author: TAMILIA, Judge:

text:
    526 A.2d 443
    COMMONWEALTH of Pennsylvania, Appellant, v. David Allen KUNSELMAN.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed May 27, 1987.

      Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellant.
    Bruce L. Getsinger, Erie, for appellee.
    Before CIRILLO, President Judge, and MONTEMURO and TAMILIA, JJ.
   TAMILIA, Judge:

On November 12, 1985, appellee pled guilty to charges of homicide by vehicle while driving under the influence, involuntary manslaughter, recklessly endangering another person, homicide by vehicle, and other related charges. On February 11, 1986, he was sentenced to serve a mandatory-term of imprisonment, pursuant to 75 Pa.C.S.A. § 3735, of three (3) to six (6) years for the crime of homicide by vehicle while driving under the influence. Other sentences were imposed to run concurrently with the three (3) to six (6) year sentence.

By letter dated February 25, 1986, the lower court notified the district attorney and appellant’s counsel that it was modifying the sentence to one and one-half (11/2) to three (3) years imprisonment to ensure that appellant could serve his sentence in Erie County. This change was reflected on the original sentencing Order by having the three (3) to six (6) year sentence crossed out and the one and one-half (11/2) to three (3) year sentence inserted. The Commonwealth then filed a motion to modify sentence which was denied on April 1, 1986. This Commonwealth appeal followed.

The Commonwealth’s only argument on appeal is that the lower court erred in not following the mandatory sentencing provisions of 75 Pa.C.S.A. § 3735 for the charge of homicide by vehicle while driving under the influence. Section 3735 provides:

(a) Offense defined. — Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
(b) Applicability of sentencing guidelines. — The sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory penalty of this section, (emphasis added)

We believe the import of § 3735 is quite clear; a defendant convicted of homicide by vehicle while driving under the influence of alcohol must serve a minimum of three years imprisonment. In Pennsylvania, the only way this outcome can be assured is by designating three years as a defendant’s minimum sentence. In the instant action, the court below imposed a minimum sentence of less than three years and a maximum sentence of three years. The court stated that it felt such a sentence was in compliance with § 3735 because the defendant would still be required to serve a minimum of three years.

[T]he Parole Board simply cannot release this defendant until he has served the entire three years. To do otherwise would place them in contravention with the Motor Vehicle Code which requires that they serve a minimum term of imprisonment of not less than three years. This court must assume that.the paroling authorities will comply with the law.

(Slip Op., Nygaard, J., 4/1/86, pp. 2, 3).

The lower court shows a disregard for the legislative mandate and a misconception of his authority and the power and responsibility of the parole board.

The lower court correctly recognized the mandatory nature of § 3735 which requires a three year minimum sentence, however, it improperly shifted the onus of enforcement to the parole board. While we understand the court’s reasons for wanting to ensure that appellant serve his time in a county prison system due to his young age, the court simply has no discretion to sentence appellant to anything but a three year minimum sentence of incarceration.

In Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985), we held, in passing on this provision of the Code, that section 3735(a) is constitutional. We went further and stated: “Although it is the judiciary’s function to impose sentence upon conviction, it is for the legislature to establish criminal sanctions and, as one of its options, it may prescribe a mandatory minimum term of imprisonment.” (emphasis added) Id., 339 Pa.Superior Ct. at 39, 488 A.2d at 297. Also see Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985) (the legislature has the right to classify crimes, to designate the maximum, and likewise can, if it sees fit, name the minimum); also Commonwealth v. Wright et al., 508 Pa. 25, 494 A.2d 354 (1985).

This Court, in Commonwealth v. O’Brien, 356 Pa.Super. 294, 514 A.2d 618 (1986), has recently reaffirmed the notion that sentencing courts must comply with mandatory minimum term of imprisonment statutes.

We must give effect to the Legislature’s desire to remove individualized sentencing consideration, to the extent of a mandatory minimum term of imprisonment, for certain criminal offenders. Accord Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985) aff'd sub nom. McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (mandatory minimum sentencing upheld under 42 Pa.C.S.A. § 9712); Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985) (mandatory minimum sentencing upheld under 42 Pa.C.S.A. § 9714, sentencing for prior conviction of serious violent felony).

Id., 356 Pa.Superior Ct. at 298, 514 A.2d at 621.

In O’Brien, we interpreted the term “not less than”, as used in 42 Pa.C.S.A. § 9718 which established mandatory sentences for offenses against infants, to connote a minimum term of imprisonment. We stated that “It strains all notions of common sense to suggest that “not less than” can reasonably be interpreted as meaning “maximum”.” Id., 356 Pa.Superior Ct. at 296, 514 A.2d 620.

Likewise, the phrase, “not less than” as used in 75 Pa.C.S.A. § 3735 clearly refers to a minimum term of incarceration.

The trial court erroneously believes that he can interpret section 9735 to mean a maximum term of three years, thereby having the same control over such a sentence as though it were a sentence under two years with a minimum under two years. Since this in effect was an illegal sentence, the sentence is a nullity. The appropriate and only sentence that could have been imposed was a minimum mandatory sentence of three years pursuant to the Sentencing Code. At 42 Pa.C.S.A. § 9756, it is provided:

§ 9756. Sentence of total confinement
(b) Minimum Sentence. — The court shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed.

Here, the legislatively mandated minimum was three years for a felony of the third degree, which could carry a maximum sentence of seven years. See 18 Pa.C.S.A. § 106(b)(3). Thus in this case, the sentence, to be legal, must not extend beyond seven years at its maximum range and, pursuant to statute, could not be less than three years. The only sentence possible in this case was not less than three years minimum to six years maximum and not more than three and one-half years minimum to seven years maximum.

As such, the sentence passed beyond the control of the trial judge and was exclusively within the domain of the parole board, as stated by 61 P.S. § 331.17, which provides:

§ 331.17. Powers of board respecting parolees; supervision of persons placed on probation; sentences for less than two years excepted
The board shall have exclusive power to parole and reparole, commit and recommit for violations of parole, and to discharge from parole all persons heretofore or hereafter sentenced by any court in this Commonwealth to imprisonment in any prison or penal institution thereof, whether the same be a state or county penitentiary, prison or penal institution, as hereinafter provided. It is further provided that the board shall have exclusive power to supervise any person hereafter placed on parole (when sentenced to a maximum period of less than two years) by any judge of a court having criminal jurisdiction, when the court may by special order direct supervision by the board, in which case the parole case shall be known as a special case and the authority of the board with regard thereto shall be the same as herein provided with regard to parole cases within one of the classifications above set forth: Provided, however, That, except for such special cases, the powers and duties herein conferred shall not extend to persons sentenced for a maximum period of less than two years, and nothing herein contained shall prevent any court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years: And provided further, That the period of two years herein referred to shall mean the entire continuous term of sentence to which a person is subject, whether the same be by one or more sentences, either to simple imprisonment or to an indeterminate imprisonment at hard labor, as now or hereafter authorized by law to be imposed for criminal offenses. The power of the board to parole shall extend to prisoners sentenced to definite or flat sentences, (emphasis added)

This section provides that the parole board has exclusive jurisdiction in all cases where the maximum sentence exceeds two years. In either case, that of the proper three to six year sentence, or the one and one-half to three year sentence imposed by the court, the parole board has exclusive jurisdiction and could not be compelled by the trial court to hold the defendant in prison to the maximum term.

The legislature has vested in the board of parole exclusive power to parole and reparole, commit and recommit for violations of parole and discharge from parole all persons sentenced to a maximum term of two years or more. Com monwealth v. Yoder, 249 Pa.Super. 389, 378 A.2d 350 (1977). The function of a minimum sentence is to notify board of parole when it may exercise its discretion to parole an individual. Commonwealth v. Henderson, 482 Pa. 359, 393 A.2d 1146 (1978); Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974).

For the court to impose a minimum and maximum sentence in violation of the law and to then hold that the parole board is required to obey the law and hold the defendant for the maximum term, frustrates the intent of the mandatory sentence law (section 9735), prevents implementation of the Sentencing Code, 42 Pa.C.S.A. § 9721, and neutralizes the function of the parole board, section 331.17.

Appellee’s sentence is hereby vacated and the case is remanded for resentencing in conformity with this Opinion.


source: Caselaw Access Project

license: Public Domain

text:
    526 A.2d 446
    W.F. MEYERS COMPANY, INC. v. Elwood STODDARD, David E. Muffley, Jr., Pamela F. Muffley, and Frank Barnako, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1986.
    Decided May 21, 1987.

      Michael P. Shay, Bethlehem, for appellants.
    Ronold J. Karasek, Bangor, for appellee.
    Before McEWEN, DEL SOLE and TAMILIA, JJ.

       McEWEN, J. recused himself and did not participate in the consideration or decision in this case.

   TAMILIA, Judge:

Appellee/Meyers filed suit against Elwood Stoddard, David Mufiley, Pamela Muffley and Frank Bamako to recover damages for an alleged breach of contract. The matter began as a jury trial but at the conclusion of testimony the trial judge ruled there were no issues of fact for the jury to decide and rendered a verdict holding appellants, David Muffley and Pamela Muffley, personally liable to appellee. A hearing on damages was held with the court issuing an Order assessing damages in the amount of $6,932.18. Post-trial motions were denied, judgment was entered January 31, 1986 and this appeal followed.

