author: KELLY, Judge:

text:
    666 A.2d 681
    Mary TAYLOR, Administratrix of the Estate of Mack Taylor, Deceased, and Widow in Her Own Right, Appellant, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, GAF Corporation, Ruberoid Company, Inc., Owens-Illinois, Inc., Keene Corporation, Armstrong World Industries, Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley, Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Inc., Hercules Packing Corporation, Anchor Packing Company, Axtec Industries, Inc., Acands Corporation, Flexitallic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal, Inc., National Gypsum Company, Chicago Fire Brick Co., Brand Insulations, Inc., Turner & Newall, A.P. Green Refractories Companies, Allied Corporation, Boiler Tube Co. of America, Prudential Supply Corp., J.H. France Refractories, Inc., Riley Stoker Corporation, Harbison Walker Refractories, Drever Furnaces, Selas Corporation of America, Selas Furnaces, Ray Oil Burner Company, Bickley Furnaces, Inc., National Air Oil Burner Company, Superior Boiler Works, Inc., H.B. Smith, Keller/Dorr-Oliver Boiler Company, International Boilers, Cleaver Brooks, a Div. of Aqua-Chem, Inc., Clark Controller Companies, General Electric Company (U.S.A.), Westinghouse Electronic Company, Cutler-Hammer Companies, Westinghouse Airbrake Company, Crane Packing, Sepco Corporation, Hitco, Rowland Company, Sullivan Industries, Inc., New York Airbrake Company, Gatke Corporation, Peltz Company, Appellees. Jimmy WATKINS and Madeline Watkins, H/W, Appellants, v. Owens-Corning Fiberglas Corp., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, GAF Corporation, Ruberoid Company, Inc., Owens-Illinois, Inc., Keene Corporation, Armstrong World Industries, Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley, Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Inc., Hercules Packing Corporation, Anchor Packing Company, Harnischfeger Corporation, Acands Corporation, Flexitallic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal, Inc., National Gypsum Company, Peltz Company, Brand Insulations, Inc., Raymark Corporation, Turner & Newall, A.P. Green Refractories, Companies, Allied Corporation, Harvey Hubbell, Inc., Prudential Supply Corp., J.H. France Refractories, Inc., Riley Stoker Corporation, Harbison Walker Refractories, American Hoist and Derrick Company, Drever Furnaces, Selas Corporation of America, Selas Furnaces, Ray Oil Burner Company, Bickley Furnaces, Inc., National Air Oil Burner Company, Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Company, International Boilers, Cleaver Brooks, Div. of Aqua-Chem, Inc., Westinghouse Airbrake Company, Crane Packing, Sepco Corporation, Hitco, Rowland Company, Sullivan Industries, Inc., New York Airbrake Company, Appellees. John F. MEEHAN and Kathleen Meehan, H/W, Appellants, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, Westinghouse Airbrake Company, Crane Packing, Sepco Corporation, Hitco, Rowland Company, Sullivan Industries, Inc., New York Airbrake Company, Appellees. James YELLOCK and Pauline Yellock, H/W, Appellants, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, GAF Corporation, Ruberoid Company, Inc., Owens-Illinois, Inc., Keene Corporation, Armstrong World Industries, Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley, Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Inc., Hercules Packing Corporation, Anchor Packing Company, Harnischfeger Corporation, Acands Corporation, Flexitallic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal, Inc., National Gypsum, Peltz Company, Brand Insulations, Inc., Raymark Corporation, Turner-Newall, A.P. Green Refractories, Companies, Allied Corporation, Harvey Hubbell, Inc., Prudential Supply Corp., J.H. France Refractories, Inc., Riley Stoker Corporation, Harbison Walker Refractories, American Hoist and Derrick Company, Drever Furnaces, Selas Corporation of America, Selas Furnaces, Ray Oil Burner Company, Bickley Furnaces, Inc., National Air Oil Burner Company, Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Company, International Boilers, Cleaver Brooks, Div. of Aqua-Chem, Inc., Westinghouse Airbrake Company, Crane Packing, Sepco Corporation, Hitco, Rowland Company, Sullivan Industries, Inc., New York Airbrake Company, Clark Controller Companies, General Electric Company (U.S.A.), Westinghouse Electronic Company, Cutler-Hammer Companies, Appellees. Robert RIFFERT and Margaret Riffert, H/W, Appellants, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corp., Celotex Corporation, H.K. Porter Company, Inc., Eagle-Picher Industries, Inc., Southern Textile Company, GAF Corporation, Ruberoid Company, Inc., Owens-Illinois, Inc., Keene Corporation, Armstrong World Industries, Inc., Armstrong Cork Company, United States Gypsum Company, Porter Hayden Co., Foster Wheeler Corporation, York-Shipley, Inc., Pars Manufacturing Company, Phelps Packing and Rubber Company, Inc., Hercules Packing Corporation, Anchor Packing Company, Harnischfeger Corporation, Acands Corporation, Flexitallic Gasket Company, Flintkote Company, Garlock Industries, Fibreboard Corporation, Uni-Royal, Inc., National Gypsum Company, Peltz Company, Brand Insulations, Inc., Raymark Corporation, Turner & Newall, A.P. Green Refractories, Companies, Riley Stoker Corporation, Harbison Walker Refractories, American Hoist and Derrick Company, Drever Furnaces, Selas Corporation of America, Selas Furnaces, Ray Oil Burner Company, Bickley Furnaces, Inc., National Air Oil Burner Company, Superior Boiler Works, Inc., H.B. Smith, Keeler/Dorr-Oliver Boiler Company, International Boilers, Cleaver Brooks, Div. of Aqua-Chem, Inc., Westinghouse Airbrake Company, Crane Packing, Sepco Corporation, Hitco, Rowland Company, Sullivan Industries, Inc., New York Airbrake Company, Appellees.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed Oct. 11, 1995.

      Charles A. Klein, Philadelphia, for appellants.
    W. Matthew Reber, Wynnewood, for Owens-Corning Fiberglas Corp., etc., appellees.
    Joseph P. Klein, Philadelphia, for Crane Packing, etc., appellees.
    Before McEWEN, TAMILIA and KELLY, JJ.
   KELLY, Judge:

This consolidated appeal asks us to determine whether the trial court erred in granting appellees’, Clark Controller Companies’, Owens-Corning Fiberglas’ and John Crane’s, motions for summary judgment. Pursuant to appellees’ summary judgment motions, the trial court either dismissed or deferred the complaints of appellants, Mary Taylor, Jimmy and Madeline Watkins, husband and wife, John F. and Kathleen Meehan, husband and wife, Robert and Margaret Riffert, husband and wife, and James and Pauline Yellock, husband and wife. We hold that the trial court was correct to dismiss Ms. Taylor’s complaint and defer the Watkins’, the Meehans’, and the Rifferts’ complaints. We fuither hold, however, that the trial court erred in granting summary judgment against the Yellocks pursuant to appellees’ oral summary judgment motion on the morning of trial without allowing the Yellocks adequate time to respond to the motion. Thus, we affirm in part and reverse in part.

The relevant facts and procedural history of this case are as follows. Each of the appellants filed complaints seeking to collect damages for personal injuries resulting from asbestos exposure. The complaints named multiple defendants, but appellees were the only remaining defendants at the time of trial. The cases were consolidated and assigned for trial in reverse-bifurcated form before the Honorable Albert F. Sabo.

On January 4, 1994, following the voir dire, a jury was selected and the damages phase of the bifurcated trial was scheduled to commence the following day. This trial, however, never commenced because Judge Sabo granted appellees’ motions for summary judgment or dismissal on January 5, 1994. In the cases of Ms. Taylor and the Yellocks, the trial judge granted appellees’ motions for summary judgment. In the ease of the Watkinses, the Rifferts, and the Meehans, however, Judge Sabo deferred the cases rather than dismissing them.

Appellant Mary Taylor

Appellant Mary Taylor instituted her action on April 19, 1988 seeking damages for her deceased husband’s, Mack Taylor’s, exposure to asbestos while employed at the Budd Company. Decedent was employed at the Budd Company from 1944 to 1976 as a crane and fork lift truck operator. Decedent was allegedly diagnosed with asbestos-related diseases and pulmonary thickening on November 24, 1986. During his lifetime, decedent remained asymptomatic and the record indicates that as of April, 1987, after a pulmonary evaluation, William Fineman, M.D. detected no physical manifestations of asbestosis. Medical reports also established that decedent had a smoking history of approximately twenty-five to forty-five years. Four months later, on August 5, 1987, decedent died due to metastic bladder cancer, which was not related to the pleural thickening. Pursuant to appellees’ motion for summary judgment, on January 5, 1994, Judge Sabo dismissed appellant Mary Taylor’s complaint.

Appellants Jimmy and Madeline Watkins

Appellants Jimmy and Madeline Watkins commenced their action on December 5, 1988, seeking compensation for appellant-husband’s occupational exposure to asbestos. Appellant-husband was initially exposed to asbestos in 1954 when he worked as a longshoreman and later in 1960 when he worked for the Budd Company as a pressman until 1980. Appellant-husband was allegedly diagnosed with an asbestos-related disease on August 13, 1987 and in 1993, complained of shortness of breath when ascending two flights of stairs. A medical examination, however, diagnosed appellant-husband with pleural thickening, not asbestosis. The medical exam further revealed that appellant-husband is obese with high blood pressure and heart abnormalities. At the time of trial, appellant-husband exhibited only shortness of breath. On January 5, 1994, appellees moved for a deferral and Judge Sabo granted the motion. In his ruling, Judge Sabo clearly stated that the case was “not being dismissed” but was merely “being deferred pending the outcome of [Giffear v. Johns-Manville Corp., supra].” N.T. 1/5/94 at 34-35.

Appellants John F. and Kathleen Meehan

Appellants John and Kathleen Meehan instituted the present action on December 5, 1988, seeking damages for appellant-husband’s physical injuries resulting from asbestos exposure. During the course of appellant-husband’s employment at the Budd Company from 1965 to 1980, he was exposed to asbestos. Appellants allege that appellant-husband was diagnosed with asbestosis on December 9, 1987. According to •Jonathan Gelfand, M.D., however, as of May 6, 1993, appellant-husband suffered only from pleural thickening rather than asbestosis. Appellant-husband currently suffers from shortness of breath. Furthermore, Dr. Gelfand stated in a medical report that appellant-husband suffered head injuries and smoked for several years. But, it is unclear whether the shortness of breath is attributable to the head trauma, smoking, or an asbestos-related disease. On January 5, 1994, appellees moved for a deferral of the case pursuant to Giffear v. Johns-Manville Corp., supra, and Judge Sabo granted the motion.

