author: CIRILLO, Judge:

text:
    658 A.2d 423
    Denise M. BIGANSKY, Appellant, v. THOMAS JEFFERSON UNIVERSITY HOSPITAL and Harvey Wank, D.D.S.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1995.
    Filed May 15, 1995.

      Robert S. Lucarini, Philadelphia, for appellant.
    Barbara S. Magen, Philadelphia, for Wank, appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

Denise M. Bigansky appeals from an order entered in the Court of Common Pleas of Bucks County granting summary judgment in favor of Harvey Wank, D.D.S. We affirm.

Denise Bigansky commenced this cause of action against defendants Harvey Wank, D.D.S., and Thomas Jefferson University Hospital (“Jefferson Hospital”), following a surgical procedure performed by Dr. Wank at Jefferson Hospital on May 11, 1988. On that date, Dr. Wank operated to correct Bigansky’s jaw since she suffered from internal derangement of the right and left temporomandibular joint, commonly referred to as “TMJ.”

Bigansky alleges that Dr. Wank inserted proplast implants into her jaw during the surgery and that, on May 11, 1988, or shortly thereafter, the defective implants began to malfunction, causing intense and severe pain. At the conclusion of the discovery process, Dr. Wank filed a motion for summary judgment. Dr. Wank maintained that he was entitled to summary judgment since Bigansky’s cause of action was time-barred by the applicable statute of limitations, and since she presented no actionable theory of liability against him. The trial court granted Dr. Wank’s motion for summary judgment and Bigansky timely appealed. Bigansky raises one issue for this court’s consideration: whether the trial court erred in granting summary judgment in favor of Dr. Wank?

When we review the grant of a motion for summary judgment according to Pennsylvania Rule of Civil Procedure 1035(b), our scope of review is well-settled: summary judgment is properly granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only in those cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989); Stephenson v. Greenberg, 421 Pa.Super. 1, 617 A.2d 364 (1992), appeal denied, 535 Pa. 649, 633 A.2d 153 (1993). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). Moreover, the record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt as to the existence of a genuine issue of material fact must be resolved against the moving party. Davis v. Pennzoil, 438 Pa. 194, 264 A.2d 597 (1970); Stephenson, supra, 421 Pa.Super. 1, 617 A.2d 364. Finally, the trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

The trial court granted Dr. Wank’s motion for summary judgment because it found that Bigansky did not successfully toll the applicable statute of limitations. Thus, we must determine whether the trial court erred or abused its discretion in reaching that decision. Hetrick, supra.

Bigansky alleges that on May 11, 1988, Dr. Wank operated on her jaw and on the same day, or shortly thereafter, she began to experience severe pain due to the malfunction of defective implants. Bigansky filed a complaint against Dr. Wank which included an action in negligence as well as an action based upon strict liability under § 402A of the Restatement (Second) of Torts. Bigansky’s count in strict liability pursuant to § 402A of the Restatement (Second) of Torts is not properly before this court.

With respect to Bigansky’s negligence claim, the action is controlled by a two year statute of limitations. Pennsylvania’s statute of limitations for personal injuries requires that an action to recover damages for injuries resulting from the wrongful act or negligence of another must be commenced within two years. 42 Pa.C.S.A. § 5524. Pennsylvania Rule of Civil Procedure 1007 provides that an action may be commenced by filing with the prothonotary either (1) a praecipe for a writ of summons, or (2) a complaint. Pa.R.C.P. 1007.

Just prior to the expiration of the two-year statute of limitation, Bigansky filed a praecipe for a writ of summons pro se on May 7, 1990. Pennsylvania Rule of Civil Procedure 401(a) requires original process to be served within the Commonwealth within thirty days after the issuance of the writ or the filing of the complaint. Pa.R.C.P. 401(a). Instantly, the May 7, 1990 writ was not served on Dr. Wank within the thirty days required by Rule 401(a). Dr. Wank contends that the statute of limitations began to run on May 11, 1988. Dr. Wank further asserts that Bigansky’s failure to serve the writ •within thirty days of the May 7, 1990 date, when the writ was issued, results in the bar of Bigansky’s claims against him.

Bigansky argues that the cause of action did not arise, according to the discovery rule, until after a subsequent operation was performed on April 24, 1990 by Larry M. Wolford, D.D.S., in Texas, when she was allegedly informed and, hence, discovered, that proplast implants were used in the original operation by Dr. Wank. Further, Bigansky argues that even if the statute of limitations did begin to run on May 11, 1988, she still timely tolled the statute by filing the writ on May 7, 1990 and by subsequently filing a praecipe to reissue the writ on April 24, 1992 and again on September 16, 1992. Pennsylvania Rule of Civil Procedure 401(b) provides that:

(1) If service within this Commonwealth is not made within the time prescribed by subdivision (a) of this rule ..., the prothonotary upon praecipe and upon presentation of the original process, shall continue its validity by reissuing the writ____
(2) A writ may be reissued ... at any time and any number of times.
(4) A reissued ... writ ... shall be served within the applicable time prescribed by subdivision (a) of this ruleL, thirty days,] ... after reissuance.

Pa.R.C.P. 40103). Service of the writ was effectuated on Dr. Wank on September 22, 1992.

In order to determine whether the trial court properly granted Dr. Wank’s motion for summary judgment, we must first ascertain when the applicable statute of limitations began to run. The general rule is that the statute of limitations begins to run when the negligent act has been done. Moore v. McComsey, 313 Pa.Super. 264, 270, 459 A.2d 841, 844 (1983). In this Commonwealth, the statute of limitations for a negligence cause of action is triggered upon the occurrence of the alleged breach of duty. School Dist. of the Borough of Aliquippa v. Maryland Casualty Co., 402 Pa.Super. 569, 580, 587 A.2d 765, 770 (1991).

“The purpose of a statute of limitations is to expedite litigation and to discourage stale claims.” Moore, 313 Pa.Super. at 270, 459 A.2d at 844. Moreover, a party who raises a claim against another has a duty to exercise all reasonable diligence to inform himself of the facts and to bring the suit within the prescribed period. Id. Also, mere mistake, misunderstanding or lack of knowledge is not sufficient to toll the running of the applicable statutory period. Id.

If the general rule is applied to the facts of this case, then the statute of limitations began to run on May 11, 1988, the day of the surgery, when the alleged negligent act had been done or, in other words, when the duty was breached. Moore, supra, 313 Pa.Super. 264, 459 A.2d 841; Maryland Casualty, supra, 402 Pa.Super. 569, 587 A.2d 765. Thus, under the general rule, Bigansky properly tolled the statute on May 7, 1990 by filing the praecipe to issue the writ within two years of May 11, 1988. We must nevertheless examine Bigansky’s conduct after she filed the writ in order to determine whether she engaged in a course of conduct which stalled the legal process. Also, if the discovery rule were to apply so as to push the statute of limitations date to May 7, 1990, when Bigansky allegedly discovered the use of proplast implants by Dr. Wank, then we must still examine Bigansky’s conduct subsequent to the filing of the writ, for the same reasons as under the general rule.

With regard to the discovery rule, courts distinguish between those general cases where the statute begins to run when the negligent act has occurred, and the discovery rule, where the injured party could not have immediately discovered the injury and, thus, the negligent act. We have held:

The only exception to this general rule is where the existence of an injury is not known to the complaining party and such knowledge cannot be reasonably ascertained within the prescribed statutory period. In such cases, the prescribed statutory period does not begin to run until discovery of the injury is reasonably possible. To come within this exception, it [is] essential that [the party] ha[s] made reasonable efforts to protect his interests and explain why he was unable to discover promptly the operative facts necessary to plead his cause of action.

Moore, 313 Pa.Super. at 271, 459 A.2d at 845 (citations omitted). This exception to the general rule, otherwise known as the discovery rule, has been expounded upon as it relates to actions for medical malpractice:

An exception to this [two year statute of] limitation[s] has been articulated by our courts in medical malpractice cases where very often the patient (and prospective plaintiff) has no reason to believe that he has suffered an injury caused by the administration of a physician’s treatment. The ‘discovery rule’ concept is premised on the concept that where the existence of an injury cannot be reasonably ascertained, the statute of limitations does not begin to run until such time as the injury’s existence is known or discovered, or becomes knowable or discoverable by the exercise of reasonable diligence.

Held v. Neft, 352 Pa.Super. 195, 199, 507 A.2d 839, 841 (1986) (quotations omitted). The case where the discovery rule was first implemented is Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), where the Supreme Court of Pennsylvania held that “an injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers, 397 Pa. at 290, 154 A.2d at 792. The application of the discovery rule is now delineated as follows:

“[T]he statute commences when the medical malpractice plaintiff has knowledge or (and this is crucial to the determination) through the exercise of reasonable diligence should have knowledge of: (1) his injury; (2) the operative cause of his injury; and, (3) the causative relationship between his injury and the operative conduct.” Knowledge of the negligence is not part of the discovery rule.

Held, 352 Pa.Super. at 199-200, 507 A.2d at 841 (quoting DeMartino v. Albert Einstein Medical Center, Northern Division, 313 Pa.Super. 492, 500, 460 A.2d 295, 299 (1983)).

Concerning the application of the discovery rule, we have stated:

In applying the discovery rule, whether a plaintiff should have made a timely discovery of his or her injury is generally an issue for the jury unless the undisputed facts lead unerringly to the conclusion that the time it took to discover an injury was unreasonable as a matter of law. In such cases, summary judgment may be entered by the court.

McDonald v. Rosen, 423 Pa.Super. 304, 308, 621 A.2d 128, 130 (1993).

Bigansky asserts that, pursuant to the discovery rule, the statute of limitations did not begin to run until after the surgery performed by Dr. Wolford in May of 1990, when she allegedly discovered that proplast material had been used in the initial operation performed by Dr. Wank. Bigansky also submits that, even if the statute did begin to run for the negligence claim on the date of the initial operation, the discovery rule should be applied so as to push the starting date for the statutory period to May of 1990 for her separate products liability count. Finally, Bigansky argues that, even if the statute began to run for the entire action on May 11, 1988, the day of the operation, she did not engage in a course of conduct which served to stall the legal process as the trial court held.

