author: KELLY, Judge: CAVANAUGH, Judge,

text:
    619 A.2d 1363
    Paula BONAVITACOLA, Individually and as Administratrix of the Estate of Dominic S. Bonavitacola, also Known as Dominic J. Bonavitacola, Dec’d., Appellee, v. Henry J. CLUVER, D.M.D., and William E. Munley, D.M.D., and Henry J. Cluver, D.M.D., William E. Munley, D.M.D., F.A.G.D., P.C. Appeal of Henry J. CLUVER, D.M.D. and Henry J. Cluver, D.M.D., William E. Munley, D.M.D., F.A.G.D., P.C., Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1992.
    Filed Feb. 16, 1993.

      Jonathan D. Herbst, Philadelphia, for appellants.
    Roberta D. Pichini, Philadelphia, for appellee.
    Before CAVANAUGH, KELLY and HOFFMAN, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether we must quash the appeal because the order denying appellants’ post-verdict motions was not reduced to judgment. We conclude that quashal is inappropriate. Accordingly, we deny appellee’s motion to quash and address appellants’ arguments. Finding merit in none of appellants’ arguments, we affirm.

FACTS AND PROCEDURAL HISTORY

Giving all reasonable inferences to the appellees, the jury verdict winners, we summarize the history of this case as follows. Dominic Bonavitacola had scheduled a dentist appointment with appellant, Dr. Cluver, for October 1, 1987. Mr. Bonavitacola had routinely taken penicillin before and after dental procedures that involved the risk of bleeding, because he had two heart conditions, mitral valve prolapse and rheumatic heart disease, which rendered his heart susceptible to contracting an infection, bacterial endocarditis, if ordinary mouth bacteria entered the blood stream.

Because he was aware of his condition, Mr. Bonavitacola telephoned Dr. Cluver, requesting whether he would receive a prescription for penicillin before the October 1, 1987 visit. Although Dr. Cluver was also aware of Mr. Bonavitacola’ condition, see, e.g., Reproduced Record at 1370a (notes on Mr. Bonavitacola’s medical history state: “has murmur—since birth[;] needs penicillin before any dental treatment”), he told Mr. Bonavitacola that he would not need the antibiotic for the October 1, 1987 procedure. Apparently, Dr. Cluver believed that the scheduled procedure, superficial work on “tooth number 15,” would not involve bleeding.

The dentist, using a drill, accessed not only the top of that tooth, but also the back of the tooth, at the gum line. The procedure caused the gums to bleed. Mouth bacteria, streptococcus viridans, entered Mr. Bonavitacola’s blood stream and, still alive due to the absence of penicillin, thrived in the heart, causing bacterial endocarditis.

Mr. Bonavitacola suffered pain and underwent intravenous therapy. The infections in his heart spread and eventually caused brain damage. A brain hemorrhage was the ultimate cause of Mr. Bonavitacola’s death on February 13, 1988, only five and one-half months after his dental visit with Dr. Cluver.

Mrs. Bonavitacola, individually, and as administratrix of her husband’s estate, instituted this action against Dr. Cluver, Dr. Munley, and their corporation, Henry J. Cluver, D.M.D. and William E. Munley, D.M.D., F.A.G.D., P.C. At trial, before Judge Lawhorne and a jury, the above facts were adduced. The jury rejected appellants’ theories that the October 1, 1987 procedure was not likely to result in bleeding, that Dr. Cluver had indeed prescribed penicillin for the procedure, and that Mr. Bonavitacola was contributorily negligent. A directed verdict was entered in favor of Dr. Munley. However, the jury entered verdicts against Dr. Cluver and the corporation. After a separate hearing on damages, the jury returned a verdict for $3,169,661.00, which the court molded to $4,032,-918.10, to reflect delay damages pursuant to Pa.R.Civ.P. 238.

Appellants filed post-trial motions, seeking a new trial. On October 17, 1991, Judge Lawhorne entered an order denying appellants’ motion for a new trial and an amended motion for a new trial. Appellants filed this appeal on November 7, 1991. As Judge Lawhorne had left the bench, Judge Cronin filed an opinion in support of the order denying post-verdict motions on May 28, 1992.

On January 3, 1992, the Central Legal Staff of this Court sent a letter to appellants’ attorney advising that the appeal may be dismissed because judgment had not been entered and an order denying post-trial motions is interlocutory. Appellants’ attorney responded, explaining that he would not praecipe for judgment because such an action would render appellants liable for more than the amount for which they were insured. Accordingly, counsel refused to praecipe for judgment.

After advising appellants of her intention to move this Court to quash the appeal with prejudice, appellee filed a motion to quash on February 26, 1992. Appellants responded, and we deferred resolution of the motion to quash.

APPEALABILITY OF ORDER DENYING POST-VERDICT MOTIONS

Appellee argues that the instant appeal should be quashed with prejudice because appellants did not reduce to judgment the order denying post-trial motions. Appellee further argues that, in this case, we should not consider this appeal as one from judgment because appellants have openly refused to follow directives from this Court’s Central Legal Staff to praecipe the prothonotary to enter judgment. Counsel for appellants refuses to praecipe for the entry of judgment because such an action would render appellants liable for an amount greater than their professional liability insurance indemnifies them. For the reasons that follow, we deny appellants’ motion to quash.

Although an order denying post-trial motions is interlocutory, Pa.R.A.P. 301(a), (c) and (d) and 904(d), we allow an appeal lying from an interlocutory order when the only step to be taken is the entry of judgment. See e.g. McCormick v. Northeastern Bank of PA, 522 Pa. 251, 254 n. 1, 561 A.2d 328, 330 n. 1 (1989); Summit Fasteners v. Harleysville Nat’l Bank, 410 Pa.Super. 56, 59 n. 1, 599 A.2d 203, 205 n. 1 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). As long as the order from which a party appeals “was clearly intended to be a final pronouncement on the matters discussed in the opinion [accompanying the order], ... the appeal is properly before us and ... we have jurisdiction to address the parties’ claims.” Murphy v. Murphy, 410 Pa.Super. 146, 152, 599 A.2d 647, 650 (1991), allocatur denied, 530 Pa. 633, 606 A.2d 902 (1992). The rationale behind treating this appeal as one from an entered judgment is to allow the appeal which is in progress to proceed, economizing judicial resources. McCormick, supra; Summit Fasteners, supra. See also Murphy v. Murphy, supra, 410 Pa.Super. at 152, 599 A.2d at 650. Were we to quash an appeal from an order which, except for the entry of judgment, is otherwise final, we would expend judicial resources in the decision to quash, one of the parties would inevitably praecipe the prothonotary to enter judgment, and a subsequent appeal would be permitted to follow. See McCormick, supra, citing Commonwealth v. Allen, 278 Pa.Super. 501, 505 n. 3, 420 A.2d 653, 654 n. 3 (1980).

These principles apply, notwithstanding a direct refusal by an appellant to enter judgment. The policy of judicial economy does not apply only with the willing participation of counsel. The policy behind our entertaining the merits of an appeal from an otherwise interlocutory order is to efficiently dispose of an appeal which cannot be stopped from ever returning.

Our research has not disclosed a sanction of “quashing with prejudice.” Pennsylvania Rule of Appellate Procedure 902 provides:

RULE 902. MANNER OF TAKING APPEAL
An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.

Therefore, the failure to praecipe to enter judgment “does not affect the validity of the appeal.” Id. Accordingly, were we to exercise the option provided by the rule and remand, we would have no authority to quash with prejudice against an appellant to cure the omission and file a second appeal.

Because the court is without the power to sanction with “a quashal with prejudice,” the policy of promoting judicial economy is present, even when an appellant defies a warning by our Central Legal Staff. We can quash without prejudice, but, as we have consistently recognized, that course of action serves to consume more judicial resources, to encourage more litigation costs, and to postpone the disposition of the appeal.

In the instant case, in the interests of judicial economy, we deny appellee’s motion to quash. As the appeal is ripe for disposition, we decide the issues raised by the parties.

On appeal, appellants present the following issues for our review:

1. WHETHER IN A DENTAL MALPRACTICE CASE INVOLVING WHETHER PRE-MEDICATION WITH PENICILLIN WAS REQUIRED BEFORE THE ANTICIPATED PROCEDURE, THE TRIAL COURT ERRED IN REFUSING DEFENDANTS’ REQUEST THAT THE JURY BE GIVEN THE “TWO SCHOOLS OF THOUGHT” INSTRUCTION.
2. WHETHER THE TRIAL COURT ERRED BY INFERRING [sic] TO THE JURY, IN ITS CHARGE, THAT DEFENDANTS WERE PROTECTED BY INSURANCE COVERAGE.
3. WHETHER THE TRIAL COURT ERRED IN ADMITTING, OVER OBJECTION, HEARSAY TESTIMONY BY THE DECEDENT’S WIDOW AS TO WHAT THE DENTIST ALLEGEDLY TOLD HER HUSBAND CONCERNING THE NEED FOR PRE-MEDICATION WITH PENICILLIN.
4. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE VERDICT WAS NOT EXCESSIVE.

Appellants’ Brief at 3.

Two Schools of Thought Charge

Appellants argue that the trial court erred in not instructing the jury regarding the “two schools of thought” doctrine. We cannot agree.

Our Supreme Court recently revisited the law on the “two schools of thought” doctrine, and provided the following concise statement as the correct one:

Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.

Jones v. Chidester, 531 Pa. 31, 40, 610 A.2d 964, 969 (1992). The Court further held that the trial court must initially determine whether the defendant has introduced sufficient evidence that “there is a considerable number of professionals who agree with the treatment employed by the defendant.” Id.

If the defendant carries its burden of substantiating, with factual reasons, that its actions were sanctioned by a recognized school of thought, the court must submit to the jury the question of whether “there are two legitimate schools of thought such that the defendant should be insulated from liability.” Id. See also Levine v. Rosen, 394 Pa.Super. 178, 184, 575 A.2d 579, 582 (1990), allocatur granted, 526 Pa. 636, 584 A.2d 319 (1991) (trial court should instruct jury on two schools of thought if “evidence potentially supports” either school).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the distinguished Judge, The Honorable Joseph A. Cronin, Jr., we determine that there is no merit to appellants’ argument that the jury should have been charged on the two schools of thought doctrine. The trial court opinion comprehensively discusses and properly disposes of the question presented. Accordingly, we affirm on the basis of that opinion as set forth below.

