author: PRICE, Judge: WIEAND, Judge,

text:
    458 A.2d 1364
    Nancy ASPER, Administratrix of the Estate of Joni Marie Asper, Deceased, Appellant, v. Ronald Wayne HAFFLEY.
    Superior Court of Pennsylvania.
    Argued Jan. 6, 1981.
    Filed March 31, 1983.
    Petition for Allowance of Appeal Denied July 21, 1983.

      Brett 0. Feese, Williamsport, for appellant.
    J. Michael Williamson, Lock Haven, for appellee.
    Before PRICE , WIEAND and HOFFMAN, JJ.

       This decision was reached prior to the death of Judge Price.

   PRICE, Judge:

In September of 1976, Joni Marie Asper died of smoke inhalation in a fire which occurred in the apartment which her father, John Asper, rented from appellee, Ronald Wayne Haffley. As a result of her death, the administratrix of Joni’s estate instituted proceedings against Mr. Haffley. In August of 1980, appellee’s motion for summary judgment was granted and this appeal followed.

Mr. Haffley purchased the premises on which the fire occurred in 1972. Prior to May of 1976, appellee used the front portion of the one story building as an office in connection with his insurance business. The rear portion was used as his own residence. Appellee eventually ceased to reside on the premises and made certain alterations to the structure in anticipation of renting the rear portion of the building. The wall which separated the office from the residence was changed to eliminate two doorways which had connected the living area to the office area. Additionally, appellee installed storm windows on the inside of the windows in the living area. These storm windows could not be opened except by breaking the window panes.

In May of 1976, appellant leased the living area to John Asper, who then occupied the apartment with his four daughters, one of whom was Joni Marie Asper. In the early morning of September 8, 1976, the fire occurred in which Joni, the only person then present, perished. At the time of the fire Joni was apparently in her bedroom and would have been unable to use the exit to the outside because of the location of the fire blocking that means of escape. Evidence of bruises, abrasions and cuts on Joni’s hands and arms would permit an inference that she had made an unsuccessful attempt to break through the storm window in her bedroom to escape the fire.

In granting summary judgment to Mr. Haffley, the court below determined that under general principles limiting the scope of landlord liability, appellant had not alleged sufficient facts on which appellee could be held liable on a theory of negligence. The court also held that appellee could not be found strictly liable for maintaining a building in violation of the Fire and Panic Act (“Act”), as the building in which the fire occurred was not subject to regulation under that statute. Finally, appellant was denied the opportunity to amend her complaint to incorporate a theory of strict liability under § 402A of the Restatement of Torts (Second). While we agree with the court below that in this case there can be no recovery on a theory of strict liability, we find that appellant is entitled to present her negligence claim at trial for determination by the fact finder.

STRICT LIABILITY—THE FIRE AND PANIC ACT.

Appellant’s argument for her strict liability claim under the Act is predicated on two propositions: (1) that appellee’s building was a structure subject to regulation under the Act and (2) that as such his building was in violation of regulations of the Department of Labor and Industry requiring at least two exits.

Section Two of the Act defines the classes of buildings and structures covered by the statute. Appellant argues that the building is included in both Class I and Class IV.

At the time this case arose, Class I buildings included:

Factories, power plants, mercantile buildings, hotels, office buildings, hospitals, asylums, public and private institutions, convalescent and nursing homes, schools, colleges, school and college auditoriums and gymnasiums when used for public assemblages, airports, airport buildings, airplane hangars, dormitories, warehouses, garages, farm buildings, except those used to store produce prepared for market or sell farm products grown, raised or produced by the owner or tenant of the building, and all other buildings specified by the department, not enumerated in Classes II, III, IV and V, wherein persons are employed, housed or assembled, except those farm buildings excluded herein.

35 P.S. § 1222 (1977) (amended 1981).

Appellant argues that the one story building was covered under the catch-all clause “... and all other buildings specified by the department, not enumerated in Classes II, III, IV, and V ...” She points to 34 Pa.Code § 37.3, entitled “Scope”, which in essence extends the application of the Act to every building in the Commonwealth not specifically exempted by the statute.

In Commonwealth Industrial Board v. United States Steel Corp., 22 Pa. Commonwealth Ct. 590, 597 n. 7, 350 A.2d 433, 437 n. 7 (1976), the Commonwealth Court found that this regulation did extend the Act’s application to all unexempted structures. In that case, however, the court noted that the issue of the validity of the regulation extending coverage to the structures involved was not raised. Id., 22 Pa.Commonwealth at 597 n. 8, 350 A.2d at 437, n. 8. We conclude that 34 Pa.Code § 37.3 is invalid insofar as it is intended to extend the coverage of the Act to such a one story single-unit residential dwelling.

While a literal reading of the catch-all clause ending the list of Class I structures could include such a building, as a matter of construction this general phrase should not be extended to encompass structures of a completely different type from those enumerated in the preceding language.

The specifically mentioned buildings which house people include hotels, hospitals, public and private institutions, nursing homes, and dormitories. Appellant’s building was for the occupancy of one family, and not for large numbers of people as is the case with the enumerated structures in Class I. We agree with the court below that if the legislature had intended to cover all buildings, it would have been a simple matter to do so expressly, and there would have been no need to carefully list and describe the structures covered by the Act. Therefore, insofar as 34 Pa.Code § 37.3 can be read to include a building such as the one in this case, it exceeds the authority of the Department of Labor and Industry to regulate under the Act, and is invalid.

Appellant’s attempt to include the dwelling in Class IV must also fail. Class IV buildings include

Tenement houses, apartment houses, apartment hotels, clubhouses, lodging houses and rooming houses.

35 P.S. § 1222. 34 Pa.Code § 37.1 defines tenement houses and apartment hotels as apartment houses. Apartment houses are then described as having more than one story. A clubhouse is defined as a house or building used as a residence for members of a club or organization. Clearly this single apartment is not included in these definitions. Both lodging houses and rooming houses are defined by 34 Pa.Code § 37.1 as boarding houses. A boarding house is defined as “any building except a hotel, inn, or tavern, in which persons are lodged, for a day or night or longer period, for consideration.”

The court below determined that the building in this case was not included in this definition for two reasons. First, the court observed that lodging, rooming and boarding houses commonly involve the providing of additional services other than the leasing of living quarters. Secondly, the court found that the decision of the Commonwealth Court in Baptist Children’s House v. Commonwealth of Pa. Industrial Board of Dept. of Labor and Industry, 51 Pa. Commonwealth Ct. 227, 414 A.2d 159 (1980), applied to exclude coverage. In that case, the Commonwealth Court found that the Department had exceeded its authority under the Act in attempting to regulate a group foster home in a single family dwelling. As the court in Baptist Children’s House observed, an interpretation of the Act as including such a structure

... seems unreasonably broad in the light of the extensive regulation contemplated by Section 1 of the Act, 35 P.S. § 1221, and therefore may not be imputed to the legislature. 1 Pa.C.S. § 1922(1).
An administrative agency may exercise only those powers which the legislature has granted it, either expressly or by implication, and the grant must be clear and not doubtful. Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d 731, 735-36 (1978) ...

Id., 51 Pa.Commonwealth at 230-31, 414 A.2d 161. We agree with the court below that the single family dwelling in this case was not covered under the Act.

PROPOSED AMENDMENT—402A.

Appellant was refused permission to amend her complaint to state a claim under § 402A of the Restatement of Torts (Second), because the court below found that her request was untimely. The court observed that the case had been pending for three years, and that three separate complaints had been filed without any suggestion that § 402A might be applied. Therefore, the court concluded that “[i]n the space of three years, ... counsel ought to be able to finally decide the legal theories on which a case is to be tried.” Slip op. at 10.

We are mindful of - the fact that amendments to pleadings are to be freely allowed under our rules of civil procedure. Bata v. Central-Penn National Bank, 448 Pa. 355, 293 A.2d 343 (1972). This liberality, however, is subject to the qualification that an amendment may not introduce a new cause of action after the statute of limitations has run. Saracina v. Cotoia, 417 Pa. 80, 85, 208 A.2d 764 (1965). In this case, the statute had run at the time the amendment was proposed.

Section 402A of the Restatement of Torts (Second) reads as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer of his product is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Even if we were to accept appellant’s assumption that a residential lease of an existing and previously occupied single family dwelling can be characterized as a “product”, we note that a crucial element of § 402A liability is that the seller must be “engaged in the business of selling such a product.” Appellant’s original complaint does not allege that the landlord was in the business of leasing property. In fact, the record discloses that Mr. Haffley was in the insurance business. (R. 29a, 50a).

Appellant cites Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 319 A.2d 914 (1974), for the proposition that a claim under § 402A is implicit in an allegation of negligence. In that case, however, averments in the original complaint to the effect that the product was manufactured for sale, and sold to the plaintiff’s employer were sufficient to compel the inference that the defendant was in the business of selling cranes. No such influence can be drawn from appellee’s single lease of his former home to Mr. Asper.

In Francioni v. Gibsonia Truck Co., 472 Pa. 362, 372 A.2d 736 (1977), cited by appellant for its holding that § 402A can apply in the context of a lease, our Supreme Court stated that, “Engagement in the business of ‘selling’ (leasing) products is, of course, a basic requirement of the rule.” Id., 472 Pa. at 369, 372 A.2d at 739.

