author: MONTEMURO, Judge:

text:
    535 A.2d 616
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel STEIN, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1987.
    Filed Dec. 31, 1987.

      Frances G. Gerson, Assistant District Attorney, Philadelphia, for Com., appellant.
    Robert P. Fulton, Philadelphia, for appellee.
    Before McEWEN, MONTEMURO and KELLY, JJ.
   MONTEMURO, Judge:

On June 3, 1987, the trial court issued an order against the Commonwealth suppressing the following evidence: an oral statement given by the defendant to the police, a written statement given by the defendant to the police, all physical evidence obtained as a result of a search of the defendant’s residence, and all identifications of the defendant. The Commonwealth has appealed.

The relevant factual history is as follows. Early in the morning of June 21, 1984, Daniel Farrell was awakened by a light in his hallway. His bedroom light was then switched on, and he saw two armed men enter his bedroom. At the suppression hearing, Mr. Farrell testified that one of the men had a rifle and the other man, whom Farrell identified as the defendant Daniel Stein, came up to him and put a gun to the side of his face. RR. at 236A. Mr. Farrell testified that he was lying on his back in his bed when the two men entered his bedroom and that as the defendant approached him, the defendant warned Farrell that if Farrell moved he would “blow his brains out.” RR. at 237A. Mr. Farrell testified that as the other man went through dresser drawers, the defendant continued to hold the gun to the side of his face and searched the drawers in a cabinet beside his bed. Mr. Farrell further testified as follows:

Q. During this time did you have an opportunity or what opportunities did you have to look at Stein himself?
A. Oh, I seen his face as he was right up to me. If I look eight, a couple times, (sic) He did not want me to look at him.
Q. How did you know he didn’t want you to look at him?
A. He told me not to stare at him, look the other way, don’t turn.
Q. What did you do?
A. Eventually, he said roll over on your back, face flat down, which I did. After three minutes of laying there looking at him and the other guy.

RR. at 240A.

A detective, John Gallow, interviewed Mr. Farrell shortly after the robbery. At that time, Mr. Farrell supplied the detective with physical descriptions of the two men involved in this incident. RR. at 102A. The detective used this information to generate a police memo which described the men as: one white male, age 28, weight 150 pounds, black hair, blue shirt, approximately 5'9" tall, green pants and one white male, age 25, height 6'1", black hair in ponytail, weight 150 pounds, white tee shirt and jeans. RR. at 106A. Approximately four weeks after the robbery, Mr. Farrell contacted detective Gallow and told him that he had learned the names of the two men who had robbed him by paying for information on the street. He said that the names of the men were Danny Stein and Ricky or Eric Rubin. RR. at 110A. During the evening of July 24, 1984, while on his way to do a record search of these two men, detective Gallow heard a radio transmission of a license check of a Daniel Stein, who had been stopped for a traffic violation. The detective then broadcast to the officers who were running this license check that a Daniel Stein was a suspect in a robbery and was suspected of being armed. RR. at 123A. In its Findings of Fact, the trial court concluded that although the police officers testified that, following this broadcast, they had transported the defendant to the Northeast Detective Division because he had no driver’s license or vehicle registration, the officers had actually “decided that the defendant would be held in custody at least temporarily as he may be a suspect in a robbery.” RR. at 23A (123A).

After researching police records and obtaining a negative of a Daniel Stein who lived in the vicinity where Daniel Farrell had been robbed and who had a history of similar crimes, detective Gallow went to the room where the defendant was being detained. Detective Gallow noticed that the defendant resembled the negative of the Daniel Stein that he had just retrieved from police files. He decided to question the defendant concerning the robbery of Daniel Farrell. RR. at 117A-119A and 126A-128A. At this point, the defendant had already been issued the traffic violations. As a result of detective Gallow’s statements and questions to the defendant, the defendant gave an oral and a written statement concerning the robbery and consented to a search of his residence which resulted in the seizing by police of stereo equipment which had been reported by Daniel Farrell as missing from his home. RR. at 149A. The defendant was charged with robbery, theft, simple assault, criminal conspiracy and weapons offenses. Following a suppression hearing, the trial court held that the arrest of the defendant was illegal and on that basis suppressed the statements and the physical evidence. These rulings by the trial court have not been appealed by the Commonwealth. However, the Commonwealth has appealed from the suppression of the preliminary hearing identification of the defendant by the victim, Daniel Farrell, and the suppression of all subsequent identifications.

The record indicates that during the preliminary hearing, Daniel Farrell identified the defendant as the man who had robbed him. RR. at 243A. At the suppression hearing, Farrell testified that when he identified the defendant at this hearing, he had had “no doubt at all” that the defendant was the man who had robbed him. RR. at 247A. Although Mr. Farrell testified that he had discussed the investigation of this crime with detective Gallow before the date of the preliminary hearing, the parties do not dispute the fact that Mr. Farrell had not been shown a photograph of the defendant by police prior to the preliminary hearing and there had been no pre-trial lineup involving the defendant Daniel Stein. The first time that Mr. Farrell saw the defendant following the night of the robbery was at the preliminary hearing when he was asked by the court to indicate whether he recognized the defendant as one of the men who had been involved in the robbery. RR. at 280A. We must determine whether the trial court erred in suppressing all identifications by the victim Daniel Farrell as the fruit of the poisonous tree, the poisonous tree being the illegal arrest and statements of the defendant-appellee.

Initially, we reject the contention that the Commonwealth has waived this issue. The trial court specifically held in its Conclusions of Law that “any and all identifications of the defendant flow directly and unalterably from his illegal arrest and statement.” RR. at 27A. During the suppression hearing, the trial court made it clear that it viewed the preliminary hearing identification of the defendant to be a “direct result” of the illegal arrest and, thus, a fruit of this poisonous tree. RR. at 362A and 371 A. During the suppression hearing, the Commonwealth orally objected to the legal conclusions the trial court had reached. RR. at 376A. Further, this issue was included in the Commonwealth’s statement of appellate issues which the Commonwealth filed pursuant to Pa.R.A.P. 1925(b):

Did the suppression court err in concluding that the defendant’s statement, the physical evidence seized pursuant to a consent search and the complainant’s identification of defendant were the direct result of an illegal arrest and inadmissible?

