author: POPOVICH, Judge: DEL SOLE, Judge,

text:
    586 A.2d 1387
    James E. HUNSICKER, Jr., Appellant, v. Lillian P. BREARMAN and Clifford F. Brearman, Husband and Wife, and Allen Dailey, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed Feb. 20, 1991.

      Yale F. Edeiken, Norristown, for appellant.
    Joseph F. Leeson, Bethlehem, for appellees.
    Before CAVANAUGH, DEL SOLE and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from an order entered in the Court of Common Pleas of Northampton County granting the appellees’ (Lillian and Clifford Brearman) motion for summary judgment.

On April 19, 1986, the appellees (hereinafter “the Brearmans”) were involved in an automobile accident with the appellant (hereinafter “Hunsicker”). As a result, an action in negligence was instituted by the Brearmans against Hunsicker. Hunsicker answered the Brearmans’ complaint and included a counterclaim for property damage to his vehicle. On August 31, 1989, a Praecipe for Satisfaction and/or Termination was filed, indicating that the matter was settled, discontinued and ended with prejudice.

On September 15, 1988, Hunsicker brought suit against the Brearmans for personal injuries sustained as a result of the above accident. In December, 1989, the Brearmans moved for summary judgment, arguing that Hunsicker’s failure to raise the issue of personal injuries in his previously filed counterclaim precluded him, under the doctrine of res judicata, from asserting the claim presently. The trial court agreed, granted the Brearmans’ motion for summary judgment and dismissed Hunsicker’s cause of action. This appeal followed. We affirm.

At the onset, we note our standard of review. As this Court recently stated in Vargo v. Hunt, 398 Pa.Super. 600, 581 A.2d 625 (1990)

A determination of whether the grant or denial of a motion for summary judgment is to be upheld requires an appellate court to decide whether the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Overly v. Kass, 382 Pa.Super. 108, 554 A.2d 970, 971 (1989); see also Chiricos v. Forest Lake Council Boy Scouts of America, 391 Pa.Super. 491, 571 A.2d 474, 475 (1990). In making such a finding, we must accept as true all properly pleaded facts, as well as all reasonable inferences which might be drawn therefrom. Furthermore, we shall not disturb the trial court’s ruling unless there has been an error of law or a manifest abuse of discretion. Overly v. Kass, supra.

Id. See also Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986). With these standards in mind, we now turn to Hunsicker’s two questions on appeal.

Acknowledging that both the present action and the prior counterclaim were based on the same factual occurrence, Hunsicker asks whether the trial court erred in granting the Brearmans’ motion for summary judgment where Hun-sicker was not obligated under the Rules of Civil Procedure to raise the issue of personal injuries as a counterclaim previously. He further asks whether the trial court erred in granting the Brearmans’ motion for summary judgment where they did not plead res judicata properly as an affirmative defense.

Before we address Hunsicker’s first issue on appeal, we must dispose of his second claim. Specifically, we reject Hunsicker’s assertion that the affirmative defense of res judicata was not raised below. Conversely, we find that in the Brearmans’ amended answer and new matter, filed of record October 2, 1989, they state:

30. That the said suit for the bodily injury and property damage claims which the Plaintiff, James E. Hunsicker, Jr., filed against Lillian Brearman being the same issues which is [sic] before the Lehigh County Court, and the said suit having been settled, discontinued and ended with prejudice on August 31, 1989, said discontinuance of said suit with prejudice of the counterclaim by James E. Hunsicker, Jr. is Res Judicata and the claim presently pending before this Court should be dismissed.

Amended Answer and New Matter, at 7. Moreover, the trial court considered the issue of res judicata on the merits and found the principle applicable to the instant situation. See Martin v. Poole, 232 Pa.Super. 263, 267-68 n. 2, 336 A.2d 363, 365-66 n. 2 (1975). See Pa.R.Civ.P. 1030. See also Borough of Ridgway v. Pa. Pub. Util. Comm’n, 83 Pa.Commw. 379, 390 n. 10, 480 A.2d 1253, 1259 n. 10 (1984) (if the court which addresses a matter on its merits is of competent jurisdiction, then res judicata bars future litigation if the requisites of the doctrine are fulfilled). Having determined that the claim of res judicata was preserved, and rightly considered by the trial court under the circumstances of this case, we will proceed to discuss Hunsicker’s first contention on appeal.

Hunsicker argues that “[w]hether a defendant in the first action is precluded from maintaining a second action as a plaintiff based on the same transaction will depend on whether the forum hearing the first action has a compulsory counterclaim rule.” Appellants’ brief, at 8. Under the Pennsylvania Rules of Civil Procedure, a defendant is not required to file a counterclaim; rather, the rule is permissive. Pa.R.Civ.P. 1031. Hunsicker argues that since he was not required to file a counterclaim asserting personal injuries in the first case, the instant suit is not precluded by res judicata. While this theory is creative, it does not account for the fact that Hunsicker did file a counterclaim in the first lawsuit. By electing to pursue his own claims in that manner, Hunsicker cannot now file a separate complaint asserting a cause of action that he should have but neglected to advance originally. To condone this sort of legal maneuvering would be to ignore the purpose of the res judicata doctrine. See Stevenson v. Silverman, 417 Pa. 187, 191, 208 A.2d 786, 788 (1965) (“[t]he doctrine of res judicata is based on public policy and seeks to prevent an individual from being vexed twice for the same cause.”); Oak Lane Shopping Center, Inc. v. Flame, 264 Pa.Super. 9, 13, 398 A.2d 721, 724 (1979) (“[t]he doctrine of res judicata refers to the effect of a judgment rendered in a prior case upon a subsequent cause of action.”); Sobol v. Will Allen Builders, Inc., 244 Pa.Super. 486, 368 A.2d 825 (1976) (same).

