author: BECK, Judge: ROWLEY, Judge,

text:
    571 A.2d 398
    Dorothy SAMARIN, Executrix of the Estate of Jack G. Samarin, deceased and Dorothy Samarin, in Her own Right, Appellant, v. GAF CORPORATION; Raymark Industries, Inc.; Celotex Corporation, Successor-In-Interest to Philip Carey Manufacturing Company; Philip Carey Corporation; Briggs Manufacturing Company and/or Panacon Corporation; Keene Building Products Corporation; Eagle-Picher Industries, Inc.; Owens-Corning Fiberglas Corporation Owens-Illinois, Inc.; Garlock, Inc.; A-Best Products Company; Pittsburgh Corning Corporation; Armstrong World Industries, Inc.; Nicolet Industries, Inc.; Successor-In-Interest to Keasby & Mattison; H.K. Porter Company, Inc.; Successor-In-Interest to Southern Textile Company, formerly Southern Asbestos Company; Pittsburgh Gage & Supply Company; Gateway Industrial Supply and Abex Corporation, Appellees. Robert L. CARTWRIGHT and Arglye Cartwright, his Wife, Appellants, v. GAF CORPORATION; Raymark Industries, Inc.; Celotex Corporation, Successor-In-Interest to Philip Carey Manufacturing Company; Philip Carey Corporation; Briggs Manufacturing Company and/or Panacon Corporation; Keene Building Products Corporation; Owens-Corning Fiberglas Corporation Owens-Illinois, Inc.; Garlock, Inc.; A-Best Products Company; Pittsburgh Corning Corporation; Armstrong World Industries, Inc.; Nicolet Industries, Inc.; Successor-In-Interest to Keasby & Mattison; H.K. Porter Company, Inc.; Successor-In-Interest to Southern Textile Company, formerly Southern Asbestos Company; Pittsburgh Gage & Supply Company; Gateway Industrial Supply and Abex Corporation, Appellees. Marcia BYERS, D.B.N., C.T.A., Administratrix of the Estate of Early Byers, deceased and John E. Byers, Marcia E. Byers, and Mark A. Byers, Executors of the Estate of Mary Byers, deceased, Appellants, v. GAF CORPORATION in its own Right as Successor-In-Interest to the Ruberoid Company; Raymark Industries, Inc., in its own Right and Successor-In-Right to Raybestos-Manhattan, Inc.; Celotex Corporation in its own Right and Successor-In-Interest to the Philip Carey Manufacturing Company; Philip Carey Corporation; Briggs Manufacturing Company and/or Panacon Corporation; Keene Corporation in its own Right and as Successor-In-Interest to Baldwin Hill Co.; Baldwin-Ehret-Hill, Inc.; Ehret Magnesia Manufacturing Company and to the Insulation Division of Mundet Cork Company, to Mundet Company and to Keene Building Products Corporation Owens-Corning Fiberglas Corporation Owens-Illinois, Inc.; Garlock, Inc.; A-Best Products Company; Pittsburgh Corning Corporation; Armstrong World Industries, Inc., in its own Right and as Successor-In-Interest to Armstrong Cork Co., and Armstrong Contracting and Supply Co.; Nicolet Industries, Inc., in its own Right and Successor-In-Interest to Keasby & Mattison, Co.; H.K. Porter Company, Inc., in its own Right as Successor-In-Interest to Southern Textile Company, formerly Southern Asbestos Company; the Gage Company, formerly Pittsburgh Gage & Supply Company; Gateway Industrial Supply and Abex Corporation, Friction Products Division, Appellees.
    Superior Court of Pennsylvania.
    Argued April 12, 1989.
    Filed Sept. 28, 1989.
    Reargument Denied March 22, 1990.

      Theodore Goldberg, Pittsburgh, for Samarin, appellant (at 1247); Cartwright, appellants (at 1345); and Byers, appellants (at 1346).
    Miles A. Kirshner, Pittsburgh, for Eagle-Picher, appellee (at 1247); participating party (at 1345 and 1346). Concetta Silvaggio, Pittsburgh, for A-Best, appellee (at 1247, 1345 and 1346).
    Dale K. Forsythe, Pittsburgh, for Gateway Industrials, appellee, (at 1247, 1345 and 1346).
    Thomas J. Michael, Pittsburgh, for Owens-Corning, appellee (at 1247, 1345 and 1346).
    Thomas K. Lammert, Jr., Pittsburgh, for GAF Corporation, appellee (at 1247, 1345 and 1346).
    L. Jane Charlton, Pittsburgh, for Celotex, appellee, (at 1247, 1345 and 1346).
    Martin Greitzer, Philadelphia, amicus curiae.
    Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The instant matter before this court involves the consolidated appeals of three sets of plaintiffs/appellants in asbestos related actions. Summary judgment was granted to multiple defendants in all three cases. We will first address the issues central to the resolution of all three appeals and then apply our findings to the facts of each particular case.

The general factual and procedural background of the three actions at issue are similar. Appellant Cartwright, Jack Samarin, the deceased husband of appellant Dorothy Samarin, and Earl Byers, the deceased father of appellants Marcia Byers, John Byers and Mark Byers worked for Babcock & Wilcox Corporation (B & W) in Beaver County. They worked within various of B & W’s manufacturing facilities. B & W is a huge manufacturing business with a number of plants and buildings housing its various operations. In the manufacturing buildings there are procedures that call for operations at high temperatures. Appellants allege that a number of asbestos laden products were used throughout B & W’s facilities at locations where temperatures reached great heights. Though neither Cartwright, Byers or Samarin worked with asbestos directly, they were exposed to asbestos dust released from the surrounding asbestos products used to control temperatures within B & W’s facilities.

After taking the depositions of appellants, appellees in these cases filed motions for summary judgment claiming that the appellants could not establish that appellants or their decedents were exposed to the particular products of appellees. Appellants responded with affidavits and depositions of various workers at B & W regarding the use by appellants of asbestos products in the locations where appellants or their decedents worked. In addition, in answers to interrogatories appellants included lists of names of persons who would testify that the appellants or their decedents were exposed to certain asbestos products manufactured by appellees. Appellees argue that appellants’ affidavits, depositions and answers to interrogatories do not provide evidence to show the necessary connection between their products and any alleged injury sufficient to establish liability and in some cases do not even provide sufficient evidence to establish that the products that allegedly caused the harm contained asbestos. The trial courts concluded there was no practical need for oral argument in the numerous B & W asbestos cases and granted summary judgment in favor of appellees.

The following issues are raised on appeal: (1) whether answers to interrogatories listing the names of persons who could identify products causing harm to appellants or their decedents is sufficient to defeat a motion for summary judgment; (2) whether tradesmen may testify as to whether a product contains asbestos based on the fact that the product can withstand high temperatures and/or that other tradesmen may have told them that the products contained asbestos; (3) whether the totality of the evidence offered in appellants’ response to the motions for summary judgment meets the strict requirements set forth by this court in Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 544 A.2d 50 (1988); and (4) whether the trial court erred in foregoing oral argument.

We begin by reviewing the standards governing summary judgment and then address those questions common to all three appeals before looking to the specific facts of each case where necessary.

A motion for summary judgment may properly be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b). ____ In passing upon a motion for summary judgment the court must examine the record in the light most favorable to the nonmoving party____ It is not part of the court’s function to decide issues of fact but solely to determine whether there is an issue of fact to be tried---- Any doubt must be resolved against the moving party____ The court, in ruling on a motion for summary judgment, must ignore controverted facts contained in the pleadings____ The court must restrict its review to the material authorized by Rule 1035 to be filed in support of and in opposition to the motion for summary judgment and only those allegations in the pleadings that are uncontroverted.

Washington Federal Savings and Loan Association v. Stein, 357 Pa.Super. 286, 288, 515 A.2d 980, 981 (1986) (citations omitted).

Once a motion for summary judgment is made and is properly supported, however, the non-moving party may not simply rest upon the mere allegations or denials in his or her pleadings. Pa.R.C.P. 1035(d). In such a case, Rule 1035(d) requires that “by affidavits or as otherwise provided in this rule, [the non-movant] must set forth specific facts showing that there is a genuine issue for trial.” The purpose of Rule 1035(d) “ ‘is to assure that the motion for summary judgment may “pierce the pleading” and to require the opposing party to disclose the facts of his claim or defense.’ ” Roland v. Kravco, Inc., 355 Pa.Super. 493, 501, 513 A.2d 1029, 1034 (1986) (quoting Goodrich Amran 2nd § 1035(d):5 at 460 (1976) (emphasis added by Roland court), appeal denied, 517 Pa. 599, 535 A.2d 1058 (1987). Thus, once the motion for summary judgment has been properly supported, the burden is upon the non-movant to disclose evidence that is the basis for his or her argument resisting summary judgment. Id., 355 Pa.Superior Ct. at 501, 513 A.2d at 1034.

The Roland court made clear that where there are witnesses who could allegedly state facts that would support the non-movant’s claim, but have not yet done so, it is the non-movant’s burden to establish those facts on the record to show that there exists a genuine issue of material fact. Id. The court specifically rejected the notion that it was the movant’s burden to obtain statements from witnesses named by the non-movant whose testimony would allegedly support the non-movant’s case once given. Id. As the Roland court observed, “[o]ur rules of civil procedure are designed to eliminate the poker game aspect of litigation and compel the players to put their cards face up on the table before the trial begins.” Id.; see also Paparelli v. GAF Corporation, 379 Pa.Super. 62, 549 A.2d 597 (1988).

