source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    544 A.2d 1381
    COMMONWEALTH of Pennsylvania v. Jerry Paul WILSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1987.
    Filed June 20, 1988.
    Reargument Denied Aug. 16, 1988.

      Michael Handler, Assistant Public Defender, Indiana, for appellant.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.
   DEL SOLE, Judge:

This is an appeal from the judgment of sentence for rape, 18 Pa.C.S.A. § 3121, and indecent assault, 18 Pa.C.S.A. § 3126. Appellant contends that (1) the trial court erred in quashing a subpoena served by Appellant on the director of the Alice Paul House, (hereinafter APH), a rape crisis center located in Indiana, Pennsylvania, requesting production of their records; and (2) that the trial court erred in its instruction to the jury concerning the relative difference between rape and indecent assault. We agree with the trial court that Appellant’s second issue lacks merit, and rely on the thorough discussion of President Judge Robert C. Earley on the matter. However, for the following reasons we vacate the judgment of sentence and remand this case for proceedings consistent with this opinion.

Appellant was convicted of rape and indecent assault in connection with the sexual assault of a woman on August 14, 1986. The following day the victim went to the APH and was interviewed by various staff members there.

At Appellant’s pretrial conference, he requested from the Commonwealth production of all records pertaining to any interviews which the victim may have had at APH. This request was included in the Omnibus Pretrial Motion filed by Appellant on October 29, 1986, and on November 6, 1986, Appellant served a subpoena duces tecum upon Lenore Patton, Director of APH, requesting production of all such records for inspection by Appellant. APH’s petition to quash the subpoena, which claimed confidentiality of all of these documents pursuant to the Act of 1981, December 23, P.L. No. 169, Section 1, 42 Pa.C.S.A. § 5945.1 was granted.

Appellant now asserts that this was error on the part of the trial court, maintaining that the Act does not apply in this situation, and that even if the Act does apply, the Act is unconstitutional under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and under comparable provision of the Pennsylvania Constitution.

The law in this area has received special attention since our Supreme Court’s decision in In the Matter of Pittsburgh Action Against Rape, (“PAAR ”), 494 Pa. 15, 428 A.2d 126 (1981). In PAAR the Supreme Court refused to create a common law absolute privilege for all communications between a rape crisis counselor and victims seeking aid from such personnel. Id. The Court balanced the following factors in stating its rationale:

There is an undoubtable public interest in helping victims of rape to cope with inevitable disruption of emotional stability caused by the physical assaults they suffer. There is an equally compelling public interest in encouraging victims of violent crime to come forward. [Nonetheless], [i]t would be unfair to erect a privilege that would deny the accused the opportunity at least to ascertain what the complainant previously has said.

Id., 494 Pa. at 24, 428 A.2d 130, 494 Pa. at 27, 428 A.2d at 132. Accordingly, the Court held:

that upon defense request a court should authorize defense inspection of only those statements of the complainant contained in the file which bear on the facts of the alleged offense. The court, however, must not permit defense inspection of statements of the complainant having no bearing on the facts of the counselling services PAAR provides. The trial court shall not permit defense review of any other aspect of the file.

Id., 494 Pa. at 19, 428 A.2d at 127-28. The review by the trial court is to be held in camera and the judge is to determine exactly what in the file are truly “statements” of the victim and not recollections or interpretations of the interviewing counselor. Such statements are to be “verbatim accounts of the complainant’s declarations and notes that the complainant has approved as accurately reflecting what she said.” Id., 494 Pa. at 28, 428 A.2d at 132. Furthermore, only statements that have a direct bearing to the facts of the alleged offense and not to counselling services may be released. The Court strongly cautions against improper disclosure.

Following the decision in PAAR, the Legislature enacted the sexual assault counselors’ privilege statute. 42 Pa.C. S.A. § 5945.1. It grants sexual assault counselors a privilege “not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim being counseled____” 42 Pa.C.S.A. § 5945.1(b).

In the recent case of Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986), this Court had occasion to deal with the Act. In Samuels, appellant was arrested for the sexual assault of an eleven-year-old girl. He requested that the file compiled by Bucks County Women Organization Against Rape (WOAR) relating to its interviews with the victim, be released for inspection. The trial court denied appellant’s request. When appellant filed post-trial motions alleging this to be an error, an in camera inspection by the trial court did take place.

On appeal in Samuels, this Court held that since defense counsel had sought only pretrial examination of certain materials in the possession of the rape crisis center and had never sought to examine any counselor as a witness, that § 5945.1 was inapplicable. The outcome was governed by the principles announced in PAAR. Id.

We agree with Appellant that the case sub judice is like Samuels, and therefore the Act is inapplicable. Thus, it is unnecessary to reach the issue of the constitutionality of § 5945.1. This is in keeping with the well-established principle that a court is not to rule on the constitutionality of a statute unless it is absolutely necessary to do so in order to decide the issue before it. Millcreek Township School District v. Star Theatre, Inc., 172 Pa.Super. 291, 94 A.2d 53, (1953).

Appellant never attempted to examine any rape crisis counselor as a witness. Appellant’s basis for inspection of APH’s file was to determine whether the victim made statements to staff members at APH bearing on the facts surrounding the alleged incident; a search for the existence of prior inconsistent statements. Therefore, this case is governed by PAAR, and Samuels, and the guidelines set forth in PAAR should have been utilized by the trial court in order to determine the scope of the inspection.

Accordingly, the judgment of sentence is vacated. We remand to the trial court for an in camera proceeding consistent with this opinion. If the court concludes that any or all of the materials released to it by APH are statements of the complainant that should have been disclosed to the Appellant and heard by the jury, then a new trial shall be granted. If however, the court concludes that the materials are not statements of the complainant or are statement relating only to counselling services, and thus outside the scope of defense review, the court shall reimpose sentence.

Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

HOFFMAN, J., concurs in the result.

      . § 5945.1 Confidential communications to sexual assault counselors
      (a) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection:
      "Rape crisis center.” Any office, institution or center offering assistance to victims of sexual assault and their families through crisis intervention, medical and legal accompaniment and follow-up counseling.
      "Sexual assault counselor.” A person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of training and is under the control of a direct services supervisor of a rape crisis center, whose primary purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
      "Victim.” A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused by a sexual assault.
      "Confidential communication.” Information transmitted between a victim of sexual assault and a sexual assault counselor in the course of that relationship and in confidence by a means which, so far as the victim is aware, does not disclose the information to a third person other than those who are present to further the interests of the victim in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or an accomplishment of the purposes for which the sexual assault counselor is consulted. The term includes all information received by the sexual assault counselor in the course of that relationship.
      (b) Privilege. — A sexual assault counselor has as privilege not to be examined as a witness in any civil or criminal proceeding without the prior written consent of the victim being counseled by the counselor as to any confidential communication made by the victim to the counselor or as to any advice, report or working paper given or made in the course of the consultation.

      . We point out that the record is devoid of any evidence submitted by APH that it is protected by the statute. There is no recitation of APH’s credentials, nor any testimony as to the type or length of training received by the sexual assault counselors who interviewed the victim herein.


author: CAVANAUGH, Judge:

text:
    544 A.2d 1384
    COMMONWEALTH of Pennsylvania v. May E. STEWART, Appellant.
    Superior Court of Pennsylvania
    Submitted Feb. 3, 1988.
    Filed July 13, 1988.
    Petition for Allowance of Appeal Denied Dec. 28, 1988.

      Walter A. Steinbacher, Assistant Public Defender, Philadelphia, for appellant.
    Brett O. Feese, District Attorney, Williamsport, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and POPOVICH, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County, sentencing appellant to a three year term of probation on charges of interference with custody of children and criminal conspiracy. We affirm.

The facts as found by the court below are as follows. Appellant’s son, James Stewart, is the father of two boys, John Charles (Bugsy) born on March 8, 1978, and Bradley James (BJ) born on November 9, 1980. The children’s mother, Bonnie Lee Stewart, abandoned the marital home “[sjometime in December of 1980 or January of 1981,” taking the younger child with her while John Charles remained in his father’s care. When she returned to retrieve the child as well as some belongings later that same day, an argument ensued and police were summoned to the residence. The children’s mother was thereafter advised “to pursue her right through the courts ...” or, as she testified, “So I called, the officer took, and advised me to call a lawyer the next day.” (N.T. March 17-March 21, 1986 at p. 35). Accordingly, she contacted Susquehanna Legal Services and a custody action was instituted. A hearing on the matter was scheduled for February 6, 1981, but James Stewart failed to attend. As a result of the father’s absence, Bonnie Lee Stewart was awarded primary custody of John Charles.

What then transpired has been accurately summarized by the lower court as follows:

Testimony would indicate that sometime in January or February, before the February 6th hearing, James Stewart and Bugsy and the defendant in this case, Jack had made a fast move to the State of Maine where another daughter of the grandparents lived. The grandmother, May, remained in the Williamsport area until she terminated her employment in the summer. While the grandmother was still in the Williamsport area, an action was brought to compel her to appear in the judge’s chambers to divulge information as to the whereabouts of her son and grandson. She testified under oath that she had been having difficulty with her husband (this defendant), and that her husband had left her and that she had no knowledge where he was. While the jury could certainly find that this testimony was untrue, at the very least it was clear that the grandmother had specific knowledge as of that day that the custody order had been entered awarding custody of Bugsy to the mother, Bonnie.
During the next several years a number of efforts were made by the mother to find her child and to regain custody of him.
* sf: % * $ ‡
In July of 1984, the mother learned that James and his parents were living in Dundee, New York. She arranged to go to their home in the company of a member of the Yates County Sheriff Department, Deputy Sheriff John Warner. Warner had a copy of a Lycoming County Court Order in his hand. He did not read that order to any of the Stewarts, but did summarize it to May Stewart who was the individual who answered the door. Bugsy was understandably hysterical at the prospect of being taken from the home by his mother with whom he had no contact and whose attitude toward his mother may have been poisoned by the Stewarts. The Stewarts stated that they were tired of running and were glad that it was all over. Mr. Warner advised Bonnie that he felt the Stew-arts could be trusted and that they were sincere in their agreeing to abide by the order. In order to give the child a few days to adjust to the return, Bonnie agreed to leave the child in New York, with the understanding that she would come back several days later and the move would occur to Williamsport.
The Stewarts precipitiously (sic) left Dundee, New York, telling several people they were leaving for Florida. They had discussed in the past moving to Florida. In fact, they traveled south into Lycoming County where they met members of their family in a parking lot outside of Williamsport. They then proceeded on a tour which led them to Arkansas for a period of time and then into the state of Texas. In Texas, with the assistance of the Federal Bureau of Investigation, they were located and Bugsy was taken into the custody of a children's service agency. With the assistance of Dr. Lewis, the matter was brought to the attention of a judge in the State of Texas and pursuant to the provisions of the Uniform Child Custody Jurisdiction Act, the child was returned by Dr. Lewis to Lycoming County where he was returned to the primary custody of the mother. This occurred in December of 1984.

