author: PER CURIAM:

text:
    579 A.2d 974
    Donna GATTEN, Appellant, v. Allen MERZI.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1990.
    Filed Sept. 5, 1990.

      Robert Beckwith, Pittsburgh, for appellant.
    John A. Bass, Pittsburgh, for appellee.
    Before CAVANAUGH, TAMILIA and HESTER, JJ.
   PER CURIAM:

Donna Gatten appeals from the order entered in the Court of Common Pleas of Washington County on June 9, 1989, which sustained Allen Merzi’s preliminary objections to a single count of her multi-count complaint. For the reasons set forth below, we affirm.

The facts may be summarized as follows. On July 15, 1987, after appellee performed an unsuccessful surgical procedure designed to facilitate weight loss, appellant initiated the present action by writ of summons. One year later, asserting negligence, lack of informed consent, fraud, breach of warranty, and violations of the Unfair Trade Practices and Consumer Protection Law (“Act”), 73 P.S. § 201-1 et seq., she filed a complaint. After appellee responded with preliminary objections, appellant filed an amended complaint, which set forth the same five counts. Subsequently, alleging that appellant had failed to assert any factual or legal basis for the applicability of the Act, appellee filed preliminary objections in the nature of a demurrer as to that count. On June 9, 1989, following argument on the matter, the trial court sustained appellee’s objection and dismissed the count in question. This timely appeal followed.

Initially, we note that it long has been clear that we have an obligation to consider the propriety of each appeal, that such consideration may be made sua sponte, and in the absence of a specific statutory provision to the contrary, that an appeal determined to be interlocutory must be quashed. Danko Development Corp. v. Econocast Corp., 369 Pa.Super. 120, 534 A.2d 1108 (1987). With these principles in mind, we sua sponte address the question of the propriety of the present appeal.

In Danko Development Corp., supra, we considered whether an order sustaining preliminary objections but dismissing less than all counts of a multi-count complaint was interlocutory and, therefore, properly appealable. After noting the general rule that such orders are not appealable, Cloverleaf Development v. Horizon Financial F.A., 347 Pa.Super. 75, 500 A.2d 163 (1985), we stated:

However, the general rule is not without exceptions. Where the dismissal of one count or several counts of a multi-count complaint has the effect of precluding the plaintiff from pursuing the merits of separate and distinct causes of action, the order sustaining preliminary objections is then final, not interlocutory with respect to the causes of action dismissed. The plaintiff is “out of court” with respect thereto. Id. [Praisner v. Stocker], 313 Pa.Superior Ct. [332] at 339, 459 A.2d [1255] at 1258-1259 [1983]. This is to be distinguished from the situation in which separate counts have been used to state alternate theories to support recovery on the same cause of action. In such cases, the dismissal of one count does not prevent the plaintiff from proceeding to a determination of the underlying cause of action. (Emphasis added).

Id., 369 Pa.Super. at 128, 534 A.2d at 1112 (footnote omitted). In addition, we indicated that in determining whether the various counts contained in a multi-count complaint set forth separate causes of action, we must focus upon their nature. Id.

In the present case, appellant filed an amended complaint that contained claims relating to negligence, lack of informed consent, breach of warranty, fraud, and violations of the Act. However, in accordance with preliminary objections filed by appellee, the trial court entered an order dismissing the final one. Since the dismissed count set forth a cause of action that was based upon statutory law, it was separate and distinct from the four that remained. See Hardy v. Pennock Insurance Agency, 365 Pa.Super. 206, 529 A.2d 471 (1987). Consequently, the instant appeal, which was filed from the court’s order, is properly before us.

We now address the merits. Appellant asserts that the trial court’s decision to dismiss the count alleging violations of the Act was erroneous. This issue is without merit.

We note preliminarily that the standard for reviewing the propriety of an order sustaining preliminary objections in the nature of a demurrer is well-established.

