author: CERCONE, Judge:

text:
    504 A.2d 1291
    COMMONWEALTH of Pennsylvania v. John LARK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1985.
    Filed Feb. 12, 1986.

      William T. Cannon, Philadelphia, for appellant.
    Robert B. Lawler, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WIEAND, CERCONE and ROBERTS, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County following a jury verdict finding appellant guilty of third degree murder. A sentence of life imprisonment was imposed and this appeal followed.

Appellant was charged in the court below with the murder of his infant daughter. On August 17, 1983, police responded to a call at 1926 North 18th Street in Philadelphia. Upon arrival the police were met by Lee Paul, the mother of the child, who resided at that location with appellant. She told the police that appellant was beating the baby. The police entered the home, confronted the appellant, subdued him after a brief struggle, and found in the upstairs bedroom the lifeless body of appellant’s baby daughter who had sustained massive head trauma. Lee Paul testified at trial that she and appellant were in bed, about to fall asleep, when appellant snatched the child from her crib, held her aloft, refused to release the baby, and bit down on the baby’s head while professing his love for the baby. Dr. Paul J. Hoyer, Assistant Medical Examiner for Philadelphia, who pronounced the baby dead at the crime scene, testified that the baby died of acute head injuries inflicted probably in two stages.

The defense offered numerous fact witnesses at trial who testified that for the thirty-six hour period before the crime the appellant had ingested a large amount of the drug PCP. A drug expert testified to the hallucinatory effects of PCP and a psychiatrist, Dr. Jon Bjornson, testified that in his opinion, based on several psychiatric interviews, appellant was incapable of formulating the willful intent to kill at the time of his overt acts. The jury returned a verdict of guilty of murder in the third degree.

Appellant first claims that the lower court’s refusal to allow defense counsel to ask certain questions of prospective jurors individually constitutes reversible error. Rule 1106(d), Pennsylvania Rule of Criminal Procedure, provides:

The judge may permit the defense and the prosecution to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the Court shall permit the defense and the prosecution to supplement the examination by such further inquiry as it deems proper.

Appellant claims that the scope of the voir dire as conducted by the trial court fell far short of the full examination to which the defendant was entitled. In support of this allegation, he lists, four questions which the court should have posed or should have allowed him to ask each juror individually. He first claims that the court erred in not asking the jurors if they had ever been the “victim” of a crime of violence, rather than, as the court did, whether they had been “involved” in a crime of violence. In Commonwealth v. Fulton, 271 Pa.Superior Ct. 430, 432-33, 413 A.2d 742 (1979), this court held that the term “involved” was broad enough to include the concept of “victimization” so as to protect the defendant in jury selection. See also Commonwealth v. Davis, 282 Pa.Superior Ct. 51, 54, 422 A.2d 671 (1980). Appellant also claims that prospective jurors should have been asked whether they believed that a police officer was capable of telling a lie under oath like any other witness. The court did ask the following questions which sufficiently dealt with the issue:

THE COURT: If during the course of this testimony there was presented a police officer or law enforcement personnel who testified as to a certain thing, whatever it might be, and at another point in the trial a civilian testified to the same thing, but in an opposite way from what the police officer did, would you believe the police officer’s testimony just because he is a police officer? (no response)
THE COURT: Now I reverse that question: Is there any among you that wouldn’t believe a police officer’s testimony just because he or she is a police officer?

N.T., January 10, 1984, 34-35. Finally, appellant claims that the court erred by not allowing him to ask prospective jurors whether they were so offended by the gruesome nature of the accusations against him that they could not give him a fair trial. The court’s general questions and instructions during voir dire were adequate to expose possible prejudice or bias. Consider the following:

THE COURT: I am now going to review [certain basic principles of criminal law]. [Y]ou now understand that the jury that is chosen ... has the sole responsibility of determining the facts in this case from the evidence and that the jury so chosen must take the law as the Court gives it to the jury and in the instructions to the jury. The jury must then apply the law as the Court gives it to the facts as the jury finds it, and then determine the case.
In other words, ... a juror cannot say that he or she doesn’t like the law, or disagrees with the law. But a juror is bound by his or her oath to accept the law from the Court and apply it to the evidence.
Having told you that, I pose the following question to all of you: Is there any among you that would not follow that portion of the law as I have just given it to you? If so, please raise your hand.
THE CRIER: No response, your Honor.
THE COURT: Very good. Now, you will recall I spoke of principles of law also. For example, there is a presumption of the defendant’s innocence; that the burden rests on the Commonwealth to prove the defendant’s guilt beyond a reasonable doubt; that no inference of guilt can be drawn from the circumstance, if it should occur, that the defendant does not take the stand and testify in his own behalf or present testimony in his own behalf; ... and that in determining] the guilt or the innocence of this defendant the jury must not be influenced by any sympathy for him or by any bias or prejudice against him.
Having given you these basic tenets of the law, I now pose the following question: Is there any among you that would not follow these principles, as well as any others I may give you during the course of this trial? If so, please raise your hand.
THE CRIER: No response, your Honor.
THE COURT: Do any of you know any reason why, if you’re selected as a juror in this case, you could not give both this defendant and the Commonwealth a fair and impartial trial? If so, please raise your hand.
THE CRIER: No response.

N.T., January 10, 1984, 28-35. The scope of voir dire examination rests with the sound discretion of the trial judge. Commonwealth v. Drew, 500 Pa. 585, 590, 459 A.2d 318 (1983). Absent a gross abuse of discretion, a reviewing court will not reverse the trial court’s ruling. Commonwealth v. Mayo, 272 Pa.Super. 115, 120, 414 A.2d 696 (1979). The lower court did not grossly abuse its discretion by disallowing defendant’s proposed questions. While the voir dire questions asked by the court did not specifically address the question posed by defendant, we find that they were sufficient to secure a competent, fair, impartial and unprejudiced jury.

Appellant was sentenced to life imprisonment pursuant to the Mandatory Sentencing Act, 42 Pa.C.S.A. § 9715 (hereinafter “the Act”). The Act mandates a sentence of life imprisonment if the court determines that a defendant, who has been convicted of third degree murder, has previously been convicted of murder or voluntary manslaughter. The applicability of the Act is determined at sentencing. If a defendant contests the accuracy of his criminal record, he has a right to a hearing and the court may impose a life sentence only if it is convinced, by a preponderance of the evidence, of the record of previous conviction. Both the Commonwealth and the defendant may present evidence at that hearing. Appellant challenges the constitutionality of the Act on numerous grounds. Section 9715 provides, in pertinent part:

§ 9715. Life imprisonment for homicide.
(a) Mandatory life imprisonment.
[A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.
(b) Proof at sentencing.
Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of the section shall be determined at sentencing. The sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section.
(c) Authority of court in sentencing.
There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
(d) Appeal by Commonwealth.
If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

Appellant first contends that the Mandatory Sentencing Act is inapplicable under the circumstances of this case because appellant, who was intoxicated as a result of ingestion of a controlled substance when he committed this crime, was not the intended “object” or “mischief” to be attacked by the passage of Section 9715. Appellant cites the Statutory Construction Act, 1 Pa.C.S.A. § 1921(c), for the proposition that when the words of a statute are not explicit the court must seek to ascertain and effectuate the intention of the General Assembly. However, appellant does not show us how the words of the applicable statute are not explicit nor does pur reading of the statute reveal any ambiguity. “[A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter ... shall be sentenced to life imprisonment ...” 42 Pa.C. S.A. § 9715(a). We find this statutory language to be explicit and, therefore, we are compelled to apply it as written. “When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

Appellant posits several due process arguments in support of his constitutionality claim. He argues that by failing to receive pretrial notice from the Commonwealth that it intended to proceed under the Act, he was tried for an offense different in kind and character than that specifically charged in the indictment or information. Just as the Supreme Court in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted, McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985),. in the context of 42 Pa.C.S.A. § 9712 (sentences for offenses committed with firearms), found that visible possession of a firearm was not an element of the underlying crime, so too, the fact that a defendant has an existing homicide conviction is not an element of his conviction for third degree murder. Therefore, he does not have the right to notice before trial that the Commonwealth intends to request sentencing on that basis; nor is he, in essence, being tried for an offense different from that with which he was charged. See also Commonwealth v. Cofoni, 349 Pa.Super. 407, 503 A.2d 431 (1986) (Notice provision under section 9712, 42 Pa.C.S.A., is not unconstitutional.). The notice provision in section 9715 is identical to that found in section 9712. Thus, the notice requirement of section 9715 does not violate appellant’s due process right to pretrial notice of the offense with which he is charged or its elements.

Appellant asserts that the Act is unconstitutional on its face and as applied to the defendant in this case in that, at sentencing, it only requires the prosecutor to show “by a preponderance of the evidence” that the defendant had been convicted of a prior homicide. He claims that the Commonwealth should be required to prove this sentencing factor by using the standard of proof “beyond a reasonable doubt”.

This is the first time we have addressed this claim with respect to section 9715. However, our Supreme Court has squarely faced it in terms of section 9712, 42 Pa.C.S.A., sentences for offenses committed with firearms, in Commonwealth v. Wright, supra, and in terms of section 9714, 42 Pa.C.S.A., sentences for second and subsequent offenses, in Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985). Each of these mandatory sentencing sections provide that the sentencing court shall determine, by a preponderance of the evidence, whether the factors of that section have been proven by a preponderance of the evidence and should be applied to the case at hand.