Appellant, the child’s paternal grandmother, was arrested on September 28, 1985 and charged with interference with custody of children and criminal conspiracy. Subsequent to the filing of various pretrial motions, including the waiver of jury trial on April 10, 1986, appellant was brought before the Honorable Harold Fink on May 15, 1986. At that time it was agreed that appellant would be tried on a case-stated basis, with the record to include evidence which had been submitted at the trials of her husband and her son. Prior to the rendering of any decision, Judge Fink was reassigned to administrative duties, necessitating the declaration of a mistrial on October 16, 1986. Thereafter, appellant executed an additional waiver of jury trial and was tried without a jury on stipulated facts before the Honorable Thomas C. Raup. Appellant was convicted of the foregoing offenses in an Order dated December 30,1986 and filed January 7, 1987. Following the denial of post-verdict motions on February 10, 1987, appe’Nnt was sentenced to a three year term of probation. This'is an appeal from the judgment of sentence.

The following issues have been presented for our consideration:

1. Was the prosecution barred by the statute of limitations?
2. Was the evidence insufficient to sustain appellant’s conviction?

Upon review of the record and controlling authority, we affirm.

Appellant first contends that prosecution of the charges in question was barred by the applicable statute of limitations. Pursuant to 42 Pa.C.S.A. § 5552(a), “Except as otherwise provided in this subchapter, a prosecution for an offense other than murder or voluntary manslaughter must be commenced within two years after it is committed.” The statute further provides that:

(d) Commission of offense. — An offense is committed either when every element occurs, or if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the complicity of the defendant therein is terminated. Time starts to run on the day after the offense is committed.

42 Pa.C.S.A. § 5552(d) (emphasis supplied).

Appellant has been charged with interference with custody and conspiracy. According to 18 Pa.C.S.A. § 2904, “A person commits an offense if he knowingly or recklessly takes any child under the age of 18 years from the custody of its parent, guardian or other lawful custodian, when he has no privilege to do so.” Additionally, the Pennsylvania Legislature has defined criminal conspiracy in the following manner:

§ 903. Criminal conspiracy
(a) Definition of conspiracy. — A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903.

Appellant seems to be arguing that since her grandson was removed from this jurisdiction in January of 1981 and she was not charged in his abduction until September of 1985, the two year statute of limitations had already run at the time of prosecution. In light of the authority cited above, it is evident that the Commonwealth was not foreclosed from prosecuting the instant charges.

As noted previously, where the Legislature has demonstrated a “purpose to prohibit a continuing course of conduct” an offense is deemed committed when the continuing course of conduct terminates. The statute of limitations is said to run on the day following commission of the offense (i.e., when the “continuing course of conduct” has terminated.) It is well settled that conspiracy is a continuing offense. See Commonwealth v. Volk, 298 Pa.Super. 294, 305, 444 A.2d 1182, 1187 (1982) (“For purposes of statute of limitation, the crime of conspiracy is a continuing offense.”) (Citations omitted.) Moreover, we conclude that the conduct delineated in 18 Pa.C.S.A. § 2904 as interference with custody is of a continuing nature.

In order to properly ascertain the meaning of a statute, we are required to consider the intent of the Legislature. As observed in Mount Laurel Racing Association v. Zoning Hearing Board, Municipality of Monroeville, 73 Pa. Commonwealth Ct. 531, 458 A.2d 1043 (1983), “[Legislative intent is considered the polestar of statutory construction.” Id. at 537, 458 A.2d at 1046. (citation omitted). See also 1 Pa.C.S.A. § 1921. Moreover, we are permitted to examine the practical consequences of a particular interpretation. Lehigh Valley Co-Op Farmers v. Commonwealth, Bureau of Labor and Industry, 498 Pa. 521, 526, 447 A.2d 948, 950 (1982) (“[I]n ascertaining legislative intent, the practical results of a particular interpretation may be considered.”) (citation omitted). In addition, pursuant to 1 Pa.C.S.A. § 1921, we are to presume that the General Assembly did not “intend a result that is absurd, impossible of execution or unreasonable.” With these principles in mind, we now turn to an examination of 18 Pa.C.S.A. § 2904.

The statute in question prohibits the taking or enticing of any child under the age of 18 from its rightful custodian. We are persuaded that it is not merely the act of taking or enticing that constitutes the offense, but rather the continued maintenance of the child outside of the custodian’s dominion. We are aided in this interpretation by the case of Commonwealth v. Chubb, 3 Pa.D & C 3d 676 (Cumberland 1976), in which the court observed that section 2904 was derived from Model Penal Code 212.4, and quoted the following language from the Joint State Government Commission relating to this section:

Although this section is somewhat similar to kidnapping, it is intended to protect parental custody from unlawful interruption, even when the child is a willing participant in the interference with custody. The offender under this section, as distinguished from the kidnapper, may be the parent or relative of the child. Removal of the child for a brief period would not be covered by this section. However, as intimated above, this section would apply to a parent who wilfully defies a custody order by taking the child from the parent who was awarded custody. (Emphasis supplied.)

3 Pa.D & C 3d at 679.

Although Chubb was primarily concerned with one of the statutory defenses to a section 2904 violation, the language quoted above (and reprinted from Toll, Pennsylvania Crimes Code Annotated (1974) at 347-348) would seem to indicate that it is the interruption of lawful custody, and not merely the “taking”, that constitutes the statutory offense. Indeed, as appellee correctly observes, if the statute was only intended to prohibit the physical taking, there would be no reason for the Joint State Government Commission to have commented that “removal of the child for a brief period is not covered by this section.” Moreover, to hold that one who has continued to keep a child from its rightful custodian until after the statute of limitations has run is no longer guilty of interference with custody would violate the prohibition against constructions that are “absurd, impossible of execution or unreasonable.” In light of the foregoing, we conclude that section 2904 deals with a continuing offense, and that the statute of limitations was tolled until John Charles Stewart was returned to the custody of his mother in December of 1984. Therefore, since appellant was charged with the instant offenses in September of 1985, the prosecution took place well within the statutory period.

It is important to note at this juncture that even were we to hold that 18 Pa.C.S.A. § 2904 did not define a “continuing course of conduct”, appellant would still be unable to prevail on her claim. As observed by the court below, appellant was made aware of the court order awarding custody to her daughter-in-law in July of 1984 (although it is fairly obvious that she knew of the latter’s custodial rights before that date). Appellant thereafter accompanied her family on a trek which ultimately ended in Texas in an attempt to prevent Bonnie Lee Stewart from reuniting with her son. She was apprehended in September of 1985, fourteen months after being apprised of the existence of the custody order. Since these actions occurred within the two year statute of limitations, the prosecution was not time-barred.

Appellant next contends that the evidence was insufficient to support her conviction. It is axiomatic that the evidence is to be viewed in the light most favorable to the Commonwealth, which must be given “the benefit of all reasonable inferences.” Commonwealth v. Moretti, 358 Pa.Super. 141, 144, 516 A.2d 1222, 1223 (1986) allocatur denied, 515 Pa. 593, 528 A.2d 602 (1987) (Citations omitted). Appellant claims that “the evidence fails to establish that appellant ‘took’ or ‘enticed’ the child from his parent or legal custodina [sic] or that she conspired to ‘take’ or ‘entice’ the child from his legal custodian.” (Appellant’s Brief at 10). We disagree. The facts as set out in the lower court’s thoughtful opinions could lead a jury to conclude beyond a reasonable doubt that appellant was aware of the order awarding primary custody of John Charles to his mother sometime prior to her leaving the Commonwealth and joining her husband, son and grandson in Maine. The evidence was likewise sufficient to establish that the appellant conspired with her husband and son to deprive Bonnie Lee Stewart of her child’s company between 1981 and 1984. Accordingly, we find no error in the court below.

Judgment of sentence affirmed.

      . The mother has indicated that she departed from the home on January 5, 1981. (N.T. March 17-March 21, 1986 at p. 29.)

      . It would appear that Bonnie Lee Stewart also retained custody of Bradley James, although this is not an issue in the present case. With regard to the February, 1981 hearing, the lower court has noted the following:
      On February 6, the mother and her attorney appeared before the Family Court Hearing Officer for a hearing on the custody petition. Neither the defendant nor his attorney appeared. After waiting 45 minutes, and it appearing from the evidence that the defendant had notice of the hearing, the Family Court Hearing Officer issued a primary custody order which was presented to the then President Judge for approval. It was confirmed in an order awarding primary custody to the mother.

      . The lower court has issued three opinions in the three separate companion cases involving the appellant, her husband and her son. In its opinion denying appellant’s post-verdict motions, the court adopted the facts as recounted in opinions dealing with James R. and John C. Stewart’s post-verdict motions. In the interest of judicial economy, we have done the same throughout the course of this opinion.

      . Appellant mistakenly alleges in her brief that she was charged on September 25, 1985, whereas the record is clear that a warrant was issued on September 27, 1985.

      . On November 15, 1985, the Commonwealth filed a notice of joinder indicating that the informations issued in Commonwealth v. John C. Stewart and the instant case would be tried together. However, the record reveals that defendant John C. Stewart was convicted of interference with custody of a child and criminal conspiracy on March 21, 1986. Accordingly, it would appear that the cases were not consolidated.