Our first inquiry is whether answers to interrogatories listing the names of persons who could identify products causing harm to appellants or their decedents is sufficient to defeat a motion for summary judgment. In all three of the instant cases, appellants received interrogatories asking for the names of any persons who could given information on appellants’ or their decedents’ exposure to asbestos. Samarin supplied a list with twenty-five names, Byers a list with one hundred and thirty-three names and Cartwright a list with one hundred and thirty-two names; with one addition, this list being identical to Byers’. The lists were structured to provide a person’s name, address, the years worked at B & W, in some cases the jobs performed for B & W, and a list of names of asbestos manufacturers and suppliers that each person could apparently identify as having supplied asbestos containing products to B & W. These responses to the interrogatories do not include any information on the relationship of any of the persons listed to appellants or their decedents or the relationship of the listed asbestos containing products to appellants or their decedents. Under Roland v. Kravco Inc., supra, it is appellants’ burden to be more specific and to reveal the relevant facts that these witnesses would testify to. From these facts, the trier of fact should be able to deduce that the listed person had some knowledge of the appellant’s work place and some knowledge that appellants were exposed to appellees’ products which contained some asbestos. It is not appellees’ burden to depose each potential witness for the purpose of showing that they are not able to establish a relationship between appellants or their decedents and appellees’ products. Not having established this relationship themselves, appellants leave themselves exposed to summary judgment in favor of appellees. Ro land v. Kravco Inc., supra, 355 Pa.Super. at 501, 513 A.2d at 1034.

Our next inquiry is whether tradesmen may testify as to whether a product contains asbestos based on the fact that the product can withstand high temperatures and/or that other tradesmen may have told them that the product contained asbestos. In addition to requiring a showing of specific facts, Rule 1035(d) requires that the evidence offered to support or defeat the motion be in the nature of admissible evidence. Specifically, Rule 1035(d) provides in part that “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the signer is competent to testify to the matters stated therein.” Thus, a motion for summary judgment cannot be supported or defeated by statements that include inadmissible hearsay evidence. See Isaacson v. Mobile Propane Corporation, 315 Pa.Super. 42, 461 A.2d 625 (1983).

All three sets of appellants attempt to defeat the motions for summary judgment with affidavits or depositions of tradesmen or co-workers regarding the presence of asbestos containing products in the appellants’ or their decedents’ workplaces. The first set of answers we analyze contain statements that the person listed knew that the products at issue contained asbestos because they had been told so by others. Such statements are clearly inadmissible hearsay as they are out-of-court declarations offered to show the truth of the matter contained in the declaration. Reimer v. Tien, 356 Pa.Super. 192, 202, 514 A.2d 566, 571 (1986). Thus, the alleged statements of other tradesmen that certain products contained asbestos cannot be considered in ruling on the motion for summary judgment. Therefore, in order to defeat appellees’ motion for summary judgment appellants must provide other sources of evidence to establish that the products in issue contained asbestos.

The next set of answers we analyze contain statements that the person listed knew that the products at issue contained asbestos because they could withstand high temperatures. “On a motion for summary judgment, the record must be viewed in the light most favorable to the non-moving party, who must be given the benefit of all reasonable inferences.” Mscisz v. Russell, 338 Pa.Super. 38, 41, 487 A.2d 839, 841 (1984), (appeal denied) (emphasis added); see also Helinek v. Helinek, 337 Pa.Super. 497, 487 A.2d 369 (1985), (appeal denied) (nonmoving party gets benefit of all reasonable inferences that may be drawn from the facts). No party disputes the fact that portions of the B & W facility were subject to high temperatures and that heat resistant materials were used to construct or insulate these sections of the facilities. The tradesmen supplying affidavits or depositions to appellants inferred from this fact that the material must be asbestos. Certainly, one inference that may be drawn from these facts is that the heat resistant products contained the heat resistant substance asbestos. However, without more facts, it is not reasonable for the trial court to infer that these products must have contained asbestos because they were heat resistant. The same facts could lead to the inference that the heat resistant products contained other heat resistant materials; therefore there was insufficient foundation for a jury to infer by a preponderance of the evidence that the heat resistant products used at B & W contained asbestos.

Next, we review whether the totality of the evidence offered in appellants’ response to the motion for summary judgment meets the strict requirements as set forth in Eckenrod v. GAF Corporation, 375 Pa.Super. 187, 191-92, 544 A.2d 50, 52-53, allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988), sub nom. Petition of Pittsburgh Gage Co., 520 Pa. 607, 553 A.2d 969 (1988). The Eckenrod panel addressed the burden that a non-movant must meet to survive a summary judgment motion in the context of a case where the alleged harm is from exposure to asbestos:

In order for liability to attach in a products liability action, plaintiff must establish that the injuries were caused by a product of the particular manufacturer or supplier. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). Additionally, in order for a plaintiff to defeat a motion for summary judgment, a plaintiff must present evidence to show that he inhaled asbestos fibers shed by the specific manufacturer’s product. Wible v. Keene Corporation, No. 86-4451 Slip. op. (E.D.Pa. August 19, 1987) [available on WESTLAW, 1987 WL 15833]; Anastasi v. Pacor, Inc., NO. 6251 (C.P. Phila. Co., March 8, 1983), aff'd, 349 Pa.Super. 610, 503 A.2d 44 (1985). Therefore, a plaintiff must establish more than the presence of asbestos in the workplace; he must prove that he worked in the vicinity of the product’s use. Pongrac v. Consolidated Rail Corp., 632 F.Supp. 126 (E.D.Pa.1985). Summary judgment is proper when the plaintiff has failed to establish that the defendants’ products were the cause of plaintiff’s injury. See Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983).
Whether direct or circumstantial evidence is relied upon, our inquiry, under a motion for summary judgment, must be whether plaintiff has pointed to sufficient material facts in the record to indicate that there is a genuine issue of material fact as to the causation of decedent’s disease by the product of each particular defendant. Schmidt v. Johns-Manville Corp., No. 80-3339 Slip. op. (D.Md. November 30, 1982). Whether a plaintiff could successfully get to the jury or defeat a motion for summary judgment by showing circumstantial evidence depends upon the frequency of the use of the product and the regularity of plaintiffs employment in proximity thereto. Id.

The Eckenrod court upheld a grant of summary judgment where there was no evidence to show the regularity or nature of the decedent’s contact with asbestos and no evidence to show that Mr. Eckenrod worked with asbestos products supplied or manufactured by any of the named defendants. Id. 375 Pa.Super. at 192, 544 A.2d at 53. None of the affidavits in that case were sufficient to establish more than Mr. Eckenrod’s occasional presence at one particular location and though indicating exposure to asbestos, none clarified the brand of the product used or the nature and length of the exposure, including Mr. Eckenrod’s proximity thereto. Id., 375 Pa.Superior Ct. at 191, 544 A.2d at 52. Therefore, the plaintiff in that case could not establish how frequently any particular product was used, where it was used, and whether it was used often in a location where Mr. Eckenrod worked on a regular basis.

Further, though there was some evidence that appellees’ products were used by B & W, the court stated that “[t]he mere fact that appellees’ asbestos products came into the facility does not show that the decedent ever breathed these specific asbestos products or that he worked where these asbestos products were delivered.” Id., 375 Pa.Superior Ct. at 192, 544 A.2d at 53 (citations omitted). The court indicated, however, that testimony that appellees’ products were present in the furnace area in which Mr. Eckenrod worked would provide a reasonable inference that he was exposed to the particular appellee’s asbestos product. Id. Questions of the frequency and nature of that exposure would still remain of course.

We now apply the above stated guidelines to the facts of the three cases before us.

Samarin

Jack Samarin worked in the Cold Draw Department of B & W’s Main Plant from 1964 to 1982. Samarin worked as a sandblaster, crane follower and laborer. Mr. Samarin died in 1984. The present action was brought by his wife Dorothy Samarin against sixteen defendants claiming that they manufactured and/or supplied asbestos products which caused the death of her husband. Twelve of the defendants were granted summary judgment. Mrs. Samarin appeals as to six of those defendants: GAF Corporation, Celotex Corporation (as successor in interest to Philip Carey), Owens-Corning Fiberglas Corporation, A-Best Products Company, Raymark Industries and Eagle-Picher Industries. These companies filed motions for summary judgment claiming that none of their products could be identified as causing harm to Jack Samarin. Appellant responded with affidavits, depositions, and answers to interrogatories to establish the connection between appellees’ products and her husband.

The affidavit of John Shotton indicated that he worked with Samarin at Cold Draw for all of Samarins’ eighteen years. Shotton stated that Samarin was exposed to and breathed asbestos dust from insulated pipecovering on steam lines, cloth hung on furnace doors and bricks used in the five Cold Draw furnaces. Shotton identified Owens-Corning Kaylo as the product used as the pipe insulation but did not know who produced the cloth or bricks. In all three cases he said he knew the products contained asbestos because they could withstand high temperatures and tradesmen referred to the products as asbestos products. As stated supra, these two statements cannot be used to support appellant’s assertion that the products were asbestos. Thus, appellant Samarin must provide some other evidence to establish that the Owens-Corning pipecover and any of the other products seen by Shotton contained asbestos.

Appellant contends that in her response to interrogatories asking for the names of any person who had information of Jack Samarin’s exposure to asbestos products, she included the names of ten people who could identify Owens-Coming Kaylo asbestos containing pipecovering. As discussed supra, however, this list did not provide any information on the relationship of these people to Jack Samarin and whether or not they could place any particular asbestos product in the vicinity of Jack Samarin and show the frequency of his exposure to any particular product. Thus, even if they could testify that the Kaylo product contained asbestos, the answers to the interrogatories contain no information which ties these people to the Cold Draw facility in order to show that the Kaylo product used near and breathed by Jack Samarin contained asbestos. Therefore, it is not possible to establish that Jack Samarin was exposed to Owens-Corning products containing asbestos from the record that appellant has created for this court.