In both Wright and Allen, our Supreme Court rejected the notion that due process required a higher standard of proof than a preponderance of the evidence in mandatory sentencing proceedings. Following the standard. established by the United States Supreme Court, citing Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982); Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979); and Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976), our Supreme Court indicated that in assessing the constitutionality of the preponderance standard “we must weigh the liberty interest of the defendant against the Commonwealth’s interest in imposing a mandatory sentence and determine how the risk of error should be distributed between these two parties in the sentencing proceeding.” Commonwealth v. Allen, supra, 508 Pa. at 120, 494 A.2d at 1071; Commonwealth v. Wright, supra, 508 Pa. at 39, 494 A.2d at 361.

The liberty interest of a convicted defendant is greatly diminished as compared to one who merely stands accused. However, the Commonwealth’s interest in protecting the public and punishing violent repeat offenders is at least as great as the convicted defendant’s interest in leniency. See Commonwealth v. Allen, supra. Moreover, the risk of error is minimal under section 9715. The proof of prior conviction is a simple historical fact which may be ascertained through official documents. The conclusion we reach herein is supported by similar holdings reached by the federal courts and our sister states. As the court noted in Allen:

[T]he federal “dangerous special offender” statute, 18 U.S.C. § 3575, which also requires proof of prior convictions by a preponderance of the evidence, has been uniformly upheld by the federal courts. See United States v. Davis, 710 F.2d 104 (3rd Cir.1983); United States v. Schell, 692 F.2d 672 (10th Cir.1982); United States v. Inendino, 604 F.2d 458 (7th Cir.), cert. denied 444 U.S. 932, 100 S.Ct. 276, 62 L.Ed.2d 190 (1979); United States v. Williamson, 567 F.2d 610 (4th Cir.1977); United States v. Ilacqua, 562 F.2d 399 (6th Cir.1977), cert denied, 435 U.S. 906, 98 S.Ct. 1453, 55 L.Ed.2d 497 (1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir.1977); United States v. Stewart, 531 F.2d 326 (6th Cir.), cert. denied, 426 U.S. 922, 96 S.Ct. 2629, 49 L.Ed.2d 376 (1976). Moreover, statutes similar to the federal statute have been held constitutional in the state courts. See Eutsey v. State, 383 So.2d 219 (Fla.1980); State v. Piri, 295 Minn. 247, 204 N.W.2d 120 (1973); State v. Wells, 276 N.W.2d 679 (N.D.1979); States v. Sanders, 35 Or.App. 503, 582 P.2d 22 (1978).

Supra 508 Pa. at 121, 494 A.2d at 1071. Thus, we are convinced that the preponderance standard is sufficient to protect appellant’s liberty interest as weighed against the Commonwealth’s interest in imposing a mandatory sentence.

We must now determine whether the Act, which provides that the applicability of the section shall be determined by the sentencing court, denies appellant of his constitutional right to a jury trial. This claim, too, is meritless. Appellant argues that the prior conviction for homicide is, in effect, an intrinsic element of the crime charged and, therefore, his right to jury determination of the fact is constitutionally protected. As previously discussed, the Wright court determined that the mandatory sentencing factors are not elements of the underlying crime. The right to trial by jury attaches only to the determination of guilt or innocence, not to be the sentencing procedure. See Spaziano v. Florida, 468 U.S. 447, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976). Therefore, this claim must fail.

Appellant makes a meager effort to raise an equal protection claim under the equal protection clause of the Fourteenth Amendment to the United States Constitution stating that he is being treated differently, under similar circumstances, than other persons found guilty of murder in the third degree in this Commonwealth. He argues, without supporting citation, that the court must apply the “strict scrutiny” test to his claim. To the contrary, it is now clear that the test to be applied in equal protection cases, neither implicating rights fundamental under the Pennsylvania or United States Constitutions nor involving suspect classifications, is the “rational basis” test. Long v. 130 Market Street Gift & Novelty, 294 Pa.Superior Ct. 383, 402, 440 A.2d 517 (1982). See, e.g., Ohio Bureau of Employment Services v. Hodory, 431 U.S. 471, 97 S.Ct. 1898, 52 L.Ed.2d 513 (1977). The “rational basis” test is to determine whether the classification at issue here is reasonable, not arbitrary, and rests upon a difference having a fair and substantial relation to the object of the legislation. Snider v. Thornburgh, 496 Pa. 159, 168, 436 A.2d 593 (1981).

The courts of this Commonwealth have upheld various criminal statutes which impose a dissimilar penalty on different classes of offenders who cause the same harmful result. In Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983), the Supreme Court held the fact that vehicular homicide, 75 Pa.C.S. § 3732, and involuntary manslaughter, 18 Pa.C.S.A. § 2504, are both classified as misdemeanors of the first degree despite the fact that there are different elements of proof for each offense, does not violate equal protection standards. In Commonwealth v. Finnegan, 280 Pa.Superior Ct. 584, 421 A.2d 1086 (1980), this court held sentencing disparity based upon the separate roles played by the prostitute, client and promoter bore a rational relationship to the avowed objective of eliminating this form of crime. In Commonwealth v. Covert, 322 Pa.Superior Ct. 192, 469 A.2d 248 (1983), this court found that disparity of treatment as to criminal liability based upon the separate roles of player and of operator or promoter of an illegal lottery bore a reasonable relationship to the objective of eliminating the crime of operating a lottery.

Appellant herein argues that the Act treats him differently from all other persons found guilty of murder in the third degree. This claim must fail because the legislation does not treat similarly situated persons differently. Appellant is a member of a class of persons who has been convicted of third degree murder and who also has a previous conviction for murder or voluntary manslaughter. The legislature has identified defendants who have committed two homicides as particularly dangerous to society. In an effort to deter and punish this dangerous behavior, the legislature has determined that it shall be punishable by a mandatory life sentence. Such a classification, for sentencing purposes, is rationally related to the legitimate purpose of protecting the general welfare and, therefore, does not violate equal protection.

Appellant asks this court to find the Act unconstitutional on the theory that it defies the separation of powers scheme under the Pennsylvania Constitution by (1) abrogating to the legislature sentencing powers vested in the judiciary and (2) by abrogating to the prosecutor the power to subjectively, and without accountability, select the cases in which he shall seek to impose the mandatory sentence.

It is the province of the legislature to determine the punishment imposable for criminal conduct. Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). For this reason the argument that section 9715 violates the separation of powers principle by depriving the sentencing court of discretion may be rejected. See Commonwealth v. Wright, supra 508 Pa. 40, 494 A.2d at 361 n. 4.

In Commonwealth v. Cofoni, supra, this court specifically addressed appellant’s second contention. We held that the prosecutor has no discretion to apply section 9712 in a proper case. Likewise, under section 9715, where there is evidence that a defendant was previously convicted of murder or voluntary manslaughter, the prosecutor must invoke section 9715 following proper notice to the defendant. Accordingly, appellant’s separation of powers challenge to this Act must fail.

The last constitutional claim asserted by appellant is that the Act unconstitutionally deprives him of due process and equal protection by limiting appellate review to the single issue of mandatory imposition of sentence. Citing section 9715(d), appellant argues that it limits the scope of appellate review. Such an interpretation is totally inaccurate. Section 9715(d) relates only to appeals brought by the Commonwealth and has no effect on the scope of appellate review in this case. Therefore, it has no effect on appellant’s due process or equal protection rights.

Finally, appellant alleges that in the absence of unequivocal statutory language, his prior conviction obtained before the effective date of the Act should not have been considered by the sentencing court. The language of the Act could not be more clear or precise:

... Any person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter ... shall be sentenced to life imprisonment ... (emphasis added)

Section 9715(a).

This case is distinguishable from Commonwealth v. Clipper, 303 Pa.Superior Ct. 385, 449 A.2d 741 (1982), which appellant urges is controlling. In Clipper, this court held that prior convictions for “shoplifting” under the Penal Code of 1929 could not be used to increase the grade for “retail theft”, 18 Pa.C.S.A. § 3929, committed after the enactment of the Crimes Code of 1972, as amended. Since section 3929 was not clear on its face, the court looked to legislative intent and followed the rule of strict construction of penal statutes. 1 Pa.C.S. § 1928(b)(1). Most persuasively, the court noted that prior to the 1972 Crimes Code, there was no offense called “retail theft” and, therefore, any reference to that term could only be dated back to the enactment of that Code. In the case presently before us, not only is the statutory language clear but the crimes of murder and voluntary manslaughter, and their definitions, remained unchanged by the enactment of the mandatory sentencing act. Therefore, any reference to those terms in the Act may logically extend back before its enactment.

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

      . At the outset of voir dire, the trial judge questioned the prospective jurors collectively. Then he questioned each member of the panel individually, and followed up on the responses to the collectively-asked questions. The Commonwealth and defense were then given an opportunity to individually question each juror.

      . Act of March 8, 1982, P.L. 169, No. 54, § 3. As amended June 15, 1982, P.L. 512, No. 141, § 5.

      . Appellant does not dispute that he had been previously convicted of second degree murder.

      . There is no contention in this case that a fundamental interest is at stake such as the freedom of speech, as discussed in American Book

        sellers Assn. Inc. v. Rendell, 332 Pa.Superior Ct. 537, 481 A.2d 919 (1984) and Long v. 130 Market Street Gift & Novelty, supra, nor that a suspect classification, i.e. race or religion, is involved.

      . Many courts have upheld the constitutionality of recidivist sentencing statutes which give credence to convictions obtained before the passage of the statute. See e.g., Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 1259, 92 L.Ed. 1683 (1948) (“Nor do we think the fact that one of the convictions that entered into the calculations by which petitioner became a fourth offender occurred before the Act was passed, makes the Act invalidly retroactive or subjects the petitioner to double jeopardy. The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for earlier crimes. It is a stiffened penalty for the latest crime ...”); Government of Virgin Islands v. Henry, 533 F.2d 876, 878 (3d Cir.1976) ("punishment is for the new crime only, but is heavier if he is a habitual criminal ...”).


