author: KELLY, Judge:

text:
    549 A.2d 593
    COMMONWEALTH of Pennsylvania v. Thomas Willard GRAYSON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1988.
    Filed Oct. 21, 1988.

      Carmela R.M. Presogna, Assistant Public Defender, Erie, for appellant.

      Douglas J. Wright, Assistant District Attorney, Girard, for Com., appellee.
    Before CAVANAUGH, ROWLEY and KELLY, JJ.
   KELLY, Judge:

In this case, we are called upon to decide what degree of physical contact is necessary to constitute “indecent contact” within the meaning of that term in 18 Pa.C.S.A. § 3126 which defines the offense of indecent assault. Specifically, we must determine whether the brushing of appellant’s penis against the underside of the victim’s jaw constitutes touching as contemplated by the statute. Upon review of the record and the applicable authority, we conclude that the physical contact which occurred in this case constituted indecent contact within the meaning of the statute. Accordingly, we affirm.

The following is a summary of the factual and procedural history of this case. In the early morning hours of September 9, 1986, the victim, a fifty-three year old woman who is unable to speak, heard a knock on her apartment door. Because she was not tall enough to view through the peep-hole in the door, she opened it. Appellant, whom she had known for some years, entered her apartment, threatened and then sexually assaulted her. On the same day, appellant was arrested and charged with rape and indecent assault. The indecent assault charge stemmed from the appellant’s attempt to put his penis in the victim’s mouth. Appellant was tried by a jury which, on March 12, 1987, returned a verdict of guilty on the indecent assault charge only. On March 23, 1987, a motion for a new trial and/or arrest of judgment was filed. This motion was denied on April 15, 1987! On July 28, 1987, sentence was imposed which contained a term of confinement of eleven and one-half (11 ¥2) months to twenty-three (23) months. This timely appeal followed.

The principle issue on appeal is whether the evidence was sufficient to sustain a conviction of indecent assault. Specifically, appellant argues the trial court misapplied the definition of “indecent contact” in determining whether the evidence was sufficient to sustain the conviction. We do not agree.

In reviewing the sufficiency of the evidence in a criminal case, all of the evidence must be viewed in a light most favorable to the Commonwealth and all reasonable inferences therefrom must be drawn in favor of the Commonwealth. Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987); Commonwealth v. Capers, 340 Pa.Super. 136, 489 A.2d 879 (1985).

The pertinent part of 18 Pa.C.S.A. § 3126 (“Indecent Assault”), provides 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;

“Indecent contact” is defined in 18 Pa.C.S.A. § 3101 as:

Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person.

Appellant asserts that the “touching” in this case is not encompassed within the definition of indecent contact because his penis touched the underside of the victim’s jaw which is a non-sensate portion of the body. Specifically, appellant asserts that indecent assault will occur only if the sexual or other intimate part of the defendant’s body is touched by a sensate part of the victim’s body, e.g. hand or foot, for the purpose of arousing or gratifying sexual desire, in either person, without the victim’s consent, or if the sexual or other intimate part of the victim’s body is touched by a sensate part of the defendant’s body, e.g. hand or foot, for the purpose of arousing or gratifying sexual desire, in either person, without the victim’s consent.

In rejecting appellant’s claim, the trial court explained: In this case, the jury could have found that defendant caused the victim to touch a sexual part of defendant for the purpose of arousing or gratifying sexual desire in defendant. Regardless of whether the victim was forced to touch defendant’s sexual parts with a sensate or insensate portion of her body, the potential effect upon the victim was the type of harm sought to be punished by the crime of indecent assault.

(Trial Ct.Op. at 2).

Essentially, this case involves a question of statutory construction. In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. The legislature has directed that, “In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in construction inconsistent with the manifest intent of the General Assembly.” 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a) and (b) the legislature further explained that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.

1 Pa.C.S.A. § 1921 (emphasis added). Words and phrases in a statute are to be construed according to their common meaning and accepted usage. 1 Pa.C.S.A. § 1903(a); see also Fireman’s Fund Ins. Co. v. Nationwide Mut. Ins. Co., 317 Pa.Super. 497, 464 A.2d 431 (1983). Criminal statutes are to be strictly construed in favor of the defendant; however, the rule of strict construction does not mandate that words of a criminal statute be relegated to their narrowest meaning possible. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140 (1987). Language which is capable of more than one meaning can be clear and unmistakable in the context of its usage by the selection of the meaning which is neither forced nor strained. Cf. Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 516, 454 A.2d 1, 5 (1982). Moreover, in construing statutes, courts must presume that the legislature did not intend absurd or unreasonable results. 1 Pa.C.S.A. § 1922(1).

We are called upon to construe the word “touch” as it is used in 18 Pa.C.S.A. § 3101 to define “indecent contact.” Specifically, appellant is attempting to distinguish between “sensate” and “non-sensate” parts of the body in determining whether “indecent contact” occurred. As “touch” is not specially defined by the statute and has no special legal meaning in this context, we turn to the dictionary to determine the common meaning and accepted usage of the word “touch”:

Touch: to perceive by the sense of feeling; to come in contact with in any manner, but particularly by means of the hand, finger, etc____

The Consolidated Webster Encyclopedic Dictionary 762 (1961). Appellant would construe “touch” as used in the statute to its more limited sense, i.e. “by means of the hand, finger____” We reject this construction as absurd and unreasonable.

Appellant’s endeavor to draw a distinction between sen-sate and non-sensate parts of the body in order to limit criminal liability under the applicable statute is specious. In Commonwealth v. Capers, supra, this Court reviewed the origin of 18 Pa.C.S.A. § 3126: “[t]he separate crime of indecent assault was established because of a concern for the outrage, disgust, and shame engendered in the victim rather than because of physical injury to the victim.” 340 Pa.Superior Ct. at 143, 489 A.2d at 882. The trial court, in the instant case, relied on Commonwealth v. Capers, supra, stating: “... the potential effect upon the victim was the type of harm sought to be punished by the crime of indecent assault.” (Trial Ct. Op. at 2). It is simply feckless to suggest that the contact was any less outrageous or offensive because appellant’s penis came into contact with his victim’s jaw rather than her hand.

Moreover, in the instant case, the victim apprehended appellant’s penis coming in contact with the underside of her jaw. She apprehended its contact through tactile impressions conveyed to her brain via her nervous system. Despite appellant’s assertions to the contrary, we take judicial notice of the undeniable fact that the underside of the jaw is a sensate part of the body. Thus, we find appellant’s distinction between sensate and non-sensate parts of the human body for the purpose of defining indecent contact to be contrary to anatomic science as well as the legislative intent of the statute.

Finally, we note that if such contact occurred, but due to being unconscious, under the influence of anesthetics, or suffering from nerve damage, etc., the victim was incapable of tactile sensate perception of the contact (though the contact was otherwise established), such contact would be no less offensive and would still fall within the proscription of the statute. The statute is addressed to indecent contact; tactile sensory awareness by the victim is not mandated by the statute, and we decline to engraft such a requirement upon it.

Properly construed, the statute provides that if any part of a victim’s body is brought into contact with a sexual or intimate part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact. Likewise, if a sexual or intimate part of the victim’s body is brought into contact with any part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying the sexual desire in either person, such contact constitutes indecent contact. With the statute thus understood, it is evident that the evidence was plainly sufficient to sustain the verdict.

Based upon the foregoing, the judgment of sentence is affirmed.

      . Appellant also raised an issue of ineffectiveness of counsel for failure to file timely his post-verdict motion. A review of the record reveals the post-verdict motion was filed timely, hence appellant’s claim of ineffectiveness of counsel is without merit.

      . "Touch" is not defined in either Black’s Law Dictionary (5th ed. 1979) or Bouvier’s Law Dictionary (Rawle’s 3d Rev. 1914).

      . See also Webster’s Ninth New Collegiate Dictionary 1246 (1986) (touch: "1. to bring a bodily part into contact with esp. so as to perceive through the tactile sense ... 2. to strike or push lightly esp. with the hand or foot or an implement”); X(l) Oxford Dictionary, 180 (1926) (touch: “1. the action or act of touching (with the hand, finger, or other part of the body)”); Webster’s American Dictionary of the English Language 1163 (Goodrich rev. 1860) (touch: “to be in contact with; to be in a state of junction, so that there is no space between them").