As with Owens-Coming, the Eagle-Picher and Ray-mark products at issue were identified as containing asbestos based upon the observation that they could withstand high temperatures. This is the only evidence, along with the blanket answers to interrogatories, that appellants offer to establish that these products were asbestos. Thus, we must also affirm the summary judgment motion as to these two appellees.

Appellant’s effort against A-Best is supported by the deposition testimony of James Capots and the affidavit of John Shotton. Capots testified that he was in charge of purchasing certain asbestos containing products from 1966 until the present, i.e. July of 1988 when the deposition was given. He worked in B & W’s purchasing department. He purchased asbestos products from 1966 to 1970 or 1971. He indicated that among others, he purchased asbestos products from A-Best. This included the purchase of asbestos cloth. Capots’ testimony indicates that he also purchased cloth from the Gage Company and from Gateway Industrial Supply. Shotton’s affidavit indicates that Jack Samarin was exposed to a heat resistant cloth product but never names the brand. From these facts we can conclude that Jack Samarin was exposed to cloth and that the cloth he was exposed to may have been supplied by A-Best or some other company. We have no way of telling who supplied the cloth that Jack Samarin was actually exposed too. Thus, appellant cannot establish that Jack Samarin was exposed to any A-Best cloth in the Cold Draw facility based on the evidence in Capots deposition and Shotton’s affidavit.

Appellant also claims that A-Best supplied asbestos gloves at B & W that were worn by Jack Samarin. A-Best admits in its motion for summary judgment that A-Best sold gloves made of asbestos cloth to B & W. A-Best claims the manufacturer of the gloves was Raymark. Ca-pots deposition indicates that he also purchased gloves for B & W from the now defunct Penn Valley Safeguards. Appellant offers no evidence to establish what brand of gloves appellant actually wore.

In any event, appellant offers no evidence to establish that Samarin wore any sort of gloves much less that he wore the specific brand supplied by A-Best. Appellant claims there is a genuine issue of fact as to whether Jack Samarin wore gloves based upon the following answers given in her deposition:

[Attorney]: [D]id he ever talk about any special clothing he might have worn for any particular job?
[Mrs. Samarin]: No.
[Attorney]: Or any kind of special protection he might have had to have besides hat and shoes?
[Mrs. Samarin]: No.
[Attorney]: When he was a laborer he never talked about putting on anything special for working in a particular place?
[Mrs. Samarin]: They always wear helmets and that, you know.

We find it impossible to create from these answers any genuine factual dispute that Jack Samarin wore gloves. Even if we would do so, there is still nothing of record to connect him to gloves supplied by A-Best. The mere fact that their gloves were supplied to B & W and present in its enormous facilities cannot be used to establish the fact that Jack Samarin used those gloves or breathed any dust that may have come off of them. Eckenrod v. GAF Corp., supra. We thus affirm the grant of summary judgment in favor of A-Best.

Appellant’s claims against GAF and Celotex are based chiefly on the affidavits of William Betke and John Shotten. Betke was a pipefitter for B & W from 1952 to 1983. From 1963 to 1983, he worked intermittently, “off and on” as he put it, throughout the Wallace Run Plant of B & W, including but not limited to its Blooming Mill, Soaking Pits, Scarfing Area and Bar Mill subdivisions. During that same period he worked intermittently at the Main Tube Plant of B & W including but not limited to its Hot Mill, Hot Finish, South Mill and Cold Draw subdivisions. During the same period he also worked at the Koppel section of B & W doing work that included Special Metals, Weldings and Fittings, Bar Mill, Blooming Mill, Soaking Pits, Melt Shop and Extruded Shapes. He also worked intermittently at the East Works section of B & W including but not limited to its pipe shop, tube reducing, pickle house and extrusion mill.

Betke stated that there were waterlines and steamlines in every one of these areas that were at floor level, parallel to the walls and overhead. His chief job was to install new pipe wherever needed. He observed that this installation caused the pipecovering to come loose and cast dust into the air that he and others in the area were forced to breath. On occasion where he was required to cut and install pipe covering the same result ensued. Likewise, he observed that the daily operation of overhead cranes caused the release of dust from the pipecovering that workers in the area were forced to breath. He stated that two of the manufacturers of the pipecovering were GAF/Ruberoid and Philip Carey (Celotex) and that he knew the material used contained asbestos because it could resist high temperatures and because the boxes containing those two product had the word “asbestos” printed on them.

John Shotton’s affidavit stated that he and Jack Samarin were forced to breathe dust from pipecovering due to circumstances similar to those described in the Betke affidavit. However, Shotton states that the pipecovering he and Jack Samarin were forced to breathe dust from was Owens-Corning Kaylo.

We first observe that Shotton’s affidavit indicates that the only pipecovering used in Cold Draw where he and Jack Samarin worked was Owens-Corning Kaylo. Betke’s affidavit simply says that in the numerous areas he worked in, two of the products used were from GAF and Celotex. Thus, we conclude that there is no issue as to Jack Samarin’s exposure to any GAF or Celotex pipecovering.

Even if we concluded that it was possible to find that Betke’s affidavit could be read to say that GAF and Celotex pipecovering were used in Cold Draw, we would still affirm the summary judgment in these parties’ favor. First, Betke does not place these particular products in any portion of Cold Draw so that we can conclude that Jack Samarin was near any of the pipes covered with the GAF or Celotex insulation. Second, Betke does not establish with what frequency these two products were placed in Cold Draw. He only states that they were used throughout all of B & W’s facilities. As stated above, the mere presence of a product in the facility does not establish that any particular person breathed it. Eckenrod v. GAF, supra. For all of these reasons we affirm the grants of summary judgment to GAF and Celotex.

Byers

Earl Byers was employed at B & W’s Wallace Run Mill from 1946 to 1984. Byers was a member of the Fuel Oil Department and worked around the soaking pits and furnaces in that department as a soaking pit attendant, temperature observer and furnace tender. During that time Byers also worked in the hot finish of the Main Plant and the extrusion mill of the East Works Mill of B & W in Beaver Falls. The record indicates that Byers worked in the Steel Mill at some point after October of 1982. Earl Byers and his wife, Mary Byers, filed suit against a number of parties claiming that they supplied asbestos products to B & W that contributed to Earl Byers developing lung cancer. Mr. Byers died in 1985 and Mrs. Byers in 1987. The current appellants are the Byers children who are representing the estates of their parents in this action. Appellants are appealing the grant of summary judgment to appellees GAF Corporation, Armstrong World Industries, Celotex Corporation, Owens Corning Fiberglas Corporation, H.K. Porter Company, Eagle-Picher Industries and Gateway Industrial Supply.

Appellants present the affidavit of Theron Gorrell to establish the whereabouts of Earl Byers in relation to the asbestos products at issue. Gorrell worked as a quality controller in the oil department throughout all of the mills at B & W. He knew that Byers worked in the soaking pits and furnaces at the Wallace Run Mill. He stated that Byers would have been exposed to asbestos dust created by the various tasks that involved maintenance and repair of the steampipes and the furnaces at Wallace Run that was generated from the various asbestos products used to insulate and construct the pipes and furnaces.

By affidavit, Willard Marx stated that he worked as a pipefitter from 1960 to 1970 at the Wallace Run Plant. He stated that asbestos containing pipe insulation, block, gasket material, rope packing, string packing, sheet packing, square packing, and asbestos blankets were used by him and other pipecoverers when making repairs to the steam line systems which went throughout the plant, including its soaking pits. Affiant stated that through the cutting and application of these products as well as through aging, dust would be released into the air. Marx states that workers one to ten feet alongside the steamlines and fifteen to thirty feet below would be forced to breathe this dust. Marx further stated that the lines were repaired every one or two months and major repairs were done annually as needed.

Marx stated that some of the string packing used was manufactured by Celotex. He knew this because the boxes were so labelled. He further stated that some of the pipe insulation and block used was manufactured by Armstrong. He knew this because the name “Armstrong” was likewise on the boxes of material. Finally, he also stated that some of the pipe insulation and block used was Owens-Corning Kaylo because the boxes that contained the material had the word “Kaylo” on them. Marx knew these products contained asbestos because they were applied to extremely hot steam lines and because he was specifically required to apply asbestos products that could stand up under extreme heat.

Again, the problem with the evidence offered by appellant is that it lacks sufficient specificity to show that Earl Byers was regularly exposed to these products. We do not know what furnaces and pits Earl Byers worked in and whether there was Kaylo insulation in that pit, Armstrong insulation, Raymark insulation or any particular insulation. Appellants leave us with enough facts only for a guessing game. They seem to ask us to find that it is probable that Earl Byers worked near each of these products and breathed asbestos dust released from each of these products on a regular basis at some point in the ten year period identified by Marx. However, Eckenrod makes clear that we cannot enter such a guessing game. We therefore affirm the grant of summary judgment on these claims.

In the cases of Eagle-Picher and H.K. Porter there is no evidence that the products at issue contained asbestos other than statements that the products could resist high temperatures and that there were lists of people in answers to interrogatories who could identify those products. We affirm the grant of summary judgment as to these two defendants for the same reasons we stated supra when faced with the same circumstances. We likewise affirm the grant of summary judgment as to GAF and Celotex for reasons stated in our determination of Jack Samarin’s claims. The Byers rely on the same affidavit of William Betke as did appellant Samarin to establish exposure to GAF and Philip Carey (Celotex) pipecovering. Betke indicated that GAF and Celotex were only two of the manufacturers of pipecovering and there is no evidence to place Celotex or GAF pipecovering in regular proximity to Earl Byers.

