author: WIEAND, Judge:

text:
    575 A.2d 921
    COMMONWEALTH of Pennsylvania v. Frank Dean THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 12, 1990.
    Filed May 16, 1990.

      Daniel R. Lovette, III, Asst. Public Defender, Johnstown, for appellee.
    Christian A. Fisanick, Asst. Dist. Atty., Barnsboro, for Com.
    Before WIEAND, McEWEN and HESTER, JJ.
   WIEAND, Judge:

Frank Dean Thomas was tried by jury and was found guilty of robbery, theft by unlawful taking, receiving stolen property, simple • assault, making terroristic threats and recklessly endangering another person. Post-trial motions were denied, and Thomas was sentenced on the robbery conviction to serve a term of imprisonment for not less than three (3) years nor more than six (6) years, to make restitution and to pay the costs of prosecution. On each of the remaining charges, Thomas was sentenced to serve concurrent one (1) year periods of probation. A motion to modify sentence was denied, and Thomas appealed. He argues that the trial court erred by: (1) refusing to dismiss the charges against him under Pa.R.Crim.P. 1100; (2) allowing the Commonwealth to introduce into evidence the photo array from which he had been identified; (3) permitting the Commonwealth to impeach his testimony by introducing his notice of alibi defense; (4) allowing the Commonwealth to force him to wear a pair of pantyhose over his face in the presence of the jury for purposes of allowing a witness to identify him; and (5) refusing to grant his motion to modify sentence. Finding no merit in any of these contentions, we affirm the judgment of sentence.

On June 23, 1988, at or about 4:25 a.m., a man wearing a stocking over his face entered a Sheetz convenience store in Johnstown, Cambria County, and grabbed a customer, putting a knife to the customer’s throat. The robber then handed the store clerk a bag and demanded that she fill it with money. During the course of the robbery, the assistant store manager was concealed in an observation room from which he was able to view appellant through a one way mirror from a distance of approximately ten feet. After being given $140 by the store clerk, appellant fled. Later that day, the assistant store manager, Kenneth Wads-worth, identified appellant as the robber from a photo array shown to him by the police. A few days later, Annette Beppler, the clerk, also identified appellant from the same photo array.

Appellant was arrested on June 27, 1988 and charged in connection with the June 23, 1988 robbery of the Sheetz store. He was also charged with another robbery which had taken place on June 2,1988. Upon motion by the Commonwealth, the charges arising from the two robberies were severed. Appellant’s trial for the June 2 robbery was held in December, 1988. His trial on the charges arising out of the June 23 robbery did not commence until March 17, 1989, 262 days from the date of his arrest. Appellant was incarcerated at all times prior to his trial on these charges. He contends that, because he was not brought to trial within 180 days from the date of the filing of the criminal complaint, Rule 1100 compels dismissal of the charges arising out of the June 23 robbery. We disagree.

Rule 1100 provides in pertinent part:

(a)....
(2) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is incarcerated, shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.
(e) No defendant shall be held in pre-trial incarceration for a period exceeding one hundred eighty (180) days excluding time described in subsection (c) above. Any defendant held in excess of one hundred eighty (180) days is entitled upon petition to immediate release on nominal bail.
(g) For defendants on bail after the expiration of three hundred sixty-five (365) days, at any time before trial, the defendant or his attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated____

Pa.R.Crim.P. 1100(a)(2), (e) and (g). The Superior Court has interpreted these provisions, under circumstances similar to those in the instant case, in the following manner:

[Ajppellant concedes that he was tried within two hundred fifty-seven (257) days after the filing of the criminal complaint. As more specifically set forth above, Rule 1100 provides that a person who is incarcerated must be tried within one hundred eighty days or upon petition he is entitled to immediate release on nominal bail. Rule 1100(a)(2) and (e). It is only after three hundred sixty-five days have passed that appellant is entitled to apply to the court for an order dismissing the charges with prejudice on the ground that his right to a speedy trial had been violated. Rule 1100(g). Since it is uncontested that appellant was brought to trial well within the three hundred sixty-five days required by amended Rule 1100, we find that his right to a speedy trial was not violated.

Commonwealth v. Shaffer, 387 Pa.Super. 234, 236-237, 563 A.2d 1270, 1272-1273 (1989) (footnote omitted).

Instantly, appellant was tried within 365 days after the signing of the criminal complaint. As such, there was no basis for a dismissal of charges under Rule 1100. At the conclusion of 180 days, appellant’s only remedy was to petition for release on nominal bail. Discharge was not a remedy available to appellant under the circumstances of the instant case.

Appellant argues that the trial court erred in allowing the photo array from which he was identified to be introduced into evidence at trial. In his brief, however, appellant’s argument on this issue consists of two short sentences, which assert only that the photo array was unreasonably suggestive. Our examination of the photo array discloses that it contained six photographs, each depicting a black male with reasonably similar facial features. All pictures were of the same size and were shot against similar backgrounds. We are unable to find anything unduly suggestive about the array. As appellant has advanced no other reason in support of his contention that the photo array was improperly admitted, there is no basis for this Court to conclude that the trial court erred in allowing the same to be received.

Prior to trial, appellant filed a notice of alibi defense in which he listed three alibi witnesses whom he intended to call at trial. When these witnesses were not called, the Commonwealth was permitted to cross-examine appellant regarding his alibi defense and to introduce in rebuttal his notice of alibi. Appellant contends that this was error.

A similar issue was presented in Commonwealth v. Hill, 378 Pa.Super. 562, 549 A.2d 199 (1988). There the Court reasoned as follows:

[A]ppellant claims that his testimony at trial confirmed that he “abandoned” his alibi defense and, therefore, it was improper for the Commonwealth to present testimony in rebuttal to establish that an alibi notice was filed. Pa.R.Crim.P. 305C(1)(g) provides that:
... if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.
Instantly, appellant’s claim that his testimony established an “abandonment” of the alibi defense is insufficient to preclude impeachment as to the lodging of an alibi notice. Rather, appellant must have formally withdrawn the notice of alibi defense prior to trial. See Commonwealth v. Alicea, 498 Pa. 575, 449 A.2d 1381 (1982). The presentation of evidence to contradict appellant’s testimony is a risk he assumed when he took the stand. See Commonwealth v. Bey, 294 Pa.Super. 229, 439 A.2d 1175 (1982).
Moreover, the fact that the Commonwealth presented rebuttal testimony, rather than cross-examining appellant, to impeach appellant’s testimony is of no consequence. It is well settled that “[ejvidence is admissible in rebuttal to contradict that offered by a defendant or his witnesses — ” Commonwealth v. Mangini, 478 Pa. 147, 161, 386 A.2d 482, 489 (1978), quoting Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975) (citations omitted); Commonwealth v. Koch, 446 Pa. 469, 478, 288 A.2d 791, 795 (1972). Appellant’s claim lacks merit.

Id. 378 Pa.Super. at 566-567, 549 A.2d at 202.

Appellant argues that the rationale in Commonwealth v. Hill is inapplicable because his alibi witnesses were unavailable to testify at trial. He states that he was unable to serve these witnesses with subpoenas for his previous robbery trial because their whereabouts were unknown. Our review of the record, however, discloses that at no time prior to trial in the instant case did appellant attempt to withdraw or amend his notice of alibi defense. Indeed, he did not inform the Commonwealth of the alleged unavailability of these witnesses until after the Commonwealth had sought to introduce the notice of alibi defense into evidence. Under these circumstances, we perceive no error in the trial court’s allowing appellant to be impeached by his notice of alibi defense. Moreover and in any event, appellant suffered little, if any, prejudice from this impeachment. On re-direct examination appellant explained his failure to call the alibi witnesses because of their unavailability. The Commonwealth did not request a missing witness instruction, nor was such an instruction given.

Appellant’s principal argument in this appeal is that he was improperly forced to stand in front of the jury and place a pair of pantyhose over his face so that Kenneth Wadsworth, a Commonwealth witness, could make an identification under circumstances similar to those existing at the time of the robbery. Appellant asserts that this procedure violated his constitutional rights, lacked probative value and inflamed the passions of the jury. The Commonwealth, on the other hand, asserts that allowing the witness to identify appellant under conditions similar to those at the time of the robbery constituted a permissible “in court” demonstration.

“A wide discretion is vested in the trial judge in permitting demonstrations or experiments to be made in the presence of the jury.” Commonwealth v. Soli, 273 Pa.Super. 158, 165, 417 A.2d 216, 219 (1979). See also: Commonwealth v. Laniewski, 427 Pa. 455, 460, 235 A.2d 136, 139 (1967); Commonwealth v. Rompilla, 250 Pa.Super. 139, 144, 378 A.2d 865, 867 (1977). In Commonwealth v. Kenon, 333 Pa.Super. 366, 482 A.2d 611 (1984), for example, the defendant was ordered to try on, in the presence of the jury, a hooded sweatshirt and fatigue jacket, which had allegedly been worn by the robber. In holding that such demonstration was permissible, the Superior Court reasoned as follows:

First, inasmuch as demonstrative evidence is not testimonial it does not activate the right against self-incrimination. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); Commonwealth v. Richbourg, 260 Pa.Super. 438, 394 A.2d 1007 (1978). Secondly, courtroom exhibits of this type are left to the far-reaching discretion of the trial court; accordingly, appellate review is restricted. Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967); Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983);.
The probative value of having appellant try on the clothing during trial outweighed potential prejudice. In pressing the identification issue, appellant compelled the Commonwealth to expend significant effort in substantiating the in-court identifications. The experiment displayed for the jury the extent to which appellant’s head was covered by the hood. It also indicated whether the sweatshirt and jacket were properly fitted to appellant’s body. We perceive no abuse of discretion in conducting a courtroom experiment for these purposes.