It is upon [appellees’ expert,] Dr. Souviron’s substitution of tissue bleeding for gingival bleeding that defendants claim creates a second and distinct school of thought. However, the fact that Dr. Souviron would slightly alter the AHA/ ADA standards to include all tissue bleeding is neither relevant to the case at hand nor does it comprise a second school of thought. It is not relevant because it was the gingival bleeding and not other tissue bleeding that caused the bacteremia and subsequent death. Thus, as to the cause of death, Dr. Souviron was one hundred percent in agreement with AHA/AMA Standards. Furthermore, Dr. Souviron’s desire to expand the AHA/AMA standards to substitute tissue bleeding for gingival bleeding does not create a second school of thought. Dr. Souviron was explaining that gingival bleeding is not the only type of bleeding that can cause bacteremia. Moreover, Dr. Souviron testified that he holds Dr. Cluver to the AHA/AMA Standards, which are the same standards that he holds. (N.T. June 4, 1991, 77-78).
Additionally, defendants propose that this second school of thought was revealed by Dr. Souviron who testified that if there was no bleeding on October 1, 1987, no penicillin prophylaxis was required (page 78 of transcript). This testimony was made after Dr. Souviron originally testified that with an individual diagnosed with mitral valve prolapse, all dental procedures require penicillin prophylaxis (N.T. June 4, 1991, at 40, 41, 43). Defendants claim that these two comments regarding penicillin pre-treatment create two schools of thought. In reality, these are not two conflicting theories of when to pre-treat with penicillin. Rather, penicillin was prescribed as a prophylaxis in the event of bleeding. It is common sense that if no bleeding occurred, then the penicillin was not required. There is no way of knowing in advance whether the decedent would have bled at the time of the procedure, and the statement that the penicillin was not required is nothing more than an after the fact determination made with the benefit of hindsight.
Next, defendants contend that Dr. Bayer, plaintiffs expert witness, admitted to two schools of thought. During cross examination, Dr. Bayer testified essentially that the AHA/ AMA standards are guidelines to be used in connection with the treating doctor’s common medical sense and experience, and that the risks should be balanced. (N.T. June 5, 1991, 73-77). This testimony does not form the basis of a second school of thought, but merely allows for the prevalence of other individual factors unique to each patient.
Defendant proposes that two schools of thought were revealed by defendants’ medical expert witnesses as well as plaintiffs medical expert witnesses. Defendants’ witness Dr. Peter Quinn, a dentist and medical doctor, testified that penicillin prophylaxis should be administered in instances likely to induce gingival bleeding. (N.T. June 5, 1991 at 152). This testimony does not produce a second school of thought, but merely provides a question regarding the type of procedure likely to induce gingival bleeding, and when penicillin should be administered. The jury was free to determine if the procedure performed upon the decedent was likely to induce gingival bleeding, and whether penicillin pretreatment was required. Likewise, Dr. Kaye, another defense expert medical witness[,] testified that penicillin prophylaxis was never intended or is not now intended for simple dental fillings that did not traumatize the gum. (N.T. June 6, 1991 11-12). Again, the issue here is not of two schools of thought, but rather, the type of procedure likely to produce gingival bleeding.

Trial Court Opinion, May 28, 1992, 7-10.

We only emphasize two points. First, appellants’ experts failed to articulate that Dr. Cluver adhered to a school of thought which was “advocated by a considerable number of recognized and respect professionals in his given area of expertise.” Jones v. Chidester, supra, 531 Pa. at 40, 610 A.2d at 969. See also Morganstein v. House, 377 Pa.Super. 512, 519, 547 A.2d 1180, 1183 (1988) (where two schools of thought charge could have lead jury to believe that defendant physician was not negligent merely because “his conduct was supported by the testimony of another medical expert,” the charge was erroneous and prejudicial to the plaintiff); D’Angelis v. Zakuto, 383 Pa.Super. 65, 75, 556 A.2d 431, 435-36 (1989) (Kelly, J., concurring) (the two schools of thought doctrine “applies only to a school of thought advocated by ‘a considerable number’ of reputable, and respected physicians”).

We also emphasize that appellants only adduced from the various experts a consistent school of thought. All agreed that an antibiotic should be given if there was a likelihood of bleeding. The disputed question, whether the scheduled procedure would induce bleeding, was one of fact. We affirm the trial court’s decision refusing to charge the jury on the two schools of thought doctrine.

Implication of Insurance Coverage

Appellants next request a new trial due to the court’s alleged implication to the jury that appellants were adequately insured. We cannot agree that a new trial is required.

In determining whether to reverse a jury verdict due to an erroneous jury charge, an appellate court must look at the jury charge as a whole; if the charge inaccurately describes the law, there is error. Reilly by Reilly v. Southeastern Pennsylvania Transp. Auth., 507 Pa. 204, 489 A.2d 1291 (1985); Schecter v. Watkins, 395 Pa.Super. 363, 374-75, 577 A.2d 585, 590-91, appeal denied, 526 Pa. 638, 584 A.2d 320 (1990). However, error alone does not mandate a new trial. To constitute reversible error, a jury instruction must not only be erroneous, but must also be harmful to the complaining party. Jistarri v. Nappi, 378 Pa.Super. 583, 588, 549 A.2d 210, 213 (1988); Mickey v. Ayers, 336 Pa.Super. 512, 514-15, 485 A.2d 1199, 1202 (1984).

Summit Fasteners v. Harleysville Natl Bank, 410 Pa.Super. 56, 62, 599 A.2d 203, 206 (1991). Evidence which informs the jury that a defendant would be indemnified against liability is improper, and, if prejudicial, warrants a new trial. Phillips v. Schoenberger, 369 Pa.Super. 52, 58-59, 534 A.2d 1075, 1078 (1987). Therefore, on appeal, the issue is whether the jury charge, when read as a whole, was both erroneous and prejudicial.

Appellants cite the following passage as both erroneous and prejudicial:

On that subject, I’ll just say quickly in passing, that remember now, Dr. Cluver while a Defendant here is not in any way punished by what you would do with a verdict if you do hold him responsible. He’s simply being sued in a lawsuit, and don’t—don’t be concerned about affecting his practice because I don’t think it will in any way, shape or form.

Appellants’ Brief at 31. The passage, taken in context, was:

I don’t have to tell you to keep in mind that a dispute between these parties is for them a most serious matter. They and the Court rely upon you to give full and conscientious deliberation and consideration to the issues and evidence before you. You should not allow sympathy or prejudice to influence your deliberations. You should not be influenced by anything other than the law, and the evidence in the case. All the parties stand equally before the Court and each is entitled to the same fair and impartial treatment at your hand. On that subject, I’ll just say quickly in passing, that remember now, Dr. Cluver while a Defendant here is not in any way punished by what you would do with a verdict if you do hold him responsible. He’s simply being sued in a lawsuit, and don’t—don’t be concerned about affecting his practice because I don’t think it will in any way, shape or form.

N.T. June 7, 1991 at 24. Moreover, after entertaining an objection and a motion for mistrial, the trial court provided the following qualification:

I made some reference to Dr. Cluver’s own position with reference to this and I’d like to read a little bit more to you. The case does not involve punishment of the Defendants or even criticism of their services or his service beyond the facts of this matter. The claim does not involve the dentist’s reputation, standing or licensure. So, no thoughts should be given to these irrelevant considerations in reaching a verdict.

Id. at 33-34.

The charge properly instructed the jurors to ignore the consequences of a finding against appellants and to concentrate on whether the appellants acted negligently and caused Mr. Bonavitacola’s injuries and death. Any possible hint that appellants would be indemnified from an adverse ruling was removed by the thorough curative instruction. While we find no error, even if there were error, we certainly find no prejudice to appellants. Accordingly, appellants are not entitled to a new trial on this basis.

Admission of Paula Bonavitacola’s Statement Regarding Telephone Conversation Between Dr. Cluver and Decedent

Appellants argue that the testimony of appellee Paula Bonavitacola regarding a telephone conversation between appellant Dr. Cluver and decedent was inadmissible hearsay. Accordingly, they request a new trial. We cannot agree that a new trial is in order.

With regard to this issue, we also affirm on the basis of Judge Cronin’s thorough and well-reasoned analysis. He explained:

At trial, plaintiff testified that the decedent told her he was going to place a call to the doctor for a renewal of his prescription for penicillin that he needed for the October first dental visit, and that he then walked out of the room to make his call. (N.T., June 3, 1991, 142-143). Further, she testified that she heard decedent on the phone saying “doctor, are you sure I don’t need it?” (N.T. June 3, 1991 at 143). This was the only portion of the phone conversation that plaintiff overheard (N.T. June 3, 1991 at 143) before decedent returned to the room and said to plaintiff “Doctor Cluver will not renew the prescription for penicillin because he said that he was going to work on one tooth superficially, and I did not need it.” (N.T., June 3, 1991 at 144).
Defendants contend that the statement should be stricken as hearsay because it directly impacted upon a material issue of fact. Defendants, on page 3 of their Brief in Support of Post Trial Motions, contend that this testimony regarding decedent’s phone conversation with Dr. Cluver is the only evidence that Dr. Cluver failed to prescribe penicillin prior to the October 1, 1987 dental visit. This contention is without merit. Dr. Cluver’s failure to prescribe penicillin is supported by the medical records of Lankenau Hospital which contain no reference to a penicillin prescription. Additionally, this was enhanced by the absence of any penicillin prescription noted upon the pharmacy’s records. Moreover, Dr. Cluver could not remember whether he prescribed penicillin for decedent’s October 1, 1987 dental visit, and he testified that the “PCN” designation on decedent’s medical records, indicating that penicillin had been prescribed, was entered at a later date for “medical-legal” reasons. (N.T. June 3, 1991, at 116, 128). Thus, the telephone conversation was not the only evidence of Dr. Cluver’s negligence, as defendants allege, but in fact, merely corroborated other evidence of negligence.
The telephone conversation was properly admitted to corroborate other evidence of negligence because it was offered to prove only that the statement was made, not that it was true. Backman [Bachman] v. Artinger, 285 Pa.Super. 57, 63, 426 A.2d 702, 705 (1981); Com. v. Samuels, 235 Pa.Super. 192, 204, 340 A.2d 880, 886 (1975). Dr. Cluver was afforded and utilized ample opportunity at trial to refute the truth of the statement—whether or not decedent needed the penicillin. Thus, the conversation was admissible as non-hearsay.
Assuming arguendo, that the conversation is not admissible as non-hearsay, it is still admissible under the state of mind exception to the hearsay rule. It was not offered to prove the truth of the matter asserted, but was offered to reveal the decedent’s state of mind at the time of the conversation. Hence, it was admissible for that purpose. Nuttall v. Reading Co., 235 F.2d 546 (3d Cir.1956).
Additionally, the telephone conversation was admitted to refute defendants’ assertion that decedent was contributorily negligent in failing to take penicillin as was his unwaivering practice in the past. As a result, the telephone conversation is admissible to reflect the declarant’s state of mind and is an exception to the hearsay rule for this purpose too. Com. v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986); Com. v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980). It proves that the decedent subsequently acted in accordance with that state of mind and was not contributorily negligent by not taking penicillin. Com. v. Marshall, 287 Pa. 512, 135 A. 301 (1925) [1926]; Com. v. Lowenberg, 481 Pa. 244, 392 A.2d 1274 (1978); Com. v. Reggins [Riggins], 478 Pa. 222, 386 A.2d 520 (1978).
The telephone conversation is also admissible under an exception to the hearsay rule, in that the decedent immediately repeated to plaintiff the comments that Dr. Cluver made on the telephone. This provided decedent little or no time to consciously manipulate the truth, qualifying the statement as a present sense impression. United States v. Peacock, 654 F.2d 339 (5th Cir.1981); United States v. Earley, 657 F.2d 195 (8th Cir.1982) [1981]; United States v. Portsmouth Paving, 694 F.2d 312 (4th Cir.1982). Furthermore, at that time, decedent would have [had] no motive to manipulate the conversation because he was not aware that Dr. Cluver’s failure to prescribe penicillin was negligent. If it is defendants’ assertion that plaintiff and not decedent manipulated the truth or facts of the conversation between decedent and Dr. Cluver, defendants had the opportunity at trial to test plaintiffs veracity through cross-examination, and in fact, took advantage of this opportunity. It is the jury’s function to weigh the plaintiffs credibility, not this Court’s in a post-trial determination.
Defendants also contend that the evidence of the telephone conversation between Dr. Cluver and the deceased should not have been admitted because Dr. Cluver’s identity as a party to the conversation was not properly authenticated. Under Pennsylvania law, “a telephone conversation between a witness and another person is admissible only when the identity of the person with whom the witness was speaking is satisfactorily established.” Limestone Products & Supply Co. v. Tom Brown[,] Inc., 198 Pa.Super. 375, 181 A.2d 696 (1962), citing Burton v. Pacific Mutual Life Insurance Co., 368 Pa. 613, 517, 84 A.2d 320 [310] (1951).
In the instant case, plaintiff authenticated the identity of Dr. Cluver through (1) the decedent’s stated intent to make the call; (2) plaintiffs observation of the decedent making the call thereafter; (3) the portion of the telephone conversation that she overheard; (4) the decedent’s statements to the plaintiff after making the call; (5) decedent’s relationship with Dr. Cluver and his knowledge of Dr. Cluver’s voice; (6) plaintiffs claim that decedent routinely called Dr. Cluver’s office to obtain prescriptions for penicillin prior to treatment; and (7) decedent’s actions subsequent to the telephone conversation that corroborated the substance of the conversation. In short, the circumstances surrounding the telephone call provide enough basis to satisfactorily establish that Dr. Cluver was a party to the conversation. Circumstantial evidence such as this type is sufficient to authenticate a telephone call, especially in light of decedent’s familiarity with Dr. Cluver’s voice. Limestone Products & Supply Co. v. Tom Broum[,] Inc., 198 Pa.Super. 375, 181 A.2d 696 (1962).

Trial Court Opinion, May 28, 1992 at 2-6.

Excessiveness of Verdict

Appellant’s final argument is that the jury verdict was so excessive as to require a new trial. Again, we disagree.

A jury is given wide latitude in fashioning its verdict on damages. Phillips v. Schoenberger, 369 Pa.Super. 52, 57, 534 A.2d 1075, 1077 (1987). Its verdict will not be reversed unless it is so excessive that it shocks the court’s conscience. Id. See also Freeman v. Maple Point, Inc., 393 Pa.Super. 427, 436, 574 A.2d 684, 689 (1990) (new trial may be granted “so that right may be given another opportunity to prevail”). Furthermore,

[t]he trial judge, who was present at the trial and heard the testimony, has broad discretion with respect to granting or refusing a new trial on the grounds that the verdict was contrary to the weight of the evidence; and his decision will not be reversed on appeal unless he has acted capriciously or has abused his discretion. Yandrich v. Radic, [291 Pa.Super. 75, 79, 435 A.2d 226, 229 (1981), appeal dismissed, 499 Pa. 271, 453 A.2d 304 (1982) ]. A new trial should not ordinarily be granted where the evidence is conflicting and the jury could have decided for either party. Carroll v. Pittsburgh, 368 Pa. 436, 445-446, 84 A.2d 505, 509 (1951).

Schoenberger, supra, 369 Pa.Super. at 57, 534 A.2d at 1077.

Review of the record reveals the following. The decedent would have entered a prosperous stage of his career. He had recently been appointed to the Marple Township Zoning Board. He also handled all of the legal affairs of a real estate broker. There was evidence that he spent almost all of his earnings on his family. The Wrongful Death award of $1,246,-147.00 approximated the lowest estimate of damages suggested by an expert economist. Accordingly, this award is well-supported and not excessive.

Mrs. Bonavitacola testified that her husband and she had dated exclusively before they were married. He had provided her with emotional support and managed the family’s finances. Mr. Bonavitacola also helped his wife with daily chores around the house. The $300,000 loss of consortium award is also well-supported by the evidence.

The $500,000 loss of parental guidance award finds support in the evidence regarding the decedent’s devotion towards his two sons. The young children are now without their father’s guidance, tutelage, and friendship.

With regard to Mr. Bonavitacola’s conscious pain and suffering, the evidence showed that he had suffered adverse effects and had spent two weeks in hospital therapy. He was aware of his grave heart problems. He was very concerned about the future of his young children, should he die. This evidence supports the $750,000 award for conscious pain and suffering.

The award, overall, was based upon sufficient evidence; the jury’s verdict was neither capricious nor excessive.

CONCLUSION

We deny appellee’s motion to quash. After careful consideration of appellants’ arguments, we affirm the order of the trial court denying appellants’ post-trial relief.

Motion to quash denied. Order affirmed.

CAVANAUGH, J., filed a dissenting opinion.

CAVANAUGH, Judge,

dissenting:

Since I feel that the majority makes an egregious error in undermining historic precedent which is the bedrock of our system of appellate review, I vigorously dissent. The majority gratuitously reviews this clearly interlocutory appeal from post-verdict motions and establishes a precedent which, if followed, could wreak havoc with established canons of jurisdiction in our appellate courts. The appealing defendants have steadfastly refused to enter judgment citing what can only be described as counsel’s self-proclaimed conflict of economic interests which counsel perceives to exist between the named defendants and their insurance carrier. Appellees, on the other hand, have refused to enter judgment for undisclosed reasons and seek instead a quashal with prejudice.

The majority has acted without precedent. Purported authority is said to be found in three cases which, in fact, stand for an entirely different proposition of law. In McCormick v. Northeastern Bank of Pennsylvania, 522 Pa. 251, 561 A.2d 328 (1989), the court regarded “as done that which ought to have been done” in order to perfect the record in a case where there was no controversy as to the entry of judgment. Similarly, in Summit Fasteners v. Harleysville, 410 Pa.Super. 56, 599 A.2d 203 (1991), the failure to enter judgment was not in controversy and our court engaged in the “ought to be done” fiction. Finally, in Murphy v. Murphy, 410 Pa.Super. 146, 599 A.2d 647 (1991), our court chose to interpret a lower court opinion in a manner which met the standard of finality necessary to our jurisdiction. There is no suggestion that the entry of a properly worded order was a matter of contention between the parties.

Thus, there is no authority which would establish the right of an appellate court to entertain an interlocutory appeal in the face of the refusal for their own reasons of either party to enter a judgment. The majority recognizes the unprecedented nature of its consideration of the merits, but gratuitously undertakes its review on the basis of “judicial economy” to “efficiently dispose of an appeal”. To the contrary, the majority’s precedent, if allowed to stand, will invite confusion in our appellate courts and would furnish a precedent for consideration of interlocutory appeals whenever two judges on a panel consider that the appeal, despite its interlocutory nature, should conveniently be considered. Further, the majority rule supercedes Pa.R.A.P. 1311 Interlocutory Appeals by Permission since an interlocutory appeal may now be heard by a panel without the approval of a majority of the commissioned judges of this court. See Superior Court I.O.P. 302.

The new and radical rule adopted by the majority will seriously affect other established rights and duties which flow from the final order—entry of judgment principle. For example, the time for taking an appeal (Pa.R.A.P. 903) will no longer be fixed from the date of entry of judgment when a panel entertains interlocutory appeals such as the present. Other substantive rights may be affected in bypassing the requirement of entry of judgment. These include collateral attacks on a judgment, merger and bar of causes of action and defenses; establishment of liens; calculation of post-judgment interest and issues relating to the conclusiveness of an adjudication. It is worthy of note that in the instant matter there are unresolved disputes between the parties as to the adequacy of the appeal bond, as to the responsibility of the insurance carrier for costs, as to Rule 238 damages and post-judgment interest—all of which militate against the majority’s unwarranted assumption of jurisdiction.

Finally, we observe that as a result of the majority disposition there is as yet no entry of judgment in this case and presumably an appeal will be pursued to the supreme court with the consequent result that further time will thus elapse while this interlocutory appeal is considered without the appellants having a judgment entered against them.

Appellees request this court to quash with a sanction of prohibiting further pursuing an appeal at a later date. No authority for this severe sanction is furnished to us. Nor is there any explanation for the failure of appellees to enter judgment, a course available to them and certainly a necessary precedent to any effort to execute upon the verdict that they have won. Pa.R.C.P. 227.1; Pa.R.A.P. 301.

I would quash the appeal and deny the request for sanctions.

