author: ROWLEY, Judge: KELLY, Judge:

text:
    560 A.2d 155
    COMMONWEALTH of Pennsylvania, Appellant v. Carl Edwin McILVAINE. COMMONWEALTH of Pennsylvania v. Carl Edwin McILVAINE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1989.
    Filed May 17, 1989.
    Reargument Denied June 26, 1989.

      Bradley M. Bassi, Assistant District Attorney, for Com., appellant in No. 1035 and appellee in No. 1036.
    Bruce A. Antkowiak, Greensburg, for appellee in No. 1035 and appellant in No. 1036.
    Before ROWLEY, KELLY and HESTER, JJ.
   ROWLEY, Judge:

Once again this Court is confronted with the question of whether an expert witness, called by the Commonwealth in a sexual assault case, improperly encroached upon the fact-finding role of the jury by commenting upon the veracity of the victim/witness. Defendant, a neighbor of the victim’s grandmother, was found guilty by a jury of Rape, Involuntary Deviate Sexual Intercourse (“IDSI”), Statutory Rape, Indecent Assault and Corrupting the Morals of a Minor. In cross-appeals now before this Court, the Commonwealth appeals the granting of a new trial, while defendant appeals the denial of his motion in arrest of judgment. We reverse in part and affirm in part.

COMMONWEALTH’S APPEAL

We first address the Commonwealth’s appeal. The trial court granted defendant a new trial on the basis that testimony given by a clinical psychiatric social worker, Michael Weller, contained an impermissible reference to the “reliability” of information given to him by children he interviewed in his employment capacity. The court held that “[t]his is the same kind of testimony which is condemned in [Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920 (1986) ] as a usurpation of the jury’s function to pass on credibility of a witness.” Slip op. at 6.

Our standard of review is well-settled: A trial court’s grant of a motion for a new trial will not be overturned absent a palpable and clear abuse of discretion or an error of law which controlled the outcome of the case. Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987). For reasons which follow, we hold that the testimony of Michael Weller did not usurp the jury’s function as fact-finder.

At trial Dr. Gwendolyn Ross, a psychiatrist specializing in child adolescent psychology, was called by the Commonwealth and testified that the victim was a patient at South-wood Psychiatric Hospital for a six week period following the attacks. The victim had been referred to the hospital for treatment of severe depression, suicidal thoughts and self-abusiveness. Dr. Ross testified that the victim received cognitive and milieu therapy at Southwood.

Following Dr. Ross’ testimony, the Commonwealth called Michael Weller to the stand. Weller joined Southwood Hospital in 1985 to practice family therapy with the Children’s Unit. He testified that from 1985 until 1987 he was “a clinical psychiatric social worker ... on the children’s program, doing family therapy with the children on that program.” N.T. at 217. The Assistant District Attorney asked Weller if he had dealt with sexually abused children at Southwood. Weller responded that at previous employment in West Virginia, twenty to thirty percent of the children with whom he worked were sexual abuse victims. At Southwood, fifteen to twenty percent of the children were identified as having been sexually abused, although as treatment programs progressed, the workers learned the actual rate was somewhat higher.

The testimony to which the defense ultimately objected centered on Weller’s description of his duties at Southwood. Weller testified:

I begin interviewing the family for past history, first starting with presenting problems, with the things that have led them and the child in coming to the hospital, and also looking at any past episodes, experiences or traumas that the child may have gone through. Part of that work is to interview extensively the family, and also the child, to pick up and see if there are any discrepancies in terms of what either of them are saying, and also to determine reliability of the information that’s being provided to me.

N.T. at 223-24. As Mr. Weller continued describing his duties, the testimony of which defendant complained came out:

So, as a part of that function, in addition to getting the history from the family, I also talk to the child to either confirm or deny what the adults are telling me, and I have found, within the practice, at least the children I'm working with right now, have a fairly high reliability of the information—

N.T. at 224. Defense counsel immediately moved for a mistrial on the basis that the statement that the children interviewed were of fairly high reliability is disallowed by Commonwealth v. Seese, supra. The Assistant District Attorney argued that the statement was cut off and, consequently, “he has not testified specifically about the child or about anything that he has done in this particular case.” N.T. at 226. The trial court did not grant a mistrial. At the post-trial motions stage, however, a new trial was granted on the basis of the Supreme Court’s ruling in Seese.

In Seese the Commonwealth’s expert witness, a board certified pediatrician who had treated between 360 and 400 cases of sexual abuse, testified that in her experience, young children do not fabricate stories of sexual abuse because they do not have the necessary sexual knowledge to supply details regarding such encounters. Our Supreme Court found that such testimony “consisted of expert opinion as to the veracity of the class of potential witnesses of which the victim was a member.” Seese, 512 Pa. at 442, 517 A.2d at 922. The Court held “it was error to admit expert testimony as to the credibility of children who are of an age similar to that of the prosecution’s chief witness, the crime victim.” Id., 512 Pa. at 444, 517 A.2d at 920.

The Supreme Court re-examined this issue in Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315 (1988). There a clinical child psychologist who had not examined the victim, called as an expert in the treatment of child sexual abuse, testified: “My experience with children who have had some type of sexual experiences when they report about it, typically it is based upon some event that actually occurred and not some fantasized or fabricated experience.” Id., 518 Pa. at 80, 541 A.2d at 316. The Court found that the prohibition of Seese applied squarely to the testimony given in Davis, as well. The Court reiterated that

[s]uch testimony, admitted as evidence, would encourage jurors to shift their focus from determining the credibility of the particular witness who testified at trial, allowing them instead to defer to the so-called “expert” assessment of the truthfulness of the class of people of which the particular witness is a member.

Davis, 518 Pa. at 82, 541 A.2d at 317, quoting Commonwealth v. Seese, 512 Pa. at 443-44, 517 A.2d at 922.

We hold that the case at bar is distinguishable from Seese and Davis. While Seese and Davis clearly prohibit an assessment by an expert of the truthfulness or veracity “of the class of people of which the particular witness is a member,” Weller made no such judgment of credibility in the case at bar. Weller testified that he interviews the families of Southwood patients for: 1) events which led the child to the hospital; and 2) “any past episodes, experiences or traumas.” He then interviews the children to confirm or deny what the adults have said. In stating that there is a high correlation of reliability between what the children and adults have said, Weller merely noted that the reasons for why a child entered the hospital tend to match.

In the case at bar, the grandmother’s testimony clearly established that her only knowledge of the attacks was based upon what the victim had told her. Thus, even if the jury inferred from Weller’s comment that the grandmother’s story as told to him matched that of the victim, the underlying credibility of the victim was still at issue and properly was left for determination by the jury. This sets the case apart from the multitude of decisions following Seese and Davis.

In the recent case of Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) an expert “was permitted to testify that the emotional difficulties which the alleged victim experienced ‘are consistent with kids who have been sexually abused.’ ” Id,., 381 Pa.Superior Ct. at 144, 553 A.2d at 76. Our Court held that “testimony which matches up the behavior of known victims of child sexual abuse with that of an alleged victim can serve no other purpose than to bolster the credibility of the alleged victim, and this purpose is patently prohibited.” Id.

Likewise, in Commonwealth v. Ferguson, 377 Pa.Super. 246, 546 A.2d 1249 (1988), our Court found expert testimony “that the complainant’s behavior and testimony were closely aligned with that of a child sexual abuse victim” to have been reversible error. Id., 377 Pa.Superior Ct. at 255, 546 A.2d at 1253. And in Commonwealth v. Zamarripa, 379 Pa.Super. 208, 549 A.2d 980 (1988) our Court noted that “where an expert testifies that a complainant exhibits some of the symptoms of [rape trauma] syndrome, the suggestion is planted within the jurors minds that the complainant’s testimony is reliable and trustworthy.” Id., 379 Pa.Superior Ct. at 211-212, 549 A.2d at 981. Additionally, in Com monwealth v. Rounds, 518 Pa. 204, 542 A.2d 997 (1988), our Supreme Court held that a pediatrician’s testimony that the “history” given to her by the victim was “the single most important factor in reaching her conclusion” that the victim had been raped, was error because it encroached upon the jury’s province. Id., 518 Pa. at 209, 542 A.2d at 999.

The words “fairly high reliability” uttered by the expert in the case at bar were a red flag to the trial judge. Clearly, Weller’s testimony correlating responses between parents and children was irrelevant. But such testimony did not constitute reversible error because it did not, in this instance, serve to bolster the victim’s credibility and did not remove the issue of credibility from the province of the jury. Therefore, we reverse the order of the trial court granting a new trial.

McILVAINE’S APPEAL

Appellant raises three issues on appeal which the trial court did not address due to the court’s decision to grant a new trial. See trial court opinion at 7. The issues should have been addressed. This Court has held that if the verdict is against the weight of the evidence, the only relief which may be granted is a new trial. However, if the evidence is insufficient to sustain the verdict, the appellant must be discharged. Commonwealth v. Merrick, 338 Pa. Super. 495, 502, 488 A.2d 1, 4 (1985). Since the forms of relief are different, the granting of a new trial did not excuse the trial court from addressing appellant’s “sufficiency of the evidence” claims. We shall do so here.

Our standard of review is this:

In reviewing the sufficiency of the evidence, we must view the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. The credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact; the fact finder is free to believe all, some, or none of the evidence.

Commonwealth v. Taylor, 324 Pa.Super. 420, 424, 471 A.2d 1228, 1229-30 (1984) (citations omitted).

Appellant first argues that judgment should have been arrested on the IDSI count because penetration was not proven. We disagree. 18 Pa.C.S. §§ 3123 and 3101 require “some penetration however slight.” The testimony of the victim that appellant opened his pants, requested that she kiss his penis, dropped his pants, got mad, and then pushed her head down until she kissed his penis is sufficiently descriptive to warrant the inference by the jury that appellant penetrated, “however slight,” the mouth of the victim. See Commonwealth v. Hornberger, 199 Pa.Super. 174, 184 A.2d 276 (1962) and Commonwealth v. Bowes, 166 Pa.Super. 625, 74 A.2d 795 (1950).

Next, appellant argues that he is entitled to arrest of judgment on all other counts because he was forced to defend against charges which were unconstitutionally vague and indefinite. Appellant admits that the Commonwealth “particularized” the dates of some of the incidents at trial. But appellant claims he was forced to defend himself against “100 separate instances of abuse” of which he only first became aware at trial. Brief at 22.