Commonwealth v. Kenon, supra at 374, 482 A.2d at 615. A similar result was reached in Commonwealth v. Williams, 317 Pa.Super. 456, 471-472, 464 A.2d 411, 418-419 (1983), where the Superior Court found no abuse of discretion in the trial court’s requiring the defendant, in the jury’s presence, to try on a shirt and jacket which had been found near the scene of the crime. See also: Commonwealth v. Fernandez, 333 Pa.Super. 279, 283-285, 482 A.2d 567, 569-570 (1984) (not error for trial court to require defendant to shave his beard so as to facilitate identification by Commonwealth witness); Commonwealth v. Richbourg, 260 Pa.Super. 438, 444-445, 394 A.2d 1007, 1010 (1978) (defendant properly required to stand during trial to allow Commonwealth witnesses to identify him as having build similar to that of one of perpetrators of crime).

In Commonwealth v. Benaglio, 254 Pa.Super. 100, 385 A.2d 544 (1978), the defendant had been compelled to wear a stocking, not for identification purposes, but to demonstrate that it would have been more comfortable for him to remove his eyeglasses prior to putting on the stocking. The Superior Court held that such a demonstration was improper, reasoning that:

[Sjince there is a question of identification in this case, the jury could easily have speculated upon the ease of identifying the appellant when he had the stocking on. We recognize that the trial court .had wide discretion to allow experiments or demonstrations to be made in the presence of the jury. Commonwealth v. Laniewski, 427 Pa. 455, 235 A.2d 136 (1967). However, the probative value of this demonstration is so outweighed by the potential prejudice to the appellants so as to constitute error.

Commonwealth v. Benaglio, supra, 254 Pa.Superior Ct. at 103, 385 A.2d at 546. The instant case, however, is distinguishable. Here, the purpose for requiring appellant to put on the pantyhose was to allow a Commonwealth witness, Wadsworth, to make an identification. Under these circumstances, the probative value outweighed any possible prejudice.

In other jurisdictions which have considered this issue, the courts have almost uniformly permitted a trial court to require the defendant to wear a mask or a stocking to facilitate an in court identification. Thus, in United States v. Domina, 784 F.2d 1361, 1370-1371 (9th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987), it was held that the district court had not abused its discretion by requiring a defendant to put on a mask so that a witness could attempt to identify him as the perpetrator of a bank robbery. Similarly, in United States v. Roberts, 481 F.2d 892, 894 (5th Cir.1973), the Court held that it did not violate a defendant’s fifth amendment privilege against self-incrimination to require a robbery defendant to wear a stocking mask in order to give a witness an opportunity to make an identification. Indeed, in Williams v. Wolff, 497 F.Supp. 122, 128 (D.Nevada 1980), aff'd, 679 F.2d 904 (9th Cir.1982), the Court observed that it was constitutionally permissible to require a defendant, for purposes of facilitating an identification, to put on clothes worn by the perpetrator of a crime, including stocking masks, hats, coats, scarves and sunglasses. See: Vigil v. People, 134 Colo. 126, 127-128, 300 P.2d 545, 546-547 (1956) (defendant’s constitutional rights were not violated by requiring him to wear a mask at trial so that a witness could identify him from the manner in which he appeared on the night of the alleged robbery); State v. Trueman, 303 Minn. 426, 427, 227 N.W.2d 824, 825 (1975) (requiring defendant to display himself to jury and to eyewitnesses while wearing ski mask similar to one used by robber neither violated his privilege against self-incrimination nor deprived him of a fair trial). See also: United States v. Satterfield, 572 F.2d 687, 689-690 (9th Cir.1978), cert. denied, 439 U.S. 840, 99 S.Ct. 128, 58 L.Ed.2d 138 (1978); State v. Perry, 291 N.C. 284, 286-88, 230 S.E.2d 141, 143-145 (1976). Cf. People v. Turner, 22 Cal.App.3d 174, 180-182, 99 Cal.Rptr. 186, 189-191 (1971) (requiring defendant to model scarf and sunglasses similar to those worn by woman who cashed fraudulent check was not violative of due process nor inherently prejudicial); State v. Edmonds, 729 S.W.2d 588, 591 (Mo.App.1987) (defendant was properly required to wear wig worn by perpetrator for purposes of in court identification by victims). Compare: Riley v. Commonwealth, 620 S.W.2d 316 (Ky. 1981). See generally: Annot., Propriety Of Requiring Criminal Defendant To Exhibit Self, Or Perform Physical Act, Or Participate In Demonstration, During Trial And In Presence Of Jury, 3 A.L.R.4th 374 (1981).

In view of the great weight of authority which permits the procedure followed in this case, we cannot say that it was an abuse of the trial court’s discretion to require appellant to wear a pair of pantyhose over his face so that a Commonwealth witness could make an identification under conditions similar to those in which the witness had observed the robber. The witness testified that the pantyhose used in court was similar to the stocking which had been worn by the robber, and the in court identification was made from approximately the same distance as that from which the witness had observed the robbery being committed. Any discrepancies between the conditions during the in court identification and those during the robbery were for the jury to weigh in assessing the weight to be given to the witness’s identification testimony. See: Commonwealth v. Richbourg, supra 260 Pa.Super. at 445, 394 A.2d at 1010; Commonwealth v. Rompilla, supra 250 Pa.Super. at 144, 378 A.2d at 867.

Appellant’s final complaint is that the trial court summarily dismissed his motion to modify sentence “without proper consideration or reasons.” He does not argue that the sentencing procedure was otherwise deficient or that the trial court abused its discretion in imposing sentence. As such, he has failed to demonstrate any basis for finding the sentence improper.

The judgment of sentence is affirmed.

      . Appellant filed a motion to dismiss pursuant to Rule 1100 on January 31, 1989. This motion was denied, following a hearing, on March 2, 1989.

      . Specifically, Wadsworth testified that the pantyhose used in court and the stocking worn by the robber were similar because they were made of the same type of material. He observed, however, that the pantyhose were a little lighter in color and had two legs as opposed to the robber’s stocking which had only one leg.


source: Caselaw Access Project

author: CAVANAUGH, Justice:

license: Public Domain

text:
    575 A.2d 926
    Carl K. SMITH and Erma J. Smith, His Wife, Appellees, v. Robert Keith BROOKS, an Individual; Bowers Trucking, Inc., a Corporation; Victor S. Desport, an Individual; and Farabaugh Chevrolet-Oldsmobile, Inc., a Corporation. Appeal of Robert Keith BROOKS, an Individual; Bowers Trucking, Inc., a Corporation.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1990.
    Filed May 24, 1990.

      John P. Lydon, Pittsburgh, for appellant.
    Bernard D. Marcus, Pittsburgh, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   CAVANAUGH, Justice:

This appeal is brought by defendants Robert Keith Brooks and his employer, Bowers Trucking, Inc. after denial of their motion for post-trial relief. Judgment was entered by the Court of Common Pleas of Westmoreland County after a jury awarded damages to appellees Carl K. and Erma J. Smith for injuries sustained when Brooks, who was driving a coal truck for Bowers Trucking, hit the automobile in which Mr. Smith was a passenger. Two other defendants, Victor Desport and Farabaugh Chevrolet-Oldsmobile, Inc. settled with plaintiffs after the jury trial and are no longer parties to this action. Finding no error in the conduct of the trial, we affirm.

Plaintiffs instituted suit for damages for serious and permanent personal injuries sustained by Mr. Smith during a motor accident on August 9, 1986. Plaintiffs also sought damages for Mrs. Smith’s loss of consortium. The case was tried before a jury and presided over by the Hon. Gary P. Caruso in October of 1988. The jury returned a verdict in favor of the husband-plaintiff in the amount of $1,000,-000.00 and in favor of the wife-plaintiff for her loss of consortium in the amount of $250,000.00. Damages were awarded to Mr. Smith to compensate him for medical bills and equipment, lost future earnings as a golf course consultant, permanent physical impairment, pain and suffering, and an emotional condition brought on by spinal cord damage. The jury found defendants Brooks and Bowers jointly liable for fifty percent of the verdict and Desport and Farabaugh liable for the other fifty percent. The trial court also assessed delay damages pursuant to plaintiffs’ petition therefor.

Both pairs of defendants filed timely post-trial motions; Desport and Farabaugh settled with the plaintiffs after denial of their motion. On June 2, 1989, the trial court entered an order and filed an opinion denying Brooks and Bowers’ motion for post-trial relief. Judgment was entered against Brooks and Bowers on June 30, 1989 and a timely appeal was filed.

This cáse arose out of an intersection collision at the intersection of Routes 30 and 711 in Westmoreland County near ,the town of Ligonier. At the time of the accident,, husband-appellee was a passenger in an automobile operated by defendant Desport and owned by defendant Farabaugh Chevrolet-Oldsmobile. Desport was acting in the course of business for Farabaugh Chevrolet; the two entities were treated as one defendant throughout.

The other vehicle involved in the collision was a coal truck operated by Robert Brooks and owned by Bowers Trucking. Brooks was engaged in Bowers Trucking business at the time of the accident. These two entities were also treated as one defendant during trial.