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    504 A.2d 1300
    Dorian M. CRADDOCK and Annie Craddock, h/w, Appellants, v. Daniel J. GROSS, M.D., and United Medical Penn, Ltd., t/a United Medical Philadelphia.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1985.
    Filed Feb. 13, 1986.
    Donald J. Martin, Norristown, for appellants.
    William F. Sullivan, Jr., Philadelphia, for Gross, appellee.
    Darryl J. May, Philadelphia, for United Medical, appellee.

      Before ROWLEY, DEL SOLE and BECK, JJ.
   DEL SOLE, Judge:

This is an appeal from an Order of the Court of Common Pleas of Montgomery County granting summary judgment in favor of Appellees.

On November 27, 1981, Appellant Dorian Craddock was injured at his place of employment for which he subsequently received workmen’s compensation benefits. On May 10, 1982, at the direction of employer’s workman’s compensation carrier, the Hartford Group, Appellant presented himself for a medical examination by Appellee, Dr. Gross, at the offices of Appellee, United Medical. Appellant’s attorney was present at the examination and in the words of the trial court, “(o)utside of various instructions concerning the movement of certain limbs and other examination-related requests and replies, no discussion took place between the parties, and Dr. Gross offered no advice, diagnosis, treatment or prescriptions to Mr. Croddock.” (Trial Court Opinion at 4). Appellee, Dr. Gross, submitted a report dated May 10, 1982, to the Hartford Group in which he stated, “It is my opinion that he has fully recovered from the effects of his November 21, 1981 accident.” (R.R. at 139a). The Hartford Group forwarded a copy of the report to either Apellant or his attorney. Upon receipt of the report, the Hartford Group terminated the workmen’s compensation claim. “Mr. Craddock apparently filed a petition of protest pursuant to the Workmen’s Compensation Act, 77 P.S. § 1 et seq., but never gave any testimony before a workmen’s compensation referee.” (Trial Court Opinion at 5). Appellant returned to work in November 1982 on light duty, part-time basis after “both Mr. Craddock’s treating physicians as well as his counsel agreed with the return.” (Trial Court Opinion at 5). Appellants base their claim on the allegation that after a brief period of work, Appellant suffered a severe aggravation of his back injury.

The Appellant commenced the instant action in trespass against Dr. Gross and his employer United Medical alleging negligence in that the Appellees:

failed to use due care in examining the plaintiff, Dorian M. Craddock, for workmen’s compensation purposes and in filing an evaluation report with the workmen’s compensation carrier without noting or considering the results of certain prior medical tests allegedly performed on the plaintiff and without recognizing various symptoms allegedly suffered by Mr. Craddock at the time of the examination.

(Trial Court Opinion at 2). Appellant Annie Craddock asserted a derivative claim for lack of consortium.

Both Appellees filed motions for summary judgment alleging: no physician-patient relationship ever existed between Appellant and Appellee, Dr. Gross; the privileged nature of the evaluation report; and lack of causal connection between the examination and injury six months later.

Both motions were answered, briefed, argued and ultimately granted by the trial court. On these facts, the trial court found the absence of a duty owed to the Appellant. In the words of the trial Judge:

On these facts, Dr. Gross’s only duty to use professional skill and ability in performing the examination and issuing his report ran to the party which so engaged him, the workmen’s compensation carrier. While the plaintiff may have had a right to have the actual examination itself physically conducted in such a manner as not to injur him, a question not presented on the pleadings, we determine the plaintiff had no right to expect Dr. Gross to consider certain medical data in the course of preparing his evaluation and filing his report for the carrier.

(Trial Court Opinion at 9).

Appellants filed this timely appeal. The Pennsylvania Trial Lawyer’s Association has entered the case as Amicus Curiae in support of the Appellants.

Under Pennsylvania Rule of Civil Procedure 1035(b), a party is entitled to a summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “There are no disputed factual questions that are relevant to the issues on appeal.” (Brief for Appellee United Medical at 3).

In reviewing summary judgment, the court must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. To uphold summary judgment, there must be not only an absence of genuine factual issues, but also an entitlement to judgment as a matter of law.

Lookenbill v. Garrett, 340 Pa.Super. 435, 439, 490 A.2d 857, 859 (1985); Curry v. Estate of Thompson, 332 Pa.Super. 364, 368, 481 A.2d 658, 659 (1984) quoting Rybas v. Wapner, 311 Pa.Super. 50, 54, 457 A.2d 108, 109 (1983).

The question as framed by Appellant asks, “Is it error to rule as a matter of law that a physician hired by a workmen’s compensation carrier is immune from liability for the reasonably foreseeable physical harm caused as a result of the negligent performance of the examination made by him?” We recently reiterated that the basic elements of a cause of action founded upon negligence are:

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

Prosser, Law of Torts, § 30 at 143 (4th ed. 1971). Casey v. Geiger, 346 Pa.Super. 279, 289-290, 499 A.2d 606, 612 (1985); Macina v. McAdams, 280 Pa.Super. 115, 120, 421 A.2d 432 (1980). “(D)uty is a question of whether a defendant is under any obligation for the benefit of the particular plaintiffs, and in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of apparent risk.” Casey v. Geiger, 346 Pa.Super. at 290, 499 A.2d at 612. As previously indicated, the trial court found that the physicians “only duty to use professional skill and ability in performing the examination and issuing his report ran to the party which so engaged him, the workmen’s compensation carrier.” (Trial Court Opinion at 9).

No Pennsylvania cases have been found dealing with a physician’s duties and liabilities to a person examined pursuant to the physician’s contract with that person’s workmen’s compensation insurer.

However, this precise question has been addressed by appellate courts from other jurisdictions and we find these decisions of assistance in the present case.

In Rogers v. Horvath, 65 Mich.App. 644, 646, 237 N.W.2d 595, 597 (1975) it was stated:

The term ‘malpractice’ denotes a breach of the duty owed by one in rendering professional services to a person who has contracted for such services; in physician-malpractice cases, the duty owed by the physician arises from the physician-patient relationship. No such relationship existed in the case at bar. Defendant was employed by General Motors to examine one of its employees in preparation for a workmen’s compensation hearing. Plaintiff did not employ the defendant, nor did she seek or receive medical advice or treatment. Under such circumstances, the defendant did not owe plaintiff any duty arising from a physician-patient relationship.

Id.

Similarly, it was found in Keene v. Wiggins, 69 Cal.App.3d 308, 315-316, 138 Cal.Rptr. 3, 8 (1977).

Here we find no physician-patient relationship, express or implied, of the sort giving rise to a duty of care owed to Keene in connection with the report. The uncontradicted declarations assert Keene went to Wiggins’ office at the request of the carrier for “examination.” Keene was present because he was required to submit to examination as a claimant. There is no assertion Wiggins did anything more than examine Keene and make his report to Industrial Indemnity as he was hired to do. The carrier requested this examination to verify the opinions of the other consulting doctors who had stated no operation or treatment was called for and to rate the disability. The Wiggins opinion was needed to properly rate the case for settlement of Keene’s claim (see Lab.Code, § 4600); as such the opinion was solely for the carrier’s benefit in the adversary Worker’s Compensation proceedings. None of the declarations suggest Wiggins’ examination was part of Keene’s care or treatment; nor do they suggest Wiggins voluntarily offered Keene any advice and counsel or otherwise intended to benefit Keene personally.

Id.

In the recent case of Cook v. Optimum/Ideal Managers, Inc., 130 IllA.pp.8d 180, 84 Ill.Dec. 933, 939, 473 N.E.2d 334, 340 (1984) the court, while considering the admittedly distinct question of the failure of a physician retained by an insurance company to furnish employees with reports of medical exams conducted for purposes of workmen’s compensation claims, opined:

While a patient certainly reposes confidence in his treating physician, the same cannot be said of an employee and a physician retained by the employer, not to treat the employee, but to examine him with reference to a pending worker’s compensation claim. Moreover, when the employee has other physicians treating his injury as in the instant case, it is difficult to see how the ... ‘physician’ would have domination and influence over him.

Id.

The cases from these jurisdictions appear uniform in holding under practically the same facts, that no cause of action for medical malpractice exists.

Appellant seeks to establish a duty in the matter sub judice by reliance on Section 323 of the Restatement (Second) of Torts which provides:

Negligent Performance of Undertaking to Render Services — One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Appellant’s reliance on § 323 is misplaced. In this case, as the trial court stated, “On the facts presented, it is clear Dr. Gross never undertook to render services to Mr. Craddock, since he was employed by the carrier to file an evaluation and report directly to it, and never offered any advice or treatment to Mr. Craddock.” (Trial Court Opinion at 11-12).

Accordingly, we find the above cited cases persuasive authority for holding that in the absence of a duty owed to the Appellant in this instance, the Appellee’s are entitled to judgment as a matter of law. Therefore, we affirm the Order of the Trial Court.


author:
DEL SOLE, Judge:
      OLSZEWSKI, Judge,

text:
    504 A.2d 1303
    In the Matter of the ADOPTION OF A.K.M. and S.M.C. Appeal of D.D.H.C.
    Superior Court of Pennsylvania.
    Submitted June 18, 1985.
    Filed Feb. 3, 1986.

      Marilyn Woolery, Erie, for appellant.
    Ronald L. Slater, Erie, for appellee.
    Before ROWLEY, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge:

This case comes to us on appeal from the trial court order which terminated the Appellant’s parental rights in her two daughters, A.K.M. and S.M.C. Because the evidence relied on by the trial court to support the termination decrees is not clear and convincing, we reverse.