      . We note that the parties do not dispute that judgment is ready to be entered. See Pa.R.Civ.P. 227.4(2) (upon praecipe of a party, prothonotary shall "enter judgment when a court grants or denies relief but does not itself enter judgment”). We further emphasize that appellee did not praecipe the prothonotary to enter judgment.

      . We note that Judge Cronin was authorized to write the opinion in support of Judge Lawhorne's order denying post-trial relief. See Hutchison v. Luddy, 417 Pa.Super. 93, 113, 611 A.2d 1280, 1289 (1992) (when, due to death, retirement or expiration of judicial commission, predecessor judge is unable to rule on motion, successor judge is empowered to rule "to the same extent that his or her predecessor could have”). See also Commonwealth v. Cannon, 387 Pa.Super. 12, 563 A.2d 918 (1989), allocatur denied sub nom, Commonwealth v. Reap, 525 Pa. 597, 575 A.2d 564 (1989) ("The death, disqualification or absence of a judge will not deprive the surviving or remaining judges of authority to hold court and transact the business of the court and, in fact, to exercise all functions pertaining to the particular court.”). Moreover, the case was tried before a jury, so Judge Lawhorne had made no credibility determinations or factual findings. See Commonwealth ex rel. Davis v. Davis, 268 Pa.Super. 401, 408 A.2d 849 (1979) (where predecessor judge rendered order, successor judge should not have written opinion thereon, as the order was based upon predecessor judge’s factual findings). Furthermore, we may consider Judge Cronin’s opinion, even though it was filed after the appeal was filed, because neither party has questioned his authority to write an opinion explaining reasons for the order and because Judge Cronin did not undertake to reconsider the order. First Pennsylvania Bank v. National Union Fire Ins. Co., 397 Pa.Super. 612, 619 n. 2, 580 A.2d 799, 803 n. 2 (1990).


source: Caselaw Access Project

author: BECK, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    619 A.2d 1374
    COMMONWEALTH of Pennsylvania v. Ly NGOW, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 5, 1992.
    Filed Feb. 16, 1993.

      James S. Bruno, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before DEL SOLE, BECK and BROSKY, JJ.
   BECK, Judge:

The single question on appeal is whether a baseball bat, which has not been specially made or adapted for criminal use, can be an instrument of crime as defined in 18 Pa.C.S. § 907(c)(2). We agree with the trial court and hold that a baseball bat can be an instrument of crime as defined in the Pennsylvania Code. We affirm the judgment of sentence.

Appellant was arrested and charged with aggravated and simple assault, indecent assault, recklessly endangering another person, possessing an instrument of crime and criminal conspiracy. Appellant was found guilty on all counts. A motion for new trial or arrest of judgment was timely filed, argued and denied. Appellant was sentenced to one year probation for possessing an instrument of crime, and concurrent terms of 8 to 23 months in prison on all other charges; this appeal followed.

The trial court found the following facts: Appellant and four other youths were in a vehicle on 5th Street in the Olney section of Philadelphia. One of appellant’s companions, a passenger, shouted a rude comment out the window to a man and a young woman. Appellant and his companions then left the vehicle and proceeded brutally to attack the man by punching, kicking and beating him with a baseball bat while the young woman looked on. Additionally, appellant approached the young woman, laughed and grabbed her left breast. Eventually, police arrived at the scene and all of the attackers were apprehended, identified by the victims and arrested.

Appellant contends that his conviction for possessing an instrument of crime cannot stand as it was based upon insufficient evidence. Essentially, appellant claims that the Commonwealth failed to prove that baseball bats are commonly used to commit crimes. Section 907 of the Pennsylvania Crimes Code provides, in pertinent part:

(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(c) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or specially adapted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.

18 Pa.C.S. § 907.

Appellant frames the instrument of crime issue as one of sufficiency of the evidence and asserts that the Commonwealth has failed to satisfy its burden. We conclude that whether a baseball bat is an instrument that could be “commonly used for criminal purposes” is a question of law to be decided by the court. It is then up to the fact finder to determine, based upon evidence presented by the Commonwealth, whether the instrument was “possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.”

In Com. v. Hudgens, 400 Pa.Super. 79, 582 A.2d 1352 (1990), for example, despite the absence of Commonwealth evidence, the court took judicial notice of the fact that Samurai Swords recently had been used for criminal purposes. It then disposed of appellant’s sufficiency challenges by determining whether there was sufficient evidence that the swords were possessed under circumstances not manifestly appropriate for lawful uses and with the intent to employ them criminally. See also Com. v. Dalahan, 262 Pa.Super. 615, 396 A.2d 1340 (1979) (Court reviewed evidence of circumstances under which defendant possessed tire iron utilized to pry open a window, but did not require any evidence that tire iron is commonly used for criminal purposes.); Com. v. Hall, 304 Pa.Super. 489, 450 A.2d 1018 (1982) (Court found insufficient evidence of intent to employ a knife criminally, but stated as matter of law that a knife is commonly used for criminal purposes). Our view of this issue is also guided by cases in which the question of whether an object was “commonly used for criminal purposes” was not permitted to be decided by a jury, but rather was disposed of as a matter of law by the court. See e.g. Com. v. Myers, 376 Pa.Super. 41, 545 A.2d 309, 314-315 (1988) (Scissors not commonly used for criminal purposes as a matter of law).

By analogy, Com. v. McKetta, 469 Pa. 223, 364 A.2d 1350 (1976), supports our conclusion. The McKetta court held that the question of whether a particular substance is a “dangerous drug” pursuant to The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et seq., is a matter of law to be decided by the Court. The McKetta court stated that where the identity of the substance is not at issue, but there is a question of whether the substance falls into the Act’s definition, the matter is resolved through statutory interpretation which is clearly the province of the court.

In the present case, the statute required proof of four elements: 1) possession of an instrument; 2) commonly used for criminal purposes; 3) under circumstances not manifestly appropriate for lawful use; 4) with the intent to employ it criminally. The second element, that the baseball bat was an instrument commonly used for criminal purposes, was determined by the court as a matter of law. Based upon empirical evidence and common knowledge the court decided that a baseball bat is an instrument that is commonly used for criminal purposes. The court stated:

Unfortunately, the times they are a-changing. It is miserably apparent that young criminals have kept abreast of the law. After the enactment of the Mandatory Sentencing laws in 1982, which required enhanced sentences for gun crimes, many of them took to roaming the streets packing a Louisville Slugger rather than a firearm. Much as burglary tools, innocent items in themselves, are carried by burglars with the intent to break into others’ property, so too are baseball bats being brought by groups of young men to corners and neighborhoods where they expect to meet youngsters of other gangs or races. They seek confrontation. The results have been horrific.
Philadelphia has seen a dramatic upswing in the number of baseball bat-inflicted injuries, a phenomenon which has not gone unnoticed by the medical profession or the media.

Trial Court opinion at 5.

The trial court also based its conclusion upon a review of the case law in Pennsylvania which revealed 20 reported cases' involving crimes with baseball bats in the last ten years, as opposed to only six such cases in the preceding forty-one years. As the Commonwealth recognized in its brief, these figures do not even take into account the numerous additional baseball bat cases which have gone unreported. The trial court observed that the use of baseball bats as instruments of crime is a recent phenomenon.

Appellant asserts that the result in this case is controlled by Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979). We disagree. The Senyszyn court in dicta addressed the question of whether a baseball bat could be an instrument of crime under § 907(c)(2), and refused to so find. Their conclusion is not controlling as it was dicta. Both the Commonwealth and the trial court had conceded that a baseball bat not specially adapted for criminal purposes was not an instrument of crime. Therefore, Senyszyn announced no binding precedent.

In the present case, the evidence presented was sufficient to support appellant’s conviction for possessing an instrument of crime. The court held as a matter of law that a baseball bat was an instrument that could be “commonly used for criminal purposes.” The record established facts which support all of the other elements of possession of an instrument of crime under § 907(c)(2). Appellant was apprehended in possession of a baseball bat. He was not on his way to or from a baseball game, nor was he carrying any other recreational implements such as a glove or a baseball. Appellant beat his victim with the baseball bat. The record also established that appellant had the requisite intent to employ the baseball bat for criminal purposes. It is well-established that intent can be inferred from conduct. See Com. v. Thorton, 494 Pa. 164, 430 A.2d 1168 (1981) (Jury could infer from defendant’s actual criminal use of knife that he possessed it with the intent to employ it criminally). See also Com. v. Hall, supra, 450 A.2d at 1020.

Because we find that the evidence is sufficient to support a finding of guilt beyond a reasonable doubt on the charge of possession of an instrument of crime, we affirm the trial court.

Judgment of sentence affirmed.

DEL SOLE, J., files a dissenting opinion.

DEL SOLE, Judge,

dissenting.

While I agree with the majority and the distinguished trial judge that the times are changing, I cannot agree that this panel is free to disregard Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979). The majority suggests that Senyszyn did not consider 18 Pa.C.S.A. § 907(c)(2), and that its language holding a baseball bat not to be an instrument of crime is dicta. I disagree with both suggestions.

The Senyszyn court opinion states that the appellant asserts that a baseball bat “is not an ‘instrument of crime’ within the meaning of the statutory definition. We agree.” It then went on to set aside the conviction for possession of an instrument of crime. I am hard pressed to conclude that this action is dicta.

Further, the courts holding that a baseball bat is not an instrument of crime was based on Commonwealth v. Rios, 246 Pa.Super. 479, 371 A.2d 937 (1977), a decision concluding that a hammer was not an instrument of crime after analyzing § 907(c)(2). Thus I cannot agree with the majority that there was no consideration of this statute in Senyszyn. I must remind the majority that as a panel court, we are not free to ignore prior panel decisions. Therefore, I dissent.

      . Aside from appellant, the other defendants were juveniles and were tried separately.


author: JOHNSON, Judge:

text:
    619 A.2d 1378
    COMMONWEALTH of Pennsylvania v. Charles A. MANCE, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Feb. 17, 1993.

      Paul D. Boas, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In this appeal we are asked to further define when police conduct during a reverse sting operation becomes so outrageous as to violate due process. A reverse sting is an undercover operation in which the government agents pretend to be selling (rather than as is the more usual case, buying) illicit drugs from the soon-to-be defendants. United States v. Ruiz, 927 F.2d 139 (3d Cir.1991). It is a recognized investigative tool used in law enforcement against middle-level illicit drug dealers.