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    549 A.2d 597
    Antonette PAPARELLI, Administratrix of the Estate of Paul E. Paparelli, Deceased, and Antonette Paparelli, in her Own Right v. GAF CORPORATION; Raymark Industries, Inc.; Celotex Corporation; Keene Building Products Company; Eagle-Picher Industries, Inc.; Owens-Corning Fiberglas Corporation; Owens-Illinois, Inc.; Garlock, Inc.; A-Best Products Company, Inc.; H.K. Porter Company, Inc.; The Gage Company; Gateway Industrial Supply; D.A.R. Industrial Products, Inc.; Pittsburgh Corning Corporation; Armstrong World Industries; and Nicolet Industries, Inc. Appeal of A-BEST PRODUCTS COMPANY, INC., and the Gage Company.
    Superior Court of Pennsylvania.
    Argued June 29, 1988.
    Filed Oct. 21, 1988.

      Concetta Silvaggio, Pittsburgh, for A-Best, appellant.
    Bryan Campbell, Pittsburgh, for Gage Co., appellant.
    Thomas W. White, Pittsburgh, for Paparelli, appellee.
    Jane Charlton, Pittsburgh, for Raymark Industries, appellee.
    John A. Bacharach, Pittsburgh, for Garlock, Inc., appellee.
    Dale K. Forsythe, Pittsburgh, for Gateway, appellee.
    David P. Helwig, Pittsburgh, for D.A.R., appellee.
    Thomas R. Wright, Pittsburgh, for Eagle-Picher and Owens-Corning, appellees.
    Before BROSKY, JOHNSON and MELINSON, JJ.
   JOHNSON, Judge:

A-Best Products Company, Inc. (A-Best), and the Gage Company (Gage), two of sixteen original defendants in this action, seek appellate review of the the order entered April 23, 1987 denying their respective motions for summary judgment. We affirm.

On May 8, 1985, plaintiff, Antonette Paparelli, brought this civil suit claiming that her decedent, Paul E. Paparelli, died on July 8, 1984 from his exposure to asbestos-containing products while employed at Babcock & Wilcox in Beaver County prior to 1975.

All defendants filed motions for summary judgment on the basis that there had been a failure to identify the use of their products by plaintiff’s decedent. No defendant opposed the motions for summary judgment filed by any other defendant. After oral argument on February 18, 1987, by order dated March 5, 1988, President Judge Robert C. Reed of the Court of Common Pleas of Beaver County denied the motion for summary judgment of the H.K. Porter Company, Inc. The motions for summary judgment of Gage and A-Best were denied by order dated April 23, 1987. The motions for summary judgment of all other defendants in this action were granted on either March 5, 1987 or April 23, 1987. Consequently, the three remaining defendants in this action are the H.K. Porter Company, Inc., and the present appellants, Gage and A-Best.

On May 11, 1987, A-Best filed a Motion for Reconsideration, claiming that any sales made to Babcock & Wilcox consisted primarily of asbestos-containing cloth manufactured and supplied by Raybestos-Manhattan, predecessor to Raymark Industries, Inc.

On the same date, Gage also filed a Motion for Reconsideration. Gage argued that the trial court had misapplied the law with respect to the standards to be applied in deciding motions for summary judgment. Both motions were denied on May 20, 1987. This timely appeal followed.

Appellants raise three questions:

1. WAS THE LOWER COURT’S OVERRULING OF MOTIONS FOR SUMMARY JUDGMENT INAPPROPRIATE WHERE PLAINTIFF DID NOT TIMELY FILE ANY RESPONSE TO SAID MOTIONS?
2. DID THE LOWER COURT APPLY THE INCORRECT TEST FOR THE EXISTENCE OF A QUESTION OF MATERIAL FACT IN RULING ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT IN AN ASBESTOS CASE OR, ALTERNATELY, MISAPPLY THE CORRECT STANDARD?
3. WHETHER THE LOWER COURT ERRED IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT PURSUANT TO PA.R.C.P. 1035 WHICH IN EFFECT ELIMINATED THE APPELLANTS’ RIGHTS TO CONTRIBUTION AND INDEMNITY. IN ADDITION, IN GRANTING THE MOTIONS FOR SUMMARY JUDGMENT, WHETHER THE LOWER COURT ERRED FOR THEY PREVENTED THE APPELLANTS FROM PROVING DIRECT LIABILITY TO THE PLAINTIFF OF VARIOUS DEFENDANTS?

We do not address appellants’ first two issues. It is well-settled in this Commonwealth that the denial of a motion for summary judgment is interlocutory and not appealable. Fireman’s Fund Insurance Co. v. Nationwide Mutual Insurance Co., 317 Pa.Super. 497, 502, 464 A.2d 431, 434 (1983). However, since an order granting summary judgment in favor of one defendant has the effect of dismissing that defendant and, as such, is final and hence appealable, we will address appellants’ last issue. See Pa.R.A.P. 301.

Appellants argue that they have filed cross-claims asserting a claim for indemnification and contribution pursuant to Pa.R.C.P. 2252(d). Pennsylvania Rule of Appellate Procedure 2252(d) provides a short-cut procedure for disposing of matters involving numerous parties with divergent interests. Appellants contend the decision of the trial court undermines the well-established policy of the courts of this Commonwealth to avoid multiple law suits. According to appellants they will be forced to file separate lawsuits to protect their rights and to adjudicate all claims instead of adjudicating all claims in a single action.

This record is devoid of any opposition by the present appellants to the entry of summary judgment in favor of the defendant appellees. In fact, no defendant opposed the motion of any other defendant, either by filing a brief or offering oral argument in opposition to the motions or by joining plaintiffs brief or oral argument. It was only after their own motions for summary judgment were denied that A-Best and Gage sought to raise potential issues for contribution and indemnity in their Motions for Reconsideration. Issues not timely or properly raised before the trial court are not properly preserved for appellate review. Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 187-189, 527 A.2d 1012, 1017 (1987); McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 217-220, 527 A.2d 1028, 1032-1033 (1987); Bryant v. Girard Bank, 358 Pa.Super. 335, 344, 517 A.2d 968, 973 (1986). We will not consider such issues on appeal.

Appellants, in essence, contend that the trial court erred in placing the burden of proof upon them to set forth facts showing that a genuine issue of material fact existed. However, as Pa.R.C.P. 1035(d) provides, the non-moving party in response to a properly supported motion for summary judgment must in response “by affidavit or as otherwise provided in this rule, ... set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.” As is noted in Goodrich-Amram, Procedural Rules Service (2d) § 1035(d):5, page 460:

The purpose of this amendment [Pa.R.C.P. 1035(d) ] is to assure that the motion for summary judgment may ‘pierce the pleading’ and to require the opposing party to disclose the facts of his claim or defense.

In Roland v. Kravco, Inc., 355 Pa.Super. 493, 513 A.2d 1029 (1986), the non-moving party, as did A-Best and Gage in the present case, had the opportunity, but failed, to respond to a motion for summary judgment. This Court commented:

Rule 1035(d) requires the non-moving party to respond and set forth specific facts showing that there is a genuine issue for trial. Our rules of civil procedure are designed to eliminate the poker game aspect of litigation and compel the players to put their cards face up on the table before trial begins.

355 Pa.Super. at 501, 513 A.2d at 1034.

The Rules further provide in Pa.R.C.P. 1035(b) that this response is required prior to the day of hearing. The hearing and oral argument on the motions for summary judgment were held February 18, 1987. The motions for reconsideration were not filed until May 13, 1987. Consequently, we find that appellants, A-Best and Gage, have neither properly nor timely preserved the issues of contribution and/or indemnity for appellate review. Accordingly, the judgment entered May 20, 1987 in the Court of Common Pleas of Beaver County is affirmed.

JUDGMENT AFFIRMED.

      . Appellants pleaded only a very general, boilerplate crossclaim against all defendants. Neither factual averments nor specific allegations were included. We note that in a complaint for contribution, an original defendant must plead sufficient facts to sustain a cause of action against a new defendant. Bald assertions will not suffice. Mattia v. Sears Roebuck & Co., 366 Pa.Super. 504, 508-509, 531 A.2d 789, 792 (1987).

      . Several appellees correctly note that "[¡Inherently, a 'motion for reconsideration’ requests the court to take a second look at the law applicable to the evidentiary record on which the court predicated its original decision, not some untimely-proffered supplemental record.”

