author: MONTEMURO, Judge:

text:
    515 A.2d 303
    Harry SMITH and Nancy Smith, Appellants, v. CITY OF CHESTER and Delaware County Regional Water Quality Control Authority, Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 12, 1986.
    Filed July 30, 1986.
    Reargument Denied Sept. 30, 1986.

      Lawrence D. Finney, Philadelphia, for appellants.
    Nicholas S. Lippincott, Elliotsburg, for appellees.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   MONTEMURO, Judge:

The instant appeal is taken from judgment entered on June 6, 1985 by the Delaware County Court of Common Pleas pursuant to the trial court’s order denying appellants’ motion for a new trial.

Appellant, Harry Smith, was injured while working for Union Paving Company, which had been hired by appellee, the City of Chester, to resurface Mowry Road in Chester County. Appellant’s specific job was to follow behind the asphalt rollers and pour hot tar along seams in the newly compressed blacktop. While pouring the tar, appellant stepped on a metal sewer grate which gave way causing him to fall groin high into the sewer inlet. The motion of the fall caused hot tar to fall upon appellant resulting in second and third degree burns. A jury trial was held in June of 1984, at the end of which the jury returned a verdict for appellee. Appellant filed a motion for new trial which was denied. This appeal followed.

The sole issue raised on appeal is whether the trial court erred in refusing to give a res ipsa loquitor jury instruction. In Gilbert v. Korvette Inc., 457 Pa. 602, 327 A.2d 94 (1974), our supreme court adopted the res ipsa loquitor doctrine as provided in Section 328 D of the Restatement (Second) of Torts. This section states:

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

This doctrine is not a substantive rule of law nor a procedural rule but is merely evidentiary in nature. The rationale behind this doctrine is to aid plaintiffs in making a prima facie case of negligence against defendants by allowing an inference of negligence to be deduced from competent evidence on the theory that in the course of ordinary events, the injury or damage complained of would not have occurred in absence of negligence.

It is well settled that all three of the elements set out in section 328 D(l) must be satisfied before an inference of negligence can be drawn from an injurious event. Lanza v. Poretti, 537 F.Supp. 777 (1982). In the case sub judice, the trial court held that appellant failed to fulfill the requirement of section 328 D(l)(b), supra, in that appellant’s evidence failed to sufficiently eliminate other responsible causes. The trial court stated that appellant’s evidence presented at trial did not eliminate his own contributory negligence as a cause of the accident. We find the record belies the trial court’s finding. Appellant testified that he looked at the grate prior to stepping on it and that “it looked normal”. N.T. June 26, 1984 at 41. Appellant’s co-worker, Garland Claybourne, who observed the sewer grate just prior to appellant’s accident, testified that the grate appeared to be fine and that he did not see any breaks along the slats of the grate. Id. at 13. Although appellant presented evidence from an expert witness, Dr. David Pope, a metallurgist, who testified that appellant’s weight alone could not have broken the grate and that “it was broken prior to the time that [appellant] stepped on it,” there was no evidence presented which would lead one to believe that appellant was on notice that the sewer grate was broken prior to his stepping on it. Id. at 124, 128. In fact, all the evidence was to the contrary. Appellant and Claybourne were the only witnesses called who were able to testify as to the condition of the grate prior to the accident. Both stated that the grate appeared ordinary and safe. We find that appellant has sufficiently eliminated his own conduct as possibly being a responsible cause of this accident.

The trial court also found that appellant had not sufficiently eliminated his employer, Union Paving Company, as a responsible cause of this accident. It is alleged that the eight (8) ton roller that appellant followed, as the crew resurfaced the road, had rolled over the sewer grate and broken it just prior to his stepping on it.

It is not necessary that appellant exclude all other possible causes of the accident beyond a reasonable doubt. All that is required is that appellant present a case from which a jury may reasonably conclude that the negligence was, more probably than not, that of the defendant. Restatement (Second) of Torts § 328 D comment f. We find from our review of the record that appellant has met the threshold requirements of section 328 D(l)(b) in that the jury could reasonably conclude that it was more likely than not that appellant’s injuries were the result of appellee’s negligence. Lanza v. Poretti, supra. There was substantial evidence presented at trial that, if found credible, would eliminate appellant’s employer as a possible cause of the accident. At trial, appellant produced several witnesses who testified to the fact that, not only did the rollers miss running over the sewer grate, but that it would have been impossible for them to have done so. A field inspector from an engineering firm, Frank Yerratti, a man with fifty (50) years experience in all aspects of road paving, testified for appellant that because the grate was angled down in a depression for drainage purposes, the “roller would come straight across and it wouldn’t touch that grate.” N.T. June 26,1984 at 29-30. Garland Claybourne, an eyewitness to the accident, who had fourteen (14) years road paving experience, testified that he had personal knowledge of the fact that rollers had not gone over the grate in question and that the inlet around the grate had been “hand tamped”, a procedure that would only be done in an area which the roller could not reach. Id. at 17, 19.

The two roller operators working on the resurfacing crew on the day of the accident, Richard Armstrong and George Miller, both testified that they had not rolled over the sewer grate and that it would have been impossible to do so because the sewer sat in a depression. Id. at 37, 89-91. Appellee’s expert witness, David Hoenig, a civil engineer, was unable to testify conclusively that the sewer grate broke due to the impact of Union Paving’s rollers. Mr. Hoenig testified that the rungs of the sewer grate were weakened by hairline fractures caused by repeated impacts from trucks and cars. N.T. June 28, 1984 at 74-75. Mr. Hoenig went on to testify that although he believed that the roller had crossed over a particular side of the grate, he admitted that this was not the side of the grate that had been broken. On cross-examination, Mr. Hoenig testified that he believed the broken half of the grate went untouched by the rollers. Id. at 78-79.

We find from the evidence presented at trial that the jury could reasonably conclude that the accident was “more probably than not” caused by the negligence of the appellee. See Lanza v. Poretti, supra. As appellant’s evidence has sufficiently fulfilled the three conditions of section 328 D(l), we find appellant has met the factual threshold required to receive a res ipsa loquitor charge.

The trial court further contends that appellant is not entitled to an instruction to the jury on res ipsa loquitor due to appellant’s presentation of specific evidence of appellee’s negligence. While it is true that a res ipsa loquitor instruction is not warranted in the face of clear and indubitable proof of negligence, it is also true that a res ipsa loquitor charge is appropriate where the facts of a case lie somewhere in a grey zone “between the case in which the plaintiff brings in no evidence of specific acts of negligence, and therefore must rely on the res ipsa loquitor inference alone, and the case in which the defendant’s negligence ‘can be clearly and indubitably ascertained’ from the plaintiff’s evidence, Farley v. Philadelphia Traction Company, 132 Pa. 58, 18 A. 1090 (1890), and therefore the plaintiff need not rely on the res ipsa loquitor inference at all.” Hollywood Shop, Inc. v. Pa. Gas & Water Co., 270 Pa.Super. 245, 252-53, 411 A.2d 509, 513 (1979).

In Hollywood Shop, Inc., a shop owner’s property was damaged as a result of a water main break. At trial, plaintiff’s expert witness, a civil engineer, testified that the water main break could not have occurred if the main had been properly installed, maintained and inspected. The witness further testified that the main broke due to corrosion caused by electrolysis. The witness went on to opine that the fact that this main was in constant use for numerous years was inconsistent with good industry practice. The trial judge in Hollywood instructed the jury that if they believed the testimony of the expert witness about the corrosion of the main, then they could find the defendant negligent. Plaintiff’s request for a res ipsa loquitur instruction was denied by the trial judge. Plaintiff filed a motion for a new trial, on the res ipsa loquitur issue, which was granted by the lower court sitting en banc. Our court affirmed the order holding that a plaintiff is entitled to a res ipsa loquitur instruction in a case where the plaintiff can present some direct evidence of negligence, but cannot, beyond a doubt, pinpoint the exact cause of the accident.

