author: KELLY, Judge: CIRILLO, Judge,

text:
    631 A.2d 1025
    Eugene T. BOYLE and Michael P. Boyle Administrators of the Estate of Eugene F. Boyle, t/a Eugene Boyle Associates, v. Michael STEIMAN, Esquire, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 7, 1993.
    Filed Sept. 23, 1993.

      Thomas E. Coval, Willow Grove, for appellant.
    Joseph R. Glancey, Philadelphia, for appellees.
    Before CIRILLO, BECK and KELLY, JJ.
   KELLY, Judge:

This is an appeal from the judgment in the amount of $23,475.00 entered in favor of the appellees, the administrators of the estate of Eugene F. Boyle. The appellant, Michael Steiman, Esquire, has raised three issues for our review: 1) whether the presiding motions court judge, in light of new evidence, committed error by lifting the sanctions order imposed by his predecessor in motions court, which precluded the appellee-decedent from presenting certain evidence for failing to comply with the appellant’s discovery requests; 2) whether the trial court committed error by admitting into evidence, pursuant to the Uniform Business Records as Evidence Act, 42 Pa.C.S.A, § 6108, business records prepared primarily by the appellee-decedent in the absence of authenticating testimony from the appellee-decedent; 3) whether the administrators of the appellee-decedent’s estate presented sufficient evidence to prove the existence of an oral contract between the appellant and the appellee-decedent. We affirm.

The relevant facts and procedural history as ascertained by the limited record are as follows. On April 7, 1989, the appellee-decedent, Eugene F. Boyle, a private investigate, filed a civil action complaint against the appellant, Michael Steiman, Esq., a personal injury attorney. In this complaint, the appellee-decedent alleged that the appellant had failed to pay him $27,250.00 in fees for investigations which the appellant had hired him to conduct in various personal injury cases. Attached to the complaint were two exhibits, Exhibit A and Exhibit B. Exhibit A contained a list of all unpaid invoices through June 4, 1988, while Exhibit B contained photocopies of all the unpaid investigations bills that had been submitted to the appellant. The photocopies of the unpaid investigation bills contained both the appellee-decedent’s file number and the names of the appellant’s clients on whose behalf the investigations were undertaken.

The appellant then served interrogatories upon the appellee-decedent requesting information concerning the appellee’s record keeping methods in his investigations. The appellant also sought the production of any notes, telephone calls, automobile mileage, photographs and details of each investigation. The appellee-decedent’s former counsel responded to the interrogatories by stating that all notes and records pertaining to the investigations were incorporated into the various investigation reports that were under the appellant’s control.

Despite receiving notice in the appellee-decedent’s answers to the interrogatories that all of the information and documents he sought to discover were already in his control, the appellant did not examine his files. Rather, he filed a “motion to compel full and complete answers to interrogatories and a response to request for production of documents.” When the appellee-decedent’s former counsel failed to contest this motion, the then-presiding motions court judge, the Honorable Bernard J. Avellino, entered an order on January 29, 1990, directing the appellee-decedent to file full and complete answers to all interrogatories and to comply with the appellant’s request for documents within twenty days or risk sanctions.

Upon being served with Judge Avellino’s January 29, 1990 order, the appellee-decedent’s former counsel submitted late answers to the interrogatories and stated that the documents sought by the appellant were already in the appellant’s possession. The appellant, once against without checking his own files, moved for sanctions alleging that the appellee-decedent’s response did not satisfy the requirements of the January 29, 1990 order. Although the appellant had always had in his own files the information and documents for which he sought sanction of the appellee-decedent for failing to produce, see N.T. 2/24/92 at 42-45 (the appellant admitted at trial that the information and the investigation reports pertaining to the disputed bill were contained in his files when he reviewed the files shortly before trial), the appellee-decedent’s former counsel did not contest the motion for sanctions. Judge Avellino subsequently entered an order on June 29, 1990, precluding the appellee-decedent from introducing evidence on any matter covered by the interrogatories.

Shortly after the preclusion order was entered, the appelleedecedent died. The administrators of the appellee-decedent’s estate, his sons and partners, Eugene T. Boyle and Michael P. Boyle, then retained new counsel to represent the estate in this matter. New counsel immediately filed a motion to rescind the preclusion order, bringing to the court’s attention for the first time that the appellant had been seeking production of documents which were already under his control. Because Judge Avellino had been rotated out of motions court, this new evidence was presented to his successor, Judge Maier. Judge Maier then entered an order stating the earlier preclusion order was being lifted in the “interests of justice.” This order also directed that supplemental answers to the appellant’s interrogatories be filed. The discovery process continued. On August 15, 1991, the administrators served interrogatories and a request for production of documents upon the appellant. After the appellant failed to answer the interrogatories or produce the requested documents, the administrators filed a motion to compel answers to interrogatories and request for production of documents. On December 20,1991, Judge Maier entered an order directing the appellant to file full and complete answers to the interrogatories and produce the requested documents within ten days or risk sanctions.

On February 24, 1992, a bench trial was conducted before the Honorable Pamela Pryor Cohen. At this trial, Michael P. Boyle presented photocopies of a ledger made in the appelleedecedent’s handwriting pertaining to the firms’ business with the appellant. Michael P. Boyle also testified that prior to the filing of this lawsuit he, his late father, and his brother met with the appellant in 1988 regarding the unpaid bills. Michael P. Boyle also testified that at the meeting the appellant agreed that he would pay these outstanding bills.

The appellant then testified in his own behalf stating that the pre-lawsuit meeting did occur, however only the appelleedecedent and one of his sons was present. (N.T. 2/24/92 at 38). The appellant then testified that at this meeting he did not agree to pay all of the outstanding bills. The appellant also testified that his position at the meeting was that many of these bills had already been resolved and that the billing rate was excessive on the other bills. (N.T. 2/24/92 at 40). Finally, the appellant testified that at the meeting he explained for the benefit of the appellee-decedent’s two sons that he had a special working relationship with the appellee-decedent. (N.T. 2/24/92 at 43). In this special working relationship, when a case was assigned to the appellee-decedent for investígation, the appellee-decedent was to conduct the investigation and submit the report and bill to the appellant. If, on the basis of the report, the case was the type of case with which the appellant wished to proceed, the appellee-decedent would be paid. However, based on the result of the appelleedecedent’s investigation, or for any other reason, if the appellant did not wish to proceed with the case, the appelleedecedent was to forego payment for the investigation. (N.T. 2/24/92 at p. 44). The trial court found the appellant’s testimony to be incredible and held for the administrators in the amount of $23,475.00. Post-trial motions were denied. This timely appeal followed.

On appeal, the appellant raised the following issues for our review.

1. WAS IT ERROR FOR ONE PRETRIAL JUDGE TO OVERRULE THE INTERLOCUTORY ORDER OF ANOTHER PRETRIAL JUDGE CONCERNING SANCTIONS FOR REPEATED VIOLATIONS OF ORDERS DIRECTING PLAINTIFF TO COMPLY WITH DISCOVERY REQUESTS?
2. DID THE COURT ERR IN ADMITTING DOCUMENTARY EVIDENCE WHICH WAS HEARSAY AND NOT PROPERLY AUTHENTICATED AS A BUSINESS RECORD?
3. DID THE LOWER COURT ERRONEOUSLY DETERMINE THAT PLAINTIFFS PROVED THE EXISTENCE OF A CONTRACTUAL RELATIONSHIP BETWEEN THE PARTIES AND CONTRADICTED EVIDENCE CONCERNING IT WHEN NO PLAINTIFF WHO TESTIFIED HAD ANY PERSONAL KNOWLEDGE OF THE CONTRACTUAL RELATIONS?

(The appellant’s brief at 2).

In his first issue on appeal, the appellant claims that Judge Maier erred when he overruled Judge Avellino’s order precluding the appellee-decedent from introducing evidence of any subject covered by the interrogatories due to his failure to answer the interrogatories. The appellant argues that Judge Maier acted improperly by reversing an interlocutory order entered by another judge of coordinate jurisdiction in the same litigation. Thus, the appellant asserts that he is entitled to a new trial in which the administrators of the appelleedecedent’s estate are precluded from introducing any evidence covered by Judge Avellino’s June 29, 1990 preclusion order.

A party may not remain silent and take his chances on the verdict then complain if it is adverse. Carter by Carter v. U.S. Steel Corp., 529 Pa. 409, 424, 604 A.2d 1010, 1018 (1992); Zeman v. Canonsburg Borough, 423 Pa. 450, 453, 223 A.2d 728, 729 (1966). In order to preserve an issue for appellate review a party must make a timely and specific objection at the appropriate stage of the proceedings before the trial court. Taylor v. Celotex Corp., 393 Pa.Super. 566, 583, 574 A.2d 1084, 1093 (1990). Where a thorough review of the record discloses no basis to conclude that an appellant preserved an issue raised in his motion for new trial by a timely or specific objection at trial, such an issue is waived for the purposes of appellate review. Piernikowski v. Cardillo, 263 Pa.Super. 202, 397 A.2d 817 (1979). See also East Texas Motor Freight, Diamond Div. v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984) (it is unnecessary for this Court on appeal to address an argument not presented at trial but subsequently presented in opposition to a motion for directed verdict and in post-verdict motions).

Here, there is nothing in the record to indicate that the appellant voiced an objection to Judge Maier’s consideration of the administrator’s motion to lift the preclusion order imposed by Judge Avellino. Our review of the record does not reveal that the appellant even filed an answer in opposition to the administrators’ motion to lift the preclusion order. Additionally, the appellant has not made available to this Court a transcript of the proceeding before Judge Maier which might permit us to determine whether he voiced an objection to Judge Maier’s consideration of the administrators’ motion to lift the preclusion order. Accordingly, because we have nothing to indicate, other than his bald assertion in his post-trial motions, that he actually opposed the administrators’ motion to lift the preclusion order, we are constrained to hold that the appellant failed to properly preserve this issue for appellate review.

