text:
    486 A.2d 473
    James ALSTON v. PHILADELPHIA ELECTRIC COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 6, 1984.
    Filed Dec. 28, 1984.
    Reargument Denied Jan. 28, 1985.

      John J. Tinaglia, Philadelphia, for appellant.
    Alan M. Feldman, Philadelphia, for appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

James Alston, appellee, suffered severe and permanent injury from third-degree burns sustained when his attempt to install a flagpole was abruptly curtailed by the pole’s contact with high-tension wires owned by appellant, Philadelphia Electric Company. Appellee’s case was dismissed for failure of his counsel, Stanley M. Poplow, to take action on his behalf from March 5, 1975, until January 2, 1979. On June 1, 1982, Mr. Poplow was discharged and new counsel retained. Appellee’s present counsel, Alan M. Feld-man, learned the procedural history of the case and filed a petition for reinstatement on June 16, 1982. The petition was granted by the court en banc on March 10, 1983. This appeal followed.

Appellant contends that the trial court en banc abused its discretion in granting appellee’s petition. We affirm the trial court en banc. Given the compelling reason for counsel’s neglect, we cannot deprive this litigant of his day in court.

It is well established that the trial court is vested with the equitable power to grant a petition to reinstate a cause of action if there is a showing of good cause for failure to prosecute. Good cause may be shown if the following conditions are satisfied:

(1) the petition has been promptly filed; (2) a meritorious defense can be shown; (3) the failure to appear can be excused. A lower court’s ruling opening or refusing to open will not be reversed unless there has been an error of law or a clear, manifest abuse of discretion. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Fox v. Mellon, 438 Pa. 364, 264 A.2d 623 (1970); Atlas Aluminum Corporation v. Methods Research Products Co., 420 Pa. 407, 218 A.2d 244 (1966); Walters v. Harleysville Mutual Casualty Co., 417 Pa. 438, 207 A.2d 852 (1965).

Balk v. Ford Motor Company, 446 Pa. 137, 140, 285 A.2d 128, 130-131 (1971). See also Robert W. Schultz v. Erie Insurance Exchange, 505 Pa. 90, 477 A.2d 471 (1984); Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 456 A.2d 136 (1982); Queen City Electric Supply Co. v. Soltis Electric Co., 491 Pa. 354, 421 A.2d 174 (1980); McCoy v. Public Acceptance Corp., 451 Pa. 495, 305 A.2d 698 (1973); Pappas v. Stefan, 451 Pa. 354, 304 A.2d 143 (1973); Goldstein v. Graduate Hospital of University of Pennsylvania, 441 Pa. 179, 272 A.2d 472 (1971); Stephens v. Bartholomew, 422 Pa. 311, 220 A.2d 617 (1966); Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298 (1966); Autologic Inc. v. Cristinzio Movers, 333 Pa.Super. 173, 481 A.2d 1362 (1984); M.N.C. Corp. v. Mount Lebanon Medical Center, Inc., 334 Pa.Super. 359, 483 A.2d 490 (1984); Chervenak, Keane & Co. v. Hotel Rittenhouse Associates, 328 Pa.Super. 365, 477 A.2d 487 (1984); American Express Co. v. Burgis, 328 Pa.Super. 167, 476 A.2d 944 (1984); J. Rusiski v. M. Pribonic, 326 Pa.Super. 545, 474 A.2d 624 (1984); Steinberg v. Sears, Roebuck & Co., 325 Pa.Super. 189, 472 A.2d 1072 (1984); Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Bottero v. Great Atlantic & Pacific Tea Co., 316 Pa.Super. 62, 462 A.2d 793 (1983); Snellbaker v. Herrmann, 315 Pa.Super. 520, 462 A.2d 713 (1983); First National Bank of Fryburg v. Kriebel, 311 Pa.Super. 428, 457 A.2d 961 (1983); Vorhauer v. Miller, 311 Pa.Super. 395, 457 A.2d 944 (1983); Paules v. Sminkey, 290 Pa.Super. 223, 434 A.2d 724 (1981); Lincoln Bank v. Kelly, 282 Pa.Super. 261, 422 A.2d 1106 (1980); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980); Tenreed Corp. v. Philadelphia Folding Box Co., 256 Pa.Super. 49, 389 A.2d 594 (1978); Dupree v. Lee, 241 Pa.Super. 259, 361 A.2d 331 (1976); Hersch v. Clapper, 232 Pa.Super. 550, 335 A.2d 738 (1975); Johnson v. Mulhall, 230 Pa.Super. 183, 326 A.2d 439 (1974); Boyles v. Sullivan, 230 Pa.Super. 453, 326 A.2d 440 (1974); and Matyas v. Albert Einstein Medical Center, 225 Pa.Super. 230, 310 A.2d 301 (1973).

On January 2, 1979, the instant case was dismissed with prejudice pursuant to Philadelphia Local Rule 350(1), which provided that:

(1) Whenever in any civil action a Certificate of Readiness has not been filed and no proceedings have been docketed in the Prothonotary’s Office for a period of two successive years, the action shall be dismissed with prejudice, for failure to prosecute, under the provisions of this rule, and the docket so marked, provided that no less than sixty days’ notice be given by the publication once in The Legal Intelligencer.
(2) Whenever in a civil action a Praecipe or an Order for trial or a Certificate of Readiness has been filed, but thereafter no further action or any disposition has been noted on the docket in the Prothonotary’s Office for a period of three successive years, the action shall be dismissed, with prejudice, for failure to prosecute under the provisions of this rule, and the docket so marked; provided that no less than six months’ advance notice thereof be given by publication once in The Legal Intelli-gencer.
(3) Dismissal under (1) or (2) is subject to the right of any party to reinstate the action by written application for good cause shown after such dismissal within three (3) months of the date of dismissal.

Although the rule provided that reinstatement is possible within three months following dismissal, the court could exercise its discretion and consider applications for reinstatement as timely filed after this three-month period had lapsed.

In assessing the trial court’s exercise of its equitable power to open a default judgment, the timeliness of the petition is measured in terms of the reasonableness of the explanation given for the delay, not the fact or length of the delay itself.

The crucial factor in determining whether the petition is timely is not the specific time which has elapsed, but the reasonableness of the explanation given for the delay. Jamestown Banking Co. v. Conneaut Lake Dock & Dredge Co., 339 Pa. 26, 14 A.2d 325 (1940). There is no time limit on the exercise of the power of a court to open judgment by confession, Windber Trust Co. v. Evans, 192 Pa.Super. 417, 421, 161 A.2d 664, 666 (1960), and the chancellor’s determination as to reasonableness, absent clear and manifest abuse of discretion, will not be disturbed. Equibank, N.A. v. Dobkin, 284 Pa.Super. 143, 425 A.2d 461 (1981).

Lincoln Bank v. C & H Agency, Inc., 500 Pa. 294, 301-302, 456 A.2d 136, 140 (1982) (emphasis supplied). Accord, Tony Palermo Construction v. Brown, 326 Pa.Super. 566, 474 A.2d 635 (1984).

Thus, although in the instant case the time period between the dismissal of the action pursuant to Pa.R.C.P. 236 on May 17, 1979, and the petition for reinstatement on June 16, 1982, was lengthy, it is neither dispositive nor relevant to the issue on review. The determinative factor is the reasonableness of the explanation for the delay. Appellant alleged that the reason for the delay was counsel’s mental and emotional disturbance. A three-judge court en banc heard the argument and granted the petition for reinstatement. An en banc court’s finding of facts are controlling on appeal and will not be disturbed in the absence of manifest error. Rusiski v. Pribonic, supra.

Counsel for appellant at the time the action was dismissed was Stanley M. Poplow, Esq. With regard to the case at bar, depositions were taken of Dr. Donald L. Na-thanson, M.D., Mr. Poplow’s psychiatrist, and of Harold J. Byron, M.D., a psychiatrist for appellant. Dr. Nathanson testified that Mr. Poplow suffered from cycles of depression and mania which rendered him incapable of performing in his capacity as an attorney for periods of time. He has been taking significant doses of lithium and vivactyl for and indicia of his depression and suicidal impulses for approximately nine years. The prognosis for his condition was guarded. His illness manifested itself in a paralytic depressive state which negated action on behalf of his clients. The trial court regarded this testimony, as well as the testimony of the appellant’s psychiatrist, Dr. Harold J. Byron, as a reasonable explanation for the delay in this case.

Dr. Byron, who testified for the appellant, also testified that Mr. Poplow’s condition made it impossible for him to fulfill his professional duties. He stated:

Based on the history given of depression over the past eight years which has been sustained although of intermittent severity with suicidal ideation, a diagnosis of major affective disorder unipolar depression seems appropriate. The treatment he is receiving from a reputable physician; namely, Vivactyl the most potent of the tricyclic antidepressants, with a large dose of Lithium Carbonate, supports this diagnosis since these drugs would not be properly prescribed for anything other than a major affective disorder. I believe his Diabetes Mellitis, which must be of at least moderate severity to justify a program of insulin management, may well contribute to his affective disorder which is generally believed to have at least some biogenetic factor in its etiology. This is further supported by his description of his father who would seem to have been subject to recurrent depressions.
I believe the explanation for his procrastination and failure to fulfill his professional responsibilities must include some influence of his depressive illness. Although I believe his psychiatric illness must have an effect upon his productivity, I am not able to say to what degree his ability to exercise free will is compromised by his illness although I believe that his depression has caused some impairment of his freedom of choice and there is clearly a self-destructive pattern in his behavior.

(Emphasis supplied).

In Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298 (1966), as in the instant case, appellants were represented by an attorney with significant and incapacitating health problems. The Court reasoned that

the diminished health and ability of appellants’ attorney, ... are equitable considerations sufficient to set aside a judgment of non pros, and reasonably explain the reason for the delay in filing the complaint.
Appellants in this case should not be denied their day in court because of the diminished health of their counsel. Appellants had no way of knowing this case was not being diligently prosecuted and should not be made to suffer because of the health of their attorney.

Id., 420 Pa. at 587, 218 A.2d 299.

In interpreting Thom, this Court in Lewis v. Reid, 244 Pa.Super. 76, 366 A.2d 923 (1976), explained the salient distinguishing feature of the cases where the trial court’s discretion in opening a judgment has been upheld, viz., where trial counsel’s ill health prevents his client from knowing his case is not being diligently pursued.

In Thorn v. Borough of Clearfield, 420 Pa. 584, 218 A.2d 298 (1966), the Supreme Court held that the lower court abused its discretion in refusing to open a judgment of non pros which was entered four months after the plaintiffs had been ruled to file a complaint. In reversing the lower court, the Supreme Court noted that the plaintiffs attorney suffered a heart relapse two weeks after he was served with a praecipe to file a complaint. Testimony by the attorney’s physician established that although the attorney did perform some professional tasks during the four month period prior to the entry of judgment, he was physically incapable of performing all of his duties. On these facts, the Court held “that the diminished health and ability of appellant’s attorney ... reasonably explain the reason for the delay in filing the complaint.” Supra., 420 Pa. at 587 [218 A.2d 298].

Id., 244 Pa.Superior Ct. at 82-83, 366 A.2d at 926. See also Balk v. Ford Motor Company, supra (the Court held that the trial court was justified in opening a default judgment against an automobile dealer, notwithstanding a delay of nine months, where dealer was unaware of the judgment against it); Goldstein v. Graduate Hospital of the University of Pennsylvania, supra (the Court held that in the absence of medical or psychiatric evidence supporting the contention that emotional problems prevented the parties from taking action, no reasonable explanation had been offered for delay); Stephens v. Bartholomew, supra (where the Court accepted as reasonable the explanation that appellee’s attorney’s business commitments caused the delay and affirmed the trial court’s order to open default judgment); Manson v. First National Bank in Indiana, 366 Pa. 211, 77 A.2d 399 (1951) (where there was a failure to diligently prosecute an action because of mere oversight of counsel, so that no reasonable explanation for delay was offered); Buxbaum v. Peguero, 335 Pa.Super. 289, 484 A.2d 137 (1984) (attorney neglect was sufficient justification for a party’s failure to respond to process); Ackerman v. Port Authority of Allegheny County, 323 Pa.Super. 375, 470 A.2d 640 (1984) (Court refused to penalize appellant for his attorney’s mistake); Bottero v. Great Atlantic & Pacific Tea Company, Inc., supra (default judgment would not be opened due to the lack of explanation for the assertion that the delay was caused by the illness of delay of counsel); Austin v. Southeastern Pennsylvania Transportation Authority, 304 Pa.Super. 56, 450 A.2d 98 (1982) (Court refused to vacate a dismissal based not on the failure to act from 1974 to 1977, but rather for the absence of reasonable excuse); Seidel v. Great Factory Store, 291 Pa.Super. 255, 258, 435 A.2d 896, 898 (1981) Court stated that “inadvertence of counsel, if reasonably explained, is an adequate excuse for the failure to file a brief and will justify relief.” (Carson Pirie Scott & Co. v. Phillips, 290 Pa.Super. 353, 434 A.2d 790 (1981); Horan v. R.S. Cook & Associates, 287 Pa.Super. 265, 430 A.2d 278 (1981) (where the court found that the mere assertion that counsel was preoccupied with establishing his own law practice would not support opening default judgment); Faulks v. Papo Bar, Inc., 280 Pa.Super. 454, 421 A.2d 810 (1980) (Court remanded the case because the trial court had not considered the reasonableness of the delay, not because the delay itself was excessive); Corcoran v. Fiorentino, 277 Pa.Super. 256, 419 A.2d 759 (1980) (Court reasoned that counsel’s explanation that he was involved in litigation was an insufficient reason to excuse the lengthy delay in proceeding); St. Joe Paper Company v. Marc Box, Inc., 260 Pa.Super. 515, 394 A.2d 1045 (1978) (where the court held that mere inadvertence of counsel without more is not a sufficient reason to open a default judgment); International Telephone and Telegraph Corporation v. Philadelphia Electric Company, 250 Pa.Super. 378, 378 A.2d 986 (1977) (Court held that absent an explanation for a two-year delay, oversight of counsel is not a sufficient reason to open judgment); Dupree v. Lee, M.D., supra (Court held that a reasonable explanation for counsel’s mistake, oversight, or neglect is an excusing condition which would justify vacating a non pros); Alexander v. Jesray Construction Company, 237 Pa.Super. 99, 346 A.2d 566 (1975) (counsel’s mistake in filing an answer was a reasonable excuse for delay); Holliday v. Foster, 221 Pa. Super. 388, 292 A.2d 438 (1972) (where the Court found a reasonable excuse for a five-year delay and reversed a judgment of non pros).

In the instant case the court en banc applied established standards and found compelling reasons which justified the delay. Thus, there is no abuse of discretion.

In McFadden v. Pennzoil Co., 326 Pa. 277, 191 A. 584 (1937), our Supreme Court upheld the striking of a judgment of non pros when it appeared that the delay in the case had been due to counsel’s bad health and oversight rather than any neglect by the plaintiff. Cf. Esso Standard Oil Co. v. Taylor, 399 Pa. 324, 159 A.2d 692 (1960); Arzinger v. Baughman, 348 Pa. 84, 34 A.2d 64 (1943).

Carter v. Amick, 246 Pa.Super. 530, 535, 371 A.2d 961, 964 (1977).

We acknowledge that a litigant is generally held to the representation provided by his chosen counsel. There are cases where delay caused merely by counsel’s neglect have resulted in the court’s refusal to deprive a litigant of his day in court. Manson v. First National Bank, supra. Accord, White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974); Poluka v. Cole, 222 Pa.Super. 500, 295 A.2d 132 (1972). A bare assertion of counsel’s neglect, without more, will not mandate a second day in court. Moore v. Heebner, Inc., 321 Pa.Super. 226, 467 A.2d 1336 (1983). However, counsel’s neglect coupled with a reasonable explanation for the delay will constitute the requisite elements to justify granting a petition to reinstate. Counsel’s mental and emotional disturbance rendering him unable to fulfill his duty to his client is such a compelling reason.

Order affirmed.

       The rule has always been that where the equities are otherwise clear, in a trespass action as opposed to one in assumpsit, a good defense need not be posited in order to open a default judgment. Kraynick v. Hertz, 443 Pa. 105, 277 A.2d 144 (1971); Kuntz v. Lanbar Hotel Co., Inc., 380 Pa. 90, 110 A.2d 249 (1955); Scott v. McEwing, 337 Pa. 273, 10 A.2d 436 (1940). The difference is attributable to differing pleading practices. In assumpsit the case is not in issue until an "affidavit of defense” (answer is filed, whereas in trespass no affidavit of defense is required. Scott, supra, (subject to the exceptions contained in Pa.R.C.P. 1045, which derives from § 13 of the Practice Act of 1915). Thus while a good defense would normally not be required in a trespass action, where present it can at least qualify as an equitable consideration favoring the opening of judgment. In fact, when the other equities are not clear, the rule seems to demand a defense.

      . Rescinded February 21, 1980, replaced by Pa.R.C.P. 237.1.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    486 A.2d 478
    INGRASSIA CONSTRUCTION COMPANY, INC., v. John M. WALSH, Individually and trading as Walsh Steel Service Company, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 14, 1984.
    Filed Dec. 28, 1984.
    Petition for Allowance of Appeal Denied June 5, 1985.

      Howard M. Levinson, Wilkes-Barre, for appellant.
    Robert E. Simpson, Jr., Easton, for appellee.
    Before CAVANAUGH, WIEAND and CIRILLO, JJ.
   CAVANAUGH, Judge:

This is an appeal from the Judgment entered in the Court of Common Pleas of Monroe County denying defendant’s Motion for Judgment N.O.V. Appellant advances two bases for contending that the court below erred in denying his Motion for Judgment N.O.V.: (1) that the appellee was not entitled to a verdict based on the theory of oral contract because he did not properly amend his complaint; and, (2) that there was no “meeting of the minds” to support the jury’s finding of a contract. For the reasons stated below, we affirm.

The standard of review for an order denying a motion for a judgment n.o.v. is well defined. It is the same standard used by the trial judge in deciding whether to grant the motion. “Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary,” we must reverse such an order denying the motion “when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case.” Timbrook v. Foremost Ins. Co., 324 Pa.Super. 384, 387, 471 A.2d 891, 892-93 (1984). It is not within this court’s province to weigh the evidence or to render judgments as to credibility. See City of Bethlehem v. Gawlik, 30 Pa. Commonwealth Ct. 390, 374 A.2d 540, 542 (1977); P.L.E. Judgment § 146.

Appellant, Walsh, first contends that a Judgment N.O.Y. is proper here because the appellee, Ingrassia, proceeded at trial under a theory of recovery which was not pleaded in the manner prescribed by Pa.R.C.P. No. 1033. Pa.R.C.P. No. 1033 requires either “filed consent of the adverse party” or “leave of court” to amend a pleading. Walsh alleges that Ingrassia’s original and first amended complaints sought recovery based on a theory of written contract, and that later appellee forwarded to appellant a copy of a proposed second amended complaint. Appellant contends that he consented to the proposed second amended complaint by letter. According to Walsh, the proposed second amended complaint to which he consented did not differ from the earlier complaints as to the theory of recovery asserted. In both the original, the amended, and the proposed second amended complaints, Ingrassia allegedly averred a theory of recovery based on written contract. However, according to Walsh, the second amended complaint that Ingrassia actually filed differed from the one Walsh consented to in that the one actually filed set forth a theory of recovery based on oral contract. Our review of the record indicates that Walsh’s allegation is unsubstantiated. Furthermore, Walsh alleges that the second amended pleading was filed without leave of court. Thus, according to Walsh’s theory neither of the statutorily prescribed methods for amendment was followed. Contrary to this contention, Ingrassia maintains that his amended complaint which averred a theory of recovery based on oral contract was “properly filed.” We need not decide whether the appellee amended the pleading in the statutorily proper manner, for even if he did not, appellant has waived any right he may have had to object to it for the reasons stated below.