At the intersection where the accident occurred, Route 711 is a two-lane north and south-bound highway. Route 30 crosses Route 711 and is a divided east-west highway with two lanes in either direction; it also has, at its intersection with Route 711, a center left-hand turning lane for both eastbound and westbound traffic. When the accident occurred, the Desport vehicle was southbound on Route 711 and the Brooks truck was westbound on Route 30 in the left-hand passing lane. The front-right hand corner of Mr. Brooks’ coal truck struck the left-hand side of the Desport vehicle. After impact, Mr. Brooks’ truck turned on its side and slid approximately two hundred feet and twenty feet westbound on Route 30 before hitting the guardrail. Besides Mr. Smith, another passenger in the Desport vehicle, Lyman Pritts, was also injured; his estate was a plaintiff below, but is not party to this appeal.

Traffic lights control the intersection; the left-hand turning lanes have lights of a different length than those which control east or west-bound traffic. A driver headed westbound on Route 30 approaches the intersection only a short distance (150 feet) after rounding a bend from which the intersection is not visible; signs give advance warning of traffic signals ahead. The disputed issues of fact were which vehicle had the green light, whether the vehicle which had the right of way nevertheless acted unreasonably in failing to check for traffic or in travelling at an unreasonable speed, and whether Brooks unreasonably relied on certain CB transmissions made by a fellow trucker named Firestone with whom he was travelling in tandem, rather than slowing down to ascertain for himself the status of the intersection’s traffic light.

As to liability, appellants allege that the trial court erroneously admitted testimony about certain CB transmissions which refer to the status of the traffic light, from which plaintiffs argued that Brooks was negligent in relying on CB transmissions rather than his own observation; that the trial court erroneously charged the jury on the assured clear distance rule; that the trail court erroneously instructed the jury that it could find Brooks negligent for travelling at an unreasonable speed; and that the trial court erroneously denied a requested charge that Desport could be found negligent for failing to check the intersection when the light was in his favor.

On the question of damages, appellants believe the trial court erred in permitting Dr. Kasdan to testify partly on the basis of the findings of other physicians in addition to his own examination; and in permitting expert testimony on matters which appellants contend were for the jury to decide.

Finally, appellants contend that the verdict was against the weight of the evidence as to both liability and damages and was excessive given husband’s earnings history.

First, appellants argue that the court should have excluded portions of the testimony of Mr. Cairns, a driver who was present at the intersection and witnessed the collision. In reviewing a trial court’s admission of testimony, we will reverse only if there has been an abuse of discretion or an error of law. Concorde Investments Inc. v. Gallagher, 345 Pa.Super. 49, 497 A.2d 637 (1985).

The witness, Mr. Cairns, was driving a truck northbound on Route 711 and had been stopped behind two cars before the accident occurred. Mr. Cairns testified that his light (which, according to the testimony of a traffic engineer, would have been the same as that for the southbound Desport vehicle) turned green before Desport entered the intersection. After a foundation had been laid, Mr. Cairns also testified that before the collision occurred, he heard three CB transmissions over channel 19 of his CB radio, which were phrased as follows: “the light is green,” “the light is (still) green,” and “the light turned yellow.”

The foundation that was laid for the admission of these statements was that Mr. Cairns had his CB tuned to channel 19, that he heard the transmissions as the coal truck driven by Mr. Firestone was passing through the intersection and while the truck driven by Mr. Brooks was rounding the bend approaching the intersection, and most importantly, that Mr. Cairns’ CB radio could receive signals only within a mile radius. It was uncontroverted that the intersection of Routes 30 and 711 is the only signal-controlled intersection within the reception range of Mr. Cairns’ CB.

Both Mr. Brooks and Mr. Firestone, who worked for the same company, testified to having CB radios operating in their trucks at the time of the collision and both admitted that they were “probably” tuned into channel 19, as that was the channel they usually used. Moreover, both admitted that they were “running together”; both picked up their loads of coal at about the same time from the same place that morning and both were driving to the same destination. Finally, both stated it was possible that they had some conversation over the CB that morning although Mr. Firestone denied having broadcast the status of the traffic signal and Mr. Brooks denied having heard or at least having relied on any such transmissions. Mr. Brooks’ approach to the intersection was from around a bend in the road which would have prevented him from ascertaining the status of the traffic light until only a short time before the intersection.

Appellants argue that the three statements about the status of the traffic signal were introduced to prove the truth of the matter asserted and were inadmissible hearsay. In fact, the truthfulness of these statements was largely irrelevant to plaintiff’s case and would only minimally have supported a finding of liability based on the theory that Mr. Brooks ran a red light. Appellants themselves agree that the CB transmissions were not material to establish the color of the light. Brief of Appellant, at 23-24.

Rather, the statements were introduced to show that Mr. Brooks negligently relied on the transmissions rather than on his personal observation when judging whether to slow down before proceeding through the intersection. As such, they were not being used to prove the truth of the matter asserted (the color of Mr. Brooks’ light) and are therefore not hearsay.

It should also be noted that there is no authentication problem with this testimony since the usefulness of the evidence to plaintiffs did not depend upon the source of the CB transmissions. It did not matter to plaintiffs’ theory of the case whether Mr. Firestone or another individual broadcast the status of the light; all that was needed to make the evidence relevant was that Mr. Brooks was in a position to hear the CB broadcasts, from which it could be inferred, given other evidence in the case, that Brooks relied upon them. Mr. Brooks himself admitted that his radio was always on, that he usually used channel 19, and that he was probably tuned into it that day.

In any event, Mr. Cairns, who was himself a trucker and a CB user, testified that he believed that the driver of the first coal truck (Firestone) was speaking to the driver of the second coal truck (Brooks) based on hearing the transmissions at the same time as he observed the two coal trucks travelling through the area of the intersection together. Mr. Cairns based his opinion, which he was qualified to give, on his experience that trucks travelling in tandem often communicate via CB as to road conditions ahead. Given the strong circumstantial evidence in the case as to the source of the transmissions (which could only have been broadcast from the intersection of Routes 30 and 711 given the range of Mr. Cairns’ CB), the judge was correct in finding that the conversation was properly authenticated. Commonwealth v. Stewart, 304 Pa.Super. 382, 450 A.2d 732 (1982).

Even if it could be said that the jury used the transmissions for the truth of the matter asserted to infer that Mr. Brooks’ light was red by the time he reached the intersection and that he was therefore negligent in failing to stop, the CB transmissions qualify as present sense impressions. Declarations concerning conditions which the hearsay declarant is observing at the time of his declaration are admissible because their relative immediacy “insures that there will have been little opportunity for reflection or calculated misstatement.” Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974); Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986). As we have already stated, given the range of the witness’ CB, the transmissions necessarily referred to the status of the lights at the intersection of Routes 30 and 711. Coupled with Mr. Cairns’ visual observation that the lights controlling Route 711 were red , Cairns’ simultaneous perception of CB transmissions that the light was green or yellow demonstrates that the speaker was referring to lights controlling Route 30 and thus the progress of Mr. Brooks’ vehicle. Given the special facts of this case, we observe that there existed a “sufficient confluence of time and events to vest special reliability in the statements.” See, Coleman, supra (present sense impression exception applied although declarations were made over telephone to absent listener).

Each of these statements was a live or contemporaneous report of the current status of the lights made under circumstances which would vest the statement with reliability and therefore qualifies as a present sense impression, admissible to prove the truth of the matter asserted. Therefore, we cannot say that the judge erred in admitting this testimony.

Second, appellants argue that the trial court erroneously instructed the jury on the assured clear distance rule which states that a driver must not maintain a speed in excess of that which will permit him to stop within the assured clear distance ahead. 75 Pa.C.S.A. § 3361. An erroneous jury instruction may provide the basis of a new trial if it is shown that the instruction was fundamentally in error and that it may have been responsible for the verdict. Eck v. Powermatic Houdaille, 364 Pa.Super. 178, 527 A.2d 1012 (1987).

Previously, we have held that “the applicability of the assured clear distance ahead rule is generally a question of fact for the jury, especially if the facts are disputed or dependant upon the credibility of oral testimony.” Fish v. Gosnell, 316 Pa.Super. 565, 463 A.2d 1042 (1983). There is evidence in the record to support a finding by the jury that Brooks violated the assured clear distance rule. Brooks himself testified that the Desport car entered the intersection while he was 150 feet away. Based on the testimony of various witnesses and photographs of the intersection, the jury could have found that the assured clear distance was less than 150 feet. For instance, the jury could properly have concluded that the assured clear distance was limited by the presence of a busy intersection, especially if it found that Mr. Brooks’ light had already turned yellow or red.

In the alternative, the jury could have found that Brooks’ truck was more than 150 feet away when Desport crossed the westbound lane based on the testimony of Mr. Cairns and Mr. Desport as to the time which elapsed between the changing of the light and the collision, together with Mr. Brooks’ estimate of his own speed. Evidence existed to support a finding that the rule had been violated and it was not error to instruct the jury on it.

Third, appellants contend that the court erred in instructing the jury that it could find Brooks negligent for travelling at an unreasonable rate of speed. Again, we find that this issue was a proper one for the jury’s consideration in light of the evidence. Even though there was no evidence that Brooks was exceeding the posted speed limit, one need not exceed the posted speed limit to be found liable for travelling at an unreasonable speed. The reasonableness of one’s speed is based on a number of factors, such as road and weather conditions, time of day, and congestion. In MacDougall v. Chalmers, this court stated that “regardless of established speed limits or privileges, no person is privileged to drive except at a careful and prudent speed with his car under reasonable control; ... and it is for the jury to say whether he has done so.” 192 Pa.Super. 401, 162 A.2d 51 (1960).