Thus, even those courts and commentators inclined to extend strict liability concepts to the area of housing rental would require for the application of strict liability that the lessor be engaged in the business of property rental, and not merely involved in an isolated transaction concerning a personal residential lease. See, e.g. Boudreau v. General Electric Co., 2 Hawaii App. 10, 625 P.2d 384 (1981); see also, Love, Landlord’s Liability for Defective Premises, Wisc.L.Rev.1975: 19, 134. We find that the court below did not err in refusing appellant permission to amend her complaint to allege liability under § 402A.

NEGLIGENCE

We cannot, however, agree with the court below that appellant did not allege sufficient facts on which appellee could be held liable on a theory of negligence. As this court noted in Rivera v. Selfon Home Repairs and Improvements Co., 294 Pa.Superior Ct. 41, 439 A.2d 739 (1982), our Supreme Court in 1979 adopted an implied warranty of habitability in residential leases. Pugh v. Holmes, 486 Pa. 272, 405 A.2d 897 (1979). The court in Pugh stated:

The implied warranty is designed to insure that a landlord will provide facilities and services vital to the life, health, and safety of the tenant and to the use of the premises for residential purposes ... This warranty is applicable both at the beginning of the lease and throughout its duration ...
Additionally ... to assert a breach of the implied warranty of habitability, a tenant must prove he or she gave notice to the landlord of the defect or condition, that he (the landlord) had a reasonable opportunity to make the necessary repairs, and that he failed to do so.

Id., 486 Pa. at 289, 290, 405 A.2d at 905, 906.

In the instant case, the facts alleged and reasonable inferences therefrom were sufficient, if proved, to support a finding that a dangerous condition (the sealed windows and lack of alternative exit) existed with respect to the premises leased, that the landlord was aware of the dangerous condition and failed to exercise reasonable care to correct the condition, and that the existence of the condition was in violation of an implied warranty of habitability.

As we stated in Rivera, supra, this is precisely the subject of the Restatement of Property (Second) § 17.6, comment a, b, c (1977), representing the modern weight of authority in this area:

Landlord Under Legal Duty to Repair Dangerous Condition
A landlord is subject to liability for physical harm caused to the tenant or his subtenant by a dangerous condition existing before or arising after the tenant has taken possession, if he has failed to exercise reasonable care to repair the condition and the existence of the condition is in violation of
(1) an implied warranty of habitability;
or
(2) a duty created by statute or administrative regulation.

Rivera, supra 294 Pa.Superior Ct. at 47, 439 A.2d at 742. Cf. Ford v. Ja-Sin, Del.Super., 420 A.2d 184, 187 n. 4 (1980) (holding that a tenant’s guest could recover for her personal injuries against the landlord upon a showing of simple negligence under the Delaware Landlord-Tenant Code, 25 Del.C. § 5101 et seq., consistent with Restatement of Property (Second) § 17.6 (1977)); Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973) (landlords, as well as other members of society subject to reasonable duty of care, conclusion springing naturally from court’s prior decision adopting implied warranty of habitability and abolishing caveat emptor). See also, Pagelsdorf v. Safeco Insurance Co. of America, 91 Wis.2d 734, 284 N.W.2d 55 (1979); Stephenson v. Warner, Utah, 581 P.2d 567 (1978).

We hold, in accord with our decision in Rivera, supra, and under the authority of Pugh, supra, and the Restatement of Property (Second) § 17.6 (1977), that the question of appellee’s liability on a theory of negligence is a matter for determination by the factfinder.

Therefore, the order is reversed ánd the case remanded for trial consistent with this opinion.

Jurisdiction is not retained.

WIEAND, J., files a concurring opinion.

WIEAND, Judge,

concurring:

I agree with the majority that the alleged negligence of the appellee landlord was an issue for determination by the fact finder. Compare: Young v. Garwacki, 380 Mass. 162, 402 N.E.2d 1045 (Mass.1980); Pagelsdorf v. Safeco Insurance Company of America, 91 Wis.2d 734, 284 N.W.2d 55 (1979); Stephenson v. Warner, 581 P.2d 567 (Utah 1978); Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (N.H.1973); Dwyer v. Skyline Apartments, Inc., 123 N.J.Super. 48, 301 A.2d 463 (1973), affirmed without opinion, 63 N.J. 577, 311 A.2d 1 (1973). However, I am unable to agree that in order to recover the appellant must prove, in addition to negligence, the landlord’s breach of an implied warranty of habitability. A breach of a landlord’s obligation to provide safe and habitable premises gives rise, in my opinion, to potential liability under two alternative and separate theories: breach of an implied warranty of habitability and/or conventional negligence. See: Trentacost v. Brussel, 82 N.J. 214, 231, 412 A.2d 436, 445 (1980); Young v. Garwacki, supra 383 Mass. 162, 402 N.E.2d at 1050 n. 9. The injured tenant may recover damages for breach of an implied warranty of habitability for all injuries sustained, whether to his person or to his property, if they have been caused by the landlord’s breach. See and compare: Boudreau v. General Electric Co., 2 Haw.App. 10, 17, 625 P.2d 384, 390 (1981); Mansur v. Eubanks, 401 So.2d 1328 (Fla.1981); Trentacost v. Brussel, supra 82 N.J. at 227, 412 A.2d at 443; 13 Pa.C.S. § 2715(b)(2). The injured tenant may also proceed under general principles of tort law, without proving a breach of the implied warranty of habitability, and can recover damages for injuries proximately caused by the landlord’s failure to exercise reasonable care to make the premises safe. See and compare: Young v. Garwacki, supra 383 Mass. 162, 402 N.E.2d at 1049; Pagelsdorf v. Safeco Insurance Company of America, supra 91 Wis.2d at 743, 284 N.W.2d at 61; Stephenson v. Warner, supra 581 P.2d at 568; Dwyer v. Skyline Apartments, Inc., supra.

      . 35 P.S. § 1221 et seq.

      . 35 P.S. § 1222.

      . The 1981 amendments to this section as to Class I buildings relate solely to the farm buildings covered under the Act.

      . Appellant cites no Pennsylvania cases which would support such a conclusion, and we have discovered none.

      . Comment f to § 402A explains that: the basis for the rule is the ancient one of the special responsibility for the safety of the public undertaken by one who enters into the business of supplying human beings with products which may endanger the safety of their persons and property, and the forced reliance upon that undertaking on the part of those who purchase such goods. This basis is lacking in the case of the ordinary individual who makes the isolated sale, and he is not liable to a third person, or even his buyer, in the absence of negligence.

      . 13 Pa.C.S. § 2715(b)(2) provides:
      "(b) Consequential damages.—Consequential damages resulting from the breach of the seller include:
      (1) ....
      (2) injury to person or property proximately resulting from any breach of warranty.”


source: Caselaw Access Project

author: McEWEN, Judge:

license: Public Domain

text:
    458 A.2d 1371
    COMMONWEALTH of Pennsylvania v. Norman D. CHANCE, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1981.
    Filed April 8, 1983.
    Petition for Allowance of Appeal Denied Oct. 3, 1983.

      Timothy J. Gorbey, Media, for appellant.
    Frank T. Hazel, District Attorney, Media, for Commonwealth, appellee.
    Before ROWLEY, McEWEN and MONTEMURO, JJ.
   McEWEN, Judge:

Appellant was found guilty by a jury of criminal attempt to commit rape, possession of an instrument of crime, generally, possession of firearms without a license, crimes committed with firearms, and two counts each of aggravated assault, simple assault, terroristic threats and recklessly endangering another person. Judgment was arrested on the jury verdicts of guilty as to the charges of recklessly endangering another person and possession of firearms without a license. Appellant was sentenced to a term of imprisonment of from five to ten years for the criminal attempt to commit rape to be served concurrently with consecutive sentences of from two and one-half to five years imprisonment imposed on the two counts of aggravated assault and from two and one-half to five years imprisonment on two counts of terroristic threats. Since sentence was suspended on all remaining charges the total term of imprisonment was five to ten years. This appeal followed. We affirm the judgment of sentence with modification.

On a December evening at approximately 10:45 p.m. a young man and his girl friend were parked in an automobile in a field adjacent to Township Line Road in Upper Chichester Township, Delaware County. The two were embracing when the passenger door of the vehicle was forced open by appellant who wore a camouflage mask and wielded a .22 calibre pistol. Appellant pointed the gun at the young woman who was partially disrobed, and ordered both of them to remain still. Appellant then tied the man’s hands behind his back and ordered him to move to the rear seat of the vehicle. At this time, the woman, still partially undressed, opened the driver’s door and ran from the vehicle. Appellant pursued her, grabbed her by the back of the neck and dragged her back toward the car. In an attempt to prevent the appellant from returning her to the car, she sat on the ground; when appellant put the gun to her head, he was finally successful in dragging her back to the car where he ordered her to lay on her “belly” in her partially nude condition. When appellant placed the gun at her head because she refused to comply, she informed appellant that she would rather be shot than raped, and began to struggle with him. During her struggle with appellant, the woman sustained an injury to her hand as a result of an effort to shield her head from a blow with the gun, and succeeded in removing the mask of appellant. The young man had been able in the meantime to untie his hands and joined the woman in the struggle. As he struggled with appellant for the weapon, he heard the weapon click several times before eventually wresting it from appellant. Appellant fled the scene after his repeated pleas to return the weapon were ignored. The young man testified he had been able to clearly observe appellant for a period of approximately ten minutes during the incident.