The basis of this alleged error is a statement which arose during re-direct examination of the victim by Ms. Spiewak, the Assistant District Attorney, at pages 110-111 of the notes of testimony. In an attempt to rehabilitate her witness following cross-examination, the Assistant District Attorney asked if it would be safe to say that the instances of sexual abuse numbered more than one hundred. The victim replied “yes.” Any objection appellant has to admission of this statement is waived because he made no timely objection at trial. Commonwealth v. Shain, 324 Pa.Super. 456, 471 A.2d 1246 (1984).

Finally, appellant argues that the evidence of Rape and Statutory Rape was insufficient because: 1) the vietim’s testimony concerning the sexual abuse was uncorroborated; and 2) the victim’s psychiatrist testified that penetration did not occur. In a case involving statutory rape, IDSI, and corrupting the morals of a minor this Court held, “the uncorroborated testimony of the victim, if believed by the trier of fact, is sufficient to support a conviction, despite contrary evidence from defense witnesses.” Commonwealth v. Stoner, 284 Pa.Super. 364, 369, 425 A.2d 1145, 1148 (1981). Further, as to the doctor’s testimony that “[t]he medical examination revealed there had not been successful penetration,” N.T. at 216, the statute requires only penetration “however slight.” In Commonwealth v. Ortiz, 311 Pa.Super. 190, 457 A.2d 559 (1983), our Court held that “penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetration under Section 3101.” Id., 311 Pa.Superior Ct. at 193-94, 457 A.2d at 561; see also Commonwealth v. Crider, 240 Pa.Super. 403, 361 A.2d 352 (1976) (testimony of the victim alone can be sufficient to establish penetration so as to sustain a conviction of rape). Because we find no merit to any of appellant’s claims, we hold that the trial court did not abuse its discretion in denying appellant’s motion in arrest of judgment.

Order denying the motion in arrest of judgment affirmed. Order granting a new trial reversed. Case remanded for sentencing. Jurisdiction relinquished.

KELLY, J., files a concurring statement.

Concurring statement by

KELLY, Judge:

I join that portion of the opinion which rejects the defendant’s assertions on appeal. I concur in the result as to the reversal of the trial court’s grant of a new trial. I believe the characterization of the limits on expert testimony is overbroad. See Commonwealth v. Thek, 376 Pa.Super. 390, 546 A.2d 83 (1988); Commonwealth v. Pearsall, 368 Pa.Super. 327, 534 A.2d 106 (1987). Nonetheless, I wholeheartedly agree that the reference in this case did not warrant the grant of a new trial.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    560 A.2d 160
    In re ESTATE OF Mildred M. PRESTON. Appeal of John A. PRESTON.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1989.
    Filed June 2, 1989.

      Scott Williams, Williamsport, for appellant.
    Richard D. Sheetz, Towanda, for appellee.
    Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This appeal questions the manner of the calculation of executor’s commissions and attorney’s fees due for the administration of a'decedent’s estate. Herein, for the purposes of calculating the commissions and fees due, the orphans’ court included, as assets of the estate, marital assets which passed outside the estate. The court also calculated the commissions and fees using an arbitrary percentage-formula promulgated by the court via a schedule called “the Attorney General’s Schedule of Attorney’s Fees.” We dismiss this appeal as it is interlocutory. However, in an effort to end the proscribed practices operating in the Orphans’ Court of Bradford County (and, perhaps, in other jurisdictions of our Commonwealth), we instruct the lower court on the proper procedure for the calculation of executors and attorneys fees.

This appeal arises from the denial by Bradford County Court of Common Pleas, Orphans’ Court Division, of the appellant’s request to compel the executor of Mildred M. Preston’s estate to file exceptions to the estate of John E. Preston. On appeal, the appellant, John A. Preston, asserts that, because he is a distributee under the will of Mildred M. Preston, he therefore has a financial interest in both the estate of Mildred M. Preston and the estate of John E. Preston. Consequently, he contends that (1) he may compel the executor of Mildred M. Preston’s estate to file exceptions to the grossly excessive disbursements made from the estate of John E. Preston; or, in the alternative, (2) that he can compel the executor of the estate of John E. Preston to apply for review of that estate.

Briefly the facts are these: On October 5, 1984, John E. Preston died, and J. Earl Preston was named as executor of the estate. Upon his death, John E. Preston’s estate passed to his wife, Mildred M. Preston. However, approximately four months later, prior to settlement of her husband’s estate, Mildred M. Preston expired. J. Earl Preston was also named as executor of Mildred’s estate. The first and final accounting of the John E. Preston’s estate was filed on or about May 8, 1985, showing principal in the amount of $23,411.46. Thereafter, the Bradford County Court of Common Pleas, Orphans’ Court Division, indicated that the

attorney’s fee and the executor’s commission were calculated on the total assets of the estate, which appeared on the Inheritance Tax return as $105,105.35. This figure includes jointly owned property in the amount of $82,-277.49, upon which the attorney and executor are entitled to calculate their fees. (Tr. Op. 6/8/88 p. 2) (emphasis added)

The accounting listed disbursements out of the principal amounting to $21,293.47 which included the court’s calculation of executor’s commissions and attorney’s fees amounting to $4,653.17 each. The remaining corpus of the estate which poured-over into the estate of Mildred M. Preston was $2,601.00. The will of Mildred M. Preston provided that the appellant’s father was to receive a specific bequest of $10,000.00 which was to be placed in an interest bearing account and thereafter used for the education of the appellant with the remainder passing to the appellant when he reached the age of twenty-one (21).

The appellant filed exceptions to the first and final accounting of John E. Preston’s estate, stating that the executor’s and attorney’s fees were excessive. On April 23, 1986, the lower court dismissed the appellant’s exceptions because he lacked standing to file exceptions to John E. Preston’s estate, and, even if he had standing, the exceptions were untimely.

The appellant then petitioned for the removal of J. Earl Preston as administrator of Mildred M. Preston’s estate, and, on August 11, 1986, the lower court denied that petition. Subsequently, on June 8, 1988, the lower court denied another petition by the appellant, this one asking that the executor of the estate of Mildred M. Preston be compelled to file exceptions to the estate of John E. Preston. This appeal followed. As of the date of this appeal, a first and final accounting of the estate of Mildred M. Preston has not been filed. As a result of the appellant’s petition to compel the executor to file exceptions all proceedings relating to the estate of Mildred M. Preston were stayed, and the estate remains open.

Although neither party has raised the issue of jurisdiction, we may address the issue sua sponte. Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). Before we can address the merits of an appeal, we must determine whether we have jurisdiction to adjudicate the claims raised. Generally, interlocutory orders are not appealable, and appeals must be taken from a final order. Matter of Estate of Meininger, 367 Pa.Super. 105, 532 A.2d 475 (1987); Elderkin v. Sedney, 354 Pa.Super. 253, 511 A.2d 858 (1986).

Instantly, a final accounting of Mildred M. Preston’s estate has not been filed, and it follows that an adjudication or decree of distribution has not been filed by the court. In Meininger, supra, we were faced with a situation similar to that now before us. Therein, the appellant objected to the accounting alleging that the executor had abused his confidential relationship with the decedent to enrich himself. The objections were dismissed. The appellant then filed a motion to grant exceptions to the dismissal order. This motion was also denied, and the Meininger appeal followed. We ruled that the appeal was from a non-appealable interlocutory order, and, consequently, we dismissed the appeal. In so ruling, we stated:

The Supreme Court Orphans’ Court Rule 6.11 requires that before confirmation of an account may occur, and before a statement of proposed distribution may be approved, an adjudication or a decree of distribution must be filed by the court or the clerk of court in accordance with local rules. Confirmation thus confers finality, since it is from the vantage point of the beneficiaries and heirs, conclusive as to any division of property then before the orphans’ court. From the personal representative’s perspective, confirmation “serves to discharge him from liability as to any property he distributes in accordance with the court’s decree.” ...
... Absent confirmation, and its imprimatur of finality, an appeal is premature and therefore interlocutory, (citations and footnotes omitted.)

Meininger, 532 A.2d at 476-477.

The present appeal was taken from the denial of the appellant’s petition to compel the executor of Mildred M. Preston’s estate to file exceptions to the estate of John E. Preston or to apply for a review of that estate. Thus, at the time this appeal was taken, the schedule of distribution had not been filed nor had the adjudication been confirmed. There was no final decree from which an appeal could be taken, and this appeal is consequently dismissed. Levy’s Estate, 307 Pa. 522, 161 A. 740 (1932). See also In re Estate of Brockerman, 332 Pa.Super. 88, 480 A.2d 1199, 1200, n. 1 (1984) (“An order dismissing exceptions is interlocutory and non-appealable until judgment has been entered on the docket.”) citing e.g., Murray v. Abcon, Inc., 291 Pa.Super. 428, 435 A.2d 1301 (1981).

Nevertheless, we will take this opportunity to review the practices employed by the Bradford County Court of Common Pleas, Orphans’ Court Division, (and, perhaps, other jurisdictions within the Commonwealth), when adjudicating the issue of executor’s commissions and attorney’s fees. While we reluctantly address the issue of compensation for executors and their counsel, we do so out of manifest necessity since, without guidance, the court will continue to operate in its present proscribed manner. In order to prevent further confusion in computing the fees and commission in this case and countless other estate cases certain to follow, we will briefly outline the correct procedure.

At the very heart of this appeal is the Bradford County Orphans’ Court’s method of computing the fees and commissions due for the administration and probate of an estate which was outlined in the following memorandum:

TO: BRADFORD COUNTY BAR ASSOCIATION MEMBERS
FROM: JEFFREY A. SMITH, PRESIDENT JUDGE
DATE: OCTOBER 9, 1985
RE: ATTORNEY FEES FOR THE PROBATE OF ESTATES
‡****!**********************************************#***********
The Attorney General’s Office has set the following schedule of attorney’s fees to be charged for the probate of estates:
Per Col. Per Total
$ 00.01 to $ 25,000.00 7% 1.750.00 1.750.00
$ 25,000.01 to $ 50,000.00 6% 1.500.00 3.250.00
$ 50,000.01 to $ 100,000.00 5% 2.500.00 5.750.00
$ 200,000.01 to $1,000,000.00 3% 24.000. 00 33.750.00
$1,000,000.01 to $2,000,000.00 2% 20.000. 00 53.750.00
$2,000,000.01 to $3,000,000.00 1%% 15.000. 00 78.750.00
$3,000,000.01 to $4,000,000.00 1% 10.000. 00 88.750.00
$4,000,000.01 to $5,000,000.00 5.000. 00 93.750.00
A. V-¿% Regular Commission P.O.D. Bonds and Trust Funds
B. V?o Non-Probate Assets up to 1,000,000
C. 3 Transfer
Joint Accounts
D. Vfo Non-probate Assets
E. 3 %% Assets Which are Taxable at One Half Value
F. Joint Accounts Fully Taxable: Full Commission
When your fee includes assets listed in categories (a) — (f) above, please state specifically in the account which category applies and include a calculation of the attorney’s fees for these items. This will speed the Court’s determination of the appropriateness of attorney fees and allow the Court to approve appropriate accounts in a timely fashion.