The facts as found by the court indicate that in 1972 the Albion Vein Slate Company, Inc. (hereinafter Albion) and David Stoddard and Sons, Inc. merged. Albion was the surviving corporation but it was decided that business would be conducted under the fictitious name of Stoddard Slate Company, Inc. The officers of Albion were directed to arrange for the filing of the fictitious name and to execute the necessary documents.

Frank Baranko, a director of Albion, requested Attorney Thomas Maloney to file the forms necessary to register the fictitious name. After requesting and receiving the necessary information from Mr. Baranko the attorney failed to complete and file the necessary forms.

Appellants, David Muffley and Pamela Muffley, were shareholders and directors of Albion involved in the daily operation of the corporation. Both parties, while doing business with appellee, Meyers, held themselves to be representatives of Stoddard Slate Companies, Inc. The practical effect of the actions of the Board of Albion was that the Albion name ceased to exist, and following that action, the corporation conducted its business under the name of Stoddard. All that was required to complete the revision was registration of the Stoddard name pursuant to the fictitious name statute.

Appellee/Meyers through its sales representative dealt primarily with the Muffleys and provided goods with a value of $6,932.18, for which no payment was made.

The court in its discussion notes that the appellants took “all steps necessary to effectuate the existence of this surviving corporation, Albion, which was to conduct business as Stoddard Slate Company, Inc. However, through no fault of the Defendants, the Stoddard Slate Company, Inc. never materialized on public records.” (Decision and Verdict, 3/26/85, p. 5) This was a finding that merger had been accomplished pursuant to Pennsylvania law on Corporations, 15 P.S. §§ 801-805. The court then stated the issue as “whether the fact that the name Stoddard Slate Company, Inc. was not properly registered would cause the individual Defendants to be personally liable for debts incurred in that name.” (Decision and Verdict, 3/26/85, p. 5)

In holding appellants personally liable the court rejected the argument that they should be protected by the corporate veil, because they never represented to appellees that the corporation involved was Albion. The court found that when the debts at issue were incurred the Muffleys were under the mistaken belief that they had the legal right to use the name of Stoddard Slate Company, Inc. in representing Albion. Terming this a unilateral mistake the court held such a mistake incapable of affording a basis for relief.

In its conclusions of law the court stated:

1. ...
2. Corporations necessarily act through agents and if one so acting is to escape personal liability for what it intends to be a corporate obligation, the limitation of his responsibility should be made to appear on the face of the instrument. Walters v. Demillo, [DeMilio ], 390 Pa. 155, 134 A.2d 671 (1957).
3. A unilateral mistake affords no basis for relief. Commonwealth Dept. of General Services v. Collingdale Millwork, 71 Pa.Cmwlth. 286, 454 A.2d 1176 (1983).

Liability was thus imposed on the Muffleys. (There was no liability imposed on the other defendants.)

On appeal, the Muffleys argue that they should not be held personally liable for debts incurred by the corporation under a fictitious name solely because that fictitious name is not properly registered. We agree and reverse the finding of the lower court.

The fictitious corporate name statute in effect at the time of the dispute stated in pertinent part:

§ 55. Registration
No corporation alone, or in combination with any other entity, shall hereafter conduct any business in this Commonwealth under any fictitious name unless such corporation shall have first registered the fictitious name by filing in the office of the Secretary of the Commonwealth, and in the office of the prothonotary of the county wherein the registered office of such corporation is located, an application on a form supplied or approved by the Secretary of the Commonwealth, containing the following information:
(1) The fictitious name under which the business is being or will be carried on or conducted.
(2) A brief statement concerning the character or nature of the business to be conducted under the fictitious name.
(3) The corporate name, state and date of incorporation and location, including number and street, if any, of the principal place of business and the registered office in this Commonwealth of the registrant.
(4) The name and residence including number and street of any other entity in combination with which the registering corporation seek to conduct the business under the fictitious name.
§ 63. Contracts entered into by unregistered corporation using fictitious name
The failure of any corporation to file an application in the office of the Secretary of the Commonwealth or in the office of the prothonotary, when required to do so under the provisions of this act, shall not impair or affect the validity of any contract which such corporation shall be a party to. Actions at law or in equity may be instituted and maintained on any such contract, but no action shall be instituted or recovery had in any court of this Commonwealth or before any justice of the peace or magistrate when such contract shall arise out of a transaction with respect to which such corporation used such fictitious name on behalf of any such corporation on any contract, be it either expressed or implied, until the corporation complies with the provisions of this act. Before any corporation may institute any action in any court of this Commonwealth, or before any justice of the peace or magistrate, on any cause of action arising out of any transaction in respect to which such corporation used a fictitious name prior to the date of the registration of such fictitious name, the corporation shall pay to the Secretary of the Commonwealth, for the use of the Commonwealth, a civil penalty of three hundred dollars ($300). This section shall not apply to any action or adjudication pending prior to the effective date of this act.

A review of these sections reveals that the failure to register the fictitious name does not impair or affect the validity of any contract to which the corporation is a party. It simply precludes instituting an action or gaining recovery by the noncomplying party until the requirements for registration are met. In addition, a specific penalty is imposed calling for a $300 fine prior to any suit being instituted by a corporation which failed to file a fictitious name.

The lower court attempts to deal with the factual situation without regard to the existence of the statute, finding that failure to file a fictitious name removed the insulation from personal liability which normally attaches to employees, shareholders and directors. We find no basis for such a holding. The Walters case cited by the court for the proposition that one seeking to avoid personal liability for what is intended to be a corporate obligation should be made to appear on the face of the instrument is not applicable to the present case. In Walters a note was signed by an individual “without any indication that the signer was acting as a corporate body or as the agent for such an entity.” Walters, supra, 390 Pa. at 159, 134 A.2d at 674. Clearly that was not the case here where all parties to the transactions considered them to be between corporations rather than individuals.

Likewise the unilateral mistake rationale set forth by the court is not applicable here. Collingdale, supra, holds that a unilateral mistake in the formation of a contract may bar the mistaken party from relief, thus preserving the benefit of the bargain for the nonmistaken party. The case does not hold that the nonmistaken party can acquire a right not otherwise available.

If any mistake existed it was a mutual mistake wherein both parties believed the proper name of the corporation was Stoddard Slate Company, Inc. The failure of Albion to properly register this name did not affect the existence of the corporation, which at all times continued to operate. Appellees were always dealing with Albion, doing business as Stoddard Slate Co. Inc., regardless of whether they knew this fact. There is no attempt by appellees to show they were purposely deceived as to the name of the corporation with which they were dealing. Their entire argument is they were not dealing with a corporation because of the failure to file a fictitious name.

The applicable statute as stated previously declares that failure to register the fictitious name does not affect the validity of any contract entered into by the corporation. Nowhere does it alter the general law as it relates to the liability of officers and agents of corporations. Under Pennsylvania law one knowingly entering into a contract with a corporation cannot enforce individual liability against officers or agents acting for the corporation. Bala Corporation v. McGlinn, 295 Pa. 74, 144 A. 823 (1929); McKenna v. Art Pearl Works, Inc., 225 Pa.Super. 362, 310 A.2d 677 (1973); Wicks v. Milzoco Builders, Inc., 503 Pa. 614, 470 A.2d 86 (1983). See also 15 P.S. § 1609 as to shareholder liability.

This is not a situation where individuals held themselves out as representing a corporation which did not exist. The corporation did exist but the individuals referred to the corporation by a name which was not registered. Absent a showing of fraud on the part of appellants in this representation and relying on the applicable statute, we must find that the rights and liabilities of the parties are the same as if the name was registered. Applying the law as it relates to individual liability for corporate debts we find the judgment for appellees cannot stand. As a matter of law appellants cannot be held liable for the corporate debts.

Judgment reversed. Jurisdiction relinquished.

      . 15 P.S. § 51-74, repealed 1982 Dec. 16 P.L. 1309, No. 295 § 8 effective in 90 days. The current applicable statute is 54 Pa.C.S.A. §§ 301-332.

      . We note that registering at this time under the name of Stoddard Slate Company, Inc. would be impermissible as 54 Pa.C.S.A. § 311(b)(2) (the successor to 15 P.S. § 51-74 at the time of merger) provides that a fictitious name registration may not use the designation "incorporated”. Stoddard Slate may register as a company. Such registration would not alter the liabilities of the officers and director of the parent corporation. See 54 Pa.C.S.A. § 311(b)(2).


author: POPOVICH, Judge:

text:
    526 A.2d 784
    COMMONWEALTH of Pennsylvania, Appellant, v. Donald J. FENTO.
    Superior Court of Pennsylvania.
    Submitted Nov. 3, 1986.
    Filed April 28, 1987.
    Reargument Denied June 9, 1987.

      William G. Martin, Jr., District Attorney, Franklin, for Com.
    Oliver J. LoBaugh, Seneca, for appellee.
    Before KELLY, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge:

This is an appeal by appellant, the Commonwealth of Pennsylvania, from an order granting the appellee’s, Donald J. Fento’s, motion to suppress his statement to Trooper Thomas Chelgren, entered in the Venango County Court of Common Pleas. We must reverse and remand for proceedings consistent with this opinion.