Appellants Robert and Margaret Riffert

Appellants Robert and Margaret Riffert commenced their suit on December 5, 1988, in order to recover for appellant-husband’s asbestos exposure during the course of his employment. Appellant-husband was initially exposed to asbestos in 1956 when he worked as an assembler for I.T.E. Circuit Breaker and later from 1961 to 1980 when he was employed as a welder at the Budd Company. Appellants’ complaint sets forth that appellant-husband was diagnosed with asbestosis on July 31, 1987. The record, however, reflects that appellant-husband has no symptoms of asbestosis, not even shortness of breath and that appellant-husband suffers only from pleural thickening rather than asbestosis. See N.T. 1/5/94 at 10. Appellant-husband’s only medical problem is an obstruction of his lungs, attributable to his smoking habit which he continued as of January 5, 1994. Based on appellant-husband’s lack of physical symptoms, appellees moved for dismissal under Giffear v. Johns-Manville Corp., supra, on January 5, 1994. Judge Sabo granted appellees’ motion at which point the Judge Sabo reminded the parties that the Pennsylvania Supreme Court’s disposition of Giffear v. Johns-Manville Corp., supra, would ultimately determine the outcome of the case. See N.T. 1/5/94 at 11.

Appellants James and Pa,uline Yellock

Appellants James and Pauline Yellock instituted the present action on December 5, 1988, seeking compensation for appellant-husband’s injuries resulting from asbestos exposure. Appellant-husband was exposed to asbestos from 1942 to 1946 when he served as a seaman in the United States Navy, in 1949 when he worked as a laborer at the Ohio Steel Mill, in 1952 when he worked at General Steel as a fork lift operator, and from 1955 to 1956 when he worked as a foundry worker and welder at the Budd Company. Appellants allege that appellant-husband was diagnosed with asbestosis on August 5, 1987. On January 5, 1994, appellees orally moved for summary judgment at which point appellant requested that the trial court hold the motion under advisement. See N.T. 1/5/94 at 56. Judge Sabo granted appellees’ motion for summary judgment on the grounds that appellant-husband failed to prove that he was exposed to asbestos.

Following Judge Sabo’s disposition of each of the aforementioned cases, on January 31, 1994, Judge Sabo entered an order consolidating appellants’ cases for the purpose of appeal. This timely appeal followed.

Appellants raise the following issues for our review:

I. WHETHER THE TRIAL COURT ERRED IN DISMISSING APPELLANTS’ CASES WITHOUT PREJUDICE BASED UPON THIS COURT’S DECISION IN GIFFEAR V. JOHNS MANVILLE CORP. (AS TO APPELLANTS MARY TAYLOR, ADMINISTRATRIX OF THE ESTATE OF MACK TAYLOR, DECEASED; JIMMY WATKINS AND MADELINE WATKINS, H/W; JOHN F. MEEHAN AND KATHLEEN MEEHAN, H/W; AND ROBERT RIFFERT AND MARGARET RIFFERT, H/W)?
II. WHETHER AS TO APPELLANTS JAMES YEL-LOCK AND PAULINE YELLOCK, H/W, ONLY, THE TRIAL COURT COMMITTED AN ERROR OF LAW IN GRANTING SUMMARY JUDGMENT BASED UPON AN ALLEGED LACK OF PRODUCT IDENTIFICATION?

Appellants’ Brief at 3.

Ms. Taylor, the Watkinses, the Meehans and the Rifferts contend that the trial court erred as a matter of law by granting appellees’ motions for summary judgment or dismissal. Each of these appellants premise their argument on their belief that this Court wrongly decided Giffear v. Johns-Manville Corp., supra, and therefore, our Supreme Court will reverse the decision. Ms. Taylor and the Meehans further contend that even if Giffear v. Johns-Manville Corp., supra, is affirmed by the Supreme Court, their cases do not fall under the standard set forth by that case. In the cases of the Watkinses and the Rifferts, however, the appeal relies solely on the premise that Giffear v. Johns-Manville Corp., supra, will be reversed and it is conceded that if that case is affirmed, their cases were correctly dismissed and placed on the inactive list. Furthermore, the Yellocks contend that the trial court erred in granting appellees’ motion for summary judgment. The Yellocks assert two arguments in support of this position; first, the trial judge incorrectly allowed appellees’ summary judgment motion to be heard because it was untimely and second, the trial judge erred in granting appellees’ motion because the motion was devoid of merit.

When reviewing a motion for summary judgment, we must adhere to the following principles.

First, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, must demonstrate that there exists no genuine, triable issue of fact. Pa.R.C.P. 1035(b). Second, the record must show that the moving party is entitled to judgment as a matter of law. Id. The court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the moving party. Kerns v. Methodist Hosp., 393 Pa.Super. 533, 536-37, 574 A.2d 1068, 1069 (1990); Knecht v. Citizens & Northern Bank, 364 Pa.Super. 370, 373-74, 528 A.2d 203, 205 (1987). It is fundamental that the moving party’s evidence must clearly exclude any genuine issue of material fact. Aimco Imports v. Industrial Valley Bank, etc., 291 Pa.Super. 233, 435 A.2d 884 (1981).

Stidham v. Millvale Sportsmen’s Club, 421 Pa.Super. 548, 558, 618 A.2d 945, 950 (1992).

The complexion of asbestos law in this Commonwealth was altered in 1993. See Giffear v. Johns-Manville Corp., supra at 327, 632 A.2d at 880. Prior to Giffear v. Johns-Manville Corp., supra, a plaintiff suffering from asymptomatic pleural thickening could recover nominal damages for the non-malignant affliction and subsequently could bring a cause of action for any malignancy, such as cancer. Marinari v. Asbestos Corp., 417 Pa.Super. 440, 445, 612 A.2d 1021, 1023 (1992). This ruling is known as the “two disease rule” because a plaintiff could recover twice for his exposure to asbestos. See Marinari v. Asbestos Corp., supra at 442, 612 A.2d at 1022; Busfield v. A.C. & S., 434 Pa.Super. 424, 426, 643 A.2d 1095, 1096 (1994). The Marinari v. Asbestos Corp., supra, decision effectively precluded a plaintiff with asymptomatic pleural thickening from a speculative recovery based upon the fear or risk of further injury. See Marinari v. Asbestos Corp., supra at 451, 612 A.2d at 1026. This decision represented “a sharp break from the previous law, which required plaintiffs in Pennsylvania, once informed of pleural thickening, to act within the applicable statute of limitations period to make a claim for an asymptomatic condition and also for any [future] diseases ... related to asbestos exposure.” Giffear v. Johns-Manville Corp., supra at 334 n. 5, 632 A.2d at 884 n. 5. Thus, because the Marinari v. Asbestos Corp., supra, Court “found [that] juries must now base their verdicts not upon sheer speculation as to possible future damages, but rather upon only empirical or physically objective evidence of present injury, should [a plaintiff] at some future date develop an asbestos-related malignancy, he is not to be precluded from instituting a second action.” Morrison v. Fibreboard Corp., 428 Pa.Super. 114, 117-18, 630 A.2d 436, 437 (1993).

By establishing the two disease rule for recovery and eliminating the bar of the statute of limitations preventing an action for a malignancy which developed after the onset of asbestosis or pleural thickening, the need to anticipate all possible consequences arising out of a single disease approach has been obviated. Just as all “past present and future asbestos-related mental anguish, inconvenience and distress” arising out of asbestosis or pleural thickening injuries may be fairly compensated in the initial asbestosis action, the same factors are relevant in establishing damages for the malignancy at the time it becomes actionable. No recovery may be had merely for the emotion and anguish arising from the possibility of the development of a malignancy.

Id. at 118, 630 A.2d at 437-38 (citations omitted).

This Court’s holding in Giffear v. Johns-Manville Corp., supra, however, overruled Marinari v. Asbestos Corp., supra and Morrison v. Fibreboard Corp., supra. We specifically set forth that “asymptomatic pleural thickening does not constitute an injury sufficient to bring about a legal cause of action.” Giffear v. Johns-Manville Corp., supra at 338, 632 A.2d at 886. Moreover, we emphasized that when a plaintiff suffers from “discernible physical symptoms, a functional impairment or disability” resulting from asbestos exposure, the law would “clearly recognize that his injury would entitle him to an award of damages.” Id. at 341, 632 A.2d at 887. Therefore, if a plaintiff is able to “lead [an] active, normal [life], with no pain or suffering, no loss of an organ function ...,” he does not have a compensable injury. Id. at 341, 632 A.2d at 884. Finally, this Court concluded Giffear v. Johns-Manville Corp., supra, by emphasizing that a plaintiff diagnosed with an asbestos-related disease must suffer discernible physical symptoms to have a compensable injury. Id. at 345, 632 A.2d at 889.

Instantly, Judge Sabo was not in error for deferring the Meehans’, Watkins’ and Rifferts’ cases. Despite the fact that Judge Sabo stated in his opinion that he dismissed these cases based on Eckenrod v. GAF Corp., 375 Pa.Super. 187, 544 A.2d 50 (1980), allocatur denied, 520 Pa. 605, 553 A.2d 968 (1988), which requires a plaintiff to identify the specific product which caused plaintiffs injury, it is apparent from the pretrial transcript that Judge Sabo also correctly relied on Giffear v. Johns-Manville Corp., supra, to grant appellees’ motions. Counsel stated several times that the motions were deferrals under Giffear v. Johns-Manville Corp., supra. See N.T. 1/5/94 at 11, 27, 33. Furthermore, Judge Sabo stated that appellants’ cases were not being dismissed but were being deferred pending the outcome of Giffear v. Johns-Manville Corp., supra. See N.T. 1/5/94 at 34-35.

Moreover, Mr. Meehan, Mr. Watkins, and Mr. Riffert were all diagnosed with an asymptomatic asbestos-related disease and have not suffered any discernible physical symptoms or functional impairment. Appellant-husbands Watkins and Meehan suffer only from shortness of breath and appellant-husband Riffert currently suffers no discernible symptoms upon which recovery can be based. The record indicates that these three appellant-husbands lead active, normal lives and suffer no pain, loss of organ function or other manifestations of asbestosis. Therefore, until these appellants develop symptoms which are functionally impairing, they are precluded from recovering any damages. If, however, these appellants develop a symptomatic asbestos-related disease in the future, they will have a cause of action and will be able to file a lawsuit. Accordingly, Judge Sabo was correct in deferring appellants Watkins’, Meehan’s and Riffert’s cases pending the development of a compensable injury.