We note that this schedule may have actually originated in the Department of Revenue and relates to the valuation of estates for the purposes of inheritance taxation. Instantly, we observe that the executor’s commissions and the attorney’s fees were calculated for the estate of John E. Preston as determined for inheritance tax purposes; jointly-held property of the decedent was included in the probate estate. (Tr. Op. 6/8/88 p. 2) Clearly, jointly-held property passes outside of a decedent’s estate and should not be included in an estate’s assets for purposes of computing an executor’s commissions and an attorney’s fees. In re Estate of Allen, 488 Pa. 415, 412 A.2d 833, 838 (1980) (a joint tenancy with right of survivorship is too well-settled to be gainsaid; the funds pass outside the estate to the party having the right of survivorship), See also Cohen v. Goldberg, 431 Pa. 192, 244 A.2d 763 (1968); Clingerman v. Sadowski, 513 Pa. 179, 519 A.2d 378 (1986); Estate of Matson, 374 Pa.Super. 61, 542 A.2d 147, 152 (1988) citing Holmes Estate, 414 Pa. 403, 406, 200 A.2d 745, 752 (1964).

The record reveals that the first and final accounting valued the estate at $23,411.46. The executor properly did not list in the inventory of the estate the jointly-owned property valued at $82,277.49. However, the lower court determined that the executor’s commission and the attorney’s were to be calculated on the value of the estate plus the jointly-held property which was not part of John E. Preston’s estate for first and final accounting purposes. This decision was clearly erroneous. The fees and commissions paid out of the estate of John E. Preston should have been calculated from the total assets of the estate as reported in the first and final accounting, $ 23,411.46. The fees and commissions dispersed from the estate of Mildred M. Preston should likewise be computed on the basis of the estate’s total assets as listed in the final accounting (when one is completed), not on the basis of the total taxable estate as determined for inheritance tax purposes.

Moreover, the executor and his counsel failed to meet the burden of proving the reasonableness of their compensation. He did not establish facts which show that he is entitled to the requested compensation. In re Sonovick, 373 Pa.Super. 396, 541 A.2d 374, 376 (1988). It is axiomatic that the executor of an estate is accountable for the fees paid to himself or his counsel. In re Thompson’s Estate, 426 Pa. 270, 232 A.2d 625 (1967). Determining the reasonableness of the compensation for administration of a decedent’s estate is within the sound discretion of the orphans’ court; however, where the ultimate conclusion of the court is without the support of the record, its decision will not stand. In re Estate Sonovick, supra, 373 Pa.Superior Ct. 399, 541 A.2d at 376; In re Estate of Loutsion, 344 Pa.Super. 477, 496 A.2d 1205, 1206 (1985); In re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305, 1311 (1977); In re Reed’s Estate, 462 Pa. 336, 341 A.2d 108 (1975).

Further guidance in determining the value of executor’s and attorney’s services is found in In re Estate of Sonovick, 373 Pa.Super. 396, 541 A.2d 374, 376 (1988). Therein, we stated:

A fiduciary is entitled to “reasonable and just” compensation for the services he provides. In Re Ischy Trust, 490 Pa. 71, 415 A.2d 37, 42 (1980); Williamson Estate, 368 Pa. 343, 349, 82 A.2d 49 (1951); 20 Pa.C.S.A. § 7185(a). Thus, the fiduciary’s entitlement to compensation should be based upon actual services rendered and not upon some arbitrary formula. In Re Estate of Breyer, 475 Pa. 108, 379 A.2d 1305, 1311 (1977); In Re Ischy Trust, supra, 415 A.2d at 42; In Re Reed, 467 Pa. 371, 357 A.2d 138, 142 (1976). (emphasis added) ... “It is fundamental that an attorney seeking compensation from an estate has the burden of establishing facts which show that he or she is entitled to such compensation.” Estate of Wanamaker, 314 Pa.Super. 177, 460 A.2d 824, 825 (1983) (citing) Hempstead v. Meadville Theological School, 286 Pa. 493, 134 A. 103 (1926).

In re Sonovick, 541 A.2d at 376.

The compensation for the administration of John E. Preston’s estate was awarded simply upon a percentage basis— no inquiry was made by the orphans’ court into the reasonableness of the fees and commissions dispersed.

Unpersuasively, the appellee argues that the commissions and fees in question were not excessive because they were within the schedule of attorney’s fees to be charged for the Probate of Estates as set forth by the Attorney General’s Office; this schedule was adopted for use in Bradford County pursuant to the Honorable Jeffrey A. Smith’s Memorandum dated October 9, 1985. However, the lower court’s use of the Attorney General’s schedule for calculating fees is clearly improper and must cease. Egregious error is committed when a court awards commissions and fees simply on a percentage basis without inquiry into the reasonableness of the compensation, especially when the award is based, in part, on property not included in the decedent’s estate, i.e. jointly-owned property.

In conclusion, we dismiss this appeal. However, when presiding over the administration of estates in the future, we direct the Bradford County Court of Common Pleas to comply with the Pennsylvania statutes and case law precedent rather than adhering to the erroneous guidelines it currently employs.

Appeal dismissed with instructions.

      . The record indicates that the fee schedule may have actually originated from the Department of Revenue.

      . The appellant is the grandson of Mr. and Mrs. John E. Preston. The executor is the decedent’s son.

      . John E. Preston’s will provided that the assets of his estate where to pour-over into his wife’s estate at his death.

      . The "excessive disbursements” are the executor’s commissions and the attorney’s fee. The appellant alleges that the court incorrectly computed the fees, and, per the following discussion, we agree.

      . The fee schedule announced to the Bradford County Bar Association by the President Judge Jeffrey A. Smith (and sole judge) of the Bradford County Court of Common Pleas was used presently to determine what assets were to be included in the appellant’s estate for the purpose of computing fees and commissions and what percentage rate would be used to compute those fees and commissions. See Fee Schedule, infra.

      . The fees and commissions totaled nearly thirty eight percent (38%) of John E. Preston’s estate (excluding jointly-held property) at the time of his death.

      . The appellant requested that the executor be removed from the estate of Mildred M. Preston under 20 Pa.C.S.A. § 3182(1) of the Probate Estates and Fiduciaries Code.
      20 Pa.C.S.A. § 3182. Grounds for removal.
      The court shall have exclusive power to remove a personal representative when he:
      (1) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law.

      . These cases rest upon Rule 301 of the Pennsylvania Rules of Appellate Procedure, which provides in pertinent part:
      RULE 301. Requisites for an appealable order
      (a) Entry upon docket below. No order of a court shall be appealable until it has been entered upon the appropriate docket in the lower court ...
      (c) Orders not appealable. A direction by the lower court that a specified judgment, sentence or other order shall be entered, unaccompanied by actual entry of the specified order in the docket,---Any such order shall be reduced to judgment and docketed before an appeal is taken.

      . The error in it decision is highlighted by the lower court’s statement in its opinion that “jointly owned assets are not technically part of [the] decedent’s estate and thus do not appear in the principal on the final account.” (Tr. Op. 6/8/88 p. 2)

      . We note that fees and commission may be imposed for the administration of jointly-held property which passes outside the estate. However, to collect such fees, the executor and his counsel must prove their reasonableness and appropriateness. Presently, this was not done.

      . "While as a matter of convenience the compensation of a fiduciary may be arrived at by way of percentage, the true test is always what the services were actually worth and to award a fair and just compensation therefor.” Williamson Estate, 368 Pa. 343, 349, 82 A.2d 49, 52 (1951); see e.g., In re Sonovick, 373 Pa.Super. 396, 541 A.2d 374 376 (1988).


author: BECK, Judge:

text:
    560 A.2d 165
    COMMONWEALTH of Pennsylvania v. Stanley M. SNYDER, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Stanley M. SNYDER, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1988.
    Filed June 5, 1989.

      Frederick P. Kramer, West Chester, for appellant (at 369) and appellee (at 370).
    Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellee (at 369) and appellant (at 370).
    Before ROWLEY, WIEAND and BECK, JJ.
   BECK, Judge:

The issues in this case involve questions of (1) whether a person with prior driving under the influence of alcohol or controlled substances convictions under 75 Pa.Cons.Stat. Ann. § 3731 (Purdon Supp.1988) may obtain a preliminary disposition in lieu of criminal proceedings under the drug dependent statute 35 Pa.Stat.Ann. § 780-118(a) (Purdon 1977); (2) whether filing an information eight months after arrest requires dismissal pursuant to either Pa.R.Crim.P. 130(b), (d), 131(b), or 315(a); (3) whether there was adequate evidence of chain of custody to allow the results of a blood test into evidence; and (4) whether a person sentenced to a term of imprisonment under 75 Pa.Stat.Ann. § 3731(e) may be placed on work release as part of that sentence. Appellant, Stanley Snyder has raised the first three issues and the Commonwealth has cross-appealed on the work release issue.

We conclude that the trial court correctly held that under the circumstances presented: (1) no preliminary disposition is available under the drug dependent statute, 35 Pa.Cons. StatAnn. § 780-118(a); (2) that there should be no dismissal of the second complaint under Pa.R.Crim.P. 130, 131 or 315; (3) the results of the blood test were properly admitted into evidence; and (4) a judge may include work release as part of the sentence of imprisonment under 75 Pa.Cons. StatAnn. § 3731(e). We therefore affirm the judgment of sentence.