Our court in Hollywood Shop, Inc. relied on Weigand v. Pennsylvania Railroad Company, 267 F.2d 281 (3d Cir. 1959). The plaintiff in Weigand, when walking toward a train, stepped between two railroad tracks. The ground between the tracks gave way and plaintiff fell into a six-foot hole injuring himself. Although plaintiff was proceeding under a res ipsa loquitur theory, he also produced evidence at trial to offer an explanation as to why this accident occurred. In light of the pertinent expert testimony, the trial court denied plaintiffs request for a res ipsa loquitur charge. The circuit court, reversing the district court, stated:

[W]e have before us not only a res ipsa claim but one capable of some specific proof regarding the railroad’s alleged negligence. In these peculiar circumstances to force the plaintiff to abandon one of his theories is not only illogical but unfair.

Id. at 284.

In the instant case, appellant’s expert witness, Dr. Pope, testified as to the condition of the metal sewer grate. Dr. Pope stated that the grate was corroded and excessively porous, and thus weaker than it should have been. N.T. June 27, 1984, at 121. Dr. Pope also testified that this condition was visible to the naked eye and had been present for quite a while. Id. at 123. Dr. Pope further testified that there was no evidence of porosity, visible or microscopic, in the portion of grate which collapsed under appellant’s weight. Id. at 125. When asked if he knew what caused the sewer grate to break, Dr. Pope replied, “No, I don’t.” Id. at 124.

We find appellant’s evidence inconclusive and not determinative as to the cause of the accident. Appellant presented as specific a case of negligence as possible, yet was unable to demonstrate the exact cause of the accident. We find the evidence in this case falls within the grey zone, a factual realm which allows for a res ipsa loquitur charge. Hollywood Shop, Inc., supra. We see no reason to deprive appellant of this inference of negligence because he attempted to prove, by direct evidence, as much as possible; therefore, we reverse the judgment of the trial court and remand for a new trial.

We reverse the judgment entered in the court below and remand for a new trial. Jurisdiction is relinquished.

      . Appellees presented absolutely no evidence as to appellant’s contributory negligence, nor do they argue this issue in their brief.

      . There was no mention made in the trial court’s opinion as to the court's findings of credibility.

      . It is undisputed that under the facts of this case, the requirements of section 328 D(l)(a) and 328 D(l)(c) are fulfilled.

      . Plaintiff called an engineer to testify as to the drainage conditions in the area of the accident.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    515 A.2d 307
    COMMONWEALTH of Pennsylvania v. Robert BALL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 27, 1986.
    Filed Aug. 8, 1986.
    Reargument Denied Sept. 30, 1986.

      Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   JOHNSON, Judge:

A jury found Robert J. Ball, Appellant, guilty of burglary, terroristic threats, and intimidation of witnesses or victims. Post-verdict motions were denied and, on July 31, 1985, the Honorable Samuel J. Strauss sentenced Appellant to a term of three and one-half to ten years’ imprisonment on the burglary conviction, and five years’ probation, to run consecutively, on the intimidation conviction.

Appellant filed a pro se direct appeal and the Office of the Public Defender was appointed to pursue the appeal. Only two issues are presented for our review:

1. Should Appellant have been granted a new trial based upon alleged after-acquired evidence?
2. Was trial counsel ineffective by failing to call certain witnesses at trial?

Finding no merit in either issue, we affirm.

Regarding the first issue, our distinguished colleague, the Honorable Phyllis W. Beck, has recently restated the well-settled rule in this Commonwealth regarding after-discovered evidence:

The legal standard to be applied is well-settled. A new trial will be awarded on the basis of after-discovered evidence only if the evidence in question:
(1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence; (2) is not merely corroborative or cumulative; (3) will not be used solely for impeaching credibility of a witness; and (4) is of such nature and character that a different verdict will likely result if a new trial is granted.

Commonwealth v. Myer, 340 Pa.Super. 176, 186, 489 A.2d 900, 904-05, (1985) (citations omitted). We need look only to the third of the four, conjunctive requirements. The proffered evidence may not be used solely for impeaching credibility of a witness.

The Public Defender seeks to suggest that the evidence found “went not only to the credibility of the Commonwealth’s chief witnesses, but would specifically negate factual contentions.” Brief for Appellant at 7. However, both the Motion for New Trial and the Concise Statement of Matters Complained of on Appeal refer only to the contradicting value of the evidence discovered after trial. The post-verdict motion contends that “[t]he overwhelming impeachment value of this evidence is obvious.”

Appellant’s counsel clearly misstates the proposition of law set forth in Commonwealth v. Valderrama, 479 Pa. 500, 388 A.2d 1042 (1978), the only case offered in support of its contention that a new trial is mandated where testimony would specifically negate factual contentions. Brief for Appellant at 9. The most that Valderrama can be cited for is the proposition that evidence which explains the incomplete nature of governmental records introduced into a case, without contradicting those records, may form the basis for the grant of a new trial, where the other three prerequisites are also met.

The first issue is utterly devoid of merit because of appellant’s failure to show that evidence will not be used solely for impeachment.

As to the alleged ineffectiveness of trial counsel, Appellant presents two separate contentions. First, it is suggested that if we cannot find that the proffered evidence qualifies as after-discovered evidence, we are urged to find that trial counsel was ineffective for failing to discover the witness, Albert Smolensky, owner of the property, prior to trial. Although the Commonwealth inexplicably “concedes that the court should remand for an evidentiary hearing,” Brief for Appellee at 9, we decline this invitation.

An evidentiary hearing was held on April 15, 1985 at which the after-discovered witness testified. There is no dispute that the witness, Smolensky, would have testified, if called at trial that he inspected the property on or about May 14, 1983, a month before the burglary, and found the rear door had been broken open, the front door had been kicked in and a panel from the door had been knocked out.

In determining whether trial counsel was ineffective we must first consider whether there is arguable merit to the claim. Trial counsel will not be deemed ineffective for failure to raise a frivolous issue or to advance a baseless claim. If we determine the claim has arguable merit, we must then decide whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate appellant’s best interests. Finally, should we find arguable merit, and should we find no reasonable basis calculated to effectuate appellant’s best interests, before we may grant appellant relief, we must also find appellant was prejudiced by the action taken.

Commonwealth v. Walker, 348 Pa.Super. 207, 210-11, 501 A.2d 1143, 1145 (1985) (citations omitted).

On the facts before us, we are unable to find arguable merit in the claim. The complaining witness testified that when he returned to his house one evening at 10:30 p.m., he noticed the kitchen light was on. Upon entering, he discovered two men, one of whom was Appellant, unloading the contents of his freezer into a plastic garbage bag. The complainant told the men to leave and they complied. He testified that the lock on the door had been in good condition when he left the house some thirty minutes earlier, and that the door was pushed in by the lock having been broken.

In this prosecution for burglary, we fail to see how the condition of the outside door leading into the kitchen is either relevant or admissible. The complainant testified to having returned home where he discovered two persons had entered his home and were emptying the contents of his freezer into a plastic utility bag. The defendant had entered the occupied structure with the intent to steal the meat from the freezer. The premises, a private dwelling, were not open to the public nor was the defendant privileged to enter. The complainant did not even know Appellant before accosting him in the kitchen. The essential elements of burglary were thus established. 18 Pa.C.S. § 3502.

While it is true that gaining entry by force or breaking can be an essential element of the crime of criminal trespass, see 18 Pa.C.S. § 3503(a) Buildings and occupied structures.—, it is not an element of burglary.

We recognize that one Kathy Remo, the sister of Appellant’s co-defendant, who lived next door to the scene of the burglary was called as a defense witness, at trial, and testified that she had entered the complainant’s residence “a couple of times.” She testified that she had observed the locking mechanism on the back door and it was broken. Her testimony was that her observations took place before the burglary on June 18, 1983. She did not testify to, nor was she asked about, the length of time between the date(s) of her observations and the day on which the burglary occurred. N.T., 11/14/84 at 119-20.

Although Appellant in his brief argues earnestly that the similar testimony of Albert Smolensky concerning the condition of the doors would have “overwhelming impeachment value”, nowhere does Appellant assist us in understanding how the condition of the door has any relevancy on this particular burglary conviction. Whether the lock was in good condition or broken is simply not relevant to prove the matters at issue in this case.