Charles A. Manee appeals from the judgment of sentence following his jury convictions for criminal solicitation, 18 Pa. C.S. § 902(a), and criminal attempt, 18 Pa.C.S. § 901(a), which resulted from a reverse sting operation in which undercover law enforcement officers purported to sell him one hundred (100) pounds of marijuana. Manee was sentenced to a term of five years’ probation and costs.

Manee maintains that: (1) he was entrapped as a matter of law; (2) police conduct was so outrageous it constituted a violation of due process; and, (3) he was prejudiced by the admission of irrelevant testimony concerning the drug trafficking business. Because Manee raises no claim of merit, we affirm.

Manee was telephoned in late December, 1987, or early January, 1988, by an acquaintance, Rocco Scarfone, who had become a paid informer for Detective Steven Medley, an undercover narcotics officer for the Fort Lauderdale, Florida, police. Scarfone testified that during the first telephone conversation, Manee asked him whether he knew if any marijuana was available. While Scarfone told Manee that he would see if any marijuana was available, in actuality, he reported the inquiry to Medley. Medley instructed Scarfone what Manee should be told when Scarfone called Manee back.

Scarfone testified that he had one or two additional telephone conversations with Manee before establishing a three-way telephone conversation with Medley, who pretended to be the seller of the marijuana. It is undisputed that the initial calls between Scarfone and Manee were not recorded. There were three telephone conversations, secretly recorded, between Scarfone, Manee, and Medley. These three-way conversations disclose Manee negotiating the sale and delivery of the 100 pounds of marijuana for $50,000. Manee also agreed to fly to the Charlotte, North Carolina, airport to sample the marijuana he was buying, and to give Medley $1000 in expense money, with delivery of the 100 pounds to be made later in Pittsburgh.

The meeting at the Charlotte airport, also secretly recorded, occurred as planned. Two days later Scarfone, accompanied by various law énforcement agents, came to Pittsburgh and met with Detective William Joyce of the narcotics section of the Pittsburgh Police. Joyce became the team leader for the finale. Ostensibly arranging for the delivery of the marijuana, Scarfone, in another recorded conversation, called Manee at his home and told him where Manee could meet Scarfone and the driver (actually an undercover agent) to complete the deal. Manee came to the designated meeting spot, displayed the money, and after the government agent agreed to exchange the marijuana at Mance’s house, Manee was arrested.

Manee testified that when he had first met Scarfone a number of years earlier, Scarfone bragged about his connections with organized crime and ability to supply illicit drugs. According to Manee, Scarfone had pressured him into buying some cocaine after Scarfone had provided Manee with a discounted hotel room and rental car in Florida. Through the ensuing years, Manee secured a college degree, obtained a good job with Westinghouse Electric Corporation, got married and had children. Manee claimed that Scarfone had called him some eight or ten times, starting in October, 1987. Manee testified that when Scarfone telephoned him toward the end of 1987, he told Manee that he was in financial trouble because he couldn’t pay the money he owed to some “big people,” who were threatening him. If Manee could help Scarfone sell their marijuana, it would reduce Scarfone’s debt. Manee asserted that he agreed to purchase the marijuana in order to help Scarfone.

Initially, Manee contends that he was entrapped as a matter of law. Entrapment is defined as:

(a) General rule.—A public law enforcement official or a person acting in cooperation with such an official perpetrates an entrapment if for the purposes of obtaining evidence of the commission of an offense, he induces or encourages another person to engage in conduct constituting such offense by either:
(1) making knowingly false representations designed to induce the belief that such conduct is not prohibited; or
(2) employing methods of persuasion or inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it.
(b) Burden of proof.—Except as provided in subsection (c) of this section, a person prosecuted for an offense shall be acquitted if he proves by a preponderance of the evidence that his conduct occurred in response to an entrapment

18 Pa.C.S. § 313.

The entrapment statute “places the burden of proof on the defendant and applies an objective test with regard to police conduct.” Commonwealth v. Dukeman, 413 Pa.Super. 397, 408, 605 A.2d 418, 423 (1992). Once a defendant has properly established the defense of entrapment, “the trial court should determine the question as a matter of law wherever there is no dispute as to the operative facts relating to the defense.” Commonwealth v. Thompson, 335 Pa.Super. 332, 341, 484 A.2d 159, 164 (1984).

In Commonwealth v. Wright, 396 Pa.Super. 276, 578 A.2d 513 (1990), alloc. denied, 526 Pa. 648, 585 A.2d 468 (1991), we set forth the standard for determining whether entrapment as a matter of law exists, stating:

Whether an “entrapment has occurred is a question for the jury, unless the evidence points to only one conclusion, in which case it may be decided as a matter of law.”
Moreover, where there is conflicting testimony on the subject of inducement, the matter is properly left for the jury to resolve.

Id., 396 Pa.Super. at 288-289, 578 A.2d at 519-520 (citations omitted). See also Commonwealth v. Weiskerger, 520 Pa. 305, 554 A.2d 10 (1989).

After a thorough review of the record, we conclude that Mance’s argument is without merit. The testimony of the informant, Scarfone, and the testimony of Manee is in sharp conflict on the matter of whether Manee voluntarily entered into the illicit drug transaction or whether the illicit drug transaction was improperly induced by Scarfone. Scarfone’s testimony was that he contacted Manee because he knew that Manee had been involved in purchasing marijuana in the past (which Manee had denied). Scarfone also testified that during his initial conversation with Manee, Manee asked Scarfone whether any marijuana was available. Moreover, the recorded conversations vividly portray Manee as an experienced marijuana dealer attempting to negotiate the sale and delivery of 100 pounds of marijuana. Detective Medley’s testimony supported Scarfone’s version of the deal. Manee testified that Scarfone first started calling him in late October, 1987, and called him somewhere between eight and ten times before the first recorded telephone call with Medley. Manee contends that he was induced to purchase the marijuana by Scarfone’s plea for assistance in paying off the debt Scarfone owed to some “big people.” Manee claimed that Scarfone coached him in what to say before the recorded telephone conversations with Medley.

Thus, the issue is whether Manee was induced to participate in the scheme. Where there is conflicting testimony on the subject of inducement, there is not, and cannot be, entrapment as a matter of law. The conflict is for the jury to resolve. Wright, supra. The judge properly denied Mance’s motion on the basis of entrapment as a matter of law.

Next, Manee claims that the government’s conduct in this case was so outrageous that it violated due process. We conclude that the facts do not support this claim.

“The question whether government conduct has been so outrageous as to constitute a violation of due process is a question of law to be determined by the court, not the jury.” Commonwealth v. Benchino, 399 Pa.Super. 521, 526, 582 A.2d 1067, 1069 (1990) (citations omitted). Only in the rarest and most outrageous circumstances will government conduct in a criminal investigation be found to violate due process. Id. at 527, 582 A.2d at 1069.

Before the conduct of law enforcement officials or government agents will be found to have violated due process, however, it must be shown that police conduct was “so grossly shocking and so outrageous as to violate the universal sense of justice.” The establishment of a due process violation “generally requires ‘proof of government overinvolvement in the charged crime and proof of the defendant’s mere passive connection to the government orchestrated and implemented criminal activity.’ ” Moreover, for due process to bar a conviction, the government’s involvement in the commission of the crime “must be malum in se or amount to engineering and direction of the criminal enterprise from beginning to end.”

Id. (citations omitted) (emphasis in original).

This case is similar to Benchino. Benchino involved a reverse sting in which the defendant claimed that his due process rights were violated because he had been implicitly threatened by the Commonwealth’s informant, to whom he owed a drug-related debt. The defendant alleged that these threats caused him to purchase drugs from an undercover narcotics agent. This court rejected Benchino’s claim.

“[T]he mere fact that an investigation has begun without probable cause or reasonable suspicion does not violate due process.” Id. at 527, 582 A.2d at 1070. The government does not violate due process simply by employing an undercover or reverse sting operation, or because its agents supply ingredients for commission of a crime or contraband to a defendant. Id. at 528, 582 A.2d at 1070.

Providing Manee with a sample of the márijuana did not offend due process. See Commonwealth v. Delligatti, 371 Pa.Super. 315, 538 A.2d 34 (1988), alloc. denied, 520 Pa. 595, 552 A.2d 250; Benchino, supra. Due process is not offended because the investigation began without probable cause or reasonable suspicion, nor is due process offended because it was a reverse sting operation conducted by the police. Ben-chino, supra. Moreover, Manee was not improperly induced to purchase illicit drugs even if the police gave Manee the opportunity to make a substantial profit on the transaction by offering the marijuana at $500 per pound, delivered to Pittsburgh, when marijuana was then selling in Pittsburgh on the street at $1200 to $1500 per pound. Benchino, 399 Pa.Super. at 525, n. 2, 582 A.2d at 1069, n. 2.

We cannot conclude that the police conduct with respect to informant Scarfone was so grossly shocking and outrageous as to violate the universal sense of justice. There is no due process violation merely because an informant receives money for cooperating in a reverse sting, even if the compensation was on a contingent basis. Id. at 529, 582 A.2d at 1071. Scarfone’s financial interest here, the $1,500 he was subsequently paid by various law enforcement agencies, was simply a matter to be considered by the jury in determining his credibility. Ruiz, supra. Furthermore, we cannot conclude from the record that the government purposefully failed to preserve evidence by not recording the initial telephone conversations between Scarfone and Manee, as Manee infers. Rather than amounting to outrageous conduct, such an act would, at best, strengthen a defendant’s claim that he was entrapped. United States v. Olson, 978 F.2d 1472, 1482 (7th Cir.1992). We observe that the jury was properly charged on entrapment, and weighed this evidence in reaching its determination that Manee had not been entrapped. We also note that at trial the government had provided an adequate explanation of the failure to record the initial telephone calls between Manee and Scarfone. “Mere negligence cannot serve as the predicate for government misconduct.” Id.

The most that can be said of Scarfone’s involvement is that he was an intermediary between the police and Manee. According to Mance’s own testimony, Scarfone was just an acquaintance, a braggart boasting of his mob and drug connections, who had pressured Manee into buying cocaine from him a number of years earlier after he had provided Manee with a discounted hotel room and rental car in Florida. Viewed in its entirety, we do not find this to be coercive police conduct. See Commonwealth v. Timer, 415 Pa.Super. 376, 609 A.2d 572 (1992).