In this case, Bigansky admitted, both in her complaint and in her deposition, that she experienced intense, severe and excruciating pain immediately following the surgery on May 11, 1988. Bigansky claims, however, that simply experiencing pain following a surgical procedure does not constitute notice of an injury or an understanding sufficient enough to establish knowledge that she was injured, what the operative cause of that injury might be, or what the causative relationship between the injury and the operative conduct could be. We agree that, generally, when an individual has undergone a surgical procedure and experiences pain immediately thereafter, the existence of such pain following the procedure would not tend to put that individual on immediate notice that they have been injured and that the physician’s improper or negligent performance of the procedure was the cause of such injury. This typical situation, however, does not adequately describe the circumstances involved in the present case. The record in this case reveals that the circumstances following Bigansky’s surgical procedure were sufficient to put Bigansky on notice that she suffered an injury as a result of the conduct of another. Bigansky testified at her deposition as follows:

Q. Do you know what your mother meant by “if Doctor Wank was having trouble could he have gotten help?”
A. Our impression was that there was some problem with the surgery from the start.
Q. How did you get that impression?
A, Well, first of all, the surgery lasted a lot longer than it was supposed to. It was more extensive than it was supposed to be.
Q. Do you know how long it was supposed to last?
A. I think it was only supposed to last roughly a couple hours.
Q. And how long did it last?
A. Probably somewhere like five, six hours plus a lot of time in recovery.
Q. Do you know why it lasted that long?
A. I imagine there was some sort of problem.
******
Q. Can you tell me what symptoms you have that led you to believe that Proplast may have been used?
A. After Doctor Wank’s surgery, the first thing that I noticed was it felt like someone had poured a bottle of acid inside my head and face. The pain was totally excruciating. My face stopped moving.
A. I could only eat liquids. I had very bad pain in the sides of my neck leading down to my chest.
Q. Both sides of your neck?
A. Yes. And then over time my whole body has become involved.
Q. In what way?
A. There isn’t — all my bones, my joints, my — all the tissues around them, they all are excruciatingly painful.
Q. When did you first notice the pain in your head and face?
A. From Doctor Wank? Immediately.
Q. Immediately after surgery?
A. Yes.
Q. When you became conscious?
A. Yes.
Q. While you were still in the hospital?
A. I felt the pain before I was conscious, in fact, while I was in the recovery room. I wasn’t even around yet, and I was screaming and everything.
* * * * *
Q. When did you first develop the pain in the sides of your neck and your chest going down to your chest?
A. Immediately after.
‡ ¡H
Q. When did you notice that all of your joints hurt around the tissues around your joints?
A. Pretty quickly. But they have gotten progressively and progressively and progressively worse up until this time. There has been greater and greater involvement.
Q. When you say “pretty quickly,” what do you mean? How soon did you first noticed [sic] it?
A. Several weeks. Even immediately after, but at that time I had basically been thinking it is pain from the surgery. It is going to go away.
Q. Okay. When you say “immediately,” do you mean while you were still in the hospital?
A. Yes. In fact, I went to the emergency room the day I was released at Thomas Jefferson [Hospital].

(S.R. 44b, 45b, 62b-66b) (underlining supplied).

We generally agree with Bigansky’s assertion that to experience pain following a surgical procedure is a common occurrence. We find, however, that the combination of factors in the present case negates a finding that Bigansky’s severe and excruciating pain could reasonably be associated with normal post-operative pain. Bigansky knew or, through the exercise of reasonable diligence, should have known that she suffered an injury, what the operative cause of the injury could be, and the causative relationship between the injury and the operative conduct, for several reasons.

Bigansky admits that she, as well as her mother, believed immediately following the surgery that there was a problem with the actual surgery itself. Bigansky testified that the surgery lasted much longer than it supposedly should have lasted and Bigansky attributed the extended duration of the surgery to some “problem” with the surgery. Also, Bigansky expressed her concern over the extensive time which she spent in the recovery room following the procedure.

Bigansky also admitted that she was in excruciating pain immediately following the surgery such that it felt as though someone had poured acid inside her head and face. The existence of such severe pain is emphasized all the more by the fact that this tremendous pain caused Bigansky to go to an emergency room the very day that she was released from Jefferson Hospital. While such excruciating pain may arguably be a common post-surgical experience for patients undergoing this type of surgery, or any other surgery for that matter, we find that such pain, in combination with the other pain which Bigansky experienced throughout the rest of her body, is not common in light of the fact that such additional “other-body” pain was not included in the consent form list of “Possible Operative And/Or Post-Operative Complications of Temporomandibular Joint Surgery,” which was read and signed by Bigansky. Bigansky testified, as illustrated above, that immediately following the surgery, she experienced severe and intense pain in her chest area and in all her bones, joints and the surrounding tissues. None of these areas are listed or described in the signed consent form as areas which are potentially affected by possible operative or post-operative complications. This fact rebuts her claim that the postoperative pain which she experienced in certain areas of her body, i.e. her chest, all her bones, joints and surrounding tissues, could reasonably be interpreted as resulting from a typical operation to correct TMJ.

Additionally, Bigansky argues that although she felt excruciating pain immediately following the operation, she also claims to have felt severe pain prior to the operation. Bigansky argues, therefore, that the pain following surgery can be attributed to not only the common post-operative pain, which is normally associated with having undergone a surgical procedure, but can also be attributed to the pre-operative pain which resulted from her TMJ condition. As discussed, Bigansky experienced excruciating pain immediately following the surgery in areas of her body not contemplated by the possible operative and/or post-operative consent form discussed above. Further, that portion of Bigansky’s claim that the excruciating post-operative pain can be attributed to her pre-operative TMJ condition is also refuted by the facts of record. Specifically, Bigansky testified that she had bad neck pain, back pain, left shoulder pain, and severe headaches, as well as some facial numbing and clicking, prior to the surgery. This list describing pre-operative areas of pain does not include Bigansky’s post-operative pain which she experienced in the area of her chest, bones, joints and surrounding tissues. Thus, Bigansky experienced pain in new and different areas of her body after the surgery, which did not exist prior to the surgery, and which did not come within the list of possible operative and/or post-operative complications of TMJ surgery.

Finally, Bigansky states in her complaint that “[o]n or about May 11, 1988 or shortly thereafter, the defective proplast implants began to malfunction causing intense and severe pain to plaintiff as well as other injuries described herein.” At the very least, Bigansky reasonably should have known that her problems and pain were caused by the surgical procedure on May 11,1988. “One need only know (or reasonably should know) that she is injured and that the injury was caused by the conduct of another.” Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 429, 516 A.2d 53, 57 (1986), appeal denied, 515 Pa. 600, 528 A.2d 957 (1987). The admissions in Bigansky’s complaint, in addition to her deposition testimony, clearly indicate that she knew that she was injured on May 11, 1988. Bigansky need not have known the precise medical cause of the injury in order to commence the running of the statute of limitations. Groover, supra, 357 Pa.Super. 420, 516 A.2d 53. She need only have known, or reasonably should have known, that she was injured. Id. “An injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers, 397 Pa. at 290, 154 A.2d at 792. The act which “heralded” a possible tort in this case was the surgical procedure which Bigansky underwent on May 11, 1988. The physically objective and ascertainable damage inflicted by the May 11th surgical procedure was the pain which Bigansky experienced in her chest, all her bones, joints and the surrounding tissues, as well as the excruciating pain in her head, face and neck.

“A lay person is not reasonably expected to know the precise medical cause of such an injury even though he knows that the injury was occasioned by a discrete medical procedure.” Held, 352 Pa.Super. at 200, 507 A.2d at 841. On the other hand, “once the patient is aware or should reasonably have become aware that medical treatment is causing him personal injury the statute begins...." Groover, 357 Pa.Super. at 429, 516 A.2d at 57 (quoting DeMartino v. Albert Einstein Medical Center N.D., 313 Pa.Super. 492, 502, 460 A.2d 295, 300 (1983)).

Furthermore, the record reflects that Bigansky knew, or reasonably should have known, on May 11, 1988 that her injury was caused by the conduct of another, that is, she knew what constituted the “operative conduct” under the second prong of the discovery rule. Bigansky testified that she had pain and that it must have resulted from the surgery because the surgery lasted much too long. Thus, Bigansky’s own impression was that there was some problem with the surgery. Bigansky was not required to know that her injury, which was caused by the conduct of another, was the result of negligence, since knowledge of negligence is not part of the discovery rule. Held, supra, 352 Pa.Super. 195, 507 A.2d 839.

Finally, Bigansky’s testimony and admissions evidence the fact that she knew the causative relationship between her injury and the operative conduct. In other words, Bigansky knew that her injury, the excruciating pain which she was experiencing, resulted from the surgical procedure performed by Dr. Wank and that his or someone else’s conduct caused the injury.

These factors, when combined together, lead this court to the conclusion that Bigansky knew, or reasonably should have known, as early as May 11, 1988, that she was injured as a result of the surgical procedure and that it was caused by the conduct of another. Accordingly, under the discovery rule, just as under the general rule discussed above, the applicable statute of limitations began to run immediately following the surgery on May 11, 1988.

We agree with the trial court’s determination under the facts of this particular case that the applicable statute of limitations began to run immediately following the surgery, on the actual day of the surgery, May 11, 1988. We find, however, that this case is unique as to its particular facts and that, in most typical situations involving the issue of postoperative pain and knowledge of injury, the applicable statute of limitations is more likely to start running within the weeks or months immediately following the procedure. “As each case has different circumstances, each must be evaluated in light of its own particular facts.” Stephenson, supra, 421 Pa.Super. 1, 617 A.2d 364. The facts of the instant case, especially the plaintiffs own testimony and admissions, actually pinpoint the fact that she knew on May 11, 1988, that she was injured and that her injuries were caused by the conduct of another. The facts in this case are actually quite similar to those presented in Groover, supra, 357 Pa.Super. 420, 516 A.2d 53.