Hunsicker relies on the case Martin v. Poole, 232 Pa.Super. 263, 336 A.2d 363 (1975) in support of his position that res judicata only applies when a plaintiff in the first action tries to initiate a subsequent action based on the same incident. He argues that the doctrine is inapposite when a defendant in the first action attempts to seek relief by instituting suit as the plaintiff in the second action. While this may be true in certain contexts, we cannot adopt this rationale as applicable to the instant situation. Instead, we echo this Court’s clear and consistent explanatory discussion in Martin, as follows.

In Pennsylvania, unlike the federal system, there is no compulsory counterclaim rule. Rule 1046, Pa.R.Civ.P., provides that “[a] defendant [in a trespass action] may plead a counterclaim which arises from the same transaction or occurrence ... from which the plaintiff’s cause of action arose.” [Emphasis in opinion]. The effect of this rule is that “[t]he defendant who has a cause of action which arises from the same transaction or occurrence as that from which the plaintiff’s cause of action arose may, at his option, either, plead his demand against the plaintiff by counterclaim or institute a separate action. Whichever he chooses, it should not affect either party’s essential rights.” [Citation and footnote omitted].
It would appear that in Pennsylvania, where all trespass counterclaims are permissive rather than compulsory, the general rule should be applied that “[w]here the defendant does not interpose a counterclaim although he is entitled to do so, he is not precluded thereby from subsequently maintaining an action against the plaintiff on thé cause of action which could have been set up as a counterclaim.” Restatement, Judgments, § 58.

Martin, 232 Pa.Super. at 269-70, 336 A.2d at 366-67 (emphasis added).

As we have noted, Hunsicker chose to file a counterclaim in response to the Brearmans’ original complaint. His counterclaim, which has since been marked “settled, discontinued and ended with prejudice,” did not contain a demand for compensation for personal injuries caused by or arising out of the automobile accident. After review of the record and the applicable law, we conclude that Hunsicker is now precluded, under the doctrine of res judicata, from commencing a brand new suit in order to assert that which he failed properly to pursue in his counterclaim. See Harter v. Reliance Ins. Co., 386 Pa.Super. 14, 562 A.2d 330 (1989) (discusses the doctrine of res judicata); Mitchell v. Randall, 368 Pa.Super. 421, 534 A.2d 508, 509 (1987) (same); see Bearoff v. Bearoff Bros., Inc., 458 Pa. 494, 327 A.2d 72 (1974) (same); Carroll Township Auth. v. Mun. Auth., 102 Pa.Commw. 363, 518 A.2d 337 (1986) (same). See Loomis Lake Ass’n by Hughes v. Smith, 366 Pa.Super. 612, 531 A.2d 1152 (1987) (discusses res judicata relative to a counterclaim). Cf. Pa.R.Civ.P. 1020.

Finding that there exist no issues of material fact in this case and that the Brearmans are entitled to judgment as a matter of law, we affirm the trial court’s order.

We take this opportunity to comment on the dissenting opinion. First, Judge Del Sole is concerned by the fact that neither of the parties made reference to the second action in the settlement and discontinuance of the first, even though both parties were cognizant that the second action was pending. He asserts that “[i]f the parties desired to have the outcome of the first action to also result in a termination of Mr. Hunsicker’s claims for his personal injuries it is likely that this fact would be contained in the settlement and discontinuance of the first action.” Dissent, Slip op. at 2 (emphasis added). While the dissenting writer’s point is well-taken and in fact may be true, we do not find the parties’ awareness dispositive of the issue before us.

We stress that this appeal is from the grant of a specific motion for summary judgment. In our analysis here, we must be concerned with how the present lawsuits were instituted. We are not in a position to evaluate whether the parties’ intentions were effectuated when the first action was ended. To do so is to engage in 20/20 hindsight without the benefit of argument by those involved in this litigation. It is also to ignore the doctrine of res judicata, which principle forms the basis of this case. See Bailey v. Harleysville Mutual Insurance Co., 341 Pa.Super. 420, 491 A.2d 888 (1985) (after a final, valid judgment on the merits by a court of competent jurisdiction, any future litigation between the same parties on the same cause of action is barred because the cause of action has merged into the judgment); Noetzel v. Glasgow, Inc., 338 Pa.Super. 458, 487 A.2d 1372 (1985) (accord). Furthermore, the Brearmans properly filed an Amended Answer and New Matter in the subsequent action, asserting res judicata.

Second, we are compelled to comment on the statement contained in the dissenting opinion, which reads, “... we should be mindful of the role played by insurance carriers in personal injury auto litigation.” Dissent, Slip op. at 2. We see no reason to discuss the topic of insurance in this case.

