author: JOHNSON, Judge: HESTER, Judge,

text:
    463 A.2d 1085
    INDUSTRIAL UNIFORM RENTAL COMPANY, INC. and Stork Diaper Service, Inc., Appellants, v. INTERNATIONAL HARVESTER CO.
    Superior Court of Pennsylvania.
    Argued June 3, 1982.
    Filed July 15, 1983.

      Arnold M. Kessler, Philadelphia, for appellants.
    Francis F. Quinn, Philadelphia, for appellee.
    Before HESTER, CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

The question before this court is whether Pennsylvania courts should recognize a claim in strict liability for recovery of economic losses, where the injury is only in the deterioration of the product itself, and is not the result of a defect causing some untoward occurrence thereby damaging the product.

In September 1971 Avis Rent A Car System, Inc. purchased a certain number of trucks from International Harvester Co. In October 1971 the appellant corporations,Industrial Uniform Rental Co., Inc. and Stork Diaper Service, Inc., leased the trucks from Avis -for use in their business. Then in October 1974 the appellant corporations purchased these same trucks from Avis.

In December 1972 two of these trucks had allegedly developed cracks and failures in the frames, which were repaired by Avis. Then, after the 1974 purchase of the trucks, twelve more trucks allegedly developed cracks and failures in the frames. These cracks were repaired by the appellant corporations.

In June of 1978 the appellant corporations commenced this suit in trespass against International Harvester, the manufacturer of the trucks, alleging negligent design, manufacture and sale of the trucks, and requesting damages for the cost of the repairs to the trucks. In its answér, under New Matter, International Harvester raised the bar of the statute of limitations, which the appellants denied in their reply, alleging that this being a “property damage” claim it was within the statute of limitation for trespass actions.

A certain amount of discovery was undertaken until March 1981 when International Harvester filed a motion for summary judgment, arguing that the appellants’ claim was solely for economic losses, that the allegations in the complaint that the trucks were defective, poorly designed and not adequate for their contemplated use, sounded in breach of warranty, and that therefore the action was barred by section 2-275 of the Uniform Commercial Code (UCC).

In answer to the motion for summary judgment, the appellants argued inter alia that their claim for damages included not only repairs to the trucks but also a “diminution in use expectancy,” and that their claim was indeed a tort action. In their memorandum of law in support of their answer the appellants raised for the first time the question of section 402A of the Restatement (Second) of Torts, asserting that Pennsylvania law supported their action “under 402A and in negligence against the manufacturer of trucks where defects cause damages sustained.”

The trial court in its opinion stated that the uncontradicted evidence established that the plaintiffs were seeking damages for defects of quality evidenced by internal deterioration or breakdown which constituted economic loss not recoverable in a claim under strict liability, and granted the motion for summary judgment.

On appeal to this court the appellant purchasers of the trucks assert that the (unspecified) defects in the trucks brought about the cracking and caused damages to the trucks, thus creating a cause of action for “property damage” under section 402A of the Restatement (Second) of Torts.

We believe, on the contrary, that the claim in this case is ’ precisely the type of claim envisaged by the UGC. See 13 Pa.C.S.A. § 2714, which provides:

§ 2714. Damages of buyer for breach in regard to accepted goods
(a) Damages for nonconformity of tender.—Where the buyer has accepted goods and given notification (section 2607(c)) he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the breach of the seller as. determined in any manner which is reasonable.
(b) Measure of damages for breach of warranty.—The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have if they had been as warranted, unless special circumstances show proximate damages of a different amount.
(c) Incidental and consequential damages.—In a proper case any incidental and consequential damages under section 2715 (relating to incidental and consequential damages of buyer) may also be recovered.

We do not agree with appellants that the facts of this case call for the application of Section 402A of the Restatement (Second) of Torts, which provides:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

There are two lines of cases on the issue presented by this appeal. There is the majority view, led by the landmark decision of the Supreme Court of California in Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145, 45 Cal.Rptr. 17 (1965). There is also the minority view, led by the equally significant decision of the Supreme Court of New Jersey in Santor v. A. & M. Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965).

In Santor the plaintiff sued the manufacturer of carpeting for defects which- caused lines to appear in the carpeting. The New Jersey supreme court held first that the plaintiff could sue the manufacturer for breach of implied warranty, that privity of contract was not necessary, and that the action could be maintained even though the damage was limited to -loss of value of the carpeting. The New Jersey court then went on to rule that the responsibility of the maker should be no different whether the damage was personal injury, damage to other property or to the product involved, and that strict liability in tort was applicable to actions for economic losses resulting from defective products.

In Seely the plaintiff purchased a truck for heavy-duty hauling. From the beginning the purchasers experienced a “galloping” problem with the truck, which they attempted to repair. Then one day the brakes failed, and the truck overturned, causing no personal injuries but resulting in over five thousand dollars’ worth of damage to the truck. The California supreme court, disagreeing with the New Jersey court, ruled that as the UCC system of recovery was not superseded by the doctrine of strict liability which applied to actions for personal injury and property damage only, and not to actions for economic loss alone, there could be no recovery for the injury to the truck under strict liability. As part of its reasoning the California court considered the purpose for the two distinct remedies:

The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary and does not rest on the “luck” of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products. He can appropriately be held liable for physical injuries caused by defects by requiring his goods to match a standard of safety defined in terms of conditions that create unreasonable risks of harm. He cannot be held for the level of performance of his products in the consumer’s business unless he agrees that the product was designed to meet the consumer’s demands. A consumer should not be charged at the will of the manufacturer with bearing the risk of physical injury when he buys a product on the market. He can, however, be fairly charged with the risk that the product will not match his economic expectations unless the manufacturer agrees that it will. Even in actions for negligence, a manufacturer’s liability is limited to damages for physical injuries and there is no recovery for economic loss alone.... The Restatement of Torts similarly limits strict liability to physical harm to person or property.

Seely v. White Motor Co., 63 Cal.2d at 18, 403 P.2d at 151, 45 Cal.Rptr. at 23 (citations omitted).

The doctrine of products liability was developed primarily as a means by which consumers could be compensated for personal injury and property damage caused by defective products. See Note, Products Liability in Commercial Transactions, 60 Minn.L.Rev. 1061 (1976). See generally, Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917 (1966). The warranty theory, however, now governed by the Uniform Commercial Code, provides for liability for losses on bargains and other injuries resulting from failure of the product to meet the expectations of the buyer where the seller has breached express or implied warranties to the buyer. See Ribstein, Guidelines for Deciding Product Economic Loss Cases, 29 Mercer L.Rev. 493 (1978).

It would seem that the Seely and Santor lines of cases differ in that the Seely line focuses on the type of harm caused by the defective product, whereas the Santor line seems to view a defective product as essentially an unmerchantable product under the UCC, see 13 Pa.C.S.A. § 2314(b). See Note, Products Liability in Commercial Transactions, 60 Minn.L.Rev. 1061, 1068-69 (1976).

We believe in the validity of the “type of harm” approach, particularly on the facts of the case before us which involve a commercial buyer of trucks for use in its business claiming its expenses because the trucks it leased and later purchased were allegedly defective. An analysis of the case law in Pennsylvania and elsewhere supports this view.

In Lobianco v. Property Protection, Inc., 292 Pa.Super. 346, 437 A.2d 417 (1981), this court held that a homeowner who had purchased a burglar alarm system which malfunctioned could not bring a strict liability action against the seller of the system for the loss she incurred in the theft of her jewelry. This case is helpful to the extent that it seems to indicate a reluctance in this court to allow strict liability recovery for purely economic loss. See also R.B. Equipment Co. v. Williams, Shields, Snyder & Goas, 304 Pa.Super. 31, 450 A.2d 85 (1982). In R.B. Equipment the superior court quashed as interlocutory an appeal from the trial court’s order sustaining the defendants’ preliminary objections to the strict liability counts of a complaint against manufacturers and suppliers of allegedly defective cement and concrete used in constructing roads, sidewalks, curbing and stairs in a public school project. Wickersham, J. dissenting, would have affirmed the trial court. Part of the rationale of the dissenting opinion was that the plaintiff was not the school authority—the user of the product, but an assignee of the general contractor. More importantly for our purposes, though, Judge Wickersham quoted with approval from the rationale in Posttape Associates v. Eastman Kodak Co., 537 F.2d 751 (3d Cir.1976), q.v. page — infra.

A recent case applying Pennsylvania law is Pennsylvania Glass Sand Corporation v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981). Pennsylvania Glass Sand Corporation [PGS] brought a diversity action against Caterpillar Tractor, the manufacturer, to recover damages it incurred as a result of a fire in a front-end loader purchased from Caterpillar. The fire broke out, four years after the purchase, in the front of the loader near the hydraulic lines. The fire spread, severely damaging the loader, although no personal injuries resulted. The basis of PGS’ complaint in negligence and strict liability (§ 402A) was the absence of a fire suppression or extinction system. (In a footnote the court explained that the four-year UCC statute of limitations had possibly barred the claim.) The court, predicting how the Supreme Court of Pennsylvania would address the question of whether accidental injury to the defective product itself should be regarded as an economic loss recoverable only in a contract warranty action, expressed the belief that the Pennsylvania supreme court would draw a distinction between the type of injury to a defective product that constitutes mere economic loss, and the type of injury that amounts to the sort of physical harm traditionally compensable in tort. 652 F.2d at 1173.

The PGS court discussed its earlier decision in Posttape Associates v. Eastman Kodak Co., 537 F.2d 751 (3d Cir. 1976). In Posttape a film maker sought to recover increased costs and lost profits resulting from defective film supplied by Kodak. The Posttape court decided that section 402A was of doubtful utility in a commercial setting when the damages were consequential and arose from a non-dangerous impairment of quality of the product, and that the provisions of the UCC were better tailored to such a situation.

The PGS court noted that “implicit in [the Posttape ] opinion is a recognition of the difference between claims for economic loss and for physical damage to the defective product.” 652 F.2d at 1174. “In addition, the [Posttape ] opinion alluded to the policy distinctions that make the U.C.C. the proper vehicle for redressing losses occasioned by impairment of quality, and make § 402A the superior device for-rectifying the consequences of dangerously defective products. [Posttape, 537 F.2d] at 755.” PGS, 652 F.2d at 1174.