      . Appellant advances a corollary to her initial argument which is not raised in her Statement of Questions Presented. Appellant asserts that 42 Pa.C.S.A. § 5552(c)(1) requires the Commonwealth’s information to indicate the grounds upon which it intends to rely for the tolling of the statute of limitations. It is argued that since the Commonwealth failed to state these grounds, it cannot rely upon section (c)(1). However, the Commonwealth is not relying upon the foregoing provision. Section 5552(c)(1) deals with exceptions to the tolling of the statute of limitations, and is not applicable in this context. As appellee has correctly noted, the Commonwealth was relying upon 42 Pa.C.S.A. § 5552(d) dealing with a "continuing course of conduct" and not exceptions to the statute of limitations. Accordingly, its failure to comply with the dictates of section 5552(c)(1) is immaterial.

      . The lower court states that:
      (A member of the Yates County Sheriff Department) had a copy of a Lycoming County Court Order in his hand. He did not read that order to any of the Stewarts, but did summarize it to May Stewart who was the individual who answered the door.

      . Appellant is heard to argue that the courts of Lycoming County are without jurisdiction in this matter since the action in question (removing John Charles from New York) did not occur within this jurisdiction, "and the order was not properly authenticated to be valid in New York.” However, as recognized by the lower court, there is evidence that the family passed through Lycoming County on their journey southward. Accordingly, jurisdiction is proper. Moreover, as the lower court aptly noted with respect to defendant, James R. Stewart:
      [T]he defendant contends that he cannot be guilty of violating the order of the Court of Common Pleas of Lycoming County while in New York State unless the Pennsylvania Order was certified by the Pennsylvania Court and filed in the State of New York. The critical issue with regard to the New York State incident however, is that it indicates once more knowledge by the defendant of the existence of the Pennsylvania Order which was followed by actual conduct of the defendant in the State of Pennsylvania in continuing his illegal interference with custody of the child as he passed through Pennsylvania.


author: CERCONE, Judge:

text:
    544 A.2d 1389
    COMMONWEALTH of Pennsylvania v. Tarry L. BECHTEL, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 21, 1988.
    Filed July 25, 1988.

      Robert B. MacIntyre, Harrisburg, for appellant.
    Yvonne A. Okonieski, Deputy District Attorney, Harrisburg, for Com., appellee.
    Before MONTEMURO, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is a case in which the trial court imposed separate sentences on the defendant all within the statutory limits for indecent assault and corruption of a minor arising out of a single incident. The issue of the imposition of separate sentences was not raised on direct appeal whereupon appellant filed a P.C.H.A. petition challenging the imposition of separate sentences and raised the claim of ineffectiveness of counsel for not objecting to the sentences. This the appellant has the right to do. Commonwealth v. Ris po, 222 Pa.Super. 309, 294 A.2d 792 (1972), allocatur refused, 222 Pa.Super. xxxii (1972).

The trial took place on October 18, 1982 and appellant’s brief discloses the following facts:

The victim who was twelve (12) years of age had been granted permission by her parents to accompany appellant and his daughters to a skating party on February 14, 1982. Victim’s parents also granted permission for the victim to spend the preceding night with appellant and his children.
Victim alleged that while being transported by appellant to his home, appellant parked his van, exposed his penis, forced the victim to touch his penis and touched the victim’s vaginal area from outside her clothes. Appellant denied physical conduct with the victim.
Timely post verdict motions were filed following conviction alleging various trial errors. These motions were denied and sentence was imposed on December 15, 1983. Incarceration of not less than two (2) years nor more than five (5) years was imposed for the corruption of minors conviction and a concurrent sentence of eleven (11) months to twenty-three (23) months was imposed for the conviction of indecent assault. Appellant was given credit for time served, some twenty (20) months, twenty (20) days.
Direct appeal was taken to the Pennsylvania Superior Court which affirmed the judgment of sentence on March 29, 1985, Commonwealth v. Bechtel, 343 Pa.Super. 604, 494 A.2d 476 (1985). A Petition for Allowance of Appeal to the Pennsylvania Supreme Court was denied on September 16, 1985, No. 170 M.D. Allocator Docket 1985.
The issue of legality of sentencing was not raised on direct appeal. Petitioner [then] filed a Post Conviction Hearing Act Petition ... challenging the legality of the sentences imposed by the trial Court.

In the case of Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), a single sentence for the crimes of rape and statutory rape was imposed, both acts being committed by force. In that case the Supreme Court of Pennsylvania held that when carnal knowledge is had by use of force there is no need to discuss rape vis-a-vis statutory rape because the act of force constitutes the crime of rape in either case in which event only one sentence was proper. However, in the instant case, separate statutory crimes were committed; that is, indecent assault and corruption of a minor. Each crime involves a particular interest of the Commonwealth in protection against said crimes. As the Supreme Court in Commonwealth v. Norris, 498 Pa. 308, 446 A.2d 246 (1982), held, conviction for rape and corruption of a minor arising from the same act of sexual intercourse properly resulted in separate sentences being imposed. The court in Norris said:

[T]he Commonwealth suffered two injuries from appellant’s single act in that appellant not only engaged in forcible intercourse with an individual that is not his spouse, but also corrupted the morals of a child under the age of 18. Nor does the imposition of separate sentences in this instance violate the “same offense” doctrine first articulated in Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). See Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

498 Pa. at 319, 446 A.2d at 251-52. (footnotes omitted)

The Norris case was decided on June 1, 1982, prior to the time of appellant’s trial and is, thus, applicable in this case. Commonwealth v. Sayko, 511 Pa. 610, 515 A.2d 894 (1986), carried out the principles enunciated in Norris. In Sayko, the court held:

The penal laws prohibit different acts for different reasons, and because different prohibited criminal acts are committed against the same person at the same time does not lessen the reason why they are prohibited. The penal sanction is designed to prevent any criminal act; if more than one is committed, and each violates a different protected interest, a separate sanction may follow.
The General Assembly may discern by statute different interests to be protected in the same person during a criminal transaction. There is a difference in fact and in consequence between an indecent touching and an indecent exposure; and a profound difference between both acts and the corruption of a minor. Each contain different elements designed to protect different interests. The corruption of a minor child can only be committed against a minor child, hence the interest to be protected and the age of the victim are elements different from those of indecent assault and indecent exposure, which offenses can be perpetrated against anyone, young or old.

Id., 511 Pa. at 613-14, 515 A.2d at 895-96. (emphasis added) (footnotes omitted)

Order affirmed.

      . "Corruption of minors” is defined in 18 Pa.C.S.A. § 6301, in relevant part, as follows:
      (a) Offense defined. — Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any child under the age of 18 years, or who aids, abets, entices or encourages any such child in the commission of any crime, or who knowingly assists or encourages such child in violating his or her parole or any order of court, is guilty of a misdemeanor of the first degree ...
      "Indecent assault” is defined in 18 Pa.C.S.A. § 3126, in relevant part, as follows:
      A person who has indecent contact with another not his spouse, or causes such other to have indecent contact with him is guilty of indecent assault, a misdemeanor of the second degree, if:
      (1) he does so without the consent of the other person;
      (2) he knows that the other person suffers from a mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct;
      (3) he knows that the other person is unaware that an indecent contact is being committed;
      (4) he has substantially impaired the other person’s power to appraise or control his or her conduct, by administering or employing without the knowledge of the other drugs, intoxicants or other means for the purposes of preventing resistance; or
      (5) the other person is in custody of law or detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.

      . See Commonwealth v. Sayko, supra, for discussion of the Doctrine of Merger as limiting duplicitous sentencing and punishments.


author: PER CURIAM:

text:
    545 A.2d 284
    COMMONWEALTH of Pennsylvania, Appellee, v. Despina SMALIS, Appellant. COMMONWEALTH of Pennsylvania, Appellee, v. Ernest SMALIS, Appellant.
    Superior Court of Pennsylvania.
    Argued April 14, 1988.
    Filed June 2, 1988.
    Reargument Denied Aug. 5, 1988.

      Norma Chase, Pittsburgh, for appellant (at 71 and 1546).
    Thomas A. Livingston, Pittsburgh, for appellant (at 72 and 1547).
    Before ROWLEY, DEL SOLE and MONTGOMERY, JJ.
   PER CURIAM:

These appeals arise from the trial court’s denial of appellants’ motion to dismiss the charges against them on grounds of double jeopardy following argument. Finding appellants’ claims to be meritless we affirm the orders of the trial court, and remand for further proceedings.

Appellants were charged with criminal homicide, recklessly endangering another person, causing a catastrophe and failing to prevent a catastrophe as the result of a fire which destroyed a building they owned on February 12, 1979. Appellant Despina Smalis was also charged with theft by deception. At the conclusion of the prosecution’s case, the trial court sustained demurrers on the charges of murder, voluntary manslaughter and causing a catastrophe. Trial on the remaining charges of involuntary manslaughter, recklessly endangering another person, failing to prevent a catastrophe and theft by deception (this charge as to appellant Despina Smalis only) was continued to permit the Commonwealth to appeal the order sustaining the demurrers.

The Commonwealth appealed to this court which found that such an appeal was barred by double jeopardy. Commonwealth v. Smalis, 331 Pa.Super. 307, 480 A.2d 1046 (1984). The Commonwealth then appealed our disposition to the Pennsylvania Supreme Court, which reversed this court’s order and remanded for our review on the merits of the trial court’s order sustaining the demurrers. Commonwealth v. Zoller, 507 Pa. 344, 490 A.2d 394 (1985). Appellants’ petitions for writ of certiorari to the United States Supreme Court were granted, and that court found that the Commonwealth’s appeal was barred by double jeopardy, reversing the Pennsylvania Supreme Court. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). In accordance with the mandate of the United States Supreme Court, the Pennsylvania Supreme Court reinstated the order of this court quashing the Commonwealth’s appeal. Commonwealth v. Smalis, 511 Pa. 229, 512 A.2d 634 (1986). Attempts to proceed to trial prompted appellants to file the aforementioned motion to dismiss the charges against them.