Our review of the record in the instant case reveals that Walsh was aware of Ingrassia’s intention to employ the theory of recovery based on oral contract. The amended complaint averred the existence of an oral contract; moreover, evidence of the existence of an oral contract was admitted at trial. Our review of the record indicates that Walsh failed to object to the evidence. “Although it is correct that a party’s proof must be consistent with his pleadings ... a failure to object to a variance at trial is a waiver of the right to object to it thereafter.” Commercial Trading Company, Inc. v. Milsan Mills Incorporated, 327 Pa.Super. 407, 411-412, 476 A.2d 16, 18-19 (1984) (citations omitted). Timely objection would have enabled appellee to seek leave to file a proper amendment. Thus, Walsh’s argument that a new trial must be ordered because Ingrassia failed to amend his complaint in accordance with Pa.R. C.P. No. 1033 has been waived.

The rule which forbids the proof from being at variance from the pleadings is based on the sound policy of “insuring] that the defendant will not be taken by surprise at the trial...” P.L.E. Judgment § 176, See Computer Print Systems, Inc. v. Lewis, 281 Pa.Super. 240, 422 A.2d 148 (1980). The rule will- not be applied to punish its violator, however, where the facts suggest that this policy has not been undermined. Thus, when testimony is admitted which is not covered by the pleadings, if the defendant fails to object to it he will not later be heard to claim that he was misled by the variance. A defendant, “having taken his chance on a favorable verdict”, has waived his right to object to the variance on appeal. Malone v. Melnick, 378 Pa. 483, 106 A.2d 806 (1954); In Re Adoption of Noone, 376 Pa. 437, 103 A.2d 729 (1954); Tronzo v. Flohr Chevrolet, Inc., 231 Pa.Super. 455, 331 A.2d 555 (1974).

Walsh cites John Goffredo & Sons, Inc. v. S.M. G. Corp., 300 Pa.Super. 112, 446 A.2d 255 (1982) to support his contention that the theory of oral contract was not properly before the court and that therefore a new trial must be granted. That case, however, is distinguishable from the instant case. In Goffredo, the complaint pleaded a theory of recovery based on written contract. The complaint was amended to plead a theory of recovery based on oral contract, and this theory was argued at trial as well. The trial court allowed the amendment, but this court (Judge Johnson writing for the majority) held that since the statute of limitations had run prior to the time of the amendment, leave to amend was improperly granted. In the instant case, our review of the record reveals no objection that the statute of limitations had run prior to the time the theory of oral contract was pleaded. Any defense based on the statute of limitations that may have existed has been waived.

Appellant next contends that a Judgment N.O.V. should have been granted because there was no “meeting of the minds” between the parties on material provisions thus preventing formation of a contract. The pertinent facts involved in the instant appeal may be summarized as follows. Ingrassia Construction Company, Inc., appellee, was general contractor for the construction of a library building at East Stroudsburg State College. With respect to this job, it obtained a telephone bid on March 16, 1977 from Walsh Steel Service Company pertaining to steel and wire mesh work. A price was quoted in the bid for both the reinforcing steel and for the wire mesh and it delineated certain of the subcontractor’s duties. Ingrassia’s agent, Herbert Johnson, was in communication with appellant Walsh between March and June of 1977 concerning the pending job. Mr. Johnson attempted to have the price lowered, but to no avail. Mr. Johnson testified that an agreement was reached during this period in accordance with the terms of the verbal telephoned bid of March 16.

The appellant, Mr. Walsh, testified that an agreement was reached as to some, but not all, matters. Two matters not agreed upon were the terms of payment, and the issue of which party was to supply certain equipment and tools. It is undisputed that although both parties sent writings containing proposals to the other, neither party signed the other’s writing. These proposals exchanged by the parties contained differing terms as to terms of payment and as to which party was to supply certain equipment, among other things. Mr. Johnson, Ingrassia’s agent, testified that an agreement was reached prior to the exchange of proposals. At Walsh’s behest, Mr. Lou Fallon visited the construction site on July 12, 1977, for the purpose of commencing work. Mr. Fallon was informed by the superintendent on the job that Ingrassia would not provide certain equipment called “standees” needed for the job Mr. Fallon was to perform. As a result of this controversy, Walsh refused to perform. Disputed evidence at trial showed that the custom of the industry was for the subcontractor to provide this equipment. Ingrassia contends that Walsh’s refusal to perform put Walsh in breach of contract. Walsh, on the other hand, maintains that a binding contract was never formed. At trial, the jury returned a verdict for Ingrassia, for $12,-750.00. Walsh’s motion for a Judgment N.O.V. was denied and this appeal followed.

Where the facts are in dispute, the question of whether a contract was formed is for the jury to decide. O’Neill v. ARA Services, Inc., 457 F.Supp. 182, 185 (E.D.Pa. 1978). “People do business in a very informal fashion, using abbreviated and elliptical language. A transaction is complete when the parties mean it to be complete. It is a mere matter of interpretation of their expressions to each other, a question of fact.” 1 A. Corbin, Corbin on Contracts § 29 (1963).

The appellant contends that because there was no “meeting of the minds”, contractual formation never occurred. A true and actual meeting of the minds is not necessary to form a contract. 1 S. Williston, Williston on Contracts §§ 66, 94 (3d ed.1957); 1 A. Corbin, Corbin on Contracts § 107 (1963). In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter. General Warehousemen and Employees Union Local No. 636 v. J.C. Penney Company, 484 F.Supp. 130, 135 (W.D.Pa.1980). In the instant case, it matters not whether Walsh truly believed a contract did not exist if his manifested intent reasonably suggested the contrary to Ingrassia. Furthermore, a contract could be formed even if Walsh did not contemplate that legal consequences would attach to the transaction.

In the instant case, a reasonable jury could find the existence of either a contract implied in fact, or an oral contract,, based on the evidence admitted. Both theories were included in the Judge’s charge to the jury. The surrounding facts of the transaction in question — including the original telephone bid, the telephoned negotiations, appellant’s July 12th attempt to commence work, and Ingras-sia’s apparent forebearance from contracting with another company to do the work — could indicate to a reasonable jury Walsh’s intent to commit himself to perform the job. A contract implied in fact can be found by looking to the surrounding facts of the parties’ dealings. Offer and acceptance need not be identifiable and the moment of formation need not be pinpointed. Restatement (Second) of Contracts § 22(2) (1981). “Implied contracts ... arise under circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intention to contract.” Pollock Industries, Inc. v. General Steel Castings Corp., 203 Pa.Super. 453, 201 A.2d 606, 610 (1964). (Citation omitted).

Another theory which could support a finding of contract by a reasonable jury in this case is that of oral contract. Evidence was admitted at trial which showed that an oral agreement was reached between March and June, 1977. The jury was free to either believe or disbelieve it.

Appellant alleges, however, that the parties did not intend to be bound to a contract absent a signed writing. If a party wishes to withhold his assent upon the condition that a contract be signed, it is surely within his province to do so. However, there exists a presumption that the parties intend their contract to be operative absent a signed writing unless one of them indicates to the contrary. See 1 S. Williston, Williston on Contracts § 28 (1957). Our review of the record discloses no such indication by either party.

Walsh next argues that the “missing” terms prevent contractual formation. We disagree. Walsh argues that the parties never reached agreement over who was to supply “standees” — equipment necessary to the job. “A court cannot enforce a contract unless it can determine what it is.” I A. Corbin, Corbin on Contracts § 95 (1963). If a court is unable, due to indefiniteness or incompleteness in contracting, to determine whether the contract has been performed then it must find that no contract existed in the first place. See Columbian Rope Co. v. Rinek Cordage Co., 314 Pa.Super. 585, 592, 461 A.2d 312, 316 (1983). However, there was disputed testimony showing a usage in the trade that the subcontractor is to supply the standees. A usage of trade or industry custom may give precision to an otherwise indefinite contract. See E.A. Farnsworth, Contracts § 713 (1982). The jury was free to believe or disbelieve the evidence as to trade usage, and this court will not interfere with the jury’s factfinding function.

As to the absence of agreement over the terms of payment, there is an implied condition that absent contractual terms to the contrary, payment is to occur upon completion of the job. Commonwealth General State Author ity v. Loffredo, 16 Pa. Commonwealth Ct. 237, 247, 328 A.2d 886, 893 (1974).

Walsh further contends that Ingrassia’s forwarding of proposals to him following his bid constitutes a counteroffer. A counteroffer would have terminated Ingrassia’s power of acceptance. In the instant case, there was evidence of a completed agreement based on the telephone conversations sometime between the months of March and June. Besides this, there was evidence of an implied in fact contract. Rather than consider the proposals as counter offers, a reasonable jury could have concluded that a contract already existed, and therefore, the proposals would merely be inquiries seeking to effect a modification of an existing contract or to make an existing contract more definite.