Even if we were to assume relevancy with respect to Smolensky’s testimony, perhaps on a theory that the defendant should be permitted to impeach irrelevant Commonwealth evidence, it would remain inadmissible. If the condition of the door is in issue, evidence of its condition at a prior time is admissible if accompanied by proof that its condition has not changed in the meantime. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 348, 180 A.2d 414, 418 (1962); Rubinstein v. J.E. Kunkle Co., 244 Pa.Super. 474, 480, 368 A.2d 819, 822 (1976). Although Smolensky would testify to the condition of the residence doors on May 14, 1983, more than a month before the robbery, there is no suggestion that he was, or would be, prepared to submit testimony that the condition of the doors did not change in the thirty-five days leading up to the robbery.

We find no merit in the claim that Smolensky’s testimony would have aided the defendant. We refuse to remand for a second evidentiary hearing to consider trial counsel’s effectiveness, or lack thereof, in not contacting the owner as a potential condition witness before the commencement of trial.

Finally, Appellant includes in his Brief the allegation that there was another witness, Mr. Tom Gill, whom he requested trial counsel to subpoena. According to the Brief, Gill would testify that the complainant had a grudge against Appellant because of an assault by complainant upon Appellant’s fiancee. We have thoroughly searched the record, including the Motion for New Trial and the Concise Statement of Matters Complained of on Appeal. There is no reference to this alleged witness other than in Appellant’s Brief.

We are guided by well-settled principles in this area, as recently pronounced by our supreme court:

We have often stated that as appellate tribunals, we are bound to resolve only those issues properly preserved for our review____ Issues not preserved for appellate review cannot be considered by an appellate court even though the alleged error involves a basic or fundamental error. Additionally, in resolving those issues properly before us, we may only look to the record prepared in the trial court. Alleging facts in a brief which a trial court has not passed on has been specifically condemned, and we continue to view such practice as improper.
Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 214-15, 489 A.2d 1291, 1296 (1985) (citations omitted) (footnote omitted); Accord: McFarlane v. Hickman, 342 Pa.Super. 240, 244, n. 1, 492 A.2d 740, 742, n. 1 (1985).

In summary, we conclude that Appellant was not entitled to a new trial based upon alleged after-discovered evidence, because the evidence would have been used solely for impeaching the credibility of the Commonwealth’s chief witness. Trial counsel was not ineffective in having failed to discover a witness whose testimony would have been both irrelevant and inadmissible. We will not consider information located only in a party’s brief.

Judgment of sentence is affirmed.

      . Filed by Lawrence Kustra, trial counsel, on November 26, 1984.

      . Filed by the Office of the Public Defender, appellate counsel, on October 3, 1985.


author: BECK, Judge: WIEAND, Judge,

text:
    515 A.2d 311
    COMMONWEALTH of Pennsylvania v. Julia CARDWELL, Appellant.
    Superior Court of Pennsylvania.
    Argued May 30, 1986.
    Filed Sept. 18, 1986.

      Ralph D. Samuel, Philadelphia, for appellant.
    Vincent W. Furlong, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, BECK and JOHNSON, JJ.
   BECK, Judge:

This is an appeal from a denial by the court of common pleas of a writ of certiorari to the municipal court, which had convicted appellant Julia Cardwell of violating 18 Pa.C. S.A. § 4304, endangering the welfare of a child.

We are called upon to decide whether the evidence supports proof beyond a reasonable doubt of the intent element of this offense when the appellant, the child’s mother, took only inconsistent and ineffectual steps to protect her child from another’s severe abuse.

During the relevant time period, appellant Julia Cardwell (Julia) lived in a house in Philadelphia in a family unit with her daughter Alicia and her husband Clyde Cardwell (Clyde), Alicia’s stepfather. For at least four years, beginning approximately in 1979, Clyde engaged in a pattern of sexual abuse of his stepdaughter Alicia. When Alicia was “about eleven” years old, Clyde began to buy her sexually stimulating clothing. He then began to photograph the child while clothed and in sexually explicit positions. Later, these photographic sessions included taking of photographs of Alicia either totally nude or wearing only stockings and garter belts. It was Clyde’s habit to write sexually suggestive notes to Alicia on an almost daily basis.

Alicia testified that Clyde had vaginal intercourse with her on four occasions and on one occasion had attempted anal intercourse. Alicia became pregnant by Clyde twice in 1983 and had abortions both times, the second abortion occurring on October 18, 1983. There was also testimony that Clyde had sex with the child with the use of a vibrator. The last instance of intercourse occurred in 1984.

Alicia testified that she did not tell anyone about any of the sexual abuse until she told her mother after the second abortion. On cross-examination, Alicia admitted that at first she “played a sort of guessing game with [her mother]” and that it was not until some time in November, 1983, that Julia clearly understood that Clyde had been abusing Alicia.

Julia wrote two lengthy letters to Clyde in January and February of 1984, indicating her full knowledge of this abhorrent situation and warning him vaguely that she would not tolerate it. We note that Alicia testified that she and Julia were afraid of Clyde, that Clyde beat up Julia on one occasion, that he threw and broke things in the house, that he had punched a number of holes in the walls of the house, and that he carried a ,.357 magnum pistol, which he kept on the mantelpiece. In February of 1984 Julia moved some of her and Alicia’s clothes to her mother’s (Alicia’s grandmother’s) house. However, both Julia and Alicia remained at home with Clyde. In March 1984 Julia applied for a transfer of Alicia from her school to a school closer to Julia’s mother’s house. In April 1984, however, Julia’s mother’s house was demolished by fire, causing the death of Julia's father. The record reveals Julia took no further steps to relieve the situation until Alicia ran away from home on September 14, 1984.

On October 2, 1984, a criminal complaint was sworn against Julia Cardwell, listing Alicia as complainant and charging Julia with violating 18 Pa.C.S.A. § 4304, stating that she: “as parent supervising [Alicia] ... knowingly endangered the welfare of said child by violating a duty of care, protection, and/or support, to wit: defendant was aware that Clyde Cardwell was having sex with complainant and taking polaroid pictures of complainant in various sexually explicit positions without reporting this to authorities ____”

Julia was tried and convicted in a bench trial in Municipal Court of Philadelphia. She was sentenced to one-year probation and appealed the judgment of sentence to Common Pleas Court by filing a petition for a writ of certiorari. Judge Ned L. Hirsh of the Philadelphia Court of Common Pleas denied the writ of certiorari on August 13,1985. This appeal of the order denying the writ of certiorari followed. On appeal, appellant challenges the sufficiency both of the complaint and of the evidence.

We reject appellant’s allegation that the complaint was defective. On review of the briefs, the record, and Judge Hirsh’s opinion filed January 14, 1986, we find that the complaint was sufficient under Pa.R.Crim.P. 132. As to this issue we affirm on the basis of Judge Hirsh’s opinion.

Appellant’s challenge to the sufficiency of the evidence is that the evidence adduced at trial was insufficient to prove beyond a reasonable doubt the intent element of the offense of endangering the welfare of a child. This challenge is in two parts. The first part concerns the intent required by the statute defining the offense and is a matter of statutory interpretation.

18 Pa.C.S.A. § 4304, Endangering the Welfare of Children, provides:

A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

Appellant alleges that this statute requires a “knowing act” of endangering the welfare of a child, and appellant implies that an omission to act cannot satisfy the statute. We do not agree. The crime of endangering the welfare of a child is a specific intent offense. The intent element required by § 4303 is a knowing violation of a duty of care. We must, therefore, interpret when an accused knowingly violates his or her duty of care.

To determine whether a defendant acts knowingly, we look to the section of the Crimes Code that defines kinds of culpability, 18 Pa.C.S.A. § 302(b), which provides, in relevant part:

(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

We interpret “nature of his conduct” to mean overall conduct, including omissions to act as well as acts. If a violation of a duty of care can include an omission, then, a person can act “knowingly” in omitting to act with respect to that duty.