Finally, there is no merit to appellants efforts to oppose Gateway. William Young, a worker in various capacities in B & W's storeroom, testified that B & W purchased asbestos cloth from Gateway. The deposition of James Capots indicated the same. However, neither of the affidavits offered by appellants to support their argument against Gateway indicate that Earl Byers was exposed to asbestos dust originating in asbestos cloth. Appellants claim that Gateway supplied Raybestos Manhattan cloth and that the affidavit of Willard Marx can be used to establish that Byers was exposed to Raybestos Manhattan cloth. However, the Marx affidavit only speaks of Raybestos Manhattan packing string and blankets and does not speak of asbestos cloth. Moreover, the same problem of proving that Earl Byers worked in regular proximity to this product remains. Thus, we affirm the grant of summary judgment in favor of Gateway.

Cartwright

Robert Cartwright worked at B & W from 1960 to 1984. From 1960 to 1983 he worked at Hot Mill in the Main Plant at Beaver Falls. He worked as a crane operator, as a millwright for one to two years in the mid 1960’s and a a checker in the early 1960’s. In his deposition, Cartwright indicated that he worked as a crane operator from 1960-1978 and also in the labor pool during that time. The labor pool work was once a day every couple of months. He also stated that he worked at the Cold Finish at the Ambridge facility in the same capacities. Mr. Cartwright was diagnosed as having asbestosis and he and his wife brought claims against a number of defendants asserting that he suffered harm due to exposure to asbestos from products they manufactured or supplied. In the instant action, appellants appeal the grant of summary judgments to Owens-Corning Fiberglas Corporation, H.K. Porter Company, GAF Corporation, Celotex Corporation, Armstrong World Industries, Eagle-Picher Industries, Gateway Industrial Supplies, and A-Best Products.

We affirm the grant of summary judgment as to EaglePicher, Armstrong, Owens-Corning, and H.K. Porter as the only evidence offered by appellants to establish that the products at issue contained asbestos are affidavits stating that the products were resistant to high temperatures and/or other tradesmen stated they were asbestos, and the presence of lists of names in answer to interrogatories. See discussion supra.

We affirm the grant of summary judgment as to A-Best, Gateway, GAF and Celotex because these appellants, like the previous appellants, have failed to adduce evidence that would establish regular exposure of Cartwright to the products in question. As with the other appellants, the Cartwrights rely upon the depositions of Capots and Young and the affidavit of Betke to establish the necessary connection between A-Best, Gateway, GAF and Celotex with the injured appellant. Their statements establish a general or possible presence of these products but do not provide a sufficient nexus of frequent exposure in regular proximity to the plaintiff. Likewise the additional deposition of Terry Bingle does nothing more to establish a specific nexus between Cartwright’s harm and A-Best and Gateway products than do those of Young or Capots.

We address one last matter in this case. Appellee Owens-Corning has filed a motion for attorney's fees against appellants based on the allegedly frivolous nature of appellants’ effort to supplement the record. We cannot address Owens-Coming’s claim at this point as it has been prematurely raised. See Pa.R.A.P. 2744, 2751. We observe, however, that on the record and arguments now present before us, we would be disinclined to grant an award for attorney’s fees or costs against appellants.

In sum, we affirm all three orders granting judgment in favor of appellees.

ROWLEY, J., files a concurring statement.

ROWLEY, Judge,

concurring:

I join in all but two provisions of the majority’s thorough and well-reasoned Opinion. The first statement in which I do not join appears in footnote 6 (majority op. at 360), where the majority, after noting that “we do not follow the trial courts’ apparent rulings” concerning the admissibility of the testimony of tradesmen, proceeds to enumerate the circumstances under which “we would find the evidence sufficient____” The second statement is the observation that while Owens-Corning’s claim for attorney’s fees has been prematurely raised, “we would be disinclined to grant an award for attorney’s fees or costs against appellants” (majority op. at 362). As we are not required to resolve either of these issues at this point, I would postpone their resolution until such time as they are properly before this Court.

      . The means for supporting a motion for summary judgment are set forth in Pa.R.C.P. 1035(a):
      After the pleadings are closed, but within such time as not to delay trial, any party may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.

      . Pa.R.C.P. 1035(d) provides in part:
      When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
      We also note here that Pa.R.C.P. 1035(e) provides that where by affidavit the non-movant states that he or she is unable to respond with essential facts to the motion for summary judgment, "the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” In this case, the appellants made no motion to the trial courts indicating that facts essential to their arguments opposing summary judgment were not present before those courts.

      . In a number of affidavits, the only statements made to establish the affiant’s knowledge that a product contained asbestos was that it could resist high temperatures and/or other tradesmen told them that the products contained asbestos. There is no other discussion about the tradesmen’s experience with asbestos and their ability to recognize asbestos containing products by their appearance based on past use. Cf. Aetna Casualty & Surety Company v. Jennusa, 469 S.W.2d 423 (Tex.Civ.App.1971). We do not reach the issue today of whether a layman who works extensively with asbestos products is qualified to testify as to the presence of asbestos in a product.

      . Appellants also argue that they were prejudiced by the trial court’s decision not to hear oral arguments before deciding on the motions for summary judgment. There is nothing in the record to indicate that any of appellants raised an argument with their respective trial judges regarding those judges' decisions not to hear oral argument. Thus, appellants have waived this issue. Vaskie v. West American

        Insurance Company, 383 Pa.Super. 76, n. 1, 556 A.2d 436, 38 n. 1, 556 A.2d 436, 38 n. 1 (1989). Moreover, all appellants have further waived this claim by failing to include it in their Statement of Questions Involved portion of their brief. Id.; Pa.R.A.P. 2116(a).

      . Appellant argues that the existence of asbestos in Owens-Coming Kaylo pipecovering has been established beyond peradventure because Owens-Corning has answered interrogatories in other cases acknowledging that the Kaylo line of products sold between 1953 and 1972 contained asbestos. Appellant’s Brief at 22. Unfortunately, and it is unfortunate if appellant’s assertion is true, plaintiff has not ■ produced any evidence in the record to support this assertion. This court cannot consider anything that is not part of the record. Spain v. Vicente, 315 Pa.Super. 135, 144 n. 3, 461 A.2d 833, 838 n. 3 (1983) (citation omitted).

      . We note here that we do not follow the trial courts’ apparent rulings that the testimony of tradesmen who worked with asbestos can never be used in a case unless those tradesmen actually knew they were working near a particular plaintiff. This rule would place an unreasonable burden on those who work in gargantuan facilities and are exposed to asbestos but were not themselves asbestos workers. These people would have no means of knowing what asbestos products they were exposed to and the asbestos workers would have no reason to associate with laborers at other tasks.
      Thus, e.g., we would find the evidence sufficient if a laborer who has been exposed to asbestos could establish the exact location in which he worked, the time period he worked there, the time of day he worked there, the location of an asbestos worker and the product he installed, removed or repaired, the proximity of that location to the location where the plaintiff worked and the time period and time of day each worked at his respective location. If a worker established that he worked in the south corner of furnace A and that a pipecoverer worked fifteen feet above the ground at the south corner of furnace A at the same time every day for ten years, there would be no reason to require that the pipecoverer know that the worker was directly below him all that time.


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    571 A.2d 410
    COMMONWEALTH of Pennsylvania v. Joan ANDREWS, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 13, 1989.
    Filed Feb. 27, 1990.

      John L. Doherty, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before WIEAND, TAMILIA and HESTER, JJ.
   WIEAND, Judge.

We are asked in this appeal to determine whether a delay of two years and eleven months between conviction and imposition of sentence is a denial of appellant’s right to a speedy trial under the Sixth Amendment to the United States Constitution or a violation of due process under the Fourteenth Amendment of the United States Constitution. After careful review and consideration of the circumstances present in this case, we hold that appellant’s speedy trial and due process rights were not violated. Therefore, we affirm the judgment of sentence.

Joan Andrews was arrested on May 10, 1985, during a pro-life demonstration at the Women's Health Services Clinic in downtown Pittsburgh. She was tried by jury and, on November 12, 1985, was found guilty of criminal and defiant trespass. After the verdict had been announced, Andrews asked the trial court if she could be immediately sentenced. She told the court that if she were released on bond she would continue in her efforts to prevent the performance of abortions and stated that the only way the court could force her to obey the law would be to impose upon her the maximum term of imprisonment. The trial court declined Andrews’ request for immediate sentencing and deferred sentencing so that post-trial motions could be filed and a pre-sentence investigation made. Bail was set at $5,000, which Andrews refused to post. Subsequently, Andrews filed a motion requesting a reduction of bail and, after consideration, the trial court released her on her own recognizance upon the express condition that she “not trespass upon the premises of any facility which performs abortions between the date of her release and any hearing on post-verdict motions.”

After being released on bond and while post-trial motions were pending, Andrews was arrested in Florida for conduct occurring during another anti-abortion protest. She was subsequently convicted in Florida of burglary, resisting arrest and criminal mischief and was sentenced to prison for five years for burglary and to a concurrent one year term of imprisonment for resisting arrest and criminal mischief. Because she was incarcerated in Florida, Andrews did not appear for a hearing on post-trial motions scheduled for June 5, 1986, in Allegheny County. The Assistant District Attorney informed the trial court of Andrews’ incarceration in Florida; whereupon, the court revoked her recognizance bond and issued a warrant for her arrest. Andrews’ post-trial motions were thereafter denied, and sentencing was scheduled for July 7, 1986. During June, 1986, the Assistant District Attorney made inquiries of the Florida authorities regarding Andrews’ availability for sentencing in Pennsylvania and was informed that he would be notified when Andrews was available. When the scheduled date of Andrews’ sentencing arrived, she was again unable to appear because of her incarceration in Florida.