In conclusion, as there was ample evidence from which a reasonable jury could find the existence of a contract, we shall not retry the case and invade the jury’s traditional fact finding function. A reasonable jury could conclude that either an oral contract existed (based on the telephone conversations between Ingrassia’s agent and Walsh) or that a contract implied in fact arose (evidenced by the course of events and the parties’ behavior over the period of time from the bid to the appellant’s refusal to perform). For these reasons, we affirm the trial court’s Order Denying the Judgment N.O.V.

Judgment affirmed.

WIEAND, J., concurred in the result.

      . Rule 1033. Amendment
      A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.

      . "Pa.R.C.P. 1033 does not set forth the procedure which must be followed. It only states that a party may amend by consent or by leave of court.” Amendment via "Petition and rule”, and even via motion were held permissible. Kiley v. Tredyffrin Township Board of Supervisors, 17 D & C.3d 431, 433 (1980).

      . Judge Thomson, the trial judge, wrote: “The theory perhaps most heavily relied upon by the Plaintiff at trial was that an oral contract was formed.” Lower Court op. at 4.
      Our review of the record indicates that both plaintiffs agent and defendant testified as to whether a binding oral contract existed or not.

      . We note that "(t)he policy of Pennsylvania courts is that amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those cases where surprise or prejudice to the other party would result ...” Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 137, 467 A.2d 1164, 1167 (1983).

      . A party’s subjective intent will form the basis of a contract only if the other party knows or has reason to know of the intent. 1 A. Corbin, Corbin on Contracts, § 107 (1963).

      . J. Murray, Murray on Contracts, § 20 (2d ed. 1974).

      . A contract implied in fact has the same legal effect as any other contract. It differs from an express contract only in the manner of its formation. An express contract is formed by either written or verbal communication. The intent of the parties to an implied in fact contract “is inferred from their acts in light of the surrounding circumstances.” Cameron v. Eynon, 332 Pa. 529, 532, 3 A.2d 423, 424 (1939).

      . Unlike the regional reporter, the Atlantic Second, the official Pennsylvania Superior Court Reports does not print the opinion in which this quotation appears, but instead states that the court affirms on the basis of the Court of Common Pleas opinion. It is in the Court of Common Pleas opinion that this quotation appears. This opinion can be found at 33 Pa.D. & C.2d 383, 389 (1964).

        . Judge Goodrich, referring to Williston and Corbin, wrote: "The emphasis of these two eminent writers is, it seems to us, inclined toward finding the formation of a contract prior to the signing of the document unless the parties pretty clearly show that such signing is a condition precedent to legal obligation. And since contract law has passed the formalism of elaborate doctrines pertaining to sealed instruments, it seems to us such emphasis is quite natural and quite correct.” Smith v. Onyx Oil & Chemical Co., 218 F.2d 104, 108 (3d Cir.1955). See also Nolan v. J & M Doyle Company, 338 Pa. 398, 13 A.2d 59 (1940).

      . See Brown v. Shirks Motor Express, 393 Pa. 367, 375, 143 A.2d 374, 379 (1958): "When the jury returned its verdict for the plaintiff here, it obviously rejected the defendant driver’s statement that he did not move the tractor except on orders of Brown or Crone. And, once rejected, the statement lost all vitality and could not be used by the court to give life to a theory repudiated by the verdict.
      "A jury verdict is like a building, which is erected from a vast supply of materials, only part of which can satisfy the blueprint of the architect. What is rejected, therefore, has no place in the building, and it can not be forced into the completed structure."


author: ROBERTS, Judge:

text:
    486 A.2d 484
    COMMONWEALTH of Pennsylvania v. James DESANTIS, Appellant. COMMONWEALTH of Pennsylvania v. Patrick CONNER, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 4, 1984.
    Filed Dec. 31, 1984.

      Philip B. Freidman, Erie, for appellant (at No. 201).
    Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant (at No. 329).
    Paul J. Susko, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before BROSKY, TAMILIA and ROBERTS, JJ.
   ROBERTS, Judge:

Appellants DeSantis and Conner were jointly tried by a jury and convicted of receiving stolen property. Their individual Motions for a New Trial and/or In Arrest of Judgment were denied and sentences were imposed. Although separate appeals were taken, we dispose of them in a single opinion, granting relief on a common ground. Appellants raise several issues, but on the record before us we need reach only the claim that the suppression court did not meet the requirements of Pa.R.Crim.P. 323(i). A review of the record satisfies us that the suppression court did not comply with the Rule, in that the court failed to enter on the record factual findings and conclusions of law.

Accordingly, we vacate judgment of sentence as to each appellant and remand for a new suppression hearing, after which the suppression court shall make the specific findings required by Rule 323(i) and enter an appropriate order. Commonwealth v. Guinther, 290 Pa.Super. 441, 447, 434 A.2d 834, 837 (1981); Commonwealth v. Jackson, 464 Pa. 292, 298, 346 A.2d 746, 748 (1975). If upon remand, the court enters an order granting the motion to suppress, such appellant shall be awarded a new trial. If, however, the suppression motion is denied, judgment of sentence shall be reinstated. Following the suppression court’s decision, the parties may appeal the order if they so desire. On that appeal they may also raise any issues presented and undecided in this appeal. See Commonwealth v. Jackson, supra; Commonwealth v. Twiggs, 460 Pa. 105, 111, 331 A.2d 440, 443 (1975).

Judgment of sentence vacated as to appellant DeSantis, and case remanded for proceedings consistent with this opinion. Judgment of sentence vacated as to appellant Conner, and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

       On the present appeal, appellant DeSantis also contends that (1) he was denied a full and fair suppression hearing because he was not permitted to offer testimony before the court ruled on the motion to suppress, (2) the court erred in denying his motion to suppress based on the record before it, (3) the court erred in refusing his motion in limine requesting that the Commonwealth not be permitted to use his prior record for rebuttal purposes, and (4) the court erred in reprimanding co-defendant’s counsel in the presence of the jury, to his prejudice.
      Appellant Conner also contends that (1) the suppression court erred in denying his motion to suppress because (a) the prosecutor engaged in prosecutorial misconduct by withholding favorable evidence from appellant, and (b) the evidence should have been suppressed upon the current record, and (2) the court improperly reprimanded counsel in the presence of the jury and thereby created a situation which deprived him of effective assistance of counsel.


author: LIPEZ, Judge:

text:
    486 A.2d 486
    COMMONWEALTH of Pennsylvania v. Thomas SCAINE, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 23, 1984.
    Filed Dec. 31, 1984.
    Petition for Allowance of Appeal Denied June 7, 1985.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before POPOVICH, HOFFMAN and LIPEZ, JJ.
   LIPEZ, Judge:

This is a direct appeal from the judgment of sentence imposed on Thomas Scaine, appellant, upon his conviction of robbery in a non-jury trial, and following the denial of his post-trial motions for a new trial or arrest of judgment. Of the four issues presented in this appeal, two (i.e. impermissibly suggestive identification at preliminary hearing and failure to provide a lineup) were clearly not raised by the appellant in his post-verdict motions, and, consequently, are not properly preserved for our review. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Remaining are appellant’s assertions that: (1) the photographic array utilized by the police in order to identify him was unduly suggestive thereby violating his constitutional guarantees of due process; and, (2) the trial court erred in allowing the Commonwealth to present testimony concerning a photographic identification when evidence, concerning the manner in which appellant’s photograph was obtained, was requested by but not disclosed to defense counsel in accordance with Pa.R.Crim.Proc. 305.

Whether appellant’s assertion of error regarding the admission of the photographic identification was also waived for failure to conform to the mandates of Blair and its progeny is uncertain because of appellant’s poor articulation of his post-trial motions. The requirements of Blair aside, we are nonetheless compelled to find a waiver of that allegation under authority of the Pennsylvania Rules of Criminal Procedure on pre-trial motions and suppression of evidence, and relevant case law. Rule 323(d) unequivocally states that a pre-trial motion for suppression of evidence shall state with specificity and particularity the evidence sought to be suppressed, the grounds for the suppression and the facts and events supporting the suppression. In addition, Rule 306 requires that all pre-trial requests for relief be included in one omnibus pre-trial motion. In his pre-trial motion for suppression of evidence, appellant made no reference to the discovery issue he now raises, and any attempted reference by counsel during the suppression hearing itself was denied by the trial judge specifically on that basis.

Moreover, prior judicial decisions on the subject add support to our finding. On a previous occasion, we held that failure to raise a suppression issue prior to trial precluded its litigation for the first time at trial, in post-trial motions or on appeal. Commonwealth v. Throckmorton, 241 Pa. Super. 62, 66, 359 A.2d 444, 446 (1976). More recently we stated that an issue is waived if it is not raised in pre-trial motions. Commonwealth v. Radogna, 317 Pa.Super. 586, 590, 464 A.2d 478, 480 (1983). See also Commonwealth v. McKennion, 235 Pa.Super. 160, 340 A.2d 889 (1975) (alloca-tur refused) (Any grounds not included in application for pre-trial relief are waived.). Because appellant clearly did not adhere to the procedural requirements of either the Rules or judicial precedent, we are precluded from reviewing that claim of error.

Consequently, we are concerned in this appeal with the sole question of whether the photographic array utilized by the police was unduly suggestive. In support of his claim, appellant cites various factors surrounding the pre-trial identification which he claims deprived him of his constitutional guarantees of due process. Appellant claims that the description of the man involved in the robbery, given by the victim, Lisa Reeser, was very vague and that the photographs in the array did not comply with that description. Additionally, appellant asserts that his picture was particularly suggestive because it was taken on the day immediately following the robbery and was so dated when placed in the array. Appellant concludes that the display of photographs was so unnecessarily suggestive and conducive to irreparable mistaken identification as to result in a denial of his right to due process. We disagree.