While we recognize the various exceptions, see, for ex., Beechwoods Flying Service, Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984), “[t]he general rule in Pennsylvania is that evidence of insurance is irrelevant and prejudicial____ The reason is obvious; fact-finders should not be tempted to render decisions based upon the extraneous consideration that an insurance company will actually pay the bill.” Paxton National Ins. Co. v. Brickajlik, 513 Pa. 627, 522 A.2d 531 (1987) (citations omitted). We are convinced that where a jury cannot consider liability insurance coverage, we as jurists should not justify a case under the rationale set forth by the dissenting writer. Especially here, where there are neither allegations nor evidence to support the dissenting writer’s suppositions, we will not speculate whether Hunsicker’s interests in the first action were those of his insurer or whether Hunsicker meant to relinquish his personal injury rights at the time the first action ended. Additionally, the resolution of these issues is irrelevant to the question before this Court. See Martin v. Poole, 232 Pa.Super. 263, 268, 336 A.2d 363, 366 (1975) (“[f]or res judicata to apply, there must be a concurrence of four conditions: (1) Identity in the thing sued upon or for; (2) Identity of the cause of action; (3) Identity of persons and parties to the action; and (4) Identity of the quality or capacity of the parties suing or being sued.” (citation omitted)).

In conjunction with the above observation, we reiterate that nothing in the pleadings indicated that Hunsicker was represented by his insurance agent’s attorney in the first action. However, even if the dissenting writer is correct and Hunsicker’s counterclaim was a defensive one, we would still find the doctrine of res judicata to be applicable here.

Regardless of Hunsicker’s intent and despite the fact that Hunsicker may have been represented by counsel for his insurance carrier in the first action, neither of these conditions negates his responsibility to bring all claims arising out of the same cause of action contemporaneously. Our concern in deciding this case was not with “the interest of the insurers” as the dissent suggests. Rather, it was with enforcing the law in light of the policy that the administration of justice will best be served by raising certain types of claims in one lawsuit. See Lebeau v. Lebeau, 258 Pa.Super. 519, 524, 393 A.2d 480, 482 (1978).

Order affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting:

Based upon the specific facts of this case, I cannot agree with the Majority’s conclusion that Appellant’s claim for personal injuries was properly dismissed in an award of Summary Judgment.

The Brearmans, Appellees, and Mr. Hunsicker, Appellant, were involved in an automobile accident. A negligence action was initially filed by the Brearmans in January 1987. An Answer and a New Matter was filed on behalf of Mr. Hunsicker, which included a counterclaim for property damage. In 1988, prior to the conclusion of this first action, Mr. Hunsicker brought a separate claim for personal injuries suffered as a result of the accident, to which the Brearmans responded with an Answer and New Matter. On August 31, 1989 the first action, including Mr. Hunsicker’s counterclaim, was marked settled, discontinued and ended with prejudice. Shortly thereafter, on October 2, 1989, the Brearmans filed an amended Answer and New Matter in the second action, alleging that the settlement and discontinuance of the first action was res judicata to the claim which was presently pending and should result in a dismissal of the second action. A Motion for Summary Judgment was later filed, the grant of which forms the basis of this appeal.

The Majority’s decision to affirm the award of summary judgment based upon the application of the doctrine of res judicata is particularly troubling in view of the fact that both parties were aware of the pendancy of the second action and apparently made no reference to it in the settlement and discontinuance of the first action. If the parties desired to have the outcome of the first action to also result in a termination of Mr. Hunsicker’s claims for his personal injuries it is likely that this fact would be contained in the settlement and discontinuance of the first action.

In reaching the decision in this case, we should be mindful of the role played by insurance carriers in personal injury auto litigation. In reviewing the record in both cases, it is apparent that Mr. Hunsicker’s defense in the first suit and representation in the second suit were undertaken by different counsel. This leads me to conclude that the strong probability exists that in the first action, the Appellant was being represented by counsel for his insurance carrier and that the property damage counterclaim, representing that carrier’s subrogated collision payment, was a defensive counterclaim. If this is the case, it cannot be argued that Mr. Hunsicker meant to relinquish his personal injury rights at the time the first action was concluded. Under these circumstances, I would vacate the Judgment and remand this matter to the trial court for a determination of the true intent of the parties at the time of settlement of the first action. The interest of the insurers should not operate to defeat the personal rights of the individuals.

Because both lawsuits were pending at the time the first suit was settled and marked discontinued and it does not appear that the settlement attempted to encompass the parties rights or obligations under the second action, and because there exists the strong probability that Appellant’s interest in the first action were those of his insurer, I believe it was inappropriate to enter an order of Summary Judgment in this case.

      . Hunsicker asserts that the Brearmans neither pleaded res judicata as an affirmative defense in their answer to Hunsicker’s complaint nor moved to amend their answer to include it. Appellant’s brief, at 4, 6, 9, 22-23.