On June 23,1984 Stanley Snyder was arrested for driving while intoxicated. He was transported to Southern Chester County Medical Center for a chemical test of his blood. Two samples were taken in front of the arresting officer, transported to the Kennett Square police station and stored there overnight. Dr. Thomas Logan of the Pennsylvania State Police laboratory in Lima testified that he received blood samples with a request for a laboratory analysis on the blood of Stanley Snyder. Dr. Logan conducted the analysis which resulted in a finding of .26% blood alcohol concentration.

On June 24, 1984 the Commonwealth filed a criminal complaint against Snyder charging him with violations of 75 Pa.Cons.Stat.Ann. § 1501 (Purdon 1977 & Supp.1988) (relating to license requirements), § 1543 (Purdon Supp.1988) (relating to driving with a suspended license), § 3714 (Purdon 1977) (relating to reckless driving), and § 3731(a)(1) (Purdon Supp.1988) (relating to driving under the influence of alcohol or controlled substances). On July. 10, 1984 after a preliminary hearing, Snyder was held over for court on all charges. In Criminal Information No. 1442-84, Snyder was charged with the above violations.

Prior to trial on Information No. 1442-84, Snyder petitioned for a preliminary disposition under the drug dependent statute, 35 Pa.Stat.Ann. § 780-118(a), which allows for the appointment of a physician to determine the propriety of a rehabilitative preliminary disposition as an alternative to criminal prosecution in cases of drug dependency. The court denied the petition, but certified the ruling as appropriate for appeal in October, 1984. The Superior Court denied Snyder’s petition for permission to appeal on May 30, 1985 and the Supreme Court denied relief on June 4, 1987. The trial judge stayed all proceedings after his October 1984 order certifying the interlocutory appeal.

While the stay was in effect on the first complaint, the Commonwealth filed a second criminal complaint against Snyder on March 25, 1985 charging him with violation of 75 Pa.Cons.Stat.Ann. § 3731(a)(4) (relating to driving with a blood alcohol content greater than .10%). On August 21, 1985, the trial judge lifted the stay order for the purpose of permitting a preliminary hearing on the second complaint. This criminal complaint became Criminal Information No. 2053-85.

The trial judge refused to dismiss the second complaint for delay and consolidated both complaints for trial. Prior to trial the judge ruled, pursuant to Pa.R.Crim.P. 131(b), (c) (relating to failure to include offenses arising out of same incident in a single complaint), that Snyder would not be liable for any additional costs caused by the filing of the second complaint. The trial judge sat without a jury and found Snyder guilty of 75 Pa.Cons.Stat.Ann. §§ 1501, 3714, and 3731(a)(1) under the first complaint and 75 Pa.Cons. StatAnn. § 3731(a)(4) under the second complaint.

At sentencing, the trial court found that Snyder had three previous convictions under § 3731 for driving under the influence and imposed the minimum sentence required by the statute, sentencing Snyder to one to two years imprisonment with the first three weeks to be served in total incarceration and the remainder of the time to include work release. See 75 Pa.Cons.Stat.Ann. § 3731(e)(l)(iv). The trial judge ruled that the § 3731(a)(4) charge dealing with Snyder’s blood alcohol level merged with the § 3731(a)(1) driving under the influence charge and imposed no further sentence of imprisonment. He imposed fines for the other two violations. On the appeal before us Snyder has not challenged the finding of three prior convictions nor has the Commonwealth challenged the merging of the charges.

Preliminary disposition

The first issue we address is Snyder’s assertion that the trial court committed an error of law when it refused to grant his request for a court appointed physician pursuant to the drug dependent statute 35 Pa.Stat.Ann. § 780-118(a). As discussed more fully, infra, if the court had granted Snyder’s petition, the court would have appointed a physician to determine whether Snyder should receive rehabilitative treatment in lieu of subjecting him to the criminal prosecution and penalties of the driving under the influence statute, with the final decision on rehabilitation or prosecution resting with the district attorney. We hold that the rehabilitative provisions of the drug dependent statute are not applicable as a preliminary disposition to persons charged with driving under the influence. Our conclusion is based on an analysis of the driving under the influence statute.

In determining the application of a statute, our primary objective is to discern the legislative intent behind that statute. 1 Pa.Cons.Stat.Ann. § 1921(a) (Purdon 1988). The primary method of determining the meaning of a statute is simply to look at the plain and unambiguous meaning of the statute as written by the Legislature. Id. at § 1921(b). However, where the meaning is not clear on the face of the statute, the courts are instructed to look at other factors in determining legislative intent. Thus, in construing the legislative intent behind a statute the court may look to (1) the occasion and necessity of the statute, id. at § 1921(c)(1); (2) the circumstances in which it was enacted, id. at § 1921(c)(2); (3) the mischief to be remedied, id. at § 1921(c)(3); and (4) the object to be attained by the law, id. at § 1921(c)(4).» See Moon Township v. Police Officers of Moon Township, 508 Pa. 495, 498 A.2d 1305 (1985). In addition, the court may consider the former law on the same subject, 1 Pa.Cons.Stat.Ann. § 1921(c)(5) (Purdon 1988); Commonwealth v. Wescott, 362 Pa.Super. 176, 523 A.2d 1140, appeal denied, 516 Pa. 640, 533 A.2d 712 (1987), as well as what the consequences of a particular interpretation would be. 1 Pa.Cons.Stat.Ann. § 1921(c)(6) (Purdon 1988); Tyler v. King, 344 Pa.Super. 78, 496 A.2d 16 (1985). Moreover, we must recognize that in construing the statute there is a presumption that the legislature did not intend unreasonable or absurd results. 1 Pa.Cons.Stat.Ann. § 1922(1) (Purdon 1988); Commonwealth v. Fisher, 485 Pa. 8, 400 A.2d 1284 (1979).

In interpreting statutes we also consider the rules of construction governing situations where two statutes are at issue. In such cases, a court attempts to construe the statutes in harmony if possible. Appeal of Yerger, 460 Pa. 537, 333 A.2d 902 (1975); Commonwealth v. Smith, 375 Pa.Super. 419, 544 A.2d 991 (1988) (en banc).

However, where a general statute and special statute are in conflict, the special prevails unless the general was enacted later in time and the Legislature intended the general provision to prevail. 1 Pa.Cons.Stat.Ann. § 1933 (Purdon 1988). Additionally, where two general statutes are in conflict, the one enacted on the later date prevails. Id. at § 1936 (Purdon 1988); Community College of Beaver County v. Community College of Beaver County, Society of the Faculty, 473 Pa. 576, 375 A.2d 1267 (1977).

The primary statute before us is a provision of the driving under the influence statute, 75 Pa.Cons.Stat.Ann. § 3731 as amended in 1982 and 1984 (DUI statute). The circumstance for amending the DUI statute was the need to respond to the grim situation of death and serious injury caused by intoxicated drivers on our roads and highways. See generally, Comment, The New Pennsylvania Drunk Driving Law: Last Call for the One-For-The-Road Era, 87 Dick.L.Rev. 805 (1983). Much of the motivation for the new law was provided by citizens groups such as the Mothers Against Drunk Drivers. Id. It is clear from an examination of the prior law under § 3731, that the object to be attained by the wholesale amendments of 1982 was a more thorough and exacting means for dealing with intoxicated drivers in an effort to limit the carnage they caused. Id. at 813-817. Thus, for example, under the prior § 3731(d) “[a]ny person violating any of the provisions of this section [was] guilty of a misdemeanor of the third degree.” 75 Pa.Cons.Stat.Ann. § 3731(d) (Purdon 1977) (amended 1982). Under current § 3731(e), violators are guilty of a misdemeanor of the second degree with provisions for a minimum fine and mandatory terms of imprisonment. We thus see the circumstances that gave birth to the current driving under the influence laws and the evil they seek to control. We will now examine the consequences, reasonableness and integrity of interpreting § 3731 to include Snyder’s reading which would incorporate the preliminary disposition provisions of the drug dependent statute into the DUI statute.

The language in the DUI statute which gives rise to appellant’s argument provides for preliminary disposition in the form of Accelerative Rehabilitative Disposition (ARD) or “any other form of preliminary disposition” for certain persons charged with DUI. 75 Pa.Cons.Stat.Ann. § 3731(e)(2). See also id. at §§ 1548, 3731(e)(7), (8). Appellant urges us to find that the language “any other form of preliminary disposition” includes preliminary disposition under the drug dependent statute. The driving under the influence statute does not define or describe what is meant by “other forms of preliminary disposition.” ARD is the only form of preliminary disposition expressly named in section 3731 and in the related' statutes.

Snyder insists that the preliminary disposition of the drug dependent statute, section 780-118(a) is applicable to him, an individual with repeated DUI convictions. The relevant portion of the drug dependent statute provides:

Disposition in lieu of trial or criminal punishment
If a person charged with a nonviolent crime claims to be drug dependent or a drug abuser and prior to trial he requests appropriate treatment, including but not limited to, admission or commitment under the Mental Health and Mental Retardation Act of 1966 in lieu of criminal prosecution, a physician experienced or trained in the field of drug dependency or drug abuse shall be appointed by the court to examine, if necessary, and to review the accused’s record and advise the government attorney, the accused and the court in writing setting forth that for the treatment and rehabilitation of the accused it would be preferable for the criminal charges to be held in abeyance or withdrawn in order to institute treatment for drug dependence or for the criminal charges to be prosecuted. The government attorney shall exercise his discretion whether or not to accept the physician’s recommendation.

Like ARD, as limited by the driving under the influence statute, the drug dependent statute is aimed at nonviolent offenders in cases where treatment or rehabilitation may be preferable in lieu of criminal prosecution. See infra. Moreover, as with ARD, the choice to pursue a disposition under the drug dependent statute is subject to the discretion of the prosecuting attorney. See Pa.R.Crim.P. 175, 176.

Under the DUI statute, ARD is a highly restricted form of preliminary disposition. See 75 Pa.Cons.Stat.Ann. §§ 3731(e)(6), (7) (governing additional conditions for ARD under the drunk driving laws and circumstances for revocation of ARD). Further, under section 3731(d) persons are not eligible for ARD where (1) previously they have been found guilty of a charge brought under section 3731 or accepted ARD under that section within the last seven years; (2) there has been a 75 Pa.Cons.Stat.Ann. § 1542 (Purdon 1977) violation relating to habitual offenders; and (3) an accident occured in relation to the current charge that resulted in death or serious injury. Id. at § 3731(d). It is thus clear from the face of the statute that ARD is only available to first time non-habitual offenders who have not been involved in a serious accident.