A criminal complaint was issued against appellee on February 5, 1986, charging him with driving under the influence of alcohol [75 Pa.C.S.A. § 8731(a)(1) and (4)] and failing to drive a vehicle at a safe speed [75 Pa.C.S.A. § 3361]. The complaint came about as the result of appellant’s involvement in a one-car accident on Route No. 62, Cranberry Township, Venango County, on January 6, 1986. Appellee was the driver and sole occupant of the vehicle. Appellee filed pre-trial motions to quash the information for failure to prove a prima facie case at the preliminary hearing, to suppress a blood alcohol reading of 0.375 taken at the hospital and to suppress the appellee’s statements made at the hospital. Appellee’s motion regarding the statements made at the hospital was granted, and the others were denied. This appeal followed.

The sole issue presented upon appeal is whether the appellee was “in custody” and the police officer should have given Miranda warnings to the appellee when he interviewed the appellee as a patient in a treatment room of the emergency room of the hospital regarding the automobile accident in which appellee was involved.

In the instant case, the record shows that appellee initially left the scene of the one-car accident with a witness who transported the appellee to the appellee’s home. Appellee was then taken by ambulance to the Oil City Hospital in order to be treated for his injuries. While investigating the accident scene, Trooper Thomas Chelgren of the Pennsylvania State Police observed the ambulance transporting the appellee to the hospital. After remaining at the accident scene for approximately thirty (30) minutes, Trooper Chelgren went to the hospital in order to interview the appellee.

Trooper Chelgren testified that, upon arrival at the hospital, he received permission from hospital personnel to question the appellee. Upon entering the treatment room in the hospital emergency room area where the appellee was located, Trooper Chelgren found the appellee confined to a bed for observation and treatment. Before questioning appellee, Trooper Chelgren stood in the room and observed as a nurse or technician drew blood from his arm. Immediately following the administration of the blood test, Trooper Chelgren questioned appellee for about five (5) minutes. In response to Trooper Chelgren’s questions, appellee stated that he was operating the vehicle in question, that he was traveling at a certain speed, that he had consumed “a couple of beers” prior to the accident and that he had not consumed any alcohol subsequent to the accident. In addition, Trooper Chelgren detected an odor of alcohol on appellee’s breath and noticed that appellee’s eyes were bloodshot and his speech was slurred. Trooper Chelgren testified that he felt appellee was incapable of making a knowing consent to a blood test ordered by hospital personnel. Trooper Chelgren also testified that, during questioning, appellee did not appear alert. At no time during the interview did Trooper Chelgren give the appellee his Miranda warnings. Appellee was not arrested at the end of the interview.

Trooper Chelgren testified that his decision to file charges was not made until the following day when he observed the results of appellee’s blood test which had been ordered the previous day by hospital personnel. At that time, Trooper Chelgren returned to the hospital and informed appellee that he received the results of his blood test and that, since appellee’s blood alcohol level was over the limit, he would be filing charges of driving under the influence of alcohol against appellee.

Appellant, the Commonwealth, argues that appellee was not “in custody” when questioned by Trooper Chelgren in the emergency room area of the hospital and, therefore, Miranda warnings were not required. Rather, the Commonwealth contends that Trooper Chelgren interviewed the appellee as a part of his basic accident investigation and no arrest was made at that point. We agree.

In Commonwealth v. Chacko, 500 Pa. 571, 577, 459 A.2d 311, 314 (1983), the Pennsylvania Supreme Court followed the mandate of the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966) and ruled:

The test for determining whether a suspect is being subjected to custodial interrogation so as to necessitate Miranda warnings is whether he is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation, (citations omitted).

Miranda warnings are necessary only on those occasions when a suspect is undergoing actual “custodial interrogation.” The fact that a defendant was the focus of the investigation is a relevant factor in determining whether he was “in custody.” However, the fact that a police investigation has focused on a particular person no longer automatically requires Miranda warnings. Commonwealth v. Holcomb, 508 Pa. 425, 440, 498 A.2d 833, 840 (1985), cert. denied, — U.S. —, 106 S.Ct. 1804, 90 L.Ed.2d 349 (1986); Beckwith v. United States, 425 U.S. 341, 347-48, 96 S.Ct. 1612, 1616-17, 48 L.Ed.2d 1 (1976). In addition, a suspect may be “in custody” even in instances where the police have not taken him to a police station or formally arrested him. Commonwealth v. Fisher, 466 Pa. 216, 220, 352 A.2d 26, 28 (1976).

Miranda warnings were designed to shield an accused from the coercive aspects of custodial interrogations, i.e., from incommunicato interrogation in a police-dominated atmosphere, which resulted in self-incriminating statements without full warnings on constitutional rights. Commonwealth v. Ziegler, 503 Pa. 555, 561, 470 A.2d 56, 58 (1983); Miranda v. Arizona, supra, 384 U.S. at 445-46, 86 S.Ct. at 1612-13, 16 L.Ed.2d at 707. After a careful study of the record, we find these elements were not present in the instant case.

The record shows no evidence to indicate that appellee was “in custody” during his interview with Trooper Chelgren. We find no evidence to suggest that Trooper Chelgren deprived appellee of his freedom in any significant way or placed appellee in a situation in which he could reasonably believe that his freedom of action or movement was restricted by such interrogation. Commonwealth v. Chacko, supra; Miranda v. Arizona, supra.

Trooper Chelgren went to the hospital in order to interview the appellee as a part of a routine accident investigation. He had not interviewed appellee at the scene of the accident since appellee left before Trooper Chelgren arrived. Thus, Trooper Chelgren’s interview with the appellee was necessary in order to complete his report. In fact, according to Trooper Chelgren, it was only after he observed appellee and after his conversation with appellee began that he detected evidence of a possible driving under the influence of alcohol charge. Trooper Chelgren was not provided with this information at the accident scene.

Appellee was not restricted by Trooper Chelgren from contact with other people for any period of time. Before questioning the appellee, Trooper Chelgren requested and received permission from hospital personnel. Trooper Chelgren gave no orders that he and appellee were not to be disturbed during their conversation. Hospital personnel treated appellee before and after his interview with no interference from police.

Trooper Chelgren was the only police officer involved in the investigation of the accident and interrogation of appellee. Appellee was in no way guarded by police during his interrogation in the emergency room or during his three-day stay at the hospital.

Moreover, the interview itself was not long and drawn-out. It lasted for approximately five (5) minutes. In addition, during the interview, Trooper Chelgren did not inform appellee that he was not free to leave or place appellee in any sort of restraints. Appellee was not arrested before, during or at the end of the interview. Trooper Chelgren testified that his decision to file charges against the appellee was not made until the following day when he observed the results of appellee’s blood test. He then returned to the hospital in order to inform appellee of his decision.

Thus, the only restraints placed on appellee were created by his own medical condition as the result of the accident rather than any coercive action on the part of Trooper Chelgren. Any restraint applied in this case was for medical purposes by medical personnel rather than investigative purposes by police officers. It would be reasonable in this case for appellee to expect his detention to last only for the time that is medically necessary and to feel free to leave after that, if not before, in the event that he refused to consent to medical treatment. In addition, Trooper Chelgren never ordered the hospital personnel to detain appellee.

Granted, appellee became the focus of the investigation when Trooper Chelgren, while in the emergency room treatment area, detected an odor of alcohol on appellee’s breath, noticed that appellee’s eyes were bloodshot and his speech was slurred and ascertained, through the questioning of appellee, that appellee was the driver of the vehicle in question. As stated before, the fact that a police investigation has focused on a particular person no longer automatically requires Miranda warnings. On the other hand, the fact that appellee was the focus of the investigation is a relevant factor in determining whether he was “in custody.” However, in the instant case, we find no other evidence to support the proposition that the appellee was undergoing actual “custodial interrogation.” Commonwealth v. Holcomb, supra; Beckwith v. United States.

Pennsylvania has no case law directly on point with the factual situation in the instant case.

In Commonwealth v. Fisher, 466 Pa. 216, 352 A.2d 26 (1976), incriminating statements were also made in a hospital setting. However, unlike the instant case, Fisher presents a custodial situation under Miranda. In Fisher, the Court found that it was dealing with a type of interrogation environment created by the police in which they could take advantage of the situation in order to compel the defendant to incriminate himself. In Fisher, the defendant was placed under guard for approximately forty-eight (48) hours before he incriminated himself during his third session of police questioning. Under such conditions, the Court found that the defendant would reasonably believe that his freedom of action or movement was restricted by such interrogation.

Unlike Fisher, in the instant case, there were no police guards or restraints of any sort imposed by the police. In addition, the questioning by Trooper Chelgren only lasted approximately five (5) minutes and was not subsequently repeated.

In Commonwealth v. D’Nicuola, 448 Pa. 54, 292 A.2d 333 (1972), the Court held that while hospitalized, the defendant had become the focus of the investigation and thus should be given the Miranda warnings. In D’Nicuola, the police arrived at the defendant’s hospital room with a recently fired revolver which had been taken from the defendant’s vehicle and with the knowledge that the defendant’s friend was missing. Instead of questioning the defendant concerning his attempted suicide, the police questioned the defendant about the revolver which had no connection to his suicide attempt.

The “focus of the investigation” test comes from Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). In D’Nicuola, the Court based its findings on Commonwealth v. Feldman, 432 Pa. 428, 432, 248 A.2d 1, 3 (1968), which interpreted a defendant’s rights under both Miranda and Escobedo:

From reading Escobedo and Miranda together it becomes clear that whenever an individual is questioned while in custody or while the object of an investigation of which he is the focus, before any questioning begins the individual must be given the warnings established in Miranda.