      . We also find the Pennsylvania Supreme Court’s declaration in Spinelli v. Maxwell, 430 Pa. 478, 243 A.2d 425 (1968) to be instructive. In that case, the court reiterated:
      When personal injuries to a person and damages to his property arise from the same cause and the same tortious act, the person who has sustained such personal injuries and property damage must seek recovery for both in a single action and, if separate actions are instituted for each category of damage and a judgment is rendered in one of such actions, the entry of such judgment has the effect of res judicata and bars recovery in the other action. Such is the view of a substantial majority of jurisdictions in the United States, and to this view Pennsylvania has long adhered.

        Id., 430 at 480-81, 243 A.2d at 427 (emphasis in original) (footnotes and citations omitted). Citing Fields v. Philadelphia Rapid Transit Co., 273 Pa. 282, 117 A. 59 (1922) as support, the court later states
      The Fields ruling is salutary: (a) it relieves defendants of subjection to more than one suit by the same person for a single tort; (b) it avoids a multiplicity of suits; (c) it provides a simple and direct method of determining all the claims of an individual arising from the same tortious act.

        Id., 430 at 481, 243 A.2d at 427. See also id. at 483, 243 A.2d at 428 (accord). See Fields v. Phila. Rapid Transit Co., 273 Pa. 282, 117 A. 59 (1922) (discusses the subject of splitting a cause of action); see Fitzpatrick v. Branoff, 504 Pa. 169, 470 A.2d 521 (1983) (same); Consolidation Coal Co. v. Dist. 5, United Mine Workers of Am., 336 Pa.Super. 354, 485 A.2d 1118 (1984) (same).


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    587 A.2d 1
    Gisele MATHIAS, William J. Colgan and George Sholly, Appellants, v. Paul CARPENTER and The Morning Call and Times Mirror, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1990.
    Filed Feb. 19, 1991.

      Richard J. Orloski, Allentown, for appellants.
    Malcolm J. Gross, Allentown, for appellees.
    Before CAVANAUGH, WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

The issue in this appeal is whether a jury could find defamatory an article appearing in a daily newspáper which contrasted the newspaper’s decision to publish a photograph of school directors who were smiling as they left a district justice’s office after some of them had been found guilty of violating the Pennsylvania Sunshine Law, and the publication of a photograph of hardened criminals who smile to show contempt of the law. The trial court held that the published material could not be found defamatory and sustained preliminary objections in the nature of a demurrer to the plaintiffs complaint. After careful review, we affirm.

In reviewing an order sustaining preliminary objections in the nature of a demurrer, we view the allegations of the complaint as true and draw therefrom all favorable inferences which are reasonably deducible. Dietrich Industries, Inc. v. Abrams, 309 Pa.Super. 202, 208, 455 A.2d 119, 122 (1982). We are not required, however, to accept appellants’ conclusions or averments of law. Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 623, 470 A.2d 86, 91 (1983); Mudd v. Hoffman Homes for Youth, Inc., 374 Pa.Super. 522, 524, 543 A.2d 1092, 1093 (1988). We will affirm an order sustaining a defense demurrer only in cases where the plaintiff is clearly unable to state a claim on which relief can be granted. Wicks v. Milzoco Builders, Inc., supra; Philmar Mid-Atlantic, Inc. v. York St. Assoc., 389 Pa.Super. 297, 301, 566 A.2d 1253, 1254 (1989).

On December 7, 1988, a picture was published in the Allentown Morning Call which depicted three smiling members of the Lehighton School Board as they left a magisterial hearing at which two of them had been found guilty of violating the Pennsylvania Sunshine Law. On the following day, December 8, 1988, a column- written by Paul Carpenter was published in the Morning Call as follows:

We in the newspaper business sometimes do things we regret, and this is one of those times.
Yesterday we had a story with a headline that said “Judge: School officials broke Sunshine Law.” Accompanying the story was a picture of three school board members leaving the hearing, including two who had been found guilty. All three wore big smiles.
The part I regret is publishing the picture of those smiles.
It’s one thing to portray a hardened criminal smiling as he displays his contempt for law. It’s quite another when the people who are smiling—just after being found guilty of breaking the law—are the supposed leaders of a community’s education establishment.
What kind of message does that convey to the young people they are responsible for educating?

The three school board members, Gisele Mathias, William J. Colgan and George Sholly, contending that they had been libeled, filed an action against Carpenter and The Morning Call for damages. They complained that their reputations as respected citizens and community leaders had been impugned by being compared to hardened criminals. The trial court held that the Carpenter column was not defamatory, however, and sustained preliminary objections in the nature of a demurrer to the complaint. The school directors appealed. They contend that Carpenter’s language implied falsely that they had committed heinous crimes and had demonstrated contempt for the law.