Appellant was found later that same evening, several miles away, by employees of a store in a Delaware mall, sprawled partly in and partly out of his vehicle in the mall parking lot. When appellant was taken to a hospital for treatment of injuries, he claimed that he had been attacked in the parking lot by a robber who placed a gun at his back and struck him about the head and face. The police officer assigned to investigate the robbery observed a number of scratches and marks on the face of appellant. Several days after he was released from the hospital, appellant informed the Delaware State Police that his alleged assailant matched a newspaper description of the individual who had assaulted a couple in Upper Chichester Township the same evening. Appellant, at the request of the investigator, voluntarily went to the Delaware State Police Barracks where he was photographed to document his injuries. When the detective subsequently displayed the photograph of appellant and eight others to the young man, he identified appellant as the assailant. As a result, appellant was arrested and charged with aggravated assault, simple assault, recklessly endangering another person, terroristic threats, criminal attempt to commit rape, possessing instruments of crime, firearms not to be carried without a license and crimes committed with a firearm. This appeal follows the return by a jury of guilty verdicts on all charges, the disposition of post-trial motions and the imposition of sentence.

Appellant initially raises the issue of the validity of the informations which contain the rubber stamp facsimile of the signature of the District Attorney. He argues that the informations are void because they were not signed by the District Attorney in accordance with Pa.R.Crim.P. 225(b) and, therefore, that all charges against him should be dismissed. While appellant raised this argument in his post-trial motions, he failed to raise the issue in his omnibus pre-trial motion. We recently held in a consolidated appeal addressing the rubber stamp issue that the failure of a defendant to file a pre-trial motion to quash the informations pursuant to Pa.R.Crim.P. 306 resulted in a waiver of the issue on appeal. Commonwealth v. Veneri and Commonwealth v. Thomas, 306 Pa.Super. 396, 404, 452 A.2d 784, 788 (1982). We held there that “the signature requirement of Pa.R.Crim.P. 225(b) is directory only and that its absence renders an information merely voidable and curable by amendment if properly raised in a pre-trial motion to quash. Pa.R.Crim.P. 306”. Id. Therefore, we conclude that appellant, by failing to raise the validity of the rubber stamp information in a pre-trial motion, has waived this issue.

Appellant next contends that the evidence was insufficient to sustain his convictions of attempted rape, aggravated assault, terroristic threats and crimes committed with firearms. We shall address these contentions seriatim.

The Supreme Court recently stated in Commonwealth v. Young, 494 Pa. 224, 228, 431 A.2d 230, 232 (1981):

The well-established test for reviewing the sufficiency of the evidence is:
‘[w]hether, accepting as true all the evidence and all [the] reasonable inferences therefrom upon which if believed the [finder of fact] could properly have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes for which he has been convicted.’ Commonwealth v. Bayard, 453 Pa. 506, 509, 309 A.2d 579, 581 (1973); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973). In this regard it must be noted that the finder of fact has the right to reject part or all of the [witness’] testimony even if uncontradicted. Commonwealth v. Chermansky, 430 Pa. 170 at 174, 242 A.2d 237 at 240.
Commonwealth v. Taylor, 461 Pa. 557, 560, 337 A.2d 545, 546 (1975), quoting Commonwealth v. Coleman, 455 Pa. 508, 510, 318 A.2d 716, 717 (1974).

Appellant contends that the testimony of the victims fails to reveal any evidence which would indicate that the appellant had an intention to commit the crime of rape. While we are aware that appellant did not, himself, remove any of the female victim’s clothing or succeed in touching her private parts, or complete any act which would suggest that he intended to remove his own clothing, we, nevertheless, believe that there was sufficient evidence presented to sustain his conviction of criminal attempt to commit rape. The Crimes Code defines criminal attempt as follows:

Section 901. Criminal Attempt
(a) Definition of Attempt. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.
18 Pa.C.S.A. § 901(a).

The elements of the crime of attempt are, thus, (1) an intent to commit a specific crime; and (2) any act constituting a substantial step toward the commission of that crime. Commonwealth v. Fierst, 257 Pa.Super. 440, 390 A.2d 1318 (1978). We stated, in Commonwealth v. Gilliam, 273 Pa.Super. 586, 589-590, 417 A.2d 1203, 1205 (1980) that:

[t]he substantial step test broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before the actual commission of the crime.

The assertion of the appellant that the facts do not indicate an intent on his part to commit rape overlooks the established law of this Commonwealth that such an intent may be inferred from the actions of the defendant in light of all attendant circumstances. Commonwealth v. Hornberger, 441 Pa. 57, 270 A.2d 195 (1971); Commonwealth v. White, 229 Pa.Super. 280, 323 A.2d 757 (1974). We believe that the facts outlined establish a more than sufficient basis to have allowed the jury to infer that the appellant intended to rape the woman and that these acts were clearly sufficient to constitute the substantial step toward the commission of the crime. The goal oriented nature and sequence of the actions of appellant confirm this conclusion. The primary interest of appellant, as evidenced by his overt behavior throughout the incident, was directed toward the partially nude young woman. The only interest of appellant in the male victim was to restrain him so as to prevent him from aiding the woman. Only the resistance of the young woman, together with that of her companion, forestalled the criminal aim of appellant. We conclude that the evidence was sufficient to allow the jury to infer that appellant intended to commit rape. See 18 Pa.C.S.A. § 3101.

Appellant further asserts that there was insufficient evidence presented to sustain the conviction upon two counts of aggravated assault against the young man and the young woman. There is no merit to this contention. Aggravated assault is defined at 18 Pa.C.S.A. § 2702(a)(4) as follows:

2702 Aggravated Assault
(a) Offense defined. A person is guilty of aggravated assault if he:
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon.

Appellant claims initially that since there was no evidence to show that appellant intentionally or knowingly caused bodily injury to the young man with a deadly weapon he could not have been found guilty of this charge. However, the young man testified that during his struggle with the appellant, he heard the gun click “a couple of times”. (N.T. 41, 42). We held, in Commonwealth v. Bond, 261 Pa.Super. 311, 396 A.2d 414 (1978), that where the defendant and a bar owner became involved in a struggle and the gun of the defendant clicked several times while it was pointed at the bar owner, the evidence was sufficient to show an aggravated assault on the bar owner notwithstanding the fact that the gun was not actually loaded. We conclude, therefore, that the actions of appellant in the instant case were sufficient to sustain the conviction of appellant for the count of aggravated assault upon the male victim. The hand injury sustained by the woman, when struck with the weapon while shielding her head from a blow from that weapon during her struggle with appellant, was sufficient under the statutory definition to sustain the conviction of appellant for the count of aggravated assault upon her. See Commonwealth v. Kibe, 258 Pa.Super. 353, 392 A.2d 831 (1978).

Appellant next argues that there was insufficient evidence introduced at trial to sustain the conviction of appellant of terroristic threats as to the male victim. We find no merit to this argument. Appellant employed both physical and verbal menace during the incident. He told the two victims, while pointing a gun at them, not to talk or he would shoot. As we stated in Commonwealth v. Ashford, 268 Pa.Super. 225, 229, 407 A.2d 1328, 1329 (1979), “even a single verbal threat might be made in such terms or circumstances as to support the inference that the actor intended to terrorize or coerce.” See also Commonwealth v. Ferrer, 283 Pa.Super. 21, 423 A.2d 423 (1980). The fact that the male victim became aware during the ensuing struggle over the gun that it was probably unloaded or inoperative does not affect the result since “the present ability to inflict such harm is not sine qua non of a conviction under 18 Pa.C.S.A. § 2706.” Commonwealth v. Ashford, supra, 268 Pa.Super. at 231, 407 A.2d at 1330. We conclude that the evidence was sufficient to sustain the conviction of appellant for the count of the information charging terroristic threats against the male victim.

Appellant next contends that the evidence was insufficient to sustain his conviction of 18 Pa.C.S.A. § 6103, charging crimes committed with firearms. It is clear that appellant was unlawfully convicted of a violation of this section for the reason that the enactment, 18 Pa.C.S.A. § 6103, was not intended to create a separately punishable crime under the Uniform Firearms Act, see Commonwealth v. Simpson, 302 Pa.Super. 287, 293, 448 A.2d 640, 643 (1982), Commonwealth v. Turner, 265 Pa.Super. 486, 402 A.2d 542 (1979), and we, therefore, vacate the suspended sentence imposed thereon. Cf. Commonwealth v. Brown, 290 Pa.Super. 448, 454, 434 A.2d 838, 840-41 (1981) (held that suspended sentence for merged offenses must be vacated); Commonwealth v. Richardson, 232 Pa.Super. 123, 334 A.2d 700 (1975) (accord).

Appellant further contends that 18 Pa.C.S.A. § 2706 defining the offense of terroristic threats is so vague and indefinite in its definition as to be unconstitutional. We rejected this argument in Commonwealth v. Green, 287 Pa.Super. 220, 429 A.2d 1180 (1981), concluding that the statute described the category of unlawful activity with sufficient precision as to place a person charged with such an offense on notice as to what conduct was proscribed by the statute and thus held the statute was not unconstitutionally vague.