Nos. 71 and 1546 Pittsburgh 1987 Appeal of Despina Smalis

Appellant Despina Smalis raises the following two (2) claims for our review, which will be addressed seriatim:

I. Whether retrial or resumption of a nonjury trial after a protracted “recess”, during which the Commonwealth pursued an appeal from an order ultimately and not altogether unpredictably held to be an unappealable acquittal, subjects appellant to double jeopardy with respect to the charges that were not involved in the previously appealed order?
II. Whether the resumption of a nonjury trial some seven years after it was “recessed” for an impermissible appeal deprives appellant of due process and confrontation rights?

Appellant’s first claim is clearly meritless. We initially note agreement with appellant’s concession that the instant charges were not the subject of the previously sustained demurrers. The Supreme Court of the United States has held that, when a court finds the Commonwealth’s evidence to be so lacking in sufficiency that no rational finder of fact could base a conviction on that evidence, the principles of double jeopardy bar a second trial. United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65, 78 (1978) (cites omitted). Compare, Tibbs v. Florida, 457 U.S. 31, 40-41, 102 S.Ct. 2211, 2217, 72 L.Ed.2d 652, 660 (1982) (cites omitted). No such finding was made regarding the subject charges of the instant appeal; therefore, they do not give rise to the double jeopardy preclusion to further prosecution.

Secondly, we note that the Commonwealth’s appeal from the sustaining of appellant’s demurrers was proper in light of the well-established state of the law of this Commonwealth at the time. See, e.g., Commonwealth v. Wimberly, 488 Pa. 169, 172, 411 A.2d 1193, 1194 (1979), citing, Commonwealth v. Long, 467 Pa. 98, 354 A.2d 569 (1976) and Commonwealth v. Simpson, 310 Pa. 380, 165 A. 498 (1933). As a result, the Commonwealth’s appeal was not a frivolous delaying tactic, as is suggested by appellant, but an often utilized, properly relied upon process. We, therefore, will not penalize the prosecution for failing to predict a change in the law of this Commonwealth. Specifically, they will not be penalized for failing to foresee that their right to appeal the grant of demurrers would be nullified by the United States Supreme Court.

As to appellant Despina Smalis’ second claim of error, our determination of whether she has been denied her rights to due process and confrontation due to the delay in proceeding to trial on the remaining charges must be guided by the four factors set forth by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 116 (1972). Cf., Burkett v. Cunningham, 826 F.2d 1208, 1219-1222 (3rd Cir., 1987). These four factors are (1) the length of the delay; (2) the reason for the delay; (3) appellant’s assertion of her right; and, (4) prejudice to appellant. In applying these factors, we note that each is a guide to balancing appellant’s interests and those of the Commonwealth in order to assess whether basic due process requirements of fairness have been satisfied. United States v. $8,850.00, 461 U.S. 555, 564-565, 103 S.Ct. 2005, 2013, 76 L.Ed.2d 143, 152 (1986). Furthermore, no single factor alone is sufficient to indicate a deprivation of the right to a speedy trial. Barker v. Wingo, supra, at 533, 92 S.Ct. at 2193, 33 L.Ed.2d at 118. It is clear that the delay herein of over six (6) years was lengthy. However, since we must make a determination based upon all four of the Barker factors, the lengthy delay standing alone is insufficient to deprive appellant of the right to a speedy trial.

In light of the state of the law at the time the Commonwealth appealed from the grant of appellant’s demurrers and successfully sought a stay of the proceedings on the remaining charges, we find the reason for the delay to be reasonable. That finding is buttressed by the fact that the record discloses no evidence of bad faith or dilatoriness on the part of the Commonwealth as is set forth hereinabove in response to appellant’s first claim of error. Cf., United States v. Loud Hawk, 474 U.S. 302, 315, 106 S.Ct. 648, 656, 88 L.Ed.2d 640, 654 (1986).

Appellant clearly asserted her right by opposing the request for a stay. However, she failed to subsequently challenge the order to stay the proceedings through appellate processes. Her rationales for the failure are that (1) she was under no duty to appeal the stay order, likening the situation to one where a failure to consent to a mistrial cannot be inferred from the failure to object; and, (2) she had no assurance that the vacating of the stay order would not have resulted in a “piecemeal disposition” of the charges. This amounts to a strategic decision on the part of appellant and her counsel, which does not negate the fact that she had the right to appeal the stay order and chose not to do so. We therefore find that appellant did not fully assert her right as required by the third factor of the Barker test.

Finally, we look to the prejudice that may have attached to appellant’s case as a result of the delay. Appellant sets forth no specific arguments of prejudice for our consideration, and our review of the record does not disclose prejudice sufficient to weigh in appellant’s favor. Cf., United States v. Loud Hawk, supra, at 315, 106 S.Ct. at 656, 88 L.Ed.2d at 654 (1986).

We find that appellant does not satisfy the balancing test set forth in Barker. Accordingly, her claim that she will be deprived of her due process rights if trial is resumed is meritless.

Nos. 72 and 154.7 Pittsburgh 1987 Appeal of Ernest Smalis

Appellant Ernest Smalis raises the following five (5) claims for our review, which will be addressed seriatim:

I. Whether the speedy trial and due process provisions of the Pennsylvania and United States Constitutions prohibit further proceedings on the counts as to which demurrers were not sustained, such that the trial court erred in denying appellant’s motion to dismiss the informations?
II. Whether the double jeopardy provisions of the United States and Pennsylvania Constitutions prohibit further trial proceedings on the counts as to which demurrers were not sustained when, contrary to the double jeopardy clause, the Commonwealth tried to appeal from the counts as to which demurrers were sustained, and again contrary to the double jeopardy clause and contrary to the law concerning the availability of a “stay”, the trial court granted the Commonwealth’s motion for a stay pending the outcome of its efforts to appeal?
III. Whether the components of the due process clauses which guarantee appellant a full and fair hearing, i.e., a hearing conducted in a meaningful manner, prohibit further trial proceedings on the counts as to which demurrers were not sustained, such that the trial court erred in denying appellant’s motion to dismiss the informations?
IV. Whether proceedings on the counts as to which demurrers were not sustained are barred by 18 Pa.C.S. § 109(4), since the trial court’s erroneous order that trial proceedings on the counts as to which demurrers had not been sustained be stayed pending the Commonwealth’s unconstitutional and unsuccessful attempt to appeal the order sustaining demurrers “improperly terminated” the prosecution.
V. Whether, because the trial court erred in granting the Commonwealth’s motion to stay the proceedings, further proceedings are now barred?

It is clear that appellant Ernest Smalis’ first two assignments of error are identical to those proposed by his wife, appellant Despina Smalis. As a result, we need not commit ourselves to further discourse on these claims of error.

Appellant’s third claim is merely a reiteration of his due process allegation in the context of the right to a full and fair hearing “at a meaningful time and in a meaningful manner.” In support of his argument, appellant relies upon the argument set forth in his due process claim. His attempt to reargue due process considerations fails for the same reasons set forth in response to that claim.

As to his fourth assignment of error, appellant argues that 18 Pa.C.S. § 109(4) bars further proceedings because the stay of the trial as to the remaining charges pending resolution of the Commonwealth’s appeal from the sustained demurrer is tantamount to a termination of the proceedings. 18 Pa.C.S. § 109(4) provides:

When a prosecution is for a violation of the same provision of the statutes and is based upon the same facts as a former prosecution, it is barred by such former prosecution under the following circumstances:
(4) The former prosecution was improperly terminated after the first witness was sworn but before a verdict, or after a plea of guilty was accepted by the court.

Appellant’s claim that the stay order effectively terminated the prosecution is meritless in light of the particular circumstances of the instant case. As we noted in our analysis of appellant Despina Smalis’ double jeopardy claim, the Commonwealth had, at the time, a right to appeal from the sustaining of a demurrer, thereby negating any purported impropriety. Furthermore, the stay order permitted the court to hold trial on the remaining charges in abeyance pending resolution of that appeal. As no judgment of acquittal nor one of conviction was entered on the remaining charges they cannot be viewed as having been terminated. Appellant, of course, offers no legal support for his argument that the stay was effective termination, since his claim is not substantiated by discernible legal principles.

As to appellant’s final claim, we find no error on the part of the trial court in granting the Commonwealth’s motion to stay the proceedings. The Pennsylvania Supreme Court held in Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 551-554, 467 A.2d 805, 808-809 (1983) that the standards established by Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921 (D.C.Cir.,1958) as refined by Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir.1977) provide “a rational basis for the issuance of a stay pending appeal and are the criteria to be followed by the courts of this Commonwealth.” Id. 502 Pa. at 554, 467 A.2d at 809. These criteria are:

1. The petitioner makes a strong showing that he is likely to prevail on the merits.
2. The petitioner has shown that without the requested relief, he will suffer irreparable injury.
3. The issuance of a stay will not substantially harm other interested parties in the proceedings.
4. The issuance of a stay will not adversely affect the public interest.

Pennsylvania Public Utility Commission v. Process Gas Consumers, supra, 502 Pa. at 552-553, 467 A.2d at 809.

The Process Gas Consumers court explained the use of the above criteria by stating that “when confronted with a case in which the other three factors strongly favor interim relief[, a court] may exercise its discretion to grant a stay if the movant has made a [demonstration of probability of success] on the merits.” Id., quoting, Washington Metropolitan Area Transit Commission v. Holiday Tours, supra. In applying those standards to the instant case, the issuance of a stay was justified. Therefore, further proceedings are not barred.

Orders affirmed. Cases remanded for further proceedings. We relinquish jurisdiction.