However, the “focus of the investigation” analysis has since been rejected. In Commonwealth v. Holcomb, supra, 508 Pa. at 440, 498 A.2d at 840, cert. denied, — U.S. —, 106 S.Ct. 1804, 90 L.Ed.2d 349, following the United States Supreme Court holding in Beckwith v. United States, supra, 425 U.S. at 347-48, 96 S.Ct. at 1616-17, 48 L.Ed.2d at 8, the Pennsylvania Supreme Court ruled that:

Miranda warnings are necessary only when a suspect is undergoing actual custodial interrogation, with the issue of the focus of the investigation only a relevant factor in determining custody.

Thus, in the case at bar, we find that the lower court incorrectly followed the rejected “focus of the investigation” analysis as presented in D’Nicuola.

In Commonwealth v. Silo, 480 Pa. 15, 22, 389 A.2d 62, 65 (1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1053, 59 L.Ed.2d 94, our Supreme Court held that the mere arrival and presence of police officers in the hospital ward in which the defendant was undergoing examination and treatment did not constitute arrest where the police did not communicate to the defendant any intention of taking him into custody and did not give Miranda warnings until almost an hour after they had seized his clothing. The situation in Silo differs from the instant case in that, once the police officers were permitted by hospital personnel to interview the defendant, the police officers communicated their intention of taking the defendant into custody, and Miranda warnings were given.

A review of cases from other jurisdictions provides a variety of results from different factual situations. However, our conclusion that the facts in the instant case do not constitute actual “custodial interrogation” is supported by numerous jurisdictions which have already been confronted with similar questions. State v. Clappes, 117 Wis.2d 277, 344 N.W.2d 141 (1984); State v. Fields, (1980, N.D.), 294 N.W.2d 404; State v. Brunner, 211 Kan. 596, 507 P.2d 233 (1973).

In State v. Clappes, supra, the defendant had been involved in a one-car accident and taken to a hospital. Police officers asked consent of the doctors to question the defendant, and there were up to seven (7) medical persons present at the time of questioning. There was no evidence of trickery or pressure by the police applied to the defendant. During the questioning, the defendant gave detailed information about the accident, including the fact that he had been the driver of the vehicle. The Supreme Court of Wisconsin held that the circumstances of the case did not involve “custodial interrogation” of the defendant and, therefore, did not require Miranda warnings before police officers questioned the defendant.

In State v. Fields, supra, the defendant was in the hospital following an automobile accident. Upon locating the defendant in the hospital, the police officer in charge of the investigation asked him if he was the driver of the car. After receiving an affirmative response, the officer asked the defendant if he would submit to a blood-alcohol test. The defendant agreed and was placed under arrest for driving under the influence of intoxicating liquor. The defendant was then informed of some of his Miranda rights. However, prior to the defendant’s arrest, there was no evidence that the defendant was deprived of his freedom by authorities in any significant way. Therefore, the Supreme Court of North Dakota held that the defendant was not in custody during the initial questioning by the first police officer on the scene since his detention resulted from medical advice and not from any action on the part of the authorities.

In State v. Brunner, supra, the defendant was taken to the hospital following a one-car accident. When questioned at the hospital by a police officer, the defendant admitted that he was the driver of the vehicle and that he had been drinking. The officer testified that the defendant appeared very irrational and confused at the time but that he appeared to understand what he was doing when he signed a blood consent form. The questioning lasted approximately fifteen (15) minutes. The Supreme Court of Kansas ruled that, although the defendant was suspected of being the driver of the car and of having driven it while under the influence of intoxicating liquor, the defendant was not “in custody” when questioned. His detention resulted from his medical condition and not from any action on the part of the police.

Thus, in the instant case, we too find that the police officer’s investigation of appellee’s automobile accident, including the questioning of appellee who was apparently intoxicated, injured and awaiting treatment in a hospital emergency room, involved nothing more than proper police procedure.

Appellee was not questioned in an isolated, coercive atmosphere created by the police. The circumstances were public with a number of hospital personnel around the area. The questions asked by Trooper Chelgren related to police investigation of a one-car accident in which appellee was the driver. The questioning was brief, lasting approximately five (5) minutes, and no apparent police trickery or deception was used. Appellee was not placed under arrest before, during or after the initial questioning. Moreover, we conclude that the appellee’s detention while in the emergency room area of the hospital was purely the result of his medical condition at that point as opposed to any action on the part of the police.

Therefore, we find that appellee was not physically deprived of his freedom in any significant way during the questioning by Trooper Chelgren and was not placed in a situation in which he could reasonably believe that his freedom of action or movement was restricted by such interrogation. Thus, since appellee was not “in custody,” the absence of Miranda warnings did not of itself render the appellee’s statements inadmissible. Commonwealth v. Chacko, supra; Commonwealth v. Holcomb, supra.

Order vacated and record remanded for proceedings consistent with this opinion.

Jurisdiction relinquished.


author: HOFFMAN, Judge: BROSKY, Judge,

text:
    526 A.2d 790
    COMMONWEALTH of Pennsylvania v. Marcellino SANCHEZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 30, 1987.
    Filed June 1, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before BROSKY, DEL SOLE and HOFFMAN, JJ.

      . Appellant also contends that he was denied his fundamental right to a unanimous verdict from a competent and qualified jury because one of the jurors indicated she had a hearing problem during the poll of the jury. Because of our disposition of the case, we need not reach this issue.

   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for robbery, aggravated assault, theft, and conspiracy. Appellant contends that the lower court erred when it continued to poll the jurors after it became apparent that the verdict was not unanimous. For the reasons that follow, we vacate the judgment of sentence and remand for a new trial.

Appellant was tried by a jury on the above charges. Following jury deliberations, the foreperson announced that the jury had reached a unanimous verdict and that appellant was found guilty of all charges. Defense counsel then requested that the jury be polled. After the jury was polled, the court recorded a unanimous verdict of guilty on charges of robbery, aggravated assault, theft and conspiracy. Appellant moved for a mistrial on the grounds that one of the jurors had said she found him not guilty. The motion was denied. Appellant was sentenced to a five-to-ten-year term of imprisonment for robbery and a one-to-two-year term of imprisonment for conspiracy, terms to run consecutively. This appeal followed.

Appellant contends that the lower court erred when it recorded a unanimous verdict of guilty on all charges because it was apparent that the verdict was not unanimous. We agree. It is well-settled in this Commonwealth that a criminal defendant tried before a jury has the right to a unanimous verdict. Commonwealth v. Stufflet, 276 Pa.Superior Ct. 120, 127, 419 A.2d 124, 128 (1980); Commonwealth v. Pemberton, 256 Pa.Superior Ct. 297, 301, 389 A.2d 1132, 1134 (1978); Commonwealth v. Corbin, 215 Pa.Superior Ct. 63, 65, 257 A.2d 356, 358 (1969). See also Pa.R.Crim.P. 1120(b). To ensure that the verdict is unanimous, both parties have the right to poll the jury. Commonwealth v. Martin, 379 Pa. 587, 592-93, 109 A.2d 325, 327 (1954); Commonwealth v. Pemberton, supra.

The polling of the jury is the means for definitely determining, before it is too late, whether the jury’s verdict reflects the conscience of each of the jurors or whether it was brought about through the coercion or domination of one of them by some of his [sic] fellow jurors or resulted from sheer mental or physical exhaustion of a juror.

Commonwealth v. Martin, supra, 379 Pa. at 593, 109 A.2d at 328. If, during the poll of the jury, it becomes apparent that there is no concurrence among them as to the verdict, the court must order the jury to retire for further deliberations. Pa.R.Crim.P. 1120(f). Where, however, “an evasive answer of a juror leaves doubt as to whether he [sic] has assented to the verdict, but his [sic] answers indicate neither involuntariness or coercion, a subsequent answer on further interrogation which indicates clear and unequivocal assent will cure any possible defect.” Commonwealth v. Stufflet, supra, 276 Pa.Superior Ct. at 127-28, 419 A.2d at 128.

Here, the jury was polled as follows:

THE COURT: As your name is called, you answer to your name and if you agree with the verdict, you tell us you do, you say yes; and if you don’t, tell us in what respects you do not agree.
JUROR NUMBER ONE: Yes, I do; TWO: Yes, I do; THREE: Yes, I do; FOUR: Yes, I do; FIVE: Not guilty.
Q: Do you agree with the verdict, yes or no?
A: Not guilty.
THE COURT: Just one moment, do you agree with the verdict was the question?
MR. STANSHINE [Defense Counsel]: Judge, she answered the question herself.
THE COURT: Yes, wait a minute, please do not speak with the juror, do you agree with the verdict. Number five?
A: Yeah.
MR. STANSHINE: I ask that she be asked what her verdict is?
THE COURT: Let’s proceed now.

N.T. January 15, 1986 at 7. The court then proceeded to poll the remaining jurors, all who indicated that they agreed with the verdict. Following the poll of the jury, the court returned to juror number five:

THE COURT: Juror number five, would you stand up? Do you agree with the verdict as announced?
A: Yes.
MR. STANSHINE: I would ask that the juror be asked. THE COURT: Please remove the jury.
MR. STANSHINE: She said not guilty also, I ask that she be asked what her verdict is.