From the initial date of Andrews’ scheduled sentencing on July 7, 1986, until April, 1988, there was no activity in Pennsylvania. During this period, the Commonwealth made no further effort to return Andrews from Florida, and she did not contact the trial court to arrange a date for sentencing. In April, 1988, Andrews’ attorney wrote a letter to the trial court requesting that Andrews be returned from Florida so that sentence could be imposed. Thereafter, a status conference was held on May 20, 1988, and sentencing was scheduled for August 5,1988. In order to effect Andrews’ return from Florida for sentencing, the Assistant District Attorney, on June 28, 1988, sent to Florida authorities a request for temporary custody of Andrews pursuant to Article IV(a) of the Interstate Agreement on Detainers Act, 42 Pa.C.S. § 9101. Formal extradition proceedings were not initiated, however, because the Commonwealth assumed, in view of defense counsel’s request, that Andrews would appear voluntarily.

When Andrews surprised the Commonwealth by refusing to waive formal extradition and contested her return to Pennsylvania, the Commonwealth was unable to obtain her presence at the hearing which had been scheduled for August 5, 1988. Therefore, sentencing was postponed until October 18, 1988, and the Commonwealth initiated formal extradition proceedings to return Andrews to Pennsylvania. Andrews was finally returned to Pennsylvania on October 14, 1988. The Governor of Florida commuted Andrews’ sentence in that state to time served, the commutation to become effective only upon the imposition of sentence in Pennsylvania. On October 18, 1988, prior to sentencing, Andrews filed a motion to vacate and dismiss in which she alleged that her speedy trial and due process rights had been violated. The trial court denied the motion and sentenced Andrews to time served (sixty-four days) and placed her on probation for a period of three years. Andrews filéd a motion to modify sentence in which she renewed her speedy trial and due process claims, but this motion was denied. She then filed the instant appeal.

In Commonwealth v. Greer, 382 Pa.Super. 127, 132-133, 554 A.2d 980, 983 (1989), the Superior Court held that delay in sentencing may implicate the constitutional right to a speedy trial. See also: Commonwealth v. Young, 385 Pa.Super. 136, 139, 560 A.2d 204, 206 (1989). In examining an alleged violation of the right to speedy trial based upon delay in imposing sentence, we apply the following analysis:

In determining whether a defendant’s constitutional speedy trial right has been violated, it must first be determined whether the delay itself is sufficient to trigger further inquiry. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); Jones v. Commonwealth, 495 Pa. 490, 434 A.2d 1197 (1981). If the delay is sufficient to trigger further inquiry, the reviewing court must balance the length of the delay with the reason for the delay, the defendant’s timely assertion of his right to a speedy trial, and any resulting prejudice to the interests protected by the right to a speedy trial. Barker v. Wingo, supra; Commonwealth v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).

Commonwealth v. Glover, 500 Pa. 524, 528, 458 A.2d 935, 937 (1983). See also: Commonwealth v. Pounds, 490 Pa. 621, 627, 417 A.2d 597, 599 (1980); Commonwealth v. Greer, supra, 382 Pa.Super. at 134-135, 554 A.2d at 983; Commonwealth v. Atkinson, 364 Pa.Super; 384, 399, 528 A.2d 210, 217 (1987); Commonwealth v. Tillia, 359 Pa.Super. 302, 323, 518 A.2d 1246, 1257 (1986).

Instantly, we conclude that the delay of two years and eleven months between conviction and the imposition of sentence is sufficient to trigger further inquiry. See: Commonwealth v. Pounds, supra, 490 Pa. at 627-628, 417 A.2d at 600 (delay of almost two years between conviction and sentencing sufficient to trigger further inquiry); Commonwealth v. Tillia, supra, 359 Pa.Super. at 323-324, 518 A.2d at 1257 (nineteen month delay between entry of verdict and sentencing justified further inquiry).

Although appellant contends that the delay was solely attributable to the Commonwealth, the trial court found that it was appellant who had been primarily responsible for the delay. The court reasoned as follows:

[T]he reason for the delay must be attributed primarily to the defendant. The defendant, through her own actions, was arrested and incarcerated in Florida while she was free on bond prior to sentencing on this matter. Due to her incarceration, she did not appear for the original sentencing date of July 7, 1986, and the Commonwealth informed the Court that the authorities in Florida would notify the District Attorney’s Office when Ms. Andrews was available for sentencing____ [T]he defendant did not make any further request for sentencing until April, 1988. When that request was made, we held a conference and set sentencing for August 5, 1988. Then, to our surprise, the defendant, who had made the request to be sentenced, refused to waive extradition. The defendant’s refusal resulted in a further delay while the Commonwealth made arrangements for formal extradition proceedings. Once these extradition proceedings were completed, the defendant was extradited and sentenced immediately. Thus, the reasons for the delay in sentencing are: the defendant’s incarceration in another state, the failure of the defendant or defense counsel to request sentencing, and the defendant’s refusal to waive extradition.

Our own review of the record confirms that, although the Commonwealth is not wholly free from fault, it was appellant who was primarily responsible for the delay. Appellant delayed the hearing on her post-trial motions by requesting continuances on January 21, 1986 and April 22, 1986. The disposition of post-trial motions was delayed further when she moved to dismiss because of alleged prosecutorial misconduct and when she decided to change counsel. A hearing on post-trial motions was then set for June 5, 1986, but appellant was unable to be present because in the meantime she had been arrested and jailed in Florida for conduct which was in violation of the conditions imposed by the Pennsylvania court when it released her upon her own recognizance. The delay caused by appellant’s incarceration in Florida, therefore, cannot be attributed to the Commonwealth. The Commonwealth can be faulted, however, for failing to institute prompt extradition proceedings. Until appellant requested a sentencing date, the Commonwealth failed to commence proceedings to insure that appellant would be returned to Pennsylvania for sentencing. After appellant requested a date for sentencing, the Commonwealth contacted authorities in Florida concerning appellant’s availability and sent a request for her temporary custody. Formal extradition proceedings were not commenced, however, because the Commonwealth assumed that appellant would waive such extradition because she had requested a date for sentencing. This failure contributed to the delay when appellant refused to return voluntarily to Pennsylvania. In view of appellant’s express request that a date be set for her sentencing, however, the Commonwealth’s assumption that she would be present voluntarily was not entirely unreasonable. The District Attorney may well have been misled by appellant’s expressed desire to be sentenced. On balance, therefore, the sentencing court could find, as it did, that it was appellant who was primarily responsible for the delay and not the Commonwealth. The trial court’s finding did not penalize appellant for exercising her right to insist upon formal extradition proceedings. It merely recognized that the delay in imposing sentence had resulted primarily from appellant’s own conduct and not because of fault on the part of the Commonwealth. Cf. Commonwealth v. Bass, 260 Pa.Super. 62, 67, 393 A.2d 1012, 1015 (1978) (time during which defendant objects to extradition is excludable under Pa.R. Crim.P. 1100); Commonwealth v. McCafferty, 242 Pa.Super. 218, 224, 363 A.2d 1239, 1241 (1976) (same).

Appellant argued that she had asserted her right to be sentenced promptly when she asked the trial court to be sentenced immediately upon return of the jury’s verdict. The trial court rejected this contention, finding that appellant’s remarks were a challenge to the court and not a bona fide request for immediate sentencing. The record supports the trial court’s finding. Appellant’s demand to be sentenced was made after the trial court had informed her that a condition of her bail would be that she could not unlawfully enter facilities which performed abortions. Appellant responded by asserting that accepting such a condition would violate her conscience and that the only way to prevent her from continuing to trespass, in order to prevent abortions from being performed, would be to give her the maximum sentence. Even more significant was defense counsel’s statement, made concurrently with appellant’s demand to be immediately sentenced, that she would not waive her appellate rights. Under these circumstances, the trial court could not properly sentence appellant without providing her with an opportunity to file post-trial motions. See: Pa.R.Crim.P. 1123; Commonwealth v. Hurst, 367 Pa.Super. 214, 217, 532 A.2d 865, 867 (1987) (“The proper procedure is to permit a defendant to file timely post-trial motions after the verdict is rendered, but before sentence is imposed.”); Commonwealth v. Hill, 282 Pa.Super. 462, 466, 422 A.2d 1385, 1387 (1980) (post-trial motions must be disposed of prior to sentencing). Therefore, appellant’s demand to be sentenced was not an assertion of her right to a speedy trial. The record discloses that she did not again request the imposition of sentence until April, 1988, more than two years and four months after the date of her conviction. She did not assert that her speedy trial rights had been violated until shortly before sentencing, on October 18, 1988. It seems clear, therefore, that she did not assert in a timely fashion her right to be speedily sentenced.

The purposes of the right to a speedy trial are:

to prevent oppressive pre-trial incarceration; to minimize anxiety and concern of the accused; and to limit the possibility that the defense will be impaired. U.S. v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966). The latter interest is the most important interest protected by the Sixth Amendment, since it directly affects the fairness of the trial that the defendant will receive. U.S. v. Ewell, supra.

Commonwealth v. Glover, supra, 500 Pa. at 529, 458 A.2d at 938. See also: Commonwealth v. Greer, supra, 382 Pa.Super. at 137, 554 A.2d at 984-985; Commonwealth v. Atkinson, supra, 364 Pa.Super. at 401, 528 A.2d at 218. Instantly, appellant had not been incarcerated prior to her trial and she was only incarcerated for sixty-four days after trial before being released on bail. Her subsequent incarceration in Florida had been for conduct which was not only criminal in that state but which also was in direct violation of the terms of her bail in Pennsylvania. Thus, her incarceration in Florida cannot be said to have been caused by the delay in having her sentence imposed in Pennsylvania. Appellant has not alleged that she suffered anxiety as a result of the delay in having sentence imposed, and the length of time which she waited to assert her wish to be sentenced is indicative of a lack of concern on her part for the delay of which she now complains.