In the instant case, the jury could reasonably have concluded that Mr. Brooks was driving in excess of the posted speed limit based on the truck’s momentum following the collision or the amount of time other witnesses claimed it took for the truck to travel a certain distance. Alternatively, the jury might have concluded that Mr. Brooks’ speed was unreasonable because he knew from highway signage that he was approaching a controlled intersection from a blind curve in the road.

Fourth, appellants contend that the trial court erred in refusing an instruction that a motorist has a duty to continue looking as he proceeds through an controlled intersection. It is well settled that a trial judge may properly refuse a litigant’s requested instruction when the substance thereof has been adequately covered in the general charge. Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981). This is what happened in the instant case.

Initially, we note that in Imes v. Empire Hook and Ladder Co., 247 Pa.Super. 470, 372 A.2d 922 (1977), we found that “a motorist entering an intersection with a green light in his favor has a right to assume that those on intersecting streets will obey the law.” A motorist does not have an affirmative duty, as a matter of law, to continue looking after entering the intersection.

Furthermore, where a trial court has given a general negligence instruction and has read the applicable provisions of the motor vehicle code, it is not necessary that the court also instruct on a driver’s duty to look while proceeding through an intersection. Perigo, supra. The court specifically instructed the jury, that “if you find that the light was in his [Desport’s] favor, in other words if it was green, still requires a determination by you as to the reasonableness of his [Desport’s] actions under the circumstances.” The court also instructed the jury on an act of assembly which says that no person should move a vehicle while it is stopped, standing, or parked, unless the movement can be made with safety and told the jury that violation of this act constituted negligence as a matter of law.

A motorist is only charged with a duty to look for traffic as he advances through an intersection where he does not have the right of way, is at an uncontrolled intersection, or initially has only an obstructed view of the intersection. When a driver has a green light in his favor, his duty to look is of a lesser degree than when the intersection is uncontrolled. Bascelli v. Bucci, 244 Pa.Super. 347, 368 A.2d 754 (1976). Where, as here, there is no evidence that the motorist received timely warning that his confidence in the other’s law-abidingness is misplaced, it is not negligence to rely on others to obey traffic controls. Id,., supra.

A motorist entering an intersection under the protection of a green light, having once taken a comprehensive glance which reasonably assures him that no incipient situation can endanger his immediate forward movement, is not required to estimate with the accuracy of a speed calculator and stop watch what the other motorist at present out of the intersection may possibly do. Ramussen v. Dresnin, 382 Pa. 51, 114 A.2d 182 (1955). Therefore, the testimony of Mr. Desport that he saw the coal truck coming around the bend before his own light turned green but did not check again because he perceived that the truck had plenty of time to stop did not warrant the requested instruction, which overstated Mr. Desport’s duty of looking.

' Fifth, appellants contend that the trial court improperly admitted Dr. Kasdan’s testimony relating to damages, which was based in part on the findings of other physicians. Having read Dr. Kasdan’s testimony in its entirety, we are satisfied that Dr. Kasdan testified to his own observations, opinions, and conclusions based only in part on his review of the records of prior treating physicians. Moreover, he did not merely quote from or summarize the opinions of others, but used records of Mr. Smith’s prior treatment in his own examination, diagnosis, and treatment.

Even if Dr. Kasdan had not been a treating physician, his testimony based in part upon the reports of others would still have been proper under the rule set out in Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). The Thomas court adopted a rule allowing medical witnesses to express opinion testimony based, in part, upon reports of others which are not in evidence, but upon which the expert customarily relies in the practice of his profession. The factual situations in Thomas and subsequent cases applying the rule demonstrate that the underlying reliability of records upon which opinion testimony is partly based does not hinge so much upon the testifying expert’s own reliance on the records during his course of treatment as it does upon the interest which the maker of the record has in describing accurately that which she personally observed during her course of treatment or other discharge of professional responsibilities.

Dr. Kasdan testified, and it is not seriously disputed, that the records he relied upon were the kind that others in his profession would customarily review in connection with the examination of a patient. Moreover, he personally examined and ordered tests on Mr. Smith; in large part his testimony was based on personal observation. There was no error in admitting his testimony.

Sixth, appellant contends that Professor Slesinger should not have been permitted to testify. Professor Slesinger explained to the jury the use of government life and work-life expectancy tables and performed a calculation factoring in earnings projections based on the testimony of other experts during the trial.

It is well-settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be reversed unless the court clearly abused that discretion. Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 511 A.2d 1349 (1986) (citing other cases). Expert testimony is admissible when it involves explanations and inferences not within the ordinary training, knowledge, and experience of the jury. Id. Expert testimony is routinely used in the courts of this Commonwealth to establish or refute actual expected future earning capacity. Mecca v. Lukasik, 366 Pa.Super. 149, 530 A.2d 1334 (1987). A party is entitled to introduce expert or other evidence to show earning power. Fish v. Gosnell, supra.

Having read Dr. Slesinger’s testimony, we are satisfied that it dealt with complex economic issues outside of the ordinary juror’s experience and that it was based solely on facts in evidence, admissible government tables, and the witness’ own expertise. The trial court did not abuse its discretion in admitting this testimony.

Seventh, appellant argues that the verdict was against the weight of the evidence. Although we are not certain that an appellate court in this Commonwealth is still authorized to review the weight of the evidence, we find nonetheless that the verdict was not against the weight of the evidence.

The traditional standard for a weight of the evidence inquiry is whether the verdict is so contrary to the evidence as to shock one’s sense of justice. Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970). In a case where the credibility of witnesses is at issue, the weight to be assigned the testimony of various witnesses is within the exclusive province of the jury. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). The jury’s verdict is conclusive as long as it is based on substantial, albeit conflicting, evidence. Standard Pipeline Coating Co. v. Solomon & Teslovich, Inc., 344 Pa.Super. 367, 496 A.2d 840 (1985). In this case, there was ample testimony from which the jury found negligence and damages.

Lastly, appellants contend that the jury’s verdict was excessive. A jury verdict should not be set aside for excessiveness unless it shocks the court’s sense of justice. Ammon v. Arnold Pontiac-GMC, Inc., 361 Pa.Super. 409, 522 A.2d 647 (1987). The factors to be considered are: (1) the severity of the injury; (2) whether the plaintiff’s injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff; (3) whether the injury is permanent; (4) whether the plaintiff can continue with his employment; (5) the plaintiff’s out-of-pocket expenses. Id.

A brief review of the Smiths’ damages illustrates that the verdict was not excessive. Mr. Smith sustained severe injuries, including a neurologic brain disorder and crippling spinal compression. He was required to undergo two major operations and a painful course of physical therapy which was still ongoing as of the date of trial. Mr. Smith’s brain dysfunction was indicated objectively on an electroencephalogram and is manifested by spells of uncontrollable crying, one of which began to occur while he was on the witness stand. Spinal compression was shown by various medical tests and is manifested in continued stiffness, muscle spasms, and a spastic gait. Although Mr. Smith was an elderly man at the time of the accident, there was ample testimony to show that before the accident he was in robust good health and physically more active than are many persons twenty years younger.

Two and a half years after the accident, Mr. Smith was still suffering from crying spells, loss of memory, swelling of the limbs, muscle twitches, gait disorder, weakness, stiffness, and chronic pain, all of which will be more or less permanent. Mr. Smith has been prevented from continuing with his career as a golf course consultant because of his difficulties in travelling, meeting people, and inspecting golf course turf, all resulting from injuries sustained during the accident.

Appellants stress the fact that Mr. Smith earned considerably less than his projected earnings during his prior career as a golf course manager; however, there was extensive, unrefuted testimony that the profession has changed considerably since Mr. Smith went into temporary retirement a few years ago. Several witnesses testified, without contradiction, that Mr. Smith’s profession was highly specialized, that he was probably the best in the country at what he did, and that the money made by others in the field had increased dramatically within the past few years.

It was for the jury to determine if Mr. Smith had intended to start consulting again after a semi-retirement period of five years as he and others had testified. Certainly, much unrefuted testimony establishes that he had considerable earning capacity and that he was, moreover, an extremely active individual before the accident.

With respect to the loss of consortium claim for which Mrs. Smith was awarded $250,000.00, the evidence establishes that she lost the services and society of a healthy husband and that much of the onus of his physical and neurological difficulties fell upon her as well. As the trial court aptly noted, the aid, comfort, and society provided by one’s companion may be most valuable later on in life. Having thoroughly reviewed the transcript, we do not find the damages awarded to either plaintiff excessive.

Judgment affirmed.

      . Several witnesses testified and it was generally undisputed that the color of the lights for Route 711 northbound and southbound were always identical.

      . Appellees argue that this issue and the third issued raised by appellants, relating to the duty to drive at a reasonable speed, were not properly preserved because neither charge was requested and the automatic exceptions which the court noted only referred to instructions which were requested and denied. However, because the trial court chose to address these issues in its opinion accompanying its denial of post-verdict motions, we, too, will reach the merits.