At a young age, the Appellant was adjudicated a dependent child and was placed under the care of Children’s Services. In 1978, when the Appellant was sixteen years old, her first child, A.K.M. was born. A.K.M. lived with her mother for nearly two years before being placed in the home of her maternal grandparents. The child remained there for four years; she has recently been removed to a foster home.

Appellant’s younger daughter, S.M.C. was born in 1981. She lived with her mother for fifteen months, at which time the Appellant voluntarily relinquished custody to a close friend. When this friend was no longer able to care for S.M.C. the child was adjudicated a dependent and placed in a foster home.

On several occasions beginning in September, 1980, the court directed the Appellant to obtain mental health counseling, cooperate with Children’s Services and public health nurses, attend parenting classes, gain employment or obtain vocational training, maintain a residence and stabilize her relationships with men. For several years, on an inconsistent basis, Appellant attempted to achieve these goals.

Two hearings were held in the spring of 1984, after which time the court issued an order terminating the Appellant’s parental rights in A.K.M. and S.M.C. Appellant now challenges this order and alleges that the statutory requirements of 23 Pa.C.S.A. §§ 2511(a)(2) and (a)(5) were not satisfied by a showing of clear and convincing evidence; that the lower court improperly considered the best interests of the children in terminating the Appellant’s parental rights; and that the trial court failed to acknowledge the interference caused by Children’s Services in the Appellant’s relationship with her children.

The sections of the statute which the trial court relied on to terminate the Appellant’s parental rights provide as follows:

§ 2511. Grounds for involuntary termination
(a) General rule. — The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:
(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
(5) The child has been removed from the care of the parent by the court or under a voluntary agreement with an agency for a period of at least six months, the conditions which led to the removal or placement of the child continue to exist, the parent cannot or will not remedy those conditions which led to the removal or placement of the child within a reasonable period of itme and termination of the parental rights would best serve the needs and welfare of the child.

23 Pa.C.S.A. §§ 2511(a)(2) and 2511(a)(5).

Section (a)(2) of the statute set forth above provides that parental rights may be terminated if there is evidence of abuse or neglect and these conditions will not or cannot be remedied in the future. Section (a)(5) provides that parental rights may be terminated when a child has been in placement for six months (as have been both of Appellant’s children) and the conditions which led to the placement are not likely to be remedied in the future. In other words, under either section of the statute, there must be evidence of severe deficiencies in parental care at the present and evidence that these deficiencies cannot or will not be remedied in the future.

The Supreme Court of the United States has held that the due process clause of the fourteenth amendment demands that the standard of proof to be employed in a termination proceeding be clear and convincing evidence. In establishing this rule the Supreme Court stated:

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life. If anything, persons faced with forced dissolution of their parental rights have a more critical need for procedural protections than do those resisting state intervention into ongoing family affairs. When the State moves to destroy weakened familial bonds, it must , provide the parents with fundamentally fair procedures.

Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982).

It is well settled in Pennsylvania that when an appellate court is faced with a termination of parental rights case, it must employ a broad scope of review. Matter of Adoption of Baby Boy Allen, 337 Pa.Super. 133, 486 A.2d 517 (1984); In re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984); Matter of Adoption of Ferrante, 334 Pa.Super. 53, 482 A.2d 1076 (1984); In re Baby Boy P., 333 Pa.Super. 462, 482 A.2d 660 (1984); In. re Adoption of James J., 332 Pa.Super. 486, 481 A.2d 892 (1984) (en banc). In the latter case, this Court carefully noted a distinction between the duties imposed on the trial and appellate courts. It indicated that while the lower court is obligated to draw a conclusion based on clear and convincing evidence, the appellate court must ensure that the trial court has satisfactorily examined all evidentiary resources, has conducted a full hearing, and has set forth its decision in a full discursive opinion. James J., 332 Pa.Superior Ct. at 491, 481 A.2d 894. If upon such a review the appellate court finds a lack of evidentiary support, an abuse of discretion or an error of law the order of the trial court will be reversed. Adoption of James J., supra, 332 Pa.Superior Ct. at 494, 481 A.2d at 896. We find this to be a case where such a reversal is mandated.

In his opinion the trial judge sets forth the evidence which he found, in the light of 23 Pa.C.S.A. §§ 2511(a)(2) and (a)(5) quoted above, to support the termination orders. He found the Appellant has had many, many boyfriends since the children were born; that the Appellant moves frequently; that the Appellant is immature and has led her own life rather than on concentrating on her role as a parent; that Appellant has not done well with parenting classes; that the Appellant has not had a job since 1980; that the Appellant has made suicide attempts. While we concede that the evidence relied on by the trial court is indeed evidence that the Appellant is not the most capable parent we are not persuaded that it is evidence so clear and convincing of neglect or abuse as to justify the termination of the Appellant’s parental rights in either A.K.M. or in S.M.C. We reverse for this reason and also because we do not find the record contains clear and convincing evidence that the deficiencies which exist cannot or will not be remedied in the future. On the contrary, there is much evidence that the Appellant is making improvements in her life as have been directed by the court and by Children’s Services.

Looking first at the case of A.K.M., as noted above the Appellant was sixteen when the child was born. The record shows that A.K.M. was adjudicated dependent shortly after birth because the Appellant was still a dependent child and she wanted to be placed with her daughter. The two girls, mother and daughter, were placed in a foster home for a few months and then moved to the home of Appellant’s parents. In May, 1979, the Appellant married Steve Cooper. A.K.M. lived with Appellant and her husband, first in the Erie area and then in Florida from September, 1979 to July, 1980. After they moved back to Erie, marital difficulties had developed, the Appellant was pregnant with S.M.C., and the Appellant , made a suicide attempt. A.K.M. lived with her maternal grandparents from that time until the time of the hearings in this case — spring of 1984. The Appellant lived there too, from time to time, and visited A.K.M. regularly when she was not living with her. Appellant now resides with her boyfriend of over one year at his parents’ home. The caseworker testified that A.K.M. welcomes the Appellant’s visits and likes her mother’s boyfriend.

Admittedly, the Appellant’s relationship with her older daughter is a closer one than with her younger daughter, S.M.C., since A.K.M. has lived most of her life with her maternal grandparents or with the Appellant. The younger child was born when the Appellant was 19 years old. When S.M.C. was fifteen months old, the Appellant placed her in the care of a close family friend, the Reverend Anise Fling. The Reverend Fling testified that the Appellant gave S.M.C. to her to care for because, “She knew I’d love her; she knew she would get good care,” The record shows that while S.M.C. lived with the Reverend Fling the Appellant visited her occasionally and telephoned to check on the baby regularily. When Mrs. Fling was no longer able to care for S.M.C. because of health problems, the child was placed in a foster home. The Appellant was permitted to have a visit with S.M.C. every two weeks, arranged for and supervised by the Children’s Services. At the time of the April, 1984 hearing, she was scheduling approximately one visit per month. Her caseworker testified that the visits went well and that at the suggestion of the caseworker the visiting time was increased from one to two hours per visit.. The foster mother, who is interested in adopting S.M.C., testified that there were problems with S.M.C. immediately after the visits with her mother, such as throwing things and having accidents. This, however, is not sufficient evidence upon which to base a termination decree. At the June, 1984 hearing, the Appellant testified that she had just started to send cards and letters to S.M.C. because she had not been told that she was allowed to do so before. Although the testimony at the hearings indicated that the Appellant is closer to A.K.M. than to S.M.C., there was evidence that the Appellant visited both girls on a regular basis.

The record reveals much improvement on the part of Appellant. When Appellant was threatened with the termination of her parental rights in A.K.M. by the Children’s Services of Erie County in February, 1988, she made an agreement with the agency to make certain efforts to improve her situation. The record shows that she signed a contract drawn up by her caseworker whereby she agreed to find a job, to call her caseworker once a week, to see a mental health counselor, to discontinue her practice of bringing a variety of men home with her, and to discontinue her use of chemical substances in A.K.M.’s presence, all of this to be done within ninety days. Appellant’s caseworker testified that she never intended Appellant to fulfill the contract literally, just to make some effort. The record shows that she began calling her caseworker every two weeks, which was an improvement over prior practice. She did not want to attend counseling sessions, but did in fact attend three sessions before the treatment was ended by a mutual decision of the Appellant and the counselor. The record shows she made many attempts to find a job but was unable to do so. She has attended GED classes to put herself in a more advantageous position in the job market, since she has only a seventh grade education. Her inability to find a job has made it impossible for her to establish her own home and at present she is living with her boyfriend in the boyfriend’s parents’ home. She has apparently ended her practice of having many boyfriends, and at the time of the June, 1984 hearing she had been involved with the same man for over one year. At this hearing she stated she was willing to attend parenting classes. A psychiatrist offered testimony at this hearing that the Appellant is a poor parent because she is immature. Immaturity can be remedied. In short, the record provides evidence that the Appellant is doing better as she gets older.

