E., 417 Pa.Super. 68, 77, 611 A.2d 1267, 1272 (1992) (“[wjhere a parent does not exercise reasonable firmness in declining to yield to obstacles,’ his [parental] rights may be forfeited”).

Moreover, excusing appellant’s failure to provide the minimal parental care to Nalonni based on CYS’s actions in removing Nalonni six years ago is contrary to the purpose of the statute providing for the termination of parental rights. Discussing the role of the statute, this Court stated:

It is universally agreed that the bond of parental affection is unique and irreplaceable. When parents act in accordance with the natural bonds of parental affection, preservation of the parent-child bond is prima facie in the best interest of the child, and the state has no justification to terminate that bond. On the other hand, a court may properly terminate parental bonds which exist in form but not in substance when preservation of the parental bond would consign a child to an indefinite, unhappy, and unstable future devoid of the irreducible minimum parental care to which that child is entitled.
* * * * * *
It is important to keep in mind that the essential needs of the child and the responsibilities of the parent must be considered as well as the rights of the parent.

In re J.W., 396 Pa.Super. 379, 391, 578 A.2d 952, 958 (1990).

This Court further discussed the responsibilities of a parent by noting that when a child is placed in foster care, a parent has an affirmative duty to work toward the return of the child. In re V.E., 417 Pa.Super. 68, 76, 611 A.2d 1267, 1271 (1992). Our Supreme Court further stated: “[w]e think this affirmative duty, at a minimum, requires a showing by the parent of a willingness to cooperate with the agency to obtain the rehabilitative service necessaiy for the performance of parental duties and responsibilities.” In re Adoption of J.J., 511 Pa. 590, 602, 515 A.2d 883, 890 (1986).

This affirmative duty also includes the responsibility to maintain communications and continue association with the child. In re V.E., 417 Pa.Super. 68, 76, 611 A.2d 1267, 1271 (1992). “Parental rights may not be preserved ... by merely waiting for some ... convenient time for the performance of some parental duties and responsibilities (while others adequately provide the child with [her] immediate and continuing physical and emotional needs).” In re Adoption of J.J., 511 Pa. 590, 603, 515 A.2d 883, 890 (1986) (quoting Adoption of McCray, 460 Pa. 210, 217, 331 A.2d 652, 656 (1975)).

The trial court found that mother did not undertake her affirmative duty in parenting Nalonni. In reaching its decision to terminate parental rights, the trial court factored in all circumstances, including “mother’s age, her lack of family support, her limited income and lack of convenient transportation, as well as services offered to her which would have allowed her to complete the court approved plan and her response to these offers of assistance.” In finding that mother failed to perform her minimal parental duties to Nalonni, the trial court found most incredible mother’s failure to even visit Nalonni in her foster home on a regular basis.

Appellant also attempts to shift blame to CYS for the deterioration of her relationship with Nalonni. She contends that she viewed CYS as an adversary, and that she was afraid that if she visited Nalonni, CYS would take custody of her son. The trial court found this testimony lacking in credibility, and not sufficient to excuse her failure to undertake her parental duties. We agree.

Therefore, we find that CYS did not violate federal and state law in removing Nalonni from her home. Additionally, any failure by CYS does not excuse appellant’s continuing neglect of her child, nor does it justify her failure to discharge her duty of affirmative care to her child.

In the second issue, appellant contends that she should have been placed in a foster home with Nalonni. Basically, if the poor housing conditions required CYS to remove Nalonni, they also required CYS to remove mother since she was only sixteen years old. In this way, CYS would have fulfilled its duty to preserve the family unity.

Appellant cites no precedent for this argument, and we find no basis for it. Mother was never adjudicated dependent; and, therefore, was not eligible for foster care. Although conditions were unsafe and unsanitary for Nalonni, a three week old child, the conditions were not necessarily intolerable for a sixteen year old mother.

Appellant’s argument, in effect, is that the state should assume custody of the mother and nurture her until such time as she is, in turn, capable of assuming the rule of mother to her child. While the obligations of the state are broad, they do not yet require that the sovereign undertake, in loco parentis, to raise children until they are competent to raise their children.

Finally, as discussed in more detail above, CYS’s alleged failure to undertake its duty to preserve family unity cannot at this time excuse appellant’s continuous failure to provide the minimal parental care to Nalonni.

Accordingly, we affirm the trial court’s Order.

Order affirmed.

      . William Diaz, Nalonni's father, did not attend any hearings regarding the petition to terminate his parental rights, nor did he challenge the decree nisi. He is not a party on appeal.