Moreover, we note that it is the duty of the appellant to supply this Court with a record which is sufficient to permit a meaningful appellate review. School District of Aliquippa, et al. v. Maryland Casualty Company, 402 Pa.Super. 569, 575, 587 A.2d 765, 768-69 (1991). A failure by the appellant to insure that the original record certified for appeal contains sufficient information to conduct a meaningful appellate review constitutes a waiver of the issue sought to be reviewed. Burns v. Kabboul, 407 Pa.Super. 289, 313 n. 1, 595 A.2d 1153, 1165 n. 1 (1991). The Pennsylvania Rules of Appellate Procedure provide specific steps that are to be taken in absence of a transcript to a proceeding which is the subject of an appeal. Pa.R.App.P. 1923 instructs an appellant as follows:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

The purpose of Pa.R.A.P. 1923 is to provide a reviewing court with an “equivalent picture” of the proceedings when there is no transcript of the proceedings. Oblon v. Ludlow-Fourth Corp., 406 Pa.Super. 591, 604-05 n. 9, 595 A.2d 62, 69 n. 9 (1991); Commonwealth v. Buehl, 403 Pa.Super. 143, 148 n. 7, 588 A.2d 522, 524 n. 7 (1991).

Here, the appellant never attempted to reconstruct for the purposes of appellate review the proceeding before Judge Maier in accordance with Pa.R.App.P. 1923. Thus, this Court is without a clue as to what actually transpired at the oral argument of the administrators’ motion for the recision of the preclusion order. Accordingly, absent a Pa.R.App.P. 1923 statement, this Court is without an adequate record to conclude that Judge Maier erred in lifting the preclusion order. See Oblon v. Ludlow-Fourth Corp., supra at 605, 595 A.2d at 69.

Finally, the limited record presented to this Court supports Judge Maier’s order lifting the sanctions imposed against the appellee-decedent by the predecessor in motions court, Judge Avellino. We reach this result for the following reasons.

It is a well recognized principle that “... judges of coordinate jurisdiction sitting in the same court and in the same case should not overrule the decisions of each other.” Golden v. Dion & Rosenau, 410 Pa.Super. 506, 510, 600 A.2d 568, 570 (1991) (quoting Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989)). The purpose of this rule is to ensure a degree of pretrial finality “so that judicial economy and efficiency can be maintained”. Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 87, 546 A.2d 1168, 1170 (1988) (quoting Commonwealth v. Eck, 272 Pa.Super. 406, 409, 416 A.2d 520 522 (1979)). Absent some new evidence, it is improper for a trial judge to overrule an interlocutory order of another judge of the same court in the same case. Reifinger v. Holiday Inns Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). However, an exception exists where new evidence is placed on the record in the interim between the first trial court judge’s ruling and the second trial court judge’s reassessment. Gabovitz v. State Auto Ins. Assn., 362 Pa.Super. 17, 21 n. 2, 523 A.2d 403, 405 n. 2 (1987), appeal denied, 516 Pa. 634, 533 A.2d 92 (1987); Melendez by Melendez v. City of Philadelphia, 320 Pa.Super. 59, 62 n. 2, 466 A.2d 1060, 1062 n. 2 (1983). Where the record is materially different from the record that was before the preceding judge, it is not improper for the succeeding judge to reach a different result. Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 110, 611 A.2d 1280, 1289 (1992); McNally v. Dagney, 353 Pa.Super. 402, 405, 510 A.2d 722, 724 (1986).

The purpose of discovery is to expedite litigation and not to provide an intermediate arena for jousting in the time between the pleadings and the actual trial. Williams v. Triangle Publications, 19 D. & C.2d 226 (1957). It is not a purpose of discovery for a party to supply, at its own expense, information already under the control or readily available to the opposing party. See Brown v. Lower Allen Township, 2 Pa.D. & C.3d 368 (1977); 1958 Asses, of Glen Alden Corp., 17 Pa.D. & C.2d 624 (1958). A plaintiff will not be compelled to answer a defendant’s interrogatories when the matters contained in the interrogatories are at least equally within the defendant’s knowledge. Blum v. Parkview Hospital, 2 Pa.D. & C.3d 345 (1976).

Instantly, Exhibits A and B of the appellee-decedent’s complaint contained sufficient information to alert the appellant as to which cases in his files the appellee-decedent was alleging that appellant had not paid the appellee-decedent’s investigation fees. Additionally, the appellee-decedent’s initial answers to the interrogatories informed the appellant that the information he sought to discover was contained in the original investigation reports that were part of the appellant’s own files. However, without any assertion that he had reviewed his own files and found that the information he sought was not there, the appellant filed a motion to compel this information from the appellee-decedent. The appellant’s insistence that the appellee-decedent compile information that he subsequently was able to retrieve from his own files amounted to discovery gamesmanship . Former counsel’s laxity in alerting the trial court to this fact by failing to answer either the appellant’s motion to compel or motion for sanctions permitted this charade to proceed.

Therefore, the state of the record at the time Judge Avellino issued the preclusion order consisted only of the appellant’s assertions that the appellee-decedent had failed to respond satisfactorily to the interrogatories or to produce the documents that the appellant required. Judge Avellino was not aware that the information and documents which the appellant sought were already under appellant’s control. The first time the court became aware that the appellant already had the requested information in his files was when the succeeding motions judge, Judge Maier, entertained new counsel’s motion for recision of the preclusion order. Thus, new counsel’s motion to rescind the preclusion order and whatever evidence was offered at the subsequent non-transcribed oral argument represented a material change in the record and thereby permitted Judge Maier to reexamine and rescind the preclusion order entered by his predecessor in motions court.

In his second argument on appeal, the appellant contends that the trial court erred by admitting into evidence photocopies of the appellee-decedent’s business ledgers pursuant to the business record exception to the hearsay rule (42 Pa.C.S.A. § 6108). The appellant argues that the appellee-decedent’s son, Michael P. Boyle, the authenticating witness, had no involvement in the preparation of the business ledgers admitted into evidence by the trial court. Thus, the appellant asserts, Michael P. Boyle’s testimony was insufficient to establish a proper foundation for the admission of the photocopies of the business ledgers into evidence pursuant to 42 Pa.C.S.A. § 6108. We disagree.

The Uniform Business Records as Evidence Act, 42 Pa. C.S.A. § 6108 provides, in the pertinent part, as follows:

A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

42 Pa.C.S.A. § 6108 (emphasis added).

The purpose of Uniform Business Records as Evidence Act is to create an additional exception to the hearsay rule in circumstances where a record of an act, a condition or an event was made in the regular course of business, at or near the time of the act, condition or event and where the sources of information, method and time of preparation were such as to justify its admission. Joseph v. Krull Wholesale Drug Co., 147 F.Supp. 250 (E.D.Pa.1956), affirmed, 245 F.2d 231 (3d Cir.1957). The question of whether documents should be admitted under the “business records” exception to the hearsay rule is within the discretionary power of the trial court provided such discretion is exercised within the Uniform Business Records as Evidence Act. Thomas v. Allegheny & Eastern Coal Co., 309 Pa.Super. 333, 340, 455 A.2d 637, 640 (1982). It is not essential under the Uniform Business Records as Evidence Act to produce either the person who made the entries or the custodian of the record at the time the entries were made. In re Indyk’s Estate, 488 Pa. 567, 573, 413 A.2d 371, 373 (1979). Moreover, the law does not require that a witness qualifying business records even have a personal knowledge of the facts reported in the business record. Wayne County Bd. of Assessment v. Federation of Jewish Philanthropies, 43 Pa.Cmwlth. 508, 403 A.2d 613 (1979). As long as the authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of trustworthiness for the business records of a company, a sufficient basis is provided to offset the hearsay character of the evidence. In re Indyk’s Estate, supra, at 573, 413 A.2d at 373.

Instantly, the testimony of Michael P. Boyle reveals that the records were primarily created by his father and secondarily by himself and his brother in the regular course of business. Michael P. Boyle also testified that the entries were made in the ledger, at or near the time information became available and that the records required accurate entries. Thus, the testimony of the authenticating witness, Michael P. Boyle, was sufficient to establish a proper foundation for the admission of the records. Accordingly, the trial court did not abuse its discretion in directing that the records be admitted into evidence.

The appellant’s final argument on appeal is that the administrators failed to prove the existence of a contractual relationship between the parties. The appellant contends that, because the administrators admitted there was never a written investigational services contract between the parties, they bore the burden of proving the existence of an oral contract for investigational services. The appellant argues that the administrators failed to meet this burden because they failed to prove either that specific investigative services were rendered by the appellee-decedent on his behalf or that the fees for these investigative services were fair and reasonable. The appellant further argues that the administrators failed to present any evidence which contradicted his testimony that, pursuant to their understanding, the appellee-decedent was not entitled to be paid for his investigative services if the appellant failed to proceed with the personal injury case that was the subject of the investigation. Thus, the appellant asserts that the trial court erred in failing to grant his motion for judgment notwithstanding the verdict. We disagree.

The burden of proving an oral contract is on the party seeking to establish it. Zinnel v. Bergdoll, 9 Pa.Super. 522, 7 Del. 369 (1899); Smith v. McLane, 75 F.Supp. 219 (W.D.Pa.1948), affirmed, 174 F.2d 819 (3d Cir.1949). A verbal agreement differs from a written one in that when construing a written contract all negotiations leading up to the contract are presumed to be merged in the writing; moreover, oral testimony is not admissible to explain the written document in the absence of an ambiguity requiring such an explanation. McCormack v. Jermyn, 351 Pa. 161, 166, 40 A.2d 477, 480 (1945). However, when construing an oral contract the words constituting the agreement are merely parts of and imbedded in a general conversation, and the meaning must be interpreted with reference to the circumstances under which the parties contracted in light of the objectives to be accomplished. Id. In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to surrounding circumstances and course of dealing between the parties in order to ascertain their intent. Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 171, 228 A.2d 656, 659 (1967); see also, Silverstein v. Hornick, 376 Pa. 536, 103 A.2d 734 (1954).