      . In this regard, we note that the trial court, which had the opportunity to observe the plaintiffs and the witnesses as they testified, also did not believe the verdict was excessive or unreasonable.


author: TAMILIA, Judge:

text:
    575 A.2d 936
    COMMONWEALTH of Pennsylvania v. David M. SAUNDERS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 9, 1990.
    Filed May 24, 1990.

      David M. Saunders, appellant, pro se.
    Claire C. Capristo, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before TAMILIA, HOFFMAN and CERCONE, JJ.
   TAMILIA, Judge:

This is an appeal from the judgment of sentence imposed on August 22, 1989, following appellant’s probation revocation. In addition to the appeal, we have before us a Petition for Leave to Withdraw as Counsel and For an Extension of Time to Afford the Appellant Opportunity to File a Pro Se Brief or to Retain New Counsel, which was filed by appellant’s counsel along with an Anders brief. This petition must be decided prior to review of the issues raised on appeal by counsel as having arguable merit.

Appellant’s counsel seeks to withdraw from this appeal under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). In order to satisfy the requirements of Anders, the following requirements must be met. Counsel must (1) petition the court for leave to withdraw stating that after making a conscientious ex-animation of the record and interviewing the defendant, counsel has determined the appeal would be frivolous, (2) file a brief referring to any issues in the record of arguable merit and (3) furnish a copy of the brief to defendant and advise him of his right to retain new counsel or raise any additional points he deems worthy of this Court’s review. Commonwealth v. McFarland, 386 Pa.Super. 91, 562 A.2d 369 (1989).

On January 23, 1990, counsel properly filed a petition with this Court, asserting she had reviewed the complete record in light of the applicable law and researched all appropriate areas of the law and issues raised. On the basis of the foregoing activities, counsel further asserts the instant appeal is “totally frivolous and lacks merit.” Contemporaneously with the filing of her petition to withdraw, counsel also filed with this Court a brief referring to the sole issue in the record of arguable merit. She furnished appellant with copies of both the petition and the brief, enclosing them with a letter dated January 22, 1990 advising appellant of his right to retain new counsel or raise any additional points he deems worthy of the Court’s attention.

We have reviewed the matters submitted by counsel and find she has complied with Anders. Moreover, we have made an independent review of the record, including the one issue counsel has indicated was possibly of arguable merit {see discussion infra) and believe appellant has not overcome the frivolousness of the case. Anders, McClendon, supra. See Commonwealth v. Gee, 394 Pa.Super. 277, 575 A.2d 628 (1990). Because appellant has failed to respond or contact this Court in the three months since he received counsel’s letter, we will not grant counsel’s request for an additional 30 days to afford appellant the opportunity to file a pro se brief or retain new counsel.

Where counsel has moved to withdraw his or her appearance due to the allegedly frivolous nature of an appeal, the prisoner must be given a reasonable opportunity to respond to that motion by securing substitute counsel or filing a pro se brief. Maple, supra. While the Rules of Appellate Procedure provide the answer to an application for relief should be filed within 14 days,. Rule 123(b) also provides the court may shorten or extend the time for answering any application. No perceptible reason exists for extending the time for action by an appellant when invariably, as here, months have passed without response. In any event, if a response is received, suggesting justification for an extension of time, it is within the Court’s power to honor such a request if it is meritorious. The pro forma request by present counsel has no merit, and we therefore deny counsel’s petition for extension of time.

Finding counsel has satisfied the requirements of Anders and its progeny, we are left to determine independently the merits of appellant’s claim, inasmuch as counsel’s right to withdraw is dependent upon our finding that the appeal is wholly frivolous. Gee, supra; Commonwealth v. Bradley, 320 Pa.Super. 504, 467 A.2d 826 (1983). ■ Appellant’s sole argument on appeal is that the probation revocation hearing was untimely.

On March 16, 1989, while on probation for a 1984 theft conviction, appellant pled guilty to two counts of burglary, two counts of theft by unlawful taking, receiving stolen property and criminal conspiracy, and was sentenced to two concurrent terms of imprisonment of two to four years. As a result of his new convictions, a revocation hearing was scheduled for appellant on August 22, 1989. Appellant’s probation was revoked at that time, and an additional consecutive sentence of two to four years imprisonment was imposed.

Although a revocation hearing is required to be held “as speedily as possible,” Pa.R.Crim.P. 1409, this Court has construed the rule to require a hearing within a reasonable time. Commonwealth v. McCain, 320 Pa.Super. 394, 467 A.2d 382 (1983). In evaluating the reasonableness of the delay, the Court examines three factors: the length of the delay; the reasons for the delay; and the prejudice resulting to the defendant from the delay. Id.

The length of the delay in this case is an established fact, but a five-month delay is not in and of itself unreasonable. Commonwealth v. Dubuisson, 303 Pa.Super. 145, 449 A.2d 620 (1982). As for the reason for the delay, appellant blamed the probation officer, who was unavailable previously for a hearing because of armed forces reserve duty, as well as the hearing court, who had scheduling conflicts due to presiding over civil as well as criminal cases (N.T. 8/22/89, pp. 7-9, 15). The Commonwealth did not dispute these allegations. Therefore, the only issue was whether appellant was prejudiced by the delay.

In discussing this issue, our Supreme Court recently stated:

Prejudice in this context has been interpreted as being something which would detract from the probative value and reliability of the facts considered, vitiating the reliability of the outcome itself. One specific purpose of our rule in requiring a prompt revocation hearing is to avoid such prejudice by preventing the loss of essential witnesses or evidence, the absence of which would contribute adversely to the determination. Another is to prevent unnecessary restraint of personal liberty. Commonwealth v. Dickens, 327 Pa.Super. 147, 475 A.2d 141 (1984); Commonwealth v. Ballard, 292 Pa.Super. 129, 436 A.2d 1039 (1981).

Commonwealth v. Marchesano, 519 Pa. 1, 7, 544 A.2d 1333, 1336 (1988).

Although the court invited appellant to cite any possible prejudice he may have suffered or any program he was prevented from entering, appellant was unable to do so (N.T., pp. 10-11, 15).

As in Marchesano, appellant pled guilty to the charges which constituted the probation violations, negating the issue of lost witnesses or lost evidence. Further, appellant was already incarcerated as a result of convictions on the new charges. “Therefore, this was not a situation where a person was subject to incarceration as a result of any delay in the revocation of probation hearing. These factors render hollow any claim of prejudice____” Id., 519 Pa. at 8, n. 4, 544 A.2d at 1337, n. 4.

Based on the above, we find the issue preserved by counsel, which she believed to be of arguable merit, has not been established by appellant to have prejudiced him thereby removing the timeliness of the revocation hearing from the realm of frivolousness. We, therefore, agree with counsel that the case is frivolous, and based on our independent review, having determined appellant’s sole claim on appeal is without arguable merit and the case is frivolous, we grant counsel’s request to withdraw and affirm the judgment of sentence.

Petition to withdraw as counsel granted.

Petition for extension of time denied.

Judgment of sentence affirmed.

      . Cf. Commonwealth v. Maple, 385 Pa.Super. 14, 559 A.2d 953 (1989), where this Court held where appellant has neither filed a pro se brief with this Court nor in any way responded to counsel’s letter advising him of the petition to withdraw, we need consider only issues raised by counsel.


author: CAVANAUGH, Judge:

text:
    575 A.2d 939
    William J. INCOLLINGO and Genevieve Incollingo, individually and as Husband and Wife, Appellants, v. Keith Alan MAURER and Maurer Enterprises, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 15, 1990.
    Filed May 30, 1990.
    Petition for Allowance of Appeal Denied Oct. 17, 1990.

      Albert Ominsky, Philadelphia, for appellants.
    Elit R. Felix, II, Norristown, for appellees.
    Before CAVANAUGH, OLSZEWSKI and FORD ELLIOTT, JJ.
   CAVANAUGH, Judge:

The genesis of this case is an automobile accident which occurred in Montgomery County on May 26, 1984. On that date, the appellant, William J. Incollingo, was injured when his vehicle was struck by a truck operated by Keith Alan Maurer, and owned by Maurer Enterprises, Inc., the appellees herein. Mr. Maurer swerved into the oncoming traffic lane in which Mr. Incollingo was operating his vehicle, allegedly in order to avoid hitting a vehicle which had suddenly stopped. The “phantom” vehicle was not physically involved in the accident and was never identified.

William J. Incollingo brought an action against his own insurance carrier under the uninsured motorist provisions of the policy alleging negligence of the operator of the unidentified vehicle. The arbitration hearing took place in September, 1985 and the panel found the driver of the “phantom” vehicle liable for negligence and awarded damages to the appellant in the amount of $70,000.00. The maximum amount of damages to which the appellant would have been entitled under the policy was $90,000.00. The arbitration award was reduced to judgment and approved by the Court of Common Pleas of Philadelphia, and the judgment has been satisfied in full.

Subsequently, in February, 1986, the appellant and Genevieve Incollingo, his wife, commenced a civil action in the Court of Common Pleas of Montgomery County against the appellees seeking damages for personal injuries, lost earnings and diminution of earning capacity. The court below by Yohn, J. entered a partial summary judgment in favor of the appellees and against the appellant on the issue of damages as “the full amount of compensation damages to which plaintiff [the appellant] is entitled as a result of injuries sustained in the subject motor vehicle accident has been set at $70,000.00.” (Slip Opinion, pg. 13). The appellant filed a petition with this court for permission to appeal from the interlocutory order of the court below and we denied the petition. A petition was then filed in the Supreme Court, which on April 27, 1989 at No. 163 E.D. Miscellaneous Dkt.1988, reversed the order of this court and remanded the matter to us for resolution of the issue on the merits.