      . Due to mother’s failure to attend regular bi-weekly sessions, visits were scheduled only on request at this time.

      . The record reflects that a caseworker brought the tickets to Ms. Laventure’s home, but she was not present. Subsequently, CYS offered to reimburse her for transportation expenses.


author: McEWEN, Judge:

text:
    669 A.2d 378
    G.J.D. and D.K., a Minor, by G.J.D., His Parent and Natural Guardian, and J.K., a Minor, by G.J.D., Her Parent and Natural Guardian, Appellees, v. Geraldine T. JOHNSON, Executrix of the Estate of Darwin T. Thebes, Deceased, Appellant.
    Superior Court of Pennsylvania.
    Argued April 5, 1995.
    Filed Dec. 12, 1995.

      William Costopoulos, Lemoyne, for appellant.
    Richard C. Ruben, Harrisburg, for appellees.
    Before CAVANAUGH, McEWEN and DEL SOLE, JJ.
   McEWEN, Judge:

This appeal has been taken from the judgment entered against appellant, Geraldine T. Johnson, as executrix of the Estate of Darwin Thebes, following the denial of post-verdict motions challenging rulings of the trial court made during the course of the trial of this action for damages based on defamation, “false light” invasion of privacy, invasion of privacy by publicity given to private life, and intentional infliction of emotional distress. We have carefully reviewed the arguments presented by appellant, but find no basis upon which to disturb the verdict and, therefore, affirm.

Initially, we note that on appeal from the refusal of the lower court to enter judgment n.o.v., the sole duty of the appellate court is to decide whether there was sufficient evidence to sustain the verdict, granting the verdict winner the benefit of every favorable inference reasonably to be drawn from the evidence and rejecting all unfavorable testimony and influences. McDevitt v. Terminal Warehouse Company, 304 Pa.Super. 438, 450 A.2d 991 (1982). The grant or denial of a new trial is within the sound discretion of the trial court, whose decision will be reversed only where the record indicates that the trial court committed an error of law or clearly and palpably abused its discretion. Palmer v. Brest, 254 Pa.Super. 532, 386 A.2d 77 (1978).

Walasavage v. Marinetti, 334 Pa.Super. 396, 405-409, 483 A.2d 509, 514-515 (1984).

Appellee G.J.D., who had separated from her second husband in July of 1980, met the decedent, Darwin Thebes, that summer and began a relationship with him. Thebes subsequently, in the fall of 1981, moved into the residence shared by G.J.D. and her two children, appellees D.K. and J.K., and shortly thereafter, according to the testimony presented by appellees, became verbally, physically and psychologically abusive to G.J.D. Appellees offered evidence to establish that Thebes would, in addition to physically striking appellee G.J.D., break items of sentimental value, take Polaroid pictures of G.J.D. after physically abusing her, and accuse her of infidelity and prostitution. To escape the abuse, G.J.D. sent her children to live with their grandmother sometime in 1985. G.J.D., however, remained behind, allegedly as a result of her fear of retribution by Thebes if she too moved out. Eventually, in September of 1985, G.J.D. moved out as well, although she continued to have a relationship with Thebes through the summer of 1986.

In August of 1986, G.J.D. declined Thebes’ invitation to attend the York County Fair with him. Several months later, while exhibiting her goats at the Perry County Fair, J.K. discovered two pieces of xeroxed paper in her goat pen, containing sexually explicit photos of her mother. One of the photos showed G.J.D. in the nude, while the other showed her performing oral sex on an unidentifiable male. The photos were captioned: “Suck lollipops for money, [G.J.D.], 582-4407, New Bloomfield, PA.” J.K. testified that she had seen and spoken with Darwin Thebes at the Perry County Fair prior to discovering the photocopies. Similar photocopies, which appeared only at public gatherings attended by both Thebes and acquaintances of G.J.D., were directed at G.J.D.’s family, neighbors, and employer. Photocopies were also found on the ground near the children’s school bus stop, at D.K.’s high school football games, and near the mailboxes of G.J.D.’s mother and brother. The photocopies, which had been made from two of the sexually explicit Polaroid pictures Thebes had taken of G.J.D. in 1983, stopped appearing after appellees’ civil complaint was filed and served upon Darwin Thebes.

Appellees filed their original complaint on February 20, 1987. When the initial deposition of Thebes could not be completed on October 5, 1987, a second deposition was conducted on or about March 24, 1988. G.J.D. and D.K. were deposed on May 18, 1988. Approximately 15 months after suit had been instituted, on June 8, 1988, Thebes committed suicide. On December 28, 1988, Geraldine Johnson was substituted as the party defendant in her capacity as executrix of the Estate of Darwin Thebes.