Instantly, the evidence presented by the administrators was more than sufficient to meet their burden of proving the existence of an oral contract between the appellee-decedent and the appellant. The administrators’ testimony reveals that the appellant would contact the appellee-decedent or the administrators with personal injury cases and these cases would be investigated and results of the investigations would be submitted to the appellant together with a bill. The appellant then paid every bill submitted to him. This course of dealing continued until 1983 when the appellant began to fail to pay some of the bills submitted to him by the appelleedecedent. Thus, the evidence presented by the administrators was sufficient to meet their burden of establishing the existence of an oral contract for investigative services between the parties. Additionally, the evidence established a course of dealings between the parties that proved that the appelleedecedent expected to be paid for his investigative services and was not accepting the investigation assignments on a contingency basis as alleged by the appellant. Finally, the appellant’s own testimony establishes the existence of an oral contract between the parties for investigative services and that these services were provided by the appellee-decedent on all of the disputed bills. However, the trial court found incredible the appellant’s assertion that under this oral contract or as it was called by the appellant, “special working relationship,” appellant’s obligation to pay for investigative services was contingent upon whether he proceeded with the personal injury case that the appellee-decedent had been assigned to investigate. See Summit Fasteners v. Harleysville Nat., 410 Pa.Super. 56, 66, 599 A.2d 203, 208 (1991) (evidence is no less effective in support of a party’s case merely because it came into the case through an adversary rather than through the party.)

Based upon the foregoing, the judgment entered by the Honorable Pamela Pryor Cohen in favor of the administrator of the estate of Eugene F. Boyle in the amount of $23,475.00 is affirmed.

Judgment Affirmed.

CIRILLO, J., files a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent. In my opinion it was error for the Honorable Eugene E.J. Maier to overrule the preclusion order entered by the Honorable Bernard J. Avellino. I would find in favor of appellant Steiman on this claim, rendering further review of this appeal unnecessary.

The majority finds that due to Boyle’s counsel’s failure to respond to Steiman’s discovery requests and Judge Avellino’s sanctions orders, the fact that the discovery materials were in the possession of Steiman at the time of Judge Avellino’s order constituted “new evidence” before Judge Maier and that the preclusion order was properly rescinded. I disagree.

There is no evidence in the record which establishes that Steiman ever had actual possession of all the discovery materials in question. Additionally, Steiman contends that he did not have possession. Even given possession, the majority loses sight of the fact that preclusion of the bills and invoices was secondary to Boyle’s failure to comply. In other words, evidence of possession does not excuse Boyle’s failure to comply with a court order or prohibit Steiman from requesting the proper discovery materials, regardless of whether the materials were subsequently found to be mere duplicates of already existing material in Steiman’s possession. Steiman was entitled to not only fully answered interrogatories but also all documentary evidence in pursuit of a defense to the litigation. The issue of possession is collateral to the real issue in this case: whether Judge Maier abused his discretion in rescinding an interlocutory order of a predecessor judge where the party sanctioned failed to abide by the predecessor’s prior orders?

Boyle’s counsel’s failure to respond to the interrogatories cannot constitute “new evidence.” I find no authority which states that an innocent party shall bear the brunt of an opposing party’s counsel’s mistakes. The majority’s reasoning effectuates a transfer of the prejudice of the preclusion order onto the innocent third party here and undermines both the interlocutory nature of a preclusion order and the trial court’s power of contempt. Boyle still maintains the right to appeal Judge Avellino’s order at the conclusion of the case. To hold otherwise condones piecemeal determinations which serve only to consume both time and money.

Assuming these facts do constitute new evidence, the majority fails to recognize the sole factor which determines whether or not the successor judge may rule on the earlier order based upon the discovery of the new evidence — availability of the predecessor judge. Although the majority fails to address the issue of “unavailability,” Boyle correctly acknowledges that the claim for rescission of the preclusion order based upon new evidence is proper only if Judge Avellino was unavailable at the time the motion to rescind was filed. Here, Judge Avellino was not unavailable.

Judge Maier’s order mentions nothing about new evidence but only that Judge Avellino’s order be rescinded in the “interest of justice.” Any inference of Boyle’s counsel’s inaction does not constitute “new evidence” and the consequences of any such conduct is properly borne by Boyle.

At trial, the evidence was admitted and judgment was entered in favor of Boyle in the amount of $23,475.00. The trial court in its Pa.R.AF.1925(a) opinion states that Steiman, although raising this issue in his post-trial motion, waived this issue by his counsel’s failure to object at trial to the admission of the previously precluded evidence. The Pennsylvania Supreme Court has held it to be fundamental that the parties in a civil trial make timely and specific objections to alleged violations of evidentiary or trial procedure. The failure to do so results in a waiver of that ground on appeal. Pa.R.A.P. Rule 302; Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

Prior to trial, Steiman’s counsel objected at oral argument to the petition to rescind the earlier discovery order granting preclusion. Pennsylvania Rule of Civil Procedure 227.1(b) provides that post-trial relief may be granted when the grounds alleged were properly objected to at trial or where the grounds, if then available, were raised in pretrial proceedings by objection or by other appropriate method. As Steiman properly raised his objection at oral argument on the petition to rescind, I. would find this issue properly included in the post-trial motion and on appeal.

Further, the order entered by Judge Avellino as discovery judge was interlocutory. A pretrial discovery order which effectively precludes a party from asserting certain defenses or presenting claims is not a final and appealable order. See Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987) (sanction order for failure to respond to interrogatories is interlocutory); Joyce & Associates v. Pivirotto, 358 Pa.Super. 50, 516 A.2d 763 (1986) (preclusion orders imposed as discovery sanctions are not appealable until the conclusion of the case). At the time the disputed order was rescinded, it retained its interlocutory nature. See Pennsylvania Human Relations Comm’n v. Jones & Laughlin Steel Corp., 483 Pa. 35, 394 A.2d 525 (1978). Because the order is interlocutory, the trial court has the inherent power to reconsider its own ruling outside the 30-day limit for appeal and the trial court retains jurisdiction over the matter up until the rendition of a final disposition. Pa.R.A.P. 903; 42 Pa.C.S.A. § 5505; Daywalt v. Montgomery Hosp., 393 Pa.Super. 118, 573 A.2d 1116 (1990); Atlantic Richfield Co. v. J.J. White, Inc., 302 Pa.Super. 276, 448 A.2d 634 (1982). As such, the appellate court may properly review the order only after trial. Joyce, supra.

An order issued by a court with proper jurisdiction over the subject matter and the parties must be followed unless the order is subsequently reversed by orderly and proper proceedings. Philadelphia M.T. Ass’n v. International Long. Ass’n, 453 Pa. 43, 308 A.2d 98 (1973). Where a party fails to obey a court order concerning discovery, a court on proper motion may bar the disobedient party from introducing into evidence any support for claims or defenses, the subject matter of which was covered under the order. Pa.R.C.P. 4019; Hutchison By Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280 (1992). The imposition of sanctions against a party for failing to obey a discovery order is solely within the discretion of the trial court. Feingold v. Philadelphia National Bank, 313 Pa.Super. 579, 460 A.2d 339 (1983). Here, we are presented with the complex nature of an interlocutory discovery order entered by a predecessor judge which was subsequently reconsidered and overruled by another judge of equal jurisdiction.

It is improper for a judge of coordinate jurisdiction to overrule an interlocutory order entered by another judge in the same case. Hainsey v. Com. Pa. Liquor Control Bd., 529 Pa. 286, 602 A.2d 1300 (1992); Okkerse v. Howe, 521 Pa. 509, 556 A.2d 827 (1989); Commonwealth v. Brown, 485 Pa. 368, 402 A.2d 1007 (1979); Hutchison, supra; Golden v. Dion & Rosenau, 410 Pa.Super. 506, 600 A.2d 568 (1991); Vincent v. Fuller, Co., 400 Pa.Super. 108, 582 A.2d 1367 (1990); Salerno v. Philadelphia Newspapers, Inc., 377 Pa.Super. 83, 546 A.2d 1168 (1988). It is an abuse of discretion for one judge to overrule another judge based upon the same record facts. Hainsey, supra; Commonwealth v. Griffin, 257 Pa.Super. 153, 390 A.2d 758 (1978). The rule is not based upon the second judge’s lack of power or jurisdiction to decide the matter, Atlantic Richfield, supra; rather it is founded upon sound jurisprudence based on a policy of fostering finality of pretrial applications to insure that judicial economy and efficiency can be maintained, Hainsey, supra, Hutchison, supra, Salerno, supra, Golden, supra, Vincent, supra, and preventing a coequal judge from overruling a colleague, Commonwealth v. Madden, 342 Pa.Super. 120, 492 A.2d 420 (1985); Marmara v. Rawle, 264 Pa.Super. 229, 399 A.2d 750 (1979).