Appellant contends nevertheless that the delay of sentencing in Pennsylvania caused her to lose the opportunity to serve that sentence concurrently with the sentence she was already serving in Florida. In Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), the United States Supreme Court recognized that a defendant who is imprisoned in another jurisdiction while awaiting trial on pending charges may be prejudiced because “the possibility that [she] might receive a sentence at least partially concurrent with the one [s]he is serving [in the other jurisdiction] may be forever lost if trial of the pending charge is postponed.” Id. at 378, 89 S.Ct. at 577, 21 L.Ed.2d at 611 (footnote omitted). See also: Commonwealth v. Stewart, 221 Pa.Super. 1, 7 n. 1, 289 A.2d 126, 129 n. 1 (1972). Under the circumstances of this case, however, there is no basis for finding such prejudice. At the time when appellant was sentenced in Pennsylvania, the term of appellant’s sentence in Florida had not yet expired, but the Governor of Florida had commuted the balance thereof upon the condition of and at such time as sentence was imposed in Pennsylvania. In Pennsylvania, moreover, appellant was placed on probation. It may well have been the harshness of appellant’s sentence in Florida which influenced the trial court to impose in Pennsylvania a sentence of probation rather than one of imprisonment. Thus, the court said at the time of sentencing:

While I certainly do not condone the activities of Joan Andrews, it is particularly distressing to me to see a sister state try to exact a pound of flesh, so to speak— from everything that I have been able to learn about Joan Andrews and her Florida incarceration, I can only reach the conclusion that the authorities in Florida have attempted to break Joan Andrews both spiritually and mentally. Someone who firmly believes in the even handed administration of justice, I find Joan Andrews’ treatment in Florida to have been extremely unfair. I cannot conceive that justice would be served by any further incarceration of this woman in the Commonwealth of Pennsylvania.

(N.T. 10/18/88 at pp. 41-42). Any possible prejudice to appellant caused by the lost possibility of serving concurrent sentences, therefore, was mooted by the commutation of her Florida sentence and the avoidance of further imprisonment in Pennsylvania.

We agree with the trial court, therefore, that appellant’s right to a speedy trial was not violated. Although a delay of two years and eleven months in sentencing is substantial, the length thereof is mitigated by appellant’s own responsibility therefor, by the lack of any deliberate conduct on the part of the Commonwealth to cause the delay, by the failure of appellant to assert timely the right to be sentenced promptly, and the lack of significant prejudice as a result of the delay. Under all the circumstances, therefore, appellant failed to establish a violation of the Sixth Amendment’s right to a speedy trial.

Appellant also failed to show a due process violation. Her reliance upon decisions in Commonwealth v. Giovengo, 188 Pa.Super. 220, 146 A.2d 629 (1958), cert. denied, 361 U.S. 843, 80 S.Ct. 94, 4 L.Ed.2d 81 (1959) and United States ex rel. Giovengo v. Maroney, 194 F.Supp. 154 (W.D.Pa.1961), are misplaced. In Commonwealth v. Giovengo, supra, there was a delay of nearly three years from the date of the defendant’s plea of guilty until his sentencing. This delay had been caused when the court deferred sentencing so that it could be determined if imprisonment on other charges, in another county, would have a rehabilitative or an adverse effect on the defendant. In addressing the defendant’s claim that due process had been violated, the Superior Court held that “a sentence may be suspended or deferred for a period of time equal to the maximum term for which the defendant might have been sentenced, provided proper reasons are present to justify the delay.” Id., 188 Pa.Super. at 227, 146 A.2d at 632 (footnote omitted). The Court determined that the delay had been justified, however, and found no violation of the defendant’s right to due process. Both the Pennsylvania and United States Supreme Courts declined to review the decision. The defendant then initiated habeas corpus proceedings in the United States District Court for the Western District of Pennsylvania. There, in United States ex rel. Giovengo v. Maroney, supra, the Court determined that a due process violation had occurred. The Court concluded that the reasons given to justify the delay were unreasonable and that the defendant had been prejudiced by the delay. The Court further found that defendant had repeatedly sought to be sentenced throughout the course of the delay.

In subsequent cases, the Superior Court has uniformly rejected due process claims based upon delays in sentencing where the defendant failed to assert a desire to be sentenced or was not prejudiced by the delay. See: Commonwealth v. Button, 332 Pa.Super. 239, 481 A.2d 342 (1984); Commonwealth v. Moore, 268 Pa.Super. 313, 408 A.2d 481 (1979); Commonwealth v. Rutherford, 252 Pa.Super. 348, 381 A.2d 952 (1977); Commonwealth ex rel. Konchick v. Ceraul, 197 Pa.Super. 171, 177 A.2d 125 (1962). More recently, in Commonwealth v. Greer, supra, the Court stated that in order to establish a due process violation because of a delay in sentencing “[n]ot only must the appellant prove [her] cause was prejudiced by the delay, but [s]he must also prove that the state’s action in causing or allowing the delay was ‘fundamentally unfair,’ not merely undesirable____” Id., 382 Pa.Super. at 139, 554 A.2d at 986, citing United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2048-2049, 52 L.Ed.2d 752, 759 (1977); Burkett v. Cunningham, 826 F.2d 1208, 1221 (3d Cir.1987).

In resolving appellant’s claim that she was denied her right to a speedy trial, we have already determined that she was, in large measure, responsible for the delay, that she failed to assert timely a desire to be sentenced, and that she did not suffer significant prejudice because of the delay in sentencing. Under these circumstances, we find nothing fundamentally unfair in the delay of two years and eleven months in imposing a sentence of probation. The trial court properly determined that she had not been denied due process.

The judgment of sentence is affirmed.

      . Andrews was acquitted on charges of criminal mischief and resisting arrest.

      . Prior scheduled hearings on Andrews’ post-trial motions had been continued upon her own request and with the consent of all parties.

      . It is not clear from the record exactly when Andrews’ post-trial motions were denied. No order denying these motions appears in the record. However, the trial court states in its opinion that Andrews’ post-trial motions were argued by counsel and denied on June 5, 1986. In her statement of the case, Andrews also states that her post-trial motions were denied on this date. The Commonwealth, however, suggests that Andrews' post-trial motions were most likely denied on a date subsequent to June 5, 1986.

      . Although the precise time appellant had remaining on her Florida sentence cannot be discerned from the record, during the sentencing hearing in Pennsylvania, appellant’s counsel stated that appellant had been incarcerated in Florida for two years and seven months.

      . The court sentenced appellant’s co-defendant, Joseph Wall, to a term of imprisonment of not less than six (6) months nor more than twelve (12) months.

      . Appellant in the instant case was convicted of criminal trespass, a felony of the third degree. This offense carried a maximum sentence of seven (7) years. As such, a delay of nearly three years before sentencing was not prima facie invalid under the holding in Commonwealth v. Giovengo.


author: OLSZEWSKI, Judge:

text:
    571 A.2d 417
    Candace CORL, Appellee, v. David KACMAR, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 8, 1990.
    Filed Feb. 27, 1990.

      James L. Nesser, Uniontown, for appellant.
    Steve P. Leskinen, Uniontown, for appellee.
    Before OLSZEWSKI, MONTEMURO and CERCONE, JJ.
   OLSZEWSKI, Judge:

David Kacmar appeals from the trial court’s order finding him to be the father of appellee’s daughter and imposing support obligations upon him. Appellant provides two arguments on appeal: that the jury’s finding of paternity was against the weight of the evidence, and that the trial court erred in refusing to admit notes of prior testimony by a witness who was unavailable for trial. We find no error; accordingly, we affirm.

The child in question was born in November 1981. According to appellee’s testimony, appellee was dating Michael Andronok in and around February 1981. She engaged in sexual intercourse with him regularly. Around February 1981, their relationship was coming to an end. Appellee was in a bar one night and met appellant, a disk jockey. They met, engaged in sexual intercourse once, and did not meet again.

When appellee discovered her pregnancy, she assumed that Andronok was the father of the child; however, blood tests excluded the possibility of paternity. Appellee then concluded that appellant was the father, because she had not engaged in intercourse with any other man around the time of conception. Blood tests showed a 99.83 percent probability that appellant was the father of the child. He was 614 times more likely to produce the necessary genetic combination than a randomly chosen man of similar ethnic background.

Appellant, on the contrary, testified that he had never met appellee before she accused him of fathering her child. He denies engaging in sexual relations with appellee.

At trial, appellant wished to introduce notes of Michael Andronok’s prior testimony. According to appellant, this testimony would have shown that appellee engaged in sexual relations with two other men. The trial court refused to admit the transcript because appellant had not shown that Andronok was unavailable for trial. The trial court found that appellant had not made sufficient efforts to obtain Andronok for trial.

We find that the verdict was not against the weight of the evidence. We further find that the trial court had the discretion to exclude notes of Andronok’s prior testimony. Accordingly, we affirm the order of the trial court.

The verdict in this case was not against the weight of the evidence. In a civil paternity action, a plaintiff need only prove paternity by a preponderance of the evidence. Commonwealth ex rel. Johnson v. Peake, 272 Pa.Super. 340, 415 A.2d 1228 (1979). Appellee has shown that she had sexual intercourse with the appellant around the time that she became pregnant, and that the appellant is more likely to be the father than any other individual. This evidence is sufficient.

Appellant emphasizes the fact that appellee was not certain of the date upon which she engaged in intercourse with him. This fact is not important. The jury found appellee’s testimony to be sufficiently credible. Their verdict is not so outrageous or arbitrary as to justify a new trial.