Finally, reviewing the circumstances of the damage alleged by PGS, the court decided that, as the nature of the defect and the type of risk it poses are the guiding factors, and that as the damage was the result of a fire, and that the defect constituted a safety hazard, the complaint brought by PGS appeared to fall within the policy of tort law that the manufacturer should bear the risk of hazardous products. Id. at 1174-75. Furthermore, said the court, the complaint did not appear to implicate the policies of warranty law, because there were no allegations that the loader was of poor quality or otherwise unfit to perform its job. Id. at 1175. The court concluded that Pennsylvania courts would regard the injury stemming from the allegedly hazardous defect in the loader as the sort of physical injury compensable under tort law. It was the hazardous condition that removed the situation from the embrace of the UCC.

The United States Court of Appeals for the Third Circuit, predicting, in another case, how the Supreme Court of Illinois would decide the question whether economic losses are recoverable under tort theories of liability, ruled that the purchaser of a roof could not recover under strict liability or negligence for failure of the roof to perform. As the court explained:

The rationale behind strict liability in personal injury situations is not well-suited to claims alleging only economic loss. Economic loss results from the failure of the product to perform to the level expected by the buyer and the seller. Such loss is most frequently measured by the cost of repairing the infirmity or by the difference in the value of the product as it exists and the value it would have had if it performed as expected. Thus, economic loss is ■ almost always incurred by the owner of the product, not by persons who merely use it or come into contact with it. The original purchaser, particularly a large company such as Jones & Laughlin, can protect itself against the risk of unsatisfactory performance by bargaining for a warranty. Alternately, it may choose to forego warranty protection in favor of a lower purchase price for the product. Subsequent purchasers may do likewise in bargaining over the price of the product. In any event, because persons other than the owner of the product will not incur economic losses resulting from the product’s poor performance, the costs associated with economic loss will likely be reflected in the price of the product. There accordingly would seem to be no need to internalize these costs through a non-price mechanism such as strict liability.

Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 288-89 (3d Cir.1980) (footnote omitted).

The court further explained:

Finally, the extension of strict liability proposed here by Jones & Laughlin would appear to conflict with the decision by the Illinois Legislature to enact the sale provisions of the Uniform Commercial Code (UCC)____ Section 2-313 of the Code recognizes the existence of express warranties, and § 2-314 enacts an implied warranty of merchantability and fitness. Section 2-314 provides that “[u]nless excluded or modified ..., a warranty that the goods shall be merchantable is implied in a contract for their sale .... To be merchantable, the goods, inter alia, must be “fit for the ordinary purposes for which such goods are used.” ... The Code also provides, however, that the parties to a sales contract may agree that the buyer possesses no warranty protection at all, or may limit any warranties in any reasonable manner. Id. § 2-316. The parties may even agree to exclude the implied warranty of merchantability and fitness if they do so in writing, and may modify the implied warranty by clear and conspicuous language. Id. § 2-316(2).
The extension of strict liability to cover economic losses in effect would make a manufacturer the guarantor that all of its products would continue to perform satisfactorily throughout their reasonably productive life. Inasmuch as the doctrine of strict liability does not permit a manufacturer to limit its liability through the use of a waiver or a limited warranty, importation of strict liability into the economic loss area would effectively supersede § 2-316 of the UCC. Yet, there is nothing in prior opinions of the Illinois Supreme Court to suggest that it would undertake such an encroachment on the legislative prerogative. As the Supreme Court of Idaho remarked recently in dealing with this very question:
[T]he legislatures of nearly every state in the Union, have adopted the UCC which carefully and painstakingly sets forth the rights between the parties in a sales transaction with regard to economic loss. This Court, in the common law evolution of the tort law of this state, must recognize the legislature’s action in this area of commercial law and should accommodate when possible the evolution of tort law with the principles laid down in UCC. [Clark v. International Harvester Co., 99 Idaho 326, 335, 581 P.2d 784, 793 (1978)].
Consequently, we do not believe that the Illinois Supreme Court would extend its common law of tort liability in the manner suggested by Jones & Laughlin.
For the foregoing reasons, we predict that the Illinois Supreme Court would hold that economic losses are not recoverable under claims based on principles of tort law.

Id. at 289 (footnote omitted).

This rationale, which appears to coalesce with the view of most jurisdictions on this issue, seems to this court to be the correct one, and the one which Pennsylvania courts should adopt.

We find further support in recent cases in other jurisdictions following the majority view.

The Supreme Court of Nebraska has held that the purchaser of a defective product cannot recover economic losses under negligence or strict liability absent physical harm to persons or property caused by the defective product. In National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d 39 (1983), the plaintiff was a manufacturer of cranes which sought to recover for the costs and expenses of removing defective steel tubing used in the tilt cylinder mechanism of its cranes. The Nebraska supreme court concluded that the damages involved were those resulting from the purchase of unsatisfactory products and that the cause of action for such loss should be pursued under a warranty or contract theory.

The Supreme Court of Illinois, approving the Third Circuit’s rationale in Pennsylvania Glass Sand, supra, held that “where only the defective product is damaged, economic losses caused by qualitative defects falling under the ambit of a purchaser’s disappointed expectations cannot be recovered under a strict liability theory.” Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 85, 61 Ill.Dec. 746, 753, 435 N.E.2d 443, 450 (1982).

In Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324 (1981), in an action by a buyer against the manufacturer of a generator whose engine failed causing severe damage to the machine, the Supreme Court of Alaska held that the buyer’s loss was entirely economic and thus could not be recovered under strict liability in tort.

In Northern Power the buyer argued further that the oil pressure shutoff mechanism, being defective and having damaged the engine, was a defective product resulting in damage to the plaintiff’s property, the generator (i.e. causing “property damage”). This is the same argument presented to this court by the appellant corporations now before us. The Alaska court responded to the argument thus:

While we think this proposition may have some validity where the components are sold separately or are provided by different suppliers, we find no justification or support for such a rule where both components are provided by one supplier as part of a complete and integrated package. Since all but the very simplest of machines have component parts, such a broad holding would require a finding of “property damage” in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability.

Northern Power & Engineering Corp. v. Caterpillar Tractor, 623 P.2d at 330 (footnote omitted). The Alaska supreme court ruled that when a defective product creates a situation potentially hazardous to persons or other property, and loss occurs as a result of that danger, strict liability in tort is an appropriate theory of recovery even though the damage is confined to the product itself. 623 P.2d at 329. But because in the generator case there was no evidence that the defective shut down system presented any danger to persons or other property, but simply caused the engine to seize up and stop operating, this was economic loss only.

We borrow from this rationale and dispose likewise of appellants’ property damage argument. We shall not classify allegedly defective manufacture leading to deterioration of the product as property damage in the section 402A sense.

The Supreme Court of Minnesota has similarly preferred the Seely rationale and held that economic losses arising out of commercial transactions, excepting those involving personal injury or damage to other property, are not recoverable under tort theories of negligence or strict liability. Superwood Corp. v. Siempelkamp Corp., Minn., 311 N.W.2d 159 (1981) (where the buyer of a hot plate press of which the cylinder failed brought an action for damage to the press and for lost profits).

In Nobility Homes of Texas, Inc. v. Shivers, Tex., 557 S.W.2d 77 (1977), the Supreme Court of Texas held that the buyer of a defective mobile home could bring an action against the manufacturer, to recover economic loss, in negligence and in warranty, but not in strict liability because the product was not unreasonably dangerous and did not cause physical harm to the buyer or to his property.

Extrapolating from the above-mentioned authority we formulate the following rule: In an action between commercial enterprises, where defective design, manufacture and sale of a product is alleged, where there is nothing in the record to indicate that the defect is a condition potentially dangerous to persons or to property, and where the purported defect results in progressive deterioration of the product itself, the buyer’s cause of action for its economic losses against the seller is in breach of warranty under the UCC.

Furthermore, the complaint in the instant case, captioned in trespass and alleging “negligence and carelessness ... in designing, manufacturing, and selling the trucks,” nevertheless (1) is totally insufficient to state a cause of action in strict liability, which claim was only asserted at the time of the motion for summary judgment and (2) by its very language that the trucks were “not adequate for their contemplated use” clearly states a possible cause of action in breach of warranty, and is therefore barred because it was brought more than four years after tender of delivery of the trucks. 13 Pa.C.S.A. § 2725.

The order of the trial court granting summary judgment is affirmed.

HESTER, J., files a dissenting opinion.

HESTER, Judge,

dissenting:

I dissent. The issue for review is whether a cause of action arising from a defective product causing damage only to the product itself is properly grounded in tort under § 402A of the Restatement of Torts (2d). Although this issue has not been finally adjudicated by our appellate courts, the United States Court of Appeals for the Third Circuit, in Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3d Cir.1981), decided this precise issue according to its informed and cautious belief of how the Pennsylvania Supreme Court would rule. I will consider Pennsylvania Glass Sand, supra, and both forum and non-forum decisions in reviewing this issue of near first impression.

Section 402A of the Restatement of Torts (2d) was adopted by the Pennsylvania Supreme Court in Webb v. Zern, 422 Pa. 424, 220 A.2d. 853 (1966). Liability under § 402A is restricted as follows: 1) the defendant must be engaged in the business of selling the product alleged to be defective; 2) the defective condition must render the product unreasonably dangerous; 3) the product must be unreasonably dangerous to the consumer or his property; 4) the product must cause physical harm to the ultimate user or consumer, or his property; and, 5) “the product is expected and does reach the user or consumer without substantial change in the condition in which it was sold.”

It is not in dispute that the damage here was to the defective products themselves, namely, the delivery trucks. Appellants aver that physical damage to the defective product lies within the purview of § 40.2A; conversely, appellee maintains that such damage is solely an economic loss for which' retribution is traditionally sought in commercial law.