Similarly, Judge Sabo was not in error for dismissing appellant Taylor’s case. Because decedent remained asymptomatic throughout his lifetime, decedent did not suffer a compensable injury under Giffear v. Johns-Manville Corp., supra. Despite the fact that, in his opinion, Judge Sabo claimed that the dismissal was based on Eckenrod v. GAF Corp., supra, as with appellants Watkins, Meehan and Riffert, the transcript reflects that Judge Sabo also predicated his decision on Giffear v. Johns-Manville Corp., supra. See N.T. 1/5/94 at 21, 23. Because decedent had died, deferral of Mr. Taylor’s claim under Giffear v. Johns-Manville Corp., supra, is futile. Mr. Taylor was asymptomatic when he died and will never develop a compensable asbestos-related injury. Hence, Judge Sabo was not in error for dismissing appellant Taylor’s case.

The Yellocks, however, raise separate issues which are unrelated to Giffear v. Johns-Manville Corp., supra. Appellants Yellock first contend that the trial judge erred in granting appellees’ summary judgment motion because the motion was untimely. As a result, these appellants claim that they were unable to respond to the motion. We agree.

At the outset, it is necessary to address appellees’ contention that appellants Yellock waived the issue of the timeliness of appellees’ summary judgment motion. Appellees argue that appellants Yellock did not object to the timeliness of the summary judgment motion and further contend that because the Yellocks did not raise the issue in their statement of matters complained of on appeal, the issue is waived. We disagree.

Initially, we note that the Yellocks did object to the granting of the summary motion and therefore this argument is meritless. See N.T. 1/5/94 at 65. However, when filing a statement of matters complained of on appeal, the Yellocks must adhere to Pa.R.App.P. 1925(b). Upon the receipt of notice of an appeal, a trial judge “may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on ... appeal....” Pa.R.App.P. 1925(b). Should the appellant fail to follow such an order, the appellant’s failure “may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of.” Pa.R.App.P. 1925(b). Thus, this Court has ruled that the failure to raise a particular issue in the concise statement of matters complained of on appeal may result in a waiver of that issue. Gilmore by Gilmore v. Dondero, 399 Pa.Super. 599, 582 A.2d 1106, 1108 (1990). See also Commonwealth v. Forest, 427 Pa.Super. 602, 607, 629 A.2d 1032, 1035 (1993), allocatur denied, 536 Pa. 642, 639 A.2d 28 (1994). It is, however, within the appellate court’s discretion to review the issue unless the failure to raise the issue in the Pa.R.App.P. 1925(b) statement hinders appellate review. Gilmore by Gilmore v. Dondero, supra at 604, 582 A.2d at 1108. The rationale behind this rule is that when an appellant fails to raise an issue in the Pa.R.App.P. 1925(b) statement, an appellate court may not have the benefit of the rationale of the trial court in support of its decision. Id. at 604, 582 A.2d at 1108. In the event that an issue raised in the Pa.R.App.P. 1925(b) statement is analogous to and essentially presents the same legal question as a properly raised challenge, this Court will often review the entire case. See id. at 604, 582 A.2d at 1108.

Instantly, despite the fact that the Yellocks did not specifically raise the issue of the timeliness of appellees’ summary judgment motion, an analogous issue was raised in their Pa.R.App.P. 1925(b) statement. Appellants raised the following issue: “Did not the trial court err in granting summary judgment by refusing plaintiff permission to obtain an affidavit from plaintiffs product identification co-worker when the defendants had earlier canceled this witness’ deposition?” See Supplemental Record at 3. This issue effectively raises the issue of untimeliness and Judge Sabo’s refusal to allow appellants time to respond to the summary judgment motion. Judge Sabo failed to respond to this issue in his opinion. Rather, he stated only that “defendant filed a motion for summary judgment” and never addressed the fact that the Yellocks specifically requested a continuance in order to prepare a response. See Trial Court Opinion at 3 and N.T. 1/5/94 at 65. Hence, we will employ our discretion and review the Yellocks’ issue regarding the timeliness of appellees’ summary judgment motion.

When moving for summary judgment, the moving party must adhere to Pa.R.Civ.P. 1035, the relevant parts of which follow:

(a) After the pleadings are closed, but within such time as not to delay trial, any part may move for summary judgment on the pleadings and any depositions, answers to interrogatories, admissions on file and supporting affidavits.
Note
See Definition Rule 76 for definition of “affidavit.”
In asbestos litigation, a motion for summary judgment filed by one defendant alleging a ground common to one or more other defendants is deemed filed on behalf of all such defendants. See Rule 1041.1(f).

Pa.R.Civ.P. 1035(a) (emphasis added). It is Pa.R.Civ.P. 1035(a) which applies to the timeliness for filing a summary judgment motion. Unlike the federal rule for summary judgment, Fed.R.C.P. 56(c), which requires that the moving party give ten days’ notice to the non-moving party, Pa.R.Civ.P. 1035(a) is silent with respect to notice for the non-moving party. Moscatiello Const. v. Pittsburgh, 155 Pa.Cmwlth. 361, 365, 625 A.2d 155, 157 (1993). The lack of an “express notice requirement certainly does not abrogate the right of an opposing party to reasonable notice and a meaningful opportunity to be heard.” Id. Furthermore, both Pa.R.Civ.P. 1035(a) and the Note to Rule 1035(a) use the term “file” when referring to summary judgment. The term “file” is defined as:

To lay away and arrange in order, pleadings, motions, instruments, and other papers for preservation and reference. To deposit in the custody or among the records of a court. To deliver an instrument or other paper to the proper officer or official for the purpose of being kept on file by him as a matter of record and reference in the proper place. It carries the idea of permanent preservation as a public record.

Black’s Law Dictionary, 5th ed. at 566. It may be gleaned from this definition that filing is a formal act of placing a document in the hands of the court. Accordingly, an oral request for summary judgment absent a written document is insufficient to meet the requirements of Pa.R.Civ.P. 1035(a).

Moreover, our Supreme Court has ruled that a motion for judgment on the pleadings raised for the first time on the morning that trial is scheduled to commence is insufficient time to allow the opposing party an opportunity to respond. Cagnoli v. Bonnell, 531 Pa. 199, 204, 611 A.2d 1194, 1196 (1992). “Clearly the draftees of Rule 1034 did not envision that a motion for judgment on the pleadings would be submitted, let alone considered, on the very morning that trial is to begin and a jury has been empaneled.” Id. at 203, 611 A.2d at 1196. The Supreme Court reasoned that an opposing party presented with a motion on the morning that trial is to commence is not afforded a full and fair opportunity to argue against the motion. Id. This ruling has been applied to summary judgment motions where the court found that a summary judgment motion may not be granted when it is filed on the morning of trial. Moscatiello Const. v. Pittsburgh, supra at 363, 625 A.2d at 156.

Instantly, appellees moved for summary judgment on the morning that trial was to commence and after a jury had been empaneled. Based on Cagnoli v. Bonnell, supra, and Moscatiello Const. v. Pittsburgh, supra, this is an improper procedure because the Yellocks were denied notice and a reasonable opportunity to respond to the motion. Furthermore, appellees orally moved for summary judgment rather than filing the motion. This certainly does not comport with the Pa.R.Civ.P. 1035(a) requirement that a moving party file a motion for summary judgment. The Yellocks repeatedly requested the opportunity to depose witnesses and prepare affidavits in response to appellees’ motion. See N.T. 1/5/94 at 47, 48, 55, 56, 64-65. As a result of the trial judge’s refusal to allow the Yellocks to respond to appellees’ motion, the Yellocks were effectively denied notice and an opportunity to argue effectively against the motion. Certainly, it was not the intention of the drafters of Pa.R.Civ.P. 1035 to preclude a non-moving party a full and fair opportunity to respond to a summary judgment motion. Accordingly, we conclude that Judge Sabo erred by granting appellees’ motion for summary judgment with regard to the Yellocks.

Based on the foregoing, we affirm the order of the trial court granting appellees’ motion for dismissal with regard to Ms. Taylor and affirm the orders of the trial court deferring the cases of the Watkinses, the Meehans and the Rifferts. With respect to the Yellocks, however, we reverse the order of the trial court granting appellees’ motion for summary judgment and remand the case for further proceedings consistent with this opinion.

Order affirmed in part and reversed in part. Case remanded. Jurisdiction relinquished.

      . Apparently, following this Court’s ruling in Giffear v. Johns-Manville Corp., 429 Pa.Super. 327, 632 A.2d 880 (1993), allocatur granted, 539 Pa. 651, 651 A.2d 539 (1994), the Philadelphia County Court of Common Pleas has created an inactive docket for cases which failed to meet the Giffear requirements. Accordingly, cases in which a plaintiff is asymptomatic yet diagnosed with an asbestos-related disease or pleural thickening are deferred with the right to request reinstatement if the plaintiff develops physical manifestations of asbestosis.

      . Shortness of breath alone is not a compensable injury under Giffear v. Johns-Manville Corp., supra, because it is not a discernible physical symptom, a functional impairment, or a disability. It is common knowledge that breathlessness is also associated with any number of non-asbestos-related ailments including lung cancer, excessive cigarette smoking, heart disease, obesity, asthma, emphysema and allergic reactions. All three appellant-husbands smoked cigarettes at some point in their lives and the record reflects that appellant Watkins is overweight and suffers from heart problems.

      . We note that we specifically reject Judge Sabo’s application of Eckenrod v. GAF Corp., supra, to the facts of this case. Because we may affirm the decision of the trial court for any reason as long as its result is correct, Hutchison v. Luddy, 417 Pa.Super. 93, 113 n. 7, 611 A.2d 1280, 1291 n. 7 (1992), allocatur granted, 533 Pa. 660, 625 A.2d 1193 (1993), dismissed, 538 Pa. 484, 649 A.2d 435 (1994), we conclude that our resolution of the appeals of the Watkinses, the Meehans, and the Rifferts, discussed supra, and the appeal of Ms. Taylor, discussed infra, are based solely upon Giffear v. Johns-Manville Corp., supra. Hence, as the Rifferts’, Meehans’, and Watkins’ claims are not yet actionable under Giffear v. Johns-Manville Corp., supra, their cases should be placed, if they have not been placed thus far, on the inactive list in the Asbestos Division of the Philadelphia County Court of Common Pleas. These claims may become actionable at some future time.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    666 A.2d 690
    COMMONWEALTH of Pennsylvania v. Robert L. JOHNSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 14, 1995.
    Filed Oct. 16, 1995.