Initially we note that in determining the admissibility of a pre-trial identification, the essential criterion is the reliability of the identification under all of the circumstances disclosed by the record. Commonwealth v. Thompkins, 311 Pa.Super. 357, 363, 457 A.2d 925, 928 (1983). In his opinion supporting his denial of appellant’s post-trial motions, the trial judge discussed the circumstances of the victim’s identification of appellant which led him to the conclusion that the identification was reliable. Ms. Reeser testified that she had between two to three minutes to observe her assailant in a well-illuminated area; she gave a physical description of both of the men allegedly incriminated in the robbery; she had ample opportunity to observe her assailant face to face, and concentrated attentively on the man she later identified as the defendant as he was the primary actor; and she testified that at the time she gave the description to the police, she was “pretty calm.”

After the police had obtained a photograph of the appellant following his arrest for an unrelated offense, that photograph was included in an array consisting of five photographs of black males. Ms. Reeser selected appellant’s photograph from this array as being that of one of the perpetrators in the robbery. This identification was made approximately forty-eight hours after the crime, and the victim testified that she was “real certain” about her choice. Her selection of appellant’s photograph was further supported by her in-court identification of the appellant. The sole weakness in Ms. Reeser’s identification is the accuracy of her prior description of the criminal when applied to the appellant. The victim testified that her assailant was approximately five feet four inches in height, shorter than her by about two to three inches. In actuality, appellant is five feet seven inches tall, a fact elicited from the appellant on direct examination during the trial and not during the suppression hearing. Because height is not a feature which is readily apparent in a photograph, if apparent at all, this discrepancy lends no support to appellant’s claim that the photographic array itself was unduly suggestive. Moreover, it was the duty of the trial judge to assess this contradiction when weighing the evidence. The scope of our review is limited to determining whether the factual findings of the court in the suppression hearing are supported by the record, and whether the conclusions of law drawn therefrom are correct. Commonwealth v. Webb, 491 Pa. 329, 332, 421 A.2d 161, 163 (1980).

The fact that appellant’s photograph was dated and was the most recent of the five pictures in the array is insufficient to warrant a finding that the display was unduly suggestive absent any showing that Ms. Reeser relied upon the date to any extent in choosing as she did. Indeed, there is nothing in the record which even affords any inferences to that effect.

It is well-established that the factors to be considered when evaluating an identification procedure include the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at confrontation; and the length of time between the crime and the confrontation. Commonwealth v. Griffin, 271 Pa.Super. 228, 234, 412 A.2d 897, 900 (1979), petition for allowance of appeal denied (1980); Commonwealth v. Burgess, 319 Pa.Super. 501, 508, 466 A.2d 656, 659 (1983). Considering the totality of the circumstances in this case, we conclude that the photographic identification was reliable and not the product of police suggestion. The witness remained steadfast in her identification of the appellant both in and out of court, leading us to the conclusion that there was no substantial likelihood of irreparable misidentification.

Accordingly, the judgment of sentence is affirmed.


author: JOHNSON, Judge:

text:
    486 A.2d 489
    James S. RANKIN v. The SHERWIN-WILLIAMS COMPANY, a Corporation, Appellant, v. BLANCHARD ENTERPRISES, INC., A Corporation.
    Superior Court of Pennsylvania.
    Argued Aug. 30, 1984.
    Filed Dec. 31, 1984.

      Louis C. Long, Pittsburgh, for appellant.
    Kim R. Bobrowsky, Pittsburgh, for Blanchard, appellee.
    Before ROWLEY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

Sherwin-Williams Company brings this appeal from the order granting summary judgment in favor of additional defendant Blanchard Enterprises, Inc., and dismissing Blanchard from this action. Sherwin-Williams now argues, inter alia, that the court erred in that the record raises a genuine issue of material fact and Blanchard was therefore not entitled to judgment as a matter of law upon the assumpsit count. We agree and reverse.

On April 7, 1980, Blanchard rented an airless paint sprayer from Sherwin-Williams. The lease agreement which Blanchard’s agent signed, contained this language:

I/We hereby exonerate, indemnify and save harmless the Sherwin-Williams Company, the rentor, from any and all claims or liabilities of any nature whatsoever arising out of the rental and use of the above listed equipment.

Sherwin-Williams was aware at the time of the rental that the paint sprayer, which was capable of penetrating the skin with its spray, did not have a safety guard on the tip as required by OSHA. When the manager of the Sherwin-Wil-liams store began to give. instructions on the use of the sprayer, Blanchard’s agent stopped him and said that an experienced painter would be using the sprayer. In fact, James S. Rankin, Blanchard’s employee, had never used an airless paint sprayer. Subsequently, when Rankin was cleaning the sprayer with turpentine, his hand went into the spray and the turpentine penetrated the left index finger. Ultimately, doctors had to amputate Rankin’s finger.

Rankin filed a complaint against Sherwin-Williams, averring counts of negligence, strict liability, and breach of warranty. In addition to an answer and new matter, Sher-win-Williams filed a complaint to join Blanchard as an additional defendant, averring counts of negligence and assumpsit. In this joinder action it was asserted that Blanchard was negligent in instructing and supervising Rankin. The assumpsit count was based on the indemnification clause in the lease agreement. Blanchard moved for summary judgment, and the court granted this motion as to both counts. From this order, Sherwin-Williams appeals.

As to summary judgment on the negligence count, we find no error in the court’s ruling. This same issue was before our court in Szemanski v. Vulcan Materials Company, 272 Pa.Super. 240, 415 A.2d 92 (1979). There we ruled:

The attempted joinder of [the employer] as an additional defendant on the grounds that [the employer] was liable for negligence, either alone or jointly with [the third party] was improper. The joinder of the employer as an additional defendant in an action brought by an employee against a third party is barred by Section 303(b) of The Pennsylvania Workmen’s Compensation Act, as amended by the Act of December 5, 1974, P.L. 782, No. 263, § 6, 77 P.S. 481(b). See: Hefferin v. Stempkowski, 247 Pa.Super. 366, 372 A.2d 869 (1977). See also: Potts v. Dow Chemical Company, 272 Pa.Super. 323, 415 A.2d 1220 (1979).

Id. 272 Pa.Super. at 243, 415 A.2d at 93 (footnote omitted).

However, we reach a different result regarding the count in assumpsit. Quoting again from our decision in Szemanski, we noted:

However, Section 303(b) of The Pennsylvania Workmen’s Compensation Act does not bar an action by the third party against the employer if “liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.”

Id. 272 Pa.Super. at 243, 415 A.2d at 93-94.

We went on in Szemanski to hold that Pa.R.C.P. 2252(a), which covers joinder of additional defendants, was broad enough to permit joinder of express indemnitors. See also Nechwedowich v. Great Atlantic and Pacific Tea Company, Inc., 300 Pa.Super. 152, 446 A.2d 275 (1982). The case now at bar is procedurally on all fours with Szemanski and Nechwedowich.

We note that appellee contends that the language of the leasing agreement does not entitle Sherwin-Williams to indemnification for either its own negligence or for products liability. The language of the indemnification clause now at issue is of the more general type, like that in Szemanski (“all losses and all claims, demands, payments, suits, actions, recoveries and judgments ... arising out of any act or omission”), or in Nechwedowich (“to indemnify and hold harmless ... against all loss, cost, damage or liability of any kind or nature arising or growing out of or occurring in the performance of this contract”).

In this respect, the instant case is factually distinguishable from Potts v. Dow Chemical Co., 272 Pa.Super. 323, 415 A.2d 1220 (1979). In Potts, a number of employees of United States Steel Corporation sued Dow Chemical Company in trespass for injuries sustained when Dow was cleaning the water system at U.S. Steel’s plant. In turn, Dow filed complaints joining U.S. Steel as an additional defendant, on the grounds that U.S. Steel was liable over to Dow under the terms of the contract between these corporate parties. The contract provisions upon which Dow relied read as follows:

“5. The liability of [Dow] for injury to persons or damage to property, including ... injury to third parties or employees of [U.S. Steel] ... shall be limited to that directly resulting from the sole negligence of [Dow] in the performance of this contract.
6. [Dow] shall not be liable for any special incidental, indirect, punitive or consequential damage, including, but not limited, to loss of use or loss of profit, for breach of contract, negligence or any other cause of action.”

Based on the above, U.S. Steel filed preliminary objections in the nature of a demurrer, which the trial court sustained. On appeal, we affirmed the trial court’s ruling; we held:

The language relied on by Dow does not impose upon U.S. Steel an obligation to indemnify Dow against liability resulting from Dow’s negligence. On the contrary, the terms of the agreement clearly impose upon Dow the responsibility for injury negligently inflicted upon employees of U.S. Steel during the course of Dow’s work.

Id. 272 Pa.Super. at 326, 415 A.2d at 1221-1222.

By contrast, the indemnification clause in the instant case does not, on the face of it, contain such limiting language as would support a summary judgment on the assumpsit count. This is a matter of interpretation of the agreement to be resolved by the factfinder. See generally Nechwedo-wich, 300 Pa.Super. at 156 n. 3, 446 A.2d at 277 n. 3.

Accordingly, summary judgment on the count of negligence is affirmed. Summary judgment on the count of assumpsit is reversed and the case is remanded for further proceedings. This court does not retain jurisdiction.


author: WICKERSHAM, Judge: WIEAND, Judge,

text:
    486 A.2d 491
    Arthur P. SCHLAGEL and Mabel Schlagel, Appellants, v. Julius M. LOMBARDI and Frances C. Lombardi.
    Superior Court of Pennsylvania.
    Argued May 10, 1984.
    Filed Dec. 19, 1984.

      Michael C. Rainone, Philadelphia, appellants.
    Joseph P. Phelps, Jr., Norristown, appellees.
    Before WICKERSHAM, WIEAND and HOFFMAN, JJ.
   WICKERSHAM, Judge:

Arthur and Mabel Schlagel brought this action against Julius and Frances Lombardi to quiet title to a specific parcel of land located in Montgomery County. The Schla-gels contended that they had acquired title by adverse possession.