Ascertaining the correct theories of liability for physical injury to the consumer’s or ultimate user’s person, or to the non-defective property of the consumer or user is not an abstruse assignment. Section 402A has been upheld frequently and consistently as the mode of recourse for these injuries. See Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975); Speyer, Inc. v. Humble Oil & Refining Co., 275 F.Supp. 861 (W.D.Pa.1967), affirmed 403 F.2d 766 (3d Cir.1968), certiorari denied 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed.2d 41 (1969). Ambiguity abounds, however, where the effects of the defect reach no further than the defective product itself.

Damage incurred by the defective product only is often considered solely economic loss where the plaintiff suffers out of pocket expenses, loss of bargain, or cost of replacement or repair. Seely v. White Motor Co., 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965). Some courts presume economic loss simply because the defective product alone is damaged; the nature of the defect and the manner in which damage was inflicted is immaterial. For example, in Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex., 1978), an aircraft was forced to an emergency crash landing because the defendant/manufacturer failed to install a crankshaft gear bolt lock plate. The aircraft received extensive damage upon landing. The Mid Continent court categorically labelled damages to the defective product itself as economic losses governed solely by the Uniform Commercial Code. All damages to the defective product itself, regardless of degree or manner inflicted, were deemed losses to the purchaser of the benefit of the bargain with the seller—a classic measure of contract damages.

This general rule projected by Seely, supra, and Mid Continent, supra, has been qualified in .diverse fashion. The applicability of § 402A and warranty law has been considered by some courts to weigh heavily upon the nature of the defect and the manner in which the damage developed. For example, in Pennsylvania Glass Sand Corp. (PGS) v. Caterpillar Tractor Co., supra, the court distinguished both theories on that basis. PGS filed its diversity action in negligence and strict liability under § 402A; it did not allege breach of warranty. The cause of action arose from a defective design in a front-end loader that PGS purchased from the defendant/manufacturer. Following four years of operation by PGS, the front portion of the loader caught fire. Due to the defendant’s omission of a fire extinguishing system from the design, the fire spread undeterred. PGS expended $170,000 in repairs, rental of a temporary replacement and installation of fire suppressant equipment. Similarly, the defendant’s motion for summary judgment was granted by the trial court on grounds that PGS had suffered a purely economic loss not recoverable in tort.

Although impressed by the premise espoused by our Supreme Court in Kassab v. Central Soya, 432 Pa. 217, 246 A.2d 848 (1968), i.e., that § 402A and implied warranty are •nearly coextensive in application, the Pennsylvania Glass Sand court opined that the theories were not equally applicable in all product-oriented disputes. It held that warranty causes of action are more suitable for redress from qualitative defects, whereas § 402A is more appropriately addressed to hazardous defects causing calamitous damage. In other words, according to Pennsylvania Glass Sand, supra, damage to the defective product itself resulting gradually from internal deterioration or breakdown is economic loss; § 402A physical injury to the defective product must arise as the result of violent accidents.

The defect in Pennsylvania Glass Sand, supra, was the failure to design a loader equipped with a fire extinguishing system. As a result, the risk of conflagration was particularly acute and the operation of the loader especially hazardous. The Pennsylvania Glass Sand court concluded, therefore, that the cause of action was properly brought in. tort under § 402A.

I acknowledge that Pennsylvania Glass Sand, supra, does not apply here. The inspections of the twelve damaged trucks disclosed broken welds for front spring brackets, fractured frame rails, broken spring cross-members, fractured mounting plates for gasoline tank support straps, broken shock absorber mounts and twisted support posts. These damages were detected by appellants two or three years following execution of the lease agreement and initial operation of the trucks; therefore, it cannot be gainsaid that damages here were incurred more gradually than abruptly.

Certain jurisdictions have expanded the exception to the pure economic loss theory beyond the sudden, calamitous infliction of harm to the defective product itself. Where the defect causes the defective product alone to incur damages in a gradual manner, yet the deterioration is not commensurate with ordinary and expected wear and tear to the product, the common law tort theory of negligence is a permissible recourse. Spence v. Three Rivers Builders and Masonry Supply, Inc., 353 Mich. 120, 90 N.W.2d 873 (1958); Oliver B. Cannon & Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322 (Del.Super., 1973).

The “consumer expectation” test adopted by Spence, supra, and Oliver B. Cannon & Sons, Inc., supra, was applied to a strict liability cause of action by the 5th Circuit Court of Appeals in Two Rivers Co. v. Curtiss Breeding Service, 624 F.2d 1242 (5th Cir.1980), rehearing denied 629 F.2d 1350 (5th Cir.1980), certiorari denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 348 (1981). The plaintiff purchased bull semen processed by the defendant for the purpose of artificially inseminating its cows. Impregnation resulted; however, a genetic abnormality, syndactylism, developed in some offspring. The plaintiff attributed the birth defects to the semen; consequently, it sought damages for the reduced value of its entire herd. Initially, the Two Rivers court discussed the four common types of loss: 1) personal injury to the user or physical injury to the user’s property, other than the defective property itself; 2) economic loss of value resulting from a product rendered defective by poor workmanship or materials; 3) economic loss to the defective product itself; and, 4) physical harm to the user’s other property as well as the defective product itself. These categories were discussed for informational purposes only; the Two Rivers court did not consider the object of injury or type of loss to be dispositive. Instead, it was first led by the simple categorical distinction between sales and strict liability proposed in Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex.1977), i.e., that sales law governs the economic relationship between sellers and consumers of goods, whereas strict liability addresses the distinct nature of physical injuries. This distinction, according to Two Rivers, supra, determines the extent of responsibility carried by a manufacturer in marketing his product. For instance, he will be strictly liable only for those products that are “unreasonably dangerous” and thereby become unsafe for their intended use. Whether a product is “unreasonably dangerous” and, therefore, subjects the manufacturer to strict liability, depends on the expectations of the consumer. Insofar as most cattle breeds are afflicted with some type of genetic defects, the Two Rivers court concluded that the plaintiff was chargeable with expecting or accepting the risk of the bull semen containing defective spermatozoa; consequently, strict liability was an unavailable cause of action.

Still other jurisdictions care little whether the damages are imposed only upon the defective product itself, whether the damages accrued violently or gradually, or whether the particular damages were expected by the consumer. For example, strict liability for injuries or damages shall be borne by the manufacturer who places defective products in the mainstream of commerce; the cost of such injuries or damages shall not rest with the consumer who is powerless to protect himself, Cova v. Harley Davidson Motor Co., 26 Mich.App. 602, 182 N.W.2d 800 (1970); Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965); where there are unequal bargaining positions, tort principles are permitted to protect consumers, Midland Forge, Inc. v. Letts Industries Inc., 395 F.Supp. 506 (N.D.Iowa, 1975); Southwest Forest Industries Inc. v. Westinghouse Electric Corp., 422 F.2d 1013 (9th Cir.1970), certiorari denied 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138 (1970); the law of products liability was inculcated at the time of the promulgation of the Uniform Commercial Code, and with no Uniform Commercial Code provision usurping the role of negligence or intentional tort, strict liability applies without deference to commercial law, Jig the Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F.2d 171 (5th Cir.1975), rehearing denied 522 F.2d 1280 (5th Cir.1975); finally, where the damage is limited to the defective product alone, there is a proposal for the applicability of § 402A to be determined by the degree of loss to the consumer and not the manner in which harm occurred. Rubin, “Products Liability: Expanding the Property Damage Exception in Pure Economic Loss Cases,” 54 Chicago-Kent L.Rev. 963 (1978).

Some jurisdictions cite policy grounds for determining the applicability of § 402A, In Jones & Laughlin Steel Corp. v. Johns-Manville Sale Corp., 626 F.2d 280 (3d Cir.1980), the original purchaser of a smooth-surface asbestos roof sustained damage to its roof and water damage to steel products inside its mill, and experienced electrical outages. It was not essential that the defective design of the roof caused damage beyond the product itself or whether the damage was expected or abruptly inflicted; the consumer’s ability to protect itself was the controlling interest. The plaintiff’s injury was considered an economic loss because it was capable of protecting itself through bargaining for a warranty or foregoing warranties in lieu of a lower purchase price. Furthermore, the Jones & Laughlin court opined, the extension of strict liability to cover economic losses would effectively circumvent § 2-316 of the Uniform Commercial Code; it would preclude the manufacturer from limiting his liability through disclaimers or limited warranties. Finally, in recognition of Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978), the court reasoned that the judiciary must recognize legislative acts in commercial law and coordinate the development of tort law with deference to statutory sales law.

Obviously, as the foregoing discussion intimates, whether § 402A is applicable to injuries sustained by the defective product alone is a mercurial, unsettling legal issue. I view the distinctions between damages sustained to other property and damages sustained to the defective product itself, along with distinctions between sudden, violent damage and gradually-developing damage, as perfunctory rules having little correlation to the definitions and policies of warranty and strict liability law. It is indeed incredulous that the application of § 402A depends on whether the frame defects here caused appellants to incur further physical damage to their persons, their other property or the persons or property of third parties. Moreover, it is equally devoid of reason, to employ § 402A here only where the cracks and fractures to the frames occurred suddenly and in calamitous fashion.

I prefer to peruse the language of the Uniform Commercial Code and § 402A of the Restatement of Torts (2d) to dispose of the issue. No provision of statutory commercial law supplants, to any extent, the application of products liability. Additionally, it would have demanded little effort of the authors of the Restatement to specifically restrict the kinds of property to which damage must be imposed before § 402A is actuated. Instead, reference is made only to “property” and I perceive no reason why such a term should exclude the defective product itself, regardless of how harm is inflicted.

Section 402A was drafted and adopted by this Commonwealth for the purpose of placing the risk of injury and expense upon the party most able to minimize loss. It matters not whether the injured party is a commercial or individual consumer or whether the injured person is in privity with the manufacturer. Similarly, it should not matter whether the damaged property is the defective product itself or other property contacting the defective product. Whether § 402A applies should depend solely on the statutory limitations of whether the defective product is unreasonably dangerous, whether the seller is engaged in the business of selling such a product, whether the product is expected to and does in fact reach the consumer without substantial change and whether the defect is the proximate cause of injury. Its applicability should not depend on the traditional distinctions between tort and contract law or the categorical rules discussed above.