This court previously discussed the issue of a parent’s duty of care in the context of a challenge to the sufficiency of evidence on a conviction for involuntary manslaughter. In Commonwealth v. Howard, 265 Pa.Super. 535, 402 A.2d 674 (1979), we upheld the conviction of a mother who failed to protect her child from the physical abuse of the mother’s boyfriend, who lived with them. We said in Howard:

an omission to act may create criminal culpability under our Crimes Code even though the law defining the offense, as here, requires an “act,” where “a duty to perform the omitted act is otherwise imposed by law.” 18 Pa.C.S.A. § 301(b)(2). Here, appellant and the victim stood in the relation of parent and child. A parent had the legal duty to protect her child, and the discharge of this duty requires affirmative performance.

Id., 265 Pa.Superior Ct. at 538, 402 A.2d at 676. In a footnote, the court added: “When a parent sees her helpless child being beaten and abused over a period of time, she is not permitted to sit back and wait until the child is in obvious need of medical attention before acting—the duty is to prevent the harm.” Id., 265 Pa.Superior Ct. at 538 n. 3, 402 A.2d at 676 n. 3.

Although the charge in Howard was involuntary manslaughter, which requires “reckless or grossly negligent” behavior, rather than the instant charge, which requires “knowing” violation of a duty of care, we find the case instructive. Where there is a duty of care and where there is sufficient evidence that the parent knows that action is required to fulfill his or her parental duty, then a failure to act may be a knowing failure in the parent’s duty of care.

Further guidance is provided in this court’s opinion in Commonwealth v. Barnhart, 345 Pa.Super. 10, 497 A.2d 616 (1985). In Barnhart the court stated:

Section 4304 speaks of a “duty of care.” The Crimes Code nowhere defines this duty. The Commonwealth, in response to appellants’ request for “the specific law which imposes the duty of care which is alleged to have been violated by the Defendants,” stated:
The duty to render care for one’s child arises out of the relationship of parent and child. The right to receive medical care is one created by natural law, attributable to the nature of mankind rather than to enactments of law. Various statutes of the Commonwealth of Pennsylvania impliedly recognize this natural right and corresponding duty by providing for remedies to ensure the welfare of children whose parents fail to provide reasonable medical care necessary for the child’s health.
Although the Commonwealth failed to elaborate, ample authority exists for its proposition. A parent is charged with the duty of care and control, subsistence and education necessary for the child’s physical, mental and emotional health and morals.

Id., 345 Pa.Superior Ct. at 18, 497 A.2d at 620-21 (footnote omitted).

Moreover, the 1972 Official Comment to 18 Pa.C.S.A. § 4304 states, in part:

This section consolidates and simplifies the various provisions concerning crimes endangering the welfare of children. The offense involves the endangering of the physical or moral welfare of a child by an act or omission in violation of legal duty even though such legal duty does not itself carry a criminal sanction.

(Purdon’s 1986) (emphasis added). This comment was quoted with approval by this court in Commonwealth v. Taylor, 324 Pa.Super. 420, 425, 471 A.2d 1228, 1230 (1984). In Taylor, we noted that “[t]he [Pennsylvania] Supreme Court has said that Section 4304 was drawn broadly to cover a wide range of conduct in order to safeguard the welfare and security of children. It is to be given meaning by reference to the common sense of the community and the broad protective purpose for which it was enacted. Commonwealth v. Mack, 467 Pa. 613, 618, 359 A.2d 770, 772 (1976).” Taylor, 324 Pa.Super. at 426-27, 471 A.2d at 1231.

In three previous casés, this court has upheld convictions for violating 18 Pa.C.S.A. § 4304 based upon an act of omission. In Barnhart, supra, the defendants were convicted of violating § 4304 when their child died of cancer after defendants failed, for religious reasons, to seek medical treatment for the child. Also, in Commonwealth v. Morrison, 265 Pa.Super. 363, 401 A.2d 1348 (1979), and Commonwealth v. Humphreys, 267 Pa.Super. 318, 406 A.2d 1060 (1979), convictions for violating § 4304 were based on failure to obtain medical treatment.

Appellant’s brief suggests that we must negate intent because Julia did “something.” Therefore, the question is raised whether acts which are so feeble as to be ineffectual can negate intent. We find they cannot, and reject that argument. The affirmative performance required by § 4304 cannot be met simply by showing any step at all toward preventing harm, however incomplete or ineffectual. An act which will negate intent is not necessarily one which will provide a successful outcome. However, the person charged with the duty of care is required to take steps that are reasonably calculated to achieve success. Otherwise, the meaning of “duty of care” is eviscerated.

We conclude that a parent’s duty to protect his or her child requires affirmative performance to prevent harm and that failure to act may mean that the parent “knowingly endangers the welfare of the child.” 18 Pa.C.S.A. § 4304.

We hold that evidence is sufficient to prove the intent element of the offense of endangering the welfare of a child, 18 Pa.C.S.A. § 4304, when the accused is aware of his or her duty to protect the child; is aware that the child is in circumstances that threaten the child’s physical or psychological welfare; and has either failed to act or has taken actions so lame or meager that such actions cannot reasonably be expected to be effective to protect the child’s physical or psychological welfare.

Having established the quantum of intent required, we next address the second part of appellant’s challenge to the sufficiency of the evidence, which is that the prosecution did not prove the required intent beyond a reasonable doubt. The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. The trier of fact, while passing on the credibility of the witnesses and the weight to be afforded the evidence produced, is free to believe all, part, or none of the evidence. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Griscavage, 336 Pa.Super. 141, 485 A.2d 470 (1984). Appellant’s challenge goes only to the element of intent.

In the case sub judice, approximately ten months elapsed from the date appellant Julia Cardwell learned that her daughter Alicia was being sexually abused by Clyde Card-well to the date Alicia ran away from home to escape the intolerable situation. In those ten months, Julia’s only actions directed at protecting her daughter consisted of: writing two letters to Clyde that did little more than express her knowledge of and anger at his abuse of Alicia; applying for Alicia to transfer schools; and moving some of her and Alicia’s clothing to Julia’s mother’s house. We note that the remedy of moving to Julia’s mother’s house was tragically frustrated by the destruction by fire of that house in May 1984, but the fact remains that Julia took no further steps to relieve her daughter’s desperate situation in the four months that ensued from May 1984 until Alicia ran away from home in September 1984.

Alicia testified at trial to Julia’s knowledge of her horrendous predicament. She testified that she talked to her mother “maybe once or twice a week” throughout the summer of 1984, giving Julia whatever pictures or notes Alicia had gotten from Clyde. Alicia testified that her mother said “she was trying her best to get us out of there,” but that Julia took no concrete steps to do so. Alicia also read into evidence the two 3-page letters Julia wrote to Clyde. The first letter, dated January 3,1984, was Commonwealth Exhibit C-l and reads in part:

Reading page one of the notes I have gathered from Licia, you can see how she feels____ She blames you for a lot of the things you have done to her. I know who Licia was pregnant by both times. You.
... [A]ll you’re doing is making a nervous wreck out of my child, and I think that the only way I can get my child’s sanity together is by leaving you, and, of course, taking her with me.

The second letter, dated February 27, 1984, was Commonwealth Exhibit C-2 and reads in part:

It’s not me that you want, it’s my child____
I am to blame also because when I found out I was too shocked and numb for it, really, to sink in.
... When Licia had these two abortions, did you care? F no. The day after you were talking about taking pictures with garter belts and stockings____ When Licia hurts, I hurt, and I am not going to subject her to any more of your bull____
My child is going to have a nervous breakdown because of you____
[Y]ou engaged in sex with my child. And if you think I’m going to stay in [the house] with you, you’re crazy as a loon____
My lawyer told me to take [you] to court if you do not support Licia. We think that’s fair, since you think it’s okay to F your stepchild.

This evidence clearly shows that Julia Cardwell was aware of these facts: the circumstances in which Alicia was being abused; that those circumstances endangered the welfare of the child; that Julia owed a duty of care and protection to Alicia; that one remedy Julia had was to remove Alicia from the house in which Clyde resided; and that Julia’s ineffectiveness in removing Alicia from the house (or otherwise protecting her) meant that Alicia’s welfare continued to be endangered. This awareness is sufficient to establish intent beyond a reasonable doubt. Julia’s challenge to the sufficiency of proof of the intent element of her offense therefore fails.