In Groover, a woman received a very painful injection while in the hospital sometime between March and April of 1979. The woman was in constant pain immediately following the injection, and she gradually lost muscular control of her leg. The medical cause of the woman’s pain was not linked to the injection until June of 1983. The plaintiff argued that the discovery rule prevented the applicable statute from beginning to run until June of 1983 when she was informed of the type of injury she suffered and its cause. The court in Groover rejected the plaintiffs argument and held that the plaintiff knew or reasonably should have known in the spring of 1979 that she was injured, what constituted the operative cause of her injury, and the causal relationship between the injury and the operative conduct. Groover, supra, 357 Pa.Super. 420, 516 A.2d 53.

The plaintiff in Groover admitted in her answers to interrogatories that all of her injuries began at the time of the injections. The court concluded that the facts clearly showed that in the spring of 1979 the plaintiff knew or reasonably should have known that the injection was the cause of her injury. Groover, 357 Pa.Super. at 428, 516 A.2d at 56. Similarly, the facts in this case clearly show that Bigansky knew or reasonably should have known on May 11, 1988, that the surgical procedure was the cause of her injury.

Even under the typical situation mentioned above where the statute of limitations would begin to run within the weeks or months following the procedure, depending on the facts of the situation and the circumstances surrounding each particular case, there is no question that the result in this case would nevertheless remain the same. In this case, within the month or two following the surgery, Bigansky most certainly would have known or, through the exercise of reasonable diligence, should have known, that she was injured and that her injuries were caused by the conduct of another. As discussed below, in either situation, the result would remain the same in light of Bigansky’s actions following the filing of the writ.

Since the date for statute of limitations purposes was May 11, 1988, Bigansky was required to file either a praecipe to issue a writ or a complaint within two years of this date so as to toll the statute of limitations. Bigansky filed a writ on May 7, 1990. The important question is whether Bigansky’s filing of the writ effectively tolled the statute. We find that although Bigansky’s filing of the writ did toll the statute, we nevertheless agree with the trial court’s conclusion that Bigansky engaged in a course of conduct that stalled the legal process.

The Pennsylvania Supreme Court in Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976), addressed the issues of tolling the statute of limitations and reissuance of the writ of summons. In Lamp, the plaintiff allegedly sustained an injury on September 1, 1967. Subsequently, the plaintiff in Lamp filed a writ of summons on August 8, 1969, but instructed the prothonotary not to deliver the writ to the sheriff for service. The plaintiff then took no further action until April 9, 1970, when she reissued the writ. Again, no service was effectuated, although there existed no reasons on the record for the lack of service. The writ in Lamp was reissued a second time on June 6, 1970, and was finally served on June 19, 1970.

The Court in Lamp held that the mere filing of a praecipe for a writ of summons to commence an action is sufficient to toll the running of the applicable statute of limitations. Lamp, 469 Pa. at 471, 366 A.2d at 885. The Court also held that although the Pennsylvania Rules of Civil Procedure require a writ to be served within thirty days after the writ’s issuance, it may, pursuant' to Rule 401(b)’s predecessor Pa. R.C.P. 1010, nevertheless be reissued at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations for the commencement of.the action. Id. The Court further held that each additional valid reissuance of the writ gives rise to a new equivalent period during which the writ may again be reissued. Id.

In the instant case, Bigansky filed the writ on May 7, 1990, which was within the two-year statute of limitations beginning on May 11,1988. Thus, it is clear that Bigansky validly tolled the applicable statute of limitations by filing the writ of summons within two years of May 11, 1988. It is also clear that, in light of Lamp and its progeny, Bigansky was permitted to reissue the writ at any time after the original issuance during a period equivalent to that permitted by the applicable statute of limitations. In this case, when Bigansky reissued the writ on April 24, 1992, she did reissue the writ within the period equivalent to that permitted by the statute. In other words, Bigansky’s filing of the writ on May 7, 1990 enabled her, pursuant to Lamp and Rule 401(b), to reissue the writ within an additional time period equivalent to that of the applicable statute of limitations, namely, two years. Accordingly, Bigansky’s reissuance of the writ on April 24, 1992, and again on September 16, 1992, was valid. Lamp, supra, 469 Pa. 465, 366 A.2d 882; Pa.R.C.P. 401(b). As a result, Bigansky’s service of the writ on September 22, 1992 was also valid as it was within thirty days of the reissuance of the writ on September 16th. See Pa.R.C.P. 401(b)(4).

The Court in Lamp, however, also set forth a caveat to be recognized with the reissuance of writs. The Court stated:

[W]e now conclude that there is too much potential for abuse in a rule which permits a plaintiff to keep an action alive without proper notice to a defendant merely by filing a praecipe for a writ of summons and then having the writ reissued in a timely fashion without attempting to effectuate service. In addition, we find that such a rule is inconsistent with the policy underlying statutes of limitation of avoiding stale claims, and with that underlying our court rules of making the process of justice as speedy and efficient as possible.

Lamp, 469 Pa. at 477, 366 A.2d at 888-89 (footnotes omitted) (emphasis added).

It is true in this case that the above caveat does not apply precisely to the facts in this case for Bigansky did attempt to effectuate service after the May 7, 1990 issuance of the writ and after the April 24, 1990 reissuance of the writ. The Court, however, completed its pronouncement of this caveat by holding:

Our purpose is to avoid the situation in which a plaintiff can bring an action, but, by not making a good-faith effort to notify a defendant, retain exclusive control over it for a period in excess of that permitted by the statute of limitations .... [A] writ of summons shall remain effective to commence an action only if the plaintiff then refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.

Lamp, 469 Pa. at 478, 366 A.2d at 889 (footnote omitted).

Engaging in a course of conduct which serves to stall the legal process has been interpreted by those cases which have followed Lamp and which have addressed this issue. Specifically, the Supreme Court’s holding in Lamp has been interpreted as requiring a “good-faith effort” on the part of the plaintiff to notify the defendant. Ferrara v. Hoover, 431 Pa.Super. 407, 636 A.2d 1151 (1994); Collins v. Greene County Memorial, 419 Pa.Super. 519, 615 A.2d 760 (1992), aff'd, 536 Pa. 475, 640 A.2d 379 (1994). In addition, this court has held that the “failure to make a good faith effort to notify the defendant will serve to nullify both the commencement of the action and the tolling of [the] statute of limitations.” Ferrara, 431 Pa.Super. at 410, 636 A.2d at 1152 (quoting Collins, 419 Pa.Super. at 525, 615 A.2d at 762). To refrain from a course of conduct that serves to stall in its tracks the legal machinery that a plaintiff has just put into motion requires that plaintiff “act in good faith and in a manner that will prevent delay.” Rosenberg v. Nicholson, 408 Pa.Super. 502, 507, 597 A.2d 145, 147 (1991), appeal denied, 530 Pa. 633, 606 A.2d 903 (1992). Moreover, although there is no mechanical approach to be applied in determining what constitutes a good faith effort, it is the plaintiffs burden to demonstrate that his efforts were reasonable. Cahill v. Schults, 434 Pa.Super. 332, 337, 643 A.2d 121, 123 (1994); accord Green v. Vinglas, 431 Pa.Super. 58, 635 A.2d 1070 (1993).

We believe that the rule requiring a good faith effort on the part of the plaintiff to serve the defendant so as to provide the defendant with notice of the action andj to prevent delay, as established in Lamp and subsequently interpreted by this court, was designed to prevent the situation presently illustrated by the facts of this case. In Lamp, the Court found that the procedural facts surrounding the filing of the writ, the writ’s reissuance, and the ultimate service of the writ upon the defendant did not show that the plaintiff engaged in a course of conduct which served to stall the legal machinery which he set in motion. The facts in Lamp, though, are distinguishable from the facts in the present case.

In Lamp, the plaintiff served the writ within ten months of the original filing of the writ. In this case, on the other hand, Bigansky served the writ upon Dr. Wank twenty-eight months after the original filing of the writ, almost three times longer than the period of delay in Lamp. Bigansky did attempt to serve the writ within the thirty days following the original issuance of the writ on May 7,1990. Bigansky also attempted to serve the writ within the thirty days following the reissuance of the writ on April 24,1992. Even if we were to assume that these attempts by Bigansky did constitute a good faith effort, Bigansky still made no effort whatsoever to serve Dr. Wank during the twenty-two month interval between June 15, 1990, when Bigansky was notified that the writ had not been served, and April 24, 1992, when the writ was reissued in accordance with Rule 401(b). Consequently, Bigansky’s lack of any effort to notify Dr. Wank of the action during the twenty-two month interval constituted the abuse and unfairness which Lamp and its progeny sought to prevent.

Additionally, Bigansky has not demonstrated that the efforts to serve Dr. Wank following the May 7, 1990 issuance of the writ, and following the April 24, 1992 reissuance of the writ constituted a good faith effort to notify Dr. Wank of this action. As noted, it is the plaintiffs burden to demonstrate that her efforts were reasonable. Cahill, supra, 434 Pa.Super. 332, 643 A.2d 121. After the praecipe for writ of summons was issued on May 7, 1990, service on Dr. Wank was attempted at Jefferson Hospital. Jefferson Hospital did not accept service for Dr. Wank.

Bigansky’s failure to successfully serve Dr. Wank may have been the result of simple neglect or mistake. Simple neglect or mistake in failing to fulfill the responsibility that the requirements for service are met may be sufficient to violate the good faith standard set forth in Lamp. Rosenberg, supra, 408 Pa.Super. 502, 597 A.2d 145. “[I]t is not necessary the plaintiffs conduct be such that it constitutes some bad faith or overt attempt to delay before the rule of Lamp will apply.” Ferrara, 431 Pa.Super. at 410, 636 A.2d at 1152 (quoting Rosenberg, 408 Pa.Super. at 509-10, 597 A.2d at 148); see also Rosenberg, supra, 408 Pa.Super 502, 597 A.2d 145 (holding that plaintiffs inadvertent service at the defendant’s incorrect address, after having received defendant’s correct address from the post office, lacked reasonableness and good faith); Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982) (holding that it is reasonable to expect that a plaintiff, if he knows that process could not be served at a given address, will employ some alternative means to effectuate service).

Nevertheless, as noted above, even if we were to assume that Bigansky’s attempts to serve Dr. Wank constituted good faith efforts, Bigansky would still be unable to overcome the twenty-two month interval of total inactivity on her part. Consequently, we find that Bigansky’s failure to take any action to even attempt to serve Dr. Wank during the twenty-two months following the return of the original writ in June, 1990, constituted a violation of the good faith effort to keep an action alive required by the Supreme Court in Lamp.