Scarfone’s actions were part of the ordinary tactics in narcotics trafficking, and were necessary to maintain a credible cover. Benchino, 399 Pa.Super. at 529, 582 A.2d at 1070-1071. We are constrained to conclude that Manee was simply contacted and afforded the opportunity to commit the crime. Here, we cannot find the level of police overinvolvement which constitutes a violation of due process.

Finally, Manee contends that the trial court erred in admitting Detective Medley’s testimony regarding the drug trafficking trade. We conclude that Mance’s claim that this testimony was prejudicial and irrelevant is also without merit.

Matters relating to the admissibility of evidence are within the sound discretion of the trial court, and an appellate court will not reverse the trial court’s ruling absent a clear abuse of discretion. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987); Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982). This court has said that an abuse of discretion can be found if it appears that the trial judge admitted irrelevant evidence that was prejudicial to the accused or evidence the probative value of which was outweighed by its prejudicial impact or its tendency to suggest a decision on an improper basis. Commonwealth v. Shain, 324 Pa.Super. 456, 462, 471 A.2d 1246, 1248 (1984); see also Commonwealth v. Day, 399 Pa.Super. 399, 582 A.2d 655 (1990). Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case, it tends to establish facts in issue, or it in some degree advances the inquiry and thus has probative value. Shain, 324 Pa.Super. at 462-463, 471 A.2d at 1249. Thus, we must evaluate the relevance of the evidence admitted by the trial court’s rulings and then weigh relevancy and probative value against prejudicial impact.

The record reveals that Manee failed to object to Medley’s initial reference to South Florida as the hub through which marijuana is imported into the United States. Manee did, however, object to Medley’s explanation of a typical illicit drug distribution chain. Manee argued then, as now, that the evidence was irrelevant because no marijuana actually existed. Manee also contends that there was an unspoken inference that this evidence somehow connected him to Manual Noriega and the invasion of Panama.

We find both arguments meritless. The evidence was inherently relevant to the jury’s understanding of the facts of this case, as the prosecutor aptly noted at sidebar following Mance’s. objection. Manee was buying 100 pounds of commercial grade marijuana for $50,000 from a marijuana wholesaler, clearly placing him in the distribution chain. It does not matter that the marijuana did not materialize. A description of the chain of marijuana distribution enabled the jury to understand the role that Detective Medley was playing in the operation, i.e., a bulk marijuana dealer from South Florida negotiating a sale to a new customer/distributor from Pennsylvania. This evidence further clarified the recorded conversations concerning the negotiations for the sale of the marijuana. This evidence is relevant and probative.

While relevant evidence may be inadmissible if it is too prejudicial or would tend to support a jury verdict on an improper basis, neither condition exists here. We conclude that the evidence was properly admitted by the trial court, and find no error.

For all of the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.


author: OLSZEWSKI, Judge: KELLY, Judge,

text:
    619 A.2d 1383
    COMMONWEALTH of Pennsylvania v. Kenneth MATTY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Decided Feb. 9, 1993.

      Joseph M. Fioravanti, Media, for appellant.
    Dennis McAndrews, Asst. Dist. Atty., Media, for Commonwealth, appellee.
    Before OLSZEWSKI, KELLY and HOFFMAN, JJ.
   OPINION

OLSZEWSKI, Judge:

Kenneth Matty appeals from the judgment of sentence imposed on a guilty verdict for theft of services and criminal solicitation to commit theft of services in the Court of Common Pleas of Delaware County on May 26,1992. Three issues are presented for our review: (1) whether there was sufficient evidence to sustain Matty’s conviction for theft and solicitation to commit theft of services; (2) whether Matty may be legally convicted of solicitation to commit a summary theft offense; and, (3) whether Matty was properly convicted of solicitation to commit theft of services when he was not charged with this particular solicitation offense. After lengthy deliberation, we find that the trial court did not err in its disposition of these issues and affirm the judgment of sentence.

Matty was charged on September 19, 1991, with eight counts of theft by unlawful taking or disposition, eight counts of receiving stolen property, six counts charging theft of services, six counts of criminal solicitation, and six counts of violating the Pennsylvania Ethics Act. These charges arose out of allegations that Matty had misappropriated county labor, materials and other items for his own benefit. As Warden of Delaware County Prison, Matty was responsible for the supervision of all prison employees. The Commonwealth charged that Matty had improperly used prison personnel and materials to make substantial improvements to his property, and the property of others. Following a trial before the Honorable R. Barclay Surrick, the jury found Matty guilty of the summary offense of theft of services in the amount of $32. 18 Pa.C.S.A. § 3926. Relating to this offense, Matty was also convicted of criminal solicitation, in violation of 18 Pa.C.S.A. § 902. Post-trial motions were filed and denied. Matty was sentenced to pay $32 in restitution; no further punishment was imposed. Matty was thereafter permanently suspended from his position as warden.

Matty’s first contention of error is that the evidence was insufficient to support the charge that Matty intentionally obtained the labor and services of a Delaware County Prison employee, George Piasecki, “by deception or threat, or by false token or other trick or artifice to avoid payment for these services.” Bill of Information 7067(B). We disagree.

The test for sufficiency of the evidence is well established. Viewing all of the evidence in the light most favorable to the Commonwealth as verdict winner, the record facts must contain sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Edwards, 521 Pa. 134, 555 A.2d 818 (1989) (and authorities cited therein).

The evidence adduced at trial reveals that on June 6, 1991, Matty and Piasecki went to the house of Jean Gullo, the mother of Matty’s secretary, to install a ceiling fan. The two remained there from approximately 8:30 a.m. until 11:30 a.m. during the prison workday. Matty assured Piasecki that he would be “taken care of’ for the work performed. Piasecki was paid $32 by the county for the hours performed at Gullo’s home.

Matty argues that the trial court erroneously concluded that he intended to commit theft of services merely because he told Piasecki he would be compensated. Specifically, he urges that the Commonwealth failed to offer the necessary proof that he approved and authorized Piasecki’s timecard which indicated that Piasecki had worked at the prison during the hours in question. Matty also asserts that he did not know that Piasecki was compensated on the payroll and that he intended to “compensate” Piasecki himself. Thus, Matty concludes that the evidence was legally insufficient to sustain a guilty verdict for the summary offense of theft of services and solicitation to commit this offense.

Mindful of our standard of review, we are convinced that a reasonable jury could have found that Matty intended to commit theft of services and solicitation to commit theft of services. As did the trial court, we find that the evidence viewed in the light most favorable to the Commonwealth sufficiently proved the elements of the crimes charged. Section 3926 provides in pertinent part:

Diversion of Services—A person is guilty of theft if, having control over the disposition of services to others to which he is not entitled, he knowingly directs such services to his own benefit or to the benefit of another not entitled thereto.

18 Pa.C.S.A. § 3926(b). The offense of solicitation is defined as follows:

A person is guilty of solicitation to commit a crime if with the intent of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would establish his complicity in its commission or attempted commission.

18 Pa.C.S.A. § 902(a). The trial court found that Matty clearly had control over the disposition of services rendered by Piasecki. Matty diverted those services for the benefit of Gullo, who was not entitled to receive them. (Reproduced Record, at 80A.) The Commonwealth proved that Matty knew the services were being diverted because the Commonwealth established that Matty was with Piasecki on the morning in question and knew that Piasecki was scheduled to work at the prison during those hours. (Reproduced Record, at 81A.) Testimony also demonstrated that Matty reviewed the time cards and approved the prison payroll. (N.T., 1/9/92, at 222-227.) Lastly, the trial court concluded the evidence established that Matty requested that Piasecki engage in this conduct. (Reproduced Record, at 366A.) See, trial court opinion at 7. Our review of the record is in accord with the trial court’s findings. Accordingly, we affirm the trial court’s holding that the evidence was sufficient to support Matty’s convictions.

Matty’s second allegation of error urges that he was convicted of an offense which does not exist under the Pennsylvania Crimes Code. Matty alleges that he cannot be convicted of solicitation to commit theft of services in an amount less than $50 because such a theft is a summary offense rather than a crime. The offense of solicitation by definition requires that a “crime” has been attempted or committed. 18 Pa.C.S.A. § 902. Matty’s argument is predicated on his assertion that summary offenses are not included in the definition of “crimes” as set forth in 18 Pa.C.S.A. § 106. Section 106(a) sets forth the seven classes of crimes ranging from murder to misdemeanor in the third degree. “Summary offense” is defined separately in § 106(c).

Our Courts have considered and rejected Matty’s argument. James K. Lewis v. Commonwealth, 74 Pa.Commwlth. 335, 459 A.2d 1339 (1983). In Lewis, appellant argued that he could not be convicted as a parole violator because his conviction for a summary offense did not amount to a conviction for a crime. Appellant asserted the same argument as Matty, that because the legislature did not list “summary offenses” under the classes of crimes generally enumerated in § 106(a) and (b) of the Crimes Code, but defined them separately in § 106(c), the legislature did not intend for summary offenses to be crimes. Id. at 337, 459 A.2d at 1341. The Leiois Court rejected these arguments noting that § 106(a) states, “an offense ... for which a sentence of death or imprisonment is authorized constitutes a crime.” Because imprisonment is authorized under § 106(c) for a summary offense, the Court concluded that the commission of a summary offense constitutes a crime under the Crimes Code. Id. (citing Interest of Golden, 243 Pa.Super. 267, 365 A.2d 157 (1976)); see also Commonwealth v. Trunzo, 404 Pa.Super. 15, 589 A.2d 1147 (1991) (“summary offense” is considered a “crime” for which punishment of imprisonment, fíne and/or probation attaches). We are obliged to follow the prevailing authority of this jurisdiction, and thus find that Matty’s conviction for solicitation to commit a summary offense was proper.

In his third allegation of error, Matty argues he was improperly convicted of solicitation to commit theft of services because he was not charged with this crime. The bills of information charged Matty with solicitation to commit theft by unlawful taking, and solicitation to commit theft by receiving stolen property. The information did not charge Matty with solicitation to commit theft of services. The essence of Matty’s argument in this regard is that he was defending the crimes charged in the information, not the crime for which he was convicted. He concludes that the substantial variance between the information and the evidence presented at trial warrants reversal of his sentence. Appellant’s brief, at 22.