Hence, we find that the evidence shows beyond a reasonable doubt that Julia knowingly endangered the welfare of the child by violating a duty of care, protection or support. Thus, the court of common pleas did not err in concluding that the facts adduced at trial in municipal court were sufficient to prove beyond a reasonable doubt that Julia Cardwell violated 18 Pa.C.S.A. § 4304. The Court of Common Pleas therefore properly denied the petition for a writ of certiorari.

Order affirmed.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

Although I join the majority’s decision to affirm, it may not be amiss to suggest that the holding of the majority’s decision must be confined to a great extent to its own facts. The facts in this case are disturbing. They suggest that Julia Cardwell knew that her minor daughter had twice been impregnated by her stepfather, Julia’s husband, and that the child had been sexually abused by her stepfather repeatedly over a period of at least four years. Nevertheless, Julia failed to take any significant steps to protect her child from continued abuse. Although Julia’s real choices in view of her not unreasonable fear of her husband were limited and difficult—she could report her husband to the authorities, she could take her daughter and leave the marital home, or she could send her daughter away—she unquestionably endangered her daughter’s welfare by doing nothing to prevent the child’s continued abuse at the hands of the child’s stepfather.

It does not follow from the holding in this case that a parent will be made a criminal merely because he or she has been unsuccessful in preventing the abuse of a child by the parent's spouse. The criminal law should not be allowed to reach out in response to public outcry against child abuse and criminalize a parent who in good faith has attempted but has failed to confront successfully the terrible dilemma of being required to live in a family relationship with both an abused child and the abuser.

      . Alicia’s testimony is vague as to dates. She testified at trial on January 14, 1985, that she was presently 16 years old. She also testified, however, that the sexual abuse began in 1977 when she was "about eleven” years old. These dates and ages are inconsistent. We assume that the events testified to began within a year or two of the year Alicia turned 11, which would have been 1979.

      . As we explain, infra, evidence of intent can be derived from omission or from acts so feeble as to be ineffectual.

      . As in Barnhart, supra,• the legal duty in the instant case arises out of the relationship of parent and child.


author: ROWLEY, Judge:

text:
    515 A.2d 317
    John A. FEHER, Jr., a minor, by John A. FEHER and Katherine R. Feher, his parents and natural guardians, Appellants v. Rodney S. ALTMAN, M.D.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed Sept. 15, 1986.

      John J. Ross, Aliquippa, for appellants.
    Anita B. Folino, Pittsburgh, for appellee.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This is an appeal from an order granting appellee’s motion for summary judgment. The issue is whether appellants made a good faith effort to notify appellee that they had instituted an action against him by filing a praecipe for a writ of summons two days before the statute of limitations ran on their claim. We agree with the trial court that appellants made no such good faith effort and affirm the summary judgment entered in favor of appellee.

Appellants, an injured minor and his parents, sought to bring an action in medical malpractice against appellee for allegedly negligent medical treatment performed by appellee on October 7, 1981. The applicable two year statute of limitations, 42 Pa.C.S. § 5524, required that the action be brought on or before October 7, 1983. On October 5, 1983, appellants’ counsel filed a praecipe for a writ of summons. The trial court’s opinion, dated August 30, 1985, states that “[plaintiffs’ counsel concedes that no instructions were ever given to the sheriff regarding service of the writ which was allowed to expire without delivery.” In addition, the record reflects that the sheriff’s fee for service of the writ was never paid.

The original writ expired on November 4, 1983 without any effort having been made to have it served. On November 30, 1983, the writ was reissued, a complaint was filed, and the two documents were subsequently taken to the sheriff. The sheriff’s fee was paid, instructions for service were given, and the sheriff served the reissued writ and complaint on December 5, 1983.

Appellee filed an Answer and New Matter averring that appellants’ suit was barred by the applicable two year statute of limitations. Appellee subsequently filed a motion for summary judgment, stating that the action was barred by the two year statute of limitations because appellants had not delivered the originally issued writ to the sheriff and because the statute of limitations had expired before the writ was reissued. The trial court granted appellee’s motion for summary judgment, and appellants appealed.

Appellants present only one question for appellate review: “Whether the statute of limitations has been tolled when Plaintiff commences a civil action by filing a Praecipe for Writ of Summons on October 5, 1983, (statute runs [sic] October 7, 1983), and Plaintiff reissues the Writ and files a Complaint on November 30,1983, which Complaint is served on Defendant on December 5, 1983.” Appellants contend that the statute was tolled, and they make several arguments in support of this contention.

First, appellants argue that the statute of limitations was tolled by simply filing the praecipe for a writ of summons, pursuant to Pa.R.C.P. 1007, on October 5, 1983. The mere filing of a praecipe for a writ of summons, without additional affirmative action to effect service of the writ, does not constitute a good faith effort to notify a defendant that he is being sued, and therefore is not sufficient to toll the statute of limitations and preserve a cause of action.

The Pennsylvania Supreme Court has stated,

[T]here is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the process of justice as speedy and efficient as possible____ Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations.

(Footnotes omitted.) Lamp v. Heyman, 469 Pa. 465, 477-78, 366 A.2d 882, 888-89 (1976). See Watts v. Owens Corning Fiberglass Corp., 353 Pa.Super. 267, 509 A.2d 1268 (1986); Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 496 A.2d 1240 (1985); Pannill v. Seahorne, 278 Pa.Super. 562, 420 A.2d 684 (1980); and Snyder v. North-South Bowl, Inc., 263 Pa.Super. 328, 397 A.2d 1232 (1979).

At a minimum, the good faith effort required in Lamp v. Heyman, supra, mandates compliance with the Pennsylvania Rules of Procedure, and, importantly, local practice. See Farinacci v. Beaver County Industrial Development Authority, 510 Pa. 589, 511 A.2d 757 (1986).

[A] plaintiff should comply with local practice as to the delivery of the writ to the sheriff for service. If under local practice it is the prothonotary who both prepares the writ and delivers it to the sheriff, the plaintiff shall have done all that is required of him when he files the praecipe for the writ; the commencement of the action shall not be affected by the failure of the writ to reach the sheriffs office where the plaintiff is not responsible for that failure. Otherwise, the plaintiff shall be responsible for prompt delivery of the writ to the sheriff for service. Cf. Pa.R.C.P. 1009.

(Emphasis added.) Lamp v. Heyman, 469 Pa. 465, 478-79, 366 A.2d 882, 889 (1976).

In ruling upon appellee’s motion for summary judgment, Judge Mannix in his opinion of August 30, 1985, delineates exactly what constitutes local practice in Beaver County:

“In Beaver County, the long established practice for the issuance and service of a Writ of Summons has been, and continues to be, as follows:
1. A Praecipe for Writ of Summons is filed with the Prothonotary and filing costs are paid;
2. After filing the Praecipe, the Plaintiff goes to the Sheriff’s Office and gives written directions for service of the Writ;
3. At that time or at some time before the Sheriff attempts service of the Writ, the costs of service must be prepaid by the plaintiff;
4. After receipt of the Writ from the Prothonotary, receipt of written directions for service from the plaintiff and actual payment of service costs, the Sheriff attempts to make service upon the defendant.”

(Slip Opinion at 2).

Good faith compliance with this local practice requires the plaintiff to take affirmative action to notify a defendant that an action has been filed against him. Thus, under the local practice in Beaver County, a good faith effort is comprised of paying the prothonotary’s filing fee, giving the sheriff written instructions for service, and prepaying the sheriff for service. A plaintiff has not made a good faith effort when he fails to take those steps necessary to afford proper notice of the suit to the defendant. “As [the trial judge] observed, [the plaintiff], having filed the praecipe for issuance of writ of summons, took no action to serve the writ upon [the defendant]; thus, under the holding of Lamp v. Heyman, supra, [the plaintiffs] failure to do so served to nullify the commencement of his action.” (Citations omitted.) Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 552, 496 A.2d 1240, 1244 (1985). In this case, as in Robinson, appellants took no action to have the writ served on appellee and, therefore, their effort to institute this action timely was a nullity.