The original complaint was filed on April 18, 1974, to which appellees, the Lombardis, interposed preliminary objections. An amended complaint was filed on November 27, 1974, to which the appellees again interposed preliminary objections. By opinion and order dated January 28, 1980, two other separate lawsuits concerning the disputed land were consolidated with the instant suit in order to dispose of the entire controversy between the parties in one action. A second amended complaint was filed on February 29, 1980. Appellees then filed an answer and new matter.

The case proceeded to trial on April 29, 1981, before the Honorable Louis D. Stefan, sitting without a jury. At the conclusion of appellants’ case, appellees moved for the entry of a non suit. The non suit was granted in a memorandum and order dated April 30, 1981. Appellants filed exceptions to the court’s memorandum and order, which exceptions were argued before the court en banc. Appellants’ exceptions were subsequently dismissed by order dated November 16, 1982. This appeal followed.

In reviewing the propriety of a compulsory nonsuit, this Court will view the evidence in a light most favorable to the plaintiffs and give them the benefit of every reasonable inference arising therefrom. Francioni v. Gibsonia Truck Corp., 472 Pa. 362, 371, 372 A.2d 736, 740 (1977); Barney v. Foradas, 305 Pa.Super. 404, 407, 451 A.2d 710, 712 (1982); Adams v. Euliano, 299 Pa.Super. 348, 349- 350, 445 A.2d 788, 789 (1982). A nonsuit can only be entered in a clear case. Barney v. Foradas, supra; Adams v. Euliano, supra; Peair v. Home Association of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981).

Brouse v. Hauck, 330 Pa.Super. 58, 62, 478 A.2d 1348, 1350 (1984).

Instantly, appellants maintain that they took possession of and occupied the disputed tract commencing in 1940, when they purchased it for $200 in an oral agreement with Augustus Baumgart. The tract in question connects with a much larger parcel of land which appellants had previously purchased from Mr. Baumgart. In 1968, appellees purchased a parcel of land from the estate of Augustus Baumgart, which parcel included the disputed tract. In the early 1970’s, a dispute arose between the parties concerning the ownership of the subject tract. In June, 1974, appellants recorded a declaration of title acquisition by virtue of adverse possession of the tract.

[0]ne who claims title by adverse possession must prove that he had actual, continuous, exclusive, visible, notorious, distinct, and hostile possession of the land for twenty-one years. Each of these elements must exist, otherwise the possession will not confer title. Inn Le’Daerda, Inc. v. Davis, 241 Pa.Super. 150, 158, 159, 360 A.2d 209, 213 (1976). An adverse possessor must intend to hold the land for himself, and that intention must be made manifest by his acts. Kaminski Brothers, Inc. v. Grassi, 237 Pa.Super. 478, 480, 352 A.2d 80, 81 (1975). He must keep his flag flying and present a hostile front to all adverse pretensions. Commonwealth v. Bierly, 37 Pa.Super. 496, 504 (1908).

Reed v. Wolyniec, 323 Pa.Super. 550, 555, 471 A.2d 80, 84 (1983), quoting Smith v. Peterman, 263 Pa.Super. 155, 397 A.2d 793 (1978) (quotations omitted).

Instantly, Arthur Sehlagel, plaintiff below and appellant herein, testified that in 1940 he purchased approximately five and one-half acres of land from Augustus Baumgart. Sometime later, Baumgart and Schlagel allegedly agreed to extend the back boundary line of this property in exchange for the payment of $200 by Mr. Schlagel. Mr. Schlagel further testified that within the next few years, the $200 was paid in full and that he then started to use the land as his own. Plaintiffs-appellants presented evidence that they planted fruit trees, mowed the grass, operated an archery range, and conducted other activities indicating ownership of the tract throughout the years since the early 1940s. In granting appellees’ motion for non suit the lower court stated:

With respect to his assertion that he has possession by adverse activity, or has adverse possession, although the time frame would be appropriate, the fact is that all of the testimony that I heard yesterday was to the effect that the property was not taken on an adverse basis; but, rather, that he and Mr. Baumgart went out to the pear tree, or adjacent to the pear tree, and there drove a stake for the purpose of extending the backline some ninety feet. And thereafter, and through the pleadings and through the testimony concerning his payments of the sum of two hundred dollars in installments — if I accept all of that, which I think I do on the motion for a non-suit, then we have Mr. Schlagel, whether through Art’s Amusements, or whatever — but then I have no evidence at all to show that at any time there was an adverse or purported adverse holding until after such time as Mr. Lombardi came into title, which was not until the late 1960s, so, obviously, twenty-one years have not run since then.

Brief for Appellants at 23-24, Appendix “1.”

Thus, it appears that the lower court held that since Mr. Schlagel was under the impression that he had “purchased” the disputed tract from Mr. Baumgart, he did not hold the land “adversely” to Mr. Baumgart. We interpret this language to mean that the lower court felt that appellants’ possession was not “hostile.” In other words, since Mr. Schlagel was under the mistaken belief that he owned the land (mistaken because an oral agreement for the sale of land is not valid), he did not hold the land with a hostile intent to exclude Mr. Baumgart, the true owner. Because we feel that the lower court incorrectly interpreted the “hostile” intent element of adverse possession, we reverse and remand.

When considered as an element of adverse possession, “hostile” is a word of art. “While the word ‘hostile’ has been held not to mean ill will or hostility, it does imply the intent to hold title against the record title holder.” Vlachos v. Witherow, 383 Pa. 174, 118 A.2d 174, 177 (1955). Possession may be hostile even though the claimant knows of no other claim. 1 P.L.E. Adverse Possession § 41, 433-34. The question in this case, then, is whether appellants intended to hold title against Baumgart. The fact that appellant was under the false impression that he owned the land does not automatically mean that his possession was not “hostile.”

It is true that some jurisdictions ‘hold that the possessor’s mistaken belief in his ownership negatives the existence of a necessary hostile intent____ These jurisdictions identify hostility with the common-law tort of disseisin, i.e., forcible ouster. The theory is that one who does not know he is in possession of another’s land cannot harbor the specific intent to oust the other out of his land.’ Note, A Reevaluation of Adverse Possession as Applied in Boundary Dispute Litigation, Rutgers-Camden L.J. 293, 299 (1971). But most jurisdictions ‘deem the animus of the possessor irrelevant. Rather, they look to the actual physical facts of the possession to determine if such circumstances of notoriety exist so that the true owner is put on notice. They represent a belief that the nature of the possession alone is what is important and that a sufficiently notorious possession will always be enough to alert the owner. Therefore, the hostility is implied if all other elements have been established.’ Id. at 298. See also Annot., 80 A.L.R.2d 1171 (1961).
Pennsylvania follows the majority view. See, e.g., Dimura v. Williams, 446 Pa. 316, 286 A.2d 370 (1972); Adams v. Tamaqua Underwear Co., 105 Pa.Super. 339, 161 A. 416 (1932).

Lyons v. Andrews, 226 Pa.Super. 351, 351-60, 313 A.2d 313, 316-17 (1973). See also Burns v. Mitchell, 252 Pa.Super. 257, 381 A.2d 487 (1977).

Thus, even though the Schlagels, and perhaps Mr. Baum-gart, were laboring under a mistake concerning the ownership of the tract, their possession could have been hostile. It was error for the lower court to deny appellants’ adverse possession claim on the basis that their mistaken belief in their ownership negated the existence of the necessary hostile intent.

Since all of the elements of adverse possession must coalesce before title is conferred, Conneaut Lake Park, Inc. v. Klingensmith, 362 Pa. 592, 66 A.2d 828 (1949), it was unnecessary for the lower court to address the other elements once it found that the hostility element was lacking. However, since the court did not discuss the other elements, we are unable to discern whether the lower court would have found that appellants had otherwise made out a prima facie case of adverse possession. Thus, we are constrained to remand the case so that the lower court may consider whether the appellants’ evidence was sufficient to make out an adverse possession claim. If all the other elements have been established, the hostility element is implied. Lyons v. Andrews, supra.

Appellants’ second issue concerns the question of whether the land in dispute and its boundaries were sufficiently identified. In stating its reasons for granting appellees’ non suit, the lower court discussed whether the Schlagels could assert title by reason of the alleged oral agreement with Mr. Baumgart. The lower court stated:

I just do not think in this case that Mr. Schlagel has shown enough that I could enforce this alleged oral agreement. I don’t think there has been enough testimony or evidence to justify the drawing of a line as proposed on this survey of Mr. Meixner. The only testimony is that there was a stake put in thirty feet to the back, or ninety feet or so from the back, and one little slip of paper by the witness, which is a receipt, and only refers to an extension. But there is not sufficient that I would be happy in attempting to relocate the line so that he acquires a certain area.

Brief for Appellants at 26, Appendix “1.”

It appears to us that the court meant that the oral agreement was insufficient in that the boundaries indicated in the agreement were too indefinite. It is not clear that the lower court would reach the same conclusion if it found all of the elements of adverse possession to exist. In fact, as to the adverse possession claim, appellees admit that “[t]he boundaries of the subject tract are not in dispute.” Brief for Appellees at 10.

Reversed and remanded for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

WIEAND, J., filed a concurring and dissenting statement.

WIEAND, Judge,

concurring and dissenting:

I agree with and join the majority’s careful discussion regarding the requirement that adverse possession must be “hostile.” Having reached this conclusion, however, I would hold that the compulsory nonsuit was improperly entered. Where, as here, the questions left undecided by the trial court are strictly matters of law, they should be decided by the reviewing court rather than remanded for determination by the trial court. See: Shepherd v. General Telephone & Electronics Corp., 411 Pa. 49, 54-55, 190 A.2d 895, 898 (1963). Since I conclude that appellants made out a prima facie case of adverse possession, I would reverse and remand for a new trial.