      Joseph P. Burt, Public Defender, Erie, for appellant.
    William A. Dopierala, Assistant District Attorney, Erie, for Commonwealth, appellee.
    Before CAVANAUGH, JOHNSON and OLSZEWSKI, JJ.
   CAVANAUGH, Judge:

Robert L. Johnson appeals from an aggregate judgment of sentence of 6 to 12 years imposed following his convictions for reckless endangerment, homicide by vehicle and leaving the scene of an accident involving death or serious bodily injury. The sentencing judge denied appellant’s motion to modify the sentence. After careful review of the record, we affirm in part and vacate in part and remand for resentencing.

On March 5, 1994 at 2:00 a.m. Leah Morris drove appellant and Albert McDonald, a.k.a. James Cooley, to Thompson St. in Erie County to purchase marijuana. When they reached Thompson Street, a crowd was gathered on the street. An individual kicked their car, inciting Johnson and Cooley to jump out of the car and fight with members of the crowd.

Following the altercation, Johnson jumped into the driver’s seat of the car, and Morris moved into the passenger seat. They picked up Cooley and accelerated down Thompson Street. After driving a short distance, Johnson turned the car around and accelerated back up Thompson Street toward the crowd. As they approached the crowd, somebody threw a snowball at the car. There is conflicting testimony as to whether anyone threw other objects or menaced the car; in fact, Johnson testified that he believed somebody pointed a gun at the car.

Johnson swerved the car over the curb, onto the sidewalk, and into the crowd. The car struck Dara Curlett and Lamont Stovall, who were standing on the sidewalk. Johnson drove off and left the scene. Dara Curlett died as a result of this accident, and Lamont Stovall was seriously injured.

After a jury trial, appellant was convicted and sentenced on the following counts; all terms to be served consecutively:

1. On count two, recklessly endangering Lamont Stovall, one to two years incarceration;
2. On count four, homicide by motor vehicle, two and one-half to five years incarceration; and
3. On count six, leaving the scene of an accident involving death or personal injury, two and one-half to five years incarceration.

The sentence is outside the guidelines on counts two and six.

Appellant presents two issues for review: 1) whether the sentencing judge imposed a sentence which is manifestly excessive and clearly unreasonable and 2) whether a mistrial was required to remedy the prejudicial reference during trial to his previous jail term.

In the first issue, appellant challenges the discretionary aspects of the sentence. Preliminarily, we note that appellant has complied with the procedural requirements of Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987) and the Pennsylvania Rules of Appellate Procedure, 42 Pa.Cons.Stat. Ann. § 2119(f), by including a section in his brief containing a statement of reasons for review.

Additionally, we must determine whether appellant states a substantial question meriting review. See Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). In essence, appellant presents four arguments in the statement of reasons to challenge the discretionary aspects of his sentence: 1) the court failed to consider mitigating factors and the rehabilitative needs of appellant; 2) the sentence is excessive because the court imposed consecutive terms; 3) the court sentenced outside the guidelines without reflecting a consideration of the' guidelines; and 4) the court failed to state adequate reasons on the record for sentencing outside the guidelines.

Appellant’s first two arguments, which challenge the weight accorded sentencing factors and the excessiveness of the sentence, fail to present a substantial question. “A challenge to the weight accorded sentencing factors does not raise a substantial question absent extraordinary circumstances.” Commonwealth v. Breter, 425 Pa.Super. 248, 251, 624 A.2d 661, 662 (1993). We find no extraordinary circumstances. In addition, this Court has held that a challenge to the excessiveness of a sentence fails to state a substantial question where the sentence is within the statutory limits. Id.; Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731 (1992). As this sentence is within the statutory limits, we find no substantial question.

Appellant, however, states a substantial question in the third and fourth arguments. Appellant asserts that the sentencing judge sentenced outside the guidelines without reflecting a consideration of the guidelines, and that the sentencing judge failed to state adequate reasons on the record for sentencing outside the guidelines. These issues advance a “colorable argument that the trial judge’s actions were inconsistent with a specific provision of the sentencing code.” Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994). Therefore, we will review the merits of these arguments.

“Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion.” Commonwealth v. Dotter, 403 Pa.Super. 507, 516, 589 A.2d 726 (1991). As the sentencing guidelines are merely advisory, “[i]f the court finds it appropriate to sentence outside the guidelines, of course it may do so as long as it places its reasons for the deviation on the record.” Commonwealth v. Dutter, 420 Pa.Super. 565, 570, 617 A.2d 330, 333 (1992) (citing Commonwealth v. Cornish, 403 Pa.Super. 492, 497, 589 A.2d 718, 721 (1991)). See also Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994); Commonwealth v. Clever, 395 Pa.Super. 192, 576 A.2d 1108 (1990).

In sentencing outside the guidelines, the sentencing judge must follow the mandate of § 9721(b) of the Sentencing Code, 42 Pa.Cons.Stat.Ann. § 9701 et seq., which provides in pertinent part:

In every case where the court imposes a sentence outside the sentencing guidelines adopted by the Pennsylvania Commission on Sentencing ... the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines. Failure to comply shall be grounds for vacating the sentence and resentencing the defendant.

42 Pa.Cons.Stat.Ann. § 9721(b). In Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994), this Court clarified the requirements of the statute:

The statute requires a trial judge who intends to sentence a defendant outside the guidelines to demonstrate on the record, as a proper starting point, his awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as he also states of record “the factual basis and specific reasons which compelled [him] to deviate from the guideline range.”

Id. (quoting Commonwealth v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984)). In Commonwealth v. Chesson, 353 Pa.Super. 255, 258, 509 A.2d 875, 877 (1986), this Court further explained the rationale for requiring a statement of reasons for sentencing outside the guidelines:

The court’s statement of reasons for deviating from the guidelines serves not only as a record of the court’s rationale for the deviation but also as evidence that the court considered the guidelines. We cannot analyze whether there are adequate reasons for the deviation unless it is first apparent that the court was aware of, and considered the guidelines.

Id.

We first consider whether the sentencing judge set forth an adequate contemporaneous statement of reasons for deviating from the guidelines. 42 Pa.Cons.Stat.Ann. § 9721(b). The sentencing judge initially stated that the sentences were all within the standard ranges, although he sentenced outside the guidelines on two counts. He corrected this statement by noting that he intended to sentence outside the guidelines on count six, leaving the scene of the accident; yet failed to correct this statement as to count two, reckless endangerment of Lamont Stovall.

As to count two, the sentencing judge did not start at the proper point by demonstrating an awareness of the guidelines. While he deviated from the guidelines, the record reflects that he intended to sentence within the standard range. With this mistake on the record, we have no indication that the sentencing judge was aware of the range of the available sentences within the guidelines when he sentenced appellant. We cannot analyze whether the reasons for deviating from the guidelines are adequate where the sentencing judge does not demonstrate on record an awareness of the applicable guideline ranges. Commonwealth v. Chesson, 353 Pa.Super. 255, 258, 509 A.2d 875, 877 (1986). Therefore, we must vacate the sentence and remand for resentencing on this count.

Finally, the sentencing judge did meet the requirements of section 9721(b) as to count six, leaving the scene of the accident. He started at the proper point by stating on the record that he intended to sentence outside the guidelines on this count. See Commonwealth v. Canfield, 432 Pa.Super. 496, 639 A.2d 46 (1994). The sentencing judge also provided adequate reasons on the record for sentencing outside the guidelines on this count. He stated:

First of all, that you have a long history of criminal involvement including seven previous convictions, plus summary offenses, including a felony escape charge from a state prison in Michigan, including, of course, the prior violent criminal offense that I identified [referring to assault with deadly weapon].
That on this particular occasion, on the night Dara Curlett was killed, that your conduct was extremely dangerous and without any regard for the safety of other people. That you have been previously incarcerated for a long period of time, that you have been on both probation and parole, and that none of those things have had any positive effect whatsoever.
That during the time you have been in Erie County Prison, your record of adjustment has been awful. And that there is an overwhelming need in this case to protect the public, and I find that there is no prospect of rehabilitation, given the limitations of what society currently has to offer. And that in general, your conduct on this night constituted a senseless act in response to circumstances that certainty did not require it, the behavior that you engaged in, and we have a death for which everybody is very sad.

The judge also specifically noted the reasons for sentencing outside the guidelines on count six:

... [t]he record as I’ve indicated, should reflect that I think his conduct in that regard was particularly despicable. The reason being that at that time, he had driven his car into a crowd. It was obvious that he had struck people. It was obvious that they were likely to be seriously injured, and it was equally obvious that Mr. Johnson’s concern was for himself and to flee the area when, in fact, there was a need at that time to respond to the needs of the victims.
In addition to that, I believe his long history of criminal involvement makes it clear that his conduct on that night was probably predictable and is further evidence of being extraordinarily criminal.

These reasons are adequate, as the court reflected a consideration of the guidelines, the appellant’s prior criminal record, personal characteristics and potential for rehabilitation. Therefore, the court did not abuse its discretion in sentencing appellant for leaving the scene of the accident.

In the second issue, appellant claims that a reference to his prior jail time prejudiced him and requires a mistrial. This court recently summarized the relevant law in Com. v. Sattazahn, 428 Pa.Super. 413, 434, 631 A.2d 597, 608 (1993):

Clear references to prior unrelated criminal conduct by a defendant generally warrant the granting of a defense motion for mistrial, because the commission of one crime is not proof of the commission of another and because the effect of such evidence is to create unfair prejudice against the defendant. However, not all references which may indicate prior criminal activity warrant reversal. Mere “passing references” to prior criminal activity will not necessarily require reversal unless the record illustrates definitively that prejudice resulted from the reference. The nature of and whether the remark was intentionally elicited by the Commonwealth are additional factors to determining whether a mistrial is necessary. Moreover, an immediate curative instruction to the jury may alleviate [the] harm [which would otherwise result] from reference to prior criminal activity.

Id. (citations omitted).

Here, the following reference occurred on direct examination by the Commonwealth of James Cooley.

Q. So what happened?
A. Well, Robert gets out again and they start arguing. And I told him — I says, ‘Look, I can take him. Let me take him.’ He just got out of jail. And he said, ‘No, I’m going to show you what a real gangster’s like.’

After denying a motion for a mistrial, the trial court immediately gave a curative instruction to the jury.

The reference was a passing remark and it was not intentionally elicited by the Commonwealth. The trial court’s immediate curative instruction alleviated any prejudicial impact. See Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1 (1992). The inadvertent reference to appellant’s prior jail time was not so prejudicial as to require a mistrial. Therefore, we affirm the judgment of sentence.