“It is the function of the [trial] court to determine whether the challenged publication is capable of a defamatory meaning. If the court determines that the challenged publication is not capable of a defamatory meaning, there is no basis for the matter to proceed to trial.” Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 464-465, 442 A.2d 213, 215-216 (1981), cert. denied, 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982). The trial court’s function was more fully defined by the Supreme Court in Baker v. Lafayette College, 516 Pa. 291, 532 A.2d 399 (1987), as follows:

In order for a statement to be considered libelous or slanderous, the trial court must, in the first instance, make a determination as to whether the communication complained of can be construed to have the defamatory meaning ascribed to it by the complaining party. Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962). In reaching this conclusion, the court must view the statements in context, Thomas Merton Center v. Rockwell International Corporation, 497 Pa. 460, 442 A.2d 213 (1981) cert. denied 457 U.S. 1134, 102 S.Ct. 2961, 73 L.Ed.2d 1351 (1982) and determine whether the statement was maliciously written or published and tended “to blacken a person’s reputation or to expose him to public hatred, contempt, or ridicule, or to injure him in his business or profession.” (citations omitted). Corabi v. Curtis Publishing Company, 441 Pa. 432, 441, 273 A.2d 899, 904 (1971). The test to be applied in evaluating any statement is “the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Id., 441 Pa. at 447, 273 A.2d at 907. A critical factor in determining whether a communication is capable of defamatory meaning then is the nature of the audience hearing the remarks See, Beckman v. Dunn, 276 Pa.Super. 527, 419 A.2d 583 (1980). Finally, opinion without more does not create a cause of action in libel. Bogash v. Elkins, supra. Instead, the “allegedly libeled party must demonstrate that the communicated opinion may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.” Beckman v. Dunn, 276 Pa.Super. at 535, 419 A.2d at 587, citing Restatement (Second) Torts, Section 566 (1976).

Id. 516 Pa. at 296-297, 532 A.2d at 402. See also: Dougherty v. Boyertown Times, 377 Pa.Super. 462, 547 A.2d 778 (1988); Restatement (Second) of Torts § 614(1) (1977). “Statements of opinion without more are not actionable.” Malia v. Monchak, 116 Pa.Commw. 484, 496, 543 A.2d 184, 190 (1988), citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). See also: Dougherty v. Boyertown Times, supra, 377 Pa.Super. at 478, 547 A.2d at 785. Compare: Milkovich v. Lorain Journal Co., 497 U.S. —, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990).

In Dougherty v. Boyertown Times, supra, the Superior Court said:

Whether a particular statement constitutes a fact or an opinion is a question of law for the trial court to determine. Veno v. Meredith, 357 Pa.Super. 85, 92, 515 A.2d 571, 575 (1986) quoting Braig v. Field Communications, 310 Pa.Super. 569, 579, 456 A.2d 1366, 1372 (1983) cert. denied 466 U.S. 970, 104 S.Ct. 2341, 80 L.Ed.2d 816 (1984). In Braig this Court adopted Section 566 of the Restatement (Second) of Torts, supra, entitled Expression of Opinion, which provides as follows:
A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.
Comment (b) of § 566 explains the two types of expressions of opinion:
(1) The pure type—which “occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiffs conduct, qualifications or character.”
(2) The mixed type—which “while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication. Here the expression of opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant.”
Restatement (Second) of Torts, § 566, comment (b).

Id., 377 Pa.Super. at 476-477, 547 A.2d at 785. Comment (c) of § 566 of the Restatement explains further the distinction as follows:

A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is. But an expression of opinion that is not based on disclosed or assumed facts and therefore implies that there are undisclosed facts on which the opinion is based, is treated differently. The difference lies in the effect upon the recipient of the communication. In the first case, the communication itself indicates to him that there is no defamatory factual statement. In the second, it does not, and if the recipient draws the reasonable conclusion that the derogatory opinion expressed in the comment must have been based on undisclosed defamatory facts, the defendant is subject to liability.

After careful study, we are unable to ascribe a defamatory meaning to the Carpenter column. The language of the column recites that two board members were depicted as smiling after they had been found guilty of violating the Sunshine Law. This was clearly factual. To regret publication of the picture because the persons depicted were leaders of the community’s educational establishment is purely the opinion of the writer. So, too, is the implication that smiles under such circumstances had an even more unfortunate message than the portrayal of a hardened criminal who displays contempt for the law. The column, when carefully read, does not state, either expressly or by implication, that the school directors were hardened criminals or that they had committed heinous crimes. At most, it reflects the opinion of the writer that appellants’ smiles, under the circumstances, were more likely to cause unfortunate consequences than the smile of a hardened criminal who displayed his contempt for the law. Such a statement could possibly be “actionable only if it ‘may reasonably be understood to imply the existence of undisclosed defamatory facts justifying the opinion.’ Veno [v. Meredith], supra [357 Pa.Super. at 92], 515 A.2d at 575, quoting Beckman [v. Dunn], supra [276 Pa.Super. at 535], 419 A.2d at 587, citing Restatement (Second) of Torts, § 566.” Dougherty v. Boyertown Times, supra, 377 Pa.Super. 462, at 478, 547 A.2d at 785.

Here, however, all the facts upon which the author based his opinion were disclosed in the second paragraph of the column. There it was plainly stated that plaintiffs had been photographed while smiling after having attended a judicial hearing where it was determined that two of the three persons identified in the photograph had violated the Sunshine Law. The author thereafter did nothing more than contrast the decision to publish photographs of hardened criminals with the newspaper’s decision to publish the photograph of the plaintiffs. The reasonable reader, having access to the facts on which the comparison was based, could decide for himself or herself whether the facts supported the writer’s comparison. The reader, therefore, was provided with adequate facts to assess the validity of the opinion expressed by Paul Carpenter. Under these circumstances, the expression of opinion was not actionable.

We conclude, for these reasons, that the Carpenter column was not capable of a defamatory meaning and that the trial court was correct when it so held.