      . Stay orders are reviewable by the appropriate appellate courts. See generally, Pa.R.A.P. 1501 et seq., and Pa.R.A.P. 1701 et seq.


author:
WIEAND, Judge:
      POPOVICH, Judge,

text:
    545 A.2d 289
    Charles Scott THOMAS, a minor by his parents and natural guardians, Charles Frederick THOMAS, Jr. and Judith Thomas, and Charles Frederick Thomas, Jr. and Judith Thomas, husband and wife, in their own right, Appellants, v. DUQUESNE LIGHT COMPANY, Pittsburgh, Chartiers & Youghiogheny Railway Company, Kenny Watson, Norman Cousins, and Mae Lunardi d/b/a Dario’s Distributor a/k/a Dario’s Beer Distributors, Appellees.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1987.
    Filed June 13, 1988.
    Rearguments Denied Aug. 4, 1988.

      Frank E. Little, Pittsburgh, for appellants.
    William K. Herrington, Pittsburgh, for Duquesne Light, appellee.
    Before WIEAND, MONTEMURO and POPOVICH, JJ.
   WIEAND, Judge:

Charles Scott Thomas, age 15, consumed beer, became intoxicated, climbed an electrical transmission tower, came into contact with a high voltage line, was burned, and fell one hundred feet to the ground. In an action brought by the minor plaintiffs parents to recover damages, a default judgment was entered against Kenny Watson, the adult who had purchased the beer; and the trial court entered a compulsory nonsuit against the beer distributor which had sold the beer. The claims against Duquesne Light Company, which owned the tower, the Pittsburgh, Chartiers & Youghiogheny Railway Co., which owned the land on which the tower had been erected, and Norman Cousins, who had given the minor plaintiff and his friends a ride to the site of the tower, were submitted to the jury. The jury found that the causal negligence of the minor plaintiff had been more than fifty (50%) percent, and verdicts were entered in favor of Duquesne Light Co., the Pittsburgh, Chartiers & Youghiogheny Railway Co., and Norman Cousins. In the claim against Watson, the defaulting defendant, the jury found that the parents of the minor plaintiff had incurred medical expenses in the amount of $61,562.63 and assessed the minor plaintiffs damages at $375,000.00. As between Watson and the minor plaintiff, however, the jury determined that Watson’s causal negligence was only thirty (30%) percent and the minor plaintiff’s negligence was seventy (70%) percent. Post-trial motions were denied, and judgments were entered on the verdict. The parents of the minor plaintiff appealed.

I. The verdict in favor of Duquesne Light Company and the Pittsburgh, Chartiers & Youghiogheny Railway Co.

In support of their request that a new trial be granted with respect to the claims against Duquesne Light Co. and the Pittsburgh, Chartiers & Youghiogheny Railway Co., appellants argue generally that the trial court erred in refusing their requested points for charge. However, if a requested point for charge is sufficiently and adequately covered in the trial court’s jury instructions, it is not error to deny the requested point even though it may contain a correct statement of the law. Olson v. Dietz, 347 Pa.Super. 1, 6, 500 A.2d 125, 127-128 (1985). In evaluating the adequacy and correctness of the trial court’s jury instructions, “[w]e look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party.” Reilly by Reilly v. Southeastern Pa. Transp. Auth., 507 Pa. 204, 231, 489 A.2d 1291, 1305 (1985). See: Hrivnak v. Perrone, 472 Pa. 348, 372 A.2d 730 (1977).

In the instant case, the trial court’s instructions to the jury have not been transcribed. For this reason the trial court found it impossible to address the errors alleged by appellants. For the same reason this Court, on appeal, is unable to review the trial court’s jury instructions to determine whether error occurred. Ward v. Babbit, Inc., 270 Pa. 370, 113 A. 558 (1921). See also: Wolfe v. Scott, 275 Pa. 343, 119 A. 468 (1923); Duff v. Hamlin, 272 Pa. 245, 115 A. 829 (1922). It was the appellants who shouldered the burden of producing a record sufficient to enable an appellate court to conduct meaningful review. See: Commonwealth v. Williams, 357 Pa.Super. 462, 516 A.2d 352 (1986). Without a transcript of the trial court’s instructions to the jury, we are unable to find therein any basis for awarding a new trial against Duquesne Light and the Pittsburgh, Chartiers & Youghiogheny Railway Co. Appellants have advanced no reason for awarding a new trial in the claim against Norman Cousins.

II. The Compulsory Nonsuit entered in favor of the beer distributor

There are two aspects to our review of the compulsory nonsuit entered by the trial court in favor of the beer distributor. The first requires that we review the trial court’s refusal to allow an amendment of the complaint at trial to name the correct owner of the beer distributorship.

The complaint, when filed on October 7, 1983, had named Mae Lunardi as the proprietor of the distributing business. Lunardi’s answer had contained a denial that she was the owner of the distributorship and had alleged that she was president of Dario’s Beer Distributors, a corporation, which owned the business. Despite this answer, appellants did nothing to amend their complaint until September 29, 1986, after they had presented their entire case at trial. At the close of their case-in-chief, appellants orally requested leave of court to amend their complaint to name Dario’s Beer Distributor, a Pennsylvania corporation, as a party defendant instead of Mae Lunardi, d/b/a Dario’s Distributors a/k/a Dario’s Beer Distributors. On June 25, 1982, when the beer had been sold, the owner of the distributorship was in fact the corporation, the business having been incorporated sometime in 1981. The trial court refused to allow the amendment, stating that to allow it would entail the joinder of a new party after the statute of limitations had expired.

The applicable rule of law was stated in Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911), as follows:

Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.

Id., 232 Pa. at 2, 81 A. at 63. See also: Hoare v. Bell Telephone Co. of Pa., 509 Pa. 57, 500 A.2d 1112 (1985); Gozdonovic v. Pleasant Hills Realty Co., 357 Pa. 23, 53 A.2d 73 (1947).

In Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), the plaintiff had named as a defendant “Bart Bertocci, Inc.” and had alleged that this defendant controlled the work site at which plaintiff had been injured. The answer contained an averment that there was no such corporation but that there was a partnership known as “Bertocci Construction Company” which had been doing construction work at the site of the accident. Plaintiff did not move to amend the complaint to name the correct defendant until one year and seven months after the answer had been filed and more than three years after the statute of limitations had run. The trial court disallowed the amendment. The Supreme Court reversed. The Supreme Court said that “[sjince from the record it is clear that the same Bertocci business enterprise was involved throughout, there is here no substitution of parties, but the correction of the designation under which the right party was originally sued. The amendment should have been allowed.” Id, 442 Pa. at 441, 275 A.2d at 321. A similar result was attained in Powell v. Sutliff, 410 Pa. 436, 189 A.2d 864 (1963). There, the plaintiff had sued “Ellis Sutliff and Leo E. Sutliff, individually and as partners t/d/b/a Sutliff Chevrolet Company.” After the statute of limitations had expired, the plaintiff sought to substitute Sutliff Chevrolet, a corporation, as a party defendant. The trial court refused the amendment, and the Supreme Court reversed. It said: “[T]he proposed amendment merely seeks to correct the designation of that business entity, in this case from a partnership to a corporation. Since the assets subject to liability will not be enlarged, the court below erred in not permitting the amendment.” Id, 410 Pa. at 438-439, 189 A.2d at 865 (footnote omitted). See also: Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952) (proposed amendment changing defendant from Steelton Taxicab Company, a corporation, to Anthony Kosir, t/a Steelton Taxicab Company permitted after statute of limitations had run); Gozdonovic v. Pleasant Hills Realty Co., supra.

These decisions are controlling of the right to amend the complaint in this case. Here, it seems clear that the plaintiffs sued the proper party but that the party defendant was erroneously designated in the complaint. Thus, plaintiffs’ complaint was served upon Dario’s Beer Distributors by handing a copy of the complaint to the corporate treasurer, Ronald Lunardi. The answer to the complaint, moreover, was signed and verified by Mae Lunardi individually and in her capacity as president of the corporation. Other pleadings and record documents filed in the case appeared to be on behalf of the corporation and were signed by counsel for the corporation. Finally, the beer distributor’s answers to interrogatories identified the defendant as “Dario’s Beer Distributors, a Pennsylvania corporation.”

These answers were verified by Ronald Lunardi, the treasurer of the corporation. From the outset, therefore, and throughout the pendency of this action, it is clear that plaintiffs were attempting to impose liability upon the business entity known as Dario’s Beer Distributors. Thus, the amendment to correct the designation of the defendant beer distributor would not have added a new party. Dario’s Beer Distributors was the party served, and it cannot escape accountability merely because it was initially designated as a sole proprietorship instead of a corporation. As the Supreme Court observed in Waugh v. Steelton Taxicab Co., supra, 371 Pa. at 438, 89 A.2d at 528:

It would be strange indeed if the law would permit a person actually responsible for a civil or criminal act to escape accountability because the summons or warrant served on him named him Richard Roe instead of John Doe.

Although we cannot and do not condone the delay plaintiffs exhibited in failing to move promptly to amend their complaint, this delay is not alone dispositive of the issue before us. See: Paulish v. Bakaitis, supra, 442 Pa. at 439 n. 4, 275 A.2d at 320 n. 4. Because the plaintiff sued the proper party, but incorrectly designated that party as a sole proprietorship, the trial court should have allowed an amendment to correct the designation of the defendant as a corporation.

The second aspect of our review of the compulsory non-suit requires that we determine whether there was sufficient evidence from which a jury could have imposed liability on the beer distributorship.

The rules regarding a compulsory nonsuit are well established. A judgment of nonsuit can be entered only in clear cases, and a plaintiff must be given the benefit of all evidence favorable to him, together will [sic] all reasonable inferences of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Flagiello v. Crilly, 409 Pa. 389, 390-391, 187 A.2d 289, 290 (1963). See Tolbert v. Gillette, 438 Pa. 63, 260 A.2d 463 (1970). Thus an order granting a nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it, in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action have been established. Ford v. Jeffries, 474 Pa. 588, 591-592, 379 A.2d 111, 112 (1977).
However, it is also well settled that a jury can not be permitted to reach its verdict on the basis of speculation or conjecture, Smith v. Bell Telephone Co., 397 Pa. 134, 153 A.2d 477 (1959); and that a judgment of nonsuit is properly entered if a plaintiff has not introduced sufficient evidence to establish the elements necessary to maintain an action. Schofield v. King, 388 Pa. 132, 130 A.2d 93 (1957). See Yohe v. Yohe, 466 Pa. 405, 353 A.2d 417 (1976); Dornon v. Johnston, 421 Pa. 58, 218 A.2d 808 (1966); Goater v. Klotz, 279 Pa. 392, 124 A. 83 (1924). In addition, it is the duty of the trial judge to determine, prior to sending the case to the jury, whether or not the plaintiff has met this burden. Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961).