Snyder requests that we interpret the language, “any other form of preliminary disposition” in the driving under the influence statute to include preliminary disposition under the drug dependent statute. His interpretation, however, undermines and works at cross purposes with ARD. Under Snyder’s reading of the statute, defendants with multiple DUI convictions would be eligible for preliminary dispositions under the drug dependent statute where they would be ineligible for acceptance into ARD. We can discern no reason why the Legislature would have intended this broad and conceivably less restrictive route of preliminary disposition in face of the fact that the Legislature has continued to enact more stringent penalties for DUI violations.

We further find that where the Legislature has carefully constructed a specific statutory role for preliminary dispositions, namely ARD, it would work an unreasonable result to allow application of an analogous and less restrictive form of preliminary disposition for which the Legislature did not expressly provide in the absence of a convincing rationale to do so. In essence, we find that the preliminary disposition provision of the more general drug dependent statute is not applicable as a preliminary disposition under DUI. See Commonwealth v. Waters, 361 Pa.Super. 154, 522 A.2d 60, appeal denied, 515 Pa. 621, 531 A.2d 430 (1987) (special newly enacted statute applying to drunk drivers must be construed to take precedence over more general statute permitting probation for drug or alcohol dependency enacted over ten years earlier); 1 Pa.Cons.Stat.Ann. §§ 1933, 1936.

We observe that the inapplicability of the drug dependency statute does not in any way limit the possibilities for therapeutic treatment for substance abusers who drive under the influence. Under 75 Pa.Cons.Stat.Ann. § 1548, the courts have been given a wide mandate to order treatment for those drivers found to be involved with controlled substances or alcohol. Section 1548(a) requires all persons convicted of a DUI violation or offered ARD thereunder to be evaluated using the Court Reporting Network to determine the extent of the person’s involvement with drugs or alcohol. Section 1548(c) therein provides:

Based on the results of evaluation and any additional information and evidence, the court may in addition to any other requirements of the court or this title determine and require, as part of sentencing or condition of parole, probation or Accelerated Rehabilitative Disposition or other preliminary disposition, that the person successfully complete a prescribed program of individual or group intervention or supervised inpatient or outpatient treatment or any other combination of these programs or treatments for a period of up to two years in duration.

It is clear that a complete range of therapeutic programs is available for all levels of DUI offenders under the DUI statute. Thus again, we find no rationale for applying the generally worded and less circumscribed drug dependent statute in circumstances where the Legislature has set forth special statutes expressly dealing with the treatment of those who drive under the influence.

In sum, for all of the foregoing reasons, we hold that a preliminary disposition under the drug dependent statute, 35 Pa.Stat.Ann. § 780-118(a), is inapplicable where a person is charged with driving under the influence.

Filing of the second complaint

Snyder also claims that the Commonwealth’s failure to file its second information until eight months after arrest requires quashal or dismissal of the charges stated in the second complaint pursuant to Pa.R.Crim.P. 130(b), (d), 131(b), and 315(a).

Rule of criminal procedure 130 states:

(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.

Where a party seeks a dismissal for a failure to comply with Rule 130, Pa.R.Crim.P. 150 applies. Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987). Rule 150 states:

A defendant shall not be discharged nor shall a case be dismissed because of a defect in the form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary hearing and the defect is prejudicial to the rights of the defendant.

The Commonwealth argues that Snyder has waived his Rule 130 claim by failing specifically to raise it before the conclusion of the preliminary hearing as required by Pa.R. Grim.P. 150. Commonwealth v. Revtai, supra; Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987) (en banc), appeal denied sub. nom., Commonwealth v. Hall, 518 Pa. 624, 541 A.2d 1136 (1988).

Under Rule 150, a defect in procedure in a Chapter 100 rule shall not result in a dismissal unless: (1) the defendant has raised the defect before the conclusion of the preliminary hearing and (2) the party seeking relief can show that the Commonwealth's noncompliance prejudiced his rights. The Comment to Rule 150 explains that “[o]rdinarily, if a defendant does not raise a defect before the conclusion of the preliminary hearing, the defendant cannot thereafter raise the defect as grounds for dismissal or discharge at a later stage in the proceedings.” In the usual case, any defect must be properly raised before the issuing authority who must then specifically describe that defect on the docket to be transmitted to the court of common pleas. Pa.R.Crim.P. 26(a), (b)(9). The transcript of the district judge in this case, who is required by the Rules of Criminal Procedure specifically to record any Rule 150 objections, presents no record of any such objections. We must thus conclude that appellant has failed to preserve his Rule 130 claims for appellate review.

We next address Snyder’s motion to dismiss pursuant to Pa.R.Crim.P. 131(b). Rule 131 states:

(b) When more than one offense is alleged to have been committed by one person arising from the same incident, the issuing authority shall accept only one complaint, and shall docket the matter as a single case.
(c) Upon application by any interested person and proof that any provision of paragraphs (a) or (b) hereof was violated, a judge of the court may order the forfeiture of all additional costs of the issuing authority accrued by reason of such violation, and thereafter such costs shall not be taxed in the case.

A court cannot remedy a violation of rule 131(b) with dismissal. Commonwealth v. Tome, 484 Pa. 261, 398 A.2d 1369 (1979). The only remedy is relief from the additional costs incurred from defending the second action separately. Id. (citing Pa.R.Crim.P. 131(c)). Snyder has received relief under Rule 131(c) and we find his efforts to dismiss to be without merit.

Snyder also asserts that the second complaint should be dismissed under Pa.R.Crim.P. 315(a) because the Commonwealth failed to file an information in a reasonable time. Rule 315(a) states:

Upon motion and a showing that an information has not been filed within a reasonable time or that an indictment has not been found against a defendant within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interests of justice.

Dismissal under Rule 315(a) lies within the court’s discretion. Commonwealth v. DiPasquale, 431 Pa. 536, 246 A.2d 430 (1968) (ruling on discretionary aspect of prior version of Rule 315). In considering dismissal, the court will look to what ruling is “appropriate in the interests of justice.” , Id., 431 Pa. at 542, 246 A.2d at 433. A decision made pursuant to Rule 315(a) will not be reversed absent an abuse of that discretion. Commonwealth v. Kirk, 220 Pa.Super. 115, 283 A.2d 712 (1971) (ruling on discretionary aspect of prior version of Rule 315).

In addressing Snyder’s Rule 315 motion, the court found that the Commonwealth was “pushing its luck” in filing an information eight months after arrest. However, as there was no real prejudice to Snyder other than delay, the court ruled against dismissal. Though Rule 315 speaks of the interests of justice and not prejudice, under the circumstances of this case we find no abuse of discretion in the trial court’s decision and affirm its ruling to deny Snyder’s motion. Cf. Commonwealth v. Hailey, 470 Pa. 488, 368 A.2d 1261 (1977) (plurality).

Blood test

Snyder’s final claim is that the trial court erred when it admitted results of a blood test as to the alcohol level in Snyder’s blood where the evidence of the chain of custody was inadequate to prove that it was Snyder’s blood that was in fact tested. We here adopt the reasoning found in the opinion of the trial court and hold this claim to be without merit.

Work release

The final issue in this case is raised by the Commonwealth as cross-appellant. The Commonwealth argues that because the penalty provisions of the driving under the influence statute require a “minimum term of imprisonment”, 75 Pa.Cons.Stat.Ann. § 3731(e)(1), the court erred when it included work release as part of Snyder’s sentence. The Commonwealth interprets the word “imprisonment” to mean complete incarceration and to exclude work release. In the alternative, the Commonwealth argues that if work release is permitted, it is limited to picking up litter. We disagree with both assertions.

Section 3731 of the Motor Vehicle Code is applicable to driving under the influence. Subsection (e) entitled, “Penalty”, provides for a minimum term of imprisonment. Subsection (h) entitled, “Work Release”, applies to “[any] person [who] is sentenced to a period of imprisonment____” The text of subsection (h) provides:

Work release. — In any case in which a person is sentenced to a period of imprisonment as a result of a conviction for violating any provision of this section, the judicial officer imposing that sentence shall consider assigning that person to a daytime work release program pursuant to which the person would be required to collect litter from public and private property, especially property which is littered with alcoholic beverage containers.

Under this statute, the sentencing judge is clearly permitted to consider assigning a prisoner to work release in “any case” where the person has received a sentence of imprisonment for driving under the influence. The Commonwealth maintains that even if work release is available under subsection (h) the type of work release is limited to collecting litter. We do not agree with the Commonwealth’s narrow interpretation of the statute. The statute provides for the availability of work release in general with the specific mention of litter collection as one suggested activity during work release. The legislative history of the bill supports this interpretation. • 1 Pa.Cons.Stat.Ann. § 1921(c)(7) (Purdon 1988).

The specific legislative history of the work release provision, section 3731(h), is instructive. In 1982, Representative Lloyd, the sponsor of subsection (h), stated that

[e]arlier today we affirmed our desire to have work release available for people who are in prison for second and subsequent offenses for drunk driving. [Section 3731(h) ] would require judges, when they are considering the various kinds of work release which they might approve, would have them consider sentencing that person to work cleaning up litter especially litter dealing with discarded alcoholic beverage containers.

See Pa. House Leg. 1726 (September 29, 1982).

Representative Lloyd’s amendment did not reach the Senate in the 1982 legislative session. Pa. House Leg. 1686 (June 24, 1984). The amendment was finally adopted, however, in 1984. During the later legislative session, Representative Lloyd again made clear that “if you believe this person is appropriate for work release, you ought to consider assigning him to go out and pick up litter____” Id. In response to a question from another legislator, Representative Lloyd made clear that his amendment was only “in addition to existing penalties.” Id. The House then voted 194 to 0 to adopt the work release provision which is section 3731(h) in its present form.

In light of this legislative history of the statute, we find that a court is permitted to grant work release to a person who receives a minimum sentence of imprisonment under the driving under the influence statute and the type of work release is not limited to litter collection.

In sum, we reject the arguments of both parties and affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Section 780-118(a) relates to drug dependent persons. Section 780-102 of Title 35 makes clear that those who abuse alcohol fall within the scope or § 780-118(a). 35 Pa.Stat.Ann. § 780-102 (Purdon 1977 & Supp.1988).