The issue which we must resolve is whether a plaintiff, after having the question of damages determined by a panel of arbitrators under the uninsured motorist provision of his policy, may then proceed in a separate civil action for the same damages arising from the incident.

The court below held that the appellant was collaterally estopped from again litigating the issue of damages, as that matter had been fully litigated in the arbitration proceedings. The appellant argues that the doctrine does not apply as he was not fully compensated for his damages, the arbitrators did not state the basis for their award and finally, the defendants below were not a party to the arbitration proceedings.

The Supreme Court stated in City of Pittsburgh v. Zoning Board of Adjustment of Pittsburgh, 522 Pa. 44, 55, 559 A.2d 896, 901 (1989):

Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.

See also, Derry Township School District v. Day & Zimmerman, Inc., 345 Pa.Super. 487, 498 A.2d 928 (1985); Zarnecki v. Shepegi, 367 Pa.Super. 230, 532 A.2d 873 (1987).

Collateral estoppel is also referred to as “issue preclusion”. Phillip v. Clark, 385 Pa.Super. 229, 560 A.2d 777 (1989). It is a broader concept than res judicata and operates to prevent a question of law or issue of fact which has once been litigated and fully determined in a court of competent jurisdiction from being relitigated in a subsequent suit. Alberici v. Tinari, 374 Pa.Super. 20, 542 A.2d 127 (1988).

In the instant matter, the doctrine was properly applied. The arbitration panel was called on to determine the issue of liability and also the amount of damages suffered by Mr. Incollingo as a result of the accident, including his loss of future earnings. The arbitrators found that the unknown operator of a vehicle which suddenly stopped was liable to the insured and awarded damages to him in the amount of $70,000.00. The issue of damages was fully presented to the arbitrators. Mr. Ineollingo testified concerning personal injuries he suffered, his medical treatment and doctors consulted, the effect on his family life, his partial disability, and his lost past and future earnings in connection with the operation of his business as a tree surgeon. Counsel for Mr. Ineollingo stated, inter alia, in closing argument to the arbitrators:

If he [the operator of the unidentified vehicle] is responsible, then the carrier is responsible to pay Mr. Ineollingo for his injuries. And he’s got severe disability injuries. The report indicates that his lost of future income is three hundred and some thousand dollars that he’s going to lose, and that was done by an expert.
And the reports show that the bones that he broke, the tibia is the big bone in the leg, and it’s difficult to heal. The knee injury he is still treating.

Counsel for appellant also argued that “Mr. Ineollingo may never have another day in court.” There is no question but that the issue of damages was fully covered at the arbitration hearing and the arbitrators, in their award of February 6, 1985, expressly found in favor of the plaintiffIncollingo and against his insurance carrier as to liability and “as to damages, the panel awarded an amount of $70,000.00 to plaintiff.”

The second requirement that final judgment in the previous action was rendered on the merits of the issue was met and the judgment has been satisfied. The third requirement has also been met. The party against whom the issue of collateral estoppel has been raised, namely Mr. Incollingo, was a party to the arbitration. Appellant, in his statement of questions involved, states that the doctrine of collateral estoppel does not apply among other reasons because “the third party [appellees] was not a party to the arbitration.” There is no requirement under the doctrine of collateral estoppel that the party raising the defense be involved in the original action, but only that the party against whom it is being raised was a party in the initial proceedings, as Mr. Incollingo was.

The fourth requirement that the party against whom the defense is raised must have had a full and fair opportunity to litigate the issue was also met. Every opportunity was given to Mr. Incollingo at the arbitration to present his claim as to all damages and he presented his case on that issue. At arbitration, the plaintiff testified as to the physical injuries which he sustained in the accident, the medical treatmént which he received for the injuries, the limitations upon his ability to work as a tree surgeon, the effect of his injuries upon his business, and the impact of those injuries as they related to his daily activities. The appellant described his continuing medical treatment, together with the physical pain and psychological injuries which he alleged resulted from the accident. The appellant’s counsel, in his argument to the arbitration panel, contended that the plaintiff had sustained permanent injuries and that he was still under treatment for injuries sustained. The arbitrators were apprised of the full range of the appellant’s claims. The appellant also submitted extensive documentation pertaining to his damages, including copies of medical records, reports, and bills which related to both his physical and psychological injuries. The appellant also submitted the report of an economic expert which addressed the issue of plaintiff’s loss of past and future earnings.

There is no doubt that the fifth requirement has also been met as it was essential for the panel to determine damages as well as liability since the arbitration award was based on the damages suffered by the appellant.

The reproduced records submitted by the appellant contains “Claimant’s Arbitration Memorandum on Claim for Damages for Loss of Future Earning Power.” The memorandum goes into extensive detail concerning Mr. Incollingo’s testimony at arbitration about his permanent disability and inability to continue fully in his profession as a tree surgeon. He argued that under Pennsylvania law he should be compensated for loss of earning power. We are satisfied that the issue of all the damages suffered by the appellant was fully and fairly litigated at the arbitration proceedings, and the appellant had the opportunity to present whatever evidence he desired concerning the damages he suffered as a result of the accident.

This case is analogous to Phillip v. Clark, supra. In that case, the plaintiff was injured in an automobile accident. The driver of the other vehicle was insured by Concord Mutual Insurance Company. Concord Mutual became insolvent and the plaintiff submitted an uninsured motorist claim to his own carrier, Nationwide Insurance Company. The claim was submitted to arbitration and an award was made for the plaintiffs injuries. The defendant’s insurer then became the Pennsylvania Guaranty Association because of the insolvency of Concord Mutual. The plaintiff below proceeded against the defendant and summary judgment was granted in favor the defendant as the award of the arbitrators precluded a separate suit against the defendant for the same damages. This court held that the civil action was barred on the basis of collateral estoppel. We stated at 385 Pa.Super. at 233, 560 A.2d at 779:

The essence of uninsured motorist coverage is that the insured’s carrier will provide the liability coverage of the negligent tortfeasor where the tortfeasor does not do so himself. Thus, the insured’s carrier, in a constructive sense, takes the place of the alleged tortfeasor’s carrier and the insured, to recover, must establish the liability of the tortfeasor in the same manner as if proceeding directly against the alleged tortfeasor himself... Thus, there is compelling reason to consider the arbitration award a fair and final litigation of appellant’s damages, and the similarity in position of the alleged tortfeasor and the uninsured motorist carrier would seem to also militate toward allowing collateral estoppel effect to the arbitrator’s award.

McNally v. Dagney, 353 Pa.Super. 402, 510 A.2d 722 (1986) involved a factual situation similar to that in the instant case. The plaintiff was a passenger in an automobile involved in a. collision with a. vehicle operated by an unknown driver. The plaintiff brought an action against his insurer under the uninsured motorist provisions of his policy. He was awarded damages in an amount less than the policy coverage. While the insured motorist claim was pending, the plaintiff commenced an action against the driver of the vehicle in which he was a passenger. The court below entered summary judgment in favor of the defendant and we reversed, holding that on the record, before us, it was impossible to determine if the plaintiff was seeking to recover identical damages in his claim under his uninsured motorist provision and in the action against the defendant. We noted at 353 Pa.Super. at 406, 510 A.2d at 724: “[The plaintiffs] are not entitled to recover duplicate damages, and thus it was necessary for the lower court to review the record of the arbitration proceeding to determine if such recovery was being sought in the instant case.” We further stated at 353 Pa.Super. at 408, 510 A.2d at 725:-

To. the extent that appellants are submitting the same claims, appellees may be correct in their assertion that appellants are collaterally estopped from relitigating the amount of damages awarded on those claims.'
(Emphasis in original).

We have reviewed the arbitration proceedings. There is no doubt that they dealt with the same issue of damages presented in the suit against appellees, a,s far as Mr. Incollingo is concerned. The appellant is not entitled to a second bite of the apple by means of suing the appellees for the same damages he has already recovered from his own insurance company.

The appellant relies on the Supreme Court’s decision in Bethea v. Forbes, 519 Pa. 422, 548 A.2d 1215 (1988). In that case, two motor vehicles were involved in an accident and a suit was brought against Mr. Forbes, the operator of one of the vehicles. While the suit was pending, Forbes’ insurance carrier, Safeguard Mutual Insurance Company, became insolvent and the plaintiff’s made claims under the uninsured motorist provisions of the owner’s vehicle, which was insured by the Government Employees Insurance Co. (GEICO). Settlement was made in an amount less than the policy limits. The court below dismissed the civil action and we affirmed per curiam. On appeal, the Supreme Court reversed and remanded to the trial court with direction to reinstate the plaintiff’s action. The Supreme Court agreed with the plaintiff’s argument that regardless of the effect of the uninsured motorist settlement with GEICO under the Insurance Guaranty Act, it did not bar the plaintiffs from continuing the tort action against Mr. Forbes. The basis for this is that a tortfeasor is liable for all injury caused by his negligence or other unlawful conduct, and as a general principle, a plaintiff in such an action is entitled to compensation from the tortfeasor to the full extent of the injuries sustained. The court pointed out that the statutory language of the Uninsured Motorist Act made it clear that one receiving payments pursuant to uninsured motorist coverage, where the tortfeasor’s carrier becomes insolvent, retains the right to proceed to judgment against the tortfeasor.