For the foregoing reasons, we vacate the judgment of sentence for reckless endangerment of Lamont Stovall and remand for resentencing; we affirm the judgment of sentence for homicide by motor vehicle, and for leaving the scene of an accident involving death or serious bodily injury.

Affirmed in part, vacated in part and remanded. Jurisdiction relinquished.

      . The sentencing judge clarified his intent to sentence outside the guidelines on both counts in his order denying the motion to modify the sentence. This statement, however, was not given at the sentencing hearing in Johnson’s presence; therefore, it is not a "contemporaneous statement” under section 9721(b).

      . Were we free to do so, we would have no hesitation in finding the reasons stated elsewhere by the court to be a sufficient basis for the deviation from the guidelines.


author: CIRILLO, Judge:

text:
    666 A.2d 695
    Marjorie COTTERMAN v. ALLSTATE INSURANCE COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 8, 1995.
    Filed Oct. 16, 1995.
    Reargument Denied Dec. 18, 1995.

      Joseph P. Lenahan, Scranton, for appellant.
    Joseph P. Coviello, Clarks Summit, for appellee.
    Before ROWLEY, President Judge, and CIRILLO and HOFFMAN, JJ.
   CIRILLO, Judge:

Allstate Insurance Company (“Allstate”) appeals from the order entered in the Court of Common Pleas of Lackawanna County denying Allstate’s petition to vacate, modify and/or correct a statutory arbitration award. We affirm.

Appellee Marjorie Cotterman (“Cotterman”) sustained personal injuries as a result of an automobile accident which occurred on March 11, 1991. The accident occurred in Huntington Township, Luzerne County, while Cotterman was riding as a passenger in a vehicle driven by Zane Welch (“Welch”). The driver of the other automobile was Timothy Yarnell (“Yarnell”).

At the time of the accident, Yarnell was insured by The Harleysville Insurance Companies (“Harleysville”), policy number 738695. Cotterman carried automobile insurance issued by Allstate, policy number 008315273. On or about August 26, 1992, Harleysville paid to Cotterman the limits of Yarnell’s liability policy — $91,831.16. Allstate paid to Cotter-man the limits of its liability for first party benefits — $5,000.00 for lost wages, and $10,000.00 for medical expenses.

Cotterman then made a claim for underinsurance (UIM) benefits under the Allstate policy. The matter proceeded to arbitration pursuant to the Uniform Arbitration Act (“UAA”), 42 Pa.C.S.A. § 7301 et seq. Prior to the arbitration hearing, Allstate requested permission to conduct an examination under oath (hereinafter an “EUO”) of Cotterman. The arbitration panel denied this request, finding that no basis existed under either the insurance policy at issue or the applicable law to permit an EUO of Cotterman.

Cotterman’s vocational and economic expert testified that the value of Cotterman’s future wage loss ranged from $181 ,- 800.00 to $281,800.00, depending on age of retirement. The arbitrators also considered expert testimony regarding the value of Cotterman’s household services. The expert based his opinion upon a two person household because, at the time of the accident, Cotterman had been residing with Welch for some time.

Other than the wage loss benefits paid to Cotterman in the amount of $5,000.00, the panel was not apprised of the amounts previously paid to Cotterman — i.e., the amount of $91,831.16 paid by Harleysville, plus the limits of Allstate’s first party benefits. The parties agreed, however, that the arbitrators’ award would be molded to reflect Harleysville’s payment of $91,831.16.

On September 15, 1994, the arbitrators issued an award in favor of Cotterman in the amount of $299,000.00. Allstate received notice of the award and filed a timely petition to vacate, modify or correct the award before the Court of Common Pleas of Lackawanna County. The Honorable Frank P. Eagen denied the petition, molded the award to reflect Harleysville’s payment of its limits of liability ($91,-831.16), and entered judgment in favor of Cotterman in the amount of $207,168.84. Judge Eagen also awarded to Cotter-man interest on the judgment from the date of the award, September 15,1994, at an annual rate of six percent.

Allstate filed this timely appeal. Allstaté presents five questions for our consideration:

(1) Did the trial court err as a matter of law in upholding the arbitrators’ decision to deny Allstate’s request, in accordance with the insurance contract, for an examination under oath of the Plaintiff (Cotterman) prior to the arbitration hearing?
(2) Did the trial court err as a matter of law in failing to modify the arbitrators’ award reflecting reduction of $5,000.00 wage loss previously paid by Allstate under first party benefits?
(3) Did the trial court err as a matter of law in failing to modify the arbitrators’ award to an unmarried Plaintiff for loss of her own household services when:
(a) she incurred no out-of-pocket expenses to hire someone to provide household services, and
(b) damages were speculative by her own expert’s testimony?
(4) Did the trial court err as a matter of law in failing to mold the arbitrators’ award to conform to the contractual liability limit of the policy?
(5) Did the trial court err as a matter of law in granting interest dating from the September 15, 1994, award at an annual rate of six percent?

Chapter 73 of the Judicial Code regulates statutory, common law and judicial arbitration. More specifically, sections 7301 through 7320 of Chapter 73 regulate statutory arbitration, 42 Pa.C.S.A. §§ 7301-20 (Uniform Arbitration Act (“UAA”)), while sections 7341 and 7342 regulate common law arbitration, 42 Pa.C.S.A. §§ 7341-42.

When an agreement to arbitrate is not clear as to whether common law or statutory arbitration rules shall apply, the common law rules regulate the enforcement of the agreement and the award unless, subsequent to the agreement, the parties expressly, or by implication, agree that the statutory arbitration rules shall govern. 42 Pa.C.S.A. § 7302(a). See Brennan v. General Acc. Fire and Life Assur. Corp., 524 Pa. 542, 574 A.2d 580 (1990); Elkins & Co. v. Suplee, 371 Pa.Super. 570, 538 A.2d 883 (1988). In the case at bar, the parties sought arbitration pursuant to the insurance policy which stated that “arbitration will take place as provided under the Pennsylvania Uniform Arbitration Acts of 1927 and 1980.” This language constitutes an express provision, by the parties, for statutory arbitration. Bowdren v. Aetna Life and Casualty, 404 Pa.Super. 595, 601, 591 A.2d 751, 754 (1991).

Pursuant to 42 Pa.C.S.A. § 7302(d), a statutory arbitration award will be modified or corrected where the award is contrary to law, but only in the following circumstances:

(i) The Commonwealth government submits a controversy to arbitration.
(ii) A political subdivision submits a controversy with an employee or a representative of employees to arbitration.
(iii) Any person has been required by law to submit or to agree to submit a controversy to arbitration pursuant to this subchapter.

Id.

In the instant case, neither the Commonwealth nor a political subdivision is a party to the arbitration. Therefore, section 7302(d)(iii) is appellant’s only possible recourse for judicial review. We have previously stated, however, that there are only two cases which, without more, shall be viewed as falling within section 7302(d)(iii):

(1) agreements to arbitrate made prior to December 4, 1980, the effective date of the 1980 Act, expressly providing for arbitration pursuant to the laws of the Commonwealth; and
(2) agreements to arbitrate, made either before or after 1980, expressly providing for arbitration under the 1927 Act [which provided for a contrary to law standard for review].

Popskyj v. Keystone Ins. Co., 388 Pa.Super. 429, 441, 565 A.2d 1184, 1190 (1989) (en banc), alloc. denied, 525 Pa. 602, 575 A.2d 567 (1990).

Here, the Allstate insurance policy was executed after the effective date of the 1980 Act. The policy’s arbitration provision, however, expressly provides that arbitration will be governed by both the 1927 Act and the 1980 Act. As such, the contrary to law standard is seemingly applicable to the instant arbitration award. 42 Pa.C.S.A. § 7302(d)(iii). See Geisler v. Motorists Mut. Ins. Co., 382 Pa.Super. 622, 556 A.2d 391 (1989) (holding that contrary to law standard of review applied to dispute between insurer and insureds involving uninsured motorist coverage where insurance policy provided that if either party demanded arbitration to resolve a dispute involving uninsured motorist coverage arbitration shall be conducted in accordance with 1927 Act).

Notwithstanding the above, the instant arbitration provision also provides that the 1980 Act is applicable to UM/UIM arbitrations. The 1980 Act sets forth a more stringent standard for vacating, modifying and/or correcting statutory arbitration awards. Section 7314, in part, permits a court to vacate an award where:

(i) the court would vacate the award under section 7341 (relating to common law arbitration) if this subchapter were not applicable;
(ii) there was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party;
(iii) the arbitrators exceeded their powers;
(iv) the arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of section 7307 as to prejudice substantially the rights of a party; or
(v) there was no agreement to arbitrate and the issue of the existence of an agreement to arbitrate was not adversely determined in proceeding under section 7304 and the applicant-party raised the issue of the existence of an agreement to arbitrate the hearing.

42 Pa.C.S.A. § 7314(a)(1). Section 7315 of the Uniform Arbitration Act permits the court to modify or correct an arbitration award where:

(1) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
(2) the arbitrators awarded upon a matter not submitted to them and the award may be corrected -without affecting the merits of the decision upon the issues submitted; or
(3) the award is deficient in a matter of form, not affecting the merits of the controversy.

42 Pa.C.S.A. § 7315(a).

Before we can reach Allstate’s substantive issues, we must determine which standard governs our review — the contrary to law standard of the 1927 Act, the more strict 1980 Act, or a combination thereof? As of the date of this opinion, this precise issue has not been addressed by the appellate courts of this Commonwealth.

This court has developed a preference for applying the 1980 Act, especially when it is unclear whether the parties intended to be bound by the 1927 Act or the 1980 Act. For example, in cases where the policy or agreement provided only that the Pennsylvania Uniform Arbitration Act would govern, without any mention of either the 1927 or 1980 Acts, this court has generally applied the limited standard of review of the 1980 Act. See, e.g., Cigna Ins. Co. v. Squires, 427 Pa.Super. 206, 628 A.2d 899 (1993) (holding that error of law standard is not applicable where policy in question was issued after effective date of 1980 Act, and policy did not require arbitration to occur under provisions of the 1927 Act); Martin v. PMA Group, 420 Pa.Super. 624, 617 A.2d 361 (1992) (applying 1980 Act where policy stated only that the Pennsylvania Uniform Arbitration Act governs); Popskyj, supra (same); Azpell v. Old Republic Ins. Co., 382 Pa.Super. 255, 555 A.2d 168 (1989), rev’d on other grounds, 526 Pa. 179, 584 A.2d 950 (1991) (same).