After pretrial hearings to resolve certain evidentiary issues including the applicability of the Dead Man’s Act, a trial date of August 3, 1993, was set, and a .jury for the July term was selected on July 12, 1993. Appellant filed a motion, on July 28, 1993, requesting a continuance of trial so as to enable her to more fully recuperate from her cancer surgery of July 8, 1993. The court denied the request and trial commenced on August 3, 1993. At trial, G.J.D. testified that, as a result of the distribution of the photocopies throughout the community, both of her children had developed emotional, scholastic and behavioral problems. J.K. commenced the abuse of substances, both alcohol and drugs, and' eventually sought psychiatric care, which included three months as an in-patient at York Hospital, while D.K. began to spend an inordinate time at home and, the following year, did quite poorly in his first year of undergraduate studies at Penn State, eventually losing his ROTC scholarship.

The jury returned a verdict in favor of each appellee, awarding G.J.D. $6,015 in compensatory damages and $36,500 punitive damages; D.K. was awarded $5,000 in compensatory damages and $20,000 in punitive damages; and J.K. was awarded $10,000 in compensatory damages and $20,000 in punitive damages. Timely post-verdict motions were filed and denied and this appeal followed.

Appellant contends that the trial court erred in refusing her request for judgment n.o.v. or, in the alternative, a new trial and in her brief frames the following questions for our consideration:

WHETHER THE TRIAL COURT ERRED IN ALLOWING THE JURY TO CONSIDER EVIDENCE AS TO PUNITIVE DAMAGES AND IN PERMITTING APPELLEES TO RECOVER SAME WHERE APPELLANT THEBES WAS DEAD?
WHETHER THE TRIAL COURT ERRED IN RULING THAT THE DISCOVERY CONDUCTED PRIOR TO THE DEATH OF APPELLANT THEBES CAUSED A WAIVER OF THE DEAD MAN’S RULE AND-IN REFUSING TO INVOKE THE RULE AND PROHIBIT THE APPELLEES FROM TESTIFYING AS WITNESSES ON THE GROUND OF INCOMPETENCY?

Appellant argues that it was error to allow the recovery of punitive damages where the tortfeasor died after the institution of suit but prior to trial. This issue has not previously been addressed by this Court. Appellees argue that the Pennsylvania Survival Act, 42 Pa.C.S. § 8302, compels the conclusion that punitive damages may be recovered from the estate of a deceased tortfeasor. While the statute may provide some support for appellees’ argument, we do not find the contention controlling since punitive damages are an element of damages and not a separate cause of action. See: Waltman v. Fahnestock & Co., Inc., 792 F.Supp. 31 (E.D.Pa. 1992), aff'd., 989 F.2d 490 (3rd Cir.1993); Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989). But see Hennigan v. Atlantic Refining Co., 282 F.Supp. 667 (E.D.Pa. 1967), aff’d., 400 F.2d 857 (3d Cir.1968) (while there is no mention of damages in the survival act, there is no reason to read into it a limitation on the nature or amount of recovery). The issue before this Court thus becomes whether the purposes for which punitive damages are awarded are served by allowing recovery of punitive damages from the estate of a deceased tortfeasor.

The majority rule among those states which have addressed the issue is that punitive damages are not recoverable from the estate of the tortfeasor, and fourteen states have enacted legislation that explicitly precludes such a recovery. While there is a split of authority among the courts of those jurisdictions, such as Pennsylvania, which have no statutory provision, the majority of those states also preclude the recovery of punitive damages from the estate of the tortfeasor. The rationale underlying the decision to preclude such recovery is that the primary purpose of imposing punitive damages, the punishment of the tortfeasor, cannot be served by the imposition of exemplary damages upon the wrongdoer’s estate. Conversely, the courts in those states that allow the recovery of punitive damages despite the death of the tortfeasor have based their decisions upon policy considerations other than punishment of the tortfeasor.