Bethea v. Forbes, supra, involved an entirely different situation from the matter sub judice. The appellant’s claim for damages in the instant matter was fully litigated in an arbitration proceeding imposing liability as well as damages against a tortfeasor, the unknown operator of the phantom vehicle. No damages could be imposed in the arbitration proceedings in the absence of liability, and the arbitrators award determined liability as well as damages. In the Bethea case, the uninsured motorist provision of the plaintiff’s insurance policy came into play simply because Forbes’ insurance carrier became insolvent. In Bethea there was no determination of damages following a full hearing on that issue before a panel of arbitrators.

The appellant was not faced with a defendant whose insurance carrier was insolvent, as in Bethea, supra. Mr. Incollingo could have chosen to sue the defendants below for personal injuries and lost earnings, as well as diminution of future earnings. Had he elected to do this and the matter had been fully litigated in the Court of Common Pleas, resulting in full recovery for all damages that he suffered, he could not then have proceeded under his uninsured motorist policy to recover for the same damages from his own insurance company. The appellant elected to recover damages from his own carrier and was awarded an amount to compensate him for all of his damages, even though it was an amount less than his insurance coverage. Although the appellant sought greater damages than awarded by the arbitrators, this does not entitle him to a duplication of the damages in a civil action.

The court below properly entered partial summary judgment on the issue of damages to the plaintiff below, William J. Incollingo. Summary judgment may be granted if the pleadings, depositions, answers to interrogatories and admissions on file show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hedlund Manufacturing Co. v. Weiser, Stapler & Spivak, 517 Pa. 522, 539 A.2d 357 (1988); Gabovitz v. State Auto Insurance Association, 362 Pa.Super. 17, 523 A.2d 403 (1987); Williams v. Pilgrim Life Insurance Co., 306 Pa.Super. 170, 452 A.2d 269 (1982); Pa.R.C.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983); Dunn v. Teti, 280 Pa.Super. 399, 421 A.2d 782 (1980); Tom Morello Construction Co., Inc. v. Bridgeport Federal Savings & Loan Association, 280 Pa.Super. 329, 421 A.2d 747 (1980). In addition, we must examine the record in the light most favorable to the non-moving party’s pleadings and give the non-mover the benefit of all reasonable inferences to be drawn therefrom. Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987); Metal Bank of America v. Insurance Company of North America, 360 Pa.Super. 350, 520 A.2d 493 (1987). Applying all of these tests, we find that the appellees are entitled to summary judgment.

A trial court’s grant of summary judgment will be overturned only if there has been an error of law or clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 528 A.2d 177 (1987). We discern neither an error of law nor abuse of discretion and accordingly, we affirm the partial summary judgment entered by the court below. See also, McCain v. Pennbank, 379 Pa.Super. 313, 549 A.2d 1311 (1988).

Judgment affirmed.

      . See, Bethea v. Forbes, 354 Pa.Super. 622, 508 A.2d 337 (1986).

      . The court noted at 519 Pa. at 425, 548 A.2d at 1216:
      Even if a claim is one otherwise covered by the Insurance Guaranty Act, a person’s right to obtain relief under the statute does not arise unless or until he has exhausted such rights as he has, with respect to the "covered claim,” under an insurance policy other than the one issued by the insolvent. An obvious example of such a situation is where a person has been negligently injured in an automobile accident, and, being unable to obtain payment from the insolvent insurer of the tortfeasor, may look to the uninsured motorist provision in his own insurance policy or in some other applicable policy.


author: POPOVICH, Judge:

text:
    575 A.2d 944
    Ralph M. HERSHBERGER, Jr., Appellant, v. JERSEY SHORE STEEL COMPANY and The Williamsport Hospital and Medical Center, Appellees.
    Superior Court of Pennsylvania.
    Argued March 8, 1990.
    Filed May 29, 1990.

      Mark F. Lovecchio, Williamsport, for appellant.
    Raymond E. Ginn, Jr., Wellsboro, for Williamsport Hosp., appellee.
    Joseph Orso, Williamsport, for Jersey Shore Steel, appellee.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the judgment of the Court of Common Pleas of Lycoming County entered in favor of the appellees/defendants, Jersey Shore Steel Company and Williamsport Hospital and Medical Center, and against the appellant/plaintiff, Ralph M. Hershberger, Jr. We affirm in a case of first impression.

The evidence, viewed in a light most favorable to the verdict-winner, reveals that in October of 1986, the plaintiff, because of the relatives he had working at Jersey Shore Steel Company, secured an application, an interview and ultimate employment with the steel company by September 2, 1986.

The plaintiff, as a new employee, was placed on 60 days probation and was required to submit and pass blood and urine tests for alcohol and drug use. In compliance therewith, the plaintiff, on September 4, 1986, went to Jersey Shore Hospital for a chest x-ray and to give a urine sample for drug testing. The urine sample, under an agreement with Jersey Shore Steel Company, was transferred to Williamsport Hospital since it had the facilities to perform the test (“Industrial Drug Screen B”) desired by the steel company (for marijuana, alcohol and opiates), and established by its registered nurse in January of 1986 with Williamsport Hospital for its pre-employment applicants for “safety” purposes.

The plaintiffs urine was tested by hospital personnel with the use of the Syva EMIT ST procedure, and it proved to be “positive” for cannabinoids (“marijuana”). The test was repeated to check its accuracy. Again, the reading was “positive”. The results were communicated by phone to Jersey Shore Steel Company. In turn, the plaintiff was instructed to meet with the personnel director on September 17, 1986. At this meeting, the president of the company was present with the personnel director when the plaintiff was informed of his drug test results. To this the plaintiff answered: “It couldn’t still be in my system” because it had been years since he had used it.

The plaintiff was advised it would be best if he were to resign, and, failing this, he would be fired. The plaintiff resigned, and, approximately one hour later, returned to the mill to ask the personnel director if he could take another test. He was told that the company considered him to have resigned. It would not alter its position.

Nonetheless, the plaintiff, on September 18, 1986, gave blood and urine samples to Jersey Shore Hospital, knowing that it would forward them to Williamsport Hospital for testing. On September 19, 1986, the plaintiff went to Williamsport Hospital to obtain a copy of his September 4th test and the September 18th test as well.

The September 18th test came back “negative” for cannabinoids. Also, the plaintiff was told by the person who performed the tests (a Ronald Hearton) that there still was a sample of his September 4th urine on hand, and it could be analyzed by a “more reliable” test known as gas chromatography mass spectrometry (GC/MS) and performed by National Medical Center Laboratory in Willowgrove, Pennsylvania. The plaintiff agreed to pay for the cost of having the September 4th specimen tested. The result came to him via Williamsport Hospital and indicated a “negative” detection for marijuana metabolites. The same result occurred with the plaintiff’s blood sample given to the hospital on September 18th.

With the three negative test results in hand, the plaintiff obtained a meeting with the personnel director and president of Jersey Shore Steel Company on October 6, 1986. Despite the results of the new tests, the plaintiff was told that the company considered him to have resigned his job. However, he was told that if he were able to secure from Williamsport Hospital a document evidencing that it had done something wrong in the testing process, “maybe down the road when they hired there was a possibility [the plaintiff] would be considered along with any other applicant.”

On January 27, 1987, the plaintiff reacted to the steel company’s refusal to rehire him with the filing of a five-count complaint alleging (1) the intentional infliction of emotional distress, (2) defamation of character, and (3) invasion of privacy against each of the defendants, while (4) wrongful discharge and (5) negligence were asserted against Jersey Shore Steel Company and Williamsport Hospital, respectively.

Prior to trial, Williamsport Hospital filed preliminary objections in the nature of a demurrer and a motion to strike various counts. The Jersey Shore Steel Company, however, merely filed a reply with new matter. The pre-trial court granted Williamsport Hospital’s demurrer to the defamation averment in count III of the plaintiff’s complaint, while allowing the plaintiff the opportunity to amend the balance of his complaint rather than grant the remaining demurrer/motion to strike.

After the presentment of an amended complaint and answer thereto, interrogatories were submitted and the case was listed for trial. The only counts which remained for the jury to consider after the three-day trial concerned negligence and defamation. The remaining counts were non-suited by the trial court on motions of the defendants’ counsel.

As part of the trial court’s charge to the jury, five interrogatories were posed for the jury’s response and were answered as follows:

1. Were there cannabinoid metabolytes [sic] present in the Plaintiff’s 9/4/86 urine sample, inferring marijuana usage by him within the past 75 days?
Yes J£_ No_.
2. A. Was the Defendant The Williamsport Hospital and Medical Center negligent?
Yes _ No X .
B. If Yes, was such negligence a substantial factor in causing damages to the Plaintiff?
Yes _ No X .
3. Did the Defendant Jersey Shore Steel Company communicate the information relating to the dismissal of Plaintiff as an employee for a purpose other than the employer’s interest in maintaining a safe plant by dismissing probationary employees reasonably believed to have used marijuana?
Yes No X .
4. Did the Defendant Jersey Shore Steel Company communicate information relating to the dismissal of Plaintiff as an employee to any person not reasonably believed by the employer to be necessary to accomplish its purpose of dismissing probationary employees reasonably believed to have used marijuana?
Yes_ No _X_.
5. In communicating, or continuing to communicate information relating to the dismissal of Plaintiff as an employee, did Defendant Jersey Shore Steel Company act with a reckless or negligent disregard as to its truth or falsity?
Yes _ No X .