To reconcile the conflicting standards in Allstate’s arbitration provision, we find it more prudent, and more in line with the previous decisions of this court, to apply the latest enactment of the Pennsylvania legislature — the 1980 Act — to review the instant arbitration award. While the inclusion of both Acts in Allstate’s policy is most likely the result of poor draftsmanship, we think it more consistent with the parties’ intent to apply the later Act, which sets forth a narrow legal standard, as compared to the 1927 Act’s broad scope of review. Additionally, this decision is consistent -with this court’s duty to construe the ambiguous language in the policy against the party which drafted the contract, herein the insurer. Rusiski v. Pribonic, 511 Pa. 383, 390, 515 A.2d 507, 510 (1986); Geisler, 382 Pa.Super. 622, 627, 556 A.2d 391, 393 (1989). Accordingly, sections 7314 and 7315 of the Judicial Code provide the applicable standards of review in this case.

Allstate first contends that the arbitrators’ award should be vacated on grounds that the arbitrators erred in denying Allstate’s pre-arbitration request to examine Cotter-man under oath (an “EUO”). Allstate claims that such an examination would have allowed it to conduct an investigation into Cotterman’s pre-existing conditions and into the validity of Cotterman’s alleged damages. Allstate argues that the arbitrators’ refusal to order an EUO was contrary to the governing insurance policy and, hence, “contrary to law.” As articulated above, however, the contrary to law standard of the 1927 Act is not applicable to this case. We will nonetheless review Allstate’s first contention, because Allstate argues, in the alternative, that the arbitrators’ denial of the EUO is tantamount to misconduct by the arbitrators. 42 Pa.C.S.A. §§ 7314(a)(1)(ii), 7341. We disagree.

Allstate relies upon section 7309(b) of the UAA, 42 Pa.C.S.A. § 7309(b), and a provision in the insurance policy imposing a duty on the insured to cooperate in any settlement matters, for the proposition that the arbitrators denied Allstate a full and fair hearing by refusing to allow Allstate to conduct an EUO of Cotterman prior to the arbitration hearing. This arguments fails on both grounds.

Section 7309(b) provides:

(b) Depositions. — On application of a party and for use as evidence the arbitrators, in the manner and upon the terms designated by them, may permit a deposition to be taken of a witness who cannot be served with a subpoena or who is unable to attend the hearing.

42 Pa.C.S.A. § 7309(b) (emphasis added). This statute is clearly inapplicable to the facts of this case. Allstate does not, and cannot, contend that Cotterman is a “witness who cannot be served with a subpoena or who is unable to attend the hearing.” On the contrary, Cotterman was capable of being served with a subpoena at all relevant time periods and was able to, and in fact did, attend the arbitration hearing. As such, the above-quoted passage does not pertain to Allstate’s request to conduct an EUO of Cotterman prior to the arbitration hearing.

Notwithstanding the inapplicability of section 7309(b), the arbitrators had exclusive jurisdiction to either grant or deny Allstate’s request for an EUO of Cotterman. The language “may permit” in the statute reflects a clear legislative intent to place the decision of whether to order a deposition (or EUO) squarely within the discretion or province of the arbitrators. Id.

Here, the arbitrators exercised their discretion and found that an EUO of Cotterman was not a condition precedent to commencing arbitration. See Pennsylvania General Ins. Co. v. Barr, 435 Pa. 456, 459, 257 A.2d 550, 552 (1969) (“In other cases construing language virtually identical to that found in present arbitration provisions, we have held that it was for arbitrators to decide whether ... a condition precedent of recovery had been satisfied----” (citations omitted)). We find that the arbitrators’ decision did not amount to misconduct and did not deprive Allstate of a full and fair hearing so as to require vacating the award. 42 Pa.C.S.A. §§ 7314(a)(1)(h), 7341.

Allstate contends that an EUO is required by the applicable insurance policy. This contention, too, is meritless. Page six of the Allstate policy contains the following duty of cooperation provision:

Assistance and Cooperation of the Insured
An insured person must assist us in making settlements, securing evidence, obtaining witnesses and in conducting suits. This includes disclosing all facts, and attending hearings and trials. That person must also help us recover from anyone who may be jointly responsible.

We are convinced that it was within the arbitrators discretion to determine that an EUO of Cotterman was not warranted under the terms of the insurance policy. Cf. Harleysville Mut. Casualty Co. v. Adair, 421 Pa. 141, 218 A.2d 791 (1966) (insurance policy required EUO of insured if so requested by the insurer); Savage v. Commercial Union Ins. Co., 326 Pa.Super. 204, 473 A.2d 1052 (1984) (same). The only claim that Allstate makes regarding the above insurance policy provision is that the arbitrators’ denial of an EUO of Cotter-man “constituted misconduct.” However, having already shown that the statute does not mandate that the arbitrators provide for such a discovery procedure, or that the language of the insurance provision specifies that an EUO be conducted, we find this claim also meritless.

Next, Allstate contends that the trial court erred in failing to modify and/or correct the arbitration award, when said award was not reduced by wage loss benefits of $5,000.00 already paid to Cotterman. This contention is not supported by the record.

As previously stated, the $5,000.00 wage loss benefit which was previously paid to Cotterman by Allstate was made known to the arbitrators. The payment was evidenced by a letter from Allstate to Cotterman, informing Cotterman that her first party benefits had been exhausted. That letter was entered into evidence at the arbitration hearing. There is nothing in the record to indicate that the arbitrators failed to consider this payment in rendering their award. More specifically, there is nothing in the record to support Allstate’s contention that there has been a duplication of benefits. We find, therefore, that the trial court did not err in refusing to modify the arbitrators’ award reflecting the $5,000.00 wage loss payment. 42 Pa.C.S.A. § 7315.

Allstate next contends that the trial court erred by failing to modify the arbitrators’ award for loss of household services when there was no evidence of out-of-pocket expenses incurred by Cotterman and the damages were speculative according to Cotterman’s own expert testimony. We cannot agree.

Cotterman’s expert testified as to Cotterman’s inability to perform household services in the future. The expert also opined as to the dollar value of such household services, based upon a two person household. There is no evidence that the arbitrators abused their discretion in fashioning the award. In fact, there is no evidence indicating that the arbitrators included any amount in their award based upon loss of Cotter-man’s household services. In any event, such matters were solely within their discretion. Majcher v. Bronder, 401 Pa. 500, 165 A.2d 251 (1960).

Next, Allstate contends that the trial court erred in failing to mold the arbitrators’ award to conform to the contractual liability limits of the policy. Based upon the 1980 Act’s standard of review articulated above, an award may be modified only if the complaining party can demonstrate that the award was miscalculated, that the arbitrators based the award upon a matter not submitted to them, or that the award is deficient in form, but which does not affect the merits of the arbitration decision. 42 Pa.C.S.A. § 7315(a). Because none of these instances existed, this argument is without merit.

Finally, Allstate contends that the trial court erred in granting interest at a rate of six percent from the date of the arbitration award, September 15, 1994. Allstate claims that post-judgment interest, if any, should be calculated from the date of the trial court’s order confirming the arbitration award, January 30,1995. We disagree.

Section 8101 of the Judicial Code provides:

Except as otherwise provided by another statute, a judgment for a specific sum of money shall bear interest at the lawful rate from the date of the verdict or award, or from the date of the judgment, if the judgment is not entered upon a verdict or award.

42 Pa.C.S.A. § 8101 (emphasis added).

It is well-established that interest runs from the date the award of the arbitrators is entered — in the present case September 15, 1994. Weldon & Kelly Co. v. Pavia Co., 354 Pa. 75, 46 A.2d 466 (1946). After Cotterman’s arbitration award was entered, the trial court denied Allstate’s petition to vacate, modify and/or correct the award, molded the award to reflect Harleysville’s payment of $91,831.16, and entered judgment in favor of Cotterman on January 30, 1995. As such, the judgment was entered pursuant to a previously rendered arbitration award. Section 8101 provides that interest is to run from the date of said award, not from the date of the judgment. 42 Pa.C.S.A. § 8101. We conclude, therefore, that the trial court calculated the interest on Cotterman’s award from the proper date.

Order affirmed.

      . This figure was computed by subtracting from the limits of liability ($100,000.00) the amounts Harleysville previously paid to Cotterman for property damage and bodily injury ($8,168.84).

      . Section 7341 provides that an arbitrators' award may not be vacated unless "it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an uniust, inequitable or unconscionable award.” 42 Pa.C.S.A. § 7341.

      . In so holding, we distinguish this decision with that of the Commonwealth Court's holding in Dunmore Borough v. Dunmore Police Dept., 106 Pa.Cmwlth. 461, 526 A.2d 1250 (1987). In Dunmore, the court held that interest on an arbitration award did not begin to accrue until confirmation of the award was final. Section 7313 allows a court to confirm an award, on application of a party, unless grounds are urged for vacating or modifying or correcting an award. While the statute places a preference of recognizing an application to vacate/modiiy/correct over competing applications to confirm awards, 42 Pa.C.S.A. § 8101 does not treat imposition of interest on these judgments similarly. As such, we find that the Commonwealth Court's decision on the accrual date of the interest on confirmation of the arbitration award justified a different result under Section 8101.


author: BECK, Judge:

text:
    666 A.2d 701
    WOHLSEN/CROW (A Joint Venture), Appellant, v. PETTINATO ASSOCIATED CONTRACTORS & ENGINEERS, INC. and Hartford Fire Insurance Company.
    Superior Court of Pennsylvania.
    Submitted April 18, 1995.
    Filed Oct. 16, 1995.

      Brian J. Cali, Dunmore, for appellant.

      Corrie L. Fischel, Lancaster, for appellees.
    Before WIEAND, BECK and HOFFMAN, JJ.
   BECK, Judge:

In this appeal we are called upon to review an order issued pursuant to Rule 213.1 of Pennsylvania’s Rules of Civil Procedure, governing coordination of actions in different counties. Pa.R.C.P. 213.1. For the reasons that follow we affirm in part and vacate in part.

The action underlying this appeal arose from a contract dispute involving the construction of a 1000-bed medium security prison to be located in Schuylkill County. Appellant Wohlsen/Crow, A Joint Venture (“Wohlsen/Crow”) entered into a contract with the Redevelopment Authority of Schuylkill County to build the prison. Appellee Pettinato Associated Contractors & Engineers (“PACE”) was subcontracted by Wohlsen/Crow to perform certain concrete slab construction. Appellee Hartford Fire Insurance Company (“Hartford”) is surety on a Subcontract Payment Bond and a Subcontract Performance Bond naming Wohlsen/Crow as obligee.