Morena v. South Hills Health System, 501 Pa. 634, 638-639, 462 A.2d 680, 682-683 (1983). The evidence in the instant case, when viewed in the light most favorable to the plaintiffs, discloses the following facts.

On June 25, 1982, the minor plaintiff had asked his adult neighbor, Kenny Watson, to get some beer for him and his friends. Watson consented and drove the minor plaintiff and two of his juvenile friends in Watson’s car to Dario’s Beer Distributors in McKees Rocks. When a clerk approached and looked in the window, Thomas was in the front passenger’s seat and was holding in his lap a mug containing twenty-three dollars. Watson ordered two cases of Iron City beer. No one else in the car spoke to the clerk. The clerk placed the two cases of beer on the back seat between the two boys who were seated in the rear. Watson looked at Thomas for the money with which to pay for the beer. Thomas removed the money from the mug, counted out enough to pay for the beer, and handed it to Watson, who gave it to the clerk. When the clerk returned to the car and said that he needed more money, Thomas dumped the contents of the mug and counted out the correct change, which he then handed to Watson who, in turn, paid the clerk. Watson then took Thomas and his friends to a popular teen-age drinking spot known as “Beer Cans.”

The law is well settled that it is negligence per se for a licensee to serve alcoholic beverages to a minor in violation of section 493(1) of the Liquor Code of April 12, 1951, P.L. 90, 47 P.S. § 4-493(1). Smith v. Clark, 411 Pa. 142, 144, 190 A.2d 441, 442 (1963). See also: Matthews v. Konieczny, 515 Pa. 106, 113, 527 A.2d 508, 512 (1987). A commercial licensee who violates this section of the statute will be held liable for injuries sustained by the minor or by third persons if such injuries are proximately caused by the furnishing of alcohol to the minor. Matthews v. Konieczny, supra, 515 Pa. at 113, 527 A.2d at 512; Smith v. Clark, supra, 411 Pa. at 144, 190 A.2d at 442. The issue in this appeal, however, is whether liability will be imposed upon a licensee who sells alcoholic beverages to an adult under circumstances in which the licensee knew or should have known that the adult was purchasing the beverages for use by minors. This issue has not previously been presented directly to the appellate courts of this Commonwealth. Nevertheless, we are not wholly without guidance.

In Reber v. Commonwealth of Pa., Liquor Control Bd., 101 Pa.Commw. 397, 516 A.2d 440 (1986), the plaintiff, a seventeen-year-old minor, had requested a friend, also a minor, to purchase a fifth of liquor for him from a state store and had given the friend money with which to make the purchase. The friend’s age was not questioned at the time of the purchase, and the contents of the bottle which he purchased were consumed by plaintiff and his friend. While operating a motorcycle thereafter, the minor plaintiff lost consciousness and was injured when the motorcycle crashed. He commenced an action against the Liquor Control Board in which he contended that its clerk had negligently sold liquor to his minor friend. The trial court entered summary judgment in favor of the Board, but the Commonwealth Court reversed. Writing for a three judge panel, the Honorable David Craig wrote that the Board had “violated section 493(1) [of the Liquor Code] by selling liquor under circumstances in which it was likely that the liquor would reach the hands of other minors” and, therefore, had “breached a duty owed to [the minor plaintiff] not to furnish liquor to minors either directly or through likely intermediaries.” Id. at 406, 516 A.2d at 444. The Commonwealth Court observed that “the prospect of [a minor] sharing his illegally purchased liquor with another minor, and the injury resulting, is [not] so unforeseeable that [the minor plaintiff] cannot assert that the LCB breached the duty owed to him.” Id. at 406, 516 A.2d at 444.

Several decisions of this Court must also be considered in determining whether appellants’ evidence pertaining to the manner in which the sale occurred should have been left to the jury. In In the Matter of J-J Bar, Inc., 210 Pa.Super. 349, 233 A.2d 625 (1967), this Court held that there had been a violation of section 493(1) of the Liquor Code where a bartender had served two drinks to an adult patron who had been seated at the bar with a minor and where the bartender had not asked the minor for his age, had not requested identification from the minor, and had not required him to leave the licensed premises. The Court also found a violation of the Code in Salvia’s Bar, Inc. v. Pennsylvania Liquor Control Bd., 211 Pa.Super. 275, 236 A.2d 839 (1967), where three minors had entered a bar and were seated with an adult who purchased six draft beers and placed them on the table in front of the several minors. The Court said: “[I]t was [the bartender’s] duty to refuse to permit the adult to furnish beer to the minor.” Id. at 276, 236 A.2d at 839. The Commonwealth Court, in interpreting the Liquor Code, has interpreted section 493(1) in a similar way. Thus, in Pennsylvania Liquor Control Bd. v. Grand Marcus One, Inc., 69 Pa.Commw. 483, 451 A.2d 810 (1982), where three minors had been sitting at a table and drinking beer with adults in the licensee’s premises, the Court held that “[t]he bartender was under a duty to see to it that the adults did not furnish liquor to the minors.” Id. at 485, 451 A.2d at 811. And in The Matter of Revocation of Restaurant Liquor License No R-12122, 78 Pa.Commw. 159, 164, 467 A.2d 85, 88 (1983), the Court said: “[T]he purchase of alcoholic beverages by an adult for a minor’s consumption does not free the licensee of his duty to prevent the liquor ... from being furnished to the minor.” All of these cases involved alleged violations of section 493(1) of the Liquor Code and are not negligence cases. However, they are helpful in determining whether there was a breach of duty owed to the minor plaintiff in Watson’s car when beer was sold at the request of the adult driver but paid for with moneys supplied by the minor plaintiff.

The beer distributor was required by law to refrain from selling alcoholic beverages to minors. This duty would have been breached by a sale of alcohol made directly to minors. It could also be breached by an indirect sale to minors through an intermediary if it were known or should have been known that the alcohol was being purchased for use by minors. If Watson had told the distributor that he wanted to buy two cases of beer for consumption by the children seated in his car, no one would seriously question the existence of a duty owed by the distributor to the children. If, because of the circumstances, the distributor knew or should have known that Watson was purchasing beer for consumption by the minor passengers in his vehicle, the distributor would also have owed a duty to refrain from selling beer for consumption by minors. Whether the distributor knew or should have known that the beer was being purchased for consumption by minors was, in view of plaintiffs’ evidence, an issue of fact for the jury to decide. See: Bradshaw v. Rawlings, 612 F.2d 135,143 (3d Cir.1979) (licensee who sold beer to minors not immune from liability merely because delivery signed for by adult).

If the jury had found that the distributor breached a duty owed to the minor plaintiff, then the jury would also have been required to determine whether the breach was a substantial factor in causing the minor plaintiff’s injuries. The issue of legal causation could not properly be taken from the jury so long as reasonable persons might differ as to whether the distributor’s conduct was a significant or insignificant factor in causing appellant’s injuries. Ford v. Jeffries, 474 Pa. 588, 595, 379 A.2d 111, 114 (1977). See also: Vattimo v. Lower Bucks Hospital, Inc., 502 Pa. 241, 246-247, 465 A.2d 1231, 1233-1234 (1983).

We conclude, therefore, that it was error to enter a compulsory nonsuit in the claim made by plaintiffs against the beer distributor.

III. The default judgment against Kenny Watson

The default judgment which had been entered prior to trial against Watson was conclusive of his liability to the plaintiffs. There remained to be determined only the amount of the damages to be assessed against him. The trial court, reading literally the Comparative Negligence Law, held that the plaintiffs’ damages recoverable against Watson were to be reduced to the same extent to which the minor plaintiff’s negligence contributed to the happening of the accident. Responding to the trial court’s instructions, the jury found that the minor plaintiff’s causal negligence had been seventy (70%) percent and Watson’s only thirty (30%) percent. We are constrained to hold that the trial court’s instructions were erroneous.

As a result of his default, Watson’s liability had been determined finally by the judgment entered against him. As to him, therefore, the issues were limited to the amount of the plaintiffs’ damages. See: Std.Pa.Prac.2d § 68.16. Defenses which go to the right of recovery are not available to a defaulting defendant. The doctrine of comparative negligence, even though it goes in part to the assessment of damages, is primarily a substantive defense going to a plaintiffs’ right to recover and, therefore, is not available as a defense to a defendant against whom a default judgment has been entered. See: Whitby v. Maloy, 150 Ga.App. 575, 258 S.E.2d 181 (1979); Passino v. Cascade Steel Fabricators, Inc., 105 N.M. 457, 734 P.2d 235 (1986); Adkisson v. Huffman, 225 Tenn. 362, 469 S.W.2d 368 (1971). Cf. Harless v. Kuhn, 403 So.2d 423 (Fla.1981). Any other result would weaken the efficacy of default judgments. Passino v. Cascade Steel Fabricators, Inc., supra. With respect to the plaintiffs’ recovery against Watson, therefore, there could be no reduction because of the minor plaintiff’s negligence. The trial court erred when it instructed the jury otherwise.

IV. The new trial

The erroneous entry of the nonsuit in favor of the beer distributor makes a new trial necessary. The new trial must be as to all defendants. Although the jury refused to impose liability upon Duquesne Light, the Pittsburgh, Char-tiers & Youghiogheny Railway Co., and Norman Cousins, it did not find that they were not negligent. Consistently with the trial court’s instructions, the jury found only that the minor plaintiff’s causal negligence exceeded that of these three defendants. Upon retrial, the jury should be required to determine the causal negligence, if any, of all defendants, as well as that of the minor plaintiff, and then apportion the same among the parties. This will now include the negligence, if any, of the beer distributor. It will also include, for purposes of apportioning causal negligence, the negligence of Kenny Watson. Although the default judgment entered against him has rendered him liable to the plaintiffs to the full extent of their actual damages, the extent to which his negligence in fact contributed to the minor plaintiff’s injuries must be determined in order to apportion fault among the remaining parties to this litigation. Recovery by the plaintiffs against all defendants other than Watson will be precluded only if the minor plaintiff’s negligence exceeds the combined negligence of all defendants. Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986).