I believe that appellants’ cause of action was properly filed under products liability law; therefore, I would hold that it was error to summarily dismiss their complaint due to its timely filing within the applicable six year limitations period.

Accordingly, I would reverse.

      . Restatement (Second) of Torts § 402A (1965).

      . An action to recover for "economic” harm has been defined as "an action brought to recover damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits—without any claim of personal injury or damage to other property." Note, Economic Loss in Products Liability Jurisprudence, 66 Colum.L.Rev. 917, 918 (1966). See also Appel, Strict Liability: Recovery of "Economic" Loss, 13 Idaho L.Rev. 29, 40 (1976) (stating that damages to the product itself is often referred to as direct economic loss, measured by the loss on the bargain, cost of replacement, or cost of repair).

      . The Pennsylvania Uniform Commercial Code, Act of April 6, 1953, P.L. 3, No. 1, § 1-101 et seq., as re-enacted, amended and revised, 12A P.S. § 1-101 et seq., was repealed by the Act of November 1, 1979, P.L. 255, No. 86, § 8. It was enacted and transferred to Title 13 of the Pennsylvania Consolidated Statutes without change in substance by the same act. See Act of November 1, 1979, P.L. 255, No. 86, § 7. 13 Pa.C.S.A. §§ 1101-9507 (Purdon Pamp.1982).

      . Section 402A was adopted by the Supreme Court of Pennsylvania in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966).

      . Professor Ribstein argues that in fact, there is no clear distinction between cases involving repair loss due to gradual deterioration because of a defect, or property damage to the product where a defect brought about the calamity, causing the injury. He therefore proposes a formula for deciding economic loss cases, where the primary basis of liability for property damage or economic loss, would be representational (i.e. manufacturers would be held to their representations), supplemented by a negligence duty (i.e. requiring the manufacturer to act reasonably and to not intentionally disregard risks) so as to retain the deterrence objective of product liability. 29 Mercer L.Rev. at 511.

      . The rationale for this decision was joined by two judges, with two judges concurring in the result, and two judges dissenting on the grounds that the seller’s limitation of liability clause was unconscionable.

      . The Court of Appeals explained that the district court had concluded that a Pennsylvania state court would look to Illinois law under its "interest analysis/significant contacts” choice of law test. See 626 F.2d at 284.

      . The roof was built to cover a 1.3 million square foot steel finishing plant in a region subject to high speed winds and extreme fluctuation in temperature. Shortly after its completion the roof blistered, wrinkled, and cracked; later, parts of it blew off. As a result, water entered the plant causing serious damage.

      . In Moorman a food processor filed a complaint in, inter alia, strict liability and negligence for the economic losses resulting from an alleged crack in a grain storage tank. The Illinois Supreme Court concluded that this was a commercial loss of the type protected by the law of warranty.

      . The Alaska court also ruled that in order to recover on such a theory plaintiff must show (1) that the loss was a proximate result of the dangerous defect, and (2) that the loss occurred under the kind of circumstances that made the product a basis for strict liability. Id.

      . See, e.g., 13 Pa.C.S.A. §§ 2313, 2314, 2315.

      . Special Liability of Sellers of Products for Physical Harm to User or Consumer.
      (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property, is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
      (a) the seller is engaged in the business of selling such a product, and
      (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
      (2) The rule stated in subsection (1) applies although
      (a) the seller has exercised all possible care in the preparation and sale of his product, and
      (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

      . For a further example of the application of § 402A liability to damages precipitously imposed on the defective product itself, see Cloud v. Kit Manufacturing Co., 563 P.2d 248 (Alaska 1977).


source: Caselaw Access Project

author: POPOVICH, Judge: JOHNSON, Judge,

license: Public Domain

text:
    463 A.2d 1097
    COMMONWEALTH of Pennsylvania v. Kenneth BEAVER, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 24, 1983.
    Filed July 15, 1983.

      Thomas I. Puleo, Philadelphia, for appellant.
    Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an interlocutory appeal by the appellant, Kenneth Beaver, from the lower court’s Order denying his “Motion to Dismiss Information on Double Jeopardy Grounds.” (Motion) We affirm.

An examination of the facts reveals the following: Át a bench trial before the Hon. Victor J. DiNubile, Jr., the Commonwealth presented its case against the appellant on charges of Theft (18 Pa.C.S.A. § 3921) and Receiving Stolen Property (18 Pa.C.S.A. § 3925).

The first witness, Louise Patricia Long, testified that she resided at 8645 Rugby Street in Philadelphia with her husband and two children, Michelle and Scott. At approximately 6:30 p.m. on the 2nd of March, 1981, Mrs. Long left home, with Michelle and Scott remaining behind, to go to Bible school, but she did not take her purse containing $148.00. At about 9:30 p.m. she returned to discover that the money in her purse was gone. The children informed her that they were ignorant of its whereabouts or who might have taken it. Upon further inquiry, Michelle did admit appellant had been on the premises. This was confirmed by Scott, who told his mother appellant was alone in the house during the time he went to a neighbor’s house to inform Michelle that appellant had arrived to see her. Michelle agreed with Scott, according to Mrs. Long, that “when Scott went to get her he [appellant] could have taken the money. He was left in the house alone.” (RR. 14)

' As for the missing “food processor” and her husband’s two rifles, shotgun and pistol, Mrs. Long could shed no light on the circumstances attendant to their theft, except to mention that she discovered the former missing on March 5th and the latter gone on March 7th.

The next witness to testify for the Commonwealth was Mr. Long. He recounted how, after returning home from Oklahoma on the 7th of March, he had intentions of cleaning his P-38 pistol. When he went to the bedroom closet to retrieve it, he discovered it was gone, along with his other weapons. Mr. Long also stated he gave no one permission to remove the weapons from his home.

Following a series of questions as to when Mr. Long reported the theft to the police, an exchange occurred involving the witness, the trial judge and counsel for both sides that precipitated the mistrial motion; to-wit:

BY MR. INGRAM [Assistant District Attorney]:
Q. Did you talk to the defendant today about any of your firearms, sir?
[George L. Long:]
A. Yes.
Q. Where was that?
A. In the Courtroom, about 10 o’clock.
MR. BANK [Appellant’s counsel]: Objection, Your Honor.
THE COURT: Overruled.
BY MR. INGRAM:
Q. What did he say?
THE COURT: Was the DA or any police officers around when you spoke to him?
MR. BANK: I would like an offer of proof.
BY MR. INGRAM:
Q. During this recess, was there a conversation with the defendant in the presence of defense counsel, and Mr. Moore who is here to present [sic] you Mr. Long?
A. There was conversation as to the possession of the weapons and who might have had them.
MR. BANK: I was there and my client did not make any statements, and I would like an offer of proof.
THE COURT: May I ask you this? Did you have any conversation with the defendant after you discovered the guns missing except for the conversation today—
BY MR. INGRAM:
Q. What was the conversation with the defendant today, sir? Will you tell the Court.
MR. BANK: Objection.
THE COURT: Overruled. You have an exception.
THE WITNESS: I told my lawyer —
MR. BANK: Objection, Your Honor.
THE COURT: Overruled.
THE WITNESS: I told him if the weapons were returned, maybe we could make an arrangement. I am willing to do this.
MR. BANK: Your Honor, I move for a mistrial. This line of questioning is designed to prejudice you.
THE COURT: If there is a statement as to the fact that he stole the guns, this is one thing and is admissible. However, if the statement merely deals with the probability of [sic] possibility that the defendant will make an adjustment or settlement to the prosecutor, then this type of statement would be inadmissible and prejudicial.
MR. BANK: Yes, and I would move for a mistrial.
THE COURT: I don’t have the slightest idea of what was said to Mr. Long, and what he said to the defendant.
MR. BANK: The defendant is claiming he is innocent and I move for a mistrial.
MR. INGRAM: This is not correct.
BY MR. INGRAM:
Q. Did you have a conversation regarding the possession of your firearms?
A. Yes.
Q. Did the defendant tell you—
MR. BANK: Objection
THE COURT: Overruled.
BY MR. INGRAM:
Q. Did he tell you where the weapons were?
A. He said him and my daughter sold them.
MR. BANK: He is committing perjury, Your Honor. I am a witness here. I will take the stand. He never said that to this man.
THE COURT: Are you saying the defendant told you that he and your daughter sold the guns and got money for them?
THE WITNESS: He said he and my daughter sold the guns to a guy named Pinkey.
THE COURT: Mr. Bank, you will have to call in new counsel.
MR. BANK: He is sitting right here, but he was not sequestered.
THE COURT: You will have to call in new counsel if you are going to take the stand.
MR. BANK: Your Honor, this is highly prejudicial. I’m a witness and we wish to have private counsel.
MR. BANK: I again move for a mistrial. I have plenty of grounds for a mistrial. This is up to you.
THE COURT: This could not be tried in a half an hour or an hour. Mr. Bank wants his opportunity to testify. I could not let him try this case as the defendant’s attorney and also testify. This cannot be done. We will have to adjourn this case and appoint private counsel.
MR. BANK: You will have to give this a continuation date, and assign somebody else as private counsel, because I’m going to- take the stand.
THE COURT: Mr. Bank, I am here to try cases. Are you moving for a mistrial?
MR. INGRAM: May we hold this?
THE COURT: I am going to grant this mistrial. New counsel will have to be appointed because Counsel here is going to be a witness

(RR. 19-24) (Emphasis added)

As can be ascertained from the aforesaid, appellant’s trial attorney had intentions of taking the stand to contradict the inculpatory statements attributed to the accused by Mr. Long. Thus, “[i]n view of the fact that the trial attorney himself was to become a witness, the Court honored the [appellant’s trial attorney’s] request for a mistrial.’’ (Emphasis added) (Lower Court Opinion at 2) The case was continued to allow appellant to obtain new counsel.