With regard to Bigansky’s products liability cause of action against Dr. Wank under § 402A of the Restatement (Second) of Torts (1965) for the implantation of allegedly defective prosthetics, her claim is totally devoid of merit. Bigansky claims that she could hot have known that proplast implants were used by Dr. Wank until the second surgery on April 24,1990. This court held in Cafazzo v. Central Medical Health Serv., Inc., 430 Pa.Super. 480, 635 A.2d 151 (1993), that, as the result of implantation of a defective prosthetic, liability should not be extended to a physician, or a hospital, based on a theory of strict products liability under § 402A of the Restatement (Second) of Torts. The plaintiff in Cafazzo, just like the plaintiff in the present case, instituted a lawsuit after the alleged implantation into the plaintiffs jaw of a prosthetic device known as proplast implants. We held that physicians were not in the business of manufacturing or selling products, but rather were in the business of providing medical services and, therefore, the manufacturer, not the physician, should be pursued for any potential relief. Cafazzo, 430 Pa.Super. at 486-88, 635 A.2d at 154-55.

In view of the foregoing, we find that the trial court properly concluded that Bigansky engaged in a course of conduct that stalled the legal process and that it was unreasonable for Dr. Wank not to have been served with this action for more than two years after the original filing of the writ and over four years after the surgery. Accordingly, the trial court did not err or abuse its discretion when it granted summary judgment in favor of Dr. Wank. Hetrick, supra, 415 Pa.Super. 189, 608 A.2d 1074.

Order affirmed.

      , Co-defendant Jefferson Hospital had been previously dismissed from the case, thus making the order granting summary judgment in favor of Dr. Wank final and appealable. See Pa.R.A.P. 341(b).

      . What is more important than how long the surgery was supposed to last, or how long it actually did last, is what Bigansky actually believed. We must focus upon the plaintiff's interpretation of the facts surrounding a particular situation. Here, as far as Bigansky’s testimony reflects, she knew in her mind that there was some “problem" with the surgery. The duration of the surgery, in and of itself, is not enough upon which to base a cause of action. We do not want to encourage the immediate filing of a lawsuit right after a surgical procedure simply because a person experiences pain. Undoubtedly, people will probably have to endure pain and discomfort following a surgical procedure. As a result, we wish to avoid, and do not want to encourage, the institution of totally precautionary, yet frivolous lawsuits. Indeed, such action would only tend to dissipate the physician-patient relationship by alienating the patient from his or her physician.

        Here, however, the extended duration of the surgery should have been Bigansky’s first clue that something was not right. When this factor is added to the other factors discussed herein, then Bigansky knew, or should have known, that she was injured and that the injury was caused by the conduct of another.

      . Experiencing pain which may not have been included on the complications list does not necessarily provide a basis for a legal claim. It is only one of several factors which, as in this case, combine to provide knowledge of injury and its cause. What is critically important in this case is Bigansky’s own belief that something was definitely wrong from the very beginning. Bigansky knew that she was injured and that her injury was caused by the conduct of another.

        There may be situations, however, where the facts of the particular case clearly show that the pain or injury unquestionably should not follow from a particular procedure, regardless of the fact that it was not included on the complications list. For example, if a patient were to undergo an operation to have her appendix removed and came out of the procedure without her sight or hearing, then this alone would be sufficient to provide the patient with adequate notice that she has been injured and that the injury resulted from the contact of another. This may be an extreme example, but with such an example our point is made more clearly.

      . There is some question as to whether this third prong of the discovery rule requires our review in this case as it has been held that requiring the plaintiff to know ‘‘the causative relationship between the injury and the operative conduct” adds nothing to the analysis of the first two prongs. Groover, supra, 357 Pa.Super. 420, 516 A.2d 53. Nonetheless, we believe that this third prong has been established according to the facts before us.

      . We are not inferring that since Bigansky knew, or reasonably should have known, that she had been injured and that it was caused by the conduct of another, that it necessarily follows that Dr. Wank was negligent. First, we have already pointed out that knowledge of negligence is not part of the discovery rule. Second, this analysis only pertains to the plaintiffs knowledge of her injury for purposes of triggering the statute of limitations. The inquiry does not stop. To the contrary, the plaintiff is required to perform discovery and go to trial to convince the factfinder that she did in fact suffer an injury, as well as all other elements of the cause of action.


source: Caselaw Access Project

author: CAVANAUGH, Judge.

license: Public Domain

text:
    658 A.2d 435
    COMMONWEALTH of Pennsylvania v. James DEGREEN, Appellant.
    Superior Court of Pennsylvania.
    Argued March 2, 1995.
    Filed May 17, 1995.
    Rebecca L. Warren, Bloomsburg, for appellant.
    Thomas E. Leipold, Bloomsburg, for Tp. of Hemlock, participating party.
    Before ROWLEY, P.J., and CAVANAUGH and McEWEN, JJ.
   CAVANAUGH, Judge.

James DeGreen appeals from judgement of sentence entered against him by the Court of Common Pleas of Columbia County after he was found guilty of repeated violations of the Hemlock Township Zoning Ordinance.

We first note that this matter properly comes within the jurisdiction of the Commonwealth Court and not this court. 42 Pa.C.S.A. § 762(a)(4)(i), which concerns the jurisdiction of the Commonwealth Court on appeals from final orders of the courts of common pleas, provides that the Commonwealth Court shall have exclusive jurisdiction over local government criminal matters arising under any zoning code.

We note, however, that since appellee has failed to object to this court’s lack of jurisdiction, “our jurisdiction has been perfected and we have discretion either to decide the case on the merits or transfer it to Commonwealth Court.” Commonwealth v. Sensi 287 Pa.Super. 452, 454, 430 A.2d 691, 692 (1981). See also; Township of Eldred v. County of Monroe, 330 Pa.Super. 74, 478 A.2d 1357 (1984).

In this matter we choose to defer to the Commonwealth Court’s greater expertise in the area of the law raised by this appeal. See: Osser v. City of Philadelphia, 295 Pa.Super 447, 441 A.2d 1317 (1982). Accordingly, this appeal is transferred to the Commonwealth Court.

Appeal transferred.

      . With the exception, not applicable here, of those cases within the exclusive jurisdiction of the Supreme Court.


author: DEL SOLE, Judge: HOFFMAN, Judge,

text:
    658 A.2d 800
    COMMONWEALTH of Pennsylvania, Appellant, v. Louis METZKER, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Elsie PIASTA, Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1995.
    Filed May 4, 1995.

      Scott C. Gartley, Asst. Dist. Atty., Wilkes-Barre, for the Com., appellant.
    Thomas Cometa, Kingston, for appellees.
    Before DEL SOLE, SAYLOR and HOFFMAN, JJ.
   DEL SOLE, Judge:

The District Attorney of Luzerne County appeals a trial court order directing the filing of a previously disapproved private criminal complaint. Pa.R.Crim.P., Rule 133(B)(3)(ii). We reverse.

The private complainants are officers of the Kingston Man- or Social Club, an organization of senior citizens who reside in the Kingston Manor Apartments. The defendants are former officers of this club. Following a change in officers, the complainants had reason to believe that cash shortages existed in the sale of soda from an on site soda machine. After unsuccessfully trying to resolve the dispute with the former officers, the complainants filed a private criminal complaint with the appropriate District Justice who forwarded the complaint to the District Attorney for approval. Pa.R.Crim.P., Rule 106, 42 Pa.C.S.A., formerly Rule 133.

Following receipt of the complaint, the District Attorney determined that two officers of the Kingston Borough Police Department had investigated the matter and had concluded that no charges were warranted. This conclusion was based on their determination that proving a crime was committed, given the state of the Club’s financial records would be impossible. (N.T. 4/5/94 p. 30). The District Attorney disapproved the complaint with the notation “insufficient evidence after police investigation; lacks prosecutorial merit.” Approval then was sought from the Court of Common Pleas.

The trial court concluded, and we agree that the complaint set forth sufficient facts to allege a prima facie case. As we stated in Commonwealth v. Jury, 431 Pa.Super. 129, 636 A.2d 164 (1993) once the complaint establishes a prima facie case, the prosecutor cannot rest the disapproval on a legal assessment of the complaint.

However, the inquiry does not end at this point. The Commonwealth may exercise discretion solely on the basis of policy. A determination that the case lacks “prosecutorial merit” is such a policy determination. Courts will not disturb that decision unless there is a gross abuse of discretion. Commonwealth v. Pritchard, 408 Pa.Super 221, 596 A.2d 827 (1991). It is at this point we disagree with the trial court’s assessment. Two separate police investigations concluded that there was insufficient evidence to prove the defendants’ guilt. While we said in Jury the complainant is not required to prove the case beyond a reasonable doubt where disapproval is based on a legal assessment of the complaint, as a policy matter, a prosecutor can consider if a conviction is attainable. Where the District Attorney concludes, based on investigation, that a conviction is doubtful or impossible, discretion can and should be exercised to refuse approval.

Traditionally, prosecutors in Pennsylvania have been given great latitude in deciding which cases to prosecute and in rejecting those which do not warrant prosecution. The power to prosecute is enormous, bringing as it does the resources of the Commonwealth to bear on the accused. Thus, we expect those entrusted with this authority to exercise it wisely, and not proceed where they conclude that a conviction cannot be attained.

Given the testimony before the trial court that at least one other person had a key to the storage room where the inventory was kept, and the testimony of Officer Griffin about the state of the clubs records, it is obvious that there was no abuse of discretion in refusing to approve this complaint.

Order reversed, case dismissed.

HOFFMAN, J., files a concurring statement.

HOFFMAN, Judge,

concurring:

I agree with the majority that where, as here, the Office of the District Attorney refuses to prosecute a private criminal complaint based on its own internal policy, we will not disturb this determination absent a gross abuse of discretion. However, I find it important to note that our deferential review does not leave the District Attorney’s office with unbridled discretion. A district attorney cannot selectively withhold prosecution on the basis of race, impermissible motives or arbitrary determination, nor can he or she steadfastly refuse to prosecute certain classes of people or crimes. See Commonwealth v. Muroski 352 Pa.Super. 15, 32-33, 506 A.2d 1312, 1322-23 (1986) (en banc) (SPAETH, P.J., concurring and dissenting). Consequently, we, as a court, must always review the district attorney’s actions for constitutional violations, and must continue to act as a check against arbitrary and discriminatory decisions.