Id. at 8-9. The jury then returned to the courtroom and the court asked each juror directly how he or she found appellant on each of the charges.

Q: Juror number five, please stand. How do you find the defendant on the charge of criminal conspiracy?
A: Agree.
Q: How do you find him guilty or not guilty? How do you find the defendant on criminal conspiracy?
A: I don’t understand what you’re saying. I can’t hear so good.
Q: Oh, you can’t hear so good. All right. The question is, how do you find the defendant on the charge of criminal conspiracy?
A: Yes.
Q: How do you find him?
A: Not guilty.
Q: Not guilty or guilty?
MR. STANSHINE: Objection, she said not guilty, judge.
THE COURT: Just a moment. She said a few things. Will you please not interfere with the court?
Q: Will you please stand again, ma’am. I’m going to ask you how you found the defendant, I want you to answer me guilty or not guilty on each of these charges, do you understand that?
A: Yes.

Id. at 12-13. She then stated that she found appellant guilty on all charges and the court recorded the verdict as unanimous.

It is clear from this colloquy that juror number five did not clearly and unequivocally assent to the verdict. When first asked if she agreed with the verdict, she twice responded “Not guilty.” Upon further questioning by the court she stated that she did agree with the verdict. Later, when asked again if she agreed with the verdict she responded “Not guilty.” Apparently not satisfied with her answer, the court again asked her whether she found appellant guilty or not guilty and, at this point, she stated that she found him guilty on all charges. At no time did the court stop the polling and order the jury to retire for further deliberations, as required by Pa.R.Crim.P. 1120(f). Instead, the court impermissibly continued to question juror number five until it obtained a response that comported with the responses of the other jurors. As a result, it is unclear whether the guilty verdict accurately reflects the conscience of each and every juror. We conclude, therefore, that the lower court erred in accepting and recording the guilty verdict.

For the above-stated reasons, we vacate the judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is relinquished.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting:

Since I cannot join the majority’s disposition vacating appellant’s judgment of sentence and remanding for a new trial, I must therefore respectfully dissent. My examination of the record leads me to conclude that Juror No. 5 did render her clear and unequivocal assent to the verdict of guilty. Commonwealth v. Stufflet, 276 Pa.Super. 120, 419 A.2d 124 (1980). The totality of the circumstances surrounding the jury poll convinces me that Juror No. 5 voluntarily and unequivocally assented to the guilty verdict even though, in the initial poll, she rendered a vote of not guilty on the conspiracy count. Commonwealth v. Carter, 329 Pa.Super. 490, 478 A.2d 1286 (1984).

When the jury was initially polled, the trial judge instructed each member to respond “yes” if he or she agreed with the verdict. Juror No. 5’s response was “not guilty.” (N.T. 7). This, in my view, is non-responsive to the court’s inquiry “Do you agree with the verdict, yes or no?” (Id.). Immediately thereafter, the court stated to Juror No. 5, “Just one moment, do you agree with the verdict was the question?.... [D]o you agree with the verdict, Number Five?” Juror No. 5 then responded, I think unequivocally, “Yeah.” (Id.) Subsequently, the court asked each remaining juror to indicate his/her agreement or disagreement, i.e., a “yes” or “no” response. (N.T. 7-8).

Despite this, appellant’s trial counsel, after removal of the jury, insisted that the court once again ask Juror No. 5 “what her verdict is” (N.T. 9). The court then agreed to recall the jury and did ask Juror Nos. 1 through 4 each to render his/her verdict (guilty or not guilty) on each charge. (N.T. 10-12). When the court again asked Juror No. 5 how she found appellant on the charge of criminal conspiracy (guilty or not guilty), the juror responded, “Agree.” (N.T. 12).

It is evident that this juror was confused not as to the verdict she wished to render but, rather, as to the appropriate manner in which to respond. The first time around (on the first poll), the juror was asked to render her agreement or disagreement. The second time, the trial court expected a “yes” or “no” response. This is borne out by the fact that Juror No. 5 informed the court that she did not understand what the court was saying because of a hearing problem (N.T. 13).

Juror No. 5 did render a “not guilty” response to the court’s query, “How do you find him?”. However, because of the foregoing difficulty and confusion, the court once again proceeded to question this juror as follows:

Q. Will you please stand again, Ma’am.
I’m going to ask you how you found the defendant, I want you to answer to me either guilty or not guilty on each of these charges. Do you understand that?
A. Yes.
Q. Okay. The defendant was tried on [sic] charge of criminal conspiracy, how do you find the defendant? A. Guilty.
Q. How do you find the defendant on robbery?
A. Guilty.
Q. How do you find the defendant on aggravated assault?
A. Guilty.
Q. How do you find the defendant on theft?
A. Guilty.
Q. Now, over again, let’s do that again. I want to make sure?
A. Yes.
Q. Are you sure you find the defendant guilty on all these charges?
A. Yes.
Q. You’re sure?
A. Yes.

N.T. 11-12.

In light of the foregoing colloquy, I would hold that Juror No. 5’s responses to each of the court’s queries on each of the charges were manifestly clear and unequivocal. The juror’s initially non-responsive or ambiguous replies were later clarified without any vacillation or taint of involuntariness or coercion. Commonwealth v. Stufflet, supra; Commonwealth v. Carter, supra.

In Commonwealth v. Wheeler, 498 Pa. 374, 446 A.2d 892 (1982), the following jury poll colloquy took place in the trial court:

“THE CRIER: * * * In Bill of Information Number 1467 of March 1979 the defendant, James Wheeler, is charged with murder. To this Bill of Information how do you find the defendant?
JUROR NO. 9: Well, I have to tell the truth. I can’t say the man is guilty, but with all the evidence I have to say he’s guilty.
THE COURT: Just tell us what you say.
THE CRIER: How do you find the defendant?
JUROR NO. 9: Well—
THE CRIER: May I read the bill back?
THE COURT: Yes, read it back.
THE CRIER: In Bill of Information Number 1467 of March 1979 the defendant, James Wheeler, is charged with murder. To this Bill of Information how do you find the defendant?
JUROR NO. 9: Well, all the evidence points to him so—
THE COURT: Just tell us what is your verdict. Is it guilty or not guilty?
JUROR NUMBER 9: Guilty.
THE CRIER: Is your verdict guilty or not guilty?
JUROR NUMBER 9: I’ll say guilty.
THE CRIER: To what degree?
JUROR NUMBER 9: First degree.”

Id., 498 Pa. at 378, 446 A.2d at 894-95.

When compared with the colloquy occurring instantly, I would view the Wheeler juror’s vacillation considerably more pronounced, thus giving rise to the spectre of non-unanimity of the verdict. Nevertheless, our Supreme Court concluded there that Juror No. 9’s response, while initially ambiguous, was subsequently clarified by her clear and unequivocal assent to the verdict. I note with interest, moreover, that the trial judge there, as here, asked the subject juror to state her verdict more than once. The Supreme Court found no error there, nor do I here.

I would also be unable to address the merits of appellant’s second contention that he was denied his right to a unanimous verdict because of Juror No. 5’s indication of a hearing problem. This issue is not properly before the Court because it was not made part of appellant’s original post-verdict motion or either of his two supplemental post-verdict motions. Commonwealth v. Gravely, 486 Pa. 194, 404 A.2d 1296 (1979); Pa.R.App.P. 302(a) (issues not raised below cannot be considered for the first time on appeal).

Based upon the foregoing reasons, I would affirm the judgment of sentence.


author:
WIEAND, Judge:
      JOHNSON, Judge,

text:
    526 A.2d 794
    George Benjamin MILLER, Jr. and Betty L. Miller, Husband and Wife, Appellees, v. John N. NICHOLS and Verna A. Nichols, Husband and Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1986.
    Filed June 5, 1987.

      Gregory L. Kiersz, Waynesboro, for appellants.
    Edward F. Martin, Waynesboro, for appellees.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   WIEAND, Judge:

May the owner of the fee underlying a rural, township road compel the removal of a neighbor’s mailbox which has been placed within the public right of way at the request of the United States Postal Service? The trial court held that the mailbox served only private interests and, therefore, upheld the right of the landowner to maintain an action in ejectment. The court ordered removal of the mailbox. We reverse.

The residence of John and Verna Nichols is situated on the north side of Amsterdam Road in Washington Township, Franklin County. The postmaster advised the Nichols that mail would not be delivered along the north side of the township road and directed them to place their mailbox on the south side of the road. The Nichols complied with the postmaster’s directive. They placed their mailbox along the south side of the township road, but within the public right of way and 1.67 feet from the edge of the paved road surface. The mailbox occupies an area of sixteen square inches. George and Betty Miller own the land which abuts the township road on the south. They object to the presence of the Nichols mailbox. When the Nichols refused a request to remove it, the Millers commenced an action in ejectment. The trial court entered judgment on the pleadings in favor of the Millers.

“Rural boxes must be placed so that they may be safely and conveniently served by carriers without leaving their conveyances, and must be located on the right-hand side of the road in the direction of travel of the carriers in all cases where traffic conditions are such that it would be dangerous for the carriers to drive to the left in order to reach the boxes, or where their doing so would constitute a violation of traffic laws and regulations____”

An owner whose property abuts a public street or road owns to the center of the road, subject to an easement of public use. 46 South 52nd Street Corp. v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960); Scranton v. Peoples Coal Co., 256 Pa. 332, 100 A. 818 (1917); Lockhart v. Craig Street Railway Co., 139 Pa. 419, 21 A. 26 (1891). See also: 17 P.L.E. Highways § 11. Appellees contend that a mailbox is a private use; appellants contend that it constitutes a public use and, therefore, can be maintained within the public right of way.