We find that Matty waived this issue regarding the legality of his conviction for solicitation when he failed to object to the court’s instructions to the jury on the elements of the offense. Rule 1119(b) provides that “[n]o portions of the charge nor omissions therefrom may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate.” Pa.R.Crim.P., Rule 1119, 42 Pa.C.SA. The present jury was charged on the elements of the offense of theft of services, and was instructed to find Matty guilty of solicitation if it found him guilty of theft. (N.T., 1/13/92 at 6-7, 24-27, 29-30.) Further, the jury was provided with verdict slips which included this offense. As the Commonwealth noted, Matty never objected to the court’s instruction or the verdict slips. Conversely, defense counsel specifically agreed that it was not necessary for the verdict slip to divide the solicitation charge into the various theft offenses allegedly committed by Matty. (N.T., 1/13/92, at 6-7.) Matty’s failure to contemporaneously object to the jury instructions or the verdict slip, therefore, operates as a waiver. Commonwealth v. Fuller, 396 Pa.Super. 605, 579 A.2d 879 (1990) (alleged errors in jury instruction waived by failure to raise objection prior to jury’s retiring for deliberation); Commonwealth v. Troning Anthony Lewis, 407 Pa.Super. 186, 595 A.2d 593 (1991).

Assuming for the purposes of argument that Matty’s claims were not waived, we would still find his argument to be without merit. Section 3902 of the Crimes Code consolidates the various theft offenses defined in Chapter 29 into a unitary theft offense. Section 3902 provides:

Conduct denominated theft in this chapter constitutes a single offense. An accusation of theft may be supported by evidence that it was committed in any manner that would be theft under the chapter notwithstanding the specification of a different manner in the complaint of indictment, subject only to the power of the court to ensure fair trial by granting a continuance or other appropriate relief where the conduct of the defense would be prejudiced by lack of notice or surprise.

18 Pa.C.S.A. § 3902. The purpose of § 3902 is to reduce the opportunity for technical defenses based upon legal distinctions between thefts of various kinds. Commonwealth v. Martin, 395 Pa.Super. 244, 577 A.2d 200 (1990). Thus, an accusation of theft may be supported by evidence that it was committed in any manner that would be theft under the Crimes Code, notwithstanding the specification of a different manner in the complaint or indictment. Commonwealth v. James Lewis, 299 Pa.Super. 367, 445 A.2d 798 (1982). This is true as long as defendant has an opportunity to respond, and is not prejudiced by lack of notice or surprise. Martin, 395 Pa.Super. at 247, 577 A.2d at 202.

Here, the evidence was insufficient to prove theft by unlawful taking or theft by receiving stolen property, however, the evidence did establish that Matty committed theft of services. Thus, the Commonwealth established that Matty had the thieving state of mind necessary to support the solicitation charge. Moreover, the operation of § 3902 did not deprive Matty of a fair trial since he was aware that he had been charged with solicitation to commit theft, and had an opportunity to respond to the charge of theft of services. Accordingly, we find that it was not error to convict Matty of solicitation to commit theft of services in addition to the conviction for theft of services.

We are not unmindful of the lenient sentence imposed by the trial judge in this case. Recognizing that Matty had already suffered the loss of his job and good reputation, the trial judge only directed that Matty pay $32 in restitution and declined to impose a fine or prison sentence. The judge also noted that the jury acquitted Matty of over thirty counts of serious criminal conduct, resting its verdict on a single incident of misconduct: the installation of a fan for the mother of an employee. In the absence of more serious charges, such an offense would have been handled at the magisterial level. Under the circumstances, we feel obliged to explore the question of whether or not this case falls within the principles of the de minimis infraction provision of the Crimes Code.

The Pennsylvania Legislature has bestowed upon our courts the discretion to remove culpable conduct from criminal liability in certain situations. The statute provides:

(a) General Rule—The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense;
(2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or
(3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

18 Pa.C.S.A. § 312.

In Commonwealth v. Moll, 375 Pa.Super. 147, 156, 543 A.2d 1221, 1226 (1988), we stated that the purpose of § 312 is “to remove petty infractions from the reach of the criminal law.” Moll was arrested and charged with criminal mischief after he cut a hole in a drain pipe which had been installed by the county borough. Moll’s purpose in cutting the hole was to avoid flood damage to his property (this did, in fact, alleviate the problem). Our Court found that Moll lacked the criminal culpability required for conviction of criminal mischief. Moreover, evidence at trial indicated that the hole was not large enough to cause damage to the county’s system. Thus, we concluded that Moll had not caused the harm or evil sought to be prevented by the law and dismissed the prosecution as a de minimis infraction pursuant to § 312.

Here, Matty’s conduct was clearly in violation of § 3926(b) since he was in control of the disposition of county maintenance services and he directed $32 worth of those services to someone not entitled to them. The theft of such an amount, although seemingly de minimis, was clearly envisaged by the legislature to be incorporated into this offense:

(1) An offense under this section constitutes a summary offense when the value of the services obtained or diverted is less than $50.00.

18 Pa.C.S.A. § 3926(c)(1) (emphasis added). Moreover, in Commonwealth v. Moses, 350 Pa.Super. 231, 504 A.2d 330 (1986), we rejected the argument that the application of § 312 may rest solely on the monetary consequences of a defendant’s conduct. Moses was convicted for robbing a 10-year-old boy of his candy money ($.35); however, he alleged that his conduct amounted to no more than a de minimis infraction under § 312. Our Court held that while “thirty-five cents may seem a trifling amount to support a robbery conviction ... the economic success of criminal activity is not the sole criterion of its criminality.” Moses, 350 Pa.Super. at 234, 504 A.2d at 332. Accordingly, Matty’s conviction cannot be said to be inconsistent with the purpose of the law defining the offense. Having found the de minimis statute inapplicable, we will not reverse the conviction and substitute our judgment for that of the jury.

For the reasons set forth above, the judgment of sentence imposed by the Court of Common Pleas of Delaware County must be affirmed.

Dissenting Statement by KELLY, J.

KELLY, Judge,

dissenting:

Because I find that appellant committed no more than a de minimis infraction, 18 Pa.C.S.A. § 312, I dissent. Section 312(a)(2) is a legislative grant of authority to the courts to exercise discretion and spare a transgressor from the “condemnation of conviction.” 18 Pa.C.S.A. § 312(a)(2). See also Commonwealth v. Moses, 350 Pa.Super. 231, 235, 504 A.2d 330, 332 (1986) (statute applies where “there is no harm to either the victim or society”). Moreover, if another area of the law effectively dispels the need for conviction, the prosecution should be dismissed as unnecessary. See Commonwealth v. Jackson, 354 Pa.Super. 27, 30, 510 A.2d 1389, 1391 (1986) (prisoners appropriately “dealt with administratively by the prison authorities”); cf. Commonwealth v. Gemelli, 326 Pa.Super. 388, 400-01, 474 A.2d 294, 301 (1984) (dismissal as de minimis was especially inappropriate because appellee waived the issue of whether Escheat law applied).

In the instant case, appellant was convicted for utilizing the assistance of a county employee to help him install a ceiling fan in the home of a friend during working hours. Appellant was also removed from his position as a warden and remained unemployed. Although appellant may have undermined principles of the workplace, the extent to which he violated the crimes’ code was so minor that he should be spared the condemnation of conviction. Moreover, even before he was prosecuted, appellant was punished by forces other than the criminal law to the degree necessary to deter him from repeating the minor transgression. Therefore the prosecution and subsequent conviction furthered'no legitimate criminal law purpose, but only served to condemn appellant. Because section 312 was enacted for precisely this type of case, I would vacate judgment of sentence. Hence, I dissent.

      . Section 3926(c)(1) of the Pennsylvania Crimes Code provides in relevant part:

        (1) An offense under this section constitutes a summary offense when the value of the services obtained or diverted is less than $50.00.

      . Classes of Offenses
      (a) General rule.—An offense defined by this title for which a sentence of death or of imprisonment is authorized constitutes a crime. The classes of crime are:
      (1) Murder of the first degree or of the second degree.
      (2) Felony of the first degree.
      (3) Felony of the second degree.
      (4) Felony of the third degree.
      (5) Misdemeanor of the first degree.
      (6) Misdemeanor of the second degree.
      (7) Misdemeanor of the third degree.
      (c) Summary offenses.—An offense defined by this title constitutes a summary offense if:
      (1) it is so designated in this title, or in a statute other than this title; or
      (2) if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than 90 days.

      . The charge on solicitation simply referred to "theft” without delineating between the different types of theft for which Matty was charged.

        . Noting that § 312 applies to situations in which there was no harm done to society, we concluded that “it is incumbent upon the trial judge not to dismiss criminal conduct that is injurious to the victim or society.” Moses, 350 Pa.Super. at 235, 504 A.2d at 332.

      . See Commonwealth v. Kirkwood, 360 Pa.Super. 270, 276 n. 1, 520 A.2d 451, 454 n. 1 (1987) (Cavanaugh, J., concurring) ("Although appellant did not argue dismissal on this basis before the lower court, dismissal for a de minimis infraction should be granted sua sponte where the circumstances warrant.”); Martin H. Belsky, Joseph Dougherty and Steven H. Goldblatt, Three Prosecutors Look At the New Pennsylvania Crimes Code, 12 Duquesne L.Rev. 793, 807 (1974) ("Section 312 gives the judiciary power to dismiss any prosecution at any stage or for any crime.”).

      . While I recognize that appellant’s conduct was the type that the legislature sought to prevent, see 18 Pa.C.S.A. § 3926(b), "an inquiry under § 312(a)(2) cannot end with this conclusion.” Commonwealth v. Eliason, 353 Pa.Super. 321, 329, 509 A.2d 1296, 1300 (1986), allocatur denied, 517 Pa. 592, 535 A.2d 81 (1987) (Brosky, J., dissenting). Pursuant to section 312, we must still determine whether appellant’s transgressions were so minor that the condemnation of conviction was warranted. Id.

      Likewise, while a robbery of thirty-five cents may not be considered de minimis due to the circumstances of the crime (beyond the amount of money stolen), see Commonwealth v. Moses, 350 Pa.Super. 231, 504 A.2d 330 (1986), a theft of thirty-two dollars worth of services may be a de minimis infraction due to the circumstances of this case. See Commonwealth v. Eliason, supra (Brosky, J., dissenting) ("The application of § 312 must inherently turn on the offense involved in and the circumstances of each particular case. Other cases are of little value in resolving a § 312 question.”).