The rule is also applicable to discovery orders. Roseman v. Hospital of U. of PA, 377 Pa.Super. 409, 547 A.2d 751 (1988) allocatur denied, 524 Pa. 610, 569 A.2d 1369, and 525 Pa. 619, 577 A.2d 891 (1989). However, it is not without exceptions. As the majority notes, a successor judge can reconsider and rescind a predecessor’s interlocutory order based upon a presentation of new evidence. Brown, supra; Hutchison, supra; Golden, supra; Vincent, supra; Griffin, supra; Gabovitz v. State Auto Ins. Assn., 362 Pa.Super. 17, 523 A.2d 403 (1987), appeal denied, 516 Pa. 634, 533 A.2d 92 (1987). Or, a successor judge can act on a predecessor’s order when the predecessor is unavailable due to death, retirement, expiration of a judicial commission, or where the predecessor is appointed to a higher court, Hutchison, supra, Duffy v. Gerst, 286 Pa.Super. 523, 429 A.2d 645 (1981), or where any relevant legal authority has been decided in the interim period that would change the outcome of the prior order. Vincent, supra; Golden, supra. Boyle argues that where a successor judge is asked to reconsider the legal conclusions of an “unavailable” predecessor, it is not improper for the second judge to reach a different conclusion than his or her colleague where “new evidence” is presented on the record.

The record discloses that Judge Avellino was transferred out of discovery motion court and that Judge Maier was directed to preside over discovery matters. Judge Maier’s replacement of Judge Avellino as discovery judge is insufficient to provide a basis for Judge Maier to reconsider Judge Avellino’s interlocutory order. The majority, in my judgment, has reached the issue of “new evidence” without clearing the hurdle of “unavailability.” Reassignment or transfer of a judge does not make that judge “unavailable” for purposes of reconsideration of those orders. Reifinger v. Holiday Inns, Inc., 315 Pa.Super. 147, 461 A.2d 839 (1983). The exceptions enumerated in Hutchison, supra, and Duffy, supra, do not encompass the reassignment of a judge to another trial division.

In Reifinger, supra, the defendant filed preliminary objections to the plaintiffs complaint based on the lack of personal jurisdiction. These objections were denied by the trial judge. Thereafter, the trial judge was reassigned to the criminal division of the same court and the case was reassigned to a second trial judge. Just prior to trial, the defendant filed a motion for summary judgment. The record before the second judge was in no respect materially different with regard to the issue of personal jurisdiction that went before the first judge. We held that the second judge abused his discretion in granting the defendant’s motion for summary judgment as there was no record of new evidence having been presented. Accordingly, we concluded that absent new evidence, one judge may not overrule an interlocutory order of another judge of the same court in the same case. Reifinger, 315 Pa.Super. at 151, 461 A.2d at 842.

Moreover, the predecessor judge' in Reifinger, supra, remained “available” at the time the motion for summary judgment was presented. As noted, the predecessor judge had merely been transferred to another division of the same court and thus it was possible to assign the motion to him for disposition. Id. at 153, 461 A.2d at 842-43. I find guidance in this persuasive reasoning and would take this opportunity to clarify the holding of Reifmger, supra. While finding an abuse of discretion by the second judge based upon the absence of new evidence, unavailability should be a significant factor in the determination. Unavailability is always an issue when dealing with a successor judge’s ruling on a predecessor’s interlocutory order. Indeed, the general rule is based upon the presumption that a judge is available to rule on his or her own orders and the logical progression which allows deviation from the rule to permit a second judge to consider new evidence only comes to fruition where the first judge is unavailable. Therefore, rather than characterizing unavailability as an exception to the general rule, I find it is more properly characterized as the threshold question to be determined prior to a determination of the issue of new evidence being presented to successor judges. Applying this reasoning to the instant case, I would find that Judge Avellino’s transfer to another division of the same court did not constitute unavailability and, therefore Boyle’s alleged new evidence presented to Judge Maier is irrelevant.

The impracticality of mandating that a party pursue a predecessor judge who was merely transferred or no longer assigned to a particular case, but who remains “available” for purposes of ruling on a earlier order, is outweighed by the dangers of judge-shopping and the systematic re-filing of a motion or petition. Such a situation is presented when a party who was unsuccessful before one judge purposefully seeks out or re-files and is later able to convince a second judge on the same court that the relief requested be granted. In Golden, supra, the defendants filed preliminary objections to the plaintiffs complaint. The objections were denied by the trial judge. The defendant’s motion for reconsideration was summarily denied by the same judge. The defendants then presented their motion to a different judge on the same court and the objections were granted and plaintiffs complaint dismissed. There, the record did not reveal whether the second judge was even aware of the first judge’s order’s denying the relief. Again, we held that the second judge abused his discretion in overruling the first judge, as there was no further development of the facts or positions of the parties between the two decisions and the second judge addressed the same issue that was before the first judge. Golden, 410 Pa.Super. at 513, 600 A.2d at 572. This practice cannot be condoned. The existence of alleged new evidence alone cannot serve as incentive for a party to undermine a prior disposition of a predecessor judge when that same judge is available to hear the new evidence.

Adopting the reasoning in Reifinger, supra, as a threshold question does not redefine those factors of the unavailability exception enumerated in Hutchison, supra, and Duffy, supra, but serves to encompass those factors to prevent, once the discovery of new evidence has occurred, the possibility of a judge overruling a colleague’s order, and the burden of ruling on an order without knowledge of a full record. Such actions cannot be said to foster finality sought in pretrial orders or insure judicial economy and efficiency, Hainsey, supra, Hutchison, supra, Salerno, supra, Golden, supra, Vincent, supra, Reifinger, supra, and are consistent with those cases that hold that the practice of granting a rehearing before a judge other than one who was initially involved in the case is not in the best interest of the parties. Commonwealth ex rel. Schulberg v. Hirsch, 236 Pa.Super. 179, 344 A.2d 530 (1975); Common, ex rel. Gershman v. Gershman, 181 Pa.Super. 76, 122 A.2d 813 (1956); Commonwealth ex rel. D’Alfonso v. D’Alfonso, 181 Pa.Super. 71, 121 A.2d 900 (1956).

I conclude, therefore, that those factors which have previously been categorized as falling into the “unavailability” exception — death, retirement, expiration of judicial commission, appointment to a higher court, and instantly the transfer of a judge to another division of the same court, while not an exclusive list, must be considered prior to placing new evidence before any judge other than the judge that ruled on the original order. Once satisfied, the presentation of new evidence will be permitted to be placed before a successor judge. This result effectuates the sound policy adopted by our courts to prohibit relitigation of an issue by a judge of co-ordinate jurisdiction, minimizing expense and administrative burden and preventing the rescission of an order of a colleague. Hainsey, supra; Hutchison, supra; Reifinger, supra; Madden, supra; Marmara, supra.

Applying this reasoning to the instant case, it is clear to me that Judge Avellino had been transferred to another division of the same court. Thus, for purposes of ruling on his prior interlocutory orders Judge Avellino was not unavailable at the time Judge Maier rescinded the sanction order; new evidence, if any, should have been brought before Judge Avellino. As Judge Avellino was available, I would find that Judge Maier abused his discretion in ruling on the motion. Reifinger, supra.

Even had Judge Avellino been “unavailable,” I would find it necessary to remand for an evidentiary hearing to determine whether new evidence had been presented. The case law does not establish an inflexible rule defining new evidence but rather demands analysis of a party’s contention on a case by case basis. While new evidence may have existed at the time the first order was entered, the only requirement is that this evidence be placed on the record in the interim between the first judge’s ruling and the second judge’s reassessment. Hutchison, supra; Gabovitz, supra. Where a predecessor judge is “unavailable,” consistent with the view I advocate, the new evidence must be such as would more likely than not induce the first judge to make the change in the ruling himself or herself. As such, the record here is problematic; a review of the references given by the trial court reveals little, certainly not enough to judiciously determine this matter. Where it is impossible for this court to decide a case because the record is incomplete, the case should be remanded to the trial court for clarification and completion. Pawol v. Pawol, 293 Pa.Super. 29, 437 A.2d 974 (1981); Dickson v. Lewandowski, 224 Pa.Super. 285, 307 A.2d 392 (1973).

The record establishes the reasons for Judge Avellino’s actions, but we have no guidance as to the basis for Judge Maier’s actions other than his notation that he was acting in the “interest of justice.” Instantly, Boyle contends that Judge Maier was presented with new evidence as follows:

Neither Boyle’s children nor the decedent were aware that their prior counsel failed to adequately answer Steiman’s interrogatories or that an order of preclusion had been entered against them.
The originals of the documents requested by Steiman were in Steiman’s possession at the time of Judge Avellino’s order.
Judge Avellino’s order should be rescinded in the interest of justice.

While we are sympathetic to the surprise that may have befallen Boyle upon learning that interrogatories were not fully answered, discovery materials were not given and that a sanction order had been entered, these facts do not establish new evidence. Boyle’s prior counsel was given notice of Steiman’s sanction requests and Judge Avellino’s orders were duly docketed. Boyle’s position is no different from that of a party who is precluded from maintaining a suit for damages against a tortfeasor after discovering that his attorney has settled the cause of action on his behalf without consultation. In this situation, the loss should not be borne by an innocent third party who was diligently defending against the suit. If indeed Boyle had no knowledge of the prior attorney’s alleged dereliction regarding the interrogatories and material discovery requests, then Boyle’s recourse lies in other procedures established in our law to provide recompense and to serve as a deterrent against such conduct. See Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983). Further, as Judge Avellino’s sanction order was interlocutory, Boyle always retained the right, upon final disposition, to appeal, as the possibility existed that Judge Avellino abused his discretion in entering the order. Daywalt, supra; Atlantic Richfield, supra; Joyce, supra. For these reasons, overruling Judge Avellino’s order in the interest of justice under the instant facts perverts justice by punishing Steiman for his counsel’s diligent representation to obtain discovery to defend the suit. Neither contention offered by Boyle establishes that more likely than not, Judge Avellino would have rescinded his order.