Affirmed.

      . On appeal to the Court of Common Pleas of Carbon County, the school board members were found not guilty.

      . It is readily apparent, however, that the comparison could not have referred to William Colgan, for he was found not guilty of violating any law.


author: CAVANAUGH, Judge:

text:
    587 A.2d 4
    COMMONWEALTH of Pennsylvania, Appellee, v. William BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 12, 1990.
    Filed Feb. 21, 1991.

      Chris R. Eyster, Asst. Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CAVANAUGH, POPOVICH and BROSKY, JJ.
   CAVANAUGH, Judge:

Appellant, William Brown, challenges his conviction and sentence for charges stemming from his possession of an illegal firearm. Mr Brown was charged on July 12, 1989 with violation of 18 Pa.C.S.A. § 6106 Firearm Not To Be Carried Without a License, and 18 Pa.C.S.A. § 908 Prohibited Offensive weapon. After a non-jury trial, appellant was convicted and sentenced to a term of imprisonment of not less than six to not more than sixty months. On appeal Mr. Brown asserts that 1) trial counsel was ineffective for failing to request witness sequestration, and 2) the sentencing court abused its discretion by imposing a maximum term equal to the statutory maximum. The second assertion is a matter of first impression in this court. For the reasons set forth below, we affirm.

Appellant asserts that trial counsel was ineffective for failing to request sequestration of potential witnesses. An essential element of appellant’s ineffectiveness of counsel is a showing that his counsel’s actions prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). This first claim is factually meritless.

Appellant claims that he is unable to show prejudice but that prejudice should be inferred in this case because the failure to request sequestration allowed the witnesses to conform their testimony. After reviewing the transcript we are convinced that it is not possible for appellant to show he was prejudiced by his trial counsel’s action. At trial appellant admitted to all the factual allegations set forth by the Commonwealth. His testimony was consistent to that of the Commonwealth’s witnesses in every material aspect. The only facts alleged by appellant inconsistent with the conviction are that he unwittingly received the weapon enclosed in a duffle bag while extremely drunk and after discovering the bags contents panicked upon seeing the police car and fled. As the trial court noted, this story is not consistent with the presence of the shotgun shell found in appellant’s jacket pocket. We see no reason to disturb the conviction.

Appellant next asserts that the trial court abused its discretion by imposing a sentence with a possible maximum incarceration period equal to the maximum allowed by statute. This is an appeal from the discretionary aspects of sentence. Initially we note that appellant has submitted a concise statement offering to set forth a substantial question as to the appropriateness of the sentence in compliance with Pa.R.A.P., Rule 2119(f) and Commonwealth v. Tulad ziecki, 513 Pa. 508, 522 A.2d 17 (1987). We find that a substantial question has not been raised.

Appellant’s concise statement setting out a “substantial question” consists of the following:

While the minimum sentence imposed is within the guideline’s [sic] standard range, the maximum sentence is the statutory maximum. There is no indication that such a severe sentence is necessary, and, the trial court, at sentencing and in its opinion, focuses on the minimum sentence without regard to the character and needs of appellant and the potential maximum sentence, all in violation of the sentencing code.

This statement does not set out a substantial question as to the appropriateness of the sentence. By their terms, the guidelines apply only to the minimum sentence imposed by the trial court. 42 Pa.C.S.A. § 9721. Appellant concedes that the six month minimum imposed is within the guidelines’ standard range. The maximum sentence imposed is within the legal maximum for first degree misdemeanors. 18 Pa.C.S.A. § 1104(a). We find that when the sentence is within the range prescribed by statute, a challenge to the maximum sentence imposed does not set forth a substantial question as to the appropriateness of the sentence under the guidelines. Therefore, we deny the petition for appeal and dismiss it.

Judgment of sentence affirmed.

      . Police, responding to a report of a man with a gun, observed appellant running from the general area carrying a duffle bag. Later, it was determined that the duffle contained a loaded sawed-off shotgun.

      . All guideline sentence ranges are months of minimun confinement as defined in 42 Pa.C.S.A. § 9755(b) and § 9756(b) (relating to partial and total confinement). 204 Pa.Code § 303.9(a).


text:
    587 A.2d 6
    COMMONWEALTH of Pennsylvania, Appellant, v. Darryl BROWN.
    Superior Court of Pennsylvania.
    Argued Oct. 18, 1990.
    Filed Feb. 20, 1991.

      Harriet R. Brumberg, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Malcolm W. Berkowitz, Philadelphia, for appellee.
    Before DEL SOLE, POPOVICH and BROSKY, JJ.
   POPOVICH, Judge:

The Commonwealth appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, following the conviction of Darryl Brown on charges of aggravated assault and possession of an instrument of crime. Herein, the Commonwealth questions, “Did double jeopardy principles prohibiting multiple punishment for the same offense prevent the lower court from applying the deadly weapon enhancement provision of the sentencing guidelines to defendant’s aggravated assault conviction?” The Commonwealth also questions, “Did the lower court erroneously apply the sentencing guidelines by not adding the deadly weapon enhancement provision and by miscalculating the offense gravity score for defendant’s aggravated assault conviction?” Upon review, we agree that the lower court erred at the time of sentencing, and we remand for resentencing in accordance with the provisions of this opinion.