Our scope of review in suppression matters is limited primarily to questions of law. We are bound by the suppression court’s findings of fact, if those findings are supported by the record. It is clear that we are not bound by the suppression court’s conclusions of law. Common wealth v. White, 358 Pa.Super. 120-123, 516 A.2d 1211, 1212-1213 (1986);

In reaching our decision in the instant case, we turn once more to the language of the United States Supreme Court in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963):

We need not hold that all evidence is the ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which the instant objection is made has been come at by the exploitation of that illegality or by means sufficiently distinguishable to be purged of the primary taint.’

What we must consider in the instant case is whether the identification of the defendant-appellee Stein was obtained by the exploitation of his concededly illegal arrest and statements to the police. In Commonwealth v. Howe, 246 Pa.Super. 7, 14, 369 A.2d 783, 786 (1977), we recognized that “the word ‘exploitation’ is important, for it implies a causal connection between the illegality and the evidence in question.”

In Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978), the trial court had refused to suppress the identification testimony of a robbery victim, Carter, who had identified the defendant as the perpetrator of the crime at a preliminary hearing. In Ryan, as in the instant case, the victim had not seen the defendant or a photograph of the defendant prior to the preliminary hearing. In Ryan, as in the instant case, the arrest of the defendant was illegal because it had been made without a warrant and without probable cause. In Ryan, we affirmed the trial court and stated the following:

Identification evidence, however, will not be suppressed merely because it has derived from an illegal arrest. Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d 33 (1972). As our Supreme Court indicated in Garvin, we cannot assume that but for the illegal arrest appellant would have remained at large indefinitely. “No law abiding society could tolerate a presumption that but for the illegal arrest appellant would have never been required to face his accusers.” Commonwealth v. Garvin, 448 Pa. at 264, 293 A.2d at 37. The record clearly indicates in this case that Carter had ample opportunity to observe appellant when he was beaten and robbed, and made a positive, unwavering identification at trial ... After reviewing the record in this light, we are satisfied that the in-court identifications of Carter and Kellog were based on personal observation during their robberies, and not the result of the exploitation of any illegality. The only effect of the arrest was to hasten the inevitable confrontation between appellant and his victims, not to influence its outcome. Commonwealth v. Garvin, 448 Pa. at 265, 293 A.2d 33. Trial testimony of the victims positively demonstrates that appellant’s arrest contributed neither to their knowledge as witnesses nor to the accuracy of their identifications. Consequently, we hold that the court did not err in refusing to suppress the identification testimony, when the testimony was sufficiently independent of the illegal arrest as to be unaffected by the “fruit of the poisonous tree” prohibition. Commonwealth v. Crutchley, 242 Pa.Super. 496, 364 A.2d 381 (1976).

Id., 253 Pa.Superior Ct. at 100-101, 384 A.2d at 1247, 1248.

Likewise, in the instant case, the identification evidence provided by the victim did not derive from the “exploitation” of any illegal conduct by the police. At the time the victim Farrell observed the two men in his bedroom and at the time he described the physical characteristics of the men to the police, the police had done nothing illegal. In United States v. Crews, 445 U.S. 463, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980), the United States Supreme Court discussed the application of the exclusionary rule to identification evidence. In Crews, the victim of an armed robbery identified the defendant in a photographic array, in a lineup, and at trial. The District Court found that the arrest of the defendant had been effected without probable cause. Accordingly, the court suppressed the photographic and lineup identifications. However, the court concluded that the victims’ ability to identify the defendant at trial was based upon independent recollection untainted by the intervening identifications and therefore held such evidence admissible. The District of Columbia Court of Appeals, sitting en banc, reversed the District Court on the grounds that the in-court identification should have been excluded. The Court of Appeals concluded that the unlawful police behavior did have a causal relationship to the acquisition of the identification evidence because “but for respondent’s unlawful arrest, the police would not have obtained the photograph that led to his subsequent identification by the complaining witnesses and, ultimately, prosecution of the case.” Crews at 469, 100 S.Ct. at 1249. The Court of Appeals then considered whether the in-court identification could nevertheless be admitted under one of the “commonly advanced exceptions to the exclusionary rule — the ‘independent source’, ‘inevitable discovery’, or ‘attenuation doctrines’____” Id. at 470, 100 S.Ct. at 1249. The court found these exceptions inapplicable.

The Supreme Court reversed the Court of Appeals. The Court was unanimous in its holding that the in-court identification of the defendant by the victim of the crime should not have been suppressed as the fruit of the defendant’s unlawful arrest. The Court stated that in the “typical fruit of the poisonous tree case ... the challenged evidence was acquired by the police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon the evidence by the original illegality.” Id. at 471, 100 S.Ct. at 1250. The Court recognized that cases involving in-court identifications of the accused are not the typical fruit of the poisonous tree cases and that such identifications have the following elements:

First, the victim is present at trial to testify as to what transpired between her and the offender, and to identify the defendant as the culprit. Second, the victim possesses knowledge of and the ability to reconstruct the prior criminal occurrence and to identify the defendant from her observations of him at the time of the crime. And third, the defendant is also physically present in the courtroom, so that the victim can observe him and compare his appearance to that of the offender.

Id.

In Crews, the Court found that none of the elements of the in-court identification had been derived from the exploitation of the violation of the defendant’s Fourth Amendment rights. The Court reasoned that the victim’s presence in the courtroom was not the product of any police misconduct because the victim’s identity was known to the police long before the defendant was arrested. Just like the victim of the crime in the instant case, the victim in Crews had notified the police immediately following the criminal incident and had given a full description of her assailant. Further, the Court in Crews found that the victim’s ability to give an accurate in-court identification of the defendant was based on her observations at the time of the robbery and was not the result of illegal police conduct committed long after she had developed the capacity to identify her assailant. Id. at 472-473, 100 S.Ct. at 1250-1251. Like the victim of the robbery in the Crews case, the victim of the robbery in the case before us observed his assailants during the crime and “constructed a mental image” of their physical appearances in his mind. Id. at 472, 100 S.Ct. at 1250. At the time of the preliminary hearing, he retrieved this mental image and compared it to the defendant and was able, as a result, to positively identify the defendant as the man who had held a gun to his face during the robbery of his home. We are convinced that no part of this observation and recollection process was derived from the illegal police conduct which occurred in this case. It appears that the “toxin in this case was injected only after the evidentiary bud had blossomed; the fruit served at trial was not poisoned.” Id. Finally, the Supreme Court in Crews held that the criminal defendant could not challenge his own presence at trial on the grounds that his appearance in court was brought about by an illegal arrest. The court stated that the defendant himself is not a suppressible “fruit” and that an illegal arrest alone does not bar a subsequent prosecution.