Boyle contends that the information which was allegedly the focus of the sanction order, copies of reports and bills, were already in Steiman’s possession at the time Judge Avellino entered his order. Steiman denies this. However, while of some import, this does not justify rescission of the order in the instant case. There is no record to determine whether this alleged new evidence would have revealed additional facts, other than those presented before Judge Avellino at the time the sanction order was entered, to suggest that Judge Avellino would have considered the evidence a sufficient basis to overturn his first order. Further, when considering a motion to rescind a predecessor’s order, the second judge must consider the substantive nature of the order. Here, Judge Avellino’s order was entered after two previous discovery orders warning of the possibility of sanctions. Boyle received notice of Steiman’s actions and notice of Judge Avellino’s orders. Obviously, Boyle refused to comply. Thus, the fact that Steiman may have had actual possession of discovery material does not, in my view, change the substance of the facts before Judge Avellino in entering the sanction order — Boyle’s failure to fully answer interrogatories and to participate in discovery.

Allowing a second judge to intervene and overrule a predecessor judge, especially on these facts, undermines the contempt powers of the court and condones deviation from the accepted standards of diligence in initiating and maintaining suit. This is exactly the reason why the motion to rescind the sanction order should have been brought back before Judge Avellino for disposition. Boyle would have suffered no prejudice by allowing Judge Avellino’s order to stand until final disposition of trial. Had there been no rescission of Judge Avellino’s order by Judge Maier, following trial Boyle could have appealed the order and proved that the answers to Steiman’s discovery requests were sufficient. If proven, the physical evidence barred by Judge Avellino’s order would be admissible and Boyle would be entitled to the appropriate relief. I fail to see the propriety of allowing subsequent counsel to seek rescission of an interlocutory order that was entered due to his client’s own dereliction and to redirect the intended prejudice and punishment of that order against an innocent party just prior to trial. Such conduct carries the sting of impropriety in that the innocent litigant may be forced to settle at the eleventh hour as the stakes have substantially risen and all prior diligence undertaken in defense of the litigation has been negated. This fact again evidences the importance of having the judge who entered the order determine for himself or herself whether any modification or rescission is appropriate when considering new evidence.

Instantly, the parties acknowledge that Judge Avellino has been merely reassigned to a different division of the same court. Accordingly, he was available for purposes of reconsideration of his order. I would reverse the judgment and reinstate Judge Avellino’s sanction order, allowing for reconsideration of the order by presentation of the alleged new evidence to Judge Avellino. Alternatively, I would find that Steiman is entitled to a new trial, precluding all evidence that is the subject of Judge Avellino’s order.

      . We note that the appellant's own dilatory behavior during discovery was subsequently the subject of a December 20, 1991 order issued by Judge Maier instructing him to file full and complete answers to the administrators' interrogatories and produce the documents called for in their request for production of documents.

      . We note that photographic copies of business and public records are admissible evidence pursuant to 42 Pa.C.S.A. § 6109 even if the original records are available.

      . The majority notes that this court is without a clue as to what actually transpired before Judge Maier as no transcript was created. The majority states that the failure of Steiman to file an "equivalent picture” of the proceedings pursuant to Pa.R.A.P.1923 results in waiver of the coordinate jurisdiction issue. Most importantly, however, the majority holds that without such a "picture” this court cannot conclude that Judge Maier erred in rescinding Judge Avellino's preclusion order.
      After a review of the entire record certified for this appeal, I find ample support for effective appellate review. Additionally, the record contains Boyle’s motion to rescind and Judge Maier’s rescission order. The new evidence alleged by Boyle was as follows:
      Neither Boyle’s children nor the decedent were aware that their prior counsel failed to adequately answer Steiman’s interrogatories or that an order of preclusion had been entered against them.
      The originals of the documents requested by Steiman were in Steiman's possession at the time of Judge Avellino’s order.
      Judge Avellino’s order should be rescinded in the interest of justice. As discussed infra, these allegations do not constitute new evidence. Judge Maier’s order expressly reveals that Judge Avellino’s order was rescinded in "the interest of justice,” and not as a result of new evidence. Further, Judge Maier makes no reference to Steiman’s alleged possession of the disputed discovery materials. Thus, notwithstanding the majority’s concern for the limited record before us, we can readily establish Judge Maier’s abuse of discretion in overruling a predecessor judge’s order where the predecessor judge remains available. As is further discussed, even had Judge Avellino been unavailable, the proper procedure would be to remand for an evidentiary hearing to determine whether or not new evidence was placed on the record subsequent to Judge Avellino’s order.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    631 A.2d 1040
    COMMONWEALTH of Pennsylvania v. John MOLINARO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 11, 1993.
    Filed Sept. 24, 1993.

      Casey A. Castro, Bradford, CT, for appellant.
    William P. O’Malley, Asst. Dist. Atty., Scranton, for Com., appellee.
    Before BECK, POPOVICH and HESTER, JJ.
   HESTER, Judge:

John Molinaro appeals from the judgment of sentence of three to six years imprisonment imposed following his conviction by a jury of homicide by vehicle while driving under the influence and driving while under the influence. We reverse and remand for a new trial.

The trial evidence reveals the following. On February 18, 1990, shortly after 1:00 a.m., a 1979 Chevrolet pick-up truck driven by appellant struck and killed the victim, Thomas Miller. Glenn Evans, an eyewitness to the accident, was watching television in his home on Route 106 in Carbondale. Mr. Evans heard tires squeal, looked out the window, and observed the victim’s car with its lights illuminated resting perpendicularly across the road. After Mr. Miller unsuccessfully attempted to start the car, he extinguished its headlights. Mr. Evans, expecting Mr. Miller to ask to use the telephone, started to put on his shoes. He again heard tires squealing and looked up to see the car stalled again but resting closer to the shoulder of the road. Mr. Evans then observed a car proceed slowly around the victim’s vehicle in the westbound lane of the roadway, which was free from obstruction. As Mr. Evans finished putting on his shoes, he heard tires squeal again and then a crash. When he looked out the window, he saw the headlights of appellant’s truck coming over an embankment towards his house and the victim spinning next to the truck. Mr. Evans discovered the victim under the front tires of appellant’s truck.

David Zrowka, Chief of the Fell Township Police Depari> ment, testified that at the scene of the accident, appellant admitted to drinking two beers and three mixed drinks at a local restaurant prior to the incident. Appellant also stated that he saw the victim’s car sitting broadside across the road and as he swerved to miss the car, he saw a person and was not able to avoid striking him. In a later interview with Chief Zrowka, appellant admitted that after he went to the restaurant, he drank a couple of beers at a local bar. Appellant also stated that he was traveling forty miles per hour at the time of the accident. A blood alcohol content test was performed, and the results were that appellant’s blood alcohol content was O. 34%.

Pennsylvania State Trooper Joseph Hudak, an expert in accident reconstruction, concluded that a driver in the type of vehicle appellant was driving on the night of the accident would have been able to see the victim’s vehicle, with its lights extinguished, in the roadway from a distance of 460 feet. Officer Hudak also concluded that a driver traveling at a speed of between thirty and sixty miles per hour should have been able either to stop his vehicle or to swerve into the unobstructed lane to avoid the victim’s vehicle.

Based on this evidence, appellant was convicted of homicide by motor vehicle while under the influence of alcohol and driving under the influence. This appeal followed denial of post-trial motions and imposition of judgment of sentence.

We consider first appellant’s allegation that the evidence was insufficient to sustain his convictions since if the allegation were meritorious, it would entitle him to discharge.

We begin with the familiar and well established admonition that our standard of review for challenges to the sufficiency of evidence is limited. We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence receive equal weight when assessing the sufficiency of the evidence. All reasonable inferences, consistent with the evidence, must be viewed in the Commonwealth’s favor as verdict winner.

Commonwealth v. Grekis, 411 Pa.Super. 494, 504-05, 601 A.2d 1275,1280 (1992) (citations omitted). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989).

Appellant’s specific allegation is that the evidence was not sufficient to show that his intoxication was the cause of the traffic accident and therefore, of the victim’s death. This argument relates to appellant’s conviction of homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, which is defined as follows:

(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3531 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.

Thus, there are three elements to homicide by vehicle while driving under the influence: a driving under the influence conviction, the death of another person, and the death as a direct result of driving under the influence. Appellant challenges the evidence only with respect' to the third element, suggesting that the evidence establishes that the accident would have occurred regardless of the state of his intoxication.

Viewing the evidence in a light most favorable to the Commonwealth, we have no doubt that appellant drove, operated, or controlled his vehicle with an amount of alcohol in his blood exceeding 0.10%. Glenn Evans identified appellant as the person who exited the driver’s side of the truck. Additionally, Chief Zrowka testified that appellant stated that he was the operator of the vehicle. Chief Zrowka testified that appellant voluntarily agreed to take a blood alcohol test, and Dr. Arthur Sevum’s testimony revealed that appellant’s blood contained 0.343% ethyl alcohol. Dr. William Antognoli testified that multiple traumatic injuries were the cause of death of the victim. Finally, Trooper Hudak’s expert testimony was sufficient to establish that appellant’s intoxication caused the accident. Officer Hudak stated that a driver not under the influence of alcohol would have perceived the victim’s vehicle and stopped or swerved to avoid the accident. This conclusion was confirmed by Mr. Evans’s testimony that another vehicle had avoided, without incident, the victim’s vehicle immediately prior to the accident. Based on the foregoing, we find there was sufficient evidence for the jury to find that appellant’s intoxication was a direct and substantial cause of the accident and of the victim’s death.

Appellant also levels a challenge to the propriety of the jury instruction. Appellant’s specific contentions are that: 1) the trial court’s instruction on causation were in error since the jury was told to disregard any impact that the victim’s conduct had in causing the accident; and 2) the trial court erred in failing to give Pennsylvania Suggested Standard Criminal Jury Instruction 15.2501C(3). He asserts that under controlling case law, the jury should have been instructed to consider the victim’s actions in connection with its determination of whether appellant’s conduct was the direct and substantial cause of the victim’s death. We are constrained to agree with appellant’s contentions and reverse and remand for a new trial. In the present case, the jury was instructed as follows:

In a criminal case, you are not to concern yourselves with the actions of the victim. Contributory negligence of the victim is not a defense to a criminal charge of homicide by motor vehicle if you find that the defendant’s actions were a substantial factor in causing death.