The record reveals that on January 10, 1989, appellant stabbed his ex-girlfriend, Regina Hinton, ten times with a dry-wall saw. At the time of the attack, Ms. Hinton was seven months pregnant with appellant’s child. Appellant pleaded guilty to aggravated assault and possessing an instrument of crime. At the time of sentencing, the lower court equivocated as to whether the aggravated assault conviction carried an offense gravity score of “8” or “9”. Also, the sentencing judge refused to apply the deadly weapon enhancement of the sentencing guidelines, 204 Pa. Code § 303.4, reprinted following 42 Pa.C.S.A. § 9721. The judge reasoned that since appellant was sentenced separately for aggravated assault and possessing an instrument of crime, double jeopardy prohibited application of the enhancement. He also claimed that since appellant’s aggravated assault conviction was based, at least in part, on appellant’s use of a weapon, double jeopardy prohibited enhancement of the sentence. The lower court then sentenced Brown to 12 months less one day to 24 months less one day for the aggravated assault and a consecutive term of incarceration of 8 months to 16 months for possessing an instrument of crime. The Commonwealth objected to the sentence and filed a motion to reconsider the sentence which was denied. This appeal followed.

Initially, we find that the Commonwealth has raised a substantial question that the sentence' imposed was not appropriate under the Sentencing Guidelines, and, thus, we permit this appeal pursuant to 42 Pa.C.S.A., § 9781(b). See Commonwealth v. Pokorny, 360 Pa.Super. 384, 520 A.2d 511 (1987) (whether trial court erroneously failed to apply the deadly weapons enhancement of the sentencing guidelines is a substantial question); Commonwealth v. Septak, 359 Pa.Super. 375, 518 A.2d 1284 (1986) (sentencing court does not have discretion to disregard deadly weapon enhancement section of guidelines in determining the appropriate sentencing ranges); Commonwealth v. Johnakin, 348 Pa.Super. 432, 502 A.2d 620 (1985) (trial court’s failure to apply deadly weapon enhancement raises a substantial question as to propriety of sentence).

While we may affirm a sentence that is outside the guidelines provided it is reasonable, 42 Pa.C.S.A. § 9781(c)(3), it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them. Commonwealth v. Drumgoole, 341 Pa.Super. 468, 471, 491 A.2d 1352, 1355 (1987); Johnakin, 502 A.2d at 623. Instantly, we find that the lower court did not first correctly determine the appropriate sentence under the guidelines. Accordingly, we need not comment upon whether the reasons given by the trial court support its sentencing decision. Rather, we vacate the judgment of sentence and remand for resentencing. Johnakin, 502 A.2d at 623. If, upon remand, the court finds it appropriate to deviate from the proper sentencing range, it may do so by placing sufficient reasons on the record, subject to later review by this court. Pokorny, 520 A.2d at 513; Johnakin, 502 A.2d at 623.

Presently, it is clear that appellant’s conviction for aggravated assault (causes serious bodily injury), 18 Pa.C.S.A. § 2702(a)(1), carries a gravity offense score of “9”, not “8”. Thus, it is readily apparent that the trial court did not correctly determine the appropriate sentencing range for appellant.

It is also clear that application of the deadly weapon enhancement to appellant’s aggravated assault conviction does not violate the principles of double jeopardy. The Fifth Amendment guarantee against double jeopardy protects against, inter alia, multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664 (1969); Commonwealth v. Kirchner, 348 Pa.Super. 190, 193, 501 A.2d 1134, 1136 (1985); Commonwealth v. Walls, 303 Pa.Super. 284, 292-293, 449 A.2d 690, 694-695 (1982).

Instantly, applying the deadly weapon enhancement to appellant’s sentence does not constitute multiple punishment for the same offense. Rather, as the U.S. Supreme Court stated when commenting on the Pennsylvania Mandatory Sentencing Act, it merely “ups the ante” for appellant’s possession of a deadly weapon during the commission of the aggravated assault. Cf., McMillian v. Pennsylvania, 477 U.S. 79, 89, 106 S.Ct. 2411, 2417, 91 L.Ed.2d 67, 78 (1986) (Pennsylvania Mandatory Sentencing Act, 42 Pa.C. S.A. § 9712, which sets a statutory minimum sentence for employing a firearm during commission of the offense simply “ups the ante” and does not violate due process); Kirchner, 501 A.2d at 1136 (Mandatory Sentencing Act, 42 Pa.C.S.A. § 9712, does not create a separate crime, but merely a minimum sentence, and therefore does not violate double jeopardy proscription of successive prosecutions for same offense); United States v. Vigil, 818 F.2d 738, 742 (1987) (use of defendant’s prior felony record to convict him of ‘convicted felon not to possess firearm’ and to enhance his sentence under special offender statute did not violate double jeopardy); United States v. Doffin, 791 F.2d 118, 120 (1986) (where defendant was convicted of aggravated bank robbery which provides for an enhanced punishment if offense is committed with a weapon, one could also receive a mandatory punishment for use of a firearm during a violent crime without violating double jeopardy).