When a praecipe is filed but the writ is not served, the burden is on the plaintiff to show that he made a good faith attempt to have the writ served. In this case plaintiffs’-appellants’ counsel had the burden of proving that he took some affirmative action calculated to provide notice of the suit to the defendant, yet he did not present the court with any evidence that he had made the requisite good faith effort. The record reflects that the evidence available for review before the trial court, when the motion for summary judgment was argued on August 26, 1985, consisted of: the praecipe, the writ, the complaint, the sheriffs return of the service of the complaint and reissued writ, an answer and new matter, an answer to the new matter, the motion for summary judgment, the answer to the motion for summary judgment, and a brief in support of dismissal of the motion for summary judgment. None of these documents contain any indication that counsel made an effort to effect service of the original writ. Appellants’ counsel took no depositions and did not file any affidavits indicating that a good faith effort to effect service had been made.

Thus, although appellants’ counsel did not actively attempt to thwart service of the writ, he also did not take any affirmative action to see that the writ was served and to put the defendant on notice that an action had been filed against him. In failing to prepay the sheriff or give the sheriff instructions for service of the original writ, appellants’ counsel failed to comply with local practice and thereby failed to demonstrate an affirmative good faith effort to provide notice to defendant. “Failure to do so served to nullify the commencement of his action.” Robinson v. Trenton Dressed Poultry Co., 344 Pa.Super. 545, 552, 496 A.2d 1240, 1244 (1985). Consequently, the reissued writ, without benefit of the original writ tolling the statute of limitations, was ineffective, because it was clearly filed and served beyond the period of the statute of limitations. Thus, the cause of action was not preserved.

Next, appellants argue that the local practice, in order to be effective, must be in writing. Pa.R.C.P. 239. We do not agree. It requires no formalized promulgation of a rule of procedure to make a litigant aware that the sheriff must be instructed where service should be made. Nor is the adoption of a local rule necessary to establish the proposition that the sheriff is entitled to demand prepayment of the cost of service. In fact, the instant record suggests that appellants’ counsel was fully aware of such requirements. When the writ was reissued and the complaint finally filed, counsel then delivered written instructions for service to the sheriff together with prepayment of the sheriff’s costs. In fact, appellants’ counsel conceded at oral argument that the reason for not taking steps to have the original writ served was to avoid the additional expense incurred by having the writ served and then at a later time having the complaint served. His argument is without merit and is not supported by the record in this case.

Finally, appellants’ argue, that their counsel “was not aware of the Lamp v. Heyman Case.” Lack of knowledge of legal precedent does not justify a failure to comply with the Supreme Court’s mandate and does not constitute an exception to the rule of Lamp v. Heyman. The decision in Lamp v. Heyman, supra, was filed seven years before the events involved here. Counsel’s failure to be aware of that decision, and the cases that subsequently followed it, does not afford either the trial court or this Court reason to refuse to follow it.

Appellants have not demonstrated that the trial court erred in its application of law or committed an abuse of discretion. Appellants’ course of action against this defendant is barred. Therefore, the trial court’s order is affirmed.

Order affirmed.

      . The appearance docket, as provided in the record, reflects that only one sheriffs fee was ever paid for service, and it was paid on December 2, 1983, three days before the reissued writ was served.


author: WICKERSHAM, Judge: WIEAND, Judge, POPOVICH, Judge,

text:
    515 A.2d 321
    Frank L. RIZZO and Lena Rizzo, Appellants v. Barton A. HAINES, Esquire. Frank L. RIZZO and Lena Rizzo, v. Barton A. HAINES, Esquire, Appellant.
    Superior Court of Pennsylvania.
    Argued March 12, 1986.
    Decided Aug. 4, 1986.
    Reargument Denied Sept. 30, 1986.

      Herbert Braker, Philadelphia, for appellants (at 1882) & for appellees (1944).
    Jeffrey R. Lerman, Philadelphia, for appellant (at 1944) and for appellee (at 1882).
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WICKERSHAM, Judge:

Before us are cross-appeals from the judgment of the Court of Common Pleas of Philadelphia County in this legal malpractice case. For convenience, we shall refer to Frank and Lena Rizzo as appellants and Barton Haines as appellee.

The genesis of this case began nearly two decades ago, when in September of 1968, Frank L. Rizzo, a 24 year-old, off-duty Philadelphia police officer while driving in his private vehicle, was rear-ended by a City of Philadelphia police vehicle. Mr. Rizzo, who received neck, back, and arm injuries as a result of the collision, retained Anthony J. Caiazzo, Esquire, to represent him in a suit against the City for his personal injuries, and in related matters, on a fifty percent contingent fee basis. Mr. Caiazzo filed a tort action against the City on July 2, 1969, and continued to file various pleadings until July of 1970, when Mr. Rizzo became represented, apparently with Caiazzo’s consent, by B. Nathaniel Richter, Esquire, of the firm of Richter, Syken, Ross & Levant, on a forty percent contingent fee basis.

During 1971, the case of Rizzo v. City of Philadelphia was assigned to an associate in the Richter firm, Barton A. Haines, Esquire, appellee herein. Shortly before appellee took over the case, Mr. Rizzo underwent several operations which ultimately resulted, in the partial paralysis of the right side of his body, rendering him totally disabled in October 1971 at the age of 27. The operations were necessitated by the neck and back injuries Mr. Rizzo had received in the 1968 auto accident.

In early 1973, the relationship between appellee and the Richter office soured and the association terminated. When appellee left the Richter firm, he took with him the Rizzo file, among others. The Rizzos, who by this time had become personal friends of appellee’s, decided to remain with appellee, and Mr. Rizzo signed a one-third contingent fee agreement with appellee on February 13, 1973. From that point until the instigation of the instant suit in 1979, appellee continued to represent Mr. Rizzo in the City case, and both Rizzos in a second action, begun in October of 1973, against the surgeon, H.T. Wycis, M.D. and the hospital (hereinafter “the Wycis case”) for medical malpractice.

The City case went forward while appellee and defense counsel in the Wycis case agreed to hold the latter case in abeyance. The City case was tried before the Honorable Mema B. Marshall and a jury from April 21, 1975 thru May 1, 1975. On May 1, 1975, the jury returned a verdict in favor of Mr. Rizzo and against the Citys in the amount of $450,000. Appellee recommended that the Rizzos take the money rather than appeal and neither side filed post-trial motions. Thereafter, appellee entered a judgment on the verdict, but due to an ensuing fee dispute among appellee, Caiazzo, the Richter estate, and the Richter firm, approximately one-third of the verdict was placed in escrow and the balance of $291,262.35 was paid to the Rizzos.

The lawyers agreed to submit their fee dispute to Judge Marshall for binding decision, and following hearings in January and February of 1976, Judge Marshall entered an order for distribution of the fee on July 20, 1976. Because of her dissatisfaction with both the conduct of the lawyers, and the poor negotiating skills of appellee, she ordered a return from the escrow fund of $50,000 to Mr. Rizzo and divided up the remaining $108,163.16 among the four lawyer litigants. The fee decision was not appealed. Shortly thereafter, appellee, who had received approximately $35,-000 as his share of the fee, procured from Mr. Rizzo, supposedly as a gift, the $50,000 awarded back to him after the fee dispute.

On January 23, 1978, the Wycis case was dismissed by the Honorable Harry A. Takiff on a summary judgment motion by defense counsel, on the basis that, inter alia, the satisfaction of judgment in the City case barred the Rizzos from further recovery. See Rizzo v. Rohrback, 8 D. & C.3d 122 (Phila.1978), aff'd, 261 Pa.Super. 455, 395 A.2d 995 (1978).