Notes of Testimony, 5/2/91 (Jury Instructions), at 80. At no point was the jury instructed that the victim’s conduct should be considered in connection with the causation issue.

This instruction contains an inaccurate statement of the applicable law. Under the case law, the jury must be instructed to consider the victim’s actions in connection with the causation determination, where the evidence indicates that those actions may have contributed to the accident. In Commonwealth v. Aurick, 138 Pa.Super. 180,10 A.2d 22 (1939), the victim was killed while crossing a street at dusk. The defendant was convicted of involuntary manslaughter as a result of her death. On appeal, the defendant argued that the trial court erred in failing to instruct the jury that the decedent’s • conduct should be considered in connection with the determination of whether her death was the direct result of the defendant’s violation of the speeding laws. We agreed with that assignment of error.

The concept presented is that where the conduct of the victim may have contributed to an accident, the jury is to be instructed to consider such conduct when deciding the issue of whether a defendant’s violation of the law was the direct and substantial cause of the accident and thus the victim’s death. This concept is delineated clearly in Pennsylvania Suggested Standard Jury Instruction 15.2501C(3):

(1) You cannot find that the defendant killed [the victim] unless you are satisfied beyond a reasonable doubt that the defendant’s conduct was a direct cause of his death.
(2) In order to be a direct cause of a death, a person’s conduct must be a direct and substantial factor in bringing about the death.[] There can be more than one direct cause of a death. A defendant who is a direct cause of a death may be criminally liable even though there are other direct ■causes.
(3) A defendant is not a direct cause of a death if the actions of the victim ... plays such an independent important and overriding role in bringing about the death, compared with the role of the defendant, that the defendant’s conduct does not amount to a direct and substantial factor in bringing about the death.

In the present case, there was evidence that the victim’s conduct contributed to the accident. The victim had a blood alcohol content of,. 18% and was not able to negotiate the highway where the accident occurred. He stalled his car, extinguished the headlights, and then proceeded out into the roadway at night without taking proper precautions. Under Auricle, where the evidence is that the victim’s conduct may have contributed to the accident, the jury must be instructed to consider such conduct when making its determination as to whether the defendant’s conduct was a substantial and direct factor in causing the victim’s death. The jury in this case was not instructed to consider the victim’s conduct in this determination; it specifically was instructed to disregard it.

We also agree with appellant’s observation that this instruction conflicts with our Supreme Court’s holding in Commonwealth v. Uhrinek, 518 Pa. 532, 544 A.2d 947 (1988). There, our Supreme Court held that it was error to disallow the defendant to introduce evidence which tended to establish that the victim’s conduct may have contributed to his death. In Uhrinek, the defendant struck a victim who was crossing the road at night. The evidence indicated that the victim was intoxicated and that this intoxication may have contributed to the accident. The Supreme Court reversed the trial court’s ruling that evidence of the victim’s intoxication was inadmissible, holding that if the evidence establishes that the intoxication may have contributed to the accident, such evidence must be admitted.

Like the victim in Uhrinek, the victim herein was intoxicated and exhibited conduct which may have contributed to the accident. The intent of Uhrinek, is not fulfilled if the jury, having received evidence that the victim’s conduct may have contributed to his death, is then instructed specifically to disregard that evidence.

In the present case, the trial court relied upon our holding in Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), aff'd, 517 Pa. 192, 535 A.2d 575 (1987), in refusing to give the requested instruction. In Heck, we ruled that criminal culpability for a violation of the Motor Vehicle Code in the context of a vehicular homicide prosecution cannot be predicated upon ordinary negligence, but there must be a gross deviation from the applicable standard of care. In support of this conclusion, we offered three examples of when a negligent violation of the MVC would result in an unintended death and when criminal sanctions would not be appropriate but when those sanctions nonetheless would be imposed. After offering the examples, we observed that any contributory negligence on the part of the victim would not absolve the defendant from responsibility. The statement was made in the context of the examples and only to support our holding that it is fundamentally unfair to impose criminal sanctions where a defendant has not deviated grossly from the applicable standard of care. Heck does not hold that the victim’s contributory negligence is not relevant and must be disregarded in connection with the determination of whether the defendant’s conduct was a direct and substantial factor in causing the accident. Finally, our Supreme Court expressly rejected our analysis in Heck and supplanted it with its own analysis. Accordingly, our opinion in Heck cannot be relied upon.

In fact, Heck cites the case of Commonwealth v. Clowser, 212 Pa.Super. 208, 239 A.2d 870 (1968), in support of the proposition that contributory negligence of the victim is not a defense to vehicular homicide. In Clowser, we did state that a victim’s contributory negligence is no absolute defense in such a case, but we went on to observe that the victim’s contributory negligence does diminish the defendant’s responsibility as the legal cause of an accident.

Thus, while it is correct to state that the contributory negligence of the victim is not a defense to a criminal charge of homicide by vehicle if the defendant’s actions are a substantial factor in causing death, this statement in itself contains an incomplete analysis of the applicable law. Where the evidence supports such an instruction, the jury also must be instructed in accordance with the concepts outlined in Uhrinek, Aurick, and Pa.S.Crim.J.I.18.2501c(3). Since the evidence in this case supported the requested instruction, the trial court erred in failing to give it. In addition, the error was compounded by the trial court’s incorrect statement that the jury was not to concern itself with the victim’s actions. Under the circumstances, appellant is entitled to a new trial.

Judgment of sentence reversed. Case remanded. Jurisdiction relinquished.

      . The evidence indicates that Thomas Miller had a blood alcohol content reading of .18%, which may have contributed to his traffic accident.

      . The Commonwealth asks that we decline to review the merits of this appeal since appellant’s brief contains various violations of the rules of appellate procedure. Normally, we will deny a defendant his constitutional right to direct review of his conviction when there are gross deviations from the rules of appellate procedure which impair substantially our ability to review the issues presented. Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982). As appellant’s issues are discemable, we elect to address the merits of this appeal.

      . The Commonwealth also suggests at one point in its brief that appellant failed to object to the jury instructions at trial. This is incorrect. Our review of the in-chambers discussion of the proposed jury instructions establishes that defense counsel objected strenuously to the trial court's proposal to charge the jury to disregard the victim’s actions in connection with causation. Counsel also specifically requested the trial court to charge the jury in accordance with Pennsylvania Suggested Standard Criminal Jury Instructions 15.2501C(3). See Notes of Testimony, 5/2/91 (In Chambers Transcript), at 2, 7.

      . There are three notes of testimony bearing the date of May 2, 1991. One contains the in-chambers discussion of the proposed jury instructions; one contains the jury instructions, and one contains the trial court’s response to several questions concerning causation asked by the jury.

      . We observe that the trial court also failed to advise the jury that the defendant’s conduct must be a direct and substantial cause of the victim’s death. See N.T., 5/2/91 (Jury Instructions, at 84. This also was error. See Commonwealth v. Rementer, 410 Pa.Super. 9, 598 A.2d 1300 (1991).


author: POPOVICH, Judge. BECK, Judge,

text:
    631 A.2d 1045
    Katherine PAGNOTTI and Frank Pagnotti, Jr., Individually and Frank Pagnotti, Jr., Administrator of the Estate of Frank Pagnotti, Sr. v. OLD FORGE BANK. Appeal of Frank PAGNOTTI, Jr., and Frank Pagnotti, Jr., Administrator of the Estate of Frank Pagnotti, Sr.
    Superior Court of Pennsylvania.
    Argued May 13, 1993.
    Filed Sept. 30, 1993.

      Christopher B. Jones, Scranton, for appellant.
    Scott A. Herlands, Scranton, for appellees.
    Before BECK, POPOVICH and HESTER, JJ.
   POPOVICH, Judge.

This is an appeal of the judgment entered in favor of appellee, Katherine Pagnotti by the Court of Common Pleas of Lackawanna County. We affirm.

On November 12, 1985, appellee opened a bank account at Old Forge Bank. Appellee deposited in the account money received from her social security and black lung benefits. Appellee subsequently added her son’s name, Frank Pagnotti, to the account, thus creating a joint savings account. On August 21, 1986, the signature card for the account was changed so that the signatures of both owners of the account were required to make withdrawals from the account.

In August of 1990, Frank Pagnotti died intestate. Thereafter, when appellee attempted to withdraw funds from the account, she was refused access to any funds in the account. After appellee’s requests to the bank to release the funds in the account were denied, appellee filed a writ of summons, naming Old Forge Bank as the defendant. Old Forge Bank filed a petition to interplead appellant, Frank Pagnotti, Jr., decedent’s son and administrator of decedent’s estate.

Appellant filed a statement of claim to which appellee filed an answer. Next, appellant filed preliminary objections wherein appellant claimed that appellee was not a competent witness pursuant to the Dead Man’s Act. The trial court ruled that appellee was competent to testify under the devisavit vel non exception to the Dead Man’s Act. Following the trial, the court dismissed appellant’s statement of claim and ordered the Old Forge Bank to release the funds in the account to appellee. Appellant’s motion for post-trial relief was denied, and the instant appeal followed.

Appellant contends that appellee should have been precluded from testifying pursuant to the Dead Man’s Act. Appellant, as the party challenging the competency of a witness, has the burden of proving incompetency. In re Estate of Rider, 487 Pa. 373, 409 A.2d 397 (1979). For a witness to be disqualified as a witness under the Dead Man’s Act, the following must be proven:

(1) the deceased must have had an interest in the matter at issue, i.e., an interest in the immediate result of the suit; (2) the interest of the witness must be adverse; and (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest.