More than sufficient evidence exists in the instant case to support the conclusion that the victim of this robbery, Daniel Farrell, had ample opportunity during the commission of this crime to observe the defendant-appellee. The light had been turned on in the room where the victim observed the defendant and his partner. Even though the victim testified that he was only able to look at the defendant for a matter of minutes before he was ordered to turn over and face down in his bed, the relevant factor in terms of our review of the suppression order is that he did in fact personally observe the defendant at the scene of the robbery. The reliability of the victim’s in-court identification as evidence which the Commonwealth will presumably present in its effort to convict the defendant of the crimes for which he has been charged is a question to be decided at trial by the fact finder. We therefore conclude that the in-court identification evidence in this case should not have been excluded because it did not derive from the subsequent illegal arrest of the defendant. This evidence was not properly characterized as a fruit of this poisonous tree.

Guiding our decision in this matter is our recognition that evidence obtained in violation of the Fourth Amendment is excluded at trial not because it is nontrustworthy or nonprobative, but to deter law enforcement officials from violating important constitutional safeguards. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The application of the exclusionary rule has been “restricted to those areas where its remedial objectives are thought most efficaciously served.” Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 3048, 49 L.Ed.2d 1067 (1976). (citing United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 620, 38 L.Ed.2d 561). When the nexus between the unlawful actions of the police and the challenged evidence is a tenuous one, the ability of the exclusionary rule to accomplish its deterrent effect becomes uncertain. It must always be remembered that the application of the exclusionary rule comes at a cost. The exclusionary rule “deflects the truth-finding process and often frees the guilty.” Id. 428 U.S. at 490, 96 S.Ct. at 3050. While we recognize that the exclusionary rule is an established means by which we deter unlawful police activity and nurture respect for the sanctity of the home and the inviolability of the person, we are convinced that society would suffer a grave disintegration in its administration of criminal justice by the indiscriminate application of the exclusionary rule; specifically, when its application, as here, has absolutely no relationship to the deterrence of police misconduct.

Reversed.

      . Mr. Farrell reported to the police that his living room had also been ransacked and that numerous items were missing.

        . The victim in Crews had described her assailant as a young black male, 15-18 years old, approximately 5'5" to 5'8" tall, slender in build, with a very dark complexion and smooth skin.

      . We note that in Crews five members of the Court agreed that the defendant’s face cannot be considered a suppressible fruit of an illegal arrest in view of prior Supreme Court authority, (per Powell, J., Blackmun, J., White, J., Burger, Ch J., Rehnquist, J.)


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    535 A.2d 621
    Mary Jean GLICK and David Lynch, Jr., Appellants, v. OLDE TOWN LANCASTER, INC., High Industries and Calvin G. High.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1987.
    Filed Dec. 31, 1987.

      Joseph A. McIntyre, Lancaster, for appellants.
    Joel D. Smith, Lancaster, for appellees.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.

       President Judge Cirillo has been substituted on this panel for the late Justice Roberts, who originally heard oral argument.

   HESTER, Judge:

This case presents the issue of the circumstances under which a landowner can be held liable to a member of the public for injuries resulting from a criminal attack occurring on the landowner’s property. Appellants allege that a landowner promised to resecure a vacant building and that appellant was raped by an unknown criminal therein before the building was secured. We hold that the landowner cannot be held liable under these circumstances and that the complaint failed to state a cause of action upon which relief may be granted. We therefore affirm the order of the trial court which sustained appellees’ demurrer to the complaint.

In considering preliminary objections in the nature of a demurrer, the following standards apply:

[Pjreliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Conclusions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained.

Abarbanel v. Weber, 340 Pa.Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted).

We therefore take as true the following facts alleged in appellants’ complaint:

5. On or about September 2, 1977, defendant, Olde Town Lancaster, Inc., purchased numerous dwellings located in and around the Historic District of the City of Lancaster, including those dwellings located at 123-125 South Christian Street.
6. Defendant, Olde Town Lancaster, Inc., remained the owner of 123-125 South Christian Street for approximately 6 years until May 25, 1984.
7. During this period of ownership by defendant, Olde Town Lancaster, Inc., the dwellings remained uninhabitable.
8. Prior to March 25, 1984, the defendants knew, or should have known, that this location was being frequented by itinerants, and other individuals who used the premises in order to carry on illicit activities, which were, or could have been, dangerous to the public.
9. Prior to March 25, 1984, the defendants unsuccessfully attempted to secure the dwellings to prevent entrance into them by partially boarding up windows and doors with material which was inadequate to prevent entrance.
10. Prior to March 25, 1984, the defendants knew, or should have known, that its prior attempt(s) to secure the dwellings were unsuccessful and that the dwellings continued to be used by these individuals for illicit purposes, which were, or could have been dangerous to the public.
11. On March 20, 1984, defendants were notified by the Bureau of License and Structural Inspections for the City of Lancaster that inspection of the dwellings revealed that they were not secured from entrance and evidence was found that itinerants had been in the dwellings.
12. Defendants assured the Bureau of License and Structural Inspectors for the City of Lancaster that defendants would undertake to correct this problem by resecuring the doors and windows. However, the defendants failed to do so.
13. On Sunday, March 25, 1984, at approximately 9:00 a.m., plaintiff, Mary Jean Glick, was accosted by a still unknown individual on the first block of East Vine Street while she was walking to church.
14. The aforesaid individual forced plaintiff, Mary Jean Glick, to proceed west on Vine Street then turn south on Christian Street, proceed down Christian Street to the aforesaid dwellings located at 123-125 South Christian Street. Plaintiff was then forced to enter the dwelling from the rear through an unsecured, open doorway. Thereafter, she was assaulted, battered, and raped for approximately a two hour period of time.