Before the second trial started, appellant filed a Motion alleging that the Commonwealth “forced” him to request a mistrial by engaging in prosecutorial misconduct (asking Mr. Long questions) intentionally calculated to provoke a mistrial. On November 4, 1981, a Rule To Show Cause was issued, which resulted in a proceeding being scheduled for January 7, 1982. On that day, appellant’s counsel was going to have “the testimony ... of one witness, which would be very short. • Unfortunately, he [was] not present.” (N.T. 1/7/82 at 2) When asked by the court what this witness would have testified to if in court, counsel stated, “To the conversation which occurred in the courtroom that morning,” and testified to by Mr. Long. Id. The hearing judge agreed with the Commonwealth’s assessment that the facts did not indicate a case of double jeopardy and denied appellant’s Motion. This appeal followed and an Opinion was filed (per Judge DiNubile, Jr., which was concurred in by Judge Hirsh) in support of the January 7, 1982 Order denying appellant’s Motion.

On appeal, appellant launches a two-pronged attack. The initial one avers that the prosecution engaged in misconduct by the testimony it elicited from Mr. Long, “first, because it related to settlement discussions and/or plea negotiations and, secondly and most seriously, because, the testimony elicited by the prosecutor was knowingly false.” (Appellant’s Brief at 9) Alternatively, in the second prong, appellant seeks a remand “to prove the requisite intentional or bad faith misconduct[ ]” on the part of the Commonwealth’s attorney. (Appellant’s Brief at 14-15)

Prior to addressing the merits of appellant’s claims, we need to determine the scope of review to be utilized instantly. To that end, our Supreme Court identified those circumstances in which the Double Jeopardy Clause will bar retrial “if the defendant sought the mistrial as a result of prosecutorial misconduct amounting to overreaching.” (Citations omitted) Commonwealth v. Starks, 490 Pa. 336, 340, 416 A.2d 498, 500 (1980). On this subject of “prosecutorial overreaching,” the Court in Starks stated:

The United States Supreme Court has enunciated principally two types of prosecutorial overreaching. First there is the prosecutorial misconduct which is designed to provoke a mistrial in order to secure a second, perhaps more favorable, opportunity to convict the defendant. See United States v. Dinitz, [424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976)]. Second there is the prosecutorial misconduct undertaken in bad faith to prejudice or harass the defendant. See Lee v. United States, [432 U.S. 23, 32, 97 S.Ct. 2141, 2147, 52 L.Ed.2d 80 (1977)]; United States v. Dinitz, supra at 611, 96 S.Ct. at 1081-82. In contrast to prosecutorial error, overreaching is not an inevitable part of the trial process and cannot be condoned. It signals the breakdown of the integrity of the judicial proceeding, and represents the type of prosecutorial tactic which the double jeopardy clause was designed to protect against.

Id. 490 Pa. at 341, 416 A.2d at 501.

This Court has interpreted Starks to hold that, “prosecutorial misconduct rising to the level of overreaching will bar retrial only if the specified misconduct is attributable to a bad faith effort to prejudice the defendant or an intent to provoke a mistrial.” (Emphasis added) (Footnote omitted) (Citation omitted) Commonwealth v. Clark, 287 Pa.Super. 380, 390, 430 A.2d 655, 660 (1981). Accord Commonwealth v. Yost, 305 Pa.Super. 316, 321 n. 5, 451 A.2d 549, 552 n. 5 (1982); Commonwealth v. Anderson, 294 Pa.Super. 1, 5-6, 439 A.2d 720, 722 (1981); Commonwealth v. Smith, 284 Pa.Super. 60, 67, 425 A.2d 393, 396 (1981). In fact, we have noted that Starks “set forth an authoritative standard for overreaching cases where none previously existed.” (Citations omitted) Commonwealth v. Clark, supra, 287 Pa.Super. at 390 n. 9, 430 A.2d at 660 n. 9.

It is appropriate at this point in the discussion to mention that the United States Supreme Court recently found it necessary to delineate more fully than it had the bounds of the “narrow exception to the rule that the Double Jeopardy Clause is no bar to retrial.” Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 2088, 72 L.Ed.2d 416 (1982). Justice Rehnquist, writing for the majority, recognized that language taken from the' Court’s earlier opinions “would seem to broaden the test [for determining a violation of the Double Jeopardy Clause] from one of intent to provoke a motion for a mistrial to a more generalized standard of ‘bad faith conduct’ or ‘harassment’ on the part of the judge or prosecutor.” (Emphasis in original) Id. at 674, 102 S.Ct. at 2089 (“earlier opinions” referred to by the Court consisted of United States v. Dinitz, supra, and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971)). The Court in Oregon further conceded that:

Because of the confusion which these varying statements of the standard in question [—garnered from the decisions in United States v. Dinitz, supra, and United States v. Jorn, supra—] have occasioned in other courts, we deem it best to acknowledge the confusion and its justifiability in the light of these statements from previous decisions. We do not by this opinion lay down a flat rule that where a defendant in a criminal trial successfully moves for a mistrial, he may not thereafter invoke the bar of double jeopardy against a second trial. But we do hold that the circumstances under which such a defendant may invoke the bar of double jeopardy in a second effort to try him are limited to those cases in which the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial. (Emphasis added)

Id. at 679, 102 S.Ct. at 2091.

Albeit the Court admitted that a standard which examines the intent of the prosecutor, vis-a-vis “bad faith conduct” or “harassment” on the part of the judge or prosecutor, is not entirely free from practical difficulties, it, nonetheless, felt such was “a manageable standard to apply. It merely calls for the court to make a finding of fact. [That is, inferring the existence or nonexistence of intent from objective facts and circumstances[.]” Id. at 675, 102 S.Ct. at 2089.

Our reason for embarking on an • examination of the Oregon decision is the Commonwealth’s contention that appellant’s reliance upon Commonwealth v. Starks, supra (where our Supreme Court held that a retrial is barred if there is either intentional misconduct or bad faith overreaching on the part of the prosecutor), is no longer tenable. It is the Commonwealth’s position that, in light of the holding in Oregon (i.e., retrial is barred only when there exists prosecutorial misconduct which is intended to provoke a mistrial), “the rule set down in Starks is not the ' law.” (Commonwealth’s Brief at 3)

We observe that to date the Supreme Court of Pennsylvania has given neither a more restrictive nor more expansive interpretation to Pennsylvania’s Double Jeopardy Clause (Art. 1, § 10) than that given the Fifth Amendment by the United States Supreme Court. See, e.g., Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979) (Nix, J., Opinion in Support of Affirmance joined by O’Brien and Larsen, JJ.), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787, reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980); Commonwealth v. Perry, 270 Pa.Super. 412, 411 A.2d 786 (1979). Stated differently, “‘[i]n light of the textual and policy similarities between the Pennsylvania and United States constitutional [double jeopardy] provisions’ [our Supreme Court] ha[s] concluded that since Benton v. Maryland, [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ], the Pennsylvania clause must be interpreted as being at least co-extensive with its federal counterpart.” (Citation omitted) Commonwealth v. Hude, 492 Pa. 600, 613, 425 A.2d 313, 320 (1980); see also Commonwealth v. Boerner, 281 Pa.Super. 505, 422 A.2d 583 (1980).

Nonetheless, granted that the double jeopardy protection provided under the Fifth Amendment has been made applicable to the states, Benton v. Maryland, supra, this “does not necessarily deter a state from providing in its constitution an enhanced protection for its citizen____” (Citations omitted) Commonwealth v. Hogan, 482 Pa. 333, 342, 393 A.2d 1133, 1137 (1978); cf. Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981) (United States Supreme Court’s interpretation of federal constitution did not and could not disturb force of Pennsylvania’s interested-adult rule); Reese v. Danforth, 486 Pa. 479, 406 A.2d 735 (1979) (Precedents drawn from federal common law would not be followed in this Commonwealth concerning official immunity for a public defender); Commonwealth v. Bussey, 486 Pa. 221, 404 A.2d 1309 (1979) (Court declined to follow North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979) and held, according to the Supreme Court’s supervisory powers and its interpretation of the Pennsylvania Constitution, an explicit waiver of one’s Miranda rights is a mandatory requirement before any statement will be considered voluntarily, knowingly and intelligently given); Commonwealth v. Kauffman, 258 Pa.Super. 183, 392 A.2d 745 (1978) (Pennsylvania Supreme Court has the right, in the exercise of its supervisory authority, to set higher standards for Pennsylvania than that enunciated by the United States Supreme Court to protect its citizenry). However, such has not been evidenced from our review of the case law interpreting Pennsylvania’s Double Jeopardy Clause. See note 4, supra. This is borne out by the decisional law of this jurisdiction, which, as it has evolved with respect to mistrials, has adhered consistently to the standard of review promulgated by the United States Supreme Court. See, e.g., Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981); Commonwealth v. Washington, 492 Pa. 572, 424 A.2d 1340 (1981); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); Commonwealth v. Starks, supra; Commonwealth v. Yost, supra; Commonwealth v. Anderson, supra; Commonwealth v. Clark, supra; Commonwealth v. Simms, 284 Pa.Super. 528, 426 A.2d 620 (1981). Thus, the two principal types of prosecutorial overreaching looked to in deciding if a mistrial precludes reprosecution are: 1) prosecutorial misconduct intentionally calculated to trigger the declaration of a mistrial; and 2) prosecutorial misconduct undertaken in bad faith to harass the accused. See Commonwealth v. Virtu, 495 Pa. 59, 65 n. 7, 432 A.2d 198, 201 n. 7 (1981).

A comment on the continuing viability of the dual mistrial test appeared in Commonwealth v. Wallace, 500 Pa. 270, 455 A.2d 1187 (1983), a case dealing with an accused’s request for a new trial. Justice Nix, in his Concurring Opinion, observed that Oregon v. Kennedy, supra, had disavowed the “prosecutorial overreaching” standard as an exception to the “manifest necessity” exception barring a retrial over a defendant’s objection to the initial mistrial. Likewise, this Court, in Commonwealth v. Arelt, 308 Pa. Super. 236, 454 A.2d 108 (1982), held that withdrawal of appellant’s guilty plea did not foreclose reprosecution under a theory of double jeopardy, inasmuch as there was no proof of intent that the prosecution desired the accused to take such an action; and it did so citing Oregon v. Kennedy, supra.