On appeal from an order sustaining preliminary objections in the nature of demurrers, this Court is concerned only with determining the legal sufficiency of appellant’s complaint. Schott v. Westinghouse Electric Corporation, 436 Pa. 279, 259 A.2d 443 (1969). We must confine our analysis to the complaint and decide whether sufficient facts have been pleaded which would permit recovery if ultimately proven. Id.; D’Antona v. Hampton Grinding Wheel, 225 Pa.Super. 120, 310 A.2d 307 (1973).

Gordon v. Lancaster Osteopathic Hospital Assn., 340 Pa. Super. 253, 260, 489 A.2d 1364, 1368 (1985). Instantly, there is no contention that the facts asserted in the complaint, which relate to alleged misrepresentations regarding the operation’s approval, standards, and possible results, would be insufficient to support recovery if the Act were found to be applicable. Therefore, the determination of the propriety of the trial court’s decision depends upon whether the terms of the Act apply to the instant case.

According to the Act, unfair methods of competition and deceptive practices in the conduct of any trade or commerce are unlawful. 73 P.S. § 201-3. The phrase “trade or commerce” includes the sale of services. 73 P.S. § 201-2(3). Among the practices condemned by the Act are various misrepresentations as well as other fraudulent conduct that creates a likelihood of confusion or misunderstanding. 73 P.S. § 201-2(4). However, even though the Act does not exclude services performed by physicians, it is clear that the Act is intended to prohibit unlawful practices relating to trade or commerce and of the type associated with business enterprises. It equally is clear that the legislature did not intend the Act to apply to physicians rendering medical services.

A reading of appellant’s complaint demonstrates that appellant is premising her cause of action under the Act on statements made to her about her course of treatment and the probable results of that treatment. To impose the liability provided for by the Act to such statements would have the effect of making a physician the absolute guarantor of both his treatment and the anticipated results even in the absence of a specific contract warranting those results. Thus, each time a physician, without fault, performs an unsuccessful operation, he could face liability under the Act for preoperative statements about its anticipated outcome. Such an interpretation, which is inconsistent with our precedent regarding liability of physicians in performance of their medical services, would be absurd.

Under our law, the liability of a physician is premised upon either fault, lack of informed consent, or a specific contract warranting certain results. There is no indication that the Act was intended to create a cause of action for every statement made by a physician regarding a patient’s condition, the likelihood for success of a given procedure, or the recommended course of treatment. Such an interpretation of the Act would make physicians the guarantors of their fault-free work. This is absurd. It is clear that the legislature, in passing the Act, did not intend to disturb existing common and statutory law regarding when liability for the rendition of medical services attaches to a physician. Since it is presumed that the legislature does not intend its enactments to lead to an absurdity, see 1 Pa.C.S. § 1922(1), we conclude that the trial court correctly dismissed the count of appellant’s complaint which premised a cause of action on the Act.

Order affirmed.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    579 A.2d 976
    Deborah MORRISON v. Raymond MILLER, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 29, 1990.
    Filed Sept. 12, 1990.

      Samuel A. Litzenberger, Quakertown, for appellant.
    John B. Kalinkos, Asst. Dist. Atty., Quakertown, for appellee.
    Before OLSZEWSKI, CERCONE and BROSKY, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County, Domestic Relations section, denying appellant Raymond Miller’s motion to proceed in forma pauperis. We reverse and remand for proceedings consistent with this opinion.

Our review of the record reveals the following facts. On September 14, 1989, a jury rendered a verdict against appellant with regard to the issue of paternity. Subsequently, appellant filed a motion for post-trial relief on September 20, 1989. On November 1, 1989, appellant filed a motion to be excused from paying the costs of the trial transcript. This motion, however, was denied by the lower court on the same date.

In its opinion, the lower court found that appellant was financially capable of paying the trial transcript costs. The court specifically rejected appellant’s argument based upon its interpretation of his IFP Verified Statement. According to the lower court, appellant’s IFP Verified Statement documented his gross monthly income of $1,630.00. Moreover, the lower court declared that appellant’s appeal was interlocutory.