Prior to 1966, the extent of a public use easement varied according to whether the street or road was located in an urban or rural area. Rural roads were held to be for public passage only; whereas, city streets were for “any public service.” 46 South 52nd Street Corp. v. Manlin, supra 398 Pa. at 312, 157 A.2d at 386. See also: William Laubach & Sons v. City of Easton, 347 Pa. 542, 32 A.2d 881 (1943). In 1966, the Supreme Court discarded the distinction between city streets and rural roads and held that the rule applicable to city streets was equally applicable to rural roads. Pittsburgh National Bank v. Equitable Gas Co., 421 Pa. 468, 220 A.2d 12 (1966). The court held that a subsurface pipeline, which had been laid in the bed of a township road, did not constitute an additional burden upon the abutting land. “[A]n existing street or public road,” the court said, “may be used for any public service without additional compensation due the abutting landowner.” Id., 421 Pa. at 471, 220 A.2d at 14. (emphasis in original). “[W]hen any public road is established, it is clearly for the purpose of public travel and commerce.” Id., 421 Pa. at 474, 220 A.2d at 16 (emphasis in original). The court reasoned:

As the means and modes of public commerce increase, what at one time would have been considered a burden on the abutting landowner is no longer so____ Evolutionary changes must be considered in determining whether a burden is imposed on the servient tenement.

Id., 421 Pa. at 474-475, 220 A.2d at 16. See also: Smith v. Adams, 362 Pa.Super. 88, 523 A.2d 788 (1987). Of course, “[i]f a use obstructs the abutting land or is of a new nature not in accord with the mainstream of today’s commerce, it will still be held a violation of the landowner’s rights.” Pittsburgh National Bank v. Equitable Gas Co., supra 421 Pa. at 475-476 n. 2, 220 A.2d at 16 n. 2.

Our research has disclosed no reported decision in any jurisdiction where the precise issue in the instant case was considered. Still, the guidelines developed by our own Supreme Court are clear. Consistently therewith, we hold that rural mailboxes which are authorized depositories for United States mail are a part of the postal system, constitute a public use, and may be maintained within a public right of way without the consent of the owner of the underlying fee.

Commerce is “social intercourse.” It consists of “dealings between individuals or groups in society” and entails an “interchange of ideas, opinions, or sentiments.” Webster’s Third New International Dictionary 456 (1965). Authorized mailboxes have become a recognized and accepted part of the landscape of America’s commercial scene. Commerce, as residents of rural America have come to recognize, would be greatly impaired without the delivery of mail to their homes. The mail service, including rural mail boxes, is as much a part of the commercial scene as telephone service, with its poles and transmission lines above and below the surface of the road. Rural mailboxes are used to receive an infinite variety of items sent via the U.S. Postal Service, including promotional material and the delivery of merchandise. Mailboxes also facilitate the transmission of public correspondence between citizens and their local, state, and federal governments. These matters are as diverse as the taking of a census, the assessment and collection of taxes, the registration of voters, and the return of overdue library books. In short, mailboxes permit rural residents who may live miles from the nearest post office to send and receive communications in commerce, public as well as private.

The United States Postal Service is charged with providing “postal services to bind the Nation together through the ... correspondence of the people.” 39 U.S.C. § 101(a). It is required “to maintain an efficient system of collection, sorting, and delivery of the mail nationwide.” Id. § 403(b)(1). Authorized mailboxes are an essential part of the United States Postal Service’s nationwide system for the delivery and receipt of the mail. United States Postal Service v. Council of Greenburgh Civic Associations, 453 U.S. 114, 128, 101 S.Ct. 2676, 2684, 69 L.Ed.2d 517, 529 (1981). As such, they are protected by the federal criminal code. See: 18 U.S.C. §§ 1702, 1705, 1708.

We conclude, therefore, that authorized rural mailboxes, as part of the federal postal system and the commercial scene, serve a public purpose and may be maintained within the right of way of a township road without permission from the owner of the underlying fee. See: Black v. City of Berea, 137 Ohio St. 611, 32 N.E.2d 1 (1941) (erection and maintenance of mailboxes upon post road is public use, being for both delivery and receipt of mail). An abutting landowner, who may also own the fee underlying the public road, cannot maintain an action to compel removal of a mailbox erected within the public right of way.

Judgment reversed. Complaint dismissed.

JOHNSON, J., files a dissenting opinion.

JOHNSON, Judge,

dissenting:

Since I am unable to agree that the voluntary erection of a private mailbox upon the property of another constitutes a public use of the highway easement, I must dissent.

The defendants, John M. and Verna A. Nichols, husband and wife, bought a residence in Washington Township, Franklin County, in January 1984. After moving in, they were informed by the local postmaster that mail would not be delivered to the north side of the road where their property was situated. Without securing the plaintiffs permission, the Nichols erected a mailbox on plaintiffs’ land, in the right of way on the south side of the road. The Nichols refused plaintiffs’ request to remove the mailbox and plaintiffs brought suit in ejectment.

The trial court granted judgment on the pleadings, ruling that a private mailbox is not an instrument of “public use” for the purposes of a public use easement. I agree and would, therefore, affirm the order granting to the plaintiffs a judgment on the pleadings.

The issue in this case does not involve the right of the United States Postal Service to designate where they will pick up, or deposit, mail along rural routes. Nor does this appeal present any question of whether mailboxes may be installed within a public right of way, under certain circumstances. The sole issue presented, in my view, is whether a private mailbox may properly be characterized as a “public use” as a matter of Pennsylvania law. I have found nothing in the law to support what amounts to the obstruction of the fee owners’ right to uninterrupted enjoyment of the fee.

Plaintiffs have title to the center of the roadway, subject only to an easement of public use. Even after Pittsburgh National Bank v. Equitable Gas Company, 421 Pa. 468, 220 A.2d 12 (1966), the necessity of establishing a public use remains. Our supreme court recognized in 46 South 52nd Street Corporation v. Manlin, 398 Pa. 304, 157 A.2d 381 (1960) that no person, corporation or individual has the right to make a special or exceptional use of the public highway not common to all citizens except by grant from the sovereign power. Id., 398 Pa. at 315, 157 A.2d at 387. There, quoting with approval from Hindin v. Samuel, 158 Pa.Super. 539, 542, 45 A.2d 370, 372 (1946), our supreme court recognized that:

The highways belong to the commonwealth in trust for the great body of the people, and he who claims a peculiar privilege to invade them must establish his right under some statute, or valid municipal regulation, ordained in pursuance of statutory authority.

The narrow holding in Manlin, which reversed a decree permitting operation of a newstand on a public sidewalk, is to the effect that no private use of another’s property is permitted where there has been no express approval of such use by either the municipality involved or the fee-owner. The Manlin majority accepted the property owner’s contention that no private use may be made of the sidewalk in opposition to or over the objection of the owner, whose private right is superior to any other private right. The same rule must obtain here, where a township roadway is involved.

Which returns us to the central issue in this case. Does the erection, by an individual, of a private mailbox upon another’s property constitute an authorized public use which takes priority over the fee-owner’s private right? Unlike the majority, I do not find Pittsburgh National Bank v. Equitable Gas Co., supra, helpful in this analysis since, there, the Supreme Court assumed that subsurface public utility lines constituted a public use. The court was merely faced with whether the rule which theretofore had only been applicable in cases involving cities and boroughs should be extended to include townships.

I agree with the distinguished trial judge, the Honorable John R. Walker, that public use easements acquired through eminent domain may provide incidental benefits to private parties but the public must be the primary and paramount beneficiary. This is clearly true even where a public authority seeks to utilize its powers. Price v. Phila delphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966). As Judge Walker correctly points out in his able opinion supporting judgment in favor of the fee-owners, one attribute of instruments designated for public use and public good is that the benefit of the instrument somehow inures to the good of the community in general. Along with Judge Walker, I fail to see how the nonconsensual placement of the Nichols’ private mailbox on plaintiffs’ land benefits the public in general to any degree cognizable in law.

I find nothing in the record before us to support the majority’s conclusion that commerce would be greatly impaired if we do not permit one property owner to use another’s property without compensation or permission. Nor do I find any support in the case before us for the majority’s observation that mailboxes permit rural residents who may live miles from the nearest post office to send and receive communications in commerce where they otherwise could not. While the majority, seemingly relies on the assertion by the United States Postal Service that there are over 17 million rural mailboxes along nearly 41 thousand rural carrier routes, neither the majority nor the Postal Service enlighten this writer as to how many, if any, of those mailboxes have been erected over the objection of the property owner and without compensation.

The result announced by the majority will permit any person to select a spot of his or her choosing upon another’s property and — so long as the site remains within an easement for public use — place a private mailbox on that site, without notice to the property owner involved and with no participation by municipal authority or other third party review. The majority is prepared to transfer to a United States Postal Service user the right to seize a person’s property without due process of law and without compensation. I find this both unnecessary and most unfortunate.