In July of 1979, the Rizzos brought the instant legal malpractice claim against appellee. Appellants requested compensatory and punitive damages on the basis of improper settlement negotiations and handling of the City and Wycis cases, and other improper conduct. The Honorable I. Raymond Kremer tried the case without a jury for twenty-one days and on January 18, 1984, he entered a finding for appellants and against appellee in the amount of $530,000 in compensatory damages and $150,000 in punitive damages. Thereafter, both sides filed post-trial motions, appellee objecting to the entry of judgment against him, and appellants objecting to the rate of interest awarded, the absence of delay damages, and the amount of the verdict. On January 30, 1985, appellee made a formal motion to disqualify Judge Kremer from the case and vacate the earlier verdict. On June 20, 1985, Judge Kremer denied the post-trial motions of both parties and appellee’s motion to disqualify. These appeals timely followed.

Appellants (the Rizzos) raise four issues for our consideration:

1. Where an attorney wrongfully, dishonestly and fraudulently takes his client’s funds, should not the monies be repaid at the higher market rate of interest instead of the lower legal rate of interest?
2. In that portion of plaintiffs’ claim which is based on the malpractice of his attorney in a personal injury case, does Pa.R.C.P. 238 apply?
3. Where an attorney breaches his fiduciary relationship with his client, should the attorney forfeit all rights to compensation?
4. Where an attorney fails to negotiate with a possible [tortfeasor] should the attorney be held responsible for that sum which would have been recovered if the attorney had negotiated the claim?

Brief for Appellants at 2-3.

Appellee raises eight additional issues for our consideration:

1. Is the Lower Court determination that Mr. Haines in bad faith failed to properly pursue and investigate settlement supported by the evidence?
2. Is the Lower Court determination that Mr. Haines prevented the defendant in the underlying case from making an offer supported by the evidence?
3. Is the verdict below improper as a matter of law because [it is] based on the honest exercise of professional judgment by an attorney in matters of strategy and tactics?
4. Is the verdict below improper as a matter of law because it is not supported by competent expert testimony?
5. Is the verdict below improper as a matter of law because it is based on speculation and not actual damages?
6. Is the verdict below insofar as it relates to fees and reimbursements supported by the evidence?
7. Is the verdict below for punitive damages supported by the evidence?
8. Is the verdict below invalid because of the Lower Court’s improper denial of the Motion to Disqualify and its improper factual defense and explanation?

Brief for Appellee at 1.

We note initially that our scope of review is limited when reviewing a decision of a lower court sitting as factfinder. For the purposes of our review, the findings of a trial judge sitting without a jury have the same force and effect as a jury’s verdict. Cover v. Cushing Capital Corp., 344 Pa.Super. 593, 497 A.2d 249 (1985); Pato v. Cernuska, 342 Pa.Super. 609, 493 A.2d 758 (1985). We will only reverse the trial court if its findings are not supported by sufficient evidence or when it committed an error of law. Piccinini v. Teachers Protective Mutual Life Insurance Co., 316 Pa.Super. 519, 463 A.2d 1017 (1983); Slaseman v. Myers, 309 Pa.Super. 537, 455 A.2d 1213 (1983); Winpenny v. Winpenny, 296 Pa.Super. 299, 442 A.2d 778 (1982). In reviewing the findings of a trial judge, the test is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence, whether we could have reasonably reached the conclusion of the trial judge. Delahanty v. First Pennsylvania Bank, N.A., 318 Pa.Super. 90, 464 A.2d 1243 (1983). It is not within our province to find facts or substitute our judgment for that of the trial judge. Id.

In light of this narrow scope of review, we have carefully considered the voluminous record, including the opinions of Judge Marshall in Rizzo v. City of Philadelphia, Judge Takiff in Rizzo v. Rohrback, and the two opinions by Judge Kremer in Rizzo v. Haines, the briefs and arguments of the parties, and the applicable caselaw. We have concluded that the first seven issues raised by appellee have been thoroughly and correctly addressed by Judge Kremer in his 96 page opinion on the post-trial motions. Likewise, appellee’s remaining issue has been more than thoroughly addressed by Judge Kremer in his 198 page opinion on the recusal motion. Therefore, we need not address these issues.

Turning to appellants’ issues, we find the third and fourth issues to be meritless. We are not convinced by the authority cited to us by appellants that the attorney’s fees from Rizzo v. City, sought by appellants, should be forfeited. Neither In re Martin, 237 Pa. 159, 85 A. 88 (1912), nor any other Pennsylvania case authorizes a forfeiture where the attorney’s fees were paid in connection with the receipt by the client of benefits such as the verdict of $450,000 in Rizzo v. City. Furthermore, even if we were to agree that appellee’s fee should be forfeited, which we do not, appellee received only $35,000 of the $95,056.58 sought by appellants in this appeal. The rest of the fee was divided by Judge Marshall among predecessor counsel, and appellee had no further interest or control in the additional amount. Likewise, appellants’ claim that they are entitled to $100,000 because of appellee’s failure to negotiate the Wycis case, is meritless. While Judge Kremer found that appellee negligently negotiated with defense counsel in the Wycis case, he assessed no damages for that aspect of the case. We similarly decline to do so.

Finally, appellants contend that they should be awarded both Pa.R.C.P. No. 238 damages on a portion of the verdict in the instant case and prime rate interest on the $50,000 returned by Judge Marshall after the fee dispute in Rizzo v. City. In both situations, Judge Kremer’s opinion makes it clear that while he thought that appellants’ contentions had merit, in the absence of precedent, he left the questions for our court to decide. See Lower ct. op., June 20, 1985, at 74-75, 90.

First, appellants contend that where an attorney is found to have wrongfully and fraudulently taken his clients’ funds, the attorney should be directed to return the funds wrongfully taken plus the market rate of interest rather than the lower, legal rate of interest. The amount of interest awarded in the instant case was the legal rate of six percent, whereas the market rate ranged as high as twenty percent during the relevant period of time. We have carefully examined the caselaw cited to us by the parties, and in particular, Lexington Insurance Co. v. Abington Co., 621 F.Supp. 18 (E.D.Pa.1985) and In re Anonymous No. 41 D.B. 83, 35 D. & C.3d 29 (1985), and conclude that the higher, market rate of interest should be applied under the facts of this case. The lower court held that appellee’s taking of the $50,000 should be considered as him holding that sum in a constructive or resulting trust. “To apply the statutory rate would be to allow the [appellee], who had full use of the funds for the entire period, to have invested the wrongfully-detained funds at the market rate of interest and be required to pay back the principal and only six percent interest.” Lexington Insurance Co. v. Abington Co., supra at 21.

Second, appellants contend that Rule 238 damages should apply to that portion of their claim which is based on the malpractice of appellee in the personal injury case of Rizzo v. City. The lower court held that appellee was negligent in his representation of appellants and the negligence resulted in a loss to appellants of $300,000 in compensatory damages, to which both appellants and the lower court urge us to apply Rule 238 damages.

Rule 238 provides for an award of damages “in an action seeking monetary relief for bodily injury, death or property damage____” While we recognize that the underlying cases which precipitated the instant action were both personal injury cases, the instant case was an action for legal malpractice. The rule is explicitly limited by its own language, and we therefore, do not find it applicable to a legal malpractice action. Compare Colodonato v. Consolidated Rail Corp., 504 Pa. 80, 470 A.2d 475 (1983) (rule not applicable to punitive damages); Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117 (1985) (rule not applicable to malicious prosecution); Erie Insurance Exchange v. McGee, 327 Pa.Super. 56, 474 A.2d 1171 (1984) (rule not applicable to uninsured motorist arbitration awards); Temporaries, Inc. v. Krane, 325 Pa.Super. 103, 472 A.2d 668 (1984) (rule not applicable to tortious interference with contract); Reliance Universal, Inc. of Ohio v. Ernest Renda Contracting Co., 308 Pa.Super. 98, 454 A.2d 39 (1982) (rule not applicable in contract actions).

Reversed and remanded for the computation of interest at the market rate in compliance with this opinion. In all other respects, judgment is affirmed.

WIEAND, J., files a concurring opinion.

POPOVICH, J., files a dissenting opinion.