      . The same conclusion was reached in dictum in Commonwealth v. Kubiac, 379 Pa.Super. 402, 550 A.2d 219 (1988).

      . 75 Pa.Cons.S.A. 3731(d) states:
      Certain dispositions prohibited. — The attorney for the Commonwealth shall not submit a charge brought under this section for Accelerated Rehabilitative Disposition if:
      (1) the defendant has been found guilty of or accepted Accelerated Rehabilitative Disposition of a charge brought under this section within seven years of the date of the current offense;
      (2) the defendant committed any other act in connection with the present offense which, in the judgment of the attorney for the Commonwealth, constitutes a violation of any of the specific offenses enumerated within § 1542 (relating to revocation of habitual offender’s license); or
      (3) an accident occurred in connection with the events surrounding the current offense and any person, other than the defendant, was killed or seriously injured as a result of the accident.

      . The relevant rules of criminal procedure make clear that "preliminary hearing” refers to a hearing before the issuing authority and not a hearing before the trial judge. See, e.g., Pa.R.Crim.P. 26, 110, 140A, 141, 142, and 143. The relevant case law cited in the Comment to Rule 150 makes this equally clear. See Commonwealth v. Krall, 452 Pa. 215, 304 A.2d 488 (1973).

      . Under the amendments to Rule 26, the issuing authority need no longer keep a docket, but he "shall” prepare and forward a transcript to the court of common pleas when defendant is held for court and that transcript “shall” include, among other things, "a specific description of any defect properly raised in accordance with Rule 90 or Rule 150....”

      . The prior version of Pa.R.Crim.P. 315(a), which was formerly numbered Pa.R.Crim.P. 316(a), provided:
      Upon application and a showing that an indictment has not been found against a defendant within a reasonable time or that he has not been brought to trial within a reasonable time after indictment, the court may order dismissal of the prosecution or, in lieu thereof, make such other order as shall be appropriate in the interests of justice.

        Though the subject matter of the past and present rules differ in some respects, the language regarding the discretionary power of the court to dismiss a prosecution remains the same. Thus, we regard those cases on the court’s discretionary power to dismiss under former Rule 316(a) as binding precedent on issues of the scope of that same power in current Rule 315(a).

      . The Commonwealth’s appeal is permitted under 75 Pa.Cons.Stat. Ann. § 3731(e)(4) which provides:
      The Commonwealth has the right to appeal directly to the Superior Court any order of court which imposes a sentence for violation of this section which does not meet the requirements of this section.

      . Section 3731(e)(1) provides:
      Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree and the sentencing court shall order the person to pay a fine of not less than $300 and serve a minimum term of imprisonment____(emphasis added).

      . In reviewing the legislative history regarding work release, we rely on statements made by the sponsor of subsection (h). In analyzing legislative history the usual rule bars consideration of comments made during floor debates. The rationale behind this rule is that the view of one legislator is not a reliable indicator of what the entire Legislature intended in adopting legislation. However, where the statements made on the floor are made only for purposes of clarification, they may be considered. Cf. Commonwealth v. Pryor, 347 Pa.Super. 239, 500 A.2d 811 (1985) (citing from floor debates to lend support to ruling that a person sentenced to a term of imprisonment for driving under the influence cannot receive early parole).


author: MONTEMURO, Judge: McEWEN, Judge,

text:
    560 A.2d 175
    METROPOLITAN LIFE INSURANCE COMPANY, Appellee, v. Catherine BODGE, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 21, 1988.
    Filed June 7, 1989.
    See also, 352 Pa.Super. 191, 507 A.2d 837.

      Catherine Miraglia-Lecky, King of Prussia, for appellant.
    Robert F. Callahan, New York, for appellee.
    Before CIRILLO, President Judge, and McEWEN and MONTEMURO, JJ.
   MONTEMURO, Judge:

This is an appeal from a summary judgment entered in favor of the appellee, the Metropolitan Life Insurance Company. As we must, we have examined the record before us in a light most favorable to the appellant, Catherine Bodge. Finding that there is no genuine issue of material fact and that Metropolitan is entitled to judgment as a matter of law, we affirm the order of the trial court.

Appellant’s daughter, Catherine Theresa Bodge, (“Terri Bodge”), was involved in an automobile accident in 1980 which rendered her incompetent. On May 8, 1980, the Orphans’ Court of Montgomery County entered a final decree appointing the appellant Guardian of the Person and the Estate of her daughter. At the time of the accident, Terri was an employee of the Krylon Division of Borden, Inc., and was an insured under a Group Health Insurance Policy issued by Metropolitan to Borden, Inc. Premiums for this health insurance were paid, in whole or in part, through deductions from Terri Bodge’s salary. At the time of the accident, Terri Bodge was also an insured under a No-fault automobile policy issued by Concord Mutual Insurance Company to the appellant. Terri Bodge was an “insured” under the express terms of the Concord No-fault policy because she resided in her mother’s home. The appellant submitted Terri Bodge’s medical bills and related expenses to Metropolitan which paid in excess of $100,000.00 to health care providers. Appellant subsequently submitted the same medical bills to the Pennsylvania Assigned Claims Plan (“PACP”), which was processing claims against Concord following Concord’s insolvency. In December of 1981, PACP issued a check in the amount of $105,892.44, representing payment for claims associated with Terri’s medical care. The proceeds of this check have been placed in an escrow account pending the resolution of this litigation.

Metropolitan commenced this declaratory judgment action, claiming that it was entitled to recover the PACP monies because of a coordination of benefits provision contained in the group insurance policy issued to Borden, Inc. The trial court agreed, finding the coordination of benefits provision in Metropolitan’s Group Health Insurance Policy to be valid and enforceable:

COORDINATION OF BENEFITS UNDER THE GROUP POLICY WITH OTHER BENEFITS

(1) “Plan” means any plan providing benefits or services for or by reason of medical care or treatment, which benefits or services are provided by (i) any group, blanket, or franchise insurance plan, or other plan covering individuals or members as a group, (ii) any group hospital service prepayment plan, group medical service prepayment plan, group practice, or other group prepayment coverage, (iii) any coverage under Governmental programs, or any coverage required or provided by any statute, including any Motor Vehicle No fault Coverage required by statute.
$ * sjc * * *
(3) If the Employee or a Dependent is covered by any other Plan of insurance or any other prepayment Plan, or is covered under any other type of benefit or service Plan, the benefits otherwise payable under the Group Policy as summarized in this certificate including the preceding paragraph are subject to reduction so that for Allowable Expenses incurred in any Claim Determination Period the benefits payable thereunder together with the benefits available under such other Plan of Plans will not exceed the total amount of such Allowable Expenses.
* * * # * #
(8) If any overpayment is made under the Group Policy because of failure to report other coverage or otherwise, the Insurance Company shall have the right to recover such overpayment____

R.R. at 88a. Appellant contends that the trial court erred in finding this coordination of benefits clause enforceable for a number of reasons. First, appellant argues that Section 111(a)(4) of the No-fault Act renders the provision invalid:

(4) In no event shall any entity providing benefits other than no-fault benefits to an individual as described in section 203 of this Act, have any right of subrogation with respect to said benefits.

40 P.S. § 1009.111(a)(4). We find that the eminent President Judge William W. Vogel correctly construed the meaning and import of Section 111(a)(4):

In Section 111(a), the legislature prohibited subrogation by no-fault insurers, subject to certain limited exceptions, as a necessary piece of the overall no-fault insurance package. Section 111(a)(4), which applies to “any entity providing benefits,” extended this prohibition of subrogation rights under the former fault-based system to other providers of accident and health benefits.
When the words of a statute are clear and free from all ambiguity, the letter of the statute is not to be disregarded under the pretext of preserving its spirit. 1 Pa.C.S.A. § 1921(b). Words and phrases in a statute are to be construed according to their plain and common usage. Old [sic] Fellows Home of Pennsylvania v. Commonwealth Department of Public Welfare, 56 Pa.Commonwealth Ct. 115 [424 A.2d 961] (1981).
Subrogation commonly refers to the right of an insurer to step into the shoes of a party whom they have rightfully compensated and sue any party which the compensated party could have sued. In a fault-based insurance system, subrogation is necessary to ensure the party at fault bears the cost of his negligence.
However, in this instance, the right to reimbursement that Metropolitan seeks to enforce refers only to the right to recover directly from its promisee any monies over paid, under the Health Policy “for failure to report other coverage or otherwise ” (Emphasis added). Metropolitan, which is not a no-fault carrier, does not seek to recover by stepping into the shoes of its insured nor by determining the ultimate question of fault, but rather by merely enforcing an agreement it has with its insured. Therefore, we determine the right to reimbursement that Metropolitan seeks to have determined in this action to be wholly different than the right to subrogation prohibited by Section 111(a)(4). Accordingly, we determine [that] Section 111(a)(4) does not render the reimbursement provision of the Health Policy unenforceable in this instance.

Op. of Trial Court, January 31, 1985, at 11-13 (footnotes omitted).

The trial court was also correct in its construction of 31 Pa.Code § 89.97(c). The court, quite correctly, noted that no provision of the No-fault Act, or its accompanying regulations, expressly prohibits the coordination of benefits between a group health insurance policy and an individual No-fault automobile policy. Id. at 15. Moreover, as the trial court recognized, the existence of 31 Pa.Code § 89.-97(c), although applying specifically to coordination of benefits between group policies, at the least evinces no general disfavor for coordination of benefits clauses on the part of the Insurance Commissioner.

We find that the coordination of benefits clause included in Terri Bodge’s Group Health Insurance Policy is a clause which the law will recognize and enforce. This clause is a prominent part of the group health insurance policy, highlighted with the following underlined and capitalized title: “COORDINATION OF BENEFITS UNDER THE GROUP POLICY WITH OTHER BENEFITS.” The clause sets forth the details of the coordination of benefits provision in clear terms and there is no question that, pursuant to those express terms, Metropolitan is entitled to recover the monies paid by the PACP. Our holding in this case is not in conflict with previous decisions by this Court in which we have determined that where an individual has private collateral benefits in addition to coverage under the No-fault Act, the No-fault Act does not prevent that individual from realizing a double recovery. See Brower v. Nationwide Mutual Insurance Company, 361 Pa.Super. 385, 522 A.2d 635 (1987), alloc. denied, 518 Pa. 634, 542 A.2d 1364 (1988); Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984). These cases involved the interpretation and application of Section 203(a) of the No-fault Act:

§ 1009.203. Collateral benefits.
(a) If benefits other than no-fault benefits are provided to an individual through a program, group, contract or other arrangement for which some other person pays in whole or in part that would inure to the benefit of a victim or the survivor of a deceased victim injured as a result of an accident in the absence of no-fault benefits, then any reduction or savings in the direct or indirect cost to such person of such benefits resulting from the existence of no-fault benefits shall be returned to such individual or utilized for his benefit.