      . The lower court did not write a separate opinion in this case, but merely stated the reasons for the grant of the non suit on the record on April 30, 1981. See Memorandum and Order of Judge Stefan dated April 30, 1981.

        . Appellants contend that Judge Stefan found that they had fulfilled all of the requirements of adverse possession except the hostility element. Brief for Appellants at 11. Appellees argue, on the other hand, that Judge Stefan found that the other requirements of adverse possession had not been met. Brief for Appellees at 8-9. Our reading of Judge Stefan’s recorded comments, however, indicates that he made no findings at all as to the existence or non-existence of the remaining elements of appellants’ adverse possession claim.


author: SPAETH, President Judge:

text:
    486 A.2d 495
    COMMONWEALTH of Pennsylvania v. Darnell MATHEWS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 26, 1984.
    Filed Dec. 21, 1984.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and MONTGOMERY, JJ.
   SPAETH, President Judge:

While on probation for a 1979 conviction, appellant was convicted of receiving stolen property. A probation revocation hearing was held, probation was revoked, and appellant was sentenced to 1-5 years for the 1979 conviction. On appeal, appellant’s only argument is that the trial court did not adequately state its reasons for the sentence imposed. We agree and therefore reverse and remand for resentenc-ing.

When a trial court imposes sentence following revocation of probation, it must state its reasons on the record. Commonwealth v. Aldinger, 292 Pa.Super. 149, 436 A.2d 1196 (1981). The reasons stated should reflect the court’s consideration of the criteria of the Sentencing Code, 42 Pa.C.S. § 9701 et seq., the circumstances of the offense, and the character of the offender. Commonwealth v. DeLuca, 275 Pa.Super. 176, 418 A.2d 669 (1980). Although the sentencing court need not list and address each of the criteria of the Sentencing Code, Commonwealth v. Zimmerman, 282 Pa.Super. 286, 422 A.2d 1119 (1980), the record must reflect that the criteria were considered. Commonwealth v. DeLuca, supra.

The trial court gave the following reasons for its sentence:

The defendant has a very bad record, and we gave him a break the last time. He was found guilty as indicted, and he was placed on probation for a period of time, five years, on an offense that was a felony of the third degree. And he had violated his probation.
So we gave him the chance there. And he was new to the system at the time we did that.
However, at this point in time, there comes a time when we feel we had ought to get rid of the probation office for giving us bum advice, or we ought to pay attention to them giving us advice that we perhaps from time to time ignore because we give in to the pleadings of counsel or the defendant.
It’s not that we get any pleasure sending people to jail when we don’t learn otherwise. There has to be some solution other than goin[g] out, come back in the program, leaving the program, go back to the program. N.T. 10-11.

The Commonwealth argues that 42 Pa.C.S.A. § 9771(c) specifically permits a sentence of total confinement after probation is revoked because a defendant has been convicted of another crime, and that, by implication, nothing further need be stated. § 9771(c) provides:

Limitation on sentence of total confinement. — The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1) the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court.
Id. (emphasis added).

We do not agree that this section permits a sentence of total confinement simply because one has been convicted of a crime. Rather, the plain interpretation of it is that it limits the trial court’s ability to impose a sentence of total confinement for probation violations. The court shall not impose a sentence of total confinement unless one of three circumstances is present. These circumstances, that the defendant has been found guilty of a crime, that he is likely to commit another crime, or that the authority of the court needs to be vindicated, are necessary, but not sufficient, to impose a sentence of total confinement. They are prerequisites to such a sentence.

Once these prerequisites have been established, the court should consider the Sentencing Code’s criteria for total confinement, the character of the defendant, and the circumstances of the crime for which sentence is being imposed. Commonwealth v. DeLuca, supra. The Sentencing Code provides that

The court shall impose a sentence of total confinement if, having regard to the nature and circumstances of the crime and the history, character, and condition of the defendant, it is of the opinion that the total confinement of the defendant is necessary because:
(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.
42 Pa.C.S. § 9725.

The reasons for sentence given by the trial court sufficiently indicate that the sentencing criteria were considered. The court considered the history of thé defendant (“The defendant has a very bad record”), and that commitment to an institution would be more effective than a continuation of probation (“there has to be some solution other than going out, come back in the program”). Although a conviction while on probation is not by itself enough to warrant imposition of a sentence to total confinement, we find that the reasons given for the sentence adequately indicate that the sentencing criteria were considered.

However, the reasons for sentence give no indication that the court considered either the character of the defendant, or the circumstances of the offense for which he was sentenced. Appellant had had a problem with drugs and had been pursuing treatment. N.T. 5. In its reasons for sentence, the trial court did not mention this. There is also no mention of the circumstances of the crime for which he was sentenced, the 1979 conviction. The trial court did not mention what that crime was. Defendant was not, and could not be, sentenced for violation of probation, but rather for his 1979 conviction. Since the trial court did not expressly consider the character of the defendant or the circumstances of that offense, we shall reverse and remand for resentencing.

So ordered.


author: WICKERSHAM, Judge:

text:
    486 A.2d 498
    Rex A. FRAVEL, Harold L. Fravel & Shirley J. Fravel v. SUZUKI MOTOR CO., LTD. and U.S. Suzuki Motor Corp. and Thomas Krouse, Individually and Trading as Krouse Sport City and Evelyn J. Lehman.
    Superior Court of Pennsylvania.
    Argued Aug. 16, 1984.
    Filed Dec. 21, 1984.

      Stephen M. Feldman, Philadelphia, for appellants.
    Scott Millhouse, Pittsburgh, for appellees.
    Before WICKERSHAM, JOHNSON and WATKINS, JJ.
   WICKERSHAM, Judge:

In this case, plaintiffs/appellants Rex, Harold, and Shirley Fravel appeal from the order of the Court of Common Pleas of Lycoming County sustaining the preliminary objections filed by Suzuki Motor Co., Ltd. and U.S. Suzuki Motor Corporation (hereinafter referred to collectively as “Suzuki”) and dismissing plaintiffs’ complaint as against those two defendants. We reverse.

The complaint alleges that Rex Fravel suffered permanent quadriplegia when the 1980 Suzuki motorcycle he was operating collided with an automobile operated by additional defendant Evelyn J. Lehman. The nineteen year old Fravel had been traveling west on Allegheny Street in Jersey Shore, Pennsylvania when he was struck by Ms. Lehman’s car, which had been proceeding in an easterly direction on the same street. Appellants allege that Ms. Lehman made a left turn onto a cross street, in front of Fravel’s on-coming motorcycle.

Plaintiffs’/appellants’ complaint sets forth two theories of liability against the two Suzuki companies, which manufactured and distributed the motorcycle that Fravel was riding on the day of the collision. Appellants’ first theory is based on strict liability for the sale of a defective product under Restatement (Second) of Torts § 402A. Appellants allege that the motorcycle was sold in a dangerous and defective condition in that it was not sufficiently visible to the operators of vehicles coming in the opposite direction, it lacked the safety devices necessary to increase its conspicuousness, and it was not accompanied by adequate warnings or directions. Appellants’ second theory of liability is based on the negligence of Suzuki. Specifically, appellants allege that despite the fact that Suzuki knew or should have known that the motorcycle was unreasonably dangerous in that it was not sufficiently visible to operators of vehicles coming in the opposite direction, Suzuki failed to use due care to add such safety devices as would reasonably increase its conspicuousness and failed to use due care to warn the users of the facts that made it dangerous or of the steps that could be taken to lessen or avoid the danger.

Suzuki filed preliminary objections in the nature of a demurrer on the ground that appellants’ complaint failed to state a cause of action upon which relief could be granted. On January 6, 1984, the Honorable Robert J. Wollet sustained Suzuki’s preliminary objections and dismissed appellants’ complaint as to the two Suzuki companies. The lower court also refused appellants’ request for leave to amend their complaint. This appeal timely followed.

Appellants argue that their complaint states valid causes of action in both strict liability and negligence, and therefore the lower court erred in granting appellees’ preliminary objections. Our scope of review in cases sustaining preliminary objections in the nature of a demurrer is well established.

In considering preliminary objections in the nature of a demurrer, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 503-504, 267 A.2d 867, 868 (1970). A demurrer admits every well-pleaded material fact set forth in the complaint, as well as all inferences reasonably deducible therefrom, but not conclusions of law. Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979); Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976); Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. 497, 500, 450 A.2d 36, 37 (1982). The law does not provide a “magic formula” to determine the sufficiency of a plaintiff’s complaint, however, the law is clear that a demurrer can only be sustained in a case free from doubt. Hoffman v. Misercordia [sic] Hospital of Phila delphia, supra; Chorba v. Davlisa Enterprises, Inc., 303 Pa.Super. at 500, 450 A.2d at 38; Pike County Hotels, Corp. v. Kiefer, 262 Pa.Super. 126, 135, 396 A.2d 677, 681 (1978).

Bartanus v. Lis, 332 Pa.Super. 48, 52-53, 480 A.2d 1178, 1180 (1984).

In accordance with the aforesaid, we must examine the factual allegations of the complaint to determine whether appellants stated a valid cause of action against Suzuki. The lower court stated that the issue in the instant case was “whether the motorcycle’s alleged inconspicuity is an inherent danger or whether it is an unreasona[bl]e danger, which could be reduced through devices or warnings.” Lower ct. op. at 3 (emphasis in original). In response to this question, the court stated:

[T]he Court is confident in taking judicial notice of the fact that motorcycles are, by design, limited in size and, therefore, inconspicuous. Moreover, wé conclude that it is indisputable that such inconspicuity is obvious to the consumer or user of a motorcycle____ [W]e conclude that the complaint fails to allege a valid cause of action. The Court finds that a motorcycle’s inconspicuity results from its very function and purpose, and is, consequently, an inherent danger rather than an unreasonable danger which could be reduced by the designer or manufacturer. See Pegg v. General Motors Corp., 258 Pa.Superior Ct. 59, 391 A.2d 1074 (1978). The product involved here is, by its very nature, unsafe but not defective. Berkebile v. Brantly Helicopter Corp., 426 Pa. 83, 337 A.2d 893 (1975); Restatement (Second) of Torts, Section 402A, Comment i.