Appellant also contends that his conviction for the count of the information charging aggravated assault upon the young woman should be arrested since the assistant district attorney, prior to trial, withdrew the aggravated assault count lodged under 18 Pa.C.S.A. 2702(a)(1), the only count charging the aggravated assault of the young woman. There is no merit to this argument. The record indicates that the trial court permitted an amendment of the information charging appellant with aggravated assault of both victims. The original information charging aggravated assault of the man and the woman had two counts, one for each victim, with four paragraphs in each; paragraphs two, three and four in each count had been crossed out and the trial judge subsequently granted a motion to amend the information so that each count would include paragraph one as well as paragraph four. Later, during the course of trial, the Commonwealth moved to withdraw paragraph one of both counts of the information, leaving intact paragraph four of each count in the information charging aggravated assault. Therefore, it is patently clear that there was an information before the jury charging the aggravated assault of the young woman.

Appellant proceeds to argue that the testimony elicited by the district attorney during cross-examination of appellant concerning the purchase of a gun by appellant, the serial numbers of which matched those on the weapon recovered at the scene of the crime, was inadmissible as evidence of prior criminal activity by appellant. Appellant contends that it was prejudicial for the prosecutor to refer during cross-examination of appellant to an application for firearms that appellant had completed in connection with the purchase of a handgun. The application at issue established that appellant, while employed in the sporting goods department of a department store, sold the very weapon introduced into evidence at trial, that he completed the application with a name other than his own and that he took possession of the weapon himself. Appellant now complains that it was error to admit this testimony since it was inadmissible evidence of prior criminal activity. We disagree.

The prosecution generally may not introduce evidence that the defendant has committed other crimes as evidence of his guilt for the particular crime charged. See, e.g., Commonwealth v. Stanley, 484 Pa. 2, 7, 398 A.2d 631, 633 (1979); Smith v. LeFlore, 293 Pa.Super. 149, 151, 437 A.2d 1250, 1252 (1981). The rule stems from a recognition that evidence of other crimes is likely to prejudice the finder of fact and create an emotional reaction effectually stripping the accused of the presumption of innocence because proving commission of one crime does not entail proof of another, but merely bad character which cannot support an inference of guilt. See e.g., Commonwealth v. Spruill, 480 Pa. 601, 391 A.2d 1048 (1978); Commonwealth v. Roman, 465 Pa. 515, 351 A.2d 214 (1976); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); Commonwealth v. Wright, 259 Pa.Super. 293, 393 A.2d 833 (1978). Special circumstances justifying exceptions to the general rule exist when the evidence of other crimes also tends to prove: (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan, or design embracing the commission of two or more crimes so related that proof of one tends to prove the other; or (5) the identity of the person committing the crime charged. See e.g., Commonwealth v. Peterson, 453 Pa. 187, 197-98, 307 A.2d 264, 269 (1973); Commonwealth v. Wable, 382 Pa. 80, 84, 114 A.2d 334, 336 (1955); Commonwealth v. Hude, 256 Pa.Super. 439, 442-43, 390 A.2d 183, 184-85 (1978). Additionally, evidence that a defendant has committed another crime may be admitted when it tends to show that the accused has attempted to conceal the commission of the crime charged or to escape its consequences. Commonwealth v. Terrell, 234 Pa.Super. 325, 339 A.2d 112 (1975). Even when one of these exceptions applies, however, the trial court must still balance the need for other crimes evidence against the potential prejudice to the accused. See Commonwealth v. Ulatoski, 472 Pa. 53, 63 n. 11, 371 A.2d 186, 191 n. 11 (1977); Commonwealth v. Wright, supra [259 Pa.Super.] at 299, 393 A.2d at 836; Commonwealth v. Hude, supra [256 Pa.Super.] at 445, 390 A.2d at 186.

Commonwealth v. Hawkins, 295 Pa.Super. 429, 437-38, 441 A.2d 1308, 1311-12 (1982). See also Commonwealth v. Lee, 297 Pa.Super. 216, 225-26, 443 A.2d 804, 808-809 (1982).

We believe that the challenged testimony elicited by the assistant district attorney during the cross-examination of appellant was, in view of the presentation of an alibi defense, highly relevant on the issue of the identity of appellant as the perpetrator of the crimes charged, and was, thus, admissible under the identity exception to the general rule of exclusion of other crimes evidence. “When the evidence is relevant and important to one of these [exceptions], it is generally conceded that the prejudicial effect may be outweighed by the probative value.” Id. 295 Pa.Super. at 438, 441 A.2d at 1312, quoting Commonwealth v. Peterson, supra 453 A.2d at 198, 307 A.2d at 269-70. Here the balance was clearly tipped in favor of admitting the challenged evidence because of its highly probative value, and, therefore, we conclude that the Common Pleas Court did not err in allowing its admission.

We have carefully reviewed the record as well as the briefs of the parties and conclude that the remaining contentions raised by appellant are without merit and that we need not address them. We are constrained, however, to vacate the suspended sentence imposed for crimes committed with firearms, 18 Pa.C.S.A. § 6103, since that section of the Uniform Firearms Act merely provides that a violation of that Act does not merge with a crime of violence or an attempt to commit a crime of violence for purposes of sentencing, and does not itself constitute a separately punishable crime. Commonwealth v. Simpson, supra; Commonwealth v. Turner, supra. We need not remand for resentencing despite our vacation of the suspended sentence, since it is apparent from our review of the sentencing proceeding that the trial judge did not intend to impose sentence for this “offense” and, thus, our action would not affect the sentences imposed upon those offenses of which the appellant was lawfully convicted. See Commonwealth v. Gonzales, 297 Pa.Super. 66, 443 A.2d 301 (1982); Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979). We affirm the judgment of sentence imposed by the Common Pleas Court in all other respects.

So ordered.

      . See, Commonwealth v. Brown, supra 290 Pa.Super. at 454, 434 A.2d at 840-41, for general discussion on the continued viability of suspended sentences under the Sentencing Code, 42 Pa.C.S.A. § 9701 et seq.


author: POPOVICH, Judge:

text:
    458 A.2d 1377
    Mildred BRANCATO and Carmen Brancato, her husband, Appellants, v. KROGER COMPANY, INC.; the Stanley Works, a/k/a Stanley Magic Doors, a/k/a Stanley Company; Jed Products; S & E Associates.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1983.
    Filed April 8, 1983.
    Petition for Allowance of Appeal Denied July 8, 1983.

      John Louis Vitsas, Pittsburgh, for appellants.
    Theresa Homisak, Pittsburgh, for appellees.
    Before POPOVICH, MONTGOMERY and VAN der VOORT, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment entered by a court en banc of the Court of Common Pleas of Allegheny County denying appellants’, Mildred and Carmen Brancato’s, Motion For A New Trial. We affirm.

The instant case arose on April 28, 1973 as the result of an injury sustained by appellant, Mildred Brancato, when she was struck in the back by the opening of an automatic door as she reached for trading stamp books situated near the entrance to Kroger’s Supermarket in Glannon’s Shopping Center, Allison Park, Pa. After a trial by jury, a verdict was entered finding both parties (Mildred Brancato and Kroger) negligent.

On June 8, 1981, appellants’ trial counsel filed a Motion For A New Trial, wherein he alleged that the verdict was contrary to the evidence, against the weight of the evidence and contrary to the facts of the case. Additionally, counsel asserted that the trial court erred in denying his points for charge to the jury; in particular, counsel referred to Points # 1, # 3, # 6 and # 7. However, before the date set for the argument of post-trial motions, trial counsel for appellants filed a Petition To Withdraw As Counsel, which was granted. Thereafter, new post-trial counsel was secured by the appellants and, on April 2, 1982, an Amended Motion For A New Trial was submitted in which counsel alleged: “The verdict was tainted in that Juror Number 6 seated herself next to the Plaintiff, Mildred M. Brancato, during a court recess and twice inquired as to Plaintiffs physical condition, in response to all of which Plaintiff gestured with her hands and said, T cannot talk about it.’ ”

Following argument and consideration of briefs, the court en banc (per Judges Farino and Zappala) denied appellants’ Motion For A New Trial by Order dated April 28, 1982. This appeal followed.

Appellants’ counsel presents us with three issues to review; to-wit:

“I. THE JURY VERDICT WAS TAINTED IN THAT ONE OF THE JURORS COMMUNICATED WITH THE PLAINTIFF, MILDRED BRANCATO, DURING THE COURSE OF THE TRIAL.
II. THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY THAT, WHERE A LATENT DANGER EXISTS, IT IS NEGLIGENT FOR A POSSESSOR OF LAND TO INDUCE A FALSE SENSE OF SECURITY IN ANOTHER.
III. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT WHERE EYE-CATCHING GOODS ARE DISPLAYED IN A STORE THEN A PATRON MAY BE EXCUSED FROM NOT NOTING AN UNGUARDED HAZARD.”

Before addressing the merits of appellants’ contentions, we wish to respond to appellee’s, Kroger’s, counsel’s protestation that none of the issues raised by the appellants should be addressed by this Court, “for the Brancatos failed to preserve or raise the issues at the time of trial.” (Appellee’s Brief at 9) In support of such an assertion, appellee’s counsel cites us to Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 225, 322 A.2d 114 (1974) (holding that failure to make a timely, specific objection to an alleged trial error results in waiver of that issue for post-trial and appellate purposes) and that portion of the transcript which reveals that after the instructions were read to the jury, appellants’ counsel only objected to the court’s failure to read a portion of Point # 2 of his requested points for charge.