40 P.S. § 1009.203(a). Although Section 203(a) does not prevent a double recovery, it also does not mandate double recovery as a general rule. Section 203(a) was enacted for a specific purpose: to prevent a person who has paid premiums on behalf of another from having a viable claim to direct or indirect cost savings which may result from the existence of No-fault benefits. Indeed, in the present case, if Borden Inc., paid a portion of Terri Bodge’s health insurance premiums and realized a cost savings from the existence of No-fault benefits, then these cost savings must be returned to Terri Bodge or used for her benefit. In any event, whether Borden Inc., complied with Section 203(a), assuming it is applicable, is not an issue presently before us. Terri Bodge’s “Section 203(a)” claim is merely a claim which appellant may be able to pursue on behalf of her daughter in the future.

Having determined that the coordination of benefits provision in Metropolitan’s Group Health Insurance policy is enforceable as a matter of law, and given the undisputed facts of record, we affirm the entry of summary judgment in favor of Metropolitan. We recognize that the appellant has raised several other claims of trial court error, however, all of these claims are meritless. Appellant’s claims with reference to Pa.R.C.P. 2054 are waived for the purposes of appeal as they were not presented to the trial court. Appellant has argued that because she and her No-fault insurance carrier were not parties to the health insurance policy issued by Metropolitan, the coordination of benefits provision does not apply to the monies paid by reason of the No-fault insurance policy. The simple answer to this contention is that monies paid by virtue of the Concord insurance policy were not in response to a claim filed by the appellant individually, but were monies paid because of a claim filed on behalf of Terri Bodge, an insured under the Concord policy. The trial court correctly noted the following:

The Court takes notice of the December 3, 1980 proof of claim form attached as part of Exhibit 1 to Mrs. Bodge’s Complaint of March 30,1983 in the case of Bodge v. Pennsylvania Assigned Claims Plan, No. 83-04649. The proof of claim form, forwarded to the Commonwealth of Pennsylvania Insurance Department, Liquidation Division under the heading “Concord Mutual Insurance Company (Dissolved),” indicates the named insured is “Catherine Bodge” and the claimant is “Catherine Theresa Bodge (Daughter).” The following appears on the line for the claimant’s signature: “Catherine Bodge, Guardian for Catherine T. Bodge (Claimant).” This is consistent with our conclusion that the claim against Concord and PACP is one of Terri’s estate.

Op. of Trial Court, January 31, 1985, at 22 n. 11.

Additionally, appellant argues that the trial court erred in awarding the specific sum of $105,102.91 to Metropolitan. The exhibits admitted at trial and the testimony of the parties clearly supports the trial court’s determination that Metropolitan paid, and now may recover, a total sum of $105,102.91 for Terri Bodge’s health care. The fact that Metropolitan may have paid some health care providers after it was aware of other potential insurance coverage is not relevant. Metropolitan had a contractual obligation to pay claims made by Terri Bodge and, in the event that other insurance did cover the same costs, Metropolitan had a contractual right to recover any overpayments it had made on behalf of Terri Bodge. Finally, appellant’s contention that the trial court erred in not admitting a “Joint Stipulation of Facts” prepared on behalf of the appellant must fail. The stipulation was neither agreed to nor signed by Metropolitan.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting:

The regret I feel upon departing the insightful analysis of the author of the majority is somewhat relieved by the lyrical admonition of the venerable President Judge William F. Cercone, upon his completion of a similar voyage of legislative interpretation:

[tjhose who embark “on the high seas of Pennsylvania’s No-fault Motor Vehicle Insurance Act not do so without a good compass, a knowledge of reefs and storms and plenty of food and water. Any attempt to choose an alternative route by land in an effort to unlock the secrets of the Act will encounter mazes of paths, pitfalls, underbrush and dead ends.”

Heffner v. Allstate Insurance Company, 265 Pa.Super. 181, 184, 401 A.2d 1160, 1161 (1979), aff'd., 491 Pa. 447, 421 A.2d 629 (1980).

It is thus wary that I, most respectfully, dissent from the conclusions of the majority that (1) coordination of benefits by group policies with individual policies has been sanctioned by the Insurance Commissioner; (2) that Section 203 of the No-fault Act was enacted for the specific purpose of preventing “a person who has paid premiums on behalf of another from having a viable claim to direct or indirect cost savings which may result from the existence of No-fault benefits”; and (3) that Section 203(a) of the No-fault Act does not require compliance with its two express preconditions in order to permit coordination of benefits between group and individual policies, but rather merely creates a “claim” for the difference in premium costs.

Appellant initially argues that the trial court erred when it concluded that Section 111(a)(4) of the No-fault Act did not preclude Metropolitan from asserting its claim for reimbursement against the fund created by the payment by PACP of first party benefits for medical bills incurred by Terri Bodge. Section 111(a)(4) of the Act provided:

(4) In no event shall any entity providing benefits other than no-fault benefits to an individual as described in section 203 of this Act, have any right of subrogation with respect to said benefits.

40 P.S. § 1009.111(a)(4).

The eminent President Judge William W. Vogel interpreted this section to provide that where an entity such as Metropolitan (i.e., an insurance carrier other than a no-fault carrier) provides benefits to a victim, that insurer does not have any right of subrogation against the tortfeasor who caused the injuries to the victim, for benefits paid by the carrier to its insured. I believe this to be the correct interpretation although Section 111(a)(4) is susceptible of a different interpretation, as evidenced by the opinion of the Third Circuit Court of Appeals in Heusle v. National Mutual Insurance Company, 628 F.2d 833 (3rd Cir.1980), in which the court construed Section 111(a)(4) as barring “providers of health and accident insurance from seeking subrogation against the no-fault carrier." Id. at 839 (footnote omitted) (emphasis supplied). The Third Circuit construed the words “said benefits” as referring to no-fault benefits, while the trial court in the instant case construed the words “said benefits” as referring to the benefits provided to the insured by the group health insurer. Construing subsection (a)(4) within the context of Section 111 of the No-fault Act, I believe the legislature intended, in subsection (a)(4), to preclude any insurer, who provides health and accident benefits to an accident victim, from seeking subrogation against the tortfeasor who caused the injuries. I, therefore, agree with the conclusion of the distinguished trial court that Section 111(a)(4) does not preclude recovery by Metropolitan in this action.

Appellant also argues that the trial court erred in concluding that the coordination of benefits provision contained in the policy of insurance issued by Metropolitan was not in violation of the regulations issued by the Insurance Commissioner. Appellant argues that a group policy may not provide for coordination of benefits with an individual policy, citing 31 Pa.Code § 89.97(c). This section of the Pennsylvania Code provides:

(c) Coordination with other plans. Nonduplication or coordination of benefits provisions for group medical expense insurance coverages may provide for nonduplication or coordination with any plan or State or Federal program providing benefits or services for or by reason of medical or dental care and treatment which benefits or services are provided by group insurance or any other arrangement of coverage of persons in a group whether on an insured or uninsured basis. All policies with such provisions shall stipulate clearly how such provisions will be administered.

31 Pa.Code § 89.97(c) (emphasis supplied).

The trial court found that this section of the Pennsylvania Code evidences a public policy in favor of coordination of benefits clauses, and noted that there was no express prohibition against coordination of benefits by a group policy with an individual policy. The trial court concluded that since “[n]either party contends the Health Policy was not formally and properly approved by the Insurance Commissioner”, there was “no obstacle in the Pennsylvania Code to inclusion [of the coordination of benefits provision] in a group health policy.” The majority concludes that 31 Pa.Code § 89.97(c), “although applying specifically to coordination of benefits between group policies, at least evinces no general disfavor for coordination of benefit clauses on the part of the Insurance Commissioner.” I find myself in disagreement with both the trial court and my colleagues of the majority.

“ ‘An intrinsic aid to statutory construction is found in the maxim expressio unius est exclusio alterius. The maxim establishes the inference that, where certain things are designated in a statute, “all omissions should be understood as exclusions.” The maxim is one of long standing application, and it is essentially an application of common sense and logic.’ ” Commonwealth v. Charles, 270 Pa.Super. 280, 287, 411 A.2d 527, 530 (1979), quoting Puller v. Municipality of Anchorage, 574 P.2d 1285, 1287 (Alaska 1978) (footnotes omitted). Accord: Pane v. Commonwealth, Department of Highways, 422 Pa. 489, 493, 222 A.2d 913, 915 (1966); Cali v. City of Philadelphia, 406 Pa. 290, 305, 177 A.2d 824, 832 (1962); Samilo v. Commissioner, Insurance Department, 98 Pa.Cmwlth. 232, 233, 510 A.2d 412, 413 (1986); Latella v. Commonwealth, Unemployment Compensation Board of Review, 74 Pa.Cmwlth. 14, 29, 459 A.2d 464, 473 (1983). The Insurance Commissioner has, in 31 Pa.Code § 89.97(c), provided for the coordination of benefits only between group policies. If the coordination of benefits with both group and individual policies had been contemplated by the Insurance Commissioner in promulgating this section, that portion of the regulation referring to “any plan or State or Federal program providing benefits or services for or by reason of medical or dental care and treatment which benefits or services are provided by group insurance or any other arrangement of coverage of persons in a group,” was mere surplusage. The Statutory Construction Act, which is applicable to the Pennsylvania Code, see 1 Pa.C.S. § 1502(a)(1), requires that every statute or regulation “be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S. § 1921(a) (emphasis supplied). In order to accept the argument that 31 Pa.Code § 89.97(c) permits coordination of benefits between group and individual policies, all of the provisions describing group policies would have to be treated as mere surplasage. Such a result would violate well-established principles of statutory construction as well as Section 1921(a) of the Statutory Construction Act. I conclude, therefore, that 31 Pa.Code § 89.97(c) does not authorize group policies to provide for the coordination of benefits with individual policies of insurance.