In an opinion filed recently by a panel of our Court, we noted that under § 2511(a)(2) of the Adoption Act, one of the sections relied on by the trial court in the instant case, the parents’ interests in the continued relationship with their children are protected by the requirement that their parental rights may not be terminated unless it is proved that their capacity “cannot or will not be remedied”. In Re Adoption of A Minor, 348 Pa.Super. 65, —, 501 A.2d 648, 654 (1985) (Citations omitted). The same protection is afforded parents under § 2511(a)(5), also relied on by the court in the instant case, which requires proof that a parent cannot or will not remedy conditions which led to the placement of a child within a reasonable amount of time. In Adoption of M.J.H., we reinstated the order of a hearing judge who terminated the parental rights of a father who had shot and killed the child’s mother and who was serving a life term in prison. We found in that case the father’s imprisonment made him incapable of providing his child with what she needs on a day to day basis and that this incapacity will not be remedied. Adoption of M.J.H., supra, 348 Pa.Superior Ct. 65, 501 A.2d 648, 656. The facts in the instant case are quite different. We find in this case that the Appellee has failed to meet its burden of producing clear and convincing evidence of the Appellant’s inability to remedy present incapacities.

We are mindful that our role as a reviewing court is limited to the determination of whether the decree of termination is supported by competent evidence. In the matter of the Adoption of G.T.M., 506 Pa. 44, 483 A.2d 1355 (1984). The appellate court is not permitted to make an independent determination of the facts as it perceives them from the record. In Re Adoption of Faith M. and Victoria M., 509 Pa. —, —, 501 A.2d 1105, 1106 (1985). However, in this case we have found the evidence of irremediable incapacity insufficient in light of the due process clause of the fourteenth amendment and we therefore reverse the order of the trial court which terminates D.D.H.C.’s parental rights in A.K.M. and S.M.C.

Order reversed.

OLSZEWSKI, J., files a concurring and dissenting opinion.

OLSZEWSKI, Judge,

concurring and dissenting:

After a careful and painstaking review of this termination of parental rights case, I have come to the conclusion that the lower court was correct in terminating appellant’s rights in S.M.C. I disagree, however, with the lower court’s decision to terminate the parental rights of appellant in her daughter, A.K.M. While I am somewhat reluctant to make this split decision, I believe the facts of this case justify this result.

The concept of family has traditionally been given a place of esteem in our culture. As a result, the United States Supreme Court has historically recognized that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment. Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978); Smith v. Organization of Foster Families, 431 U.S. 816, 845, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977); Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977) (plurality opinion); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974); Stanley v. Illinois, 405 U.S. 645, 651-652, 92 S.Ct. 1208, 1212-1213, 31 L.Ed.2d 551 (1972); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 534-535, 45 S.Ct. 571, 573-574, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 626, 67 L.Ed. 1042 (1923). When a state therefore moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures. Santosky v. Kramer, 455 U.S. 745, 753-754, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599, 606 (1982).

It is our responsibility in reviewing a parental termination decision to examine all evidentiary resources and to survey the entire record in order to “ensure that the trial court has satisfactorily examined all evidentiary resources, has conducted a full hearing, and has set forth its decision in a full discursive opinion.” In re Adoption of James J., 332 Pa.Super. 486, 491, 481 A.2d 892, 894 (1984) (en banc). I do not hesitate to add, however, that this court must not overstep its bounds and assume that it has the duty or privilege of making its own independent determination of fact. Nevertheless, this limitation does not preclude us from “employing a broad and searching review for the protection of the parties in ensuring that the inquiry of the lower court is complete and that its decision was made in accordance with the due process clause of the Fourteenth Amendment in protecting the fundamental liberty interest of natural parents in their child.” Id., 332 Pa.Superior Ct. at 491, 481 A.2d at 895. As a result, this court must not reverse an order terminating parental rights, unless it is apparent that the trial court abused its discretion, committed an error of law, or lacked evidentiary support for its findings. Id., 332 Pa.Superior Ct. at 494, 481 A.2d at 896.

The central theme surrounding this case can be characterized by the words of the Irish playwright, critic, and social reformer, George Bernard Shaw, when he wrote: “Parentage is a very important profession; but no test for it is ever imposed in the interest of the children.” With this in mind, I respectfully disagree with my colleagues’ decision to reverse the lower court’s judgment terminating appellant’s parental rights in S.M.C. I agree, however, with their decision to reverse the lower court’s judgment terminating appellant’s parental rights in A.K.M.

Since my colleagues have aptly stated the facts, I need not reiterate them here. Nevertheless, some clarification is necessary to justify my conclusion to terminate appellant’s rights in one child but not in the other.

Appellant was adjudicated a dependent child at a young age and was placed under the care of Children’s Services. At the age of sixteen, appellant’s first child, A.K.M., was born. A.K.M. lived with appellant for nearly two years before being placed in the home of her maternal grandparents. She remained there for four years until she was removed to a foster home. Appellant’s younger daughter, S.M.C., lived with her mother for fifteen months, before the appellant voluntarily relinquished custody of this child to a close friend. When this friend was no longer able to care for the child, S.M.C. was adjudicated a dependent child and placed in a foster home. It is this Court’s understanding that this family wishes to adopt S.M.C., who is now four years old.

Since S.M.C. was placed in a foster home, appellant has had only five visits with this child over a six month period. Although the visits were “friendly,” there is testimony from the foster parent that the child became unusually quiet and reserved before visits with her natural mother and unruly and upset after these visits. It appears that appellant is not motivated to strengthen her ties with S.M.C. and whatever communication exists is the result of agency initiation. Clearly, the appellant has chosen to exclude S.M.C. from her family, whether guided by indifference or intent. It is doubtful whether S.M.C. even recognizes appellant as her mother, or A.K.M. as her sister.

I therefore conclude that clear and convincing evidence of the appellant’s repeated, continued, and irremediable incapacity and neglect has been shown pursuant to Sec. 2511(a)(2). In addition, I find support in the record that the parent has failed to remedy the conditions which initially occasioned S.M.C.’s removal from her care. Consequently, I feel that the termination of parental rights would best serve the needs and welfare of this child under Sec. 2511(a)(5).

The situation surrounding the appellant’s relationship with her older daughter, A.K.M., is quite different. Present in the record are the following undisputed facts which demonstrate that appellee did not meet its burden in terminating appellant’s parental rights in A.K.M. pursuant to Secs. 2511(a)(2) and (a)(5).

Despite appellant’s frequent moves and emotional crises following the birth of A.K.M., this child remained with appellant for twenty-two months until she was placed in the home of her maternal grandparents. A.K.M. remained there for four years before she was removed to a foster home. Unlike S.M.C., A.K.M. developed a deep relationship with appellant and her family. Since January of 1984, appellant has exhibited signs of maturity and stability and has become more involved in caring for A.K.M. on a daily basis. For instance, she would feed, clothe, clean, and discipline the child, prepare her for school, and take an interest in her development and studies. Nevertheless, I am disheartened in learning that while appellant limited her relationship to one man, her participation in parenting classes, GED courses, and mental health counseling, although improved, was remiss and inconsistent. Yet despite an imperfect attendance record, I note sufficient interest to demonstrate that appellant’s situation is remediable.

In addition, I find that A.K.M. was never without essential parental care, as required for termination under Sec. 2511(a)(2). The Pennsylvania Supreme Court in In re Adoption of R.W.B., 485 Pa. 168, 176, 401 A.2d 347, 351 (1979), held that a parent may fulfill his or her responsibility for parental duties by making reasonable arrangements for the temporary care of a child when the parent’s inability to care for the child resulted from the parent’s personal crisis.

After a careful and studied review of the record in light of the statutory requirements under 23 Pa.C.S.A. Sec. 2511, I find that it would be unconscionable to permanently sever the appellant’s natural ties with her daughter, A.K.M., since appellee failed to show by clear and convincing evidence that appellant’s parental rights should be terminated pursuant to 23 Pa.C.S.A. Secs. 2511(a)(2) and (a)(5). Although appellant has not been an ideal mother, I have reason to believe that a positive nurturing parent-child relationship exists. In this case, the parens patriae interest favors preservation, not severance, of natural familial bonds. Santosky v. Kramer, 455 U.S. at 766-767, 102 S.Ct. at 1402, 71 L.Ed.2d at 615.

Although my colleagues did not address the remaining issues raised by appellant since they decided to reverse the lower court decision with respect to both children, I will address the merits of these claims, since in one instance I have decided to affirm the lower court.

Appellant argues that the lower court improperly considered the best interests of the children in terminating appellant’s parental rights. I disagree. The legislative directive and statutory language under 23 Pa.C.S.A. Sec. 2511(b) indicates that the judiciary, when faced with a termination decision, “shall give primary consideration to the needs and welfare of the child.” Based on my review of the trial court opinion, I find the appellant’s contention is without merit.

Lastly, appellant argues that the trial court failed to acknowledge the interference caused by Children’s Services in appellant’s relationship with her children. I find no merit in this argument. While Children’s Services was involved in appellant’s familial relationship, it is noteworthy that a six-month period of separation as ordered by “the court or under a voluntary agreement with an agency,” must precede a termination order pursuant to Sec. 2511(a) of the Act. I sympathize with the appellant and acknowledge her increased burden, but it is impossible to preempt agency involvement, especially when a child has been adjudicated dependent and placed under foster care.

      . In the- light of our disposition of the first issue, we need not reach Appellant’s second and third issues.

      . As a general rule in custody cases, absent compelling reasons to the contrary, siblings should be raised in the same household. This rule, however, must yield to the principle that the best interests of each individual child must be given primary consideration. Commonwealth ex rel. Newcomer, 301 Pa.Super. 239, 447 A.2d 630 (1982). Since the statute or case law in parental termination cases is silent on this issue, we believe that if similar concepts were to be adopted in the case before us, compelling reasons, as outlined above, justify our findings.

      . The scope of review in termination cases is to be distinguished from that review employed in custody cases. In the latter type case, this Court, in In re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984) (en banc), held that it was required to exercise independent judgment and would not adhere to an abuse of discretion standard.