With the entry of a verdict in favor of the defendant, the plaintiff filed post-trial motions. These were denied and judgment was entered in favor of the defendants and against the plaintiff. The present appeal was perfected and raises three questions for our consideration. The first challenges, as error, the trial court’s refusal to remove the non-suit of wrongful discharge in favor of Jersey Shore Steel Company.

In making our determination to uphold the trial court’s action, we begin with the understanding that in Pennsylvania an at-will employment environment is the norm, absent a contract to the contrary, and, thus, an employee can be terminated for good reason, bad reason, or no reason at all. Henry v. Pittsburgh & Lake Erie Railroad Co., 139 Pa. 289, 21 A. 157 (1891). Stated otherwise, there is no common law cause of action against an employer for termination of an at-will employment relationship. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). “Exceptions to this rule have been recognized in only the most limited of circumstances, where discharges of at-will employees would threaten clear mandates of public policy.” Clay v. Advanced Computer Application, 522 Pa. 86, 89, 559 A.2d 917, 918 (1989). This position was confirmed recently by our Supreme Court in Paul v. Lankenau Hospital, 524 Pa. 90, 569 A.2d 346 (1990), wherein it reversed Superior Court’s equitable estoppel ruling in favor of the plaintiff/appellee on the following grounds:

... “this Court did not announce a cause of action for wrongful discharge in Geary. Indeed the language in Geary clearly states that a cause of action for wrongful discharge in an at-will employment relationship does not exist.”
The Geary-Clay analysis is dispositive of the instant case. The doctrine of equitable estoppel is not an exception to the employment at-will doctrine. An employee may be discharged with our [sic] without cause, and our law does not prohibit firing an employee for relying on an employer’s promise. In the absence of a legally cognizable cause of action, the trial court erred in submitting the issue to the jury.

524 Pa. at -, 569 A.2d at 348-49 (Citation omitted).

Instantly, the plaintiff argues that a public policy exists in this country in general and in Pennsylvania in particular against the use of drug testing which proves “positive”, and is not confirmed by another distinctive test different from the initial one where one’s job hangs in the balance. In support of this claim, the plaintiff points to two pieces of legislation pending in this Commonwealth (Senate Bill No. 776, Session of 1987, §§ 1, 5(d) & 6(b); House Bill No. 1928, Session of 1987, §§ 3, 4(d), 5(d)-(e), 7(d) & 13), and eight other states which have enacted drug testing laws mandating confirmation of initial drug screens by different or alternative scientific methods. Also, the plaintiff cites federal and state decisions condemning the use of unreliable scientific testing procedures and the use of unconfirmed EMIT drug screening. Further, the plaintiff argues that all of the experts at trial testified that each would have confirmed the plaintiffs test results with another, alternative procedure rather than replicaté the EMIT ST test.

Unlike the plaintiff, our review of the evidence does not establish the presence of a “clear” mandate in the form of public policy allowing for the existence of a cause of action for wrongful discharge founded upon the use of a drug screening test, the results of which are not confirmed by an alternative scientific procedure and lead to an individual’s loss of employment.

Granted, the two pieces of Pennsylvania legislation referred to by the plaintiff do require that positive drug screen results may not lead to discharge without confirmation. However, the short response to the plaintiff’s argument is that the legislation has never been enacted into law in this Commonwealth, which, like a two-edged sword rather than being a buttress for his public policy claim, undermines such an assertion counseling against the creation of a cause of action by judicial fiat for wrongful discharge in drug testing cases.

As for the statutes of our sister states, as well as the federal and state decisions touching on the question at hand, we are not persuaded to join in the creation of an exception to our at-will employment precept. See e.g., Paul, supra.

Moreover, the testimony proffered at trial is anything but dispositive as to the unreliability of the EMIT ST test. For example, Dr. Frederick Goldstein, a pharmacologist and the plaintiff’s expert, testified that the EMIT ST test “is a good test, it is reliable but not a hundred percent.” He would have used the GC/MS test to confirm the presence or absence of cannabinoids in the plaintiff’s September 4th specimen, as was recommended by the manufacturer of the EMIT ST test, Syva, in its July, 1986 “policy and procedure guidelines for industry” where a person’s job is at stake. He also opined that a laboratory performing drug testing for an employer should confirm a positive EMIT ST result “by an alternative method and the alternative method that is recommended is the mass spec GC.”

On the other hand, the expert for the defense, a Dr. Carl Vereby, stated that the National Institute on Drug Abuse had presided over eight-hundred samples using the EMIT ST and found it to be “a hundred percent reliable.” Likewise, the Center for Disease Control had done studies on the EMIT ST test for cannabinoids and its data concluded that “all Emit assays are better than 96 percent reliable____” As for studies done by the witness/expert, he had “not seen false positives in the Emit marijuana test”, and he had been in the field for some ten years. His opinion of the EMIT ST test was as follows:

... I would say it’s one of the most accurate tests I have ever seen and I don’t know any testing of any kind that comes as close to being foolproof. [It’s 99 percent plus accurate.]

With regard to the September 4th sample testing positive twice on September 5th by the hospital through the EMIT ST, and then the same sample testing positive on September 18th, being erroneous (“false positive”) was described by the expert for the defense to be a one in ten-thousand chance. In the same vein, the fact that the September 4th specimen was mailed, unrefrigerated, to the National Medical Center sometime between September 24th and 25th for testing and proved to have a “negative” reading for marijuana was explained by the expert thusly:

... there is a possibility that urine left at room temperatüre would decompose the metabolite by the time the retesting is done.

This was consistent with a study by one Sutheimer appearing in the Journal of Clinical Toxicology in 1985, Volume 9, pages 156-160, i.e., the stability of Delta 9 TCH carboxy (one of the metabolites in marijuana) when kept at room temperature could, in as little as four days, result in the same sample reading “negative”. This, in part, was given as a reason by Dr. Verebey as to why the GC/MS test performed by National Medical Center came back negative on the September 4th urine specimen. The same response applied to testing performed by the EMIT ST manufacturer, Syva.

The other basis for such a difference in results between National Medical Center’s and Williamsport Hospital’s testing was that the GC/MS tests for a particular (major) metabolite, which if not present in the sample will result in a “negative” reading, whereas the EMIT ST tests for some ten metabolites different than that detected by the GC/MS. This was consistent with the testimony elicited from Dr. Hill and a Ms. Williams, both of whom are employees of the hospital dealing in laboratory work.

Lastly, Dr. Verebey remarked on the plaintiff’s efforts to have Syva’s brochure and booklet, both recommending that repeat testing of “positive” results be conducted by means other than the initial testing procedure, be equated with a national industry standard in the testing field in the following fashion:

It’s their [Syva’s] policy but it’s a guide. As a matter of fact the whole country is [in] an upheaval. They don’t know what to do with it. So it’s cases like these which are going to form the legal basis of testing. Some states have it down a little further than others. I have been testifying in Alaska, in Hawaii and various other places in the country. Everywhere there is something different and currently it’s the policy of the [Syva] company and they realize they should change it and it’s a growing industry. I guess it’s the process of development.

Accordingly, this area of the law being in its nascent stage of development, in conjunction with the absence of a “violation of a clearly mandated public policy which strikes at the heart of a citizen’s social right, duties, and responsibilities”, see, e.g., McGonagle v. Union Fidelity, 383 Pa.Super. 223, 229, 556 A.2d 878, 882 (1989), prompts this Court to uphold the compulsory non-suit of the court below as to the plaintiffs wrongful discharge cause of action.

The remaining two issues offered by the plaintiff were disposed of properly by the trial court in its opinion to us at pages 7-9, and we adopt it as our own and for allocatur purposes in rejecting the plaintiffs contentions on appeal.

Judgment affirmed.

      . Connecticut (P.A. 551, L. 1987), Iowa (H.F. 469, L. 1987), Louisiana (Act 464, L. 1987), Minnesota (Ch. 388, L. 1987), Rhode Island (Ch. 540, L. 1987), Vermont (Act 61, L. 1987), Montana (S.B. 338, L. 1987), and Utah (H.B. 154, L. 1987).

      . Barrel of Fun v. State Farm, 739 F.2d 1028 (5th Cir.1984); United States v. Brown, 557 F.2d 541 (6th Cir.1977); Jones v. McKenzie, 628 F.Supp. 1500 (D.C.1986); Higgs v. Wilson, 616 F.Supp. 226 (W.D.Ky.1985); Johnson v. Walton, NO. 561-84 Slip Opinion (Vt.Super.Ct.1985).

      . Dr. Verebey testified that sixty metabolites have been identified as forming in one's body after inhaling marijuana. Each of us has different biotransformation ways. And, quoting Dr. Verebey, "it is possible that some people form another metabolite and if that’s the case, the GC/MS really is looking for one particular metabolite and if that's not happened [sic] to be there and we would get a negative reading.”

      . The two issues raised by the plaintiff appear in his appellate brief at page 7 and read: “(2) WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JURY’S ANSWERS TO SPECIAL JURY QUESTIONS NOS. 1, 2A, 2B AND 5 ARE AGAINST THE WEIGHT OF THE EVIDENCE”, "(3) WHETHER APPELLANT IS ENTITLED TO A NEW TRIAL BECAUSE THE LOWER COURT ERRED IN REFUSING TO ALLOW THE TESTIMONY OF APPELLANT AND HIS WIFE AS TO STATEMENTS MADE BY RONALD HEARTON?”