Prior to addressing the merits of appellant’s contention, we must determine whether the relevant order is interlocutory and non-appealable. As our Pennsylvania Supreme Court declared:

It is, of course, well settled that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which usually ends the litigation, or alternatively, disposes of the entire case. In determining what constitutes a final order we have followed the approach of Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), in that we look to “practical rather than technical construction” of an order. In Cohen, the Supreme Court of the United States carved out an exception to the final judgment rule for situations where postponement of appeal until after final judgment might result in irreparable loss of the right asserted. Under Cohen, an order is considered final and appealable if (1) it is separate from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) the question presented is such that if review is postponed until final judgment in the case, the claimed right will be irreparably lost.

Pugar v. Greco, 483 Pa. 68, 73, 394 A.2d 542, 545 (1978) (citations and footnote omitted). For the reasons outlined below, we find the pertinent order final.

The instant case does not present the first time this Court has been called upon to determine the status of an appeal from an order denying an appellant’s request to forego the expense of procuring trial transcripts. In Malenfant v. Ruland, 274 Pa.Super. 506, 418 A.2d 521 (1980), we analyzed a factual and procedural puzzle similar to the one presented in this case by utilizing the three-prong Cohen test as outlined by our supreme court in Pugar. Employing Pugar and Malenfant as guideposts, we apply the Cohen analysis to the case sub judice.

In Malenfant, appellant appealed a lower court order denying his request to impose transcription preparation costs on the county. Id., 274 Pa.Superior Ct. at 508-89, 418 A.2d at 522. This request was rejected by appellant’s trial judge and by the court of common pleas en banc. Id., 274 Pa.Superior Ct. at 507-08, 418 A.2d at 521-22. In rejecting appellant’s motion, the court en banc noted that appellant “had not presented any evidence, either through affidavit, deposition, or otherwise, concerning his ability to bear the costs of transcript preparation. Moreover, ... appellant at no time alleged indigency.” Id., 274 Pa.Superior Ct. at 508, 418 A.2d at 522.

Applying the three-prong Cohen test in Malenfant, we found that the order of the lower court was collateral to the main cause of action and that the right involved was too important to be denied review. Id., 274 Pa.Superior Ct. at 510, 418 A.2d at 523. We concluded, however, that appellant’s finality claim failed under the Cohen analysis since postponement of appellate review would not result in the irreparable loss of the costs claim. Id. Such is not the case here.

In the instant case, appellant, unlike his counterpart in Malenfant, alleged indigency. Appellant specifically submitted an IFP Verification Statement to the court documenting his inability to pay transcription preparation costs. Furthermpre, appellant’s trial counsel noted in the relevant statement that appellant was “provided with legal representation without cost to him and [was] unable to pay his attorney for any services heretofore rendered or hereinafter to be rendered.” In light of the Cohen analysis, we find that postponement of our review of appellant’s costs claim would result in its irreparable loss. If appellant was unable to pay the pertinent fees, he would be unable to proceed with the instant appeal.

Turning to the merits of appellant’s appeal, we find that the lower court erred with regard to appellant’s transcription preparation costs argument. Section 552(d) of our Rules of Appellate Procedure provides as follows:

Rule 552. Application to Lower Court for Leave to Appeal In Forma Pauperis
(d) Automatic approval in certain cases.
If the applicant is represented by counsel who certifies on the application or by separate document that the applicant is indigent and that such counsel is providing free legal service to the applicant, the clerk of the lower court shall forthwith enter an order granting the application.

Such is the case here. As noted supra, appellant’s counsel noted that appellant was provided with free legal representation throughout this action due to appellant’s indigency. Thus, we conclude that the lower court was bound to automatically approve appellant’s application to proceed in forma pauperis.