In February 1993, Wohlsen/Crow brought suit against PACE in the Court of Common Pleas of Lancaster County alleging breach of contract. (Docket No. 588-1993). This case is referred to hereinafter as the “Primary Case.” Subsequent to filing of the Primary Case, PACE filed two separate actions in the Court of Common Pleas of Schuylkill County. The first of these cases is an action in equity seeking to prevent Wohlsen/Crow from terminating the subcontract. (Docket No. S-271-1993). The second case is an action in assumpsit naming as defendants Wohlsen/Crow, American Insurance Company/Fireman’s Fund Insurance Company, and the Redevelopment Authority of Schuylkill County. (Docket No. S-610-1993). These two Schuylkill County cases are referred to collectively hereinafter as the “Secondary Cases.”

In addition to the Primary and Secondary Cases discussed above, three other cases involving PACE and the construction of the prison were initiated in the Court of Common Pleas of Schuylkill County. In May 1993, James W. Quandel & Sons, Inc. brought suit against PACE and Hartford alleging nonpayment for materials supplied. (Docket No. S-663-1993). PACE subsequently joined Wohlsen/Crow as a cross-claim defendant in this action. In June 1993, Ritner Steel filed an action against PACE and Hartford. (Docket No. S-1097-1993). Wohlsen/Crow is not a party to this action. In August 1993, American Buildings Co. filed an action against PACE, Hartford, and Wohlsen/Crow for alleged non-payment for materials supplied. (Docket No. S-1480-1993). These three Schuylkill County cases are referred to collectively hereinafter as the “Tertiary Cases.”

In September 1993, Wohlsen/Crow filed a motion with the Court of Common Pleas of Lancaster County for coordination of actions in different counties pursuant to Pa.R.C.P. 213.1. Wohlsen/Crow’s motion requested that the Secondary cases pending in Schuylkill County be coordinated with the Primary Case in Lancaster County, and that Lancaster County be the location of the coordinated actions. Wohlsen/Crow’s motion did not mention the Tertiary Cases. PACE filed an answer to the motion and argued in its brief that, if coordination were deemed necessary, Schuylkill County was the proper location for the coordinated actions. PACE’s brief noted the existence of the five interrelated cases pending in Schuylkill County (the Secondary and Tertiary cases), and argued that judicial economy and the convenience of the parties and witnesses militated in favor of coordination in Schuylkill County rather than Lancaster County. In September 1994, the Lancaster County trial court ordered all six of the aforementioned cases (Primary, Secondary, and Tertiary) coordinated in the Court of Common Pleas of Schuylkill County. Wohlsen/Crow then filed this timely appeal.

We note initially that an order directing coordination of actions in different counties is an interlocutory order appealable as of right. Pa.R.A.P. 311(c); Richardson Brands, Inc. v. Pennsylvania Dutch Co., Inc., 405 Pa.Super. 202, 592 A.2d 77 (1991); Lincoln General Ins. Co. v. Donahue, 151 Pa.Cmwlth. 297, 616 A.2d 1076 (1992). We review an order coordinating actions under rule 213.1 for abuse of discretion by the trial court. Where the record provides a sufficient basis to justify the order of coordination, no abuse of discretion exists. Richardson Brands, Inc., 405 Pa.Super. at 208, 592 A.2d at 81.

Wohlsen/Crow’s first allegation of error challenges the trial court’s decision to order coordination in Schuylkill County rather than in Lancaster County. In its motion for coordination, Wohlsen/Crow argued that the Court of Common Pleas of Lancaster County was the proper venue for the coordinated actions. It did not suggest Schuylkill County as a possible venue. The essence of Wohlsen/Crow’s argument is that by exceeding the four corners of the motion, the trial court’s decision to order coordination in Schuylkill County was an abuse of discretion. We disagree.

Rule 213.1 directs the court to consider a variety of factors in deciding whether to order coordination and in determining what location is best suited for the coordinated proceedings. Rule 213.1(c) states:

(c) In determining whether to order coordination and which location is appropriate for the coordinated proceedings, the court shall consider, among other matters:
(1) whether the common question of fact or law is predominating and significant to the litigation;
(2) the convenience of the parties, witnesses and counsel;
(3) whether coordination will result in unreasonable delay or expense to a party or otherwise prejudice a party in an action which would be subject to coordination;
(4) the efficient utilization of judicial facilities and personnel and the just and efficient conduct of the actions;
(5) the disadvantages of duplicative and inconsistent rulings, orders or judgments;
(6) the likelihood of settlement of the actions without further litigation should coordination be denied.

Pa.R.C.P. 213.1(c). The Rule does not require that the court’s choice of venue be limited to those requested in the motion for coordination. Rather, section (d)(2) of the Rule states that:

(d) If the court orders that actions shall be coordinated, it may
He * * * * *
(2) transfer any or all further proceedings in the actions to the court or courts in which any of the actions is pending

Pa.R.C.P. 213.1(d)(2). Read together, the meaning of these two sections is clear. In deciding whether and where to coordinate actions, the court must consider the totality of the circumstances, and examine in particular the factors enumerated in section (c). If the court then decides that coordination is appropriate, it may do so in any court in which one or more of the actions is pending. The choice of venue, like the decision to coordinate, is left to the sound discretion of the trial court, and we will not reverse absent an abuse of that discretion.

In the instant case, PACE argued persuasively that the Court of Common Pleas of Schuylkill County was the logical venue for the coordinated actions. PACE noted that five cases linked to the Primary Case were pending in Schuylkill County, and that the gravamen of all six cases was a subcontract for the construction of a prison located in Schuylkill County. PACE also argued that Schuylkill County was a more convenient location for PACE, its attorneys, and several witnesses. Having considered the totality of the circumstances, the court was free to choose the venue most appropriate for the coordinated actions. The court was not, as Wohlsen/Crow argues, limited to ordering coordination only in the venue suggested in the motion. We conclude that the trial court’s decision to make Schuylkill County the location of the coordinated actions was not an abuse of discretion.

Wohlsen/Crow next argues that the Tertiary Cases were improperly included in the coordination order. We agree. Wohlsen/Crow’s motion for coordination requested that the Secondary Cases be coordinated with the Primary Case. The motion did not mention the Tertiary Cases, nor did PACE file a cross-motion for coordination of the Tertiary Cases. The trial court clearly acted properly in considering the existence of the Tertiary Cases as evidence supporting its decision to coordinate the Primary and Secondary Cases in Schuylkill rather than Lancaster County. However, the Tertiary Cases were not part of any motion to coordinate, and as such the trial court exceeded its authority by including those cases in its order. We accordingly vacate the coordination order as to the Tertiary Cases.

We conclude that while the trial court acted properly in choosing Schuylkill County as the location of the coordinated proceedings, coordination of the Tertiary Cases was error. We therefore affirm the order as to the coordination of the Primary and Secondary Cases in the Court of Common Pleas of Schuylkill County. We vacate the order as to the coordination of the Tertiary Cases.

Order affirmed as to Docket Numbers 588-1993, S-271-1993, and S-610-1993. Order vacated as to Docket Numbers S-663-1993, S-1097-1993, and S-1480-1993.

      . Wohlsen/Crow does not challenge the substance of the trial court's decision to coordinate the primary and secondary cases. There is no suggestion that these three cases do not involve a common question of fact or law or do not arise from the same transaction or occurrence. Wohlsen/Crow’s challenge goes strictly to the choice of location for the coordinated actions.

        . The order in relevant part provides:
      By authority of Pa.R.C.P. 213.1(c) and (d)(2) this action in Lancaster County is Transferred to Schuylkill County for coordination with the following Schuylkill County cases:

        PACE v. Wohlsen/Crow, S-271-1993 (Equity)

        PACE v. Wohlsen/Crow, s-610-1993

        Quandel v. PACE and Hartford, S-663-1993

        Ritner Steel v. PACE, S-1097-1993

        American Buildings Co. v. PACE, et al., S-1480-1993
      (footnotes omitted).

      . Unlike Rule 213(a) (relating to consolidation, severance and transfer of action and issues within a single county), Rule 213.1 does not provide for the court to order coordination upon its own motion. Rather, coordination proceedings are initiated by a party filing a motion with the court in which a complaint was first filed. Pa.R.C.P. 213.1(a).

      . An order to coordinate actions under Rule 213.1 does not automatically effect the same result as an order to consolidate actions under Rule 213. Rather, an order to coordinate decides that the coordinated actions involve a common question of law or fact or arise from the same transaction or occurrence, and brings those actions together into a single venue thus making them ripe for possible consolidation under Rule 213. Consolidation is at the court's discretion, on its own motion or that of any party. Pa.R.C.P. 213(a).
      In the instant case, Wohlsen/Crow's coordination motion did not include the Tertiary Cases, and parties to those cases were given neither notice nor an opportunity to respond to the motion. Therefore, allowing the order to stand as issued would result in the parties to the Tertiary Cases being prevented from challenging a subsequent motion for consolidation on the grounds that the cases involve different questions of law or fact or arise from different transactions or occurrences. As those parties were never afforded an opportunity to address the matter, such a result is untenable and requires vacation of the order as to the Tertiary cases.


text:
    666 A.2d 705
    COMMONWEALTH of Pennsylvania v. Edward HESS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 28, 1995.
    Filed Oct. 16, 1995.

      Gregory T. Moro, Bloomsburg, for appellant.
    Peter P. Olszewski, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before BECK, TAMILIA and CERCONE, JJ.
   BECK, Judge:

This appeal raises, inter alia, the question of whether the testimony of prosecution witnesses was admissible where the witnesses’ identities were uncovered as a result of appellant’s un-Mirandized statement. We conclude that a technical failure to issue Miranda warnings where the appellant’s statement itself is voluntary does not preclude admission of testimony of the Commonwealth’s witnesses. We affirm the judgment of sentence.

This is an appeal from the judgments of sentence entered following appellant’s conviction at a jury trial on two counts of Driving Under the Influence, one count of Homicide by Vehicle, one count of Recklessly Endangering Another Person, and one count of Homicide by Vehicle while Driving Under the Influence. The charges arose out of a two-vehicle accident which occurred on July 13, 1991. Timothy Getz, a passenger in appellant’s vehicle, died in the accident.

Our standard of review is well settled. When reviewing the denial of a motion for a new trial this court is limited to determining whether the trial court abused its discretion or committed an error of law that controlled the outcome of the case. Commonwealth v. Metzer, 430 Pa.Super. 217, 634 A.2d 228 (1993).