Appellants further allege that the incident described in the complaint caused them physical and emotional distress and that the injuries were a direct result of the negligence of appellees.

Appellants assert that the trial court erred in holding that their complaint failed to state a valid cause of action under Pennsylvania law. Appellants, relying on various sections of the Restatement (Second) of Torts (1965), allege that Olde Town is liable to them, as “third persons,” for negligently failing to resecure the building following its promise to the City of Lancaster to do so. Section 324A provides:

§ 324 A. Liability to Third Person for Negligent Performance of Undertaking
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Appellants argue that the Pennsylvania Supreme Court’s analysis in Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984), requires the conclusion that their complaint states a valid cause of action under section 324A. Feld established the principle that the landlord of an apartment complex has no duty, in the absence of a promise, to protect a tenant from criminal activity on the landlord’s property. The Feld court held, however, that a landlord may be liable if he makes a promise to provide security and then negligently performs that promise, citing section 323 of the Restatement.

[Although there is a general rule against holding a person liable for the criminal conduct of another absent a preexisting duty, there is also an exception to that rule, i.e., where a party assumes a duty, whether gratuitously or for consideration, and so negligently performs that duty that another suffers damage.
When a landlord by agreement or voluntarily offers a program to protect the premises, he must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable. The duty is one of reasonable care under the circumstances. It is not the duty of an insurer and a landlord is not liable unless his failure is the proximate cause of the harm.

Feld, 506 Pa. at 392-94, 485 A.2d at 746-47. Feld thus adopted the principle of section 323 to hold that a landlord who makes a promise to his tenants to provide security creates for himself the duty to exercise reasonable care in performing the undertaking. Appellants ask us to apply this principle under section 324A to establish a duty of a landowner toward members of the public.

We hold that section 324A is inapplicable to this case because appellants were not within the class of persons the provision was designed to protect. In order for section 324A to apply, it must be established that the service of resecuring the dwellings was necessary for the protection of persons such as appellants.

We do not view the harm suffered by appellant Glick as being the type of risk which Olde Town’s promise to resecure the dwellings was intended to avert. Securing vacant dwellings is intended to protect members of the public who might otherwise be tempted to trespass therein and to protect neighboring property owners from risks such as fire and unsanitary conditions which might be created by trespassers. See Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111 (1977). The practice of securing vacant dwellings is not designed to prevent the abduction of citizens blocks or miles away and their removal to the vacant building to be assaulted and raped. The unsecured dwelling was a wholly fortuitous factor in the crimes committed against appellant Glick. Glick’s rapist would have accomplished his atrocity whether or not Olde Town’s property remained unsecured. He would simply have transported her to a different location: another dwelling, basement, automobile, hedge, ditch, park or field. The relationship between Olde Town’s failure to secure its vacant real estate and the vicious crimes against Glick is far too attenuated to support a cause of action under Restatement § 324A.

Even if we were to conclude that Olde Town’s promise to resecure its property was intended to protect against the type of harm suffered by appellant Glick, section 324A still would not apply. The provision additionally requires that one of the subdivisions be satisfied:

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

None of these additional conditions is present.

Subsection (a) does not apply, for Glick’s rapist could have abducted her to an infinite number of locations, and Olde Town’s unsecured vacant property did not increase the risk of harm to Glick, as we have discussed.

Subsection (b) does not apply, for the city owed no duty to Glick to secure the Olde Town property. Casey v. Geiger, 346 Pa.Super. 279, 289-92, 499 A.2d 606, 612-14 (1985).

Subsection (c) is also inapplicable, as it requires the harm to be caused either by the city’s or by Glick’s reliance on Olde Town’s promise. It is obvious that Glick herself did not rely on the promise, for she had no way of knowing about it. It is equally obvious that if the city placed any reliance on the promise, that reliance did not cause the harm suffered by Glick. It would be absurd to postulate that if Olde Town had not made its promise to the bureau of inspections, the City of Lancaster would have prevented Glick’s rape, either by taking legal action before Sunday morning or by some other means.

Our holding is consistent with recent guidance from the Supreme Court of Pennsylvania in the interpretation of Restatement § 324A. In Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984), the court analyzed section 324A and refused to apply it in that case. The third person plaintiff in Cantwell was a man who had been arrested for committing a series of rapes. The defendant was a crime lab which was responsible for assisting the prosecuting police departments by scientifically analyzing evidence. In rendering that service, the crime lab had been negligent. It failed to test all clothing and hospital specimens submitted to it for blood-typing, both before and after the plaintiffs arrest; it incorrectly informed the police that it was too late to perform blood typing; and it failed to perform properly those tests which it undertook to perform. Subsequent scientific tests performed while the plaintiffs criminal trial was in progress proved that he could not have committed three of the rapes charged against him and resulted in the dismissal of all charges. The plaintiff alleged that his wrongful incarceration, indictment and trial were caused by the crime lab’s negligence in performing its scientific services for the police. Id., 506 Pa. at 38-39, 483 A.2d at 1352.

The supreme court’s analysis focused on the requirement of foreseeability, stating that section 324A did not alter the traditional requirement that foreseeable harm befall a foreseeable plaintiff. If a defendant has no reason to foresee that his undertaking is necessary for the protection of the third person plaintiff, section 324A does not apply. Id., 506 Pa. at 41, 483 A.2d at 1354. The supreme court unanimously held that the crime lab had no reason to foresee that the scientific analyses it undertook to perform for the police were necessary for the protection of a criminal suspect such as Cantwell. Id., 506 Pa. at 41-42, 483 A.2d at 1354.

Applying Cantwell’s interpretation of section 324A to this case, we hold that Olde Town, when it promised to resecure its dwellings, had absolutely no reason to foresee that the service was necessary for the protection of kidnap victims such as appellant Glick.