To start with, our examination of the record reveals that appellants’ trial counsel submitted 12 hand-written points for charge. Of these, Points #1, #3, #6 and # 7 were specifically denied. (Record No. 54) However, as mentioned previously {see supra note 2), appellants’ trial counsel took exception only to the court’s refusal to read Point # 2 in its entirety after the jury had been instructed. Nonetheless, counsel for appellants did assail the propriety of such a ruling, i.e., the court’s denial of the requested Points # 1, # 3, # 6 and # 7, in post-trial motions. (Record No. 56) Furthermore, as is relevant to the discussion here, we note that appellate counsel’s arguments numbered II & III, set forth supra, place in issue the correctness of the trial court’s denial of appellants’ Points # 1 and # 6, respectively, of the points for charge.

In making a ruling on the question of waiver regarding the two specific points for charge, we look for guidance to Broxie v. Household Finance Co., 472 Pa. 373, 372 A.2d 741 (1977). In Broxie, the Court, in discussing the consequences of appellant’s failure to object to the trial court’s charge, stated:

“It has long been the law in this Commonwealth that in order to preserve for appellate review an issue concerning the correctness of a trial court’s charge to the jury, the complaining party must submit a specific point for charge or make a timely, specific objection to the charge as given. E.g., Lobalzo v. Varoli, 422 Pa. 5, 220 A.2d 634 (1966); Bell v. Yellow Cab Co., 399 Pa. 332, 160 A.2d 437 (1960). See also Commonwealth v. Sisak, 436 Pa. 262, 259 A.2d 428 (1969). The only exception to this general rule was where a trial court’s charge involved basic and fundamental error, but this exception was formally abrogated in Dilliplaine v. Lehigh Valley Trust Co., [supra]. See also Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).” (Emphasis added) Id., 472 Pa. at 377, 372 A.2d at 743. Accord Atherholt v. Interstate Energy Co., 35 Pa.Cmwlth. 289, 386 A.2d 167 (1978); but see Commonwealth v. Rineer, 310 Pa.Super. 241, 456 A.2d 591 (1983).

Consistent with the preceding, we note that Pa.R.Civ.P. 227(a) reads:

“(a) It shall not be necessary on the trial of any action or proceeding to take exception to any ruling of the trial judge. An exception in favor of the party against whom the adverse ruling was made shall be deemed to have been taken with the same force and effect as if it had been requested, noted by the official stenographer and thereafter written out, signed and sealed by the trial judge.”

In light of the aforesaid, we find no merit to appellee’s counsel’s contention that “[n]one of the issues raised by the Brancatos should be addressed by this Court for the Brancatos failed to preserve or raise the issues at the time of trial.” (Appellee’s Brief at 9) Contrary to appellee’s counsel’s recounting of what transpired below, we find that appellants' trial counsel submitted 12 points for charge, 4 of which (numbered 1, 3, 6 and 7) were denied by the trial court. Thus, we hold that the Brancatos “in fact had a specific exception on th[ese 4] point[s] for charge ----” Atherholt v. Interstate Energy Co., supra, 35 Pa.Cmwlth. at 292, 386 A.2d at 169; see also Broxie v. Household Finance Co., supra. This, in turn, results in the preservation of appellants’ arguments numbered II & III, which specifically deal with the trial court’s denial of Points # 1 and # 6, respectively, for our review.

Turning to the issues at hand, we see that appellants’ argument number II alleges that the trial judge should have instructed the jury (on their requested Point # 1) “that, where a latent danger exists, it is negligent for a possessor of land to induce in its business visitors a false sense ... of security.” (Appellants’ Brief at 10) In other words, appellants’ assert that Kroger’s placement of the trading stamp books so near to the automatic door “had created a latently dangerous situation” so as to entitle them to the requested point for charge. We disagree.

To gain entrance to Kroger’s, one would have to go through two doors, both of which automatically opened inward and to the right when a person stepped on the sensitized mats that activated the hydraulically operated doors. The distance between the first outer door and the second inner door was approximately five feet. When one passed through the second door, there was a four-foot long railing to the right that stood about “hip” high. Also, there was a space of about five feet between the railing and the front store windows. In this area, Kroger’s had placed a cart containing trading stamp books. It was at this spot, between the railing and the second door, that Mrs. Brancato was standing when she leaned over to take some trading stamp books and was struck in the buttock by the door, which was activated by a patron coming into the store. From our review of the facts, we find no reason to disturb the trial court’s determination that: “The only evidence introduced was to the effect that this was a normal supermarket automatic entry doorway, and there was no evidence introduced either that a latent danger existed or that this was an unguarded hazard.” (Lower Court Opinion at 2) Thus, appellants were not entitled to an instruction (Point # 1) applicable to no facts in the case. See Auerbach v. Philadelphia Transportation Co., 421 Pa. 594, 221 A.2d 163 (1966).

Appellants’ argument number III, regarding the claim that they were entitled to a charge that the eye-catching goods (trading stamp books) on display excused Mrs. Brancato from not noting an unguarded hazard, is no more persuasive than the previous one. Since we have concluded that the evidence did not establish the existence of a “hazard,” it would be incongruous to hold that appellants should have been granted the requested point for charge. See Auerbach v. Philadelphia Transportation Co., supra. As counsel for the appellee’s notes in his brief to this Court, the instant case is more akin to Bream v. Berger, 388 Pa. 433, 130 A.2d 708 (1956), where our Supreme Court found contributory negligence as a matter of law in an eye-catching display case. In Bream, the plaintiff had to step up onto the doorstep to enter the defendant’s store. When the plaintiff reached for the screen door, she stepped back two steps, to allow for the sweeping arc of the screen door; on her second step backward she landed on the pavement. The Court, in recounting the facts, stated that the plaintiff did not recall where she was looking when she stepped back onto the pavement, but she thought that she was looking at the signs in the window. The Court, in ruling against the plaintiff, recited language that is most appropriate instantly; viz.:

“ ‘ “No person is required to take extraordinary precautions to save adults in apparent possession of their reasoning faculties from the consequences of their own inattentiveness and carelessness. * * * 'Everyone has a right to proceed upon the assumption that those to whom he owes a duty of care are normal in every respect and prepared on their part to exercise the care of prudent persons generally’”. Jefferson v. Y.M.C.A., 354 Pa. 563, 567, 47 A.2d 653, 655.
* * * * # ¡K
‘ “What this court stated in Bailey v. Alexander Realty Co., 342 Pa. 362, 20 A.2d 754, 756, applies to the instant case: * * * When an individual can assure his own safety by the use of his senses, he must do so or abide the consequences of his carelessness. * * * The duty of availing oneself of one’s senses, for self-protection can seldom be breached with physica[l] impunity and never with legal sanction. * * * ’
‘ “A person may not recover for injuries which are received as a result of a failure on his part to observe and avoid an obvious condition which ordinary care for his own safety would have disclosed”: Boock v. Acme Markets Inc., 347 Pa. 501, 503, 32 A.2d 759, 760; Rogers v. Max Azen, Inc., 340 Pa. 328, 16 A.2d 529.’
The well established rule that a victim cannot recover damages for injuries sustained by him if he could have avoided the injury by the exercise of ordinary care bars this plaintiff’s recovery.
This is not the case of a hidden danger, or of a danger that was obscured by another pedestrian, or by a worn or slippery or defective doorstep; this regrettable accident was caused by plaintiff’s thoughtlessness, carelessness or inattention.” Id., 388 Pa. at 436, 130 A.2d at 709-710.

In the case at bar, Mrs. Brancato was not unaware of the fact that her stance, in between the railing and the second door, would subject her to contact with the door if she remained there while patrons entered the store. In other words, she failed to observe and avoid an obvious condition which ordinary care for her own safety would have disclosed. This conclusion renders the present case distinguishable from the one proffered by the appellants in support of their assertion of trial error, i.e., Hallbauer v. Zarfoss, 191 Pa.Super. 171, 156 A.2d 542 (1959). In Hallbauer, the wife-plaintiff sustained injuries when she fell down a flight of stairs in the rear of defendants’ hardware store as she was in the process of examining a brush display rack. The Court, in finding that the trial judge did not err in refusing defendants’ motion for judgment n.o.v., gave a physical description of the area surrounding the basement door that makes it factually different from the case at bar; e.g.:

“At the main floor level the stairway [leading to the basement] is bound on the north by the north wall, on the east by tables, shelving displays, and a drinking fountain, and on the south by the mop, broom, and brush display rack. Because of the location and surroundings, the stairs are not generally visible from the front of the store or the side but only from a position almost directly in front of the entrance to the stairway. The brush display runs along one side of the stair well opening, thereby concealing the entrance of the stairway from the view of anyone approaching in the manner of the wife-plaintiff. The stairs rise sharply and lead to the basement which is used only for storage purposes. The basement was not lighted; there were no signs or warnings indicating the presence of the stairway, and there was no barrier across the top of the stairway. Although she had been in the store numerous times, wife-plaintiff was not aware of the existence of the stairway.” 191 Pa.Super. at 174-75, 156 A.2d at 543-544.

Instantly, unlike in Hallbauer, wife-appellant was cognizant that her position in the supermarket (behind the second incoming door) rendered her vulnerable to sustaining injury if she remained there while customers entered the store. The area she was in was lighted, not stacked with merchandise and protected by a railing, which could have been circumvented to reach the trading stamp books. Therefore, we find, as characterized by the Court in Bream, “this regrettable accident was caused by plaintiffs thoughtlessness, carelessness or inattention.” Id., 388 Pa. at 436, 130 A.2d at 710. As a result, we conclude that the point for charge (Point # 6) sought by the appellants was not appropriate to the facts here, see Auerbach v. Philadelphia Transportation Co., supra; accordingly, no error was committed by the trial court’s action.