The trial court astutely found that the Nichols were not without recourse. They remain free to contract with other landowners in order to secure a proper place along the delivery route for their mailbox. They also are free to rent a local post office box. On the record before us, they would even remain free to seek some agreement with the plaintiff fee-owners for maintaining their mailbox where it was erected. Since I cannot be persuaded that private, individual mailboxes rise to the level of a public use inuring to the benefit of the community in general, and since the defendant-appellants have reasonable alternatives to their attempted appropriation of another’s property, I must respectfully dissent.

      . This was consistent with the Domestic Mail Manual § 156.54, incorporated by reference in the Code of Federal Regulations at 39 C.F.R. § 111.1, which provides in part as follows:

      . Washington Township is not a party to these proceedings, and the United States Postal Service has intervened only as amicus curiae. Therefore, we do not now consider or decide the right of a municipal government to regulate the location or compel the removal of mailboxes from public rights of way.

      . The United States Postal Service, as amicus curiae, tells us that there are over 17 million rural mailboxes along nearly 41 thousand rural carrier routes, spanning about 2.4 million miles.


author: WIEAND, Judge:

text:
    526 A.2d 798
    Olive M. BLOUSE and Allen L. Blouse, Peggy A. Fulton and William L. Fulton, Sandra M. Alloway and Arthur L. Alloway, Appellants, v. SUPERIOR MOLD BUILDERS, INC., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 19, 1987.
    Filed June 3, 1987.

      William H. Poole, Jr., York, for appellants.
    Joseph C. Phillips, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   WIEAND, Judge:

Olive Blouse, Peggy Fulton and Sandra Alloway commenced a common law tort action against their employer, Superior Mold Builders, Inc., for injuries which they allegedly had sustained as a result of exposure to toxic chemicals routinely used in the course of their employment. They alleged that their employer had intentionally caused their injuries by failing to warn them of known dangers inherent in the chemicals, by removing warning labels from the containers in which the chemicals had been stored, and by assuring them that the chemicals were safe for use. The employer filed preliminary objections in the nature of a demurrer to the complaint and raising a question of jurisdiction. He asserted therein that the employees’ exclusive remedy was under the Pennsylvania Workmen’s Compensation Act, which barred common law tort actions for injuries arising in the course of employment. The trial court agreed, granted the preliminary objections, and dismissed the complaint. The employees appealed.

There is but a single issue presented in this appeal: whether the Workmen’s Compensation Act provides the exclusive remedy for injuries sustained by employees in the course of their employment if the injury is a result of intentional wrongdoing by the employer. We conclude that the employees’ sole remedy is under the Workmen’s Compensation Act. Therefore, we affirm the order of the trial court which sustained the employer’s preliminary objections and dismissed the complaint.

The Pennsylvania Workmen’s Compensation Act was enacted “to protect employees and their families by insuring quick and certain payment for work-related injuries without having to resort to the courts.” Wagner v. National Indemnity Co., 492 Pa. 154, 161-162, 422 A.2d 1061, 1065 (1980) (plurality opinion). Where applicable, the Act deprives common pleas courts of subject matter jurisdiction over common law tort actions which seek recovery against employers for work-related injuries. LeFlar v. Gulf Creek Industrial Park #2, 511 Pa. 574, 580, 515 A.2d 875, 879 (1986).

The Act specifically delineates the scope of its coverage. Section 301(a) of the Act provides:

Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, without regard to negligence____

77 P.S. § 431. According to Section 301(c),

The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer

77 P.S. § 411(1) (emphasis added).

With respect to injuries which fall within the purview of the Act, Section 303(a) states:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481(a) (footnotes omitted). “Section 303(a) is a version of the historical quid pro quo that employers received in return for being subjected to a statutory, nofault system of compensation for worker injuries. Pursuant to its terms, an employer is given immunity from lawsuits by employees for any ‘injury’ defined as such by section 301(c) of the Act.” Poyser v. Newman & Co., Inc., 514 Pa. 32, 36, 522 A.2d 548, 550-51 (1987). See: Wagner v. National Indemnity Co., supra, 492 Pa. at 162, 422 A.2d at 1065. See also: Kline v. Arden H. Verner Co., 503 Pa. 251, 256, 469 A.2d 158, 160 (1983).

In Poyser v. Newman & Co., Inc., supra, the plaintiff-employee sustained an injury to his little finger when, during the course of his employment, his hand came into contact with the rotating blade of a “notching” machine. As a result of the injury, he commenced a civil action against his employer in which he alleged, inter alia, that the injury had been caused by an intentional act of the employer. Specifically, it was asserted that, although the employer had been aware of the danger posed by the notching machine, the employer deliberately forbade its employees from attaching a safety device to the machine which would have reduced the risk of injury. By so doing, the employee contended, the employer willfully disregarded governmental safety regulations requiring the use of the safety device. The employer filed an answer containing new matter in which it was alleged that the injuries sustained by the employee were covered by the Workmen’s Compensation Act and that the employee’s action, therefore, was barred by Section 303(a) of the Act. After the pleadings had been closed, the employer moved for judgment on the pleadings on the ground that the employee’s action was barred by the Workmen’s Compensation Act. The trial court granted the motion and entered judgment for the employer. A panel of the Superior Court affirmed. On allocatur to the Supreme Court, the sole issue was “whether [the employee’s assertion] that his injury was caused by deliberate derelictions of the employer, operated to take the personal injury action out of the exclusivity provision ... of the Act.” Id., 514 Pa. at 34, 522 A.2d at 549. In deciding this issue in the negative, the Supreme Court observed that “[t]here is no Pennsylvania judicial authority supportive of the result the employee seeks.” Id., 514 Pa. at 37, 522 A.2d at 551. Moreover, the Court observed, there is no provision in the Workmen’s Compensation Act which expressly preserves the right of an employee to sue in tort if his or her injury is caused by an employer’s intentional wrongdoing. Id., 514 Pa. at 37-38, 522 A.2d at 551. In response to the employee’s contention that an intentional act by the employer should preclude the latter’s assertion of immunity in a common law tort action, Chief Justice Nix, writing for the majority, said the following:

The [employee’s] argument is an interesting one; but it is one that must be resolved by the General Assembly, not this Court. What he is asking us to do is to engraft upon section 303(a) of the Act an exception the legislature did not see fit to put there. A reading of the Act will disclose that the legislature was not unmindful of the issue of intentionally caused harm. For example, in section 301(c)(1), 77 P.S. § 411(1), it is provided that “an injury caused by an act of a third person intended to injure the employe because of reasons personal to him ...” does not fall within the statutory definition of a covered injury. (Emphasis added). And, under section 205, 77 P.S. § 72, which immunizes an employee from tort actions for harm caused to a fellow employee, an exception is expressly made for the intentional infliction of harm. Since it is clear that the legislature had the issue of intentional harm in mind, and yet did not mention it in connection with section 303(a), we are constrained to conclude that the legislature did not intend the result for which the [employee] argues.

Id., 514 Pa. at 38, 522 A.2d at 551 (emphasis in original). The Supreme Court held, therefore, that the employee’s action was barred by the exclusivity provision contained in the Act, and it affirmed the order of the Superior Court which had upheld the entry of judgment on the pleadings in favor of the employer. To the same effect, see Higgins v. Clearing Machine Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985). Cf. Rosipal v. Montgomery Ward, 360 Pa.Super. 570, 521 A.2d 49 (1987).

Poyser is controlling of the instant case. As that decision makes clear, where employees sustain injuries during the course of employment as a result of an alleged intentional wrongdoing by their employer, the employees’ exclusive remedy is under the Workmen’s Compensation Act; a civil action in tort for the same injuries will not lie. The trial court correctly granted the employer’s preliminary objections and dismissed the employees’ complaint.

Order affirmed.

      . Also named as plaintiffs were the husbands of the plaintiff-employees. Each husband asserted a derivative claim for loss of his wife’s consortium.

      . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 1 et seq.

      . To the extent that Jones v. P.M.A. Insurance Co., 343 Pa.Super. 411, 495 A.2d 203 (1985) suggests a contrary result, it has been overruled sub silentio by the Supreme Court in Poyser.


author: MONTEMURO, Judge: WIEAND, Judge,

text:
    526 A.2d 801
    Carrie E. BEERS, Appellee, v. Garry W. RAUB and R. Keith Raub, Appellants.
    Superior Court of Pennsylvania.
    Argued Nov. 20, 1986.
    Filed June 1, 1987.

      Michael J. Daley, Harrisburg, for appellants.
    Shaubut C. Walz, III, Public Defender, Newport, for appellee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellants, Garry W. Raub and R. Keith Raub, challenge an order of the Court of Common Pleas of Perry County. The order confirmed a viewers’ report that recommended the opening of a private road across the Raubs’ land. Because the trial court has yet to decide the issue of damages, we quash this appeal as interlocutory.

Appellee, Carrie E. Beers, instituted an action against the Raubs by petitioning the court pursuant to the Act of June 13, 1836, P.L. 551, § 11, 36 P.S. § 2731. Ms. Beers sought to open a road along the edge of a field owned by the Raubs. This road would connect Ms. Beers’ allegedly landlocked property to the nearest accessible highway. The court granted the petition and appointed a board of view, which examined the property in question and held an evidentiary hearing. The viewers filed a report in which they recommended that the court open a road 20 feet wide and 693 feet long and that Ms. Beers pay the Raubs $1000 in damages for the taking of approximately one-third of an acre. The Raubs filed an “appeal” to the court of common pleas from this report. The “appeal” challenged the sufficiency of the damage award as well as the viewers’ findings of fact and conclusions of law. By order filed May 19,1986, the court confirmed the report and dismissed the Raubs’ “exceptions.” The court added, however, that the Raubs should list the case for trial within 30 days if they desired “a trial by jury on the issue of damages.” The Raubs filed a timely notice of appeal from the order and at the same time praeciped the prothonotary to list the case for a jury trial on the damages issue.