Finally, we hold that appellant’s complaint does not satisfy Restatement § 324A in that its factual allegations are insufficient to support the necessary finding of negligence by Olde Town in the performance of its undertaking. The complaint alleges that on Tuesday, March 20, 1984, Olde Town was notified by Lancaster’s bureau of inspections that Olde Town’s buildings were unsecured, and further alleges that Olde Town assured the bureau that Olde Town would undertake to correct the problem. On Sunday, March 25, 1984, appellant was kidnapped, taken to Olde Town’s dwelling, and raped. Noticeably absent from the complaint are allegations as to when Olde Town received the notice from the inspection bureau and when Olde Town promised to resecure the buildings. There is no indication of the extent of the repairs necessary to resecure the dwellings, except that Olde Town’s initial attempts to secure the dwellings had apparently been thwarted by trespassers who removed the boards covering the doors and windows, so that extraordinary measures would be required to resecure the dwellings. The allegations of the complaint are insufficient to support a finding of negligence on the part of Olde Town for its failure to complete such repairs within days or hours of its promise.

We therefore hold that the facts alleged by appellants do not state a cause of action under the Restatement (Second) of Torts § 324A and affirm the order sustaining appellees’ demurrer and dismissing the complaint.

      . Neither appellants nor appellees have explained the exact relationship among appellees, Olde Town Lancaster, Inc., High Industries, Inc., and Calvin G. High, or the relationship the latter two have to the property in question. However, appellants have alleged that all three appellees made a promise to resecure the building and all three negligently breached it. We will refer to appellees collectively as "Olde Town.”

      . Appellants cite sections 321 and 323 of the Restatement.. The section most applicable, however, is section 324A. It incorporates the same basis of liability as section 323, negligent performance of an undertaking, but applies a duty toward third persons rather than the person to whom the promise was made. As the basis of liability is the same under sections 323 and 324A, cases discussing section 323 are relevant to our analysis of section 324A.


author: BECK, Judge:

text:
    535 A.2d 626
    Mary Jean GLICK and David Lynch, Jr., Appellants, v. MARTIN AND MOHLER, INC., Lantz Builders, Inc., and High Construction, Inc.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1987.
    Filed Dec. 31, 1987.

      Joseph A. McIntyre, Lancaster, for appellants.
    Allan Molotsky, Philadelphia, for Martin and Mohler, appellees.
    Joel D. Smith, Lancaster, for Lantz, appellees.
    Before CIRILLO, President Judge , and BECK and HESTER, JJ.

       President Judge Cirillo has been substituted on this panel for the late Justice Roberts, who originally heard oral argument.

   BECK, Judge:

In this appeal we consider whether construction companies working on a property can be held liable for damages resulting from a criminal attack occurring on the property. We find that appellants Mary Jean Glick and her husband, David Lynch, Jr., failed to state a cause of action against appellee construction companies; We therefore affirm the order of the trial court sustaining appellees’ demurrer and dismissing appellants’ complaint.

In considering preliminary objections in the nature of a demurrer, we apply the following standards:

[Preliminary objections in the nature of a demurrer admit as true all well and clearly pleaded material, factual averments and all inferences fairly deducible therefrom. Conclusions of law and unjustified inferences are not admitted by the pleading. Starting from this point of reference the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought. If such is the case, the demurrer may not be sustained. On the other hand, where the complaint fails to set forth a cause of action, a preliminary objection in the nature of a demurrer is properly sustained.

Abarbanel v. Weber, 340 Pa.Super. 473, 479, 490 A.2d 877, 880 (1985) (citations omitted).

We therefore take as true the following facts alleged in appellants’ complaint:

5. On or about September 2, 1977, Olde Town Lancaster, Inc. purchased numerous dwellings located in and around the Historic District of the City of Lancaster, including those dwellings located at 123-125 South Christian Street.
6. Olde Town Lancaster, Inc. entered into a written contract with defendant, Martin and Mohler, Inc., whereby defendant, Martin and Mohler, Inc., agreed to furnish all materials and perform all the labor necessary for the renovation and construction of buildings in the Olde Town Lancaster project.
7. Under the terms and conditions of the contract, defendant, Martin and Mohler, Inc., agreed to accept responsibility for initiating, maintaining and supervising all safety precautions and programs in connection with the Olde Town Lancaster project.
8. On or about 1979-1980, defendant, Lantz Builders, Inc., became involved as a contractor in the Olde Town Lancaster project.
9. Subsequent to 1979-1980, defendant, Lantz Builders, Inc., changed its name to High Construction, Inc.
10. Prior to March 25, 1984, the defendants knew, or should have known, that this location was being frequented by itinerants, and other individuals who used the premises in order to carry on illicit activities, which were, or could have been, dangerous to the public.
11. Prior to March 25, 1984, the defendants unsuccessfully attempted to secure the dwellings to prevent entrance into them by partially boarding up windows and doors with material which was inadequate to prevent entrance.
12. Prior to March 25, 1984, the defendants knew, or should have known, that its prior attempt(s) to secure the dwellings were unsuccessful and that the dwellings continued to be used by these individuals for illicit purposes, which were, or could have been, dangerous to the public.
13. On Sunday, March 25, 1984, at approximately 9:00 a.m., plaintiff, Mary Jean Glick, was accosted by a still unknown individual on the first block of East Vine Street while she was walking to church.
14. The aforesaid individual forced plaintiff, Mary Jean Glick, to proceed west on Vine Street then turn south on Christian Street, proceed down Christian Street to the aforesaid dwellings located at 123-125 South Christian Street. Plaintiff was then forced to enter the dwelling from the rear through an unsecured, open doorway. Thereafter, she was assaulted, battered, and raped for approximately a two hour period of time.

Appellants aver that the incident described in the complaint caused them physical and emotional distress and that the injuries were a direct result of the negligence of the appellees.

On appeal, appellants assert that the trial court erred in finding that appellants’ complaint failed to state a cause of action. Appellants base their cause of action on the Restatement (Second) of Torts (1965), sections 323, 324A, and 321. We consider seriatim these three sections of the Restatement.