I would find, however, that the legislature provided, in the No-fault Act itself, for the coordination of benefits between group health insurance policies and individual policies of automobile insurance in certain limited circumstances. Section 203(a) of the No-fault Act provided:

§ 1009.203. Collateral benefits
(a) If benefits other than no-fault benefits are provided to an individual through a program, group, contract or other arrangement for which some other person pays in whole or in part that would inure to the benefit of a victim or the survivor of a deceased victim injured as a result of an accident in the absence of no-fault benefits, then any reduction or savings in the direct or indirect cost to such person of such benefits resulting from the existence of no-fault benefits shall be returned to such individual or utilized for his benefit.

40 P.S. § 1009.203(a).

This section provided statutory authorization for a coordination of benefits provision such as the one at issue, where (1) the insurance was paid for in whole or in part by someone other than the insured and (2) any savings resulting from the coordination of benefits provision in the group policy were returned to the individual employee or utilized for the benefit of the individual employee.

Our distinguished colleague Judge Justin M. Johnson, in Brower v. Nationwide Mutual Insurance Company, 361 Pa.Super. 385, 522 A.2d 635 (1987) allo. denied, 518 Pa. 634, 542 A.2d 1364 (1988), analyzed, although in a different context, Section 203(a) of the No-fault Act and stated:

We read Section 203(a) as a legislative command that a provider of health insurance benefits may not realize a savings in the costs associated with providing a group contract, if those cost savings result from the existence of no-fault insurance benefits, without either passing on those savings in costs to the consumer or enhancing the program of benefits available at the same premium price.

Id., 361 Pa.Superior Ct. at 389, 522 A.2d at 637 (emphasis supplied). The appellant in Brower was seeking to recover from the no-fault insurance carrier the difference between the full amount of her hospital bills and the amount which those providers had accepted from Blue Cross/Blue Shield in full satisfaction of their claims. This Court held that the appellant was entitled only to the amount which the providers had accepted in full satisfaction of the claims and not the face amount of the bills. The Blue Cross/Blue Shield policy in Brower evidently did not contain a coordination of benefits clause since the Court noted that:

We do not know the premium cost which Brower, or someone on her behalf, has paid for her BC/BS coverage. However, we can conclude from the record before us that that cost, whatever it might have been, was not reduced as a direct result of the existence of no-fault benefits. We assume that some direct relationship exists between the premium paid for group benefits and the total amounts which the group insurer expends to satisfy claims under any given plan. Brower’s receipt of collateral benefits under the tortfeasor’s motor vehicle insurance policy in no way determined or affected the BC/BS payments made to the Nason Hospital. All the payments made by BC/BS were determined strictly on the basis of the charges appearing on the hospital bill and the reduced payment agreement between the hospital and BC/BS. The mere fact that double recovery without setoff is permitted, or required, under Steppling [v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa.Super. 419, 477 A.2d 515 (1984)], suggests that the likelihood of a possible reduction or savings in the direct or indirect costs to Brower of her BC/BS package is non-existent.

Id., 361 Pa.Superior Ct. at 389-390, 522 A.2d at 637-638 (emphasis supplied).

This Court, in Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., supra, in concluding that the appellant could recover from his No-fault carrier the amount of his medical expenses already paid by Blue Cross and Blue Shield, noted that such a conclusion was:

consistent with the analysis of private collateral benefits found in the treatise on the No-fault Act published by the Pennsylvania Trial Lawyers Association. D. Shrager, ed., The Pennsylvania No-fault Motor Vehicle Insurance Act (1979). In that work, the editor states, at page 148:
the ‘benefits other than no-fault benefits’ referred to in Section 203(a) clearly envisions medical and hospitalization plans paid for in whole or in part by the victim’s employer. The section does not prevent the victim from realizing a double recovery. It simply requires that any savings which result from an offset provision in any medical or hospitalization plan must be passed on to the individual employee, (emphasis in original).

Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., supra, 328 Pa.Superior Ct. at 428, 477 A.2d at 519. See also: Allstate Insurance Company v. Heffner, 491 Pa. 447, 459, 421 A.2d 629, 636 (1980) (“[Section 203 of the Act concerning Collateral Benefits permits victims to recover their medical expenses from Blue Cross and Blue Shield and then recover the same expenses a second time from the no-fault carrier.”); Hauck v. Ohio Casualty Group of Insurance Companies, 361 Pa.Super. 370, 372, 522 A.2d 628, 629 (1987), allo. denied, 516 Pa. 641, 533 A.2d 712 (1987) (“A victim may twice recover the charges incurred for medical care, when, as here, the victim may have BC/BS or other similar coverage which is available to pay the same charges for which the no-fault insurer is liable.”). The Court in Steppling noted that such a “ ‘double recovery is allowed because the insured has paid two premiums and is entitled to the benefits purchased under each policy.’ ” Steppling v. Pennsylvania Manufacturer’s Insurance Co, supra 328 Pa.Super. at 429, 477 A.2d at 520, quoting Killeen v. Travelers Insurance Company, 721 F.2d 87, 89 (3rd Cir.1983). See also: Hauck v. Ohio Casualty Group of Insurance Companies, supra 361 Pa.Super. at 376, 522 A.2d at 631) (“Although double recovery allows a victim to receive compensation in excess of actual damages, this phenomenon exists because insurance law dictates that someone who has paid two separate premiums for separate policies covering the same potential liability is entitled to recover under each policy.”)

Contrary to the majority, I read Section 203 of the No-fault Act as permitting coordination of benefits between group health policies and individual policies of no-fault insurance only where two pre-conditions have been met: (1) that the employer pay all or part of the premium for the group policy and (2) that the savings realized by the employer as a result of the inclusion of the coordination of benefits clause be passed on to the insured either by means of reduced premiums or through increased benefits at the same cost. There is no evidence of record that either of these two pre-conditions have been met. In the absence of such evidence, Metropolitan was clearly not entitled to summary judgment.

The only evidence of record in the instant case concerning the payment of the cost of the premiums for the Metropolitan policy is the averment contained in paragraph 23 of the answer with new matter filed by appellant:

Catherine Theresa Bodge, Defendant’s daughter, had deducted from her wages sums to cover the pro rata share of the premiums paid by Borden, Inc., to plaintiff for the Group Health Insurance Policy issued by Plaintiff to Borden, Inc.

Metropolitan, in its motion for summary judgment, averred that it was entitled to summary judgment solely on the basis that “the Metropolitan Life policy contains a coordination of benefits provision which excludes from coverage payments made by any other plan of insurance.” Nowhere in the pleadings did Metropolitan aver that the Metropolitan policy had been paid for in whole or in part “by some other person”, i.e., Borden, Inc., and that in exchange for the inclusion of the provision providing for the coordination of benefits payable under the policy with any benefits payable under an individual policy of no-fault automobile insurance, Metropolitan had reduced the cost charged to Terri Bodge or had provided enchanced benefits for Terri Bodge without any increase in the premium charged to her.

It is well settled that summary judgment may not be entered unless the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Curry v. Estate of Thompson, 332 Pa.Super. 364, 366, 481 A.2d 658, 659 (1984). “On review, the record must be examined in a light most favorable to the non-moving party, and in doing so all well-pleaded facts in the non-moving party’s pleadings are accepted as true and that party is given the benefit of all reasonable inferences to be drawn therefrom.” Neil v. Allstate Insurance Co., 379 Pa.Super. 299, 301, 549 A.2d 1304, 1305 (1988) citing Spain v. Vicente, 315 Pa.Super. 135, 139, 461 A.2d 833, 835 (1983).

Metropolitan has not established that it is entitled to judgment as a matter of law since it offered no evidence to establish (1) that Borden, Inc. had paid, “in whole or in part,” the premiums for the policy issued by Metropolitan, or (2) that Metropolitan had complied with the requirements of Section 203(a) of the No-fault Act as a condition precedent to the inclusion of the coordination of benefits provision applicable to individual policies of no-fault automobile insurance. I would, therefore, reverse the order of summary judgment in favor of Metropolitan.

      . We are unable to determine, from the record before us, whether Borden, Inc., paid any portion of the Metropolitan health insurance premiums.

      . Appellant’s No-fault automobile insurance policy was issued in compliance with the now repealed No-fault Motor Vehicle Insurance Act, Act of July 19, 1974, P.L. 489, No. 176, § 203, 40 P.S. §§ 1009.101 et seq., repealed by the Act of February 12, 1984, P.L. 26, No. 11, § 8(a), effective October 1, 1983.

      . Section 89.97(c) of the Pennsylvania Code provides:
      (c) Coordination with other plans. Nonduplication or coordination of benefits provisions for group medical expense insurance coverages may provide for nonduplication or coordination with any plan or State or Federal program providing benefits or services for or by reason of medical or dental care and treatment which benefits or services are provided by group insurance or any other arrangement of coverage of persons in a group whether on an insured or uninsured basis. All policies with such provisions shall stipulate clearly how such provisions will be administered.
      31 Pa.Code § 89.97(c).

      . In the present case, we do not hold that the Insurance Commissioner has sanctioned coordination of benefits between group policies and individual policies. It is quite clear from the language of 31 Pa.Code § 89.97(c) that this code section does not permit coordination of benefits between group and individual policies and, indeed, it does not involve individual insurance policies at all.- The most that can be said of 31 Pa.Code § 89.97(c), with respect to the instant case, is that it evinces no disfavor for coordination of benefits clauses in general on the part of the Insurance Commissioner. The trial court so held.

      . This section has also been interpreted by the authors of the “The Pennsylvania No-fault Motor Vehicle Insurance Act", D. Shrager, ed. (1979), as barring a "right of subrogation against no fault benefits.” Id. at p. 148.

        . There is no evidence in the record, of any nature whatsoever, that the endorsement which provided for the coordination of benefits with individual policies of automobile insurance was submitted to or approved by the Insurance Commissioner. Evidence of approval by the Commissioner would not, however, be dispositive of the issue presented by this appeal since regulations or approvals issued by the Insurance Commissioner must be in accordance with the statute under which they are promulgated. Commonwealth, Department of Public Welfare v. Forbes Health System, 492 Pa. 77, 80, 422 A.2d 480, 482 (1980); Tiani v. Commonwealth, Department of Public Welfare, 86 Pa.Cmwlth. 640, 641, 486 A.2d 1016, 1017 (1985).

      . The record does not contain any reply by appellee to the new matter contained in appellant’s answer.