Appellant also argues that the trial court should have admitted notes of prior testimony by Michael Andronok, the appellee’s former lover. Notes of prior testimony may be admitted where the witness is unavailable to testify at trial. 42 Pa.C.S.A. § 5934. A witness is “unavailable” if a party cannot locate him within the jurisdiction. The trial court has the discretion to determine the sufficiency of proof of unavailability. Katz v. Montague, 181 Pa.Super. 476, 124 A.2d 506 (1956).

The record in this case shows that appellant made very little effort to obtain Andronok for trial. Appellant’s attorney began his search for Andronok three days before trial began. He did not attempt to obtain a subpoena or a bench warrant. He simply made a few phone calls. The trial court acted within the scope of its discretion when it refused to admit the notes of testimony.

Order affirmed.


author: TAMILIA, Judge:

text:
    571 A.2d 418
    COMMONWEALTH of Pennsylvania, Appellant, v. Frank Anthony DIULUS.
    Superior Court of Pennsylvania.
    Argued Jan. 23, 1990.
    Filed Feb. 28, 1990.

      Robert F. Hawk, Asst. Dist. Atty., Butler, for Com., appellant.
    Alexander H. Lindsay, Jr., Butler, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

The Commonwealth brings this appeal from the court’s June 6, 1989 Order granting appellee’s omnibus pre-trial motion to suppress an intoxilyzer blood alcohol reading. Appellee was arrested for DUI, and he consented to the administration of an intoxilyzer test at the state police barracks; whereupon the test resulted in a reading of 0. 188%. Appellee refused a second, contemporaneous test, and he was cited for refusing and his license was automatically suspended. In a pre-trial motion, he sought to suppress the first reading because 67 Pa.Code § 77.24 mandates two consecutive breath tests be obtained. The trial court granted the motion, and the Commonwealth appeals. This is a case of first impression for this Court, and as a result, we must thoroughly examine all the applicable law in coming to our decision.

The Commonwealth contends the trial court erroneously suppressed the results of the intoxilyzer test. Specifically, the Commonwealth argues although 67 Pa.Code § 77.24 mandates two consecutive tests, 75 Pa.C.S. § 1547 allows admission of evidence of a person’s blood alcohol level as shown by chemical tests when the tests were conducted by qualified persons using approved equipment. Pennsylvania law specifically addresses the proper procedure for conducting breath tests:

(b) Procedures____ The procedures for alcohol breath testing shall include, at a minimum:
(1) Two consecutive actual breath tests, without a required waiting period between the two tests.
(2) One simulator test using a simulator solution designed to give a reading of .10%, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution ...

67 Pa.Code § 77.24.

The regulations specifically call for two elements to be present in order for there to be a valid breath test: 1) two consecutive breath tests, without a required waiting period between them and 2) a simulator test, using simulated solution designed to give a .10% reading conducted after the second actual breath test. All elements must be present for a valid result. See Ostrander v. Commonwealth, 116 Pa.Cmwlth. 243, 541 A.2d 441 (1988); Bonise v. Commonwealth, 102 Pa.Cmwlth. 6, 517 A.2d 219 (1986). Since the arresting officer affirmed only one breath sample was tested, (Affidavit of Probable Cause, Exhibit A), we find the breath test to be invalid and agree with the trial court’s suppression of the test results.

Additionally, we find no merit to the Commonwealth’s contention the statutory requirements for the admissibility of such test results were met because the test was conducted by a qualified person using an approved device. 75 Pa.C.S. § 1547 provides in part:

(c) Test results admissible in evidence. — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.

However, one test does not constitute a valid test, despite being conducted by a qualified person on an approved testing device. The statutory requirements in 75 Pa.C.S. § 1547 and the regulations in 67 Pa.Code § 77.24 both establish the requisite procedures for a valid breath test. They are not mutually exclusive. If we were to follow the Commonwealth’s argument to its logical end, compliance with Pa.C.S. § 1547(c) would nullify not only 67 Pa.Code § 77.24, which requires that two tests be performed, but also the remaining subsections under 75 Pa.C.S. § 1547. For example, 75 Pa.C.S. § 1547(c)(1) requiring chemical breath tests “be performed on devices approved by the Department of Health using procedures prescribed jointly by regulations of the departments of Health and Transportation ...” would have no effect as long as a “qualified person using approved equipment” administered the test, using whatever method suited him or her at the time. We do not accept this proposition and reject the Commonwealth’s contentions.

Even so, the Commonwealth argues, since appellee was not charged with the violation of 75 Pa.C.S. § 3731(a)(4) but instead was charged under 75 Pa.C.S. § 3731(a)(1), the breath test results should be introduced to demonstrate appellee was not capable of safe driving. We find no merit to this argument. 75 Pa.C.S. § 3731 Driving under influence of alcohol or controlled substance, in pertinent part, provides:

(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
(4) the amount of alcohol by weight in blood of the person is 0.10% or greater. (Footnote omitted.)

The language of the statute does not make an exception for the introduction of invalid tests in cases where the defendant is charged under § 3731(a)(1), and neither will we make that exception. If, as we have already determined, the introduction into evidence of invalid tests is improper under § 3731(a)(4), it is equally improper under § 3731(a)(1). Therefore, the breath test results are inadmissible and properly suppressed.

Appellee, by refusing to submit to a second breath test, knowingly accepted and does not challenge the penalty for refusing to complete the intoxilyzer test. His license was suspended for twelve months and evidence of his refusal to complete the breathalyzer test will be admitted at his criminal trial. To admit the results of the invalid breath test would penalize appellee to a greater degree than the pertinent statutes contemplate, and we find no reason to do so.

Order affirmed.

      . This appeal is permissible as the Commonwealth has certified in good faith that the suppression Order submitted for our review substantially handicaps the prosecution and the appeal is not intended for delay purposes. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).


text:
    571 A.2d 420
    Schree TOTH, Surviving Wife of Joseph Patrick Toth, Deceased, as Trustee ad Litem, and Mary Bridget Toth, Executrix of the Estate of Joseph Patrick Toth, Deceased, Appellants, v. ECONOMY FORMS CORPORATION.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed March 1, 1990.

      Michael J. Colarusso, Pittsburgh, for appellants.
    Mary J. Bowes, Pittsburgh, for appellee.
    Before CAVANAUGH, TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of court denying appellants’ motion to remove nonsuit entered July 27, 1989 following the trial court’s granting of appellee’s motion for a compulsory nonsuit.

On December 8, 1983, Joseph Patrick Toth, a laborer employed by Cameron Construction Company, was killed in a construction accident. He stepped on a wooden plank supported by scaffolding. The scaffolding was attached to concrete forming equipment, which was manufactured, sold and supplied by appellee, Economy Forms, to Cameron Construction. The plank, supplied by Mellon Stuart Company to Cameron, thereupon broke away, causing the decedent to fall to his death.

Appellants, Schree Toth, surviving widow, and Mary Bridget Toth, as Executrix of the Estate of Mr. Toth, contend Economy Forms corporation designed, manufactured, sold and supplied a defective concrete forming/scaffolding system which supported the plank that broke and this defective system was the proximate cause of Mr. Toth’s death. Economy denied liability for Mr. Toth’s death.

Following extensive discovery, the case proceeded to trial. Appellants presented the liability aspects of their case, which consisted of the testimony of their expert witness, Ben Lehman, and an offer of proof from a liability witness who could not be found. Economy Forms thereafter made an oral motion for a compulsory nonsuit, which the trial court granted based on its finding Economy had no connection with the product that caused the injury, i.e. the planking. Appellants subsequently filed a motion to remove the compulsory nonsuit, which was denied. This appeal followed.

The sole issue on appeal is whether the trial court properly granted Economy Forms’ motion for a compulsory nonsuit. When a motion for compulsory nonsuit is filed, the plaintiff, appellant here, must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from the evidence, and any conflict in the evidence must be resolved in favor of the plaintiff. Coatesville Contractors v. Borough of Ridley Park, 509 Pa. 553, 559, 506 A.2d 862, 865 (1986). Furthermore, when the trial court is presented with a choice between two reasonable inferences, the case must be submitted to the jury. Hawthorne v. Dravo Corp., Keystone Div., 313 Pa.Super. 436, 460 A.2d 266 (1983). However where it is clear a cause of action has not been established, a compulsory nonsuit is proper. Storm v. Golden, 371 Pa.Super. 368, 538 A.2d 61, 63 (1988).

At trial, appellants sought recovery based on two theories of liability — product liability under § 402A of Restatement (Second) of Torts or, in the alternative, negligence. Section 402A R.2d Torts states:

§ 402 A. Special liability of Seller of Product for Physical Harm to User or Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Our Supreme Court adopted § 402A in Webb v. Zern, 422 Pa. 424, 220 A.2d 853 (1966). In order to succeed under this section, a plaintiff must establish all of the following: 1) a product; 2) the sale of that product; 3) a user or consumer; 4) the product defect which makes the product unreasonably dangerous; and 5) the product defect was the proximate cause of the harm. See Ellis v. Chicago Bridge & Iron Co., 376 Pa.Super. 220, 238, 545 A.2d 906, 916 (1988) (Popovich, J., concurring); Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893 (1975). In order for liability to attach in a products liability action such as this, the plaintiff must show the injuries suffered were caused by a product of the particular manufacturer or supplier. Eckenrod v. GAF Corp., 375 Pa.Super. 187, 190-91, 544 A.2d 50, 52 (1988). Appellants concede the wooden plank that broke and caused Mr. Toth to fall to his death was not supplied or manufactured by appellee (Brief for Appellants, p. 4). There is no legal authority supporting appellants’ attempt to hold a supplier liable in strict liability for a product it does not even supply. We believe, under this theory of recovery, appellant must look to the lumber supplier and not appellee.