An award of punitive damages under Pennsylvania law serves a deterrence function as well as a punishment function. While the public policy of punishing the wrongdoer for his intentional tort is defeated by the death of the tortfeasor, the deterrence function of a punitive damage award is not affected by the death of the tortfeasor. See: Perry v. Melton, supra, 299 S.E.2d at 12. The specter of the penalty imposed by punitive damages is intended to deter others from engaging in like conduct, thereby serving a public as well as a private interest. The vital public policies served by punitive damage awards, and the ability of our trial courts to prevent a miscarriage of justice in those instances where the award of punitive damages against the estate of the tortfeasor would be unjust, compel us to find that where suit is instituted prior to the death of the tortfeasor, and the tortfeasor dies before the completion of trial, punitive damages may be assessed against the estate of the deceased tortfeasor. We, therefore, find that the trial court properly held that punitive damages were recoverable from the estate of Darwin Thebes.

We acknowledge that the recent trend in other jurisdictions has been to preclude the recovery of punitive damages from estates, even in those states that accept deterrence as a legitimate public policy goal of punitive damages. The District Court, in Fehrenbacher v. Quackenbush, 759 F.Supp. 1516 (D.Kan.1991), precluded recovery of punitive damages from the tortfeasor’s estate on the basis that it was a vicarious punishment of the innocent heirs of the tortfeasor, despite recognition by the court that “the ultimate purpose [of punitive damages is] to restrain and deter others from the commission of similar wrongs.” Id. at 1521, quoting Wisker v. Hart, 244 Kan. 36, 41, 766 P.2d 168, 172-173 (1988). Similarly, the District Court for the Northern District of Illinois, in Stafford v. Purofied Down Products Corp., 801 F.Supp. 130 (N.D.Ill. 1992), predicted that the Illinois Supreme Court would adopt the majority rule, despite the general deterrent effect of punitive damages, suggesting that the imposition of the burden of punitive damages upon the heirs of the tortfeasor to be analogous to the feudal rule of attainder. See also: Byrd v. Lohr, 488 So.2d 138, 139 (Fla.Dist.Ct.App. 5th Dist.1986). The New Mexico Supreme Court, the most recent forum to address the issue, in Jaramillo v. Providence Washington Ins. Co., 117 N.M. 337, 871 P.2d 1343, 1352 (1994), held that punitive damages cannot be recovered from the estate of a deceased tortfeasor based upon the belief of the court that neither the punishment nor deterrence purpose of such damages can be achieved by an award of punitive damages against the estate of a deceased tortfeasor.

Our Supreme Court, in Kirkbride v. Lisbon Contractors, Inc., 521 Pa. 97, 555 A.2d 800 (1989), in refusing to require proportionality between the amounts awarded by a jury for punitive and compensatory damages, noted:

If the purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others from similar conduct, then a requirement of proportionality defeats that purpose. It is for this reason that the wealth of the tortfeasor is relevant. In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tortfeasor’s wealth. If we were to adopt the Appellee’s theory, outrageous conduct, which only by luck results in nominal damages, would not be deterred and the sole purpose of a punitive damage award would be frustrated. If the resulting punishment is relatively small when compared to the potential reward of his actions, it might then be feasible for a tortfeasor to attempt the same outrageous conduct a second time. If the amount of punitive damages must bear a reasonable relationship to the injury suffered, then those damages probably would not serve as a deterrent. It becomes clear that requiring punitive damages to be reasonably related to compensatory damages would not only usurp the jury’s function of weighing the factors set forth in Section 908 of the Restatement (Second) of Torts, but would also prohibit victims of malicious conduct, who fortuitously were not harmed, from deterring future attacks.

Kirkbride v. Lisbon Contractors, Inc., supra at 103-104, 555 A.2d at 803 (emphasis added).

Mindful of the analyses provided by the courts in chose jurisdictions which prohibit recovery of such damages from the deceased tortfeasor’s estate, we expressly limit our holding in the instant case to those instances where suit was commenced prior to the death of the tortfeasor, since we believe that where the injured plaintiff has made certain decisions concerning the institution of suit and/or preparation for trial, the death of the tortfeasor prior to the entry of the verdict is not a sufficient basis upon which to preclude the submission of the issue of punitive damages to the jury.

While one of the two purposes served by an award of punitive damages is defeated by the death of the tortfeasor, the deterrence effect of the award is unaltered, and perhaps even enhanced, by the assessment of punitive damages against the estate of the tortfeasor. Moreover, the jury will be aware that the award is being imposed against the estate, and will, therefore, in the consideration of punitive damages, be mindful of the value of the estate. The jury in the instant case, moreover, aware that the total value of the gross estate was $274,017.51, imposed $76,500 in punitive damages based upon its assessment of the need for punishment and/or deterrence under the facts. As our Supreme Court recognized in Kirkbride v. Lisbon Contractors, Inc., supra at 104-105, 555 A.2d at 804, in those instances where a jury award of punitive damages against the estate of a deceased tortfeasor shocks the conscience of the court, the trial court may grant a remittitur.