Appellants first contend that section 323 of the Restatement (Second) of Torts establishes a cause of action. We disagree. Section 323 provides:

§ 323. Negligent Performance of Undertaking to Render Services.
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

(Emphasis added). Section 323 has been adopted by our courts as the law in Pennsylvania. Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980).

Section 323 is clearly inapplicable to the instant case. This section gives a cause of action only to the party to whom the promise to render services was made. The averments in the complaint concern an undertaking by appellee construction companies to render services to Olde Town Lancaster; there are no averments that appellees undertook to render services to appellants. Appellants, therefore, have failed to state a cause of action based on this section.

Appellants next claim that section 324A establishes a cause of action. We must again disagree. Section 324A provides:

§ 324A. Liability to Third Person for Negligent Performance of Undertaking
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Section 324A has also been adopted by our courts. Cant-well v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984).

In the instant case, we look to see whether appellees undertook to secure against entry the building in which appellant Glick was assaulted. We find that they did not.

Appellants allege that all three appellees “negligently perform[ed] a duty which [they] had undertaken to secure the dwelling.” However, appellants do not allege, as they did in the companion to this case, Glick v. Olde Town Lancaster, 369 Pa.Super. 419, 535 A.2d 621 (1987) that appellees here made any specific promise to the city or anyone else to resecure the vacant building. The only undertaking to which appellants’ complaint refers is an undertaking by appellee construction companies to “initiate, maintain, and supervise all safety precautions and programs in connection with the Olde Town Lancaster project,” an obligation apparently derived from appellees’ contract with Olde Town Lancaster. Appellants further allege that appellees breached that duty.

We find that appellees’ contractual obligation to “initiate, maintain, and supervise all safety precautions and programs in connection with the Olde Town Lancaster project” cannot be interpreted as a promise to secure the buildings against criminal entry. This clause, read in its context of a construction contract with Olde Town Lancaster, merely signifies an undertaking by appellees to take measures to protect their workers’ on-the-job safety while they are working on the project. Boarding up doors and windows to secure the building against entry during a hiatus in the project cannot be said to be within the scope of appellees’ undertaking. Since appellees did not undertake to secure the building against entry, they cannot be said to have a duty to appellants and thereby be liable for the allegedly negligent performance of such an undertaking.

Finally, appellants contend that appellees are liable under section 321 of the Restatement (Second) of Torts. Section 321 provides:

§ 321. Duty to Act When Prior Conduct is Found to be Dangerous
(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
(2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.

The Supreme Court of Pennsylvania has never adopted section 321 as the law of Pennsylvania, and as the intermediate appellate court we decline to do so. Section 321 fails to include any concept of to whom the duty is owed, which is a necessary element of a cause of action sounding in tort in Pennsylvania. Morena v. South Hills Health Systems, 501 Pa. 634, 462 A.2d 680 (1983). Secondly, the description of the prohibited conduct (that which poses “unreasonable risk”) is too vague to permit principled application of the section. Cf. Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987) (court declined to adopt section 46 of the Restatement (Second) of Torts, “Outrageous Conduct Causing Severe Emotional Distress” because the definition of “outrageous” is too nebulous).

Our finding that section 321 lacks the specificity necessary to permit principled application of the section is confirmed by other jurisdictions’ treatment of the section. Most cases involving section 321 cite it merely as additional authority for a result reached under traditional duty analysis. Section 321 itself is irrelevant to the outcome of the case. See Bangor & A.R. Co. v. Ship Fernview, 455 F.Supp. 1043 (D.C.Me.1978) (chemical company owed duty to the public to take reasonable care to prevent release of sulfuric acid cloud, and was held liable for damages caused by failure to do so); Allen v. United States, 370 F.Supp. 992 (E.D.Mo.1973) (air traffic controllers owed duty to passengers of airplane injured in collision with another plane following controllers’ ambiguous radio communications, and were held liable for their failure to clear up the ambiguity in communications); Parish v. Truman, 124 Ariz. 228, 603 P.2d 120 (Ct.App.1979) (landowner owed no duty to social invitee to protect him from criminal acts of third parties on his land and was held not liable); Geremia v. State, 58 Hawaii 502, 573 P.2d 107 (1977) (state owned and ran parking lot near natural pool in which boy drowned; being neither the owner nor occupier of the pool itself, the state owed no duty to the boy and was held not liable); Schicker v. Leick, 40 Wis.2d 295, 162 N.W.2d 66 (1968) (landowner-farmer owed duty to persons travelling on adjoining highway to perform in a non-negligent manner his undertaking to clean up mud from his land that had seéped onto the highway and was held liable for his failure to do so).

Other courts, most notably the California appellate courts, have explicitly refused to adopt section 321. In Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976), the California Supreme Court considered whether section 321. should be applied to find the police liable for releasing from custody a mental patient who, after being released, killed Ms. Tarasoff. The court specifically refused to find such a duty based on the broad terms of section 321, on the grounds that to do so would raise “difficult problems of causation and of public policy.” Following Tarasoff, application of section 321 was raised and dismissed in two California cases, one against a county institution that released a mental patient who subsequently attacked the plaintiff, Thompson v. County of Alameda, 27 Cal.2d 741, 167 Cal.Rptr. 70, 614 P.2d 728 (1980), the other against police officers who failed to warn the plaintiff that the man who attacked her was under suspicion for a series of assaults. Davidson v. City of Westminster, 32 Cal.2d 197, 185 Cal. Rptr. 252, 649 P.2d 894 (1982).

Only two courts have found that plaintiff stated a cause of action based solely on the application of section 321. Neither of these cases enunciates guidelines for a principled application of section 321; both merely use section 321 as citable authority for their own adoption of a new cause of action based on public policy.

In US. v. Furumizo, 381 F.2d 965 (9th Cir.1967), air traffic controllers were found liable to passengers of a plane that crashed in its attempt to take off in the wake turbulence of a larger plane. The controllers gave a warning to the pilot of the small plane regarding turbulence, in compliance with their manual and regulations; the plane took off soon after the warning, in apparent disregard of it. The Ninth Circuit Court of Appeals found that the air traffic controllers had a duty to give a further warning or to take further action, on the grounds that “[t]heir job requires that they act in the interest of safety.” 381 F.2d at 968.