In the instant case, the decision to forego prosecution was not made on a patently discriminatory, arbitrary or pretextual basis. Therefore, the District Attorney’s office did not abuse its discretion in refusing to approve this private criminal complaint. However, I note again how important it is to make this determination on a case by case basis. Accordingly, I concur with the majority’s decision.


author: TAMILIA, Judge:

text:
    658 A.2d 801
    COMMONWEALTH of Pennsylvania v. Thomas D. LAWSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed May 8, 1995.

      Gregory B. Abeln, Carlisle, for appellant.
    Taylor Alison, Asst. Dist. Atty., Carlisle, for Commonwealth, appellee.
    Before TAMILIA, HUDOCK and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

On November 4, 1993, a jury convicted appellant, Thomas Lawson, of the unlawful delivery of 7.5 grams of cocaine to an undercover agent of the Harrisburg Police Department, working in conjunction with a confidential informant and agents from the Pennsylvania Bureau of Narcotics Investigation and Drug Control. After the denial of his post-trial motions, appellant was sentenced on May 31, 1994 to three (3) to six (6) years’ imprisonment.

Lawson now appeals from the judgment of sentence and argues the court committed reversible error by allowing a deputy attorney general to prosecute the case in violation of the Commonwealth Attorneys Act. Appellant contends the Cumberland County District Attorney’s Office had no statutory basis upon which to ask for the help of the Attorney General’s Office, but “merely deferred to the Drug Task Force and while ignoring the intent of the Act, requested the Deputy Attorney General, who was assigned to the Task Force, to prosecute the case as assistant district attorney.” (Appellant’s brief at pp. 8-9.)

The substance of appellant’s attack on the drug prosecution is that the use of an Assistant Attorney General as an Assistant District Attorney is violative of the Attorneys Act, 71 P.S. §§ 732-101 et seq. Appellant relies on Commonwealth v. Khorey/Trputec, 521 Pa. 1, 555 A.2d 100 (1989), which establishes categorically that the Attorney General, pursuant to statute which supplanted common law, has no authority to supercede the District Attorney. This is derivative of the creation in the Pennsylvania Constitution, article IV, section 4.1 (adopted May 10, 1978) of the Office of Attorney General to be filled by election for a period of four years, not to be eligible to serve beyond two successive terms, as opposed to being appointed by the Governor. Incorporated in the enabling provision of the Constitution is the provision that “he shall be the chief law officer of the Commonwealth and shall exercise such powers and perform such duties as may be imposed by law.” The statutory provision that created the powers and duties of the Attorney General, 71 P.S. §§ 732-101 et seq., severely restricted and altered the powers exercised by an appointed Attorney General, which had existed for more than a century. In Trputec, the Supreme Court clearly details the limitations imposed upon the Attorney General in superceding the powers of District Attorneys in investigating and prosecuting cases. The Attorney General’s power is controlled by statute, which is strictly construed. As it relates to this case, we must determine whether the appointment of a Deputy Attorney General by the District Attorney of Cumberland County, to conduct an investigation and prosecution violates the Attorneys Act, supra, as construed by the Supreme Court in Trputec.

To engage the Office of the Attorney General in investigation or prosecution under the Attorneys Act, the District Attorney must make a request pursuant to section 732-205(a)(3) Criminal Prosecution:

3. Upon the request of a district attorney who lacks the resources to conduct an adequate investigation or the prosecution of the criminal case or matter or who represents that there is the potential for an actual or apparent conflict of interest on the part of the district attorney or his office.

Appellant and appellee agree such a request was not made nor is it alleged that the District Attorney lacked the resources to investigate or that an actual or apparent conflict existed. It is apparent in this case no request could be justified under the Attorneys Act.

In Trputec, the Supreme Court, speaking through Justice Stout, stated:

More importantly the district attorney has no inherent authority to grant to the attorney general powers the General Assembly has prohibited the attorney general from exercising.

Justice Stout goes on to say what is critical for disposition of the issue in this case.

The delegation of authority from a district attorney to a deputy district attorney is characterized by a different relationship than would be a “delegation” of authority to the attorney general. While a district attorney has control over deputy or assistant district attorneys because they are subordinates, such would not be the case with the attorney general, who would not be subject to the same supervision. In the absence of such control, the attorney general cannot be said to be a mere agent of the district attorney.

Trputec, supra 521 Pa. at 19-20, 555 A.2d at 109-110.

The record establishes the Cumberland County District Attorney appointed Deputy Attorney General Shawn C. Wagner as a Special Assistant District Attorney for Cumberland County to prosecute defendant’s case. The Cumberland County District Attorney did not invoke the Commonwealth Attorneys Act, which delineates in what instances the attorney general may prosecute county criminal actions, but rather relied on the authority set forth in 16 Pa.C.S. § 1420, Assistant District Attorney; Number; Compensation, granting the district attorney the power to appoint assistant district attorneys or special assistant district attorneys to assist him in his duties. At no time did the district attorney relinquish his authority to prosecute the case; he maintained control and supervision of Wagner’s strategic and tactical trial decisions. This met the stringent test propounded by Trputec for regulating the powers of the Attorney General and the relationship of that office to District Attorney. There was no error.

Next, appellant argues the court erred by failing to suppress undercover detective LeCadre’s in-court identification of appellant as the individual who sold him the cocaine. Appellant contends the Commonwealth failed to establish the identification resulted from LeCadre’s observation of him during the criminal act, and not from a photo array which the court had suppressed “because a reconstruction of the array for purposes of judicial review has been rendered impossible[.]” (Omnibus Opinion, Oler, J., 3/12/93, p. 7.)

An in-court identification following a suggestive out-of-court identification is admissible if, considering the totality of the circumstances, the in-court identification has an independent origin “sufficiently distinguishable to be purged of the primary taint.” Commonwealth v. Ransome, 485 Pa. 490, 497, 402 A.2d 1379, 1383 (1979). The Commonwealth must then establish the in-court identification results from the criminal act and not the suggestive encounter. Commonwealth v. McGaghey, 510 Pa. 225, 507 A.2d 357 (1986). The framework for determining the independent basis of an in-court identification follows:

... 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 the confrontation, and the length of time between the crime and the confrontation.

Id. at 228, 507 A.2d at 359, citing Commonwealth v. Slaughter, 482 Pa. 538, 546, 394 A.2d 453, 457 (1978).

LeCadre was introduced to appellant, nicknamed Butter, by confidential informant Ewell who told appellant LeCadre wished to purchase a quarter ounce of cocaine. The three men met outside 125 West North Street) and appellant went inside the residence while LeCadre and Ewell waited outside. Within minutes, appellant exited carrying a plastic bag containing a white substance. LeCadre said the street lighting was sufficient for him to see appellant’s face. Appellant then asked LeCadre and Ewell to follow him down the street to 103B West North Street where all three men entered the house, but only appellant went upstairs and immediately returned with a plastic bag containing a chunk of white substance. LeCadre gave appellant $300 and appellant handed him the white substance which was later identified as 7.5 grams of cocaine. LeCadre testified the lighting inside and outside 103B was such that he had no difficulty observing appellant’s physical characteristics. Immediately after his encounter with appellant, which lasted 10 to 12 minutes, LeCadre made written notes of defendant’s physical characteristics and clothing which, later that day, he transferred to an undercover worksheet. LeCadre’s written description included: black male; five feet, six inches tall; 150 pounds; thin build; brown eyes; short black hair; clean shaven and wearing light colored jeans, a matching jacket and black wool cap. LeCadre testified that throughout his career he had made it a habit of making detailed visual and written observations of suspects in order to facilitate refreshing his recollection at a later date. A body-wire tape recording corroborated LeCadre’s testimony he had purchased cocaine from an individual nicknamed Butter. We find the totality of the circumstances supported the finding LeCadre’s in-court identification of appellant had an independent basis, separate and distinct from the photo array.

Lastly, appellant argues the court erred by admitting into evidence an electronic diary which was recovered from 434 North Pitt Street and contained defendant’s nickname “Butter”, his address and his phone number. Appellant contends admission of the diary, which was found at a location other than 125 West North Street, was a violation of the rule against hearsay. Moreover, appellant argues the Commonwealth was in violation of the rules of discovery by failing to alert the defense to the existence of the diary prior to the eve of trial.

Although at the time of the drug purchase in question, the Barneses, suspected drug dealers, resided at the 125 West North Street address appellant had entered while LeCadre and Ewell waited outside, the diary was found during a search of the home the Barnes family occupied sometime thereafter, 434 North Pitt Street. The electronic diary was offered not for the truth of the matter asserted, that is to say appellant’s address and phone number, but rather to establish appellant and the Barneses were acquainted, an assertion admitted by appellant. Although the record indicates the appellant failed to preserve the hearsay argument for appeal, the trial court nevertheless addressed the argument and reasoned:

Regardless of whether this objection was waived, the argument fails on its merits. Hearsay evidence is defined as “in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion.” Commonwealth v. Lewis, 424 Pa.Superior Ct. 531, 534, 623 A.2d 355, 357 (1993). In the instant case, the diary was not offered to show the truth of the matter asserted in the out-of-court statement. Instead, it was proferred [sic] to show a general link between defendant and the Barneses.

(Slip Op., Hoffer, J., 3/22/94, pp. 10-11.) We agree there was no violation of the rule against hearsay.

Further, we find the Commonwealth did not violate the mandatory discovery rule, Rules Crim.Proe., Rule 305(B)(1)(f), which requires the Commonwealth to provide to the defense “any tangible objects, including documents, photographs, fingerprints, or other tangible evidence^]” Id. The diary was recovered during a search warrant executed July 11, 1992. The prosecution averred, however, and the court found credible, it was unaware of the diary’s existence until the day of trial, November 2, 1993, at which time its existence was immediately disclosed to the defense. Moreover, regardless of whether the discovery rule arguably had been violated, appellant is not entitled to a new trial as the diary was not exculpatory in nature, nor was appellant prejudiced by the introduction of the diary into evidence.