      . Pa.R.C.P. 1035(d), in part, provides:
      When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of his pleading, but his response by affidavits, or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

      . Appellants argue that their "right" to seek contribution and/or indemnity in this suit has been nullified by the entry of summary judgment. Contribution, however, only arises where two or more parties combine to produce the plaintiff's harm, where the parties are each liable to the plaintiff. Mattia, supra. The trial court properly determined that the summary judgment record would not support a factual basis upon which to impose liability against those granted summary judgment. No “right" of contribution would arise except among those who are liable to plaintiff as joint tortfeasors. If a party has no liability to a plaintiff, that party cannot be a joint tortfeasor. Neither would there be a legally cognizable claim for indemnity. Indemnity seeks on equitable grounds to shift liability from one secondarily liable to another, primarily liable to plaintiff. Id.; Svetz for Svetz v. Land Tool Co., 355 Pa.Super. 230, 513 A.2d 403 (1986).


author: OLSZEWSKI, Judge:

text:
    549 A.2d 600
    Ann B. ESSLINGER, Administratrix of, for and on Behalf of the Estate of James E. Esslinger, Deceased, For the Maintenance of an Action Under the Pennsylvania Survival Statute and Ann B. Esslinger, Administratrix of the Estate of James E. Esslinger, Deceased, For and on Behalf of all Entitled to Recover Under the Pennsylvania Wrongful Death Statute, Appellant, v. SUN REFINING AND MARKETING COMPANY, a Corp. of the Commonwealth of Pennsylvania; Carl E. Widell & Son, Inc., a Corp. of New Jersey; the Milwhite Co., Inc., a Corp. of the State of Texas; Max B. Miller & Co., Inc., a Corp. of Delaware; Sun Company, Inc., a Corp. of Delaware; Sun Company, Inc., a Corp. of the Commonwealth of Pennsylvania; Sun Oil Company, a Corp. of Delaware; Sun Exploration and Production Company of Pennsylvania, Inc., a Corp. of the Commonwealth of Pennsylvania; Sun Exploration and Production Company, a Corp. of Delaware; Frederick Baker, Individually and t/a Baker Construction Company and Baker Construction Company; E.I. Dupont Denemours & Company; Coyne International Enterprises Corp.; Workrite Uniform Company, and Rubin Brothers, Inc. Ann B. ESSLINGER, Administratrix of, for and on Behalf of the Estate of James E. Esslinger, Deceased, for the Maintenance of an Action Under the Pennsylvania Survival Statute and Ann B. Esslinger, Administratrix of the Estate of James E. Esslinger, Deceased, For and on Behalf of all Entitled to Recover Under the Pennsylvania Wrongful Death Statute, v. SUN REFINING AND MARKETING COMPANY, A Corporation of the Commonwealth of Pennsylvania, c/o C.T. Corporation Systems; Carl E. Widell & Son, Inc., A Corporation of the State of New Jersey; the Milwhite Co., Inc., A Corporation of the State of Texas; Max B. Miller & Co., Inc., A Corporation of the State of Delaware; Sun Company, Inc., A Corporation of the State of Delaware; Sun Company, Inc., A Corporation of the State of Pennsylvania; Sun Oil Company, A Corporation of the State of Delaware; Sun Exploration and Production Company of Pennsylvania, Inc., A Corporation of the State of Pennsylvania; Sun Exploration and Production Company, A Corporation of the State of Delaware; Frederick Baker, Individually and t/a Baker Construction Company and Baker Construction Company; E.I. Dupont Denemours & Company c/o C.T. Corporation; Coyne International Enterprises Corporation; Workrite Uniform Company; and Rubin Brothers, Inc. Appeal of Frederick K. BAKER, Individually and t/a Baker Construction and Baker Construction Company.
    Superior Court of Pennsylvania.
    Argued Sept. 15, 1988.
    Filed Oct. 28, 1988.

      Susan Danielski and Christopher C. Fallon, Jr., Philadelphia, for Esslinger, appellant.
    William E. Gordon, Jr., Wilmington, for Dupont, appellee.
    William F. Hosten, II, Media, and Gary S. Seflin, Philadelphia, for Baker, appellant and appellee.
    George J. McConchie, Media, for Workrite, appellee.
    Alan Belfus, Philadelphia, for Coyne, appellee.
    Thomas R. Harrington, Philadelphia, for Rubin, appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

Appellant Frederick Baker, individually and t/a Baker Construction and Baker Construction Company (hereinafter “Baker”), appeals from an order granting appellant Ann B. Esslinger’s (hereinafter “Esslinger”) petition to open judgment of non pros. Esslinger cross-appeals from the trial court’s denial of her motion to strike the judgment of non pros. We affirm.

On April 1, 1985, Esslinger, Administratrix of the Estate of James E. Esslinger, filed a praecipe for summons against various defendants including Baker. Esslinger commenced this action as a consequence of the injuries sustained by and the resultant death of James Esslinger in an explosion and fire at the Tin Refinery on March 22, 1983. On August 29, 1985, Baker filed a document captioned as “Rule to File Complaint” wherein Baker sought to have a Rule entered upon Esslinger to file a complaint within twenty (20) days or suffer a judgment of non pros. Subsequently, on December 17, 1985, a praecipe to enter judgment of non pros was filed on behalf of Baker. A notation on the record indicates that notice pursuant to Pa.R.Civ.P. 236 was given.

On March 5, 1987, plaintiff filed a petition to open or strike the judgment of non pros. An amended petition was filed on March 9, 1987. Following the filing of answers to the petition, the trial court granted the petition to open the judgment and denied the petition to strike. Esslinger filed a complaint on April 20, 1987. A timely appeal from the order granting the petition to open was filed by Baker on May 8, 1987, no. 1508 Philadelphia 1987. Esslinger then filed the appeal listed at no. 1375 Philadelphia 1987 from the order denying her petition to strike the judgment.

Baker asserts that the trial court abused its discretion in opening the judgment of non pros. A petition to open a judgment of non pros is directed to the equitable powers of the court Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986). The decision to grant or refuse a petition to open a judgment of non pros rests within the discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. First Valley Bank v. Steinmann, 253 Pa.Super. 8, 384 A.2d 949 (1978).

In support of his argument that the trial court erred in granting the petition to open, Baker submits that the petition to open was untimely as it was filed more than fifteen (15) months after the entry of the judgment of non pros. Baker further argues that no reasonable explanation has been offered to excuse the failure to promptly move to open the judgment, nor has plaintiff established a reasonable explanation for her failure to file a complaint. Esslinger contends that she has met the requirements for the opening of judgment of non pros.

The three requirements that must be satisfied in order to open a judgment of non pros are firmly established: (1) the petition to open must be promptly filed; (2) a reasonable explanation or excuse must be offered for the petitioner’s defective conduct; and (3) facts constituting grounds for the petitioner’s underlying cause of action must be alleged. Wurster v. Peters, 318 Pa.Super. 46, 464 A.2d 510 (1983); Geyer v. Steinbronn, supra.

Clearly, the record indicates a significant delay in the filing of the petition to open the judgment. We find, however, for the reasons that follow, that the trial court did not abuse its discretion in granting the petition to open. As noted by the trial court, the timeliness of the petition to open should be measured in terms of the reasonableness of the explanations given for the delay and not merely the fact or length of the delay itself. Alston v. Philadelphia Electric Company, 337 Pa.Super. 46, 486 A.2d 473 (1984). “The test regarding delay is not based upon the length of the delay, but upon the excuse for the delay.” Versak v. Washington, 359 Pa.Super. 454, 519 A.2d 438 (1986), citing Butterbaugh v. Westons Shopper City, Inc., 300 Pa.Super. 331, 446 A.2d 641 (1982).

In support of its finding that the petition to open was timely filed, the trial court took into consideration Esslinger’s reliance on her counsel’s representations that the lawsuit was being diligently pursued; the fact that Esslinger was not aware of the demand thai a complaint be filed until well after she became aware of the entry of the judgments of non pros; and the fact that after she became aware of the real status of the case, Esslinger retained new counsel, who filed a petition to open the judgment. Opinion, McGovern, J., April, 7, 1988, at 4-7.