Lastly, appellants’ aver that the verdict was tainted by juror # 6 purportedly inquiring, during a recess, as to wife-appellant’s physical condition. The wife-appellant allegedly gestured with her hands and said, “I cannot talk about it.”

The court en banc, after initially noting that such an accounting rendered the incident harmless to appellants’ case, then stated that appellants’ failure to call the exchange to the court’s attention before the trial concluded, resulted in it “no longer [being] a matter of inquiry.” (Lower Court Opinion at 2) We agree, in part, with the court en banc.

First, we deal with the question of whether inquiry into the propriety of the alleged communication between a juror and Mrs. Brancato was preserved for post-trial and appellate review. The court en banc (with Zappala, J., concurring in the result) and appellee’s counsel opine that such an issue was not properly preserved for review. We think otherwise.

As recounted earlier in this Opinion, appellant’s trial counsel filed post-trial motions, but prior to the hearing scheduled to argue them, he submitted a Petition For Withdrawal As Counsel. The granting of this Petition necessitated the rescheduling of the argument to hear post-trial motions so as to afford appellants the opportunity to secure new counsel. When this was accomplished, new post-trial counsel filed an Amended Motion For A New Trial and a brief in support of his assertions, one of which dealt precisely with the discussion supposedly had by juror # 6 and Mrs. Brancato. After the denial of post-trial motions, the issue was again raised by appellants in their brief to this Court.

Given the rather fortuitous withdrawal of trial counsel before the litigation had come to a close—at least at the post-trial level—we hold that new counsel’s submission of an amended motion raising the issue now before this Court was sufficient to preserve it below and on appeal for our review. See Pittsburgh National Bank v. Mutual Life Insurance Company of New York, 273 Pa.Super. 592, 417 A.2d 1206 (1980), aff’d 493 Pa. 96, 425 A.2d 383 (1981). Now, having disposed of the procedural entanglement engendered by this case, we turn to the merits of the issue.

In Printed Terry Finishing Co. v. City of Lebanon, 247 Pa.Super. 277, 372 A.2d 460 (1977) this Court had occasion to discuss what matters would be scrutinized by the judiciary in deciding if a verdict was to be reversed because of some contact between a juror and any other individual during the course of a trial. We stated:

“If, however, contact between an officer of the court and a juror should occur, ‘it is not required that [the parties] be curt or lacking in the customary amenities of social intercourse....’ Pessin v. Keeneland Association, 298 F.Supp. 593, 599 (E.D.Ky.1969). Such contacts, however, must not be of such a nature as to cast suspicion upon the integrity of the jury verdict. Thus, the Supreme Court of the United States, in Mattox v. United States, 146 U.S. 140, 13 S.Ct. 50, 36 L.Ed. 917 (1892), pronounced that:
‘Private communications, possibly prejudicial between jurors and third persons, or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmlessness is made to appear.’ Id. at 150, 13 S.Ct. at 53.
We therefore agree with the statement of the court in California Fruit Exchange v. Henry, 89 F.Supp. 580, 588-89 (W.D.Pa.1950), that:
‘The courts look with suspicion upon any communications between parties to a suit or their counsel and the jury impaneled to try it; and if such communication is had and it appears that a conversation was had about the suit, or the communication is not explained satisfactorily, it will, in itself, be ground for a new trial. If, when explained, however, it can be seen in the communication nothing was said about the case and nothing was done for the purpose of influencing the mind of the jury, and that the communication or conversation had no influence on the verdict which was reached, no ground exists to set the verdict aside for the reasons that said comment could not have been prejudicial.’ ” (Emphasis in original) Id., 247 Pa. at 298-99, 372 A.2d at 471.

Based on the preceding, we are not in accord with appellants’ counsel’s assertion that “[w]hat we have here is an issue that would per se have required reversal if previous counsel had timely brought it to the attention of the trial court.” (Appellants’ Brief at 8)

Albeit the trial court should have had its attention called to the occurrence, we do not find, in light of the facts at bar, that the alleged response (“I cannot talk about it”) by Mrs. Brancato to a juror’s inquiry as to her physical condition is so infested with prejudice that the law clearly demands that a new trial be granted. Rather, we observe that wife-appellant offers no proof of prejudice other than the mere happening of the incident, and a review of the record does not disclose that an impression was made on the minds of the jury, if any, which was not overcome by the trial judge’s instructions as to the law the jury was to apply in making its determination. See Paustenbaugh v. Ward Baking Co., 374 Pa. 418, 97 A.2d 816 (1953); Printed Terry Finishing Co. v. City of Lebanon, supra.

Judgment affirmed.

      . A compulsory non-suit was granted by the trial court as to each of the additional defendants (The Stanley Works, JED Products and S & E Associates); none of whom is involved in the present appeal.

      . Counsel for appellants requested Point # 2 reads in toto:
      "2.) A possessor of land owes to a business visitor the duty of reasonable care for his protection and safety, that is, to keep the premises in a reasonably safe condition and if there be any defects or unsafe areas known or discoverable by the exercise of reasonable care and diligence, to warn business invitees of these dangers. Miller v. Hickey, 368 Pa. 317 at 324 [81 A.2d 910].”
      To the left of the margin and in juxtaposition to Point # 2, the court had written "granted.” However, at trial the court did not read Point # 2 in its entirety; as a result, the following exchange occurred after the jury had been instructed:
      "[THE COURT:] ... Do the attorneys wish to discuss anything with the Court before I send the jury out?
      A A A A A A
      MR. DUERRING [Appellants’ trial counsel]: Your Honor, I believe you will find Point 2 here as to the second aspect of it that if there are any defects or unsafe areas that the defendant or defendants could have conceivably known about, that they would have a duty to at least warn the customers that they existed.
      THE COURT: I’ll overrule that.” (RR. 28 & 30)
      We need not discuss the propriety of the court’s ruling on this point, for it is not raised on appeal.


author:
PRICE, Judge:
      MONTEMURO, Judge,

text:
    458 A.2d 1384
    Mark CONGINI, a minor, by Carl J. CONGINI, his guardian and Carl J. Congini and Sylvia Congini, Appellants, v. PORTERSVILLE VALVE COMPANY, a corporation.
    Superior Court of Pennsylvania.
    Argued March 16, 1981.
    Filed April 22, 1983.
    Petition for Allowance of Appeal Granted Aug. 17, 1983.

      John E. Evans, Jr., Pittsburgh, for appellants.
    Herman C. Kimpel, Pittsburgh, for appellee.
    Before PRICE , BROSKY and MONTEMURO, JJ.

       The decision in this case was reached prior to the death of Judge PRICE.

   PRICE, Judge:

This is an action in trespass for personal injuries sustained by Mark Congini on December 22, 1978 in an automobile accident. His parents instituted a suit on his behalf and on their own behalf in the Court of Common Pleas of Lawrence County, Pennsylvania against the Portersville Valve Company (“Portersville”). The Honorable William R. Ralph issued an order and opinion sustaining Portersville’s preliminary objection in the nature of a demurrer and dismissed the Congini’s complaint on August 18, 1980. The Conginis have appealed from this dismissal.

The following facts were pleaded and must be taken as true for the purposes of this appeal. At the time of the accident, Mark was eighteen years of age and an employee of Portersville. On December 22, 1978, Portersville held a Christmas party for its employees at its plant at which alcoholic beverages were served. Mark attended the party and became intoxicated.

Mark’s car was at the plant and appellee Portersville had possession and custody of its keys. Although appellee was aware of Mark’s intoxicated condition, the keys were given to Mark upon his request so that Mark could drive from the plant to his home.

While Mark was operating the car on the highway, he drove it into the rear of another vehicle which was proceeding in the same direction. As a result of this accident, Mark suffered multiple fractures and brain damage which have left him totally and permanently disabled.

Appellants allege several grounds of liability based upon negligence. The first argument is that appellee was negligent in providing Mark, a minor, with alcoholic beverages to the point that he was intoxicated and that this negligent action caused Mark to suffer injuries. The second allegation is that appellee was negligent in turning over the keys to Mark’s car, in order that Mark could drive home when appellee was aware of Mark’s intoxication. Appellants have not alleged that appellee is a licensee of the Pennsylvania Liquor Control Board. The lower court held that this case was controlled by Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973) and sustained appellee’s preliminary objections and dismissed the appellants’ complaint.

Since this appeal is from the sustaining of preliminary objections in the nature of a demurrer, the facts before us are confined to appellant’s complaint since the demurrer admits for present purposes every well pleaded material fact set forth in the complaint as well as the inferences reasonably deducible therefrom.

Allstate Insurance Co. v. Fioravanti, 451 Pa. 108, 111, 299 A.2d 585, 587 (1973). Only in cases which are clear and free from doubt should a complaint be dismissed. In this case, we hold that even given the benefit of every reasonable inference, appellants have not pleaded a cause of action.