We find that the dual standard of (“intent” or “bad faith”) review first articulated with any degree of clarity in Commonwealth v. Starks, supra, being premised upon federal case law that has been subsequently “clarified” (to one of “intent” only), is rendered somewhat suspect by Oregon v. Kennedy, supra. See generally Commonwealth v. Wallace, supra (Justice Nix’s Concurring Opinion); Commonwealth v. Arelt, supra.

This jurisdiction’s double jeopardy rulings dealing with prosecutorial misconduct, albeit ostensibly scrutinized under the federal and Pennsylvania constitutions, turn on the standard of review enunciated by the United States Supreme Court. This approach is consistent with the view expressed by this Court that we will follow such- decisions even though they are in conflict with the law as determined by our own appellate courts. See Commonwealth ex rel. Goodfellow v. Rundle, 203 Pa.Super. 419, 435, 201 A.2d 615, 623 (1964). Notwithstanding such a predisposition, we find it appropriate, under the particular circumstances here, to apply the pre-Oregon standard of review in assessing appellant’s claims. August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981) (Retroactive application is a matter of judicial discretion which must be exercised on a case by case basis). The reasons for adopting a non-retroactive application of Oregon to the case sub judice are:

First, the decision in Oregon resulted in a “rule” being “adopted,” id. 456 U.S. at 678 n. 8, 102 S.Ct. at 2091 n. 8; Commonwealth v. Wallace, supra (Justice Nix’s Concurring Opinion), that narrowed the prior standard of review applicable to mistrials, i.e., overruled cases holding to the contrary.

Second, because the purpose and effect of the present (“intent” only) rule of review is consistent with the preOregon (“intent” or “bad faith”) standard, we do not find that its operation will be retarded if not applied retroactively-

Third, appellant’s appeal having been perfected prior to the Oregon decision, we think, in weighing the equities, that “injustice or hardship” will be avoided by non-retroactivity, i.e., the accused will have the benefit of having his claims scrutinized under the broader standard.

Based on the preceding, see Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), we deem it appropriate to evaluate appellant’s prosecutorial overreaching claims against a standard allowing a bar to retrial where “intentional” or “bad faith” misconduct was engaged in by the prosecution.

Turning to the facts, we see that the first portion of Mr. Long’s testimony complained of by the appellant concerns an accounting in which the witness stated he told his attorney, during a recess in the presence of the appellant and his counsel, that “if the weapons were retprned, maybe [the parties involved] could make an arrangement. [He was] willing to do this.” (RR. 21) Appellant’s counsel moved for a mistrial at the completion of this statement, but the trial court took no action on the motion since it “d[idn’t] have the slightest idea of what was said to Mr. Long, and what he said to the [appellant].” Id. Suffice it to say, we do not equate the aforesaid with the placement of such highly prejudicial information before the trier of fact that the only recourse would have been the declaration of a mistrial. In other words, the evidence was not so prejudicial that we cannot assume that the trier of fact would have been unable to put it aside and arrive at an impartial adjudication. Compare Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975). Moreover, because a mistrial was declared, appellant was granted the relief he sought, but the actions of the Commonwealth, based on our review of the applicable case law, come nowhere near the level of prosecutorial misconduct held to bar a retrial. See, e.g., Commonwealth v. Virtu, supra; Commonwealth v. Anderson, supra; Commonwealth v. Clark, supra; see also Commonwealth v. Miele, 300 Pa.Super. 197, 446 A.2d 298 (1982).

The last of appellant’s complaints centers upon the prosecution’s query to Mr. Long as to whether appellant had told him “where the weapons were?” To which Mr. Long responded, “He said him and my daughter sold them.” (RR. 22) No motion was made at this time for a mistrial. Rather, appellant’s counsel accused Mr. Long of committing perjury, and, to prove his point, he was going to take the stand to refute the testimony. Immediately thereafter, as though to clarify the matter, the trial court inquired of Mr. Long if he was saying that the appellant had told him that the appellant and Mr. Long’s daughter had sold the guns and secured money for them? Mr. Long replied, “He said he and my daughter sold the guns to a guy named Pinkey.” Id. No motion for a mistrial was made at this juncture either. However, the trial court advised appellant’s attorney (Mr. Bank) that if he intended to "testify he would have to, first, “remove himself from the case[.]” (RR. 23) Curiously enough, only at this juncture of the litigation did counsel “move for a mistrial.” Id. Because the matter could not be expeditiously disposed of, the trial court refused to let Mr. Bank “try th[e] case as the defendant’s attorney and also testify.” Id. Thus, the court thought it best “to adjourn” to allow new counsel to be obtained. Mr. Bank, however, wanted “a continuation date” to accomplish all that was needed. Accordingly, the trial court accommodated Mr. Bank and granted a mistrial so new counsel could be secured. (RR. 24)

From the preceding, it is obvious that the mistrial was sought, and granted, not because of Mr. Long’s testimony attributing appellant with admitting to the possession and sale of the guns, but to afford counsel for appellant the opportunity to testify. Since there was a period of time (during a trial recess') when the alleged statements may have been made where only the prosecution, Mr. Long, Mr. Bank and appellant were in attendance, the defense determined that it was necessary for trial counsel to testify as to his recollection of the event. Towards that end, the trial court decided, and rightly so, to declare a mistrial.

On the topic of counsel testifying as a witness and still remaining on the case, the courts of this Commonwealth have stated:

Unquestionably, the participation of counsel as a witness in the trial is to be discouraged. There are a number of concerns that arise where counsel becomes involved in the trial as a witness. It has been suggested that once he becomes a witness his personal credibility is placed at issue before the [trier of fact] and this may lessen his effectiveness as an advocate. Code of Professional Responsibility EC 5-9 (1980); Miller Electric Const., Inc. [v.] Devine Lighting Co., 421 F.Supp. 1020, 1021 n. 3 (W.D.Pa.1976); Commonwealth v. Rondeau, 79 Mass. 1668, 392 N.E.2d 1001, 1005 (1979). It has also been indicated that his involvement as a witness for his client causes him to be more easily subject to impeachment for interest and thus lessens his effectiveness as a witness. Id. On the other hand, his participation as a witness may cause his client’s side to gain an unfair, advantage, because of opposing counsel’s reluctance to aggressively attack his credibility. Id. (Footnote omitted)

Commonwealth v. Floyd, 494 Pa. 537, 546-47, 431 A.2d 984, 989-990 (1981);

The procedure followed instantly, once counsel’s participation became apparent, was proper. To start with, there was no indication of whether counsel was to be the last witness to testify, or that the securement of new counsel could be accomplished within a half hour or an hour (RR. 23), so that the case could proceed without further interruption to its conclusion. Also, the subject matter of appellant’s counsel’s testimony, having arisen at a rather propitious moment, was directed to a relevant issue and did go to the heart of the case. Lastly, under the circumstances just recounted, the acceptance or rejection of counsel’s testimony by the trier of fact was critical to the decision to be reached in the matter. Cf Commonwealth v. Charleston, 251 Pa.Super. 311, 317, 380 A.2d 795, 798 (1977) ('“[A] witness to corroborate appellant’s alibi would have been the single most important possible addition to appellant’s defense.' ” (Citation omitted)). "Under these circumstances, the decision [not] to continue with the trial and to [grant] the requested motion for a mistrial was clearly reasonable.” Commonwealth v. Floyd, supra, 494 Pa. at 549, 431 A.2d at 991.

At the evidentiary hearing scheduled to rule on appellant’s motion to dismiss, the sole witness new counsel proposed to have testify was “not present[,]” (N.T. 1/7/82 at 2), despite the passage of some ninety (90) days since the original trial. Thereafter, the hearing judge denied the Motion when informed by counsel that if the witness were present he would have testified, “To the conversation which occurred in the courtroom that morning, which was later testified to, or attempted to be testified to, by the complaining witness in this matter, Mr. Long.” Id.

Aside from the fact that counsel neglected to seek a continuance so that the witness could be produced {see Pa.R.Crim.P. 301),'we agree with the observations made by the Commonwealth that, “What defendant wanted [the hearing judge] to do was to make a pre-trial ruling on the credibility of a witness’ testimony. Such a credibility determination is within the province of a trier of fact [in a trial setting, as it applied to the case here], not the pre-trial motions court.” (Commonwealth’s Brief at 5-6) This dispenses with appellants request for a remand. Appellant will have ample opportunity at retrial to present his version, either through the testimony of Mr. Bank or, if he wishes, by taking the stand himself, to refute Mr. Long’s testimony.

For the foregoing reasons, we find from our review of the entire record neither “intentional” nor “bad faith” misconduct rising to the level of “prosecutorial overreaching” entitling appellant to the relief requested.

Order affirmed.

JOHNSON, J. files a concurring statement.

JOHNSON, Judge,

concurring:

I share the majority’s view that the mistrial was not the product of prosecutorial misconduct as that term is defined in Commonwealth v. Starks, 490 Pa. 336, 416 A.2d 498 (1980), but instead was necessitated by defense counsel’s desire to testify and hence the need to continue the case for the appointment of new counsel. I further agree that the alternative claim of the appellant, that he .is entitled to a remand for a new hearing, is meritless on the facts of this case.

Since I agree that appellant should have the benefit of our review of his claim applying the Starks standard, and that Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982) should not be applied retroactively by this court, I believe it inappropriate to further discuss any possible ramifications resulting from the future interpretation of Oregon v. Kennedy in this Commonwealth. I therefore am unable to join in that portion of the majority opinion at pp. 95-104. On a similar note, I would prefer to refrain from analyzing trial counsel’s stewardship and believe that the exchange at issue between the trial court and counsel might be better evaluated as an aggregate, rather than seeking to evaluate portions of the exchange separately.

For these reasons, I concur in the result.

      . The denial of a pre-trial application to dismiss an indictment or information on the ground that the scheduled trial will violate the defendant’s right not to be placed twice in jeopardy may be appealed before the new trial is held. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Ross, 295 Pa.Super. 409, 441 A.2d 1298 (1982).