Reversed and remanded for a new trial.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I respectfully dissent from the majority’s opinion on several grounds. First, I would affirm the lower court’s denial of the appellants’ motion to amend their complaint after the statute of limitations had expired. Second, I would affirm the lower court’s grant of compulsory nonsuit since I disagree with the majority’s conclusion that “[wjhether the distributor knew or should have known that the beer was being purchased for consumption by minors was, in view of the plaintiffs’ evidence, an issue of fact for the jury to decide.” (Majority op., p. 12). And third, I do not believe a new trial is warranted as to any defendant.

In regard to the amendment of the appellants’ complaint, our Supreme Court, in Wright v. Eureka Tempered Copper Company, 206 Pa. 274, 55 A. 978 (1903), expressed the operative test to be used under the instant facts: “If the effect of the amendment will be to correct the name under which the right party was sued, it should be allowed; if its effect will be to bring in a new party on the record, it should be refused after the running of the statute of limitations.” Wright, 55 A. at 979. See Girardi v. Laquin Lumber Co., 232 Pa. 1, 81 A. 63 (1911); Hoare v. Bell Telephone Company of Pennsylvania, 509 Pa. 57, 500 A.2d 1112 (1985).

To support its decision, the majority relies upon Paulish v. Bakaitis, 442 Pa. 434, 275 A.2d 318 (1971), and Powell v. Sutliff 410 Pa. 436, 189 A.2d 864 (1963) which are clearly distinguishable. Both cases allow the amendment of a complaint when a partnership is substituted for a corporation or vise versa. Thus, those cases stand for the proposition that amendment is allowed when the effect is merely to substitute basically identical business entities. Instantly, the appellants wish to substitute a corporation for an individual in an attempt to recover from the corporation’s assets. This situation is not analogous to those cases cited by the majority where “the assets subject to liability will not be enlarged.” Powell, 189 A.2d at 865.

Seemingly, the majority has failed to consider the nature of the corporation as a independent legal “person.” In Glazer v. Cambridge Industries, Inc., 281 Pa.Super. 621,625, 422 A.2d 642, 644 (1980), we stated: “A corporation is a distinct and separate entity, irrespective of the ownership of the stock, and the fact that one person owns all its stock does not make him and the corporation one and the same.” See also Kiehl v. Action Mfg. Co., 517 Pa. 183,191, 535 A.2d 571, 575-575 (1987) (parent corporation and subsidiary are separate and distinct entities); United Nat. Ins. Co. v. M. London, Inc., 337 Pa.Super. 526, 487 A.2d 385, 391-392 (1985); Barium Steel Corp. v. Wiley, 379 Pa. 38, 108 A.2d 336 (1954). Accordingly, the fact that Mae Lunardi is the president of Dario’s Beer Distributors and has a significant financial interest in the corporation is not sufficient to consider the appellee and the corporation as identical parties distinguished only by different names. Further, it is abundantly clear that a sole proprietorship and a corporation are not sufficiently similar business entities to allow substitution of one for the other after the statute of limitations has expired.

The majority also cites Waugh v. Steelton Taxicab Co., 371 Pa. 436, 89 A.2d 527 (1952) in which an amendment substituting an individual for a corporation was permitted after the statute of limitations had run. However, the majority has failed to recognize that in Waugh, supra, our Supreme Court’s underlying concern was that “the plaintiff’s error in pleading might have resulted from deception on the part of the defendant.” Powell, 189 A.2d at 865-866, n. 6. Instantly, the appellants have not alleged and we have not found any deception on the part of the appellee, Mae Lunardi.

In direct contradiction to the majority’s decision, we ruled, in Scranton Private Hospital v. Caum, 61 Pa.Super. 93 (1915), that amendment is properly refused when the statute of limitations has expired and the proposed amendment seeks to substitute a corporation for named individuals. As our Supreme Court, commenting on Scranton Private Hospital, supra, stated: “That amendment was properly refused since liability would have been imposed on a new and distinct party.” Powell v. Sutliff, 189 A.2d at 865; See also Girardi, supra, 81 A. 63 (amendment refused where plaintiff sought to substitute individuals for corporation). Accordingly, the lower court correctly denied the instant motion to amend as the appellants merely sought to substitute a corporate entity, Dario’s Beer Distributor, for a named individual doing business as a sole proprietorship, Mae Lunardi, and, thus, impose liability on a new and distinct party.

Moreover, under Pennsylvania law, a long unexplained delay between the original pleading and the motion to amend will be considered as a factor in deciding whether to permit the amendment. Tanner v. Allstate Ins. Co., 321 Pa.Super. 132, 143, 467 A.2d 1164, 1169 (1983); See also, Comm., Dept. ofTransp. v. Bethlehem Steel Corp., 486 Pa. 186, 404 A.2d 692 (1979) (defendant’s motion to amend answer filed three years after original complaint denied); Hightower v. Bekins Van Lines Co., 267 Pa.Super. 588, 407 A.2d 397 (1979) (motion to amend filed two years and five months after original complaint denied). Instantly, Charles Scott Thomas was injured on June 25, 1982, and the appellants filed their original complaint on October 7, 1983. The record reveals that, in her original answer filed in February of 1984, the appellee specifically denied being an individual doing business as a sole proprietorship, as follows:

The averments contained in paragraph 11 of plaintiffs’ Amended Complaint are denied in part. Dario’s Beer Distributors is a Pennsylvania corporation having its place of business at 628 Broadway, McKees Rocks, Pennsylvania. Ma Lunardi is President of Dario’s Beer Distributors, a corporation. At no time relevant to to [sic] plaintiffs’ Complaint did Mae Lunardi engage in any conduct relevant to plaintiffs’ Complaint in any capacity other than as President of Dario’s Beer Distributors, a corporation. [Record at 43a-44a].

The appellee, Mae Lunardi, did not waiver in her description of Dario’s Beer Distributors as a Pennsylvania corporation for the entire duration of the action. Moreover, after its incorporation in 1981, the fact that Dario’s Beer Distributors was a corporation, not a sole proprietorship, became a matter of public record which the appellants through the exercise of reasonable diligence should have discovered. However, the appellants, disregarding the appellee’s answers to their complaint and their interrogatories, failed to amend their complaint until September 29, 1986, almost three years after their original complaint was filed and over two years and seven months after notification of the name of the true owner of Dario’s Beer Distributors. I find that the lower court’s action of denying the motion to amend was not an abuse of discretion especially in light of the facts that amendment would add a new party after the statute of limitations has run and that the appellants have not explained their failure to amend their complaint in a timely manner. Consequently, I would affirm the grant of compulsory nonsuit on the ground that the correct party was not named as a defendant.

We also note that the appellants failed to move for leave to amend their complaint until after they had presented their entire case in chief against the appellee. Thus, it appears to this observer that the appellants, realizing that Mae Lunardi could not be held individually liable for the action of the corporation, attempted to bring in a new defendant, the corporation, to replace her. I can find no reason to grant the appellant a second chance at recovery by bringing in a new party after the statute of limitations has expired when, in fact, the appellant’s own litigation strategy has provided the opportunity for the “true defendant” to escape possible liability.

Second, supposing Dario’s Beer Distributors was properly made a party to this action, I would still affirm the lower court’s grant of compulsory nonsuit against the appellants. I take exception to the majority’s determination that “[whether] the distributor knew or should have known that the beer was being purchased for consumption by minors was, in view of the plaintiffs’ evidence, an issue of fact.for the jury to decide.” (Majority op., p. 12). Under the rule of Ford v. Jeffries, 474 Pa. 588, 379 A.2d 111, 112 (1977), an order granting a compulsory nonsuit is proper only if the jury, viewing the evidence in light most favorable to the plaintiff, could reasonably conclude that the plaintiff has failed to establish the elements necessary to maintain his or her cause of action. See also Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680, 682-683 (1983). Instantly, compulsory nonsuit is proper if the appellants failed to establish that the appellee owed a duty to the injured minor.

Under the rule expressed by our Supreme Court in Smith v. Clark, 411 Pa. 142, 190 A.2d 441, 442 (1963), if “intoxicating beverages are sold in violation of [47 Pa.S.A. § 493(1) ], this constitutes negligence, and if the unlawful act of acts are the proximate cause of an injury, the violator is responsible for the loss suffered.” To support their position that the appellee owed a duty to the minor not to sell beer to the purchasing adult, the majority cites numerous cases which hold that a liquor licensee who knowingly permitted, or failed to prevent, a sale of liquor to an adult for the sole purpose of passing the liquor on to minors is in violation of Section 493(1). See In the Matter of J-J Bar, Inc., 210 Pa.Super. 849, 233 A.2d 625 (1967); Salvia’s Bar, Inc. v. Pennsylvania Liquor Control Board, 211 Pa.Super. 275, 236 A.2d 839 (1967); Pennsylvania Liquor Control Board v. Grand Marcus One, Inc., 69 Pa.Cmwlth.Ct. 483, 451 A.2d 810 (1982); The Matter of Revocation of Restaurant License No. R-12122, 78 Pa.Cmwlth.Ct. 159, 467 A.2d 85 (1983). Consequently, the majority holds that if, under the facts presented, a beer distributor knew or should have known that an adult was purchasing beer for consumption by minors, the distributor owed a duty to the minor not to sell the beer to that purchaser. Therefor, under the majority’s rule the question of whether a distributor knew or should have known that beer was purchased for consumption of minors is a question for the jury to decide.