Next, the trial court determined that the failure to file a complaint was a result of plaintiff’s counsel’s non-feasance. While it is true that a litigant is generally bound by the actions or inactions of his/her counsel, a litigant placing his/her case in the hands of a reputable counsel should not be turned out of court if the delay complained of was almost entirely on account of the neglect or oversight of counsel. White v. Alston, 231 Pa.Super. 438, 331 A.2d 765 (1974); Poluka v. Cole, 222 Pa.Super. 500, 295 A.2d 132 (1972). Attorney neglect may provide a sufficient basis on which to justify a party’s failure to respond to process, particularly where there have been no negotiations or attempts by the opposing party to draw the attention of counsel to the case. Buxbaum v. Peguero, 335 Pa.Super. 289, 484 A.2d 137 (1984). “In fact, pertinent case law reveals that the power to open judgment should be exercised when the default is the result of oversight or mistake by counsel.” Versak, supra, 359 Pa.Super. at 458, 519 A.2d at 441, citing Commonwealth Department of Transportation v. Nemeth, 497 Pa. 580, 584, 442 A.2d 689, 691 (1982). While it does appear from the record that some correspondence took place between Esslinger’s counsel and that of the various defendants (including Baker) with respect to the course of the litigation, nothing on the record indicates that knowledge of this correspondence could be attributed to Esslinger.

Finally, Esslinger has filed a complaint which establishes that she has sufficient facts to support the underlying cause of action. This factor was recognized by the trial court. Because Esslinger met all of the criteria for opening the judgment, the trial court did not err in opening the judgment.

Esslinger cross-appeals from the order denying the petition to strike. A judgment of non pros may only be stricken when there are defects apparent on the face of the record. Ruehl v. Maxwell Steel Co., 327 Pa.Super. 39, 474 A.2d 1162 (1984). Esslinger argues that the trial court committed an error of law in refusing to strike the judgment because of three defects in the record: (1) the rule to file a complaint was not signed by the prothonotary; (2) the appellant was not properly served with a copy of a properly issued rule to file a complaint; and (3) the appellant did not personally receive actual notice of Baker’s intent to secure a judgment of non pros, nor did her attorney of record receive timely written notice.

Esslinger contends that the rule to file a complaint must be signed by the prothonotary. She cites the language of Pa.R.C.P. 1037(a): “If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint.” (Emphasis added.) Esslinger argues that the document is defective because the only signature upon it is that of Baker’s counsel, who did not have the authority to sign it. Our interpretation of the rule and scrutiny of the record, however, belie Esslinger’s contention. The rule does not overtly mandate a signature by the prothonotary, and we refuse to interpret the rule as requiring a signature. While in most cases the prothonotary may sign the document, we do not find that the absence of a signature, when the record reflects that the prothonotary entered the rule to file a complaint, rises to the level of a defect sufficient to support striking the judgment of non pros.

Next, Esslinger alleges as a defect the fact that she was not properly served with a copy of a properly issued rule to file a complaint. She asserts that the record does not contain sworn proof that a properly issued rule was served on her or her counsel and such service is required under Pa.R.C.P. 1037(a). Because of this defect, appellant argues that the prothonotary lacked authority to issue the judgment of non pros. Hershey v. Segro, 252 Pa.Super. 240, 381 A.2d 478 (1977).

We find, however, that Hershey can be factually distinguished from the instant situation. In Hershey, judgment non pros was granted even though the moving party had not entered a rule to file a complaint. The judgment of non pros was stricken for this reason. Id., 252 Pa.Superior Ct. at 243, 381 A.2d at 479.

Further, we determine that Esslinger’s argument is meritless because Esslinger’s counsel testified that he actually received the rule to file a complaint. After testifying that he had received a rule to file a complaint from other defendants in the action (signed by the office of Judicial Support), appellant’s counsel, Mr. McFadden, testified as follows:

Q. Okay. And what did you receive with that letter?
A. I received a document in the Esslinger case that was signed by William F. Holsten, an attorney here in Media, on behalf of Frederick K. Baker Company.
Q. Would you read that document please?
A. The top of the document has the Court of Common Pleas of Delaware County, Pennsylvania, Civil Action Law and then recited are the names of the parties, Ann B. Esslinger versus Sun Refining and Marketing Company et al.
Q. Would you move on beyond the parties and tell us what the document reads?
A. After that there’s a caption that says, “Rule to file a Complaint to the Office of Judicial Support and a rule upon the Plaintiff in the above entitled case to file a Complaint within twenty days from service hereof or otherwise suffer a judgment of non pros.”
Q. Is there any further writing on the bottom of that document?
A. No.
Q. Is there a rule to file a Complaint that is attached to that document which was signed by a person in the Office of Judicial Support?
A. No.

Transcript at 12-13. Because Esslinger was actually served with the rule to file a complaint, therefore, Esslinger’s contention is without merit. See Storm v. Golden, 338 Pa.Super. 570, 488 A.2d 39 (1985).

Finally, Esslinger argues that neither she nor her attorney of record received proper notice of Baker’s intent to secure a judgment non pros. She contends that because a judgment of non pros is a default judgment, Pa.R.C.P. 237.1 requires that written notice of intention to file a praecipe for the judgment must be mailed to the party and her counsel ten days before the entry of judgment. She maintains that she never received this written notice and that her counsel received a copy of the praecipe for entry of judgment on the same day that it was filed.

Our review of the explanatory note that follows Pa.R.C.P. 237.1, however, indicates that the Rule does not apply to the entry of a judgment non pros:

A familiar illustration of a situation where notice is not required is a judgment of non pros under Rule 1037(a). Where an action is commenced by a writ of summons without a complaint, a defendant by praecipe may enter a rule as of course upon the plaintiff to file a complaint within twenty days after service of the rule or suffer judgment of non pros. Upon failure to file the complaint within the time fixed, the defendant can proceed by praecipe to have a judgment of non pros entered by the prothonotary. Here, a further notice of intent to enter the default would be unjustified. The plaintiff has already received a twenty-day notice.

The trial court also utilized this portion of the explanatory notes in its analysis. It correctly found that because Esslinger received actual notice twenty days prior to the entry of judgment, it would be unnecessary to require an additional ten days’ notice. As there are no defects on the face of the record, the petition to strike was properly denied.

ORDER AFFIRMED.


author: WATKINS, Judge:

text:
    549 A.2d 605
    Furman RALEIGH, Appellant, v. CREDIT MANAGEMENT COMPANY.
    Superior Court of Pennsylvania.
    Argued July 25, 1988.
    Decided Sept. 19, 1988.
    Reargument Denied Nov. 16, 1988.

      David B. Washington, Pittsburgh, for appellant.
    Kevin G. Sasinoski, Pittsburgh, for appellee.
    Before McEWEN, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This case involves an appeal from the judgment of the Court of Common Pleas of Allegheny County, Civil Division, entered on December 8, 1987. We affirm.

In this case, the appellant, Furman Raleigh, purchased an automobile by way of an installment sales agreement and obtained financing through the Churchill R & D Federal Credit Union in 1983. He became delinquent in his payments, making his last payment January 31, 1984. No other payments were made on the vehicle. On July 7, 1984, Churchill R & D Credit Union turned the appellant’s delinquent account over to the Credit Management Company for collection. On August 9, 1984, the automobile was repossessed and on that same day Notice of Repossession and impending sale of the car was sent to appellant by certified mail. The automobile was sold at public auction on August 24, 1984.

Appellant contends that the automobile was sold prior to the expiration of the 15-day notice provision requirements of the Motor Vehicle Sales Financing Act, 69 Pa.S.A. 623-626.(MVSFA) The issue appellant raises in this appeal is whether, in computing the 15-day holding period required by the MVSFA, the date of mailing is to be excluded.

Section 625(A) of the Motor Vehicle Sales Financing Act states:

“When repossession of a motor vehicle which is the subject of an installment sales contract is effected within the Commonwealth of Pennsylvania otherwise than by legal process. The holder shall retain such repossessed motor vehicle within the county in which it was retaken for a period of 15 days after mailing of notice of repossession of the buyer.”

This section makes it clear that the date of mailing is to be excluded when computing the time the holder must retain the automobile prior to sale. Therefore, Credit Management mistakenly sold the automobile prematurely as it was sold on the 15th day after the notice was mailed.