However, appellants contend appellee’s scaffolding system, as designed, was incomplete and thus defective because it failed to supply all of the component parts, i.e., the wooden planks. Therefore, appellants suggest appellee should have supplied the lumber, and its failure to do so constitutes a design defect in the scaffolding, which it did supply. To this end, appellants opine it was foreseeable “Cameron would use wood planking which was not suitable for use as scaffolding planks supported by yokes and that one way to guard against this hazard was to supply a complete system, including wooden components” (Brief for Appellants, p. 4). We fail to see how this would have been reasonably foreseeable to appellee — especially where Cameron, a contractor engaged in bridge reconstruction under the auspices of Pennsylvania’s Department of Transportation (Penn Dot), is itself subject to OSHA requirements and inspections, Penn Dot requirements and inspections and federal state, and local regulations regarding scaffolding. We reject appellants’ assertion the failure to provide wood planks constitutes a design defect in the metal scaffolding.

Alternatively, appellants suggest appellee’s scaffolding system was defective because appellee failed to instruct as to its proper use or warn of inherent dangers associated with its use. A “defective condition” is not just limited to defects in design or manufacture, but includes the failure to give such warnings as needed to inform the consumer of the possible risks and limitations involved. Berkebile, supra, 337 A.2d at 902. “If the product is defective absent such warnings, and the defect is a proximate cause of the plaintiff’s injury, the seller is strictly liable without proof of negligence.” Id. Once again, we emphasize appellee did not supply the “defective” product. Appellants’ theory would have us impose liability on the supplier of metal forming equipment to warn of dangers inherent in wood planking that it did not supply. Pennsylvania law does not permit such a result.

Having rejected appellants’ first theory of liability, we turn now to their second theory of liability — negligence. Appellants argue the allegedly defective design and lack of warnings constitute negligence, as well as product liability, and appellee still had an opportunity to correct its negligence, thereby preventing Mr. Toth’s death, by providing proper field services. Although appellants allege appellee had a duty to provide proper field services, appellants fail to show how this duty was breached, if at all. Appellants have not even demonstrated how Cameron failed to follow procedures in using appellee’s product, much less how this is appellee’s fault. It is not enough for appellants to claim appellee had a duty. Appellants must also show how that duty was breached in order to impose liability on appellee. Having failed to establish its case in negligence, we reject appellants’ claim.

Because appellants have failed to establish a cause of action under § 402A R.2d torts or in negligence, we affirm the trial court’s denial of appellants’ motion to remove compulsory nonsuit.

Order affirmed; judgment of nonsuit affirmed.


text:
    571 A.2d 423
    COMMONWEALTH of Pennsylvania v. Fay WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 16, 1990.
    Filed March 7, 1990.

      John W. Packel, Asst. Public Defender, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before McEWEN, TAMILIA and FORD ELLIOTT, JJ.
   TAMILIA, Judge:

On October 18, 1988, at approximately 3:15 p.m., Sister Mary Peter purchased a $22 postal money order at the United States Post Office on 24th and Snyder Avenue in Philadelphia. As she left the building, her purse with the blank money order inside was stolen by two young men who grabbed it and fled. Immediately thereafter, appellant and Cara Foster were approached by the two men and asked if they wanted to buy a money order. Appellant asked how much the men wanted for it and was told ten dollars; they claimed it was not stolen but they had to sell it because they had no identification to cash it. Appellant knew one of the men to be a drug user and claims she assumed he wanted to sell the money order quickly to buy drugs.

Appellant purchased the money order and took it to the post office to cash it after writing in her name as both purchaser and payee. The postal clerk questioned appellant when she presented it for payment and appellant told the clerk her son picked it up a week earlier and she had no identification with her. At that point, John Condart, the clerk who sold Sister Mary the money order, walked over and recognized it, knowing it had been stolen immediately after Sister Mary left the building.

Appellant was arrested and charged with forgery and related offenses. She was tried by the court without a jury, found guilty of forgery, attempted theft by deception and receiving stolen property and sentenced to concurrent terms of probation of two years, six months and six months respectively.

The sole issue on appeal is whether appellant can be convicted of forgery where she signed her own name to the blank money order and presented it for payment personally, not purporting to be someone else. The trial court, finding this case to be one of first impression in Pennsylvania, found appellant guilty of forgery under 18 Pa.C.S. § 4101(a)(2) for signing the money order and holding herself out as the original purchaser and payee with the intent to defraud the original purchaser. For the reasons that follow, we agree with the trial court and affirm the judgment of sentence.

The section of the forgery statute under which appellant was convicted reads as follows:

(a) Offense defined. — A person is guilty of forgery if, with intent to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor:
(2) makes, completes, executes, authenticates, issues or transfers any writing so that it purports to be the act of another who did not authorize that act, or to have been executed at a time or place or in a numbered sequence other than was in fact the case, or to be a copy of an original when no such original existed;

18 Pa.C.S. § 4101(a)(2).

There is no reasonable dispute that appellant had the intent to defraud when she attempted to cash a money order purchased on the street from a known drug user for less than half the face value. The trial court found appellant’s testimony — that she believed the drug user when he said it was not stolen — to be incredible, especially in light of the fact that she lied when the postal clerk questioned her about how and when she purchased the money order. Moreover, appellant does not challenge her conviction for attempted theft by deception which requires an intent to defraud by deception. Thus, our review is narrowed to determining whether appellant’s filling in the blank money order and signing it purported to be the act of another who did not authorize the act.

The trial court found Commonwealth v. Rosenzweig, 514 Pa. 111, 522 A.2d 1088 (1987), to be instructive although we find it is not dispositive. Rosenzweig had been arrested and charged with forgery and related charges after it had been discovered he was depositing his employer’s coupon reimbursement checks into his own account which required his personal endorsement on the back. The Supreme Court found that Rosenzweig could be convicted of forgery if it was proven, as the Commonwealth alleged, he endorsed his employer’s name on the back of the checks without the employer’s knowledge or authority. The fact that Rosenzweig allegedly endorsed his employer’s name on the back of the checks makes it a classic forgery situation which is dissimilar from the instant case.

Conversely, in the case of Commonwealth v. Gibson, 272 Pa.Super. 451, 416 A.2d 543 (1979), defendant Gibson entered a bank and presented a check for $150, payable to cash, which was signed and endorsed in the name of Elsworth Kutz. When the teller and bank manager refused to cash the check without identification, Gibson left but was later arrested and convicted of forgery. On appeal we vacated the forgery conviction because there was no evidence proving Gibson had actually signed Kutz’s name; he merely presented the check for payment. We found that appellant’s attempt to cash the check may have amounted to theft or theft by deception but not forgery.

The instant case falls between Rosenzweig, supra, and Gibson, supra, as appellant did not sign another’s name to the money order but, by filling in the blank money order with her name as original purchaser and payee, she did more than just present it for payment. Appellant claims we must distinguish between false execution and false representation, the former being forgery and the latter not. After reviewing the statute, we find appellant committed both a false execution and a false representation.

We have already stated that appellant had the intent to defraud when she attempted to cash the money order and the only issue left is whether her actions fit within section 4101(a)(2) which states a person is guilty of forgery if he “makes, completes, executes ... any writing so that it purports to be the act of another who did not authorize that act____” Appellant’s act of writing her name and address in the blank purchaser and payee sections of the money order and signing on the back amounted to a making, completion or execution of a writing. In so doing, she purported to be the original purchaser of the money order when, in fact, she was not the purchaser and did not have authorization from the purchaser to name herself as payee. Thus, she made a false execution in completing the blank money order with her name as payee and endorsing the back, and she made a false representation by purporting to be the purchaser of the instrument with authorization to name herself as payee.

Our analysis is in accord with Commonwealth v. Zabala, 303 Pa.Super. 72, 449 A.2d 583 (1982), which is factually the most similar to the instant case. In Zabala the defendant used stolen Traveler’s Express money orders to purchase goods at various locations. Defendant identified himself to the store clerks as Richard Swan and signed the money orders as such. When the stores attempted to deposit the money orders, payment was refused because they were stolen and a stop payment order had been issued. Zabala was convicted of forgery and theft by deception which he appealed, arguing the forgery statute could not be violated by the signing of a fictitious name. We said:

The money orders passed at the stores in Lansdale on May 12, 1979 were among those stolen from the Gayman Check Cashing Agency on November 30, 1977. Payment had been stopped on the money orders because they were stolen. Therefore, there was intended to be no payee on any of the money orders____ [R]egardless of whether “Richard Swan” is an actual person, he did not exist “... in the sense that he was not intended to be the payee, ...” [Commonwealth v. Globe Indemnity Co., 323 Pa. 261, 266, 185 A. 796, 796 (1936),] because no one was intended to be the payee.

Id. 303 Pa.Super. at 82, 449 A.2d at 588 (emphasis in original).

Therefore, any name the defendant in Zabala would have used to sign as the payee would have been a forgery since there was no intended payee. Similarly, when appellant in the instant case signed her own name as payee, it was a forgery as she was not the purchaser’s intended payee. Appellant would have been guilty of attempted theft by deception and nothing else if she had merely presented a completed money order and represented herself as the intended payee. Her act of completing the money order herself and filling in her name as purchaser and payee and signing as payee makes this a case of forgery as well as attempted theft by deception; therefore, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 4101.

      . 18 Pa.C.S. § 3922.

      . 18 Pa.C.S. § 3925.

      . Appellant, unable to find any cases on point, also labels this case as one of first impression in Pennsylvania. The Commonwealth, in disregard of the Rules of Appellate Procedure, failed to file a brief in this matter.

      . § 3922. Theft by deception
      (a) Offense defined. — A person is guilty of theft if he intentionally obtains or withholds property of another by deception. A person deceives if he intentionally:
      (1) creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;
      (2) prevents another from acquiring information which would affect his judgment of a transaction; or
      (3) fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.
      18 Pa.C.S. § 3922.