Having found each of appellant’s arguments devoid of merit, we affirm the May 31, 1994 judgment of sentence.

Judgment of sentence affirmed.

      . 35 Pa.C.S. § 780-113(a)(30).

      . 71 Pa.C.S. § 732-101 ét seq.


text:
    658 A.2d 805
    Ricky E. LING, Appellant, v. Ruth Ann LING.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1995.
    Filed May 8, 1995.

      Caram J. Abood, Johnstown, for appellant.
    Ernest R. Walker, Johnstown, for appellee.
    Before TAMILIA, JOHNSON and HUDOCK, JJ.
   TAMILIA, Judge:

Ricky E. Ling appeals from the October 20, 1994 judgment entered following the August 22, 1994 Order denying his exceptions to and making final the master’s report with regard to equitable distribution.

Husband raises one issue for our consideration: did the trial court err by failing to consider as marital property that interest or dividend income earned by marital property after separation? The appellee’s counter-statement of the issue, however, properly characterizes the property, a bequest, as nonmarital property which increased in value both before and after final separation. The trial court found that the increase in value of a bequest after final separation is not marital property under the Divorce Code and is not subject to equitable distribution. We agree.

The parties were married in 1974. In 1982, husband’s grandmother bequeathed to each party, a separate gift of 1,600 shares of Penn Traffic stock, valued individually at $22,400. The parties separated in May, 1987. Prior to separation, husband completely dissipated his gift by investing in a business which went bankrupt. During the marriage, more prudent wife retained her shares of stock in her own name until 1986 when she surrendered her shares and received approximately $90,000, $80,000 of which appellee reinvested in May, 1987, the month the parties separated. In 1988, appellee withdrew $11,454 from the plan in which she had invested, and in 1989, she withdrew $10,969 more, leaving a 1990 balance of $57,937. During this same three-year, post-separation period, wife received a total of $25,089.33 in the form of interest and/or dividends.

The trial court found $57,959 of wife’s stock to be characterized as marital property and therefore subject to equitable distribution. The $57,959 figure was arrived at by adding $11,454 plus $10,969 plus $57,937, and subtracting the original $22,400 gift. Section 3501 of the Domestic Relations Code defines marital property for the purpose of equitable distribution:

(a) General rule. — As used in this chapter, “marital property” means all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3), except:
(3) Property acquired by gift, except between spouses, bequest, devise or descent.

23 Pa.C.S. § 3501(a)(3). Accordingly, the court correctly found the $22,400 gift appellee received during the course of her marriage was not marital property, while the increase in value thereof during the parties’ marriage was properly designated marital property for the purpose of equitable distribution. See Smith v. Smith, 439 Pa.Super. 283, 653 A.2d 1259 (1995). The challenge herein, however, is with regard to earnings acquired post-separation. In calculating that amount to be distributed,- the master looked to wife’s 1986 sale of her stock, one year prior to separation, the resultant $90,000 received, and wife’s purchases/investments and withdrawals made up until 1990 when the stock was totally dissipated.

Appellant argues, however, the amount characterized as marital property subject to equitable distribution should include that $25,089.33 interest/dividend income received by wife after separation but prior to distribution. Schneeman v. Schneeman, 420 Pa.Super. 65, 615 A.2d 1369 (1992). Our reading of Schneeman, however, fails to provide the support appellant alleges. The master, in his thorough, well-reasoned findings, relied on Solomon v. Solomon, 531 Pa. 113, 611 A.2d 686 (1992), in support of his decision the post-separation interest or dividend income earned by appellee’s stock was not marital property.

In the footnote to its decision, the Supreme Court distinguished between income generated by the principal of the trust and the appreciation of the principal itself. The Court stated that any interest or dividend income earned by the trust while the parties were married that was not paid out by the trust to the parties, but that remained in the trust, would be deemed marital property subject to equitable distribution. However, any dividend income or interest generated by the trust after the date of final separation would clearly belong to the wife who was the beneficiary of the trust. [Solomon v. Solomon, 531 Pa. 113, 121 n. 9, 611 A.2d 686, 690 n. 9 (1992) ]. Obviously, the Court has drawn a distinction between income earned from property that is classified as marital property because it was acquired or purchased during the marriage and income earned from nonmarital property, even though the appreciation in value of such nonmarital property constitutes marital property. In this case, the defendant testified that prior to separation she received approximately $900.00 per month in income from her investments. In addition, she testified that none of this income was reinvested, rather, it was utilized by her for household purchases and daily living expenses. After the parties separated, the defendant continued to receive the income earned from her investments, which income she used to support herself and her son. Thus, based upon the Supreme Court’s discussion in Solomon v. Solomon, the Master believes that the income earned by the defendant’s investments and received by the defendant after the date of final separation does not constitute marital property and is not subject to equitable distribution, even though a portion of the principal does represent marital property.

(Master’s Report, 6/10/94, pp. 23-24.) The Solomon court, in the footnote cited by the master, further highlighted the distinction between income earned from nonmarital property and that earned from property acquired during marriage, stating it was not concerned with “dividend or interest income generated by the [asset] that was received by the parties prior to or during the marriage, or any dividend or income generated by the [asset] after the date of final separation, which would clearly belong to [the owner of the asset].” Id. at 121 n. 9, 611 A.2d at 690 n. 9.

In similar vein, appellant cites Oaks v. Cooper, 536 Pa. 134, 638 A,2d 208 (1994), to support his position. In his brief at page 11, appellant states Oaks holds that marital property consists of not only the contributions that were made to an IRA prior to the parties’ separation, but also post-separation income generated by those contributions up to the time of equitable distribution. This is a correct statement of the law as it deals with an IRA which is marital property. It does not, however, relate to this case wherein the asset in question, an inheritance, was not marital property, and the husband was entitled to share only to the extent of the increase in value to the date of final separation and not to the date of distribution. See 23 Pa.C.S. § 3501, supra. Thé court in Oaks distinguished between amounts contributed to the IRA account during the marriage and following separation. Those before separation were marital property, and those after separation were separate property.

Based on this language and the master’s objective and sound reasoning, we find there was neither error nor an abuse of discretion. See Smith, supra, 439 Pa.Super. 283, 653 A.2d 1259.

Judgment affirmed.

      . Of the remaining $10,000, $5,000 went to the parties’ son and the other $5,000 went to household expenses.

      . In the interest of mathematical certainty, the actual net amount subject to equitable distribution, using the figures provided, is $57,960.

      . The commonsense accuracy of the $57,959 figure is buttressed, we believe, by looking at the basic calculation of 1986 $80,000 value, minus $22,400 gift, equals $59,600.


text:
    658 A.2d 808
    George AMARHANOV and Patricia Amarhanov, H/W, Appellants, v. Robert J. FASSEL, John E. Morgan and Mary A. Morgan, Margaret O’Marra and John Doe O’Marra and Kevin O’Marra, Robert McCarthy & Sons D/B/A Do Away Rubbish Removal.
    Superior Court of Pennsylvania.
    Argued March 29, 1995.
    Filed May 9, 1995.

      Martin N. Ghen, Doylestown, for appellants.
    Edward J. Schwabenland, West Chester, for Morgan and O’Marra, appellees.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

Appellants, George Amarhanov and Patricia Amarhanov, his wife, appeal from the October 31, 1994 entry of summary judgment in favor of appellees. Summary judgment was entered on the basis that appellants’ negligence claim failed to present genuine issues as to duty and causation.

The instant action arose on the night of February 21, 1990 when appellant/George Amarhanov (hereinafter “appellant”) was struck by an automobile driven by defendant Robert J. Fassel. At the time of the accident, appellant was standing on the edge of a dumpster located along the curb in front of 2124 East Lehigh Avenue in Philadelphia. The police report indicated that the dumpster, which was located in a parking lane, occupied less than 10 feet of a 38-foot wide lane, leaving at least 28 feet open to the Fassel vehicle. Appellant had happened upon the dumpster while walking home and was rummaging for discarded construction materials when hit. After impacting appellant, Fassel’s vehicle, which was travel-ling in excess of the posted speed limit, also hit a car parked next to the dumpster and an adjacent telephone pole.

On the date of the accident, the premises at 2124 East Lehigh Avenue were owned by appellee Mary Morgan, who died on April 28, 1991. Appellees Margaret O’Marra (daughter of Mary Morgan) and Kevin O’Marra (son of Margaret O’Marra) also lived at the premises on the date of the accident, and appellee/Kevin O’Marra had placed the dumpster on the street in front of Mary Morgan’s home in order to collect debris from a remodeling project. Kevin O’Marra had borrowed the dumpster from his employer, defendant/Robert McCarthy & Sons, d/b/a Do Away Rubbish Removal.

After the completion of discovery, appellees moved for summary judgment on the basis that they owed no duty to appellant and that appellees’ actions were not the proximate cause of appellant’s injuries. The trial court granted the motion on October 31, 1994 and this appeal followed.

Initially, when reviewing an Order granting summary judgment, we are bound to consider the following principles:

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material act and that the moving party is entitled to judgment as a matter of law.” Pa.R.Civ.P. Rule 1035(b)____ In passing on a motion for summary judgment the court must examine the record in a light most favorable to the nonmoving party.... It is not a part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried---- Any doubt must be resolved against the moving party---- The court, in ruling on a motion for summary judgment, must ignore the controverted facts contained in the pleadings.... The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Murray v. Hamot Medical Center, 429 Pa.Super. 625, 628, 633 A.2d 196, 199 (1993), quoting Samarin v. GAF Corp., 391 Pa.Super. 340, 346-347, 571 A.2d 398, 401-402 (1989), allocatur denied, 524 Pa. 624, 574 A.2d 66 (1990).

Lastly, we will overturn a trial court’s entry of summary judgment only if there has been an error of law or a clear abuse of discretion. McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Appellants now contend appellee/Kevin O’Marra was negligent in his placement of the dumpster and by failing to prevent passersby from rummaging in the dumpster. Appellants also assert that appellees/Mary Morgan, Margaret O’Marra and Kevin O’Marra were negligent in allowing an “artificial and hazardous condition” to exist on property owned or possessed by them. As such, appellants’ bases of appeal have in common a claim that a duty was owed to them by the appellees and that the breach of that duty proximately caused appellant’s harm.