      . We note that an examination of the reproduced trial transcript reveals that the trial judge made various "corrections” to the aforecited exchange. The "corrections” have been inserted into the discussion where appropriate. The "corrections" appear at the conclusion of the reproduced record, consist of four (4) pages and are dated 2/11/82. The trial judge affixed his signature to the "corrections" to verify their authenticity.

      . Justice Rehnquist’s lead opinion was joined by Burger, C.J., White and O’Connor, JJ., with Justice Powell noting in his concurring opinion that he also ”join[ed] the Court's opinion holding that the intention of a prosecutor determines whether his conduct, viewed by the defendant and the court as justifying a mistrial, bars a retrial of • the defendant under the Double Jeopardy Clause.” (Emphasis in original) Id. 456 U.S. at 679, 102 S.Ct. at 2091-2092.

      . However, in Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977), the Court held that an accused would be afforded the protection against reprosecution after a mistrial was granted at his request if he proved intentional or grossly negligent misconduct on the part of the prosecution or judge. See Commonwealth v. Perry, 270 Pa.Super. 412, 411 A.2d 786 (1979). This expansive interpretation of.the standard to be utilized in double jeopardy cases has since been repudiated. See Commonwealth v. Klobuchir, 486 Pa. 241, 405 A.2d 881 (1979), cert. denied, 445 U.S. 952, 100 S.Ct. 1602, 63 L.Ed.2d 787, reh. denied, 446 U.S. 947, 100 S.Ct. 2178, 64 L.Ed.2d 804 (1980).

      . The Majority Opinion in Wallace is not otherwise illuminating since a new trial was awarded on the basis that the prosecution failed to comply with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . See Commonwealth v. Sample, 493 Pa. 347, 426 A.2d 582 (1981) (Alleged violations of the double jeopardy clauses of both the United States and Pennsylvania Constitutions were evaluated under the federal standard set forth in Starks); Commonwealth v. Washington, 492 Pa. 572, 424 A.2d 1340 (1981); Commonwealth v. Mitchell, 488 Pa. 75, 410 A.2d 1232 (1980); see also Commonwealth v. Boerner, 281 Pa.Super. 505, 515-16 n. 11, 422 A.2d 583, 588 n. 11 (1980), where it is mentioned that our Supreme Court evidently treats a simple claim of "double jeopardy" as sufficient to raise both the federal and state claims.

      . In this Commonwealth, at least in some cases, the decisions that have been retroactively applied have resulted in "benefiting” the appellant. See, e.g., Commonwealth v. Hernandez, 498 Pa. 405, 446 A.2d 1268 (1982) (McCutchen rule); Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981) (Insanity instruction); August v. Stasak, 492 Pa. 550, 424 A.2d 1328 (1981) (Notice of insurance loss); In Re: Adoption of M.E.T., 313 Pa.Super. 316, 459 A.2d 1247 (1983) (Clear and convincing standard in adoption proceedings). This would not be the case here if we were to apply Oregon v. Kennedy, supra, retroactively.

      . Having concluded that Mr. Long’s testimony did not necessitate the granting of a mistrial nor warrant the barring of a second trial, we do not reach appellant’s contention that Mr. Long’s testimony was prejudicial in that it could be inferred therefrom that an offer to make an arrangement (“compromise”) was made. On this subject see, e.g., Commonwealth v. Melnyczenko, 238 Pa.Super. 203, 358 A.2d 98 (1976); Commonwealth v. Luciano, 205 Pa.Super. 397, 208 A.2d 881 (1965); Commonwealth v. Cohen, 133 Pa.Super. 437, 2 A.2d 560 (1938); Wharton’s Criminal Evidence, § 706 (13th Ed.1973).

      . Appellant’s appellate counsel does not allege that trial counsel was ineffective for failing to state specifically that the mistrial was being sought because of Mr. Long’s testimony attributing appellant with the commission of the offenses charged, in contrast to seeking time to secure new counsel so that trial counsel could testify. Thus, such a theory having not been raised below, it is waived for appellate purposes. See Commonwealth v. Williams, 476 Pa. 557, 383 A.2d 503 (1978); Commonwealth v. Polof, 283 Pa.Super. 565, 362 A.2d 427 (1976); 2 Henry on Pennsylvania Evidence, § 724 (1953); Kleiner, Jack & Rome, Edwin P., Trial Handbook for Pennsylvania Lawyers, § 402 (1980). This position is buttressed by the fact that the lower court’s opinion treats the basis for the mistrial motion as one consisting of trial counsel’s wish to testify as a witness on behalf of the

        defense to rebut Mr. Long's version of what transpired during the court recess.
      Even if we were to hold that there was no waiver, an accused’s "admission” is relevant and material, and thus, is the proper subject of review by the trier of fact. See Commonwealth v. Sherard, 456 Pa. 505, 321 A.2d 372 (1974); Commonwealth v. Staino, 204 Pa.Super. 319, 204 A.2d 664 (1964); 1 Henry on Pennsylvania Evidence, § 75 (1953) ("... once properly proved, voluntary admissions against interest are of the highest kind of evidence and are entitled to great weight, it being fair to presume that a party would not say anything against his own interest unless it be true.” (Footnote omitted)).

      . The possible inconsistency of the role of an advocate and a witness has occasioned rules of professional responsibility governing when counsel may participate as a witness. E.g., Disciplinary Rules 5-101 and 5-102 of the Code of Professional Responsibility provide in pertinent part as follows:
      DR 5-101 Refusing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment.
      * * * * * *
      (b) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
      (1) If the testimony will relate solely to an uncontested matter.
      (2) If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
      (3) If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
      (4) As to any matter, if refusal would work- a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
      DR 5-102 Withdrawal as Counsel When the Lawyer Becomes a Witness.

        (A) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall ■withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, except that he may continue the representation and he or a lawyer in his firm may testify in the circumstances enumerated in DR 5-101(B)(l) through (4).
      (B) If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of his client, he may continue the representation until it is apparent that his testimony is or may be prejudicial to his client.


author: SPAETH, Judge:

text:
    463 A.2d 1108
    COMMONWEALTH of Pennsylvania v. Hiram STORES, a/k/a Richard Rogers, Appellant.
    Superior Court of Pennsylvania.
    Submitted Peb. 22, 1983.
    Filed July 22, 1983.

      Douglas James Wright, Girard, for appellant.
    Michael J. Veshecco, District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, BROSKY and JOHNSON, JJ.
   SPAETH, Judge:

This is an appeal from a judgment of sentence for theft and criminal conspiracy. Appellant argues that the lower court erred in refusing to grant his motion in arrest of judgment. We agree and therefore vacate the judgment of sentence and order appellant discharged.

The charges arise from a theft of jewelry. At the close of the Commonwealth’s case, counsel for appellant demurred to the evidence. When the trial judge overruled the demurrer, counsel offered no evidence. The jury returned a verdict of guilty on both counts—theft by unlawful taking, and criminal conspiracy.

On September 25, 1980, appellant filed a “boiler-plate” Motion for New Trial and/or Arrest of Judgment, and on December 2, 1980, a Supplement to the Motion stating that “[i]t was error for the trial court to refuse to grant the defendant’s demurrer to the Commonwealth’s evidence presented in this case as to the charges of Conspiracy and Theft by Unlawful Taking.” On December 9, 1980, the lower court denied the Motion for New Trial and/or Arrest of Judgment, and on February 6, 1981, imposed sentence.

-1-

The Commonwealth argues that appellant has waived his argument that the lower court erred in refusing to grant his demurrer because of his “failure to specifically raise this issue and the grounds for it in his post-verdict motion.” Brief for Commonwealth at 1, 3-5. In the course of this argument the Commonwealth states that “appellant in this case did' not file any additional or supplemental reasons in writing in addition to this Motion [ie., the “boiler-plate” motion].” Id. at 3. This statement is contradicted by the record, which, as we have just indicated, contains a Supplement to the Motion, assigning as error, the lower court’s refusal to grant appellant’s demurrer. In any event, we have recently held that a boiler-plate motion preserves a general claim of insufficiency, Commonwealth v. Holmes, 314 Pa.Super. 611, 461 A.2d 872 (1983) (boiler-plate motion held in compliance with Pa.R.Crim.P. 1123; also held, such motions will not be in compliance with rule if filed 60 days after June 10, 1983).

-2-

In deciding whether the evidence was sufficient to support appellant’s conviction, we must regard the evidence in the light most favorable to the Commonwealth. Commonwealth v. Edwards, 493 Pa. 281, 426 A.2d 550 (1981); Commonwealth v. Galloway, 302 Pa.Super. 145, 448 A.2d 568 (1982). So regarded the evidence may be summarized as follows.

On February 22, 1980, sixteen diamond rings,, worth $11,-700 retail, were stolen from the jewelry. department of Kaufmann’s Department Store in Erie. The rings were on display in a case with a glass top. The thief, or thieves, pried open the glass top with some sort of sharp instrument, separating the top from the metal frame to which it was glued, and then reached inside the display case. No one saw the theft occur; the evidence that appellant was the thief was circumstantial.

The principal Commonwealth witness was Marianne Trott. She was the sales clerk on duty in the jewelry department on February 22d. At about 6:30 p.m., appellant and a female companion entered. Ms. Trott offered to show them some items, but they said they were just looking. Ms. Trott followed them around, and after “about fifteen or twenty minutes,” N.T. 22, 81, they left. “[WJithin a half hour,” id. at 9, they returned. Ms. Trott didn’t “go right over to them again because they said they weren’t buying,” id., but she saw them go over to the diamond case, id. She “could kind of see them leaning over [the case],” id. at 10, with “their heads together,” id. at 11. Ms. Trott said she “[didn’t] remember what happened after that,” id. at 9, but that appellant and his companion “must of left” because “about a half hour later,” id. at 10, while waiting on another customer she “happened to glance at the [diamond] case” and saw that “[t]he rings weren’t there and I knew they had to be there because they were there when I came into work,” id.