      . It is well established that a decision to terminate parental rights should be based on a current and future inability to care for a child and not on a parent’s past performance. Matter of Adoption of Ferrante, 334 Pa.Super. 53, 67, 482 A.2d 1076, 1084 (1984).

      . It is noteworthy that the decision reversing termination is made without prejudice. Thus, if Children’s Services finds it necessary in the future, it may initiate termination proceedings against appellant.

      . While this Court has acknowledged a difference between the “needs and welfare" terminology and "best interests” standard in In re Adoption of Michael J.C., 326 Pa.Super. 143, 473 A.2d 1021 (1984), the Pennsylvania Supreme Court, on review, did not address the distinction drawn by the Superior Court. See 506 Pa. 517, 486 A.2d 371 (1984).


author: OLSZEWSKI, Judge: SPAETH, President Judge, McEWEN, Judge,

text:
    504 A.2d 1310
    COMMONWEALTH of Pennsylvania v. James Dean LEWIS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 22, 1985.
    Filed Feb. 3, 1986.

      Raymond H. Bogaty, Public Defender, Grove City, for appellant.
    Charles S. Hersh, Assistant District Attorney, Hermitage, for Com., appellee.
    Before SPAETH, President Judge, and BROSKY, ROW-LEY, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, MONTEMURO and TAMILIA, JJ.

       Spaeth, P.J., participated in the consideration of this case before the expiration of his term on the Court.

   OLSZEWSKI, Judge:

This matter comes before this court en banc on appeal from a judgment of sentence for retail theft. The relevant events occurred on January 5, 1982, at 7:11 p.m., when appellant, James Dean Lewis, was seen leaving Stambaugh’s Hardware Store in Hermitage, Pennsylvania, without paying for a chain saw he had in his possession. At approximately 8:00 p.m., appellant was arrested at the scene by officers of the Hermitage Police Department, but he was not apprised of the reasons for his arrest. Soon after his arrival at police headquarters, appellant blurted out the following statement: “I didn’t take no chain saw from Stambaugh’s.” Although appellant was in the custody of police when the statement was made, he was not, however, subjected to police interrogation at the time. Appellant was arraigned before a District Justice at 9:45 a.m. the following day.

Prior to trial, appellant filed a motion in limine requesting that the Commonwealth not be allowed to introduce his prior burglary conviction as impeachment evidence. The motion, however, was denied and he was convicted of retail theft. Following the denial of appellant’s post verdict motions, he was sentenced to six months’ imprisonment. Appellant was paroled on April 13, 1983.

Appellant now raises three points of error. He contends that the trial court: (1) erred in permitting the Commonwealth to use appellant’s prior burglary conviction for impeachment purposes; (2) erred in failing to suppress an inculpatory statement made by appellant prior to his arraignment in violation of the Davenport rule; and (3) erred in refusing to order a new trial based on after-discovered evidence. We will address these arguments seriatim.

I.

Although it is generally well accepted as a fundamental tenet of American jurisprudence that an accused has a right to testify as a witness in his own behalf, it is also equally well established that the opposing party may impeach this witness by introducing before the trier of fact the individual’s prior conviction(s). Commonwealth v. Roots, 482 Pa. 33, 35, 393 A.2d 364, 365 (1978) (Nix, J.). Whereas evidence of a prior conviction is offered so that the jurors may use it in evaluating a witness’s credibility, this result does not always follow. Very often, jurors unfairly interpret this evidence as an indication of the accused’s propensity to commit a crime. The likelihood of this event occurring, however, has not prevented the courts of this Commonwealth from permitting the use of such evidence, at least in a limited sense.

In the instant case, appellant argues that he was foreclosed from testifying at trial because of the lower court’s decision to allow appellant’s prior conviction into evidence for impeachment purposes. Appellant believed that if he had opted to testify, the jurors would have been prejudiced against him purely because of this evidence. We disagree with this position.

It has been decided by our Pennsylvania Supreme Court in Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), that an accused was not denied a fair trial under the Due Process Clause of the Fourteenth Amendment merely because a prior conviction would have been used against him as rebuttal evidence if he had decided to take the stand during his trial and testify in his own defense. Notwithstanding this rule, the court, however, has been mindful of the inclinations of the average juror to associate prior convictions with an accused’s propensity to commit criminal acts. As a result, the court limited the convictions to be used in rebuttal to those crimes involving dishonesty or false statement and directed the lower courts to consider the following factors in deciding whether to allow such evidence to be admitted at trial. They are as follows:

1) The degree to which the commission of the prior offense reflects upon the veracity of the defendant-witness; 2) the likelihood, in view of the nature and extent of the prior record, that it would have a greater tendancy to smear the character of the defendant and suggest a propensity to commit the crime for which he stands charged, rather than provide a legitimate reason for discrediting him as an untruthful person; 3) the age and circumstances of the defendant; 4) the strength of the prosecutions’s case and the prosecution’s need to resort to this evidence as compared with the availability to the defense of other witnesses through which its version of the events surrounding the incident can be presented; and 5) the existence of alternative means of attacking the defendant’s credibility.

Commonwealth v. Roots, 482 Pa. 33, 39-40, 393 A.2d 364, 367 (1978).

We are satisfied that the trial court considered these factors in denying appellant’s motion, therefore, we affirm the lower court’s decision.

II.

Nor can we agree with appellant’s second contention that the trial court failed to suppress a statement he made to police pursuant to the Davenport rule. Succinctly stated, Davenport provides that when an accused is not arraigned within six hours of arrest, any declaration obtained after arrest but before arraignment is not admissible. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). Although this rule traditionally has been employed on a per se basis, our common sense and better judgment preclude us from applying it under the facts of the instant case.

Article I, Section 9 of the Pennsylvania Constitution, in pertinent part, guarantees that in all criminal prosecutions the accused has a right to be heard, a right to know the nature and cause of the accusations against him ... and to be free from any unnecessary abridgement of his life, liberty or property. Thus, in order to insure these rights and to protect these liberties, the Pennsylvania Rules of Criminal Procedure require that an individual who has been arrested shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay. See Pa.R.Crim.P. 122, 130. At the time of the preliminary arraignment, the accused shall be informed of the charges against him, his right to counsel, his right to bail and his right to a preliminary hearing. Pa.R.Crim.P. 140. In an attempt to enforce the prompt arraignment requirement, the rule of Davenport was born.

It was thought by its authors and those who subsequently adopted it that the per se rule would assure a more certain and even-handed application of the prompt arraignment requirement, and would simplify the task of determining the admissibility of similar prearraignment statements under the guise of judicial economy. The rigid application of this rule in all situations, however, is not always a wise course of conduct to follow especially when justice is averted via a mere technicality. Our courts have been mindful of the problems caused by the Davenport rule and have limited its application either by making exceptions to it or by recognizing an implicit “exigent circumstances qualification.” Under the facts of the present case, we are compelled to find that absent police coercion, any “blurt out” by an accused shall be admissible at trial despite a delay of more than six hours between the time of arrest and arraignment where the “blurt out” is unrelated to the illegal detention.

Without a doubt “supression is a drastic remedy designed to deter illegal conduct and protect an individual’s rights.” United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976); Commonwealth v. Williams, 454 Pa. 368, 312 A.2d 597 (1973). In particular, suppression represents a judicial response to illegal activi-. ty by those not immediately subject to the supervisory authority of the courts, i.e., an indirect sanction on those the courts cannot directly sanction which renders fruitless the illegal activity and thereby deters that activity.

Commonwealth v. Ryles, 274 Pa.Super. 547, 552, 418 A.2d 542, 544 (1980).

In most instances, this analysis is correct, nevertheless it is incomplete when applied to the facts of the present case. Here, there is no relationship between the illegal activity sought to be deterred (the delay in excess of six hours between the time of arrest and arraignment) and the “blurt out.” Along the same lines of the Davenport rule, the United States Supreme Court has fashioned the McNabbMallory rule which precludes the use of any evidence obtained during an “unnecessary delay” between arrest and arraignment. This rule, however, is subject to the common sense caveat that the “unnecessary delay” must have contributed to the securing of the evidence. Commonwealth v. Futch, 447 Pa. 389, 393, 290 A.2d 417, 419 (1972).

The circumstances arising under United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944) (Frankfurter, J.) bear a striking resemblance to the instant case and are worth noting. Mitchell was taken into custody at his home at 7:00 p.m. for house breaking and larceny and was driven by two police officers to the precinct station. Within minutes of his arrival at police headquarters, Mitchell admitted guilt, made several other inculpatory remarks and consented to a search of his home. Mitchell was arraigned eight days later. Despite the unfairness of the detention for this lengthy period, the court nevertheless found the confession and resulting evidence admissible. The Court offered the following reasoning to support its position.

Illegality is illegality, and officers of the law should deem themselves special guardians of the law. But in any event, the illegality of Mitchell’s detention does not.retroactively change the circumstances under which he made the disclosures. These, we have seen, were not elicited through illegality. Their admission, therefore, would not be use by the Government of the fruits of wrongdoing by its officers. Being relevant, they could be excluded only as a punitive measure against unrelated wrongdoing by the police. Our duty in shaping rules of evidence relates to the propriety of admitting evidence. This power is not to be used as an indirect mode of disciplining misconduct.

Id. at 70-71, 64 S.Ct. at 898, 88 L.Ed. at 1143.

We believe that the facts in the instant case compel a similar treatment. It is undisputed that appellant uttered an inculpatory remark soon after his arrest at police headquarters. Although he was illegally detained for more than six hours before his arraignment, we nevertheless find that the illegality of the detention is unrelated to the “blurt out.” Appellant’s remarks were not induced by police inquiry or other official action; rather, the statements were made as a voluntary and spontaneous act of free will. Clearly this is not a case in which “important human values are sacrificed where an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will.” Blackburn v. Alabama, 361 U.S. 199. 206-207. 80 S.Ct. 274. 280. 4 L.Ed.2d 242, 248.