Id. at 399 (citations omitted). Several exceptions to the Dead Man’s Act are included in the statute, one of which is the devisavit vel non exception. In Dalbey’s Estate, 326 Pa. 285, 192 A. 129 (1937), our supreme court stated that the devisavit vel non exception:

renders competent all witnesses in disputes involving the testamentary disposition of property regardless of any interest possessed by them in the particular decedent’s property. This rule is in keeping with the modern tendency to admit all testimony having a direct bearing on issues involved, notwithstanding the witness’ interest, which reflects only on his credibility. This is especially true where other evidence is at times unavailable, as is frequently the case in litigation of this character.

“The Dead Man’s Act renders the witness’ testimony competent where the controversy over decedent’s property is between parties respectively claiming such property ‘by devolution on the death of the owner.’ ”' In re Estate of McClain, 481 Pa. 435, 392 A.2d 1371, 1375 (1978). The definition of the term “devolution” includes the transfer of a decedent’s property both by operation of law and by will. Id.

In the present case, the decedent and appellee owned a bank account. Following the decedent’s death, appellant and appellee each claimed a right to the money in the account. Appellee claimed that the bank account, owned by decedent and appellee, was a joint account with right of survivorship. Appellee, therefore, asserted that the money remaining in the account following the death of the other owner of the account would pass by operation of law to appellee. Appellant argued that the bank account was owned by appellee and decedent as a tenancy in common, and, therefore, by operation of law, decedent’s estate was entitled to half of the money remaining in the account following decedent’s death.

Each party was claiming the right to the money in the bank account by devolution following the death of an owner of the account. Therefore, all witnesses in the present action were competent to testify. Id. The trial court allowed appellee to testify according to the devisavit vel non exception to the Dead Man’s Act. N.T., 10/20/92, at 12. We find that the trial court did not commit an error of law when it ruled that appellee was competent to testify. Cf. Williams v. Fund of $1230.10, 178 Pa.Super. 420, 116 A.2d 266 (1955) (wherein this court ruled a witness incompetent to testify pursuant to the Dead Man’s Act but the court did not consider the devisavit vel non exception to the Dead Man’s Act).

Appellant’s second argument is that the bank account owned by appellee and decedent was owned as a tenancy in common and not as a joint account with right of survivorship. Appellant contends that the trial court committed an error of law by applying 20 Pa.C.S.A. § 6304 in reaching its decision that the bank account was a joint account with right of survivorship. Appellant cites Williams, supra, in support of appellant’s argument that the bank account was owned as a tenancy in common. This court held in Williams, that in a case in which the evidence indicated only the existence of a fund in the names of two parties who were not husband and wife and money could be withdrawn only upon the signature of both parties, the law favors a presumption that the account was owned as a tenancy in common rather than a joint tenancy, in the absence of proof of intent that the latter should be formed. In Williams, the court noted that it could not determine the source of the funds of the account. The facts of the present case are different from the facts of Williams. Instantly, the evidence shows that appellee originally opened a bank account in her name only, and that she was the only person who deposited money into the account. Appellee later added her son’s name to the account, but he did not deposit any money into the account.

The present case can be further distinguished from Williams in that we are bound by 20 Pa.C.S.A. § 6301 et seq. which was codified after the filing of Williams, swpra. Pursuant to the Pennsylvania Probate Estates and Fiduciaries Code, a joint account is defined as follows:

“Joint Account” means an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorship.

Section 6304 of Title 20 creates a presumption that a bank account is a joint account with right of survivorship. The presumption can be overcome only by a presentation of clear and convincing evidence of a different intent. Specifically, 20 Pa.C.S.A. § 6304 provides the following:

Any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created.

According to 20 Pa.C.S.A. §§ 6301, 6304, the bank account created by appellee and decedent was a joint account with right of survivorship. After reviewing the proceedings below, we find that appellant failed to present clear and convincing evidence to rebut the presumption that appellee and decedent created a joint account. Appellee testified that she added her son’s name to the account because she was concerned about a nursing home taking her money. N.T., 10/20/92, at 16. Appellee further testified that she intended her son to receive all the money in the account if appellee died before her son, and if appellee’s son died before appellee, she would own the money in the account. N.T. 10/20/92, at 18. Appellant argues that the requirement of both appellee’s and decedent’s signatures for withdrawals is evidence that the account was not a joint account. However, this evidence alone does not rebut the presumption that the bank account was a joint account, especially when we consider appellee’s testimony of her intentions in adding her son’s name to the account. We affirm the trial court’s decision to award the funds in the account to appellee.

Judgment affirmed.

BECK, J. files a Concurring Opinion.

BECK, Judge,

concurring.

I join in the majority’s decision to apply the devisavit vel non exception to the Dead Man’s Act and affirm the judgment in favor of appellee Katherine Pagnotti. I write separately to emphasize my belief that the Dead Man’s Act has outlived its usefulness as a rule of evidence and should be repealed.

The stated purpose of the Act in this Commonwealth is: to prevent the injustice that would result from permitting a surviving party to a transaction to testify favorably to himself and adversely to the interest of a decedent, when the decedent’s representative would be hampered in attempting to refute the testimony or be in no position to refute it, by reason of the decedent’s death.

In re Estate of Hall, 517 Pa. 115, 535 A.2d 47, 53 (1987).

Although to “prevent injustice” surely is our goal, I believe the Act does more to hinder the truth-seeking process, and thereby cause injustice, than prevent it. As McCormick aptly has noted:

[T]he expedient of refusing to listen to the survivor is, in the words of Bentham, a “blind and brainless” technique. In seeking to avoid injustice to one side, the statute-makers ignored the equal possibility of creating injustice to the other. The temptation to the survivor to fabricate a claim or defense is obvious enough, so obvious indeed that any jury will realize that his story must be cautiously heard. A searching cross-examination will usually, in case of fraud, reveal discrepancies inherent in the “tangled web” of deception.

McCormick on Evidence § 65 (4th Ed.1992).

The drafters of the Federal Rules of Evidence wisely have understood the distinction between the competency of a witness and his or her credibility. The Rules therefore contain no “Dead Man’s” provision. Rule 601 directs that “every person is competent to be a witness,” and this general mandate is balanced by Rule 607: “The credibility of a witness may be attacked by any party, including the party calling the witness.” The Federal Rules of Evidence reflect a preference for an effective cross-examination over a rule of outright incompetency. I believe these Rules provide the better model.

      . 42 Pa.C.S.A. § 5930 (relating to incompetent testimony in a civil action by a witness to occurrences prior to the death of a party whose interest is adverse to that of the witness "unless the issue or inquiry be devisavit vel non, or be any other issue or inquiry respecting the property of a deceased owner, and the controversy is between parties respectively claiming such property by devolution on the death of such owner, in which case all persons shall be fully competent witnesses”).

      . Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 6301-6306 (Supp.1993) (added by the Act of July 9, 1976, P.L. 547, No. 134, effective September 1, 1976) altered the law of this Commonwealth applicable to joint interests in bank accounts.


author: ROWLEY, President Judge.

text:
    631 A.2d 1049
    Barbara PIKUNSE v. Steven KOPCHINSKI and Michael Kopchinski, Appellants.
    Superior Court of Pennsylvania.
    Submitted Aug. 16, 1993.
    Filed Sept. 30, 1993.

      Lawrence J. Roberts, Elkins Park, for appellants.
    Dennis J. Gesker, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and TAMILIA and POPOVICH, JJ.
   ROWLEY, President Judge.

Following a bench trial in the instant landlord-tenant dispute, Steven and Michael Kopchinski (hereinafter “appellants”), appeal from a judgment entered against them, and in favor of Barbara Pikunse, (hereinafter “appellee”). The two (2) issues which have been presented for our review are: (1) whether appellee met her burden of proof at trial regarding the value of her personal property which was converted by appellants; and (2) whether the trial court’s award of punitive damages is adequately supported by the evidence. Having carefully reviewed the record in light of the law relevant to these issues, we affirm.

In November of 1989, appellants leased an apartment, located at 11703 Telfair Road, Philadelphia, Pennsylvania, to appellee for one year. The subject premises were actually owned by Michael Kopchinski and managed by his brother, Steven. Appellee paid timely rent in November and December of 1989, but in January, she was only able to pay partial rent to appellants because she was laid off from her employment as a waitress. Appellee told appellants that she would , pay them the balance of her rent after she secured other employment. Appellants consented to this arrangement. Thereafter, appellants never received a rental payment, either full or partial, from appellee.

On March 11, 1990, appellants changed the locks on the apartment at 11703 Telfair Road and left appellee a note stating that she “must come up with half of [the] money [she owed them] in order to get back in.” Appellee testified at trial that when she discovered that her key would not fit into the lock of her apartment door, “it was late at night. [She] had to wait until the next day. Then [she] called the Kopchinskis.” (R.R. p. 15a). During that phone conversation, appellee was told by Michael that “he could do whatever the hell he want[ed] to, [because] it’s his building, he owns it.” (R.R. p. 16a). Whereupon, appellee “climbed in the window and changed the lock on the door.” (R.R. p. 17a). “Within the next few days, [appellants] re-entered the apartment and replaced the lock [appellee had installed] with the lock which was on the apartment door when [appellee had] moved in. They left a note stating ‘Barbara — call us concerning this. We cannot get in touch with you. Don’t change locks.’” (Trial Court Opinion, 1/29/92, p. 2).

Thereafter, on April 9, 1990, when appellee returned home, her apartment was completely empty and all of her personal possessions were gone. Appellants admit that they took appellee’s belongings from the apartment, and further that after placing them in storage for a short time, they deposited them at the side of the road as trash.