Also relying on section 321, the West Virginia Supreme Court found an employer liable to plaintiffs injured in a car crash with defendant’s employee. Robertson v. LeMaster, 301 S.E.2d 563 (W.Va.1983). Defendant employer had required the employee to work 27 hours without rest, and then drove the employee to his car. The court found that the employer was negligent in failing to provide rest facilities or transportation to the employee’s home. The court noted:

Throughout the history of Anglo-American jurisprudence the concept of duty has evolved in response to the social aims of civilized society ... [The] emphasis on duty has been shifted towards the goal of compensating victims of tortious conduct.

301 S.E.2d at 566.

Section 321’s broad prohibition against action posing “unreasonable risk” gives no indication of what specific behavior is unacceptable. Tort law’s ability to shape behavior in accordance with the evolution of societal aims depends precisely on its capacity to distinguish between acceptable and prohibited behavior and to penalize the latter. Therefore, any new causes of action must be clearly defined. Overly broad theories of liability such as the one advanced in section 321 maximize societal compensation of injured persons, but do not discourage harmful conduct and prevent injury to future parties. To view tort law as merely a scheme of compensating victims is to strip it of its more important function of influencing behavior. We therefore decline to adopt section 321 of the Restatement (Second) of Torts as the law of Pennsylvania. We have analyzed the arguments advanced by appellants and have found that appellants failed to state a cause of action against appellee construction companies. We therefore affirm the order of the trial court sustaining appellees’ demurrer and dismissing appellants’ complaint.

Order affirmed.

      . In a companion case to this one, Glick v. Olde Town Lancaster, 369 Pa.Super. 419, 535 A.2d 621 (1987) we found that appellants failed to state a cause of action against the owner of the property and associated parties for the allegedly negligent breach of their promise to the city to resecure the vacant building in which Mary Jean Glick was raped.

        . The application of section 321 has been considered by our Supreme Court, but was ultimately left undecided. In Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968), our Supreme Court considered the plaintiff’s allegation that defendant was negligent in failing to shout a warning when he saw a tractor rolling toward the plaintiff, and noted, "The question of whether or not [defendant] had an affirmative duty to warn plaintiff is not without difficulty. See generally, 2 Harper & James, The Law of Torts § 18.6 (1956); Restatement 2d, Torts § 321 (1954).” 430 Pa. at 28, n. 2, 240 A.2d at 829, n. 2. The court found it unnecessary to decide this question, as defendant was found to be negligent on other grounds.

      . The psychotherapist in Tarasoff was found to have owed a duty to the decedent under other sections of the Restatement; section 321 was not analyzed with regard to him.


author: BROSKY, Judge:

text:
    535 A.2d 631
    CONNECTICUT INDEMNITY COMPANY, A Subsidiary of Security Insurance Group, Appellant, v. Nicholas CORDASCO; Juan Jaimie Fuentes; State Farm Mutual Automobile Insurance Company.
    Superior Court of Pennsylvania.
    Argued Oct. 15, 1987.
    Filed Dec. 31, 1987.

      James F. Manley, Pittsburgh, for appellant.
    Frank M. Gianola, Pittsburgh, for State Farm, appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   BROSKY, Judge:

This is an appeal from a judgment entered against appellant in a declaratory judgment action. Appellant is the provider of insurance coverage under a “garage policy” to Gillner Motors whose vehicle was involved in a traffic accident. Appellee State Farm provided appellee Juan Fuentes with automobile insurance. Fuentes, an employee of Gillner Motors, was driving the Gillner vehicle during the collision at issue. Appellant brought this action to determine which insurance provider was responsible for coverage of the accident. Upon consideration of oral and written argumentation of all parties. We affirm the judgment in part, reverse in part and remand for proceedings consistent with this opinion.

The facts in this case are undisputed. On October 2, 1982, Juan Fuentes was operating a motor vehicle which was owned by his employer, Gillner Motors, Inc., when he was involved in an accident with a vehicle driven by Nicholas Cordasco. Mr. Cordasco received personal injuries in the collision. Juan Fuentes was not operating the vehicle owned by Gillner Motors as an employee, or agent of Gillner Motors at the time of the accident. Mr. Fuentes’ personal automobile was being repaired at Gillner Motors and needed a carburetor which was ordered through the Parts Department of Gillner Motors, an auto dealership. The Gillner Motor vehicle was loaned to Mr. Fuentes until the carburetor was received and installed in his automobile.

At the time of the accident in question, Mr. Fuentes carried automobile insurance on his personal automobile through State Farm Mutual. Gillner Motors had a garage policy through Appellant, Connecticut Indemnity Company. The trial court determined that appellant had a duty to provide coverage of the accident and that appellee State Farm had no duty to provide either primary or excess coverage.

Appellant’s first argument is that Fuentes was a customer of Gillner Motors and therefore falls into the following exclusion in the Connecticut policy:

For Covered Autos.
a. You are an insured for any covered auto.
b. Anyone else is an insured while using with your permission a covered auto except:
(3) Your customers, if your business is shown in ITEM ONE of the declarations as an auto dealership. However, if a customer of yours:

Appellant argues that Fuentes was a customer of Gillner Motors as he purchased the carburetor to be installed from Gillner’s Parts Department. The trial court found that Fuentes was not a customer and also suggested that the exclusion applied only to customers of the dealership part of the business where garage owner and dealership are one and the same. We agree with this interpretation of the policy. Simplifying the language quoted above the garage policy provides coverage for any individual using a “covered auto”, one declared for coverage under the policy, with permission of the policyholder. The exception cited by appellant indicates non coverage of individuals using a covered auto who are customers if the policyholder’s business is that of an auto dealership. In a previous section of the policy, coverage is excluded for covered autos while leased or rented to others. However, that exclusion does not apply if the covered auto is rented to “one of your customers while his or her auto is left with you for service or repair.” (Emphasis in original). The latter exclusion would appear to provide coverage to customers of the garage who are given replacement vehicles while theirs are being serviced, while excluding coverage to those who lease or rent the vehicle without leaving their own for service or repair. Perhaps such rental transactions take place during periods where the garage no longer needs the vehicle and decides to rent it out instead of letting it sit around. When the sections are read together they make sense. Coverage is provided to individuals who are customers of the garage if they are using a covered vehicle while theirs is being serviced or repaired. However, customers of the auto dealership are not covered under the garage policy, unless they meet one of the subsections following that exclusion, nor are individuals who lease or rent a covered vehicle from the garage where their own auto is not being serviced or repaired. Consequently, we find the exclusion relied upon by appellant not applicable to this case.