It has long been hornbook law that a duty arises only when one engages in conduct which foreseeably creates an unreasonable risk of harm to others. See e.g., Burman v. Golay and Co., Inc., 420 Pa.Super. 209, 616 A.2d 657 (1992), appeal denied, 533 Pa. 648, 624 A.2d 108 (1993); Restatement (Second) of Torts, § 302A.

The facts of this case clearly demonstrate that appellees created no unreasonable risk of harm to appellant. The dumpster was situated as a parked car in a parking lane in front of appellees’ house, and neither impeded nor obstructed traffic along East Lehigh Street. The fact that Fassel also hit a car legally parked adjacent to the dumpster further undermines appellants’ argument that the dumpster’s location somehow created a peculiar risk of harm. Any risk created by the placement of the dumpster was no greater than that associated with an ordinarily parked car and therefore was not unreasonable.

Moreover, appellees neither invited nor expected appellant to rummage through the dumpster. Indeed, for the entire time the dumpster was in front of their house, appellees saw no one in or around it and received no complaints about the dumpster’s location. Thus, appellant’s injuries were not a foreseeable risk associated with appellees’ conduct.

In sum, appellants have failed to establish the existence of a duty owed to them by appellees, because the latter’s conduct created neither an unreasonable nor a foreseeable risk of harm to the former.

Even assuming, arguendo, the existence of a duty, we find that appellant failed to raise a genuine issue as to whether any conduct on the part of appellees proximately caused appellant’s harm.

Proximate causation has been found where wrongful conduct is a substantial factor in bringing about the harm incurred. Whitner v. Lojeski, 437 Pa. 448, 458, 263 A.2d 889, 894 (1970). Proximate causation, which differs from causation-in-fact, is generally a question of law and depends on whether responsibility for the negligent conduct will extend to the harm which in fact occurred. When the harm which ultimately results appears to the court to be a remote and highly extraordinary consequence of the defendant’s conduct, legal causation will not be found and liability will not attach. Bell v. Irace, 422 Pa.Super. 298, 619 A.2d 365 (1993); Dudley v. USX Corp., 414 Pa.Super. 160, 606 A.2d 916 (1992), appeal denied, 532 Pa. 663, 616 A.2d 985.

Instantly, appellees’ conduct was not a substantial factor in causing appellant’s harm. Appellant’s injury was caused by the negligent driving of Fassel and such injury was not a natural and probable consequence of lawfully placing a dumpster in front of one’s house.

We therefore conclude that the court below properly entered summary judgment in favor of appellees.

Order affirmed.

      . Summary judgment was not granted as to Fassel, and he therefore remains a party to the action.

      . John Morgan, husband of Mary and also a named appellee, died in 1955 and properly was dismissed by the court below.

      . Summary judgment was denied as to Robert McCarthy & Sons approximately three months after it was granted as to Mary Morgan and the O’Marras. The entity therefore remains a party to the action and an appellee’s brief was filed on its behalf.

      . Appellant’s brief at p. 17.

      . Since we find that appellants have failed to raise a genuine issue under common law negligence principles, we need not address appellees’ claim that appellant was a trespasser and, as such, entitled to no duty of care in the absence of willful or wanton conduct.


author: POPOVICH, Judge:

text:
    658 A.2d 811
    COMMONWEALTH of Pennsylvania, Appellee v. Robert James HARRIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 13, 1995.
    Filed May 9, 1995.

      Shelley Stark, Public Defender, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for the Com., appellee.
    Before McEWEN, POPOVICH and CERCONE, JJ.
   POPOVICH, Judge:

This case concerns the appeal of the judgment of sentence (5-10 years imprisonment) for aggravated assault by the appellant, Robert James Harris. We reverse.

Viewing the evidence in a light most favorable to the verdict-winner, and drawing all reasonable inferences therefrom, the record reveals that at approximately 9:30-10:00 p.m. on the 10th of January, 1992, Donald Morris had exited his home in search of his 13-year-old daughter. As Mr. Morris walked along Cornwall Avenue, he was approached by an unidentified male and propositioned to purchase crack cocaine. Mr. Morris declined the offer, but before he could leave the area he observed the appellant, at a distance of 5-7 feet, with a screwdriver in hand. Morris accelerated his pace, and, as he recalled:

Mr. Harris grabbed my right sleeve[, but before doing so Harris asked: ‘Where is the money?” Then,] ... six to nine unidentified black males were running up the street towards us. I proceeded to deal with Mr. Harris swinging him around and I was jumped by [sic] the back.

N.T. 29, 39. The victim was assaulted a second time as he lifted himself from the pavement. Also, the appellant grabbed the victim’s face and swung at it with his fist but missed. The two stood one foot apart during this encounter.

With regard to the question of identification, Mr. Morris stated that, during the assault, he:

... touched th[e appellant’s] head. His head was platted all up in plats. [The victim] rubbed th[e appellant’s] head. [He] kn[e]w it was Mr. Haris. That’s what was in front of [the victim] when he lifted [the victim’s] head up from the ground and tried to sucker punch [the victim].

Id. at 33. (Emphasis added). Additionally, during the course of the assault, the victim had $80 stolen from his person, his jaw was broken (and wired for 6 months) and his ribs were fractured.

Thereafter, the police were notified of the assault and the victim selected the appellant out of a photo-array as one of his assailants. The appellant was charged with Robbery, Aggravated Assault and Criminal Conspiracy. Following a jury trial, the appellant was found guilty of Aggravated Assault and sentenced. This appeal ensued and raises two issues for our review.

The first issue posed is whether the trial court erred in ruling that the appellant could be impeached with a prior conviction for Hindering Apprehension if he testified.

In this jurisdiction, “evidence of prior convictions can be introduced for the purpose of impeaching the credibility of a witness if the conviction was for an offense involving dishonesty or false statements____” Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326, 1329 (1987). This “rule of evidence is founded upon common sense and logic. If a defendant offers himself as a person worthy of belief, the jury has the right to know what kind of man he is — to aid in assessing his credibility. His previous record is admissible for this purpose just the same as testimony of prior reputation for veracity as evidence for the jury’s consideration.” Commonwealth v. Butler, 405 Pa. 36, 47, 173 A.2d 468 (1961).

However, it is not always apparent which crimes fall within the ambit of crimen falsi. See Commonwealth v. Jackson, 526 Pa. 294, 585 A.2d 1001 (1991) (robbery); Commonwealth v. Walker, 384 Pa.Super. 562, 559 A.2d 579 (1989) (criminal trespass); Commonwealth v. Gordon, 355 Pa.Super. 25, 512 A.2d 1191 (1986) (burglary); Commonwealth v. Gallagher, 341 Pa.Super. 152, 491 A.2d 196 (1985) (possession of instrument of crime and sexual offenses charged would permit impeachment for impersonating public officials and theft of services); Commonwealth v. Jones, 250 Pa.Super. 98, 378 A.2d 471 (1977) (aggravated robbery is a crime involving serious moral turpitude and indicates propensity for dishonesty on defendant’s part); see also Commonwealth v. Weiss, 530 Pa. 1, 606 A2d 439, 442 n. 5 (1992) (unauthorized use of credit card conviction admissible to impeach credibility as a crime of dishonesty or false statement), and contrast with Commonwealth v. Levene, 492 Pa. 287, 424 A.2d 865 (1980) (reversible error to impeach defendant by prior arrests for alcohol related conduct); Commonwealth v. Kilgore, 437 Pa.Super. 491, 650 A.2d 462 (1994) (record was not complete to assess the appellant’s claim that trial court erred in prohibiting impeachment of prosecution witness with introduction of conviction for arson); Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497 (1993) (arrest and conviction for possession of a controlled substance was not evidence of crimen falsi to impeach the appellant’s character witness, but it was admissible to show witness’ bias against police and that a bench warrant had been issued for his arrest); Commonwealth v. Bowman, 400 Pa.Super. 525, 583 A.2d 1239 (1990) (suspension of driver’s license not crimen falsi); Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985) (convictions for prostitution not admissible as crimen falsi for impeachment purposes); Commonwealth v. Phillips, 272 Pa.Super. 16, 414 A2d 646 (1979) (error to allow evidence of theft conviction to impeach defendant where record failed to establish that theft accomplished by deceit); Commonwealth v. Reidenbaugh, 266 Pa.Super. 315, 404 A.2d 697 (1978) (prior conviction for fornication and corrupting the morals of minor could not be used to impeach defendant); Commonwealth v. Benefiel, 254 Pa.Super. 248, 385 A.2d 1003 (1978) (rape is not crimen falsi for impeachment use); Commonwealth v. Moore, 246 Pa.Super. 163, 369 A.2d 862 (1977) (statutory rape cannot be used to impeach).

It is the contention of the Commonwealth that because Hindering Apprehension “is placed in the Crimes Code in Chapter 51, entitled “Obstructing Governmental Operations!,]” ... it would have been proper impeachment under Commonwealth v. Randall. Thus, the trial court’s ruling was correct and appellant is not entitled to a new trial.” Commonwealth’s Brief at 5. We disagree and take exception to the trial court’s ruling under the particular facts of this case.

We begin with Justice Zappala’s Concurring Opinion in Commonwealth v. Williams, 524 Pa. 404, 573 A.2d 536, 540 (1990) which cautioned that:

... determining what crimes involve crimen falsi based solely upon the statutory title of the offense or the Clerk of Courts’ verification that a defendant was convicted of a crime does not place that even in proper perspective in terms of meaningfulness and as an aid to the trier of fact. Commonwealth v. Strong, 522 Pa. 445, 468, 563 A.2d 479, 490 (1989, Zappala, dissenting).

To the preceding caveat, we would add that the elemental aspects of the offense and the conduct engaged in by a defendant, which forms the basis of the anticipated impeachable offense, are to be scrutinized in concert to assess the crimen falsi nature of the offense.