In enacting the MVSFA, the Pennsylvania legislature determined and declared as a matter of legislative finding:

(a) That an exhaustive study by the Joint State Government Commission discloses nefarious, unscrupulous and improper practices in the financing of the sale of motor vehicles in this Commonwealth which are unjustifiably detrimental to the consumer and inimical to the public welfare. Such practices prevail not only among some sellers, but also among some sales finance companies and some banks, which acquire contracts arising out of installment sales of motor vehicles, and which frequently influence the credit policies of sellers.
(c) That consumers, because of these legal technicalities and because of their unequal bargaining position, are at the mercy of unscrupulous persons and are being intolerably exploited in the installment purchase of motor vehicles. Such exploitation is evident in the unfair provisions of the installment sale contract, exorbitant charges for credit, extortionate default, extension, collection, repossession and other charges, unconscionable practices respecting execution of contracts, refinancing of contracts, repayment, refunds, insurance, repossession and redemption.
(d) the practices enumerated, and other equally pernicious, have existed to such an extent that regulation of the installment selling of motor vehicles is necessary to the adequate protection of the public interest. Adequate regulation of installment selling must include control of the functions of selling and financing of motor vehicles, whether exercised by the same of different persons.
Therefore, it is hereby declared to be the policy of the Commonwealth of Pennsylvania to promote the welfare of its inhabitants and to protect its citizens from abuses presently existing in the installment sales of motor vehicles, and to that end exercise the police power of the Commonwealth to bring under supervision of the Commonwealth all persons engaged in the business of extending consumer credit in conjunction with the installment sale of motor vehicles; to establish a system of regulation for the purpose of insuring honest and efficient consumer credit service for installment purchases of motor vehicles; and to provide the administrative machinery necessary for the effective enforcement. 69 P.S. § 602.

We are convinced that the MVSFA “was not intended to create a comprehensive system of regulation for the motor vehicle sale industry.” Whiteman v. Dengan Cheverolet Inc., 217 Pa.Superior Ct. 424, 272 A.2d 244 (1970). “The Act was passed instead to correct the abuses as set forth above in the ‘Findings and declarations of policy’ section of the Act and those findings and declarations must be given weighty consideration when the Act is being interpreted.” Industrial Valley Bank and Trust Co. v. Nash, 349 Pa.Superior Ct. 27, 502 A.2d 1254 (1985).

In this case the appellant is claiming $2,500.00 in damages because the Credit Management Company sold his repossessed vehicle several hours prior to the expiration of the 15 day notice requirement of the MVSFA. However, given the facts of this case, this court finds that it cannot, in equity and good conscience, award damages based on appellant’s claims.

The MVSFA was enacted into law to address egregious conduct. After thoroughly reviewing the record, we find that the Credit Management Company acted in a good faith belief that they were complying with the act, that an ambiguity in the language of sections 623(D) and 625 of the MVSFA led the Credit Management Company into mistakenly believing that they were within their rights, that Credit Management’s conduct was not of the type the MVSFA was designed to protect against, that the infraction complained of resulted in a “de minimis” violation of the Act as the vehicle was sold only hours before the expiration of the 15th day, that the debtor/appellant disregarded all notice sent to him by Credit Management, never indicated any intention to redeem the vehicle, nor proved he suffered any damages because of the early sale of the automobile.

As for Credit Management’s conduct, the record indicates the the Collection Manager, Rochell Patterson, believed that they were in compliance with the Act. Rochell Patterson’s testimony during cross-examination reads:

Q. Miss Patterson, I take it that in your capacity with Credit Management dealing with automobile financing and repossessions all the time, you’re familiar, are you not, with the divisions of the Pennsylvania Motor Vehicle Sales Finance Act as far as notice requirements?
A. Yes.
Q. And am I correct that 15 days’ notice prior to the sale is required by that Act?
A. The Act reads that the person will be given 15 days from the mailing of such notice of repossession.
Q. So a person is — I’ll ask the question again then. Is a person entitled to 15 days notice prior to the sale of the vehicle?
A. Yes, sir.
Q. And I take it that based upon your initial response to my question, you’re including the date of August 9, 1984 in your count of the 15 days?
A. Yes, sir.
Q. You don’t start counting from the date after it was mailed?
A. Well, the letter was mailed already to Mr. Raleigh on the morning of August 9 and, therefore would have been through the post office. The Motor Vehicle Sales Financing Act specifically states that they would be given 15 days from the date of mailing such notice; so yes, we do include that day.
(Trial transcript at pp. 12, 13)

After reviewing the applicable MVSFA provisions, it is evident that the language of the Act can lead to confusion when trying to determine whether the mailing date is to be included or excluded when calculating the holding period.

Section 623(D) of the Act, “Repossession ”, reads in pertinent part, that the holder “shall give notice to the buyer of the holder’s intent to re-sell the motor vehicle at the expiration of fifteen (15) days from the date of mailing such notice.” Section 625 of the Act, “Redemption and termination of contract after repossession,” reads in pertinent part, that “the holder shall retain such repossessed motor vehicle within the county in which it was retaken for a period of fifteen (15) days after mailing of notice the repossession to the buyer.” Therefore, it is easily understood how this section can lead to the type of mistake made by the creditor in this case. We therefore now hold that the notice required by Section 625 of the MVSFA controls.

As for Credit Management’s conduct concerning this case, we find that Credit Management attempted to contact Mr. Raleigh through the mails and by telephone concerning the impending sale of this automobile.

Rochelle Patterson’s testimony during direct examination contained the following:

Q. What steps does your company take when a car is repossessed to inform the owner of the car of their rights?
A. We immediately send a notice of repossession by certified mail to the last known address of the resident.
Q. Did you take such steps with Mr. Raleigh?
A. Yes, sir.
Q. What happened after sending that envelope to the best of your recollection in Mr. Raleigh’s particular repossession case?
A. After the notice was sent, normally the post office will give these people a certain period of time to pick up the certified notice. On August 21 I got a call from Mr. Raleigh’s attorney at that time, Mr. Raymond Shields. He wanted to know exactly how much we needed for Mr. Raleigh to redeem the vehicle as well as what the bids were on the vehicle as of that date.
I did inform him of the bids, told him that Mr. Raleigh could redeem the car by matching the high bid that we had on the car and that the vehicle would be sold on August 24.
Q. Did you receive any communication from Mr. Raleigh himself?
A. I know I tried to reach Mr. Raleigh several times and left messages at his residence. On August 14, 16, and 12 there were messages left for him, and then on August 21 I did get the call from his attorney.
On August 23 at 5:00 p.m., when Mr. Raleigh did not make an indication that he was redeeming the car, we made preparations for sale of the vehicle on the morning of August 24.
Q. And when was the car actually sold?
A. August 24.

As for Mr. Raleigh’s conduct, we find that he did not make any real attempt to protect his rights concerning this automobile, other than having his attorney inquire as to the bid price on the vehicle.

Furman Raleigh’s testimony during cross-examination reads as follows:

Q. Mr. Raleigh, did Credit Management attempt to notify you of the sale of the vehicle by certified mail?
A. Not to my knowledge.
Q. Mr. Raleigh, I’d like to show you a letter. Who is that letter addressed to, and what is the name it’s addressed to?
A. It’s addressed to Furman Raleigh, 7242 Lincoln Road in Verona.
Q. Is that where you live, Mr. Raleigh?
A. Yes, it is.
Q. What’s the date on the post mark?
A. August 9.
Q. Would that be in the year 1984, sir?
A. Yes.
Q. And was that sent by certified mail to you?
A. I never received that.
Q. What’s the post office marking on that letter, Mr. Raleigh?
A. This stamp is—
Q. No. What is the post office explanation for nondelivery?
A. It’s unclaimed, but how would you know that? That could have been put there by anyone.

We also recognize, that though not dispositive of Mr. Raleigh’s ability to redeem the automobile, Mr. Raleigh filed for bankruptcy after this automobile was repossessed. Given the facts before our Court concerning this case, we are not now prepared to award damages when it appears that none have been suffered by the appellant.

Order Affirmed.


author: TAMILIA, Judge:

text:
    549 A.2d 918
    COMMONWEALTH of Pennsylvania v. Ricky R. NISSLY, Appellant.
    Superior Court of Pennsylvania.
    Argued June 29, 1988.
    Filed Sept. 16, 1988.
    Reargument Denied Nov. 10, 1988.