The further argument raised by appellant in support of her request for a new trial is that the trial court committed reversible error when it ruled that the Dead Man’s Statute had been waived by the discovery conducted by the parties prior to the death of Darwin Thebes. Section 5930 of the Judicial Code, 42 Pa.C.S. § 5930, commonly referred to as the Dead Man’s Act, provides, in pertinent part:

[I]n any civil action or proceeding, where any party to a thing or contract in action is dead ... and his right thereto or therein has passed ... to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ..., shall be a competent witness to any matter occurring before the death of said party....

42 Pa.C.S. § 5930 (emphasis added).

The Dead Man’s Act is an exception to the general rule of evidence in this Commonwealth that: “no interest or policy of law ... shall make any person incompetent as a witness.” 42 Pa.C.S. § 5921. “The purpose of this Act is to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter’s representative would be in no position to refute.” Olson v. North American Industrial Supply Inc., 441 Pa.Super. 598, 609-610, 658 A.2d 358, 364 (1995), quoting Stathas v. Wade Estate, 251 Pa.Super. 269, 270-272, 380 A.2d 482, 483 (1977). Accord: In re Estate of Hall, 517 Pa. 115, 127-128, 535 A.2d 47, 53 (1987).

Appellant’s decedent, Darwin Thebes, deposed G.J.D. and her son D.K. prior to his death and himself was deposed by appellees. The trial court found that the right of Geraldine Johnson as the representative of Thebes’ estate to assert the Dead Man’s Act had been waived by the discovery undertaken by Thebes prior to his death. Appellant contends that since she did not conduct any discovery and did not use the deposition testimony at trial, her right to assert the Act should not be found to be waived. We disagree.

The protection of the Dead Man’s Act is waived by:

the taking of a deposition of a witness concerning any occurrences involving a deceased party ... and ... the mere taking of a deposition amounts to a waiver even though the deposition is never filed or is not used in evidence by the party taking it.

Perlis v. Kuhns, 202 Pa.Super. 80, 83, 195 A.2d 156, 158 (1963). Accord: Brown v. Saladoff 209 Pa.Super. 263, 228 A.2d 205, 206 (1967). Despite appellant’s insistence otherwise, discovery taken prior to the death of the deceased party, whether used at trial or not, constitutes waiver of the Dead Man’s Act. Nor does the fact that the discovery was conducted prior to the death of the defendant Thebes alter the finding of waiver. The Pennsylvania Supreme Court in Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965), found that the trial court had erred in refusing to find the Dead Man’s Act waived where one of the defendants died after institution of suit but prior to trial where a deposition of the plaintiff had been taken by the defendant, just as in the present case. We are thereby obliged to reject as meritless the argument that the trial court erred in finding that the Dead Man’s Act was waived. Equitable considerations would require such a result in any event, since, as the eminent Judge Robert I. Sbadle of the Court of Common Pleas of York County observed, in Brennan v. Bell, 37 Pa.D. & C.2d 707, 711 (1965), “[i]t seems, fundamentally unfair to permit a decedent’s estate, or the decedent before his death, to discover all relevant facts from his adversary, and then at trial to seal his opponent’s lips by the Dead Man’s Rule.” See also: Treharne v. Callahan, 288 F.Supp. 131 (W.D.Pa.1968).

Judgment affirmed.

      . Appellant also claims that the trial court erred when it denied the motion of appellant to continue the case and when it entered three evidentiary rulings. We address these claims and find them without merit in a Memorandum filed contemporaneously with this Opinion. 447 Pa.Super. 340, 669 A.2d 378 (1996).

      . The issue of whether to allow recover;? of punitive damages from the estate of a deceased tortfeasor has been addressed iwice in the Courts of Common Pleas. In Schwab v. Bates, 12 Pa.D. & C.4th 162 (1991), the court allowed the recovery of punitive damages from the deceased's estate on the ground that the public policy considerations involved in deterring drunken driving outweighed the harm suffered by the estate of the deceased defendant. The trial court, in Morfesi v. Sherman, 13 Pa.D. & C.4th 552 (1991), a medical malpractice case, held that the speculative nature of the deterrence function of punitive damages was outweighed by the disadvantage imposed on the deceased’s representatives, particularly in suits involving nonintentional torts.

      . The Pennsylvania Survival Act provides:
      All causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant, or the death of one or more joint plaintiffs or defendants.
      42 Pa.C.S. § 8302.