Simply stated, the deadly weapon enhancement section of the sentencing guidelines does not doubly punish appellant for possessing a weapon during commission of his crime. It is not a second punishment for the underlying offense. Cf., Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) (Mandatory Minimum Sentencing Act restricts the judge’s discretion but does not constitute a separate offense calling for a separate penalty). Rather, the deadly weapon enhancement merely increases the appropriate sentencing ranges without any increase in the maximum sentence possible. Commonwealth v. Williams, 353 Pa.Super. 207, 509 A.2d 409, 411-412 (1986) (204 Pa. Code § 303.4 is not a legislative definition of a crime but is a legislative determination of punishment to be imposed following certain convictions; it does not make the use of a weapon an element of the crime but serves only to define the minimum punishment to be imposed). Moreover, it is important to remember that a sentencing court may, at its discretion, impose a sentence below that suggested by enhanced guidelines ranges. Johnakin, 502 A.2d at 623.

In sum, application of the deadly weapon enhancement to appellant’s aggravated assault conviction does not violate double jeopardy protections. Therefore, the trial court erred by refusing to apply the enhancement to appellant’s sentence, and we must remand for resentencing. However, upon remand, the sentencing court may still sentence below the enhanced ranges, provided the court does so in a reasonable manner and expresses sufficient reasons for so doing. Johnakin, 502 A.2d at 623; 204 Pa.Code § 303.1(h).

Judgment of sentence vacated. Case remanded for resentencing in accordance with the provisions of this opinion.

DEL SOLE, J., files a dissenting statement.

DEL SOLE, Judge,

dissenting.

I would affirm the trial court’s sentence for the reasons stated in its opinion. The trial judge fashioned a sentence so the defendant received county time. This was important to insure continual psychiatric therapy. A review of the pre-sentence report supports this consideration. While I agree with the Majority that consideration of Weapon Enhancement is appropriate where the Aggravated Assault conviction is based upon 18 Pa.C.S.A. § 2702(a)(1), I do not believe that remand is necessary.

Enhancement only requires that the trial judge add to the Guideline range not that a specific additional period of incarceration be imposed. Here the Court sought to establish a specific sentencing objective, namely continuation of therapy. This is in keeping with the pre-sentence report recommendations. Also, the trial judge points out that the sentence has been enhanced by imposition of a consecutive sentence for the Possession of an Instrument of Crime conviction. It is important to remember that the instrumentality involved in the case, a dry wall saw, is not by nature an instrument of crime. It did not become one until it was used in the assault. I see no reason to remand for resentencing since the trial judge can impose the same sentence to achieve the result intended.

Since I believe that the sentence imposed by the trial court does not evidence any abuse of discretion and in fact has legitimate and proper reasons to support its imposition, I would affirm.

      . 18 Pa.C.S.A. § 2702(a)(1).

      . 18 Pa.C.S.A. § 907.

      . In its opinion, the lower court stated it fashioned the sentence so that it could be served on the county level which, in turn, would permit appellant to continue his psycho-therapy.

      . Instantly, the sentencing court, in anticipation of a finding of error on appeal, provided a statement of his reasons for sentencing outside the guidelines. See Opinion of Judge Albert W. Sheppard, Jr. However, such anticipatory action by the sentencing court does not eliminate the necessity of first determining the proper sentence under the guidelines. Johnakin, 502 A.2d at 623.

      . Moreover, a completed Pennsylvania Commission On Sentencing Guideline Sentence Form does not appear in the record. Thus, we must question whether the lower court ever determined the appropriate sentencing ranges before sentencing outside the guidelines. See 204 Pa.Code § 303.1(b).

      . It is important to distinguish the present case where the aggravated assault conviction is based upon "serious bodily injury”, 18 Pa.C.S.A. § 2702(a)(1), and a situation where the aggravated assault conviction is based upon an attempt to cause or causing bodily injury with a deadly weapon, 18 Pa.C.S.A. § 2702(a)(4). In the latter case, the deadly weapon enhancement, 204 Pa.Code § 303.4(b) specifically provides that it does not apply.

      . In closing, we will briefly comment upon appellant’s sentence. Applying the sentencing guidelines, the correct gravity offense score for appellant’s aggravated assault conviction is "9”. 204 Pa.Code § 303.8. His prior record score is "0”. 204 Pa.Code § 303.7. After adding on the deadly weapon enhancement, the correct ranges for appellant’s sentence for aggravated assault are: Mitigated Range, 39 months to 60 months, Standard Range, 48 months to 84 months, and Aggravated Range, 72 months to 99 months.
      Appellant's sentence of 12 months less one day to 24 months less one day for the aggravated assault is over two years less than even the mitigated range of the guidelines suggest. Even if we consider appellant’s aggregate sentence of 18 months less one day to 40 months less one day, it is still almost two years less than the suggested sentence (mitigated range) for the aggravated assault alone.
      In choosing among the various sentencing alternatives, the lower court appears to have focused solely on the needs of Brown to the exclusion of other sentencing factors, including the gravity of the offense and its impact upon the victim. The sentence appears unreasonably lenient for the brutal stabbing. See Septak, 518 A.2d at 1288; Commonwealth v. Mattis, 352 Pa.Super. 144, 507 A.2d 423 (1986).