      John J. Duffy, West Chester, for appellant.
    James J. Karl, Assistant District Attorney, Lancaster, for Com., appellee.
    Before TAMILIA, KELLY and HESTER, JJ.
   TAMILIA, Judge:

Appellant was convicted by a jury of murder of the third degree in the death of his eleven week old son, Jeremiah. Post-trial motions were filed and denied by Order of the trial court dated November 10, 1987 and appellant was sentenced on January 8, 1988 to pay a fine of five hundred dollars ($500) and was placed on probation for a period of five years. This appeal is from that judgment of sentence.

Jeremiah was born on January 30, 1986, weighing only two pounds, five ounces, after being prematurely delivered through an emergency cesarean section. He was cared for in the hospital until March 24, 1986 when he went home to live with his father, mother and two sisters at his grandparents’ residence. On April 18, 1986, Jeremiah was found dead in his bassinet by his grandfather, appellant’s father.

The medical testimony offered at trial by the Commonwealth was uncontroverted — Jeremiah died from a brain hemorrhage which could only have resulted from a violent shaking. The autopsies which were conducted following Jeremiah’s death also revealed he had suffered eight fractures of his extremities and at least thirty fractures of his ribs, all of which occurred no more than four weeks before his death with most occurring much closer to his death. Other than the hemorrhage which caused his death, Jeremiah had suffered two previous brain hemorrhages, one being several days old and the other being several hours old. Expert testimony established the time of Jeremiah’s death was most likely between 4:00 and 5:00 a.m. The experts concluded, therefore, the injury occurred one-half hour to an hour prior to death or between 3:00 and 4:30 a.m. Appellant testified he worked on his motorcycle engine on the evening of April 17 until 2:30 or 3:00 a.m. of the next morning. The others in the house at that time, appellant’s wife, two daughters, father, grandfather and two cousins, had gone to bed earlier. When appellant finished working on the engine, he went inside to go to bed but found his wife up with their two daughters who were crying. Appellant tried to help his wife calm down the girls but they would not stop crying. Jeremiah was downstairs in the living room in his bassinet crying so appellant moved him to the family room which was further away from the upstairs bedroom, next to the garage. Jeremiah usually slept in the living room and appellant put him back in the living room after moving him to the family room because appellant felt uneasy about leaving him in the family room. Jeremiah continued to cry but less loudly after appellant held him so appellant went upstairs to bed. He was last with the child between approximately 3:30 and 3:40 a.m. He was awakened at 7:00 a.m. by his father saying something was wrong with Jeremiah. When appellant went down to check the baby, he was dead.

Appellant raises four issues for our review: 1) whether the inference of guilt permitted under Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973) is applicable; 2) whether evidence of the past injuries suffered by Jeremiah was admissible; 3) whether Article I, § 9 of the Pennsylvania Constitution ensures advocate review of children and youth agency files; and 4) whether evidence tending to show consciousness of guilt by someone other than appellant should have been admitted.

Appellant’s first claim is the Commonwealth was required to prove, according to Paquette, supra, he had exclusive control over Jeremiah during the time the fatal injuries were inflicted; without proving beyond a reasonable doubt appellant had exclusive custody and control of the infant, Paquette cannot be relied on by the prosecution. Appellant asserts he did not have exclusive control over Jeremiah throughout the time period the fatal injury could have been inflicted. Several other people were also in the house during that time and any one of them could be responsible for the injury which led to Jeremiah’s death.

It is true the Commonwealth need not prove its case directly since “[circumstantial evidence can be as reliable and persuasive as eyewitness testimony and may be of sufficient quantity and quality to establish guilt of a crime beyond a reasonable doubt,” Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986).

Under Paquette, supra, an inference of guilt is permissible where the infant had been in the sole custody of the suspect and the injuries were inflicted during that time. Our Supreme Court in Commonwealth v. Turner, 491 Pa. 620, 421 A.2d 1057 (1980), found the trial court erred in discharging the defendant on a criminal homicide charge for the death of his girlfriend’s son where the evidence clearly established defendant had viciously beaten the child throughout the day before the child suffered the fatal blow to the head. Although the Commonwealth had no direct evidence proving defendant inflicted the fatal injury, circumstantial evidence showed the injury was not accidental or self-inflicted and defendant was only one of two people in the home at the time of the injury. The Court stated:

In light of appellee’s earlier vicious beatings of the child, and in light of the extreme unlikelihood of accidental head injuries under the circumstances presented, the evidence, and reasonable inferences therefrom, were clearly sufficient to prove beyond a reasonable doubt that appellant delivered the blows to the child’s head.
In the instant case, the prosecution’s evidence demonstrated that Barbara Miklos went to sleep at 1:30 a.m., at which time Irwin’s head was unbruised, and awoke to appellee’s screams at 3:45 a.m, at which time the child’s head had sustained severe injury. Thus, the sole custody inference is applicable to appellee.

Id., 491 Pa. at 625-26, 421 A.2d 1060.

We rule out appellant’s two young daughters as being “logical suspects”; however, appellant’s wife, father and possibly the grandfather may be ruled out also since the record established to the satisfaction of the judge and jury that none of them had control over Jeremiah for any of the time period during which the injury was inflicted. This is a matter of credibility and goes to the weight of the evidence. On appellate review of a criminal conviction, we will not weigh the evidence and, therefore, substitute our judgment for the finder of fact. Paquette, supra, 451 Pa. at p. 257, 301 A.2d at p. 841. Although Jeremiah had obviously been severely physically abused numerous times prior to his death, the Commonwealth did not bring forth any evidence which would conclusively point to appellant as the abuser. Thus, we cannot use the “pattern of abuse” theory used in Turner, supra, in conjunction with the Paquette doctrine, to infer appellant committed the act which killed Jeremiah. However, the Paquette doctrine, when applied to the facts of this case, provides an adequate legal basis for the jury verdict. Apparently no evidence was obtained as to who inflicted the multiple injuries Jeremiah suffered prior to his death, but from the expert medical testimony they could not have been self-inflicted, they were not attributable to a bone deficiency, and because of the various times of occurrence, they were frequent and continuous throughout the few weeks the child was in the home. At best, the adults were callous and nonresponsive to the treatment of the child and at worst, there is a conspiracy of silence as to the perpetrator of the other injuries. Notwithstanding, the medical testimony was sufficient to establish the very limited time frame within which the fatal trauma occurred, that is between 3:00 and 4:30 a.m. on April 18, 1986. This is based upon expert testimony as to the time of injury to the brain stem, which resulted in death, and the time it took for rigor mortis to set in. As indicated above, as determined by the evidence, as found by the jury, the appellant was the only person in custody of Jeremiah during that time. Any other conclusion is speculative and would require this Court to weigh the facts differently than the jury, which we may not do.

The second issue concerns the admission of evidence regarding numerous other injuries determined to be sustained by the child prior to the fatal injury. Appellant sought to bar admission of such evidence which motion was denied. The court in a cautionary charge to the jury, instructed them the sole purpose for admission of that evidence was “to have the entire picture of what the autopsies disclosed and for no other reason whatsoever.” (T.T. Volume V, p. 736). We agree the evidence was proper for that purpose. Since the cause of death had to be established, the presence of numerous other injuries occurring within 12 hours to 24 days from the time of death was relevant to pinpoint which injury or injuries caused death and to rule out the possibility that any of the other injuries contributed to or caused the child’s death. This was particularly important since the Commonwealth’s theory focused on the person in custody at the time the fatal injury occurred. Two things became necessary in that proof; first to rule out all other possible causes of death by establishing the other injuries disclosed by the three autopsies were not fatal; and second, establishing who was in custody at the time the fatal injury occurred. Absent a flagrant abuse of discretion, that determination by the trial court in balancing the probative value of the evidence against its prejudicial impact will not be disturbed on appeal. Commonwealth v. Murphy, 346 Pa.Super. 438, 499 A.2d 1080 (1985); Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984).

Next appellant alleges the procedure adopted by the trial court in reviewing Children and Youth Services files in camera and denying access to appellant is a violation of the confrontation clause of the Pennsylvania Constitution. This procedure has been approved by the U.S. Supreme Court in Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). There it was held the balance of the state’s interest in confidentiality and the defendant’s right to due process is struck by an in camera review of the C.Y.S. material by the trial court, after which it may, in its discretion, release information material to the fairness of the trial to the defendant. While this determination was made by the U.S. Supreme Court in relation to the sixth amendment or fourteenth amendment right of confrontation, the court determined that under the fourteenth amendment due process clause, the in camera procedure struck a proper balance between the state’s interest of confidentiality and the defendants right to information favorable to his defense. We see no reason to adopt a different standard under the confrontation provision of the Pennsylvania Constitution.