WIEAND, Judge,

concurring:

I agree with and join Judge Wickersham’s disposition of the issues in this case. If I understand correctly the opinion of the learned trial judge, he would, given discretion, award interest at market rates on the sum of Fifty Thousand ($50,000.00) Dollars which was wrongfully obtained and wrongfully withheld by counsel from his client. The trial judge concluded, however, that he lacked discretion which would have permitted him to award interest at the higher rate. This, in my opinion, was erroneous; the trial judge did have discretion, under the facts of this case, to award interest at market rates. See: Sack v. Feinman, 489 Pa. 152, 413 A.2d 1059 (1980): Murray Hill Estates, Inc. v. Bastin, 442 Pa. 405, 410, 276 A.2d 542, 545 (1971). See also: Peterson v. Crown Financial Corp., 661 F.2d 287 (3d Cir.1981); Lexington Insurance Co. v. Abington Co., 621 F.Supp. 18 (E.D.Pa.1985). Cf. Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 473 A.2d 584 (1984). Therefore, I agree that there should be a remand for the recomputation of interest on the moneys wrongfully withheld.

POPOVICH, Judge,

Dissenting:

I dissent to that portion of the opinion denying the appellants damages for the appellee’s negligent handling of the Wycis case.

The appellant-Frank Rizzo, having been injured by an improperly performed operation by his surgeon, H.T. Wycis, which was precipitated by an automobile accident involving the City of Philadelphia, was denied the potential award recoverable in a medical malpractice suit.

Judge Kramer’s determination that the appellee was negligent (conduct—absence of due care—which not only exposed the appellant to, but caused him, injury) entitled the claimant to compensation, since there was no dispute that he was owed a duty of care (competent counsel) and the breach of that duty (not being able to take the case to trial) was the proximate cause of his injury—loss of revenue.

However, the affixing of the market rate of interest to the $50,000 is excessive in the circumstances of this case. Mr. Rizzo received the sum stated from the trial court for the appellee’s “poor negotiating skills” and “conduct” in the City case, and next we learn that the amount is given/transferred/converted to the appellee. At the very least, a question arises as to the dual fault present in relinquishing the monies, thus requiring, at best, that the Rizzos be made whole, but not to the extent contemplated by the court here.

On the question of delay damages allowed by Pa.R.Civ.P. 238, it appears facially appealing to apply Rule 238 to a circumstance where an individual/attorney has purportedly fraudulently obtained his clients funds. However, as stated by the Majority, the Rule has not been extended to encompass such circumstances, being restricted instead to situations where a defendant causes bodily injury, death or property damage. I see no justification for expanding Rule 238 as importuned by the appellants and the court below.

Further, we have no way of knowing if the award entered was 125% over that which was proffered by the appellee, since no settlement offer appears to have been made to resolve the dispute short of trial.

      . We are informed by the lower court that appellant Rizzo is not related in any way to former Philadelphia Mayor Frank L. Rizzo. See Lower ct. op. sur recusal, June 20, 1985, at 16 n. 6.

      . Mr. Rizzo, who ultimately became permanently disabled, was denied a City disability pension on the ground that his injuries were not employment related.

      . According to the testimony in the resulting fee dispute, Mr. Richter agreed to pay Mr. Caiazzo a percentage of the fee Richter would receive. See Lower ct. op. in Rizzo v. City of Philadelphia, July 20, 1976, at 4.

      . Between the time of the filing of the City case and the Wycis case, the law of Pennsylvania was changed to allow a wife to recover for loss of consortium as a result of her husband’s injuries. See Hopkins v. Blanco, 457 Pa. 90, 320 A.2d 139 (1974).

      . The City attempted to join the Wycis estate, Dr. Wycis having died in June of 1972, as an additional defendant in the City case. The Wycis estate filed preliminary objections to the joinder, and the objections were sustained in April of 1974. See Rizzo v. City of Philadelphia, 67 D. & C.2d 666 (Phila.1974). On appeal, our court affirmed. Rizzo v. City of Philadelphia, 231 Pa.Super. 744, 327 A.2d 181 (1974).

      . At the conference before Judge Kremer on January 18, 1984, the day of his order, appellee made what the trial court recognized as an oral motion to disqualify. See, Lower ct. op. sur recusal, June 20, 1985, at 47.

      . Similarly, the market rate of interest should be applied to the $5,000 of costs improperly charged by appellee and returned to appellants by the lower court. See Lower ct. op., June 20, 1985, at 71.


author: MONTGOMERY, Judge:

text:
    515 A.2d 562
    Helen BALAZICK, Appellant, v. Lois B. IRETON, Appellee.
    Superior Court of Pennsylvania.
    Argued June 24, 1986.
    Filed Aug. 15, 1986.
    Reargument Denied Oct. 14, 1986.

      William R. Nalitz, Waynesburg, for appellant.
    George B. Stegenga, Washington, for appellee.
    Before BROSKY, DEL SOLE and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

This is an appeal from an order directing appellee to return certain funds to appellant but imposing a trust thereon in favor of appellee. Because we find the imposition of a trust to be in error, we affirm in part and reverse in part.

Appellant is the mother of appellee and four other children. In the spring of 1980, appellant and her husband Charles purchased five repurchase agreements (repos) from the First National Bank of Wheeling, each in the face amount of $54,000.00. Three of the repos were in the name of Charles and one of the children; the remaining two were placed in the name of appellant and each of the two remaining children. The funds here in question were in the name of appellant and appellee. No signature cards were executed in connection with the repos; appellant and her husband kept all the paperwork in their possession; and all the funds contributed to the repos were funds belonging solely to appellant and her husband. When Charles died on November 9, 1982, the repos bearing his name and each of the three children were distributed to the survivors. Problems then arose in the relationship between appellant and her oldest son and appellee. Thereafter, on March 3, 1983, appellee removed the receipt for the repo from her mother’s desk, had her mother’s name deleted and withdrew the money from the bank. Appellant brought this action for the return of the funds.

The court below held that the funds belonged to appellant and that appellee had wrongfully taken them. The mere fact that both names were placed on the repos does not conclusively establish a joint tenancy. Estate of Kostelnik, 471 Pa. 94, 369 A.2d 1211 (1977). The testimony of both parties clearly established that appellant did not intend to make a present gift of the funds but merely to provide a simplified way for appellee to receive the funds upon appellant’s death. See, Smith v. Smith, 219 Pa.Super. 112, 280 A.2d 626 (1971). Therefore, the funds remained the property of appellant and appellee had no present interest in them. Id.

There is no basis in the record, however, for the imposition of a constructive trust. Such a trust exists whenever one holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it. Huber v. Wagner, 284 Pa.Super. 133, 425 A.2d 456 (1981). It may arise where there is a breach of confidential relationship by the transferee or out of circumstances evidencing fraud, duress, undue influence or mistake. Denny v. Cavalieri, 297 Pa.Super. 129, 443 A.2d 333 (1982). Before a constructive trust can arise, however, it is necessary that the owner of the property must have acquired title to it in some way that creates the equitable duty in favor of the person who would benefit from the trust. Pierro v. Pierro, 438 Pa. 119, 264 A.2d 692 (1970). This is not the case here. The funds originally belonged solely to appellant. None of the funds ever belonged to the appellee and the appellee has no interest in the funds. The most appellee ever had was an expectation that, if appellant had not used the funds during her lifetime, appellee would receive them at appellant’s death. Appellant has neither a legal nor an equitable duty to preserve the funds for the benefit for appellee. Therefore, we reverse that portion of the order directing that the funds be reinvested in the names of both parties and limiting appellant’s use of the funds.

The order is affirmed up to and including the words “shall surrender said sum to the plaintiff.” The remainder of the order is reversed and vacated.

      . The court’s order provides, in relevant part:
      AND NOW, this 17th day of July, 1985, the defendant, Lois B. Ireton, is directed to account to this Court forthwith for the principal sum of $72,966.59, and all interest earned or that could have been earned therefrom, within thirty days of this order, and shall surrender said sum to the plaintiff to be reinvested in a Repo, or other type of investment, in the names of Helen Balazick or Lois B. Ireton in an amount not less than $72,966.59.
      The plaintiff, Helen Balazick, may utilize any or all of the interest earned by the certificate for her own personal use, but shall not invade the principal without order of this Court.