We are not convinced that the subsequent illegal detention of appellant in this case should negate his prior voluntary act. Surely, suppression would serve no useful purpose but to deny logic in an absurd effort to strike out at police misconduct. In conclusion, we must not forget the words of the Greek tragic playwright, Aeschylus, when he said, “Wrong must not win by technicalities.” We therefore ardently affirm the denial of the suppression motion.

III.

Finally, appellant argues that the trial court erred in denying his bid for a new trial on the basis of after-discovered evidence. Following appellant’s conviction for retail theft, an individual by name of Christy admitted to appellant’s counsel that he had committed the crime for which appellant was convicted. At an evidentiary hearing, Christy confessed to the crime, exonerated appellant, and explained why he had not come forward prior to this time. The trial court subsequently denied appellant’s motion by an order dated October 1, 1982 and filed October 5, 1982, but unfortunately it did not address this issue in a formal opinion. Consequently, we are unable to review this matter at this time since we do not have before us the lower court’s analysis. We therefore remand for an opinion by the trial court in support of its decision. We further vacate .the judgment of sentence pending the trial court’s disposition of this issue, at which time that court may reimpose sentence if it is deemed appropriate. Jurisdiction is relinquished.

SPAETH, President Judge, files concurring opinion, in which WIEAND and TAMILIA, JJ., join.

McEWEN, J., files concurring and dissenting Statement.

SPAETH, President Judge,

concurring:

I join Parts I and III of the majority opinion.

As to Part II, I agree with the majority’s conclusion that appellant’s statement was admissible although more than six hours elapsed between his arrest and preliminary arraignment. In my opinion, the Supreme Court has already determined that Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), does not require suppression of a blurted out statement. In Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982), the Court said that Davenport did not “establish[ ] a rigid standard impervious of the purposes it was intended to serve,” and that “[a]t no time did [the Court] wish to cut off freely volunteered confessions.” Id., 500 Pa. at 150, 454 A.2d at 1007. Suppression of appellant’s statement would not further “[Davenport’s ] primary purpose ... to discourage the obtaining of incriminatory information through coercive means.” Id.

In any case, Davenport has for practical purposes been overruled, albeit not formally. Various of the Justices of the Supreme Court have repeatedly said that the rule enunciated in Davenport is unsatisfactory. See Commonwealth v. Keasley, 501 Pa. 461, 464, 462 A.2d 216, 217 (1983) (McDERMOTT, J., concurring) (“Any departure from a rigid application of the six-hour rule of Davenport [ ] is a step in the right direction.”); Commonwealth v. Jenkins, supra, 500 Pa. at 152, 454 A.2d at 1008 (McDERMOTT, J., concurring) (“We must therefore discard Davenport and return to a more flexible approach.”); Commonwealth v. Bennett, 498 Pa. 656, 658, 450 A.2d 970, 971 (1982) (FLAHERTY, J., joined by HUTCHINSON, J., concurring) (“a delay of more than six hours should not per se render any prearraignment statement inadmissible”); Commonwealth v. Blady, 492 Pa. 285, 286, 424 A.2d 864, 864 (1980) (LARSEN, J., joined by FLAHERTY, J., dissenting) (expressing dissatisfaction with mechanical application of rule). While these individual expressions do not themselves constitute an overruling of Davenport, it is nevertheless significant that they have been uttered by a majority of the members of the Court. What persuades me that Davenport has for practical purposes been overruled is the Court’s decision in Common wealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983). There the Court by ZAPPALA, J., joined by LARSEN, FLAHERTY, McDERMOTT, and HUTCHINSON, JJ., found exigent circumstances, but added in dictum that “the continuing vitality of the Davenport rule as a whole is subject to speculation ...” id. at 490, 467 A.2d at 296 (citing the cases I have just cited). Neither the concurring opinion, by NIX, J., nor the dissenting opinion, by ROBERTS, C.J., took issue with this dictum. I agree, however, with the proposition implicit in the majority opinion, that until Davenport has been expressly overruled, it must be followed.

WIEAND and TAMILIA, JJ., join in this concurring opinion by SPAETH, President Judge.

McEWEN, Judge,

concurring and dissenting:

The author of the majority quite carefully and correctly demonstrates that a rigid application of the Davenport rule may be unwise and even, as here, ill-serve our criminal justice system. However, I hesitate to abrogate a per se rule established by our Supreme Court, since such a decision would seem to be solely the prerogative of the Supreme Court.

      . 18 Pa.C.S.A. Sec. 3929(a).

      . Courts have attempted to avoid this prejudice first by allowing the defendant the election not to testify without adverse comment, Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Commonwealth v. Davis, 452 Pa. 171, 305 A.2d 715 (1973), and, in the event that he chooses to testify and such evidence is introduced, by making a cautionary instruction available to the defendant, (cites omitted).

        Commonwealth v. Bighum, 452 Pa. 554, 566, 307 A.2d 255, 262 (1973).

      . The English essayist, Sir Max Beerbohm, once said: "Somehow, our sense of justice never turns in its sleep till long after the sense of injustice in others has been thoroughly aroused.”

      . Pa.R.Crim.P. 122 provides:
      When a defendant has been arrested in a court case, with a warrant, within the judicial district where the warrant of arrest was issued, the defendant whall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.
      Pa.R.Crim.P. 130, in pertinent part, provides:
      (a) Except as provided in paragraphs (b) and (c), when a defendant has been arrested without a warrant in a court case, a complaint shall be filed against the defendant and the defendant shall be afforded a preliminary arraignment by the proper issuing authority without unnecessary delay.

      . Pa.R.Crim.P. 140, in pertinent part, provides:
      (a) At the preliminary arraignment, the issuing authority shall ... deliver a copy of the complaint to him ... inform the defendant:
      (1) of his right to secure counsel of his choice and his right to assign counsel in accordance with Rule 316;
      (2) of his right to have a preliminary hearing; and
      (3) if the offense is bailable, of the amount of bail demanded and the types acceptable as provided in these rules.

      . Support for the Davenport rule has not always been unanimous among the Justices of the Pennsylvania Supreme Court. For instance, in Commonwealth v. Blady, 492 Pa. 285, 424 A.2d 864 (1980), rearg. denied, February 18, 1982, Mr. Justice Larsen joined by Mr. Justice Flaherty referred to the Davenport rule as the "quintessential illustration of mechanical jurisprudence” in expressing their dissatisfaction with the "rote application of the Davenport formula” at the “expense of justice.” Other members of the Court noted their displeasure with the "iron rule" in Commonwealth v. Bennett, 498 Pa. 656, 450 A.2d 970 (1982) (Mr. Justice Flaherty, concurring opinion, joined by Mr. Justice Hutchinson; Mr. Justice McDermott, concurring opinion, joined by Mr. Justice Larsen) and Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982) (Mr. Justice McDermott, concurring opinion). In the former case, Mr. Justice McDermott wrote: "we have invoked the rule to prevent one form of illegality, an illegality that can be monitored without subjecting our judicial system to the sorest criticism, when the guilty go free for no reason except an unnecessary and inapplicable rule.” Bennett, 498 Pa. at 660, 450 A.2d at 972.

      . The courts in the following cases have declined to suppress statements and/or evidence pursuant to the Davenport rule because of exigent circumstances. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983), reh. denied, — U.S. —, 105 S.Ct. 27, 82 L.Ed.2d 850 (1984) (the delay in arraignment proceedings can be attributed to the travel time between the place of arrest and arraignment); Commonwealth v. Keasley, 501 Pa. 461, 462 A.2d 216 (1983) (a delay in excess of six hours prior to arraignment resulted from the unavailability of a judge despite diligent efforts'by the police the summon another judge); Commonwealth v. Jenkins, 500 Pa. 144, 454 A.2d 1004 (1982) (Commonwealth’s election to release defendant within six-hour period to avoid consequences of violation of prompt arraignment rule did not require suppression of inculpatory custodial statement given by defendant). Commonwealth v. Ryles, 274 Pa.Super. 547, 418 A.2d 542 (1980) (the six hour rule was not violated where the delay was caused by the unavailability of the presiding judge).

      Despite the per se application of the Davenport rule, the relevant statements may nevertheless be used for impeachment purposes. See Commonwealth v. Bennett, 287 Pa.Super. 485, 430 A.2d 994 (1981), aff’d per curiam, 498 Pa. 656, 450 A.2d 970 (1982). In another effort to limit Davenport, the court in Commonwealth v. Rhem, 283 Pa.Super. 565, 424 A.2d 1345 (1980), held that Davenport applies only to statements and not physical evidence.

      . Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1947); McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943).

      . Christy explained that he did not come forward with this evidence earlier, because he hoped appellant would be acquitted.

      . See Pa.R.App.P. 1925(a).


author: BROSKY, Judge:

text:
    504 A.2d 1316
    Dennis James CONTI, t/d/b/a Shear Perfection, Appellant, v. ANTHONY’S SHEAR PERFECTION, INC., A Pennsylvania Corporation and Anthony P. Bologna.
    Superior Court of Pennsylvania.
    Argued Sept. 29, 1983.
    Filed Feb. 3, 1986.

      Lynn J. Alstadt, Pittsburgh, for appellant.