The order of the lower court is reversed and this case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellant filed an IFP Verified Statement in accordance with Pa.R. A.P., Rule 552(b), 42 Pa.C.S.A.

      . We note here, however, that the lower court failed to recognize appellant’s documentation of his indebtedness pursuant to his IFP Statement. This documentation illustrated appellant’s dire financial situation.


text:
    579 A.2d 978
    COMMONWEALTH of Pennsylvania v. Chester SWARTZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 29, 1990.
    Filed Sept. 12, 1990.

      David R. Lipka, Plymouth, for appellant.
    Richard W. Knecht, Asst. Dist. Atty., Berwick, for Com.
    Before OLSZEWSKI, CERCONE and BROSKY, JJ.
   CERCONE, Judge:

This is an appeal from an order of the Court of Common Pleas of Columbia County, denying appellant’s motion to dismiss the charges against him. Appellant had filed a motion to dismiss on April 17, 1989 on the basis that his rights under Rule 1100 of the Pennsylvania Rules of Criminal Procedure had been violated. See Pa.R.Crim.P., Rule 1100, 42 Pa.C.S.A. We vacate and remand for the reasons articulated below.

On March 16, 1988, appellant was arrested in connection with a motor vehicle accident which occurred on February 29, 1988 and charged with violation of 75 Pa.C.S.A. § 3742, relating to accidents involving death or personal injury. A preliminary hearing on the charge was held on April 14, 1988, and the case was bound over for trial. Also, on April 14, 1988, appellant was released on bail. In May, 1988, appellant waived formal arraignment and filed a motion to suppress. On July 15, 1988, the Commonwealth requested an extension of time for commencement of trial, which was granted by the lower court. The lower court extended the time for commencement of trial through the September, 1988 criminal term.

At the hearing on the suppression motion, February 8, 1989, the Commonwealth was afforded thirty (30) days to file a responsive brief to the brief submitted by appellant. The Commonwealth did not respond until May 1, 1989. Meanwhile, on April 17, 1989, appellant filed a motion to dismiss the charges on the basis of Rule 1100. On May 24, 1989, the lower court denied appellant’s motion to suppress. On October 3, 1989, appellant’s motion to dismiss was denied. Appellant then filed this timely appeal from the October 3, 1989 order. On appeal, appellant contends that the lower court erred in denying his motion to dismiss because the Commonwealth violated his right to a speedy trial pursuant to Rule 1100. We will first address the appealability of the October 3, 1989 order.

The jurisdiction of this court is limited to appeals from final orders of the court of common pleas. 42 Pa.C. S.A. § 742. An order is not a “final order” unless it serves to put the litigant out of court either by ending the litigation or disposing of the case entirely. Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). Generally, a criminal defendant may appeal only from the judgment of sentence. Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977); Commonwealth v. Reagan, 330 Pa.Super. 417, 479 A.2d 621 (1984). “This rule prevents undue delay and avoids the disruption of criminal cases by piecemeal appellate review.” Commonwealth v. Bolden, supra, 472 Pa. at 610, 373 A.2d at 93. An appeal before final judgment will be permitted, however, in exceptional circumstances. Id., 472 Pa. at 611, 373 A.2d at 93-94. Exceptional circumstances exist “(1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.” Id., 472 Pa. at 611, 373 A.2d at 94, quoting Commonwealth v. Swanson, 424 Pa. 192, 194, 225 A.2d 231, 232 (1967).

The order appealed from in the instant case does not end the litigation or dispose of the case entirely. Nor has a judgment of sentence been entered in this criminal case. Therefore, the appeal is from an interlocutory order. In Commonwealth v. Bunter, 445 Pa. 413, 282 A.2d 705 (1971), the court found that a defendant’s claim of delay in affording him his right to a speedy tria.1 involved an issue of basic human rights, and thus, defendant could appeal from the lower court’s refusal to quash a murder indictment against him. The Bunter court remanded the case for a hearing on the speedy trial issue as no hearing had been held in the lower court. Id., 445 Pa. at 424, 282 A.2d at 710.

In Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974), the court held that where a hearing had been held on the speedy trial issue, a denial of a motion to quash an indictment was a nonappealable interlocutory order. The Myers court distinguished Bunter, supra, and reasoned that where there had been a hearing in the court below on the speedy trial issue, the appellant’s right to a speedy trial could be adequately protected in a review following trial. Id., 457 Pa. at 319-20, 322 A.2d at 133. In addition, where the right involved is the right to a speedy trial, and the accused has been released on bail, there is “little significant prejudice” to the appellant in quashing his appeal. Id

In the instant case, the record reflects that the lower court did not conduct a hearing on the Rule 1100 issue which appellant raised in his motion to dismiss. Without such a hearing, appellant’s right to a speedy trial will not be adequately protected in a post-trial review on appeal. Commonwealth v. Myers, supra. In addition, a motion to dismiss shall be denied if the court, “upon hearing,” determines that the Commonwealth exercised due diligence and that the circumstances underlying the postponement of trial were beyond the control of the Commonwealth. Pa.R. Crim.P., Rule 1100, 42 Pa.C.S.A.

Since no hearing has been held on the Rule 1100 issue, we will not quash the appeal, but will vacate the order of the lower court denying appellant’s motion to dismiss and remand the case to the lower court for a hearing on the speedy trial issue raised by appellant’s motion. After a hearing, if the lower court again denies appellant’s motion to dismiss, the case should proceed to trial on the authority of Commonwealth v. Myers, supra, as an appeal from such order would be interlocutory and nonappealable, and appellant has been released on bail from confinement.

Order of October 3, 1989 vacated. Case remanded to lower court for further proceedings in accordance with this opinion. Jurisdiction relinquished.

      . Section 3742 provides:

        (a) General rule. — The driver of any vehicle involved in an accident resulting in injury or death of any person shall immediately stop the vehicle at the scene of the accident or as close thereto as possible but shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 3744 (relating to duty to give information and render aid). Every stop shall be made without obstructing traffic more than is necessary.
      75 Pa.C.S.A. § 3742(a).

      . The docket entries and the record contain no reference to this hearing. However, the briefs of both parties indicate that a suppression hearing took place on this date.

      . Cf. Commonwealth v. Mancuso, 247 Pa.Super. 266, 372 A.2d 454 (1977) (trial court’s refusal to quash charges on Rule 1100 grounds was appealable order where lower court certified that the appeal involved a controlling issue of law). The lower court in the instant case did not provide such a certification.


author: MONTGOMERY, Judge.

text:
    579 A.2d 981
    Carol NAPIER, Appellant, v. Dennis HUTCHINSON, Appellee.
    Superior Court of Pennsylvania.
    Argued June 7, 1990.
    Filed Sept. 13, 1990.

      Nancy J. Norkus, Pittsburgh, for appellant.
    Carol A. Behers, Pittsburgh, for appellee.
    Before KELLY, HUDOCK and MONTGOMERY, JJ.
   MONTGOMERY, Judge.

Carol Napier (“Mother”) and Dennis Hutchinson (“Father”) are the divorced parents of two children, Andrew, born December 1, 1975, and Steven, born January 28, 1971. At the time of the divorce, the parties entered into a property settlement agreement which also contained certain provisions for child support and educational support for the children. Subsequently, Father filed a petition to modify support, alleging that Steven had attained the age of eighteen. Mother then filed a petition for modification asserting that Steven was enrolled at Virginia Tech University and would require educational support. The order ultimately entered provided support of $480.00 per month for Andrew and educational support of $250.00 per month for Steven. Mother then filed this appeal. We affirm.

Mother contends that the trial court erred in limiting Steven’s educational support to the provisions of the property settlement agreement and further that the court erred in determining Steven’s needs and expenses and the parties’ respective earning capacities. As in all support cases, we are limited on review to determining whether the trial court abused its discretion. Commonwealth ex rel. Hartranft v. Hartranft, 267 Pa.Super. 572, 407 A.2d 389 (1979). Our review of the record leads us to conclude that the trial court did not abuse its discretion.