Instantly, it is true that the statutory posture of Hindering Apprehension appears under Chapter 51’s legend: “Obstructing Governmental Operations.” However, so does Resisting Arrest (at 18 Pa.C.S.A. § 5104), which the Williams Court held did not involve dishonesty or false statements. More specifically, Williams held that it was error for the trial court to allow the prosecution to impeach the defendant on cross-examination with the disclosure of such offense to the jury.

Likewise, we do not attribute a crimen falsi status to a Hindering Apprehension conviction under Subparagraph (4) of Section 5105(a), which reads:

A person commits an offense [of Hindering Apprehension] if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime, he:
(1) •••
(2) ...
(3) ...
(4) warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law enforcement; or
(5) ...[]

Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A § 5105.

We refer to Subparagraph (4) of Section 5105(a) because of the trial court’s acknowledgement that the appellant pleaded guilty to “warning] a Mend of his[,] who the police were seeking to apprehend, of the police coming.” The trial court took the position that a conviction for such conduct rose to the level of crimen falsi usable as an impeachment tool should the appellant elect to take the stand. We disagree.

If Resisting Arrest, which admittedly involves interaction between a defendant and the police, was held by the Supreme Court in Williams not to reflect upon one’s propensity to lie, how more attenuated is the appellant’s behavior here with no evidence of interaction with police in advising a Mend of an impending arrest to escape apprehension.

It is evident from a reading of Subparagraphs (l)-(3) and (5) of Section 5105(a), had the appellant engaged in some form of “concealment,” “disguise,” or providing the authorities with “false” information, he was guilty of crimen falsi behavior triggering the prosecution’s entitlement under Randall, supra, 515 Pa. 410, 528 A.2d 1326, to impeach the witness guilty of such misconduct. Instantly, however, we are not advised of any false statements attributable to the appellant regarding the whereabouts of the at-large Mend, nor do we equate dishonesty with his failure to volunteer the location of the wanted man. The trial court’s reference to such (in)action as indicative of crimen falsi behavior rings hollow.

The trial court admitted that it is what the appellant should have done (inform police of friend’s location) and not what he did do (told friend of police’s search for whereabouts) that rendered him open to impeachment. See N.T. 82-83. This perverts the purpose of Randall, supra, 515 Pa. 410, 528 A.2d 1326, in penalizing inaction instead of mens rea behavior designed to thwart police business, the latter being actus reus and more consistent with conduct reflective of dishonesty and false statement.

Accordingly, in light of the preceding, we hold that the trial court erred in exposing the appellant to impeachment had he taken the stand for his conviction for Hindering Apprehension under Subparagraph (4) of Section 5105(a). However, our inquiry is not at an end. We must determine whether the erroneous ruling, which kept the appellant off the stand to give his version of what occurred on the evening in question, was harmless error.

In the seminal case of Commonwealth v. Story, 476 Pa. 391, 406, 383 A.2d 155, 162 (1978), the Court held that “an error can be harmless only if the appellate court is convinced beyond a reasonable doubt that the error is harmless.” The burden of proof is upon the Commonwealth to establish, beyond a reasonable doubt, that an error is harmless. Id. “[A]n error cannot be held harmless unless the appellate court determines that the error could not have contributed to the verdict.” Id. at 409, 383 A.2d at 164. The Commonwealth’s burden will be met if the prejudice from the erroneously admitted evidence is de minimus; the erroneously admitted evidence is merely cumulative of other properly admitted evidence; it is substantially similar in kind and incriminating details to other indisputable, independently obtained, and properly admitted evidence; or if the Commonwealth’s evidence of guilt is overwhelming and, by comparison, the prejudice of error is insignificant. Id. at 408-416, 383 A.2d at 164-168. Accord Commonwealth v. Fornicoia, 437 Pa.Super. 552, 650 A.2d 891, 893 (1994).

The central issue in this case was the identification of the appellant as a participant in the assault of Mr. Morris. On this point, the victim placed the appellant at the scene and testified that there was contact between the two during the assault, even that the appellant lifted the victim’s face after the first of two attacks and swung a fist at the victim’s face before missing its mark.

Even though the appellant did not testify, his counsel stipulated to the presence of the accused at the scene. Thus, it was through Ms. Danielle Bradley’s testimony that the appellant’s “presence but no participation” defense surfaced. In particular, she stated that the victim approached the appellant, pulled a “silver” object and grabbed the appellant by his jacket.. The two then fell against a fence. Once this occurred, Demar Daniels, Anthony Griffin, Alan White, Michael Richards and Ronnelle Moses came to the appellant’s aid and began to strike the victim. Yet, the witness testified that she never saw the appellant “hit or kick” the victim.

Additionally, Ms. Bradley identified Griffin and White as the culprits responsible for removing $80 from the victim’s person, and Richards was named as remaining at the site after the group assault and punching the victim “every time he would get up.”

Under the Story standard, we do not find that the trial court’s error in ruling impeachment permissible was de mini-mus or the prejudice flowing therefrom harmless as a result of Ms. Bradley’s testimony. This was a case where the only witness to testify for the Commonwealth, as to the events on the evening in question, was the victim. Thus, Mr. Morris was the crucial prosecution witness because he was the victim of the crime. Therefore, the credibility of the victim and the appellant (had the latter testified) would have been a key issue for the jury to resolve: The appellant’s version (of presence-but-noninvolvement) differs markedly from the victim’s account of (group assault with the appellant participating in) the incident. Cf. Commonwealth v. Smith, 442 Pa. 265, 275 A.2d 98, 100 (1971) (where victim identified the defendant as assailant and two witnesses placed him in the victim’s home on day of crime, failure of counsel to seek continuance to produce witness to buttress the appellant’s alibi defense was ineffectiveness of counsel because “a witness to corroborate the appellant’s alibi would have been the single most important possible addition to appellant’s defense.”); Commonwealth v. Charleston, 251 Pa.Super. 311, 380 A.2d 795, 798 (1977) (where conviction based almost exclusively upon the credibility of the complaining witness, alibi witness’ testimony “may have cast a shadow on [the victim’s] truthfulness” rendering counsel ineffective for failing to produce said alibi witness).

It also appears that the jury did not find the victim’s version to be wholly plausible, as the appellant was acquitted of all offenses except for the charge of aggravated assault. Further, the victim’s testimony suggested that he was unable to identify the appellant as ever striking him during the incident. See note 4, supra.

It is well-established that proof of facts showing the commission of the crime by someone else is admissible. Commonwealth v. Loomis, 270 Pa. 254, 113 A. 428, 431 (1921). However, viewed in the context of the victim-only testifying as to the accused’s involvement in the commission of a crime, the decision of the appellant not to testify (because of exposure to impeachment on a Hindering Apprehension conviction) weakened his defense of presence-but-non-involvement in the assault. In other words, the jury was foreclosed from considering the appellant’s account of the events, which constituted the testimony of a known witness who might be capable of casting a shadow upon the Commonwealth’s witness’ truthfulness in a case where virtually the only issue is the credibility of the Commonwealth’s witness versus that of the defendant. See Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440, 443 (1975).

Therefore, evidence of the appellant’s testimony (as to presence-but-non-involvement) “may well have persuaded the jury to reject completely the victim’s testimony and acquit [the] appellant.” Commonwealth v. Davis, 438 Pa.Super. 425, 652 A.2d 885, 889 (1995). However, the appellant opted not to testify and avoided his credibility being challenged with the trial court’s impeachment ruling. We find, under the particular circumstances of this case, “[t]he ruling thus denied [the appellant] his right to present relevant, material and competent evidence from which the jury might have inferred he was not involved in the [Morris assault].” Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661, 669-670 (1977).

Accordingly, the appellant has demonstrated sufficiently that the exclusion of his proposed testimony was prejudicial and not de minimum. See Story, supra; Davis, supra. Every defendant should be availed the opportunity to give his/her version of events to deflect an accuser’s finger-of-guilt. This was thwarted here by the trial court’s evidentiary ruling. To remedy the matter, we reverse the judgment of sentence and remand for a new trial.

Judgment of sentence reversed, case remanded for a new trial, and jurisdiction is relinquished.

      . For the sake of completeness, the deleted portions of Section 5105(a) provide:
      (1) harbors or conceals the other;
      (2) provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;
      (3) conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;
      (4) ...
      (5) volunteers false information to a law enforcement officer.

      . The appellant received a self-defense and coming to the defense of others instruction from the trial court. N.T. 239.

      . This is so despite the fact that the victim testified that he believed a neighbor came to his aid by telling his assailants: "don’t hit him”. N.T. 71. No such neighbor/witness appeared at trial.

      . Yet, a review of the record paints a picture of a victim unable to identify the appellant as ever striking him during the assault; to-wit:
      [Counsel for appellant:]
      Q And you tire saying all of a sudden they jumped on you and started beating you?
      [Appellant;]
      A Yes. I was struck first, knocked off balance and the rest of the beatings came on top of that.
      Q Well, how do you know how many guys it was?
      A I can’t say actually how many it was. I seen what was coming and they were all over me.
      Q Okay. Can you say how many of them had plats in their hair?
      A No, Ma’am. I didn’t look at them, you know, individually. It was a group, about that many and it was just us on the street.
      Q Okay; and you really can't say whether any of those hits were by Mr. Harris; isn’t that true?

      A No, Ma'am. I was beaten down, couldn’t identify no one. They were all there saying — Did you think he was just going to stop and walk away?
      Q No. I’m just asking you what you observed.
      A I couldn’t identify him.

      }¡{ }& J|t S[! *
      Q Okay. In other words, you were already semiconscious when you think that incident happened?
      A That incident going on; yes; it was coming to me. I wasn’t spinning anymore with dizziness.
      Q Before that, you have no idea if Mr. Harris hit you or anything?

      A No. I couldn’t identify him. * * *
      N.T. 71, 77 (Emphasis added).

      . Having examined the trial testimony against the backdrop of the appellant’s proposed account of what occurred, we conclude that his testimony would not have been merely cumulative in nature. See Story, supra; Charleston, supra.

      . Our ruling upon the appellant’s initial issue granting reversal and remand for a new trial dispenses with the need to address his second appellate claim assigning the trial court with error in interrupting counsel’s closing argument and in failing to give a jury instruction to correct an allegedly negative impression caused by the interruption.