Appellants are asking that we find for the first time in Pennsylvania that a social host can be liable for injuries which occur to an intoxicated guest. Because they have phrased their complaint in terms of negligence instead of relying on the Pa.Liquor Code, appellants urge that we make a distinction between the present case and the prior cases which have denied liability. However, our supreme court has made it clear that under any theory, “only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties.” Manning v. Andy, 454 Pa. 237, 239, 310 A.2d 75, 76 (1973). (Emphasis in original). In Klein v. Raysinger, 298 Pa.Superior Ct. 246, 249 n. 2, 444 A.2d 753, 754 n. 2 (1982), we held specifically that Manning rejected unconditionally the principle of imposing civil liability on unlicensed persons. Appellants argue, however, that in the instant case, the unique facts compel that we distinguish the prior cases and find that appellees are liable.

Appellants agree that potential liability should not rest on every social host who serves intoxicating beverages. However, appellants argue that there should not be a blanket exclusion for social hosts but rather that liability should be determined on a case by case basis. The distinguishing factor among the cases would be the duty of care owed to the guest, depending on the circumstances. For instance, in this case, appellants urge that we find there are extenuating circumstances which create a special duty which was violated by appellees. The facts appellant finds compelling include the handing over of the car keys to the intoxicated minor. We are not so persuaded.

The question of whether it is negligent to allow a guest to drive his own vehicle while intoxicated has already been decided by this court. In Klein v. Raysinger, 302 Pa.Superior Ct. 248, 252 n. 3, 448 A.2d 620, 623 n. 3 (1982), we declined to create such a duty, recognizing that “indeed, a social host is not privileged to use force against or impose confinement upon another for the purpose of preventing the violation of a statute, i.e., driving while under the influence.

Nor does the fact that Mark was a minor at the time of the accident change the outcome in this particular case. In the case of Bradshaw v. Rawlings, 612 F.2d 135 (3rd Cir.1979), the court reaffirmed that a non-licensee in Pennsylvania is not civilly liable for damages caused by serving intoxicating liquors to a social guest. The Bradshaw case specifically dealt with the issue of whether the fact that minors were involved created a special duty upon which liability could be based and the court held that under Pennsylvania law no such duty existed.

Thus it is clear that at the present time, there is no precedent for a finding of liability on the part of a social host. Although we recognize the seriousness of the problem of drunk driving and the resulting tragedies, we are bound to follow existing law. We agree with the Manning court which held that even though these types of claims may have some merit, “a decision of this monumental nature is best left to the legislature.” Supra 454 Pa. at 239, 310 A.2d at 76.

Therefore, the trial court’s order dismissing appellant’s complaint is affirmed.

MONTEMURO, J., files a dissenting opinion.

MONTEMURO, Judge,

dissenting:

In recent years the public’s attention and concern has been captured by the horrible realization that each year thousands of motorists are injured or killed by drunken drivers. The trauma experienced by the victims, both the motorists who are injured or killed and their relatives and loved ones, is exacerbated by the knowledge that the accidents were often preventable through the exercise of restraint and careful regard for the rights and lives of others. This state of affairs is more than a personal tragedy for the victim; it is a national tragedy that so many innocent motorists suffer disabling injuries, that so many lives are snuffed out, and that so many others are left to bear the emotional, and often horrendous financial, consequences of a chance encounter with a drunken driver. This concern is evidence of a deeper revelation; that such a chance encounter could happen to anyone, at anytime.

The response to the problem has been ambiguous. Many states, including Pennsylvania, have enacted new drunk driving laws imposing stringent and harsh penalties on those who flaunt common sense and the law by driving while intoxicated. However, these laws merely punish, they do not compensate the victim or victims of the drunken driver.

There are methods by which these victims are compensated. One is an action for damages against the drunken driver based on his negligence. A second is an action against a person who, under the aegis of the Liquor Control Board, served intoxicating beverages to an already intoxicated person who, in turn, injures himself or a third party. This civil action against a licensed purveyor of intoxicants has long been recognized in this Commonwealth. Dram-shop Act of May 8, 1854, P.L. 663 (repealed). Jardine v. Upper Darby Lodge No. 1973, Inc., 413 Pa. 626, 631, 198 A.2d 550, 553 (1964). It is based on the provisions of the Liquor Code; Act of April 12, 1951, P.L. 90, Art. IV § 493(1), as amended, 47 P.S. § 4-493(1); however, liability has been limited only to those persons licensed to sell intoxicants by the decisions of this court and our supreme court.

The majority carefully and analytically sets forth the precedents upon which its holding is based. I do not dispute that the majority’s holding is in conformance with those precedents. But after close analysis of the cases in light of the general principles of negligence, I believe the majority is in error and that a plaintiff should have a cause of action against a social host who serves intoxicants to an already intoxicated guest and is injured as a result.

In the seminal case of Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973), the supreme court refused to impose liability on non-licensed dispensers of intoxicants. The court upheld the dismissal of the plaintiff’s complaint which alleged a theory of per se negligence under Sec. 4-493 of the Liquor Code, stating: “Only licensed persons engaged in the sale of intoxicants have been held to be civilly liable to injured parties ...” Id., 454 Pa. at 239, 310 A.2d at 76. (emphasis in original).

In addition to the per curiam opinion in Manning, Justice Pomeroy wrote a concurring opinion, and Justice Manderino wrote a dissenting opinion; in which Justice Roberts joined. Justice Pomeroy agreed that the plaintiff’s complaint was properly dismissed inasmuch as it pleaded solely a cause of action based on a theory of per se negligence under the Liquor Code. However, he went on to state:

I hasten to add that in my view there is no reason in the nature of things why a private person should not be held liable if he serves liquor to one whom he knows to be intoxicated, and who he knows or should know is about to drive an automobile or engage in some other activity involving the potentiality of harm to himself or to others, with resulting damage. No legislative enactment is required to accomplish that result; it is ordinary tort law. (footnote omitted).

Id., 454 Pa. at 242, 310 A.2d at 77. Moreover, Justice Manderino’s dissent would allow the plaintiff to establish liability under the statute or under common law.

Manning has been interpreted by this court as specifically rejecting the imposition of liability on unlicensed persons. Klein v. Raysinger, 302 Pa.Super. 248, 448 A.2d 620 (1982) (McEwen, J. and Popovich, J. concurring in the result) allocatur granted; Klein v. Raysinger, 298 Pa.Super. 246, 444 A.2d 753 (1982) (Spaeth, J. concurring) allocatur granted; Couts v. Ghion, 281 Pa.Super. 135, 421 A.2d 1184 (1980) (Spaeth, J. concurring in the result and Van der Yoort, J. dissenting). I believe that this interpretation is tenuous. The holding in Manning is just as susceptible to an interpretation that the courts will not recognize an action based on a theory of per se negligence under the liquor code when the defendant is an unlicensed dispenser; but would recognize, when properly pleaded, an action based on principles of common law negligence. It is this interpretation, as was advanced by Justice Pomeroy, which I find to be most similar to my own.

“Negligence is the want of due care which a reasonable man would apply under the circumstances, (citations omitted). Conduct is negligent only if the harmful consequences thereof could reasonably have been foreseen and prevented by the exercise of reasonable care.” Gift v. Palmer, 392 Pa. 628, 630, 141 A.2d 408, 409 (1958). Furthermore, our supreme court has held:

The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm resulting from the act or omission. Paulscak v. Hoebler, 330 Pa. 184, 198 A. 646; Restatement, Torts, Sec. 284. Before an act can be held negligent it must reasonably be foreseen that the doing of it is attended with such probabilities of injury to another that a duty arises either to refrain from the act altogether, or to do it in such manner that harm does not result. It is well settled that conduct is negligent only if the harmful consequences thereof could reasonably have been foreseen and prevented.”

Scurfield v. Federal Laboratories, 335 Pa. 145, 150, 6 A.2d 559, 561 (1939). See also Jacob v. City of Philadelphia, 333 Pa. 584, 586-87, 5 A.2d 176, 178 (1939); McNello v. John B. Kelly, Inc., 283 F.2d 96, 100 (3rd Cir.1960). In Macina v. McAdams, 280 Pa.Super. 115, 421 A.2d 432 (1980). This court set forth the well recognized elements of a cause of action for negligence:

1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unconscionable risks.
2. A failure on his part to conform to the standard required____
3. A reasonably close causal connection between the conduct and the resulting injury____
4. Actual loss or damage resulting to the interests of another ....

Id., 280 Pa.Superior at 120, 421 A.2d at 434 (quoting Prosser, Law of Torts, § 30 at 143 (4th Ed. 1971)).

It is apparent that damage has been sustained by the plaintiff herein. It is also apparent that a jury might find that the intoxication of the plaintiff was the proximate cause of his injuries. Jardine v. Upper Darby Lodge No. 1973, Inc., supra. In these regards there can be no discern-able distinction between licensed and unlicensed dispensers of intoxicants. Since these elements have been, or might be, met, the issue herein with which we must concern ourselves is the duty to be imposed upon unlicensed dispensers of intoxicants. Thus far the courts have refused to impose any duty. I find this refusal to be contrary to established principles of negligence and basic common sense.

The duty imposed upon licensed dispensers of intoxicants is derived from the Liquor Code, 47 P.S. § 4-493, which makes it unlawful for any person to sell intoxicants to any person visibly intoxicated. The statute sets the standard by which licensed persons may be judged. Admittedly, the plaintiff is precluded from basing an action on the provisions of the Liquor Code, Manning v. Andy, supra, yet I see no reason to preclude an action based on common law negligence.