Lower ct. op. at 5-6.

Thus, the lower court’s ultimate conclusion was that while the inconspicuity of the motorcycle rendered it unsafe, this inconspicuity was an inherent danger and thus could not be classified as a defect under section 402A. In support of this finding, the lower court cites Comment i to section 402A. Comment i explains that:

[t]he rule stated in [Section 402A] applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.

Restatement (Second) of Torts, § 402A comment i. Obviously, the lower court decided that the motorcycle was not “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it.” We are not convinced, however, that comment i is applicable to the instant case. In Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975), the Pennsylvania Supreme Court noted that the drafters of the comments to section 402A were particularly concerned with products that are ingested. Specifically, comment i states that “[m]any products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption.” See id., 462 Pa. at 95 n. 5, 337 A.2d at 899 n. 5. Obviously, a motorcycle is not a product that can be ingested; thus, the applicability of comment i to the instant case is questionable.

Nevertheless, we need not specifically decide if comment i should be applied instantly. Rather, we base our decision on a factor which appears throughout a number of the comments to section 402A. That is, even assuming that a given product is inherently unsafe and that it cannot be made safe without interfering with its very nature and purpose, it is still incumbent upon the seller to give adequate warning of the danger. See Restatement (Second) of Torts, § 402A comments h, j, k. This requirement was expounded upon in Berkebile v. Brantly Helicopter Corp., supra.

A “defective condition” is not limited to defects in design or manufacture. The seller must provide with the product every element necessary to make it safe for use. One such element may be warnings and/or instructions concerning use of the product. A seller must give such warning and instructions as are required to inform the user or consumer of the possible risks and inherent limitations of his product. Restatement (Second) of Torts § 402A, comment h. If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiffs injury, the seller is strictly liable without proof of negligence.
“Comment h to the section [402-A] makes it clear that a product, as to which adequate warning of danger involved in its use is required, sold without such warning is in a ‘defective condition.’ ” Incollingo v. Ewing, et al., 444 Pa. 263, 287, 282 A.2d 206, 219 (1971).

Berkebile, supra, 462 Pa. at 100, 337 A.2d at 902.

Instantly, appellants’ complaint alleges, inter alia, that Suzuki did not give adequate warning of the motorcycle’s inconspicuity. The lower court, however, dismissed the complaint at the preliminary objection stage. We think this disposition was premature. The lower court could not decide whether the warnings provided by Suzuki were adequate on the basis of the existing pleadings alone. Appellants should have been permitted to present their evidence, or alternatively, to amend their complaint, in order to attempt to establish the inadequacy of Suzuki’s warnings. On remand, appellants should also be given an opportunity to establish their claim that the motorcycle lacked the safety devices that could have increased its conspicuity.

The lower court found that both appellants’ strict liability claim and their negligence claim must fail because the motorcycle’s inconspicuity was an inherent danger that could not be classified as a defect. As the foregoing discussion indicates, we find this conclusion to be invalid with regard to appellants’ negligence claim. Appellants’ complaint averred that, despite the fact that Suzuki knew or should have known about the inconspicuity of the motorcycle, the companies failed to use due care to add necessary safety devices and to warn users of the potential danger. The lower court held that the motorcycle could not be made safer without destroying its purpose. As we have already noted, this is not necessarily true. Suzuki had a duty to exercise due care in warning users about dangerous propensities of the motorcycle. Thus, if appellants can prove that Suzuki failed to exercise due care with regard to the production, marketing, and/or sale of the motorcycle in question, as well as the other requisite elements of a negligence claim, Suzuki may be held liable to appellants. Thus, appellants should have been permitted to amend their complaint or to present evidence in support of their negligence claim.

We find that the lower court’s dismissal of appellants’ complaint was premature.

Order reversed and appellants’ complaint is reinstated. Case remanded to the lower court for proceedings not inconsistent with this opinion. Jurisdiction is relinquished.

      . The other defendant, Thomas Krouse, individually and trading as Krouse Sport City, is the retailer of the motorcycle. He is not a party to this appeal, nor is the additional defendant, Evelyn Lehman.

      . Appellants state the issues as follows:
      1. Was it not error to grant the demurrer of the defendant motorcycle manufacturer in this product liability action where the complaint alleges that the motorcycle was sold in a dangerous and defective condition in that it was not sufficiently visible to operators of vehicles coming in the opposite direction, that it lacked the safety devices necessary to increase its conspicuousness and that it was not accompanied by adequate warnings or directions?
      2. Was it not error to grant the demurrer of the defendant motorcycle manufacturer in this product liability action where the complaint alleges that despite the fact that defendants knew or should have known that the motorcycle was unreasonably dangerous in that it was not sufficiently visible to operators of vehicles coming in the opposite direction, defendants failed to use due care to add such safety devices as would reasonably increase its conspicuousness and failed to use due care to warn the users of the facts that made it dangerous or of steps that could be taken to lessen or avoid the danger?
      Brief for Appellants at 3.

      . We are quick to point out that, by this decision, we are in no way indicating our opinion as to the ultimate issue of Suzuki’s liability to the appellants. Rather, we simply find that appellants’ complaint does indeed state a cause of action in strict liability.
      We also want to stress that we do not hold that the issue of Suzuki’s liability must necessarily be submitted to the jury. We recognize that a determination of whether recovery would be justified under plaintiff’s averments of fact is a judicial function. Azzarello v. Black Brothers Co., Inc., 480 Pa. 547, 391 A.2d 1020 (1978). However, under the specific facts of this case, the lower court abused its discretion in dismissing the complaint without allowing appellants to present their evidence, or at the very least, to amend their complaint.
      We recognize that the lower court refused to allow appellants to amend their complaint on the ground that allowance of an amendment would be a futile exercise. Carlino v. Whitpain Investors, 499 Pa. 498, 453 A.2d 1385 (1982). Pursuant to the lower court’s conclusion and disposition of the case, we agree that an amendment would have been futile. However, we find that the lower court’s conclusion was incorrect and that an amendment would not necessarily be futile.


author: OLSZEWSKI, Judge:

text:
    486 A.2d 502
    COMMONWEALTH of Pennsylvania v. Charles YORK, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1984.
    Filed Dec. 21, 1984.

      J. David Ungerman, Erie, for appellant.
    Shad Connelly, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before SPAETH, President Judge, and BROSKY and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

In this case, appellant Charles York appeals the lower court’s denial of his motion for new trial and arrest of judgment. The issue argued below and presented here is whether the prosecution’s question and a witness’s answer about a lie detector test warrant a new trial. We hold that the question and answer were inadmissible and incurably prejudicial and vacate the judgment of sentence.

Appellant was convicted of second-degree murder, robbery, and possession of the instruments of a crime in September of 1980. The key prosecution witness was Christopher Hewett, who had been appellant’s companion before and after the killing took place. Appellant, at trial, alleged that the victim had grabbed his testicles and that he had stabbed him out of anger. The Commonwealth’s witness testified that York had stated before the killing that he was going to rob someone.

At trial, after questioning Hewett carefully, the prosecution asked whether he had had the occasion to take a lie detector test. The witness replied, “yes,” and defense counsel immediately asked for a sidebar conference, where he requested a mistrial. The court refused the request, instead giving instructions to the jury to disregard the question and the statement. The jury convicted York.

Our Supreme Court has disallowed any use of polygraph tests in evidence. Commonwealth v. Saunders, 386 Pa. 149, 125 A.2d 442 (1956); Commonwealth v. Johnson, 441 Pa. 237, 272 A.2d 467 (1971). When a question relating to polygraphs is prompted by the prosecution and bolsters the testimony of a witness adverse to the defense, a conviction based in part on testimony mentioning a polygraph will not be permitted to stand. Commonwealth v. Miller, 497 Pa. 257, 439 A.2d 1167 (1982).

Here, the question was undeniably put by the prosecution. It bolstered the testimony of the witness, because it was asked by the Commonwealth’s attorney after the Commonwealth’s major witness had recited his version of the incident.

The question and answer were so highly prejudicial in this case as to be impossible to cure by instruction. We are not convinced beyond a reasonable doubt that the error here did not contribute to the verdict. Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978). We have no choice other than to vacate the judgment of sentence and remand for a new trial.

Judgment of sentence vacated and case remanded for a new trial.

      . The details of the crime are as follows: York, who had been driving around Erie with Hewett, had mentioned a need for money. They drove to a park downtown, known as a place frequented by homosexuals. York left the car and stood on a corner; when a car drove up, York had a brief conversation with the man inside, got in, and drove off with him. Hewett testified that York returned after an hour, told him that the man had said he was sorry, he had only $12, and that the man had grabbed his testicles, and that York had stabbed him. At trial, York testified that he had hoped to sell the man sexual favors.

      . Another witness, Lois Ann Ace, testified that appellant had been without funds the day before the killing and had borrowed money from her. Hewett was the only witness testifying as to events on the evening of the killing.

      . We are at a loss to understand why the Commonwealth chose to bolster its case in this fashion. If, as the Commonwealth maintains, there was independent and corroborative evidence to show that York was the killer and robbery was the motive, it would seem superfluous to bring up a lie detector test, especially when the results could never be announced.