Appellant next argues that the accident did not result from garage operations. However, “garage operations” is defined in the policy as including use of a covered auto which is the case here. Consequently, we find this argument to be without merit and at this juncture, we must conclude that coverage applies under appellant Connecticut’s policy.

Appellant’s third argument is that the State Farm policy issued to Fuentes provides primary coverage of the accident. The State Farm policy does provide liability coverage to an insured when using a “temporary substitute car.” State Farm does not contend that the vehicle Fuentes was driving was not a temporary substitute vehicle. However, State Farm points to its “other insurance” provisions and argues that these provisions limit the extension of liability coverage so that it does not encompass the situation here. The key provision reads:

3. Temporary Substitute Car, Non-Owned Car, Trailer.
If a temporary substitute car, a non-owned car or a trailer designed for use with a private passenger car or utility vehicle has other vehicle liability coverage on it, then this coverage is excess. THIS COVERAGE SHALL NOT APPLY:
a. IF THE VEHICLE IS OWNED BY ANY PERSON OR ORGANIZATION IN A CAR BUSINESS; and
b. IF THE INSURED OR THE OWNER HAS OTHER LIABILITY COVERAGE WHICH APPLIES IN WHOLE OR IN PART AS PRIMARY, EXCESS OR CONTINGENT COVERAGE.

In light of this provision and the facts of the case, the trial court concluded that “the conditions are present which would exclude coverage from State Farm under the terms of their insurance contract with Fuentes.” However, appellant argues that this provision is an “escape clause” and thus unenforceable under our law.

The Third Circuit Court of Appeals discussed escape clauses in insurance contracts in Insurance Company of North America (INA) v. Continental Casualty Company, 575 F.2d 1070 (3d. Cir.1978). There they stated:

“Other insurance” clauses generally fall into three categories — prorata, escape, and excess; the latter two varieties are material here. An “excess” clause purports to provide protection to the insured in addition to other coverage which might be available to him. Since it does not provide that supplemental protection until the other policy has been exhausted, it is “excess” to the other coverage. An “escape” clause provides that the company invoking it is relieved from any obligation to the insured if other coverage is available. Because the company may “escape” responsibility under its policy if that clause is given effect, not unexpectedly, “escape” clauses are generally in disfavor with the courts.

Id. at 1072. State Farm argues that their clause is not an “escape clause” but instead a limitation on the extension of liability coverage while an insured is driving'a temporary substitute vehicle. We cannot agree. As explained by Judge Weis, writing for the Third Circuit in INA v. Continental Casualty, supra, an escape clause is one which purports to relieve the insurer from any obligation to the insured if other coverage is available. This is exactly what the subsections of the State Farm policy, quoted above, attempt to accomplish. By its very terms, coverage would be available to Fuentes under the State Farm policy if he was not covered under the Connecticut garage policy issued to Gillner Motors. Furthermore, we have no difficulty with the fact that the escape provision is tied to an excess coverage provision. The Third Circuit, in the INA case, dealt with a similar clause. There the Continental clause purported to give excess coverage, but only if the policy limits afforded under the Continental policy exceeded the limits of the other applicable policy. The INA policy provided greater coverage and, hence, under the terms of its policy Continental had no obligation to insure. The Third Circuit found the clause, as applied to the facts of that case, an escape clause. Similarly, as applied to this case, the State Farm policy has an escape clause which purports to relieve State Farm from coverage of Fuentes.

In Grasberger v. Liebert and Obert, Inc., 335 Pa. 491, 6 A.2d 925 (1939), our Supreme Court was faced with competing “other insurance” clauses. One was an escape clause, the other an excess clause. The Supreme Court disregarded the escape provision. Similarly, in the INA case, the Third Circuit disregarded the escape/excess clause and found Continental fully liable for the disputed amount. Thus, it appears that the weight of aúthority instructs us to strike the escape clause or provision and enforce the policies as if the escape provision did not exist. The State Farm policy provides for “excess” coverage to insured individuals driving temporary substitute cars with other liability coverage. It is this coverage from which State Farm attempts to “escape” under the offensive passages. Disregarding the escape provisions, State Farm is obligated to provide excess coverage to Fuentes. Accordingly, we affirm the judgment to the extent that it holds appellant responsible for providing primary coverage to Fuentes. We reverse the judgment to the extent it finds that appellee State Farm has no obligation to provide coverage. We remand for modification of the judgment to reflect State Farm’s responsibility for providing excess coverage to Fuentes.

The appeal at No. 00188 Pittsburgh, 1987 is dismissed.

The judgment entered at No. 00189 Pittsburgh, 1987 is affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

The judgment entered at No. 00190 Pittsburgh, 1987 is affirmed.

Jurisdiction is relinquished.

      . The appeal at No. 00188 Pittsburgh, 1987, from the December 11, 1986 order denying appellant's motion for summary judgment, is dismissed as premature as the order did not enter judgment in either party's favor and the order was not reduced to judgment until December 30, 1986. See Progressive Home Federal Savings & Loan v. Kocak, 359 Pa.Super. 120, 518 A.2d 808 (1987).
      The appeal at No. 00190 Pittsburgh, 1987 regards judgment entered in favor of Fireman’s Insurance Company of Newark, New Jersey and against appellant. As appellant does not address error in the entry of this judgment in its brief, and as we find that the judgment was properly entered we affirm that judgment. We address only the judgment in favor of appellee State Farm and against Connecticut Indemnity.