I am not persuaded that the courts of this Commonwealth intended that the aforementioned rules regarding distribution of liquor to minors by licensees on licensed premises apply similarly to over-the-counter distribution of liquor by LCB stores or beer distributorships. Certainly, the liquor licensee and the beer distributor are both under an affirmative duty to see that alcoholic beverages are not provided directly or indirectly to minors. However, the majority fails to consider that the “bar” owner is afforded the opportunity to control and supervise the distribution and consumption of alcohol, while the beer distributor has little or no control over who will be the ultimate consumer of the beer once a legal sale to an adult has occurred.

Additionally, to support its position, the majority cites Reber v. Comm. of Pa., Liquor Control Bd., 101 Pa. Cmwlth.Ct. 397, 516 A.2d 440 (1986). Reber, supra, is the only Pennsylvania decision which holds a liquor retailer liable for injuries sustained by the intoxicated minor for which the liquor was purchased originally. In Reber, supra, our Commonwealth Court held that “the LCB not only violated section 493(1) by selling liquor to the underaged Mr. Geaneotes, but it also violated section 493(1) by selling liquor under circumstances in which it was likely that the liquor would reach the hands of other minors [including the injured minor, Mr. Reber], Under our Supreme Court’s reasoning in Smith v. Clark, [411 Pa. 142, 190 A.2d 441 (1963) ], we must find that the LCB breached a duty owed to Mr. Reber not to furnish liquor to minors either directly or through likely intermediaries.” Reber, 516 A.2d at 444.

Upon careful review, it is clear that the holding in Reber, supra, applies only when the initial purchase of alcohol is made by a minor and, thus, the liquor “retailer” violates Section 493(1) which is negligence per se making him liable for all resulting injuries of which the illegal sale was a proximate cause. Consequently, Reber, supra, is distinguishable from the case at bar which involves a legal sale of alcohol and its holding must be narrowly construed to apply only when the initial sale of the liquor was illegal, thus, identifying the purchaser as a “likely intermediary.”

Instantly, I do not believe that the beer distributor owed a duty to the minor appellant since the beer was sold legally to an adult who later, at a time and place outside of the distributor’s control, provided the minors with alcohol. See Old Express Limited Appeal, 70 Pa.Cmwlth.Ct. 382, 453 A.2d 679 (1982) (licensee not accountable for beer reaching hands of minors where details of purchase unknown and minors not within licensee’s sphere of control). Arguably, the sale of alcoholic beverages to an adult accompanied by minors is a common place occurrence which would not normally arouse a liquor retailer’s suspicions.

For example, consider the following fact pattern and analysis of it under the majority’s holding: A parent of a graduating high school senior orders a keg of beer from a beer distributorship and asks the distributor to deliver the beer. Unknown to the distributor, the adult is buying the beer for consumption by only the parents-adults in attendance at a graduation party held in honor of their respective sons’ and daughters’ graduation. Complying with the request, the distributor delivers the beer to the purchaser’s home, and, while setting up the keg-tap system, the distributor notices a large number of minors preparing for the graduation party. After providing the distributor with proper identification, the parent who ordered the beer pays for the keg with money given to him by one of the minors.

Under the majority’s rule, the beer distributor should not sell beer to this parent for fear of liability arising out of the possibility that a minor at the party may consume a portion of the beer, become intoxicated and somehow injure himself. Taking this example one step further, suppose that some of the minors, without their parent’s consent or knowledge, consume some of the beer and then one of the minors is injured in an automobile accident. Under the majority rule, a jury question now arises as to whether the distributor knew or should have known that the beverage was purchased for consumption by.minors. While the facts of this example clearly show that the beer was not purchased for the consumption of minors, it is possible, if not entirely probable, that a jury, applying hindsight, would find that the distributor is liable for the minor’s injuries since he should have known the beer was purchased, at least in part, for consumption by minors. I do not believe that a beer distributor who has legally sold alcohol to an adult should face possible liability for that adult’s independent action of providing alcohol to minors.

Imposition of a duty owed to the minor for whom the beer was originally purchased is not warranted in the context of a legal sale of alcohol. Additionally, I do not find support in the case law for the majority’s holding. Once the beer distributor or LCB sales clerk has ascertained the correct age of the purchasing adult, he has complied with the statutory duty under Section 493(1), and, consequently, he should be absolved from any future liability arising out of the adult purchaser’s independent act of supplying alcohol to minors.

In sum, I do not believe the lower court abused its discretion in granting the compulsory non-suit for the following reasons: 1) The lower court correctly denied the appellants’ motion to amend their complaint since the appellants’ motion was not timely filed and attempted to add a new party to the suit; and 2) The majority erroneously concluded that whether the distributor knew or should have known that the beer was being purchased for consumption by minors was an issue of fact for the jury to decide.

Additionally, since I believe that compulsory nonsuit was properly granted by the lower court, I find no reason to warrant a new trial “as to all defendants.” (Majority op., p. 295). Moreover, I see no reason to remand for a new trial to apportion causal negligence between the minor plaintiff and all remaining defendants, including the defaulting defendant, Kenny Watson.

While the jury verdicts did not specifically enumerate the proportions of causal negligence attributable to each joint tortfeasor as required under Pennsylvania’s comparative negligence statute, a new trial is not necessary since the verdicts, though incorrect in form, clearly evince the jury’s true intentions.

Under Pennsylvania law, “[vjerdicts which are not technically correct in form, but which manifest a clear intent on the part of the jury, may be corrected without resort to further deliberation or a new trial.” Goertel v. Muth, 331 Pa.Super. 179, 480 A.2d 303, 306 (1984), quoting Rusidoff v. DeBolt Transfer, Inc., 251 Pa.Super. 208, 211-212, 380 A.2d 451, 453 (1977).

Instantly, after hearing all the evidence, the jury entered two verdicts: The first verdict was entered in favor of defendants Duquesne Light Co., Pittsburgh, Chartiers & Youghiogheny Railway Co. and Norman Cousins declaring that the minor plaintiff was more than 50% responsible for his injuries; and the second verdict stated that the appellant was 70% negligent and Kenny Watson was 30% negligent. Additionally, when the court specifically asked: “Do you, the jurors, find that the causal negligence of Charles Scott Thomas is more than fifty percent of the total causal negligence of all defendants involved in the law suit?” (N.T. 272), the jurors answered affirmatively. Consequently, upon review of the record, the jury’s finding that the appellant was overwhelmingly responsible for his injuries is abundantly clear. Obviously, the jury believed that the plaintiff’s causal negligence was more than 50% of the total causal negligence. Therefor, the verdicts were sufficient for the purposes of the Pennsylvania comparative negligence statute, and I find no reason to order a new trial simply to enumerate specifically each defendant’s individual causal negligence.

      . Appellants have not alleged any error pertaining specifically to the verdict in favor of Norman Cousins.

      . After the jury verdict had been returned, appellants also filed a written motion for leave of court to amend the caption of their complaint. The record does not disclose that action was ever taken on this written motion.

      . The statute of limitations had run on June 25, 1984, two years after the juvenile had been injured. See: 42 Pa.C.S. § 5524(2).

      . 42 Pa.C.S. § 7102.

      . It was after this finding had been reported to the trial court that the jury was instructed to apportion the negligence of Kenny Watson and the minor plaintiff.

      . The appellants contend that they merely wish to substitute two allegedly similar business entities, a sole proprietorship and a corporation.

      . 47 Pa.S.A. § 4-493(1) provides that it shall be unlawful:
      For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.

      . As the majority notes, those cases which are cited in support of this proposition are not negligence cases. However, they are demonstrative of what constitutes a violation of Section 493 by a liquor licensee and, consequently, what constitutes negligence per se on the part of the liquor licensee. However, I am not convinced that a beer distributor should be held to the same standards as a liquor licensee.

      . Instantly, the majority believes the issue of foreseeability is whether the distributor knew or should have known the adult was purchasing the beer with the intent of distributing it to minors. However, the Reber court posed a much narrower question of foreseeability as follows: "We must, therfore, consider whether it is reasonable to expect a minor customer to share an illegal liquor purchase with other minors.” 516 A.2d at 444. In resolving the foreseeability issue, the court stated: "We cannot say that the prospect of [a minor] sharing his illegally purchased liquor with another minor, and the injury resulting, is so unforeseeable that [the injured minor] cannot assert that the LCB breached the duty owed him.” Reber, 516 A.2d at 444. Thus, the foreseeability question was limited in scope to impose liability only when a retailer knew or should have known a minor who purchased liquor illegally would share his contraband with another minor. The Reber court did not propose to answer the more expansive foreseeability question posed presently in the context of a legal sale of alcohol.

      . The Pennsylvania comparative negligence statute reads, in pertinent part, as follows:
      § 7102. Comparative negligence
      (a) General rule. — In all actions brought to recover damages for negligence resulting in death or injury to person or property, the fact that theplaintiff may have been guilty of contributory negligence shall not bar a recovery by the plaintiff or his legal representative where such negligence was not greater than the causal negligence of the defendant or defendants against whom recovery is sought, but any damages sustained by the plaintiff shall be diminished in proportion to the amount of negligence attributed to the plaintiff.
      (b) Recovery against joint defendant; contribution. — Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed. The plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery. Any defendant who is so compelled to pay more than his percentage share may seek contribution.
      Interpreting our comparative negligence statute, our Supreme Court, in Elder v. Orluck, 511 Pa. 402, 515 A.2d 517 (1986), stated:
      The Act adopts the notion that injured victims will obtain a recovery in all cases where the victim’s negligence contributing to the injuries is not greater than that of the defendant or defendants. The policy purposes of the Act are met by comparing the plaintiffs negligence to the combined negligence of all defendants. We hold, therefore, that under the provisions of the Pennsylvania Comparative Negligence Act, recovery by an injured plaintiff will be precluded only where plaintiffs negligence exceeds the combined negligence of all defendants. Further, each such defendant is liable for the plaintiffs damages in proportion to his degree of negligence even if the portion of negligence attributable to a particular defendant is less’ than the negligence of the plaintiff. Elder, 515 A.2d at 525.
      Accordingly, the lower court should have instructed the jury to determine the individual levels of causal negligence of the plaintiff and the defendants, including the defendant in default as it is clear that a defendant’s default status is irrelevant to the application of the statute.