      . See Restatement (Second) of Torts §§ 908, comment a, 926 (1979); 25 C J.S. § 125(3) p. 1153 (1966). Of the twenty-seven states that have addressed the issue, twenty-four bar recovery.

      . California, CAL.PROB.CODE § 573 (West Supp.1984); Colorado, COLO.REV.STAT. § 13-20-101 (1973); Georgia, GA.CODE ANN. § 9-2-41 (1987); Idaho, IDAHO CODE § 5-327 (1987); Maine, ME.REV. STAT.ANN. Tit. 18-A, § 3-818 (1981); Massachusetts, MASS.ANN. LAWS ch. 230, § 2 (1974); Mississippi, MISS.CODE ANN. § 91-7-235 (1972); Nevada, NEV.REV.STAT. § 41.100 (1979); New York, N.Y.EST.POWERS & TRUSTS LAW § 11-32 (Consol. 1974); Oregon, OR.REV.STAT. §§ 30.080, 30.020 (1983); Rhode Island, R.I.GEN. LAWS § 9-1-8 (1970); Vermont, VT.STAT.ANN. Tit. 14 §§ 1451-53 (1974); Virginia, VA.CODE § 8.01-25 (1977); and Wisconsin, WIS. STAT.ANN. § 895.01 (West 1983).

      . Jay M. Zitter, Anno., Claim for Punitive Damages in Tort Action as Surviving Death of Tortfeasor or Person Wronged, 30 ALR4th 707 § 2 (1984). See, e.g., Thompson v. Estate of Petroff, 319 N.W.2d 400 (Minn. 1982); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (Tenn.1965).

      . Currently, Alabama, Texas and West Virginia allow punitive damages to be assessed against the estate of a deceased tortfeasor. See Hofer v. Lavender, 679 S.W.2d 470 (Tex. 1984) (components of exemplary damages also include reimbursement for losses too remote to be considered as elements of compensatory damages, as well as reimbursement for inconvenience and attorney's fees) and Perry v. Melton, 171 W.Va. 397, 299 S.E.2d 8 (W.Va. 1982) (punitive damages also deter others from engaging in similar acts, and provide additional compensation to sufferers from a defendant’s reckless and wanton misconduct). In Ellis v. Zuck, 546 F.2d 643 (5th Cir.1977), a case involving fraud, the district court initially relied on the following syllogism in holding that Alabama law allows for the recovery of punitive damages from a deceased tortfeasor’s estate: as wrongful death actions survive against the personal representative of the decedent and, by statute, all damages recoverable under a wrongful death action are punitive, punitive damages must survive the death of the tortfeasor. That court cited Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (1954), wherein the Supreme Court of Alabama stated that punitive damages also provide a general deterrent against similar actions by others, as evidence of the Supreme Court's intent that recovery of punitive damages from estates not be limited to wrongful death actions.

      . For the proposition that punitive damages are assessed in Pennsylvania as a means of deterring similar acts by others, in addition to punishing the wrongdoer, see: Delahanty v. First Pennsylvania Bank, 318 Pa.Super. 90, 464 A.2d 1243, 1263 (1983); Giroux v. Sherman, 807 F.Supp. 1182, 1190 (E.D.Pa.1992); Esmond v. Liscio, 209 Pa.Super. 200, 224 A.2d 793, 799 (1966). Appellees also offer an additional, unique perspective to the general deterrence rational. They argue that an award of punitive damages will not just deter others from engaging in similarly willful misconduct, but will also deter alleged tortfeasors who, like Mr. Thebes, seek to "profit” by committing suicide before an award of punitive damages has vested. A thorough search has failed to discover a similar argument put forth by any court, state legislature, or commentator on the issue. (In Doe v. Colligan, 753 P.2d 144 (Ak 1988), a case that involved a suit brought against the estate of an alleged child molester who committed suicide prior to trial, the Alaska Supreme Court did not allude to the relevance of the deceased’s suicide beyond the fact that it obviated the purpose of punitive damages.)

      . Pennsylvania Civil Jury Instruction 14.03 also recognizes the two purposes served by punitive damage awards:
      b. [Where suit is brought or maintained against a deceased alleged tortfeasor] If you find that the conduct of the deceased was outrageous, you may award punitive damages against the deceased's estate, in addition to any compensatory damages, to punish the deceased’s conduct and to deter others from the commission of like acts.
      14.03 (Civ) Punitive Damages Under the Survival Act (1976).