      James R. Fitzgerald, Pittsburgh, for appellees.
    Before BROSKY, McEWEN and BECK, JJ.
   BROSKY, Judge:

This appeal is from an order in equity denying appellant’s petition to protect as a trademark the name of his business. Appellant contends that the Chancellor erred in requiring secondary meaning as a prerequisite to protection under the relevant state and federal trademark statutes. In the alternative, he argues that the findings of fact establish such secondary meaning. We agree with the latter argument and, accordingly, reverse in part and affirm in part.

I.

The relevant facts, in chronological order, are as follows. In March of 1978 appellant first advertised and then opened a hair styling salon called “Shear Perfection.” Nearly a year later, in February of 1979, appellee opened a similar establishment just over 11 miles away by road called “Anthony’s Shear Perfection.” The following October appellee registered that name under the Trademark Statute. Almost five months later appellant registered also.

Thus, appellant was the first user but the second registrant; and appellant’s first use occurred well before appellee’s first registration.

Appellant brought an action in equity, seeking to have appellee enjoined from identifying his salon with the words “Shear Perfection” and for an accounting. The Chancellor held that since appellant had not established a secondary meaning — a public identification of those words with his place of business — he could not prevail. An appeal was timely taken to this Court.

II.

The first determination to be made is whether appellee has, by virtue of his first registration, acquired a superior right to the combination of words “Shear Perfection.” (Only if that question is answered in the negative would it be useful to consider appellant’s rights to the trademark.) For two independent reasons we conclude as a matter of law that appellee’s prior registration did not, given the particular facts of this case, give him the right to use the words in question.

A.

The first of these two reasons is that registry of a trademark, in and of itself, gives no right to exclusive use. In addition to registration the initial registrant must prove the originality of the registered mark and that the mark is not deceptively similar to the mark used by another. Stroehmann Bros. Co. v. Manbeck Baking Co., 331 Pa. 96 at 99, 200 A. 97 at 99 (1938). Appellee’s registration satisfies neither of these elements.

It was established at trial that the use of the words “Shear Perfection” was not original with the appellee, but with appellant. Consequently, the first element of the Stroehmann test was not met here.

The second element of the Stroehmann test was also not met. There can be no doubt in common sense that “Anthony’s Shear Perfection” is deceptively similar to “Shear Perfection.” The law concurs. “... the infringement of a trade name lies in the similarity of the names involved and not in their identity.” Goebel, supra, 373 Pa. at 345, 95 A.2d at 527. Therefore, the addition of the word “Anthony’s” before the two words in question does not protect appellee. The essential violation is still present; that an average customer could be led by the similarity into using the services of appellee rather than appellant’s. Thomson-Porcelite Co. v. Harad, 356 Pa. 121, 51 A.2d 605 (1947).

In Thomson-Porcelite the Supreme Court of this Commonwealth adopted the more elegant test for confusing similarity given in the Restatement of Torts First, § 729.

In determining whether the actor’s designation is confusingly similar to the other’s trade-mark or trade-name, the following factors are important: (a) the degree of similarity between the designation and the trade-mark or trade-name in (i) appearance; (ii) pronunciation of the words used; (iii) verbal translation of the pictures or designs involved; (iv) suggestion; (b) the intent of the actor in adopting the designation; (c) the relation in use and manner of marketing between the goods or services marketed by the actor and those marketed by the other; (d) the degree of care likely to be exercised by purchasers.

Without belaboring the obvious, it is apparent that several of those factors are present in the case before us.

Thus neither of the elements necessary under Stroehmann for a registrant to receive the protection of a trademark is present here.

B.

Besides not meeting either of the elements prescribed in Stroehmann, there is another independently adequate basis to deny appellee the benefit of his first registration. This is, quite simply, that the words “Shear Perfection” were incapable of becoming a valid trademark through registration.

Descriptive, geographical and generic words, as well as words of common or general usage belong to the public and are not capable of exclusive appropriation by anyone.

Koolvent, supra, 368 Pa. at 532, 84 A.2d at 298. See also Quaker State Oil Refining Co. v. Steinberg, 325 Pa. 273 at 277, 189 A. 473 at 475 (1937) and Zimmerman v. Holiday Inns of America, 438 Pa. 528, 266 A.2d 87 at 90 (1970).

While it has been established that appellee has no claim to the mark by virtue of his first registration, it still remains to be seen whether appellant himself has any protected interest.

II.

A second user with an invalid registration has no rights in the mark. How then may the first user, appellant here, establish a right in the mark?

The primary method, of course, is through registration. Since appellant’s was not the first registration, it is ineffective. There are however two other methods of establishing a legal right to the mark; for even though material may be unregistered or unregistrable a mark does not lose its common law protection.

A.

One such form of common law protection is activated when the mark has acquired a secondary meaning. Thomson-Porcelite, supra, 356 Pa. at 124, 51 A.2d at 606-7; Koolvent, supra, 368 Pa. at 532-3, 84 A.2d at 298; Quaker, supra, 325 Pa. at 278-80, 189 A.2d at 475-76.

Secondary meaning is commonly defined as follows: The term “secondary meaning” encompasses the situation where people in the trade or purchasing public come to think of a word or name as standing for the business of a particular owner ...”

Zimmerman, supra 438 Pa. at 535, 266 A.2d at 90. See also Miscellaneous, Inc. v. Klein’s Fashions, Inc., 452 Pa. 62 at 64, 305 A.2d 22 at 24 (1973). If secondary meaning is found, the holder is entitled to both injunctive relief and damages. Id.

The chancellor, using this definition found that appellant had not established a secondary meaning. As this is, at root, a finding of fact, our scope of review is quite limited. “... in equity cases, findings of fact, approved by a court en banc have all the force and effect of a jury verdict.” Id. The appellant can not get relief by this route.

B.

There is another method by which appellant can establish his claim, albeit with more limited redress. This other legal theory does not require a fact-finding that the public was, in fact, deceived.

It is not necessary that the public should be actually deceived in order to afford a right of action, [i.e. injunctive relief] All that is required is that the infringement' should have a tendency to deceive. The gist of the action is the intent to get an unfair benefit from another’s trade. Actual deception of the public is only material to the question of damages.

Shaw & Co. v. Pilling & Son, 175 Pa. 78 at 87, 34 A. 446 at 447 (1896). See also Koolvent, supra, 368 Pa. at 533-4, 84 A.2d at 299; Thomson-Porcelite, supra, 356 Pa. at 125, 51 A.2d at 607.

Thus, if appellant could establish that the similarity in names would have a tendency to deceive, he would be entitled to injunctive relief.

The “possibility that purchasers will be misled is not enough.” Koolvent, supra, 368 Pa. at 534, 84 A.2d at 299. That tendency to deceive and not merely the possibility was, we hold, present here.

Accordingly, appellant is entitled to an injunction against the use by appellee of the mark “Shear Perfection.” It also follows from the above that he is not entitled to an accounting.

Accordingly, the order of the Chancellor denying appellant’s petition for an injunction is reversed but affirmed as to the accounting.

      . Our finding under state law obviates the need for consideration of his claim under the federal trademark statute, the Lanham Act. 15 U.S.C.A. § 1501 et seq.

        . On January 9, 1978, before any of the other events in this case, appellant .registered to do business under the Business Corporation Law. 15 P.S. § 1202 et seq. That registration cannot suffice for trademark purposes. The omission of an additional registration at that time under the then Pennsylvania Trademark Act, 73 P.S. § 12, et seq. put in doubt what would otherwise have been appellant’s clear right to the trademark.

      . The thrust of these requirements is that “ ’... a person coming into a field already occupied by a rival of established reputation must do nothing which will unnecessarily create or increase confusion between his goods or business and the goods or business of the rival.’ Gamlen Chemical Co. v. Gamlen, D.C.W.D.Pa., 79 F.Supp. 622, 635-6 [1948] ...” Goebel Brewing Co. v. Esslingers, Inc., 373 Pa. 334 at 347, 95 A.2d 523 at 528 (1953).

      . The fact that the defendant in a trademark case has made substantial advertising expenditures to promote the challenged use does not bear on the equities of the case in his favor. Goebel, supra, 373 Pa. at 349, 95 A.2d 523 at 529. Thus appellee’s expenses here are not a factor in our treatment of this case.

      . In that case the marks “Goebels” and “Goblet” were held to be deceptively similar. The degree of similarity is certainly exceeded here.

      . The intent to deceive is not an indispensable factor. Koolvent Metal Awning Corp. of America v. Price, 368 Pa. 528 at 533, 84 A.2d 296 at 299 (1951).

      . As will be seen below, while these words could not become a valid trademark through registration, they could become a protected, valid trademark by acquiring a secondary meaning.

      . Of course, as we have noted, in this particular case even a first registration would not have been valid.

      . Stroehmann, supra, 331 Pa. at 97-8, 200 A. at 98.

      . 73 P.S. § 22(b). (Though repealed Dec. 16, 1982, it is the statute applicable to these proceedings.) The current trademark law contains a similar provision. 54 Pa.C.S. § 1126.

      . He would not, however, be entitled to an accounting, since such actual deception goes to damages and, as we have seen, the Chancellor concluded that actual deception was not shown.

      . In Miscellaneous, supra, 452 Pa. at 64, 305 A.2d at 24, this Commonwealth's Supreme Court wrote:
      While it is true that, in equity cases, findings of fact, approved by a court en banc have all the force and effect of a jury verdict, if they are supported by adequate evidence and ordinarily will not be disturbed on appeal, we do not believe that the evidence in the instant case is sufficient to establish the "secondary meaning” required to enable plaintiff to prevail.
      (citation omitted). The situation before us is the reverse of that in Miscellaneous. There the trial court found that there was a secondary meaning and on appeal that was reversed. Here, the trial court found that there was no secondary meaning and we reverse.