Finally, appellant was denied the right to offer his own testimony that his grandfather Peter Bitsoli age 91, left the jurisdiction shortly after Jeremiah’s death, forfeiting $5,000 he had given as a downpayment toward a house for appellant and his wife. The testimony was rejected by the court, upon motion by the Commonwealth as to relevancy. Appellant claims the testimony was relevant for the purpose of showing that Peter Bitsoli fled the area out of consciousness of guilt or for the purpose of concealment. The evidence was clear that his whereabouts were never unknown and that the reason he left was pursuant to a family agreement and request by his daughter (appellant’s mother) that other relatives care for him temporarily because of the confused family situation and his health problems. After being there for a time he decided to remain because he liked it there. He was never a suspect and apparently had no contact with the child which could lead to any inference that he was involved in any of the injuries including the fatal one. A stipulation was read into the record in which appellant’s counsel acknowledged Mr. Bitsoli had nothing to contribute to his side. His testimony was stipulated as being (after an interview in Erie by a detective) “I was there that night. I went to bed. I got up the next morning and the baby was dead.”

The defense strategy was to show that there were a number of persons in the home at the time the fatal injury was inflicted on the child and that any of a number of persons, including the grandfather could have inflicted the injury. The evidence clearly establishes that the only person who was with the child at the time the injury was inflicted was appellant and under the Paquette rule, this is sufficient for a jury to find beyond a reasonable doubt that he is guilty of the homicide.

Finding no error, we must affirm the verdict of the jury and judgment of sentence.

Judgment of sentence affirmed.

      . Appellant argues the Commonwealth did not eliminate the other logical suspects, stating:
      [O]f the seven people other than the defendant and his son who spent the night of April 17th in the Nissly household, the Commonwealth failed to elicit unequivocal denials from four. Jessica and Danielle Nissly, ages 2Vi and 1 respectively, never testified. The Commonwealth relied exclusively upon expert testimony that it was “extremely unlikely” that a child of 2'A years or less could have inflicted the injury to the brain. (R. 494a). On cross examination, Mary Beth Nissly admitted that she “could have” gotten up during the night at some time but did not recall. (R. 123a). As to Peter Bitsoli, Rick Nissly’s grandfather [Jeremiah's great grandfather], the Commonwealth merely read a statement into evidence that Mr. Bitsoli retired at 10:30 p.m. and "got up" at 10:00 a.m. on April 18, 1986 (R. 95a). The statement itself did not contain a denial of guilty and, in fact, there was evidence that Mr. Bitsoli fled Lancaster County shortly after Jeremiah's death. (R. 631-32a).


author: HOFFMAN, Judge:

text:
    549 A.2d 922
    John McHUGH and Joan McHugh, husband and wife v. LITVIN, BLUMBERG, MATUSOW & YOUNG, a Professional Association. Appeal of Joan McHUGH.
    Superior Court of Pennsylvania.
    Argued April 21, 1988.
    Filed Sept. 19, 1988.
    Reargument Denied Nov. 9, 1988.

      William P. Murphy, Philadelphia, for appellant.
    Joseph H. Foster, Philadelphia, for appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the order below entering summary judgment in favor of appellee in a legal malpractice action. Appellant contends that the trial court erred in granting summary judgment in favor of appellee (1) on the ground that appellant’s underlying cause of action was not, at the time it arose, justiciable under Pennsylvania law, and (2) by ignoring the alternate federal common law basis for her claim. For the reasons that follow, we agree with the trial court that appellee was entitled to summary judgment and, accordingly, we affirm the order below.

The relevant procedural history, as summarized by the court below, is as follows:

On May 12, 1987, this Court granted Partial Summary Judgment in favor of [appellee] law firm Litvin, Blumberg, Matusow and Young (hereinafter “Litvin”), by entering judgment in its favor against Joan McHugh, [appellant], holding that a prima facie case of professional malpractice fails when [appellant] could not have succeeded in the underlying suit, her claim for loss of consortium to have been non-existent at the time her cause of action accrued____
On February 12, 1971, [appellant’s husband] John McHugh seriously hurt his back, having fallen on an obstruction aboard the barge Argoil 150, during the course of his employment as a tankerman. [In 1973,] through his attorney, Joseph Boardman, Esquire, ... John McHugh brought suit against his employer, Interstate Oil Company, and Mobil Oil Company under the general maritime law and the Jones Act____ [In 1974,] Boardman [also] filed, on behalf of both John McHugh and his wife, Joan, another [action] ... against Interstate Oil Company, Mobil Oil Company and E.W. Saybolt, Inc. Boardman later referred the McHugh case to [appellee] Litvin, which entered its appearance for [the McHughs] on July 5, 1974.
It is alleged, however, that Litvin conducted [the McHughs’] cases in a negligent and careless manner; as a direct result thereof, [both actions were dismissed with prejudice]____
After the dismissals were affirmed on appeal, [the McHughs] retained new counsel, who instituted the present action against Litvin, alleging that negligence and breach of contract by Litvin caused [the McHughs] to lose their rights to recover from Interstate Oil, Mobil Oil, and E.W. Saybolt for John McHugh’s injuries sustained on February 12, 1971. [Appellant] Joan McHugh’s sole allegation as to damages sustained by her is for the loss of her husband’s consortium. Respecting that claim, Litvin moved this Court for entry of summary judgment in its favor, against [appellant] Joan McHugh, upon the ground that Pennsylvania law did not provide her with a cause of action for loss of consortium at the time John McHugh sustained his injuries. We agreed, and accordingly have granted Litvin’s Motion.

This timely appeal was taken from the court’s order granting appellee’s motion for summary judgment.

Rule 1035(b) of the Pennsylvania Rules of Civil Procedure provides that summary judgment

shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law____

Id. “Summary judgment is appropriate only in those cases which are clear and free from doubt.” Spain v. Vicente, 315 Pa.Super. 135, 138, 461 A.2d 833, 835 (1983) (citations omitted). Moreover,

[t]he burden of demonstrating that no genuine issue of material fact exists and that one is entitled to a judgment as a matter of law, is on the moving party, and the record must be examined in a light most favorable to the non-moving party.

Amabile v. Auto Kleen Car Wash, 249 Pa.Super. 240, 245, 376 A.2d 247, 249 (1977) (citations omitted). See also Skowronski v. Bailey, 330 Pa.Super. 83, 85, 478 A.2d 1362, 1363 (1984).

When, as here, the complaint alleges a cause of action based upon legal malpractice, three essential elements must be established:

1. The employment of the attorney or other basis for duty;
2. The failure of the attorney to exercise ordinary skill and knowledge; and
3. That such negligence was the proximate cause of damage to the plaintiff.

Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979) (quoting R. Mallen & V. Levit, Legal Malpractice 123 (1977)) (footnote omitted). See also ei bon ee baya ghananee v. Black, 350 Pa.Super. 134, 140, 504 A.2d 281, 284 (1986). With these principles in mind, we consider the facts presented below.