Appellant claims the court erred in not arresting judgment. He challenges the sufficiency of the evidence supporting his conviction for Homicide by Vehicle While Driving Under the Influence. Our narrow standard for reviewing the sufficiency of the evidence is well established. We must determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences which can be drawn therefrom, in the light most favorable to the Commonwealth as verdict winner, the jury could have properly found that each element of the offense was proven beyond a reasonable doubt. Commonwealth v. Scott, 409 Pa.Super. 313, 597 A.2d 1220 (1991).

Appellant argues that the Commonwealth failed to prove the causation element of the offense. Specifically, to convict appellant of the crime of Homicide by Vehicle While Driving Under the Influence, the Commonwealth must prove that the death in question was caused by appellant’s drunk driving. 75 Pa.C.S. § 3735(a). The Commonwealth has clearly met its burden. The Commonwealth presented ample evidence that appellant was the driver of the subject vehicle and was intoxicated at the time of the accident. Empty beer bottles were found in appellant’s car and the Commonwealth presented evidence that the accident occurred when appellant crossed the center line into oncoming traffic. Clearly, the trauma of the accident killed Mr. Getz. Viewing this evidence in the light most favorable to the Commonwealth, we find that it was reasonable for the jury to conclude that appellant’s drunk driving caused the death of Mr. Getz. Therefore, appellant’s argument on this issue fails.

Appellant also claims that the police made improper use of the statement he gave while in custody. Following the accident, appellant was taken into custody where he made a statement to police. Appellant does not suggest that the statement was in any way coerced or involuntary. However, the statement was made in the absence of Miranda warnings and the trial court suppressed the statement on that basis. In the statement, appellant named several bars at which he had been drinking on the night of the accident. The police went to the bars and identified several witnesses who subsequently testified about appellant’s drinking and intoxication prior to the accident. Appellant now argues that the testimony of the witnesses procured as a direct result of his suppressed statement should also have been excluded as the fruit of the poisonous tree. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). We disagree.

This same issue was addressed by the United States Supreme Court in Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). There, a defendant suspected of rape was questioned by police, who failed to inform him of his right to court-appointed counsel. As a result of the defendant’s statement, police identified a witness whose testimony discredited the defendant’s alibi. At trial, the defendant’s statement was suppressed due to the failure to give Miranda warnings. However, the testimony of the witness was admitted despite the defendant’s argument that such testimony was the fruit of the poisonous tree.

Upon grant of certiorari, the Supreme Court held that exclusion of the witness’s testimony was not necessary. The Court held that the Wong Sun “fruits” doctrine applied only to constitutional violations. The Court then reasoned that failure to issue Miranda warnings was not, in and of itself, a violation of a defendant’s fifth amendment rights and therefore Wong Sun was not controlling. The Court elected not to extend the Wong Sun fruits doctrine, noting that exclusion of the witness’s testimony would serve neither the exclusionary rule’s general purpose of deterrence nor the specific purpose of preventing the use of coerced testimony and ensuring trustworthy evidence. Tucker, 417 U.S. at 446-51, 94 S.Ct. at 2364-67.

The Supreme Court reaffirmed the reasoning in Tucker in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). There, the defendant gave a voluntary but unwarned confession to police. Subsequently, the defendant was given proper Miranda warnings and he again made a voluntary confession. The Court cited the reasoning in Tucker with approval and also held that while the unwarned first confession must be excluded, the second confession need not be excluded as the fruit of first confession. Elstad, 470 U.S. at 298, 105 S.Ct. at 1285.

In his brief, appellant asks that we adopt the reasoning of the Elstad dissent and find that the failure to give Miranda warnings is of constitutional proportions. This we will not, indeed cannot, do. Since there is no finding or claim that appellant’s statement was involuntary or coerced, his fifth amendment rights have not been violated and Wong Sun simply does not apply.

Appellant argues that his fourteenth amendment right to due process was violated in that he was not afforded an opportunity to examine the subject vehicles. The record reveals that following the accident the two cars involved were towed to two separate salvage yards. Over the next several weeks, troopers from the Pennsylvania State Police conducted various examinations and inspections of the two vehicles. However, the vehicles were not impounded and were destroyed or lost before appellant had an opportunity to examine them. Appellant argues that because he was not afforded an opportunity to conduct a first-hand inspection, the trial court should have suppressed all testimony and documentary evidence regarding the vehicles.

Appellant has failed to demonstrate any prejudice resulting from his inability to inspect the vehicles. Appellant was provided access to all the Commonwealth’s evidence regarding the vehicles, including measurements, reports, and over one hundred photographs. Based on the information provided by the Commonwealth, appellant was able to present expert testimony supporting his version of the accident. Appellant’s expert testified that a first-hand examination of the vehicles would have been beneficial to determine the angle of approach and amount of crush resulting from the accident. However, appellant does not suggest how such additional information would have aided his defense. Such technical evidence does not go to the heart of the Commonwealth’s case; that is, that appellant was intoxicated at the time of the accident, and that his intoxicated driving caused the accident and death in question. After careful review of the record we conclude that appellant suffered no prejudice based on his inability to inspect the vehicles. Therefore, his argument on this ground fails.

Appellant next argues that the trial court erred in admitting into evidence the second of two blood alcohol tests taken following the accident. Appellant claims that the Commonwealth failed to establish an adequate chain of custody. We agree. Appellant was subjected to two separate blood alcohol tests following the accident. The first was taken at approximately 2:37 a.m. and indicated that appellant had a blood alcohol level of .185. The second test was taken approximately two hours later and revealed a blood alcohol level of .12. However, conflicting testimony arose regarding the number of vials of blood drawn from appellant during the second blood test. The technician who drew the blood testified that she was not sure how many vials she drew, but that she normally draws one to two vials for police investigation purposes. R.R. 255a. Trooper Martin, who witnessed the blood being drawn and transported the vials to Trooper Thomas, testified that he witnessed and transported two vials. R.R. 160-61a. Trooper Thomas testified that he received two vials from Trooper Martin and transported them to an evidence locker where they were later retrieved by Trooper Kriedler. R.R. 204-5a. Trooper Kriedler testified that he received three vials of blood and transported them to the State Police Crime Lab. R.R. 264a. Peter Petrushka, the forensic scientist who tested the blood, testified that he received three vials of blood and tested them. R.R. 340a.

The admissibility of evidence is left to the sound discretion of the trial court and we will not find error absent an abuse of that discretion. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980). Additionally, the Commonwealth need only present sufficient evidence of chain of custody to establish the reasonable inference that the identity and condition of the evidence remained unimpaired. Commonwealth v. Morrow, 437 Pa.Super. 584, 650 A.2d 907 (1994). In the instant case we find that the Commonwealth failed to meet this burden with regard to the second blood test. The discrepancy in the number of vials transported by Trooper Martin, and received by Trooper Kriedler and Mr. Petrushka, calls into question the identity of the blood tested. Under these circumstances we agree that the evidence regarding the second blood test was unreliable and should have been excluded.

Nevertheless, we find this error to be harmless. Error is harmless when any resulting prejudice is minimal, and the properly admitted evidence is sufficient to convince this court beyond a reasonable doubt that the error could not have contributed to the verdict. Commonwealth v. Ragan, 538 Pa. 2, 645 A.2d 811 (1994); Commonwealth v. Polston, 420 Pa.Super. 233, 616 A.2d 669, appeal denied, 534 Pa. 638, 626 A.2d 1157 (1992). At issue in this case was appellant’s blood alcohol level at the time of the accident. The Commonwealth presented the testimony of a forensic toxicologist who testified as to appellant’s likely blood alcohol level at the time of the accident. Our review of the expert’s testimony reveals that he extrapolated appellant’s blood alcohol level based entirely on the first blood sample. R.R. 352-356a. There is no suggestion that the first blood test was invalid or unreliable. We therefore find the trial court’s error in admitting the evidence of the second blood test to be harmless.

Appellant next takes issue with the trial court’s charge to the jury. Specifically, appellant argues that the trial court erred in failing specifically to instruct the jury that it was free to disregard the results of the second blood test if it found the testimony regarding the testing procedure to be conflicting. In reviewing jury instructions the trial court has broad discretion in choosing its own wording so long as the law is clearly, adequately and accurately presented to the jury. Commonwealth v. Prosdocimo, 525 Pa. 147, 578 A.2d 1273 (1990). Additionally, we must evaluate the charge as a whole to determine whether it was fair or prejudicial. Id.

Upon reviewing the entirety of the jury instruction, we find it to be a clear, adequate and accurate presentation of the law. We note initially that defense counsel argued the significance of the discrepancy in the second blood test in his closing statement to the jury. R.R. 429a. In its charge, the trial court made clear that the jury was expected to pass upon the credibility of all the evidence and witnesses, including the expert witnesses and exhibits.. R.R. 458-462a. The court made specific reference to the blood alcohol tests stating that the jury should evaluate the credibility of the testing procedures in light of its “common knowledge, common experience, [and] common sense.” R.R. 475a. Under these circumstances we find no abuse of discretion in the trial court’s charge to the jury.

Appellant next argues that photographs of the accident vehicles and accident scene were inadequately authenticated requiring their exclusion from evidence. As stated above, the admission of evidence is left to the sound discretion of the trial court and we will not reverse absent an abuse of that discretion. Hudson, supra. In the instant case, the photographs were authenticated by Corporal Thomas who testified as to how and when the photographs were taken, as well as what they depicted. R.R. 179-202a. Additionally, despite appellant’s arguments to the contrary, we find no error in the trial court’s admission of photographs taken approximately one month after the accident. See Commonwealth v. Nauman, 345 Pa.Super. 457, 498 A.2d 913 (1985) (mere fact that photographs were taken at time other than time of incident does not render them inadmissible if witness verifies that photographs are substantial representations of conditions as they existed at time of incident). Our review of the record reveals no abuse of discretion by the trial court.

Judgment of sentence affirmed.

      . 75 Pa.C.S. § 3731(a)(1), (a)(4).

      . 75 Pa.C.S. § 3732.

      . 18 Pa.C.S. § 2705.

      . 75 Pa.C.S. § 3735.

      . Appellant avers in his brief that first-hand inspection of the underside of the vehicles was critical in determining the location of the vehicles at the time of impact. However, this assertion is unsupported by the record.

      . It is unclear from the record whether Trooper Thomas placed the vials in the evidence locker or whether he delivered the vials directly to Trooper Kriedler who in turn placed them in the evidence locker.