Our courts have consistently and for many years discouraged multiple appeals in a single case. The fair and efficient administration of justice cannot tolerate “piecemeal determinations and the consequent protraction of litigation.” Fried v. Fried, 509 Pa. 89, 97, 501 A.2d 211, 215 (1985) (quoting Sullivan v. Philadelphia, 378 Pa. 648, 649, 107 A.2d 854, 855 (1954)). See also Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978); Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983). Piecemeal review delays the final resolution of the underlying action, bloats the costs of seeking judicial relief and favors the party who has the resources necessary to wear down with dilatory tactics a less-affluent opponent. See Fried v. Fried, supra, 509 Pa. at 97, 501 A.2d at 215. We therefore withhold appellate review in most cases until the trial court enters an order that “ends the litigation” or “disposes of the entire case.” T.C.R. Realty, Inc. v. Cox, 472 Pa. 331, 372 A.2d 721 (1977). See also Fried v. Fried, supra; Praisner v. Stocker, supra. Of course, this “final judgment rule” has exceptions. Most notably, our supreme court has recognized that an otherwise interlocutory order is final and appealable when “(1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.” Pugar v. Greco, supra, 483 Pa. at 73, 394 A.2d at 545. See also Bell v. Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975). In those rare circumstances when this court can review a case prior to termination of the proceedings below, the need for immediate action to preserve important rights outweighs the policy against “piecemeal determinations.”

In the present case, the Raubs ask us to review the trial court’s May 19, 1986 order even though that order did not dispose of the entire case. The trial court acknowledges in its memorandum opinion that the issue of damages remains unresolved. The Raubs therefore have praeciped the prothonotary of Perry County to list the damages issue for a jury trial. We find little difference, if any, between this case and one in which the court grants a default or partial summary judgment on the issue of liability but reserves for trial the issue of damages. We have consistently held that this kind of judgment is interlocutory and unappealable. See Sims v. Feingold, 329 Pa.Super. 437, 478 A.2d 868 (1984); Praisner v. Stocker, supra; Inselberg v. Employers Mut. Companies, 291 Pa.Super. 406, 435 A.2d 1290 (1981). Moreover, nothing about the May 19 order would justify immediate appellate review. The issues that the Raubs raise on appeal are certainly not “collateral to the main cause of action.” The Raubs challenge the necessity of opening a private road, which, of course, is the core concern of the litigation. In fact, the Raubs requested in their praecipe to the prothonotary that the jury trial on damages await the outcome of this appeal because “issues in the Appeal” would “have an effect on the damages issue.” More importantly, postponement of appellate review in this case will not irreparably deprive a party of an important right. The Raubs will have a full opportunity to vindicate their position on appeal after the jury assesses damages. In the meantime, the status quo will prevail. The Act of June 13, 1836, P.L. 551, § 16, 36 P.S. § 2736, provides that “no road shall be opened before the damages shall be fully paid.” The interests of efficiency and economy thus weigh heavily in favor of quashing this appeal as interlocutory. Even if the slight postponement of review will inconvenience the Raubs, and we fail to see how it will, we cannot assume jurisdiction as a mere accommodation. See Pugar v. Greco, supra.

We recognize that our decision here appears to depart from past practice in this kind of case. In In re Private Road in Monroeville Borough, 204 Pa.Super. 552, 205 A.2d 885 (1964), this court held that the right to a jury trial in the court of common pleas on the issue of damages was a remedy distinct from the right to file exceptions to the viewers’ report in the court of quarter sessions. We heard the appeal from quarter sessions in that case even though the appellant had filed a separate appeal to the court of common pleas on the damages issue. Much has changed, however, since we decided Monroeville Borough.

The Act of 1836 vested the courts of quarter sessions with jurisdiction over private road cases. The quarter sessions judge appointed the board of view and either confirmed or rejected the viewers’ report. See 36 P.S. §§ 2731, 2732. The Act of April 15, 1891, P.L. 17, § 1, 36 P.S. § 2151, allowed any party aggrieved by the viewers’ award of damages the right to appeal the confirmation of that award to the court of common pleas, where a jury would determine the issue “according to the course of the common law.” This right of appeal applied to private road cases by virtue of section 16 of the Act of 1836, 36 P.S. 2736. See Mattei v. Huray, 54 Pa.Commw. 561, 565 n. 5, 422 A.2d 899, 901 n. 5 (1980). Thus, proceedings for opening private roads followed a bifurcated course at the time we decided Monroeville Borough. The aggrieved party could appeal the confirmation of the viewers’ report directly to this court from the court of quarter sessions. At the same time, the party could appeal the damages portion of the report to the court of common pleas for a jury trial. This system of multiple appeals ended in 1969 with the elimination of courts of quarter sessions. The Constitution of 1968 established a unified judicial system in which the courts of common pleas alone assumed duties formerly shared by a confusing array of inferior courts. See R. Woodside, Pennsylvania Constitutional Law 410-11 (1985). Today, the same court that confirms the viewers’ report also conducts the jury trial on damages. A single order can “dispose of the entire case.” The demise of quarter sessions has therefore eliminated the need for piecemeal review of private road cases. We feel that consideration of the entire case in a single appeal comports with the structure of the modern court system and the need for an efficient and fair appellate procedure.

For the above reasons, we quash this appeal as interlocutory.

Appeal quashed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge,

dissenting:

I respectfully dissent. Proceedings to open private roads and proceedings to recover damages therefor continue to be governed by the Act of June 13, 1836, P.L. 551, §§ 11, 12, 16, as amended, 36 P.S. §§ 2731, 2732, 2736. The proceedings to open private roads and the proceedings to recover damages therefor are separate proceedings. Indeed, the Supreme Court has held that the commencement of proceedings for the assessment of damages waives defects in the order confirming the opening of the private road. Weaver’s Road, 45 Pa. 405 (1863). The “bifurcated course” which the two proceedings must take has not been altered by the establishment of a unified judicial system. The proceedings remain separate and distinct in order to enable the trial court to determine all legal issues involved in a proceeding to take one person’s land for the opening of another’s private road. Only when it has been determined finally that a private road is to be opened across the lands of another does it become necessary to estimate damages “in the manner provided in the case of a public road.” Act of June 13, 1836, P.L. 551, § 16, as amended, 36 P.S. § 2736.

I would hold, therefore, that an order determining finally that a private road shall be opened over the land of another is final and appealable. See: In re Private Road in Monroeville Borough, 204 Pa.Super. 552, 205 A.2d 885 (1964); Mattei v. Huray, 54 Pa.Commw. 561, 422 A.2d 899 (1980). Cf. Eminent Domain Code of June 22, 1964, P.L. 84, § 517, 26 P.S. § 1-517. Only if it is finally determined that appellants’ land was properly taken for appellee’s private road will it become necessary to estimate the damages which appellants have sustained as a consequence thereof. I would reach the merits of the instant appeal and render a decision thereon.

      . Although neither party has challenged the jurisdiction of this court, we raise the issue, as we must, sua sponte. See Fried v. Fried, 509 Pa. 89, 501 A.2d 211 (1985).

      . In an accompanying memorandum opinion, the court observed that "the issue of damages survives and will be submitted to a jury upon a listing for trial. Since finality is desirable, said listing must take place within a period of thirty days of the date of final Order in connection with this appeal.” Trial Court Op. of May 13, 1986, at 5. We assume that the “final order” to which the court referred was the order of May 19, 1986 and that the "appeal" to which it referred was the Raubs’ appeal from the viewers’ report to the court of common pleas.

      . This appeal, moreover, falls within none of the narrow categories of "interlocutory appeals as of right” under Pa.R.A.P. 311, and the Raubs have not sought permission to appeal under Pa.R.A.P. 1301-1323.

      . We did not expressly question our jurisdiction in Monroeville Borough. Appellant had argued that he was entitled to a jury trial in the court of quarter sessions on the issue of damages. We concluded that the Act of 1836 afforded no such right and that appellant would have to pursue a jury trial as a separate remedy in the court of common pleas.

      . We recognize that section 517 of the Eminent Domain Code expressly treats confirmation of the viewers’ report as a final order even though the issue of damages remains outstanding. See Act of June 22, 1964, P.L. 84, art. V, § 517, 26 P.S. § 1-517. Although we occasionally have looked to the Eminent Domain Code for guidance in private road cases, see, e.g., In re Private Road in Greene Twp., 343 Pa.Super. 304, 494 A.2d 859 (1985) (expert testimony required on damages issue), we cannot ignore that the statutes governing the opening and vacating of public and private roads are wholly independent of those governing eminent domain, see Pope v. Muth, 332 Pa.Super. 264, 481 A.2d 355 (1984); Mattel v. Huray, supra. The Act of 1836 lacks any provision analogous to section 517 of the Code. Moreover, the obvious public interest at stake in eminent domain cases might justify immediate, piecemeal review, while the interests at stake in private road cases are less widespread.