Appellant contends first that the trial court erred in determining that summary judgment was appropriate on the ground that appellant, as a matter of law, could not prevail on her legal malpractice claim because at the time her underlying cause of action accrued, Pennsylvania law did not recognize a woman’s right to recover for loss of consortium. Appellant acknowledges that a woman’s right to recover for loss of consortium did not exist until passage of the Pennsylvania Equal Rights Amendment (ERA). See Hopkins v. Blanco, 457 Pa. 90, 93-94, 320 A.2d 139, 140-41 (1974) (in light of ERA, wife, like husband, must have right to recover for loss of consortium). Moreover, appellant does not dispute the fact that her cause of action arose on February 12, 1971, the date her husband was injured, and thus predates the May 18, 1971 adoption of the ERA. Appellant nevertheless argues that the court’s determination that she did not have a right to recover for loss of consortium in February, 1971 constitutes a current violation of the ERA. Appellant thus concludes that the ERA should be applied retroactively to her claim. With regard to this issue, we have carefully reviewed the record and the briefs submitted by the parties, and we conclude that the trial court has properly disposed of this contention in its opinion. Accordingly, for the reasons stated in the trial court’s opinion, we affirm its disposition of this issue. •

In a related argument, appellant maintains that the ERA should be retroactively applied here because her case is indistinguishable from Hopkins v. Blanco, supra. Appellant reasons as follows:

[I]n Hopkins v. Blanco ..., the very case in which the Pennsylvania Supreme Court recognized a wife’s loss of consortium claim based on the ERA, the injury to the husband plaintiff took place before the ERA’s passage. The Superior Court in Hopkins, observed that the husband’s personal injury action had been filed in September of 1970. Hopkins v. Blanco, 224 Pa.Super. 116, 302 A.2d 855, 859 (1973), aff'd 457 Pa. 90, 320 A.2d 139 (1974). His injuries obviously were received prior to that time. Thus, when the Supreme Court recognized the wife plaintiff’s cause of action in Hopkins, it actually applied the ERA to a loss of consortium claim which necessarily accrued prior to the May 18, 1971 passage of the ERA itself. This is precisely the circumstance presented in this case____

Appellant’s Brief at 9-10.

We note preliminarily that appellant did not specifically raise an argument relating to the factual indistinguishability of Hopkins in the court below. Because appellant failed to present this theory in the court below, she has waived this claim. See Pa.R.A.P. 302(a). See also Kimmel v. Somerset County Comm’rs, 460 Pa. 381, 384-85, 333 A.2d 777, 779 (1975); Metal Bank of America, Inc. v. Insurance Co. of N. Am., 360 Pa.Super. 350, 365-66, 520 A.2d 493, 501 (1987). Moreover, even if this argument were not waived, we would conclude that it is meritless. In Hopkins, neither the Supreme Court nor this Court was presented with an argument that the ERA should apply only to those claims arising after its adoption. Instead, as our Supreme Court noted, “[t]he sole issue presented by this appeal is whether a wife may recover damages in Pennsylvania for the loss of her husband’s consortium.” 457 Pa. at 91, 320 A.2d at 139. Because the question of the retroactivity of the ERA was neither presented nor decided in Hopkins, that case does not require that we depart from traditional retroactivity analysis, and hold that appellant had a right to recover for loss of consortium prior to the adoption of the ERA.

Appellant next contends that even if she could not have prevailed in the underlying suit because she did not have a right to sue for loss of consortium under Pennsylvania law, the trial court erred in granting summary judgment because such a right existed under federal common law, and appellee was negligent in failing to preserve the right. In support of this argument, appellant cites to American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980) (plurality opinion), in which the Supreme Court of the United States, interpreting general maritime law, held that the wife of an injured harbor worker could maintain an action for loss of consortium. Appellant argues that Alvez should have retroactive application to all cases pending on May 12, 1980, the date it was decided. Appellant then notes that her case in fact was pending in this Court until August, 1980, when we affirmed the dismissal of her complaint in the underlying loss of consortium action on the ground that she had failed to comply with the applicable statute of limitations. Because our decision was reached after Alvez was decided, appellant apparently would conclude that, but for appellee’s misconduct in failing to comply with the statute of limitations, the retroactive application of Alvez may have given her a right to recover under federal common law. We disagree.

When the underlying action was pending in this Court, that appeal, of course, was limited to those claims raised in the trial court. See Pa.R.A.P. 302(a). In her complaint filed in that action, appellant had stated that her claim was “brought under the admiralty law as modified by the Jones Act”. McHugh v. Interstate Oil Transport Corp. et al., unpublished memorandum at 5 (R.R. at 64a). On the direct appeal, however, we specifically held that “we reject the argument that this case should be considered as having been brought under both the general admiralty law as well as under the Jones Act.” Id. at 6 (R.R. at 65a). In so holding, we reasoned that:

We are aware that the work performed by seamen is hazardous and that efforts have been made to avoid the application of possibly more harsh rules of common law by the adoption of remedial legislation in the form of the Jones Act. We are also aware that the Jones Act should be liberally construed---- However, because the Appellants have deemed it appropriate to bring their action under the Jones Act, we cannot accept their argument that they should be entitled to benefits which are in direct conflict with such legislation.

Id. at 5-6 (R.R. at 64a-65a) (citation omitted). Because we held in the prior appeal that appellant had not asserted a claim under federal common law, she would not have been entitled to the benefit of the Alvez ruling simply because her appeal, raising unrelated issues, was pending when Alvez was decided. Accordingly, appellant’s assertion that the trial court erred in granting summary judgment as to her claim under federal common law is meritless.

Moreover, to the extent that appellant would argue that appellee was negligent for failing to raise and preserve a claim under federal common law in the prior appeal so that she could have had the benefit of the Alvez decision, we would simply emphasize that Alvez was not decided until 1980, some nine years after appellant’s loss of consortium claim arose, and three years after the complaint should have been filed. Thus, the right to sue for loss of consortium under federal common law in these types of cases did not exist at the time appellee would have had to raise and preserve the claim. Appellee cannot be found liable for malpractice for failing to assert a then non-existent claim, or for failing to foresee the change that Alvez made in the law. Cf. Commonwealth v. Rice, 456 Pa. 90, 93, 318 A.2d 705, 707 (1974); Commonwealth v. Franklin, 306 Pa.Super. 382, 389, 452 A.2d 777, 780 (1982), allocatur denied.

For the foregoing reasons, we affirm the order below granting summary judgment in favor of appellee.

ORDER AFFIRMED.

      . The ERA provides that:
      Equality of rights under the law shall not be denied or abridged in the Commonwealth of Pennsylvania because of the sex of the individual.
      Pa. Const, art. I, § 28 (adopted May 18, 1971).

      . In her Memorandum of Law in Opposition to Appellee’s Motion for Partial Summary Judgment, appellant argued only that (1) the right to sue for loss of consortium was extended to wives after the ERA was adopted; and (2) the Hopkins decision, recognizing this right, should be applied retroactively. See R.R. at 40a-41a.

      . Appellee argues that appellant has waived this claim because she never raised the issue in the court below. We disagree. In her complaint filed in the court below, appellant did not confine herself to an allegation that appellee was negligent only in failing to prosecute her claim under Pennsylvania law. Instead, appellant alleged that appellee negligently failed to prosecute her "various actions”, which included a claim based upon "negligence under the general Maritime Law of the United States and as modified by the Jones Act.” Complaint at 5, ¶ 18; 3, ¶ 9 (R.R. at 21a, 25a). In addition, we note that appellant renewed her federal common law argument in her Memorandum in opposition to appellee’s motion for summary judgment. See R.R. at 42a-43a. Accordingly, we conclude that appellant has not waived this argument.

      . The specific issue presented in the prior appeal was whether appellant’s action was governed by the three-year statute of limitations contained in the Jones Act, or by general maritime law, which has no statute of limitations and evaluates timeliness based upon equitable principles. McHugh v. Interstate Oil Transport Corp, supra at 5 (R.R. at 64a).

      . Appellant also argues that the trial court erred in entering summary judgment because “The Equal Protection Clause of the Fourteenth Amendment Required Recognition of a Cause of Action for a Wife’s Loss of Consortium Even Prior to the Husband’s Injury in this Case.” Appellant’s Brief at 10. It is undisputed that appellant did not raise this argument in the court below. See Reply Brief for Appellant at 7. Accordingly, she has waived this claim. See Pa.R.A.P. 302(a). See

        also Kimmel v. Somerset County Comm'rs, supra; Metal Bank of America, Inc. v. Insurance Co. of N. Am., supra.

      Appellant finally argues that her loss of consortium claim “Was Timely Filed Within The Three Year Period Applicable to Jones Act Cases." Appellant’s Brief at 16. In the court below, appellee alleged, as an alternative ground in favor of summary judgment, that appellant’s loss of consortium claim was time-barred before she engaged appellee’s services. The trial court, because it granted the motion for summary judgment on the ground that appellant did not have a cognizable claim for loss of consortium, did not address appellee’s argument that appellant's claim was time-barred. Similarly, because we agree with the trial court that appellee was entitled to summary judgment on the ground that appellant did not have a cognizable claim for loss of consortium, and because the grant of summary judgment is supportable on this ground alone, we need not address the merits of appellant’s argument regarding whether her claim was time-barred.