      . Appellant testified that he was suspended without pay in September and was still unemployed at the time of trial in January. See N.T. January 10, 1992 at 506.


author: BECK, Judge.

text:
    620 A.2d 1
    Dennis CANTY, Appellant, v. SUN TRANSPORT, INC.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 29, 1992.
    Reargument Denied Feb. 25, 1993.

      Sidney J. Smolinsky, Philadelphia, for appellant.
    Lorraine B. Consorte, Philadelphia, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge.

The issue in this maritime case is whether appellant made out a prima facie case that appellee-shipowner was negligent under the Jones Act, 46 U.S.C.App. § 688, or that appellee’s vessel was unseaworthy under general maritime common law. The trial court granted appellee’s motion for a nonsuit. We affirm.

Plaintiff-appellant Dennis Canty sued appellee for personal injuries he suffered while employed aboard appellee’s vessel. At trial, the only liability evidence presented by appellant was his own testimony. He was employed as an automotive oiler on board appellee’s ship New York Sun. Appellant was instructed by his supervisor to paint a large fixed piece of equipment known as a sludge pump, located in the lower engine room of the ship. Appellant testified that he was familiar with the pump, which was located next to a bulkhead, or wall. He had previously completed a painting assignment, and already had a paint brush. Therefore, he stated that “all [I] had to get was” the paint. He went to the ship’s paint locker, got the paint, and began to paint the pump.

When he finished with the front of the pump, he began to paint the back of it. The back of the pump was located next to the ship’s bulkhead and was surrounded by pipes running to it. Appellant testified that in order to reach this part of the pump, he had to “stretch and [he] had to reach and twist all at the same time.” N.T. 6/20/90, 37. Appellant testified that he then felt a “pop or a snap like in the lower part, middle part of [his] back.” N.T. 6/20/90, 38. He was later diagnosed as having back sprain or strain.

Appellant testified that in previous shipboard painting assignments he had used a “manhelper”—an extension pole to which he could clamp a paint brush—in order more easily to paint remote areas. Appellant did not use a manhelper while painting the sludge pump, although he testified that such a tool would have made his painting job easier. Appellant did not present evidence that there were no manhelpers on board the New York Sun at the time of this incident.

After appellant testified, appellee moved for a nonsuit, which motion was granted. Appellant filed a motion for post-trial relief for removal of nonsuit, which was denied. This timely appeal followed.

A judgment of nonsuit may be entered only in clear cases and the appellant must be afforded the benefit of every fact and reasonable inference arising from the evidence. McNally v. Liebowitz, 498 Pa. 163, 445 A.2d 716 (1982); Forry v. Gulf Oil Corp., 428 Pa. 334, 237 A.2d 593 (1968). Nonsuit is proper where the facts are so clear that reasonable people could not differ as to the finality of their evidentiary import. Francis v. Henry, 399 Pa. 369, 160 A.2d 455 (1960); Gaines v. Philadelphia Trans. Co., 359 Pa. 610, 59 A.2d 916 (1948). Because we agree with the trial court that appellant did not present evidence sufficient to make out a prima facie liability case, we affirm.

Appellant brought this action seeking recovery for his injuries under two theories: 1) unseaworthiness under the general maritime common law and 2) negligence under the Jones Act. Each of appellant’s theories of recovery provides a broader basis for recovery than traditional negligence law.

Under maritime common law a shipowner is strictly liable for failing to furnish a “seaworthy” ship. Liability for failing to provide a seaworthy ship arises independently of any duty to exercise reasonable care. See Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946); Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944); Klineburger v. Maritrans, 404 Pa.Super. 490, 591 A.2d 314, 316 (1991), app. den., 529 Pa. 635, 600 A.2d 954 (1991), cert. den., — U.S. -, 112 S.Ct. 1762, 118 L.Ed.2d 425 (1992).

“Seaworthiness” is another of those terms in the law which by

reason of its appearance in different contexts has developed an elusiveness making impossible an omnisufficient definition.... It is said that “[t]he concept of seaworthiness contemplates no more than that a ship’s gear shall be reasonably fit for its intended purpose.” Yet examination of a great many personal injury cases in which claims of unseaworthiness were presented leads to the conclusion that those cases are of two categories, both of which fit this general definition. One is where the shipowner, having knowledge—actual or constructive—that certain activity will occur, is imposed with an absolute duty of supplying equipment for permitting the conduct and accomplishment in reasonable safety of that activity.... The other category is where the equipment actually supplied by the owner for doing the ship’s work proves incapable of performing its function in the manner for which it was designed.

Mesle v. Kea Steamship Corp., 260 F.2d 747, 750-51 (3d Cir.1958), cert. den., 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959) (footnotes omitted).

In order for the shipowner to be strictly liable, appellant must prove that the ship was not seaworthy. Thus, if the shipowner failed to supply equipment for a crew member to do a job with reasonable safety, then the shipowner may be strictly liable because the ship is then considered unseaworthy. See e.g., Mahnich, supra; Seas Shipping, supra; Mesle, supra.

The question in the instant case is whether the court erred in granting a nonsuit because the court concluded that appellant had not made out a prima facie case of unseaworthiness; i.e., that appellee-shipowner failed to provide the equipment necessary for appellant to do his job with reasonable safety. We find no error. In order to make a prima facie case it was necessary for appellant to present evidence that the equipment necessary for him to do the paint job with reasonable safety was not available. All appellant showed was that he did not use a manhelper, not that one was unavailable. He did not provide any evidence that appellee had breached his duty by failing to provide the equipment with which he could do his job with reasonable safety. There was no evidence that he looked for and did not find a manhelper or that one was unavailable. From the evidence presented at trial, a jury could not conclude that the ship was unseaworthy.

We are not persuaded by appellant’s argument and refuse appellant’s invitation to read into the law the requirement that the appellee had a duty physically to place a manhelper into appellant’s hands even though appellant was familiar with the equipment and had used such equipment before. We conclude the ship was not unseaworthy.

None of the cases cited by appellant are apposite. None of them addresses the question of whether the issue of unseaworthiness should be submitted to the jury where plaintiff failed to show that equipment necessary for him to do the job with reasonable safety was not available. See e.g., Mahnich supra; Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960); Boudoin v. Lykes Bros. S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955); Waldron v. McCormick Lines, Inc., 386 U.S. 724, 87 S.Ct. 1410, 18 L.Ed.2d 482 (1967). See also Richards v. Dravo Corp., 249 Pa.Super. 47, 375 A.2d 750 (1977).

Alternatively, appellant argues that The Jones Act makes available to seamen injured in the course of their employment a right of recovery for injuries resulting from the shipowner’s negligence. Klineburger, supra. The Jones Act permits an injured seaman to recover for injuries on a theory of negligence which is different from and in addition to the strict liability theory established under the doctrine of unseaworthiness. Id.

The requirements for recovery under the Jones Act are less stringent than under common law tort liability. Under the Jones Act the plaintiff does not have to prove proximate cause. The causation factor is more attenuated and liability will attach if the proofs justify an inference that the employer’s negligence was even a slight causative factor in producing the injury. See Rogers v. Missouri Pacific Railway Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957). However, this does not mean that a plaintiff “may prevail on no evidence at all.” Perry v. Morgan Guaranty Trust Co., 528 F.2d 1378, 1380 (1976) (directed verdict for defendant was proper where there was complete absence of probative facts to support award in favor of plaintiff). Cf. Mascola v. Pacific Coast Transport Co., 421 F.2d 1281 (2d Cir.1970) (directed verdict for defendant improper where there was evidence of employer negligence).

Here, appellant failed to make out even a prima facie case of Jones Act negligence against appellee. In traditional tort analysis, the first inquiry is whether the defendant had a duty to the plaintiff. If she had a duty and breached that duty then the next question is whether the breach was the proximate cause of plaintiffs injury. In a Jones Act case, we follow the traditional tort analysis except for the causation factor. Under the Jones Act, if the breach of duty even minimally caused the injury, then the plaintiff is entitled to recover. However, in the absence of a showing that defendant owed plaintiff a duty and breached that duty, the issue of causation is not reached.

In the instant case, it would be improper for us to reach the question of causation because appellant, as we noted, presented no evidence that appellee breached its duty. A breach might have occurred if it was shown that the necessary equipment, a manhelper, was not available. Appellant presented no evidence that a manhelper was unavailable. Finding no evidence of a breach, we conclude appellant is not entitled to recover under the Jones Act, and that entry of nonsuit was proper.

Order affirmed.

      . On direct examination, Mr. Canty's lawyer elicited the following information:

        Q. Did Mr. Craig [appellant’s supervisor] ever tell you what type of equipment to use to paint the pump?
      A. No.
      Q. Did he give you any equipment to paint the pump when he gave you that order?
      A. No.
      Q. Mr. Canty, how did you get the equipment if it was not supplied to you or assigned to you by Mr. Craig?
      A. He just told me he wants the pump painted and before that particular job, I was given a paint brush for another job which I already had the paint brush. So I used the paint brush that I already had to paint the pump.
      Q. So all you had to get was what?
      A. Just the paint.
      Q. Where did you get that from?
      A. Paint locker.
      N.T. 6/20/90, 36-37.

      . The Jones Act provides in pertinent part:
      Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply
      46 U.S.C.App. § 688(a). The Jones Act is read together with the Federal Employers' Liability Act which provides, in relevant part, as follows:
      Every common carrier by railroad while engaging in commerce ... shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury ... resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier....
      45 U.S.C. § 51 (emphasis added).

      . Each of the cases cited by appellant in support of his negligence claim can be distinguished from this one; each case includes some evidence of the breach of a duty on the part of the shipowner. See, e.g., Ferguson v. Moore-McCormack Lines, Inc., 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511 (1957) (ship’s baker injured his hand when he tried removing hardened ice cream from a container with a butcher knife; the ship’s crew had not removed the ice cream from the deep freeze in time to properly serve it with an ice cream scoop and the refrigeration system may have malfunctioned); Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960) (plaintiff was provided with defective wrench, and evidence of employer negligence was sufficient to overcome directed verdict); Rogers v. Missouri P.R. Co., 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493 (1957) (loose gravel on employer’s property which contributed to plaintiff’s fall was evidence of negligence); Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916 (1946) (hook hanging from rail car provided evidence of negligence which may have caused decedent's injuries).

        See also Richards v. Dravo Corp., supra (employer’s negligence was established through proof of cramped working area and broken hoist, which required plaintiff to lift 80-90 pound crushing hammers by hand).