Upon discovering the loss, Ms. Trott called William Buesink, the Kaufmann’s security manager. He checked the contents of the diamond case against the “inventory of the diamonds ... put in the case at the beginning of the day, and ... checked that against the receipts,” id. at 49, and determined that sixteen diamond rings were missing, id. Officer Richard Figaski arrived at the store “shortly after 7:00 p.m.” Id. at 37. He examined the diamond case, and determined from scratch marks on the metal frame and the glass top that the top had been pried loose with some sort of sharp instrument. The marks “were fairly clean in that there was no dirt accumulated in them and fairly shiny marks which usually indicates they were fresh.” Id. at 42. Detective Sergeant Richard Nagoski interviewed Ms. Trott and on the basis of her description, appellant was arrested. Id. at 54.

Ms. Trott’s identification of appellant was more than adequate. It is therefore established that appellant and his companion were in the store, and returned, as Ms. Trott testified. The issue is whether they took the diamond rings. More fully stated, the issue is whether the circumstances proved by the Commonwealth fit so tightly together as to exclude beyond a reasonable doubt the possibility that someone else had taken the rings. Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978) (circumstantial evidence sufficient for conviction if inferences arising therefrom establish facts beyond reasonable doubt); Commonwealth v. Axe, 285 Pa.Super. 289, 292, 427 A.2d 227, 229 (1981); (Commonwealth entitled to prove case entirely by circumstantial evidence but circumstances must fit so closely together as to justify finding of guilt beyond reasonable doubt); Commonwealth v. Patterson, 257 Pa.Super. 206, 390 A.2d 784 (1978) (ibid.).

In overruling appellant’s demurrer to the evidence, the trial judge remarked, “It’s close. I think it’s awfully close. You may be right, but I’m going to overrule you at the present time.” N.T. 57. This ruling is entirely understandable; the judge did not have the benefit of a transcript, and it is often the better course to resolve doubts in favor of submitting the case to the jury. We are satisfied, however, that when one examines the transcript, one must conclude that the evidence was insufficient to establish beyond a reasonable doubt that appellant and his companion took the rings, and that appellant’s motion in arrest of judgment should therefore have been granted.

The weakness of the Commonwealth’s circumstantial proof may best be seen by considering what- Ms. Trott did not say in her testimony. Had she been able to testify, first, that shortly before appellant and his companion entered the jewelry department, she had seen the diamond rings in the display case, and second, that she knew that customers who entered later had not taken the rings, then the jury could reasonably infer that even though no one saw appellant and his companion take the rings, they must have taken them: they were in the jewelry department; they had the opportunity to take the rings; and no one else had taken them. A tight circumstantial fit would have been established. In fact, however, Ms. Trott’s testimony failed to establish a tight fit.

In the first place, Ms. Trott didn’t testify—she wasn’t asked—when she had last seen the rings in the display case before appellant and his companion entered the jewelry department. Her only testimony on this point was that “they [the rings] were there [in the case] when I came into work.” N.T. 10. She never said when she came to work. However, she said that appellant and his companion first entered the jewelry department at 6:30 p.m., id. at 4, 7, so that she must have been at work for some time. She did not notice that the rings were missing until after appellant and his companion had finally left: “Well, it was within an hour, but it was probably like a half hour [after they had left].” Id. at 17. Further in this regard, Mr. Buesick testified that “a strict inventory of the diamonds ... put in the case [had been made] at the beginning of the day____” Id. at 49. Thus, the jury only knew that the rings were seen in the case at the beginning of the day and again at about 7:00 p.m., when they were found to be missing.

This gap in the proof might have been overcome if Ms. Trott had been able to testify that she knew that no one else who had entered the jewelry department during the day had taken the rings, but she didn’t testify to that effect. Ms. Trott wasn’t asked at all about persons who entered the department before appellant and his companion did. She was asked about persons who entered after they did. She said “[i]t was a slow evening .... A lot of people just come to look at the jewelry and things, but that night it was just kind of a slow time during the week, and at that hour there wasn’t that many people there.” N.T. 4. When she noticed the rings missing, she “was waiting on a customer,” id. at 10; that was “about a half hour” after appellant and his companion had finally left, id. She “had waited on other customers, one or two, you know, and there was this one other woman that came in ____” Id. When asked, “Could it have been as many as five [persons waited upon during this period]?” she replied, “I don’t think so because it was a very slow evening.” Id. at 17.

It is arguable that the jury could have reasonably inferred that none of these customers—perhaps three or four—could have taken the rings, for if they had tried to, Ms. Trott would have seen them do it. This argument is somewhat weak, however, for appellant and his companion were also waited upon by Ms. Trott, and she didn’t see them take the rings. In this regard, Ms. Trott wasn’t asked in what way she had waited on the few customers who came in after appellant and his companion had left—whether she showed them items or let them browse around, as she let appellant and his companion do.

Finally, and we believe this was the most serious gap in the Commonwealth’s proof, Ms. Trott was unable to exclude the possibility that others had entered the jewelry department, unnoticed by her. Probably because it was a slow evening, Ms. Trott was to some extent occupied with other matters:

Q. During that period of time, do you recall exactly what you did?
A. No, I can’t recall everything I did. I know I was listening to these tapes because we had to learn them [she also referred to “tapes” earlier in her testimony, N.T. 11; the record does not disclose, however, the nature of the tapes].
Q. Were you reading a book during that time?
A. I don’t know. We had a book that went along with the tapes, but if I glanced at it, but mostly listening to these and seeing if customers came up because I was the only one there.
Q. But you were occupied doing other things during the time that these people [appellant and his companion] left the store and the time that you noticed that the diamonds were missing; is that right?
A. Yeah, I would have been probably Straightening things around.
N.T. 22-23.

Ms. Trott further testified:

Q. Is there a parking lot right in back of Kaufmann’s out on the outside?
A. Yes, on the other side of the street.
Q. Do people sometimes use Kaufmann’s as an entrance to other parts of the Mall itself?
A. Possibly, yes.
Q. Well, you do have quite a bit of traffic through there don’t you?
A. Yes.
Q. Now, in relationship to people just looking though, you have a pretty constant flow of people coming through that store is what I’m trying to ask you.
A. Well, there is moments they do, yes. It’s not a steady flow, but there are people coming in and out now and then.
}j! S¡5 JjS jfc >}C
Q. All right. Did you notice everyone that happened to walk through the store at the time?
A. Not everyone, no.
Q. So really there is just no way we have any idea how many people walked by the jewelry case during the time period involved, and by the time period, again I mean from the time the people left until the time you noticed the rings were stolen.
A. I couldn’t say exactly, but some nights there is more people and sometimes there is less, and this night was a slow night.
Q. But there were a number of people that walked by which you might not of noticed; is that right?
A. Possibly.
N.T. 24-26.

The possibility that others'had walked by, unnoticed by Ms. Trott, was enhanced by the fact that from her work counter, her view was partially blocked: “[TJhere is a ledge that they have a big flower thing on it at the time, and I believe it’s just where you wouldn’t take notice unless you were going to kind of look over____” N.T. at 12.

In summary, then: The jury had evidence that appellant and his companion had had the opportunity to take the rings inasmuch as they had been in the jewelry department and had not been closely observed by Ms. Trott. But the jury also had evidence that other persons either had been or might have been in the jewelry department, and that at least some of these other persons also had had the opportunity to take the rings inasmuch as they too had not been closely observed—indeed, perhaps not observed at all—by Ms. Trott. No evidence tied any particular person to the missing rings. Apparently there were no fingerprints on the display case—at least, no evidence of any was offered. While Ms. Trott saw appellant and his companion looking at the rings, she didn’t see them prying the case open, N.T. 23, nor “what they were doing with their hands if anything,” id. at 11. Thus what the jury was left with was proof that appellant and his companion had been present at the scene of the theft of the rings—and so had other persons.

While a criminal conviction may rest upon wholly circumstantial evidence, it “ ‘may not be based upon mere surmise or conjecture.’ ” Commonwealth v. Berrios, 495 Pa. 444, 449, 434 A.2d 1173, 1176 (1981) (quoting Commonwealth v. Thomas, 465 Pa. 442, 446-47, 350 A.2d 847, 849 (1976)). See also Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982). Evidence of mere presence at or near the scene of a crime is precisely the kind of circumstantial evidence that does require surmise or conjecture. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Harrison, 289 Pa.Super. 126, 432 A.2d 1083 (1981); Commonwealth v. Lovette, 271 Pa.Super. 250, 413 A.2d 390 (1979). Evidence of something more than presence at or near the scene of a crime is required to justify the conclusion that someone committed or participated in a crime. See, for example, Commonwealth v. Everett, 297 Pa.Super. 320, 443 A.2d 1142 (1982) (presence plus aid to perpetrator with intent to promote perpetrator’s act); Commonwealth v. Lovette, supra (presence plus possession of stolen goods and muddy shoes). Where the only evidence is evidence of presence at or near the scene of a crime, we have consistently held the evidence insufficient to establish guilt beyond a reasonable doubt. See Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976) (presence at scene even when accompanied by flight does not establish guilt beyond reasonable doubt); Commonwealth v. Stanley, 453 Pa. 467, 470, 309 A.2d 408, 411 (1973) (presence at scene where screening over window had been bent held insufficient where no showing that anyone saw appellant tampering with window); Commonwealth v. Garrett, 423 Pa. 8, 13, 222 A.2d 902, 905 (1966) (presence at scene held insufficient absent other evidence of participation in robbery); In re Amos, 287 Pa.Super. 446, 430 A.2d 688 (1981) (presence a short distance from alleged perpetrator, with no other connection, held insufficient); Commonwealth v. Smith, 264 Pa.Super. 303, 399 A.2d 788 (1979) (only person seen standing within ten feet of window-smashing immediately after event held insufficient evidence of attempted burglary).

The judgment of sentence is reversed and appellant is discharged.

      . Appellant also argues that the lower court erred in permitting the jury to see a photograph, and in imposing an excessive sentence. We do not reach either of these arguments.

      . The reasons assigned in the motion were:
      1. The verdict is contrary to the evidence.
      2. The verdict is contrary to the weight of the evidence.
      3. The verdict is contrary to the law.