In this case, as stated by the trial court, “[b]oth parties agree on the facts stated above.” (Trial Court Opinion, 1/29/92, p. 3). However:

“[at trial,] [appellants] [averred] that there existed other circumstances which led them to reasonably conclude that [appellee] had abandoned the premises and her property. [Appellants] presented testimony that [appellee] did not respond, orally, by telephone, or in writing, to any of five notes that they left for her. They also elaim[ed] to have visited the apartment once or twice each week from mid-January to April 9, but that [appellee] was never on the premises. [Appellants] claim[ed] that at the time of the lock changes and the apartment clearing, [appellee] still maintained a fully erected Christmas tree and that the sink was full of dirty dishes and rotting food. [Appellants] argue[d] that these facts demonstrate that their actions were reasonable or, at the very least, [were] not outrageous.
[Appellee], on the other hand, contended at trial] that she maintained a fairly steady dialogue with [appellants], keeping them apprised of her unsound financial condition and inability to pay rent. She claimf ed] never to have given any indication of intending to abandon the apartment or her possessions. [Appellee] argue[d] that [appellants’] conduct was outrageous and that she should, therefore, receive punitive damages as well as compensatory damages.
Finally, [both at trial and here on appeal,] the parties dispute the nature and value of [appellee’s] possessions.
[Appellee] proffer[ed] a long list of household goods and personal effects, along "with suggested values thereof [to assist the trial court in fixing damages]. In addition, she claims to have lost a variety of older items which held great emotional or sentimental value to her.
[Appellants] claim that [appellee’s] property amounted to a few boxes of junk which they set out on the curb for trash pick up. However, [the trial] Court f[ound] [appellee’s] contentions to be the more credible ones.”

(Trial Court Opinion, 1/29/92, p. 2-3).

Following the trial court’s credibility determination, it awarded appellee compensatory damages in the amount of $7,139.00, and punitive damages in the amount of $7,500.00. Thereafter, appellant filed a motion for judgment notwithstanding the verdict, which the trial court then denied. This timely appeal ensued.

Initially, we note that our standard in reviewing this case is, as follows:

“In reviewing the denial of a motion for judgment N.O.V., the evidence together with all reasonable inferences therefrom must be viewed in a light most favorable to the verdict winner; all conflicts in the evidence are resolved in favor of the prevailing party. See Gonzalez v. United States Steel Corp., 484 Pa. 277, 398 A.2d 1378 (1979); Mike v. Borough of Aliquippa, 279 Pa.Super. 382, 421 A.2d 251 (1980). Evidence supporting the verdict is considered and the rest rejected. Glass v. Freeman, 430 Pa. 21, 240 A.2d 825 (1968). As we said recently, ‘[a] judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper____’ Martin v. Soblotney, 296 Pa.Super. 145, 442 A.2d 700 (1982).”

Hoffman v. Memorial Osteopathic Hospital, 342 Pa.Super. 375, 379-380, 492 A.2d 1382, 1385 (1985).

The first issue which we must address concerns the trial court’s valuation of the items taken from appellee. Appellants contend on appeal that the trial court’s award of compensatory damages in the amount of $7,139.00 was improper because no expert testimony as to the fair market value of the items taken was presented. Appellants insist that because “there [wa]s absolutely no testimony from any one as to a price which a purchaser would be willing to pay for an item and no testimony with regard to a price for a particular item which a seller would be willing to sell" appellee did not carry her burden of proving damages by a preponderance of the evidence. We do not agree.

While, ideally, the “measure of damages for conversion is the market value of the converted property at the time and place of conversion,” Bank of Landisburg v. Burruss, 362 Pa.Super. 317, 328, 524 A.2d 896, 899 (1987), alloc, denied, 516 Pa. 625, 532 A.2d 436 (1987), such a value is, in fact, often unascertainable. In Landisburg, the subject property, cattle, was sold at auction where the fair market value thereof could be ascertained merely by looking at the price for which the cattle were sold. In the instant case, however, appellee’s household goods were thrown out by appellant tortfeasors, such that the fair market value of those goods could not be determined.

It is well-settled that “mere uncertainty as to the amount of damages will not bar recovery where it is clear that damages were the certain result of the defendant’s conduct, [citation omitted].” Pugh v. Holmes, 486 Pa. 272, 297, 405 A.2d 897, 909-910 (1979) (emphasis added). In the instant case, it is obvious that appellee’s damages were the “certain result” of appellants’ conduct. Appellants irrevocably disposed of appellee’s clothes, furniture, and appliances, as well as treasured photographs, books, and religious items. We will not preclude recovery merely because the damages awarded to appellee for her loss were estimated by the trial court. Indeed, it is the traditional function of the fact finder in conversion actions to estimate damages. Penn Electric Supply Co., Inc. v. Billows Electric Supply Co., Inc., 364 Pa.Super. 544, 550, 528 A.2d 643, 646 (1987).

In Penn Electric, this Court considered, and then rejected, the plaintiffs contention that the trial court was required to accept the plaintiffs valuation of damages because the defendant failed to identify and value the goods he converted. In so doing, we stated:

“We have not uncovered another jurisdiction that, in conversion actions, places the burden of proof as to damages on the defendant so as to require the court to accept the . plaintiffs figure, [citations omitted]. The cases hold that plaintiff is not relieved of the burden of proving the amount of damages simply because the defendant ‘by his own wrong has precluded a more precise computation of damages.’ [citations omitted]. The general rule is that if the defendant wishes to argue for a reduction in damages or to rebut the adequacy of plaintiffs evidence, the burden of such a showing is on the defendant. But failure to meet this burden does not require the court to assess damages at whatever figure the plaintiff has shown, however uncertain, [citations omitted].”

Id. at 549-550, 528 A.2d at 645. It was therefore held that “in a conversion action, it is for the trier of fact to consider the evidence of damages from both the plaintiff and the defendant and to measure the value of the damages in the context of [the] plaintiffs burden.” Id. at 550, 528 A.2d at 646.

Further, in Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983), this Court stated:

“Though justice and public policy require that the wrongdoer bear the risk of uncertainty which his own wrong has created and which prevents the precise computation of damages, the fact-finder still may not render a verdict based on speculation or guesswork, [citation omitted]. Yet, the fact-finder may make a just and reasonable estimate of the damage based on relevant data, and in such circumstances may act on probable and inferential, as well as upon direct and positive, proof [citation omitted]. Thus, the law does not demand that the estimation of damages be completely free of all elements of speculation, [citation omitted].
% í-í :•« iH
Although the law does not command mathematical precision from evidence in finding damages, sufficient facts must be introduced so that the court can arrive at an intelligent estimate without conjecture, [citation omitted]. Where the amount of damage can be fairly estimated from the evidence, recovery will be sustained even though such amount cannot be determined with entire accuracy, [citation omitted]. It is only required that the proof afford a reasonable basis from which the fact-finder can calculate the plaintiffs loss, [citation omitted].”

Delahanty at 118-119, 464 A.2d at 1257-1258.

In the instant case, the trial court considered the evidence presented by both appellee and appellants and found that appellee’s evidence was the more credible. In light of this factual finding, we conclude that the trial court’s award of damages was not improper, but rather, was adequately supported by the evidence. The list of items taken, and their worth, as estimated by appellee, based on the price she paid for each, afforded the trial court a reasonable basis upon which to calculate appellee’s loss. Appellants failed to meet their burden of proof with respect to rebutting appellee’s valuation evidence, and therefore, the trial court was free to accept the figure of $7,139.00 proffered by appellee as the value of her personal possessions.

Next, appellants claim that trial court’s award of $7,500.00 in punitive damages was an abuse of that court’s discretion because the conduct of appellants, in disposing of every personal possession that appellee owned, cannot be considered “outrageous” because they “were young landlords who thought that they had a right to seize the personal property of [appellee] in order to satisfy the obligations of a delinquent tenant.” We cannot agree.

As noted in Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989):

“This Court has adopted Section 908(2) of the Restatement (Second) of Torts regarding the imposition of punitive damages. That provision permits punitive damages for conduct that is ‘outrageous because of the defendant’s evil motives or his reckless indifference to the rights of others.’ „ Restatement (Second) of Torts § 908(2) (1977). See Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Chambers v. Montgomery, 411 Pa. 339, 192 A.2d 355 (1963). A court may award punitive damages only if the conduct was malicious, wanton, reckless, willful, or oppressive. Chambers, 411 Pa. at 344-45, 192 A.2d at 358. The proper focus is on ‘the act itself together with all the circumstances including the motive of the wrongdoer and the relations between the parties.... ’ Id. at 345, 192 A.2d at 358.”

Rizzo at 507, 555 A.2d at 69. (emphasis added).

While appellants contend that “at the very least, they thought that they were entitled to [appellee’s] personal property under some color of right,” we observe that appellants did not keep the property, or even attempt to sell it to “satisfy the obligations” of appellee. Rather, it is clear that, in retaliation for appellee’s failure to pay rent, appellants deliberately threw away items, such as furniture and appliances, which were clearly needed by appellee for everyday living. We are of the mind that in this regard, appellants acted, at best, with reckless indifference to appellee’s legal rights.

Perhaps even more significantly, however, appellants threw away items that, although devoid of any fair market value, were of tremendous sentimental value to their owner — photos, rosary beads, communion books, and cards which had been given to appellee by her mother or grandmother, now deceased. Appellants’ actions in this respect were, in our opinion, wanton and malicious. We therefore conclude that the trial court properly exercised its discretion in awarding appellee punitive damages.

Judgment affirmed.

      . Recently, in F & M Schaeffer Brewing v. Lehigh County, 530 Pa. 451, 610 A.2d 1 (1992), our Supreme Court reiterated the definition of fair market value as “the price which a purchaser, willing but not obliged to buy, would pay an owner, willing but not obliged to sell, taking into consideration all uses to which the property is adapted and might in reason be applied.” Id. at 457, 610 A.2d at 3, quoting Buhl Foundation v. Board of Property Assessment, 407 Pa. 567, 570, 180 A.2d 900, 902 (1962).