We all have a duty to exercise reasonable care. The parameters of this duty have been inextricably linked with the forseeability of risk. As this court has stated:

[T]he risk reasonably to be perceived defines the duty to be obeyed ...” Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 344, 162 N.E. 99, 100 (1928). See e.g. Zilka v. Sanctis Construction, Inc., 409 Pa. 396, 186 A.2d 897 (1962), cert. denied, 374 U.S. 850, 83 S.Ct. 1915, 10 L.Ed.2d 1070 (1963); Hoover v. Sackett, 221 Pa.Super. 447, 292 A.2d 461 (1972). Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Palsgraf v. Long Island Railroad Co., supra.

Migyanko v. Thistlethwaite, 275 Pa.Super. 500, 505, 419 A.2d 12, 14 (1980) (emphasis added). I think it is abundantly clear that the service of intoxicants to an obviously intoxicated person by one who knows that the intoxicated person intends to drive a motor vehicle creates a reasonably foreseeable risk of injury to those on the highways. As such I believe a duty exists in an unlicensed dispenser of intoxicants to use reasonable care in the performance of that function; including refraining from serving further intoxicants to an already intoxicated person. I think the same principals are applicable in determining whether a party is negligent in delivering automobile keys to an obviously intoxicated person.

I wish to make clear that I do not advocate the imposition of strict liability on a social host. My position is merely that it is incorrect to rule as a matter of law that no cause of action exists. I fully believe that the plaintiff herein has pleaded a proper cause of action in negligence, especially under the facts of this case because of the defendant’s control of the automobile keys, and delivery of the same to the allegedly intoxicated plaintiff. I am not persuaded by the “lack of privilege” argument advocated originally in Klein v. Raysinger, 302 Pa.Super. 248 fn. 3, 448 A.2d 620 fn. 3 (1982), and reflected in the majority’s opinion. The recognition of a privilege generally depends on a balancing of the benefits and detriments resolved in favor of the privilege. Here, the benefits to society must surely outweigh any detriment, real or imagined, to the individual.

This case should have been allowed to proceed to a determination by the factfinder whether or not negligence existed, and whether or not liability should be imposed. See generally Manning v. Andy, supra, 454 Pa. at 242-250, 310 A.2d 77-81 (dissenting opinion by Justice Manderino). It is in this posture that I would vote to reverse the order of the lower court, and therefore I must respectfully dissent from the opinion of the majority.

      . A third issue, involves the duty owed by a landowner to an invitee. (In this case Portersville to Mark). We will not discuss this issue, as it was not raised by the pleadings, but only on appeal. Even if an amendment to the pleadings were allowed however, and this issue was added, our decision would not change in this type of case involving a non-licensee of the Liquor Board.

      . See Sinn v. Burd, 486 Pa. 146, 149-150, 404 A.2d 672, 673-674 (1979). See also Harley Davidson Motor Co., Inc. v. Hartman, 296 Pa.Superior Ct. 37, 442 A.2d 284 (1982); Banyas v. Lower Bucks Hospital, 293 Pa.Superior Ct. 122, 437 A.2d 1236, 1237 (1981); Chapman v. Philadelphia, 290 Pa.Superior Ct. 281, 434 A.2d 753 (1981).

      . 47 P.S. 4-493(1); 47 P.S. 4-497.

      . See Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973); Klein v. Raysinger, 298 Pa.Superior Ct. 246, 444 A.2d 753 (1982); Klein v. Raysinger, 302 Pa.Superior Ct. 248, 448 A.2d 620 (1982).

      . We also acknowledge the decision of Sanders v. Hercules Sheet Metal, Inc., La., 385 So.2d 772 (1980). This case involved a similar employer-employee situation and the Louisiana Supreme Court upheld a ruling of summary judgment, ruling that there was no possibility of negligence on the part of the employer in such a situation.

      . Act of December 15, 1982, P.L. 289, effective in 30 days.


author: WICKERSHAM, Judge:

text:
    458 A.2d 1390
    Rose FUSCO, Appellant, v. KEYSTONE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued June 23, 1982.
    Filed April 22, 1983.

      Ronald A. Blumfield, Philadelphia, for appellant.
    William C. McGovern, Philadelphia, for appellee.
    Before WICKERSHAM, McEWEN and LIPEZ, JJ.
   WICKERSHAM, Judge:

This is an appeal from a lower court order which denied a petition seeking certain benefits under and pursuant to the No-fault Motor Vehicle Insurance Act (hereinafter, the Act).

In her petition, Rose Fusco alleged that her daughter Rose Marie Fusco had been involved in a motor vehicle accident, having been struck by a motor vehicle in Philadelphia on October 18, 1976. She died as the result of her injuries the following day. On April 21, 1977 appellee, Keystone Insurance Company, made a payment for medical costs incurred as a result of the accident.

On April 17, 1979 Rose Fusco, appellant herein, filed her petition seeking to recover from Keystone Insurance Company survivor’s benefits and work loss benefits under the Act. Keystone Insurance Company filed an answer to the petition. The lower court found that Fusco’s claims were barred by the time limitations set forth in section 106(c)(2) of the Act and dismissed the petition. This appeal followed.

In considering these claims we are mindful of the Pennsylvania Supreme Court’s recent holding in Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982), which stated, “we have concluded that the legislature has provided comprehensive statutes of limitations in Sections 106(c)(1) and 106(c)(2), covering all no-fault benefits” Id., 500 Pa. at 168, 455 A.2d at 102.

Appellant Fusco frames the issue presented as follows: Did the lower court commit an error of law by denying Appellant’s Petition for Survivor’s Benefits and Wage Loss under the Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 P.S. § 1009.101 et seq. for the reason that said Petition was untimely filed?

Brief for Appellant at 2.

Initially, we will consider Fusco’s claim for work loss benefits. In Sachritz, the court held, concerning post-mortem work loss benefits: “While they are not survivor’s benefits they do arise ‘otherwise than from death,’ specifically from the work loss resulting from the effects of the covered injury____” Id., 500 Pa. at 171, 455 A.2d at 103-04. The relevant statute of limitations under the Act will, therefore, be found in section 106(c)(1), wherein it is provided:

If no-fault benefits have been paid for loss arising otherwise than from death, an action for further benefits, other than survivor’s benefits, by either the same or another claimant; may be commenced not later than two years after the last payment of benefits.

(Emphasis added.)

Certainly payments for medical care do not arise from death; rather they arise from attempts to save or help the victim. Since a payment for medical costs was made on April 21, 1977 and the petition for further benefits, including work loss benefits, was filed less than two years later, the claim for work loss benefits was commenced timely.

We now turn to Rose Fusco’s claim for survivor’s benefits. In Sachritz, the court held: “Initial claims for survivor’s benefits under the No-fault Insurance Act are subject to a one year limitation under Section 106(c)(2)____” Id., 500 Pa. at 176-77, 455 A.2d at 107. Section 106(c)(2) provides:

If no-fault benefits have not been paid to the deceased victim or his survivor or survivors, an action for surviv- or’s benefits may be commenced not later than one year after the death or four years after the accident from which death results, whichever is earlier. If survivor’s benefits have been paid to any survivor, an action for further survivor’s benefits by either the same or another claimant may be commenced not later than two years after the last payment of benefits. If no-fault benefits have been paid for loss suffered by a victim before his death resulting from the injury, an action for survivor’s benefits may be commenced not later than one year after the death or six years after the last payment of benefits, whichever is earlier.

No payments of survivor’s benefits have yet been made in this case. Rose Marie Fusco died on October 19, 1976; the presently considered suit was not commenced within one year of that date; the claim for survivor’s benefits is, therefore, untimely.

That portion of the lower court’s order denying survivor’s benefits is affirmed; that portion of the order denying work loss benefits is reversed; because of the clarity of the issues presented there is no need for exceptions to be filed here. The case is remanded for proceedings consistent with this opinion. We relinquish jurisdiction.

      . Act of July 19, 1974, P.L. 489, No. 176, §§ 101 et seq., 40 P.S. §§ 1009.101 et seq.

      . Recently the Superior Court, sitting en banc, decided that the commencement of an action under the No-fault Act by petition is a waivable procedural defect, see Jones v. State Automobile Insurance Association, 309 Pa.Super. 477, 455 A.2d 710 (1983), but also see Hartmann v. Peterson, 438 Pa. 291, 265 A.2d 127 (1970) (court has no power to make any order unless action commenced by complaint, summons or amicable agreement.) Instantly, no objection was made to the initiation of suit by petition.
      The court in Jones also held that in those no-fault cases now on appeal, which were commenced by petition and rule without objection by the defendant and in which a final order was entered prior to July 24, 1981, the failure of an appellant to file exceptions will be excused. Here, no exceptions were filed, however, the lower court denied appellant Fusco’s petition on June 16, 1980. A notice of appeal was filed ten days later. This appeal is timely and proper.

      . We reject appellant Fusco’s contention that since her legal rights to the benefits she seeks here were "undefined” until the Pennsylvania Supreme Court decision in Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980), she should be considered to be under a "legal disability” until the date of that decision and that the period pre-dating Heffner should not be considered against her in determining the timeliness of her claim. See Daniels v. State Farm Mutual Automobile Insurance Co., 283 Pa.Super. 336, 343, 423 A.2d 1284, 1288 (1980) (Heffner did not change the law or create a new right to work loss benefits; that right existed all along.)