Mother first contends that the trial court erred in limiting Steven’s educational support to the terms of the property settlement agreement. This agreement limited Father’s contribution to the cost of in-state tuition, fees and books. Since Steven decided to attend college in Virginia, he must pay out-of-state tuition which is, of course, considerably higher than in-state tuition. Mother argues that the separation agreement cannot preclude the court from increasing Father’s support obligation because parents cannot bargain away the support rights of their children. This statement of law would be correct if the court were dealing with support for a minor child. See, e.g., Millstein v. Millstein, 311 Pa.Super. 495, 457 A.2d 1291 (1983); Mallinger v. Mallinger, 197 Pa.Super. 34, 175 A.2d 890 (1962). When dealing with educational support for a child who is in college, however, different standards apply.

The duty to contribute to a child’s college education was not established until 1963 in the case of Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 190 A.2d 182 (1963). Prior to that time, a parent was only liable for support for a child attending college if the parent had expressly agreed to assist in providing a college education. Commonwealth v. Martin, 196 Pa.Super. 355, 175 A.2d 138 (1961). Unlike the absolute duty to support a minor child, the duty to provide support for a child in college is a limited duty, Sutliff v. Sutliff, 515 Pa. 393, 528 A.2d 1318 (1987), which is recognized only in a minority of states. Griffin v. Griffin, 384 Pa.Super. 188, 558 A.2d 75 (1989). The duty only arises if the child is able and willing to pursue successfully his or her course of study and the parent has sufficient estate, income or earning capacity to enable him or her to contribute to support without undue hardship. Commonwealth ex rel. Ulmer v. Sommerville, supra. Numerous other limitations apply to educational support which are not relevant in proceedings for the support of a minor child, Sutliff v. Sutliff, supra, (child’s assets and earning power are relevant considerations); Brown v. Brown, 327 Pa.Super. 51, 474 A.2d 1168 (1984) (duty does not extend to post-graduate studies); DeWalt v. DeWalt, 365 Pa.Super. 280, 529 A.2d 508 (1987) (duty ordinarily does not extend past age of twenty-three). Furthermore, a child may forfeit any right to educational support which he or she may have by actions which estrange the child from the parent. Milne v. Milne, 383 Pa.Super. 177, 556 A.2d 854 (1989). Because these two types of support proceedings are so different, it is inappropriate to apply the principles developed in regard to support of a minor child to a proceeding for educational support of a child who is eighteen and has graduated from high school.

We therefore review the order under the standards established for educational support. Initially, we note that the trial court did not limit Father’s obligation only to those items listed in the separation agreement but included as well the room and board costs and the expense of purchasing a personal computer, which Steven is required to have. Clearly, the court did not limit Father’s liability only to those items contained in the property settlement agreement. Additionally, the parties established trust funds, currently totalling over $14,000.00, to assist in providing for Steven’s education. Considering the amount available from these trusts, Father’s income, Father’s support liability to Andrew, Mother’s earning capacity and Steven’s earning capacity, we cannot say that it was an 'abuse of discretion to assess Father’s contribution at $250.00 per month or $3,000.00 per year.

Mother also contends that the trial court erred in determining Steven’s reasonable needs and expenses. In addition to the differential in tuition, Mother contends that Steven needs an additional $6,582.75 for “incidental expenses.” These expenses apparently include a portion of Mother’s household expenses during Steven’s vacation periods. Again, we cannot conclude that the trial court erred in concluding that Steven and Mother can adequately provide these “incidentals.” We note, as did the trial court, that Steven did not work during the summer before college but instead traveled to Colorado and North Carolina. We echo the trial court’s sentiment that if Steven actually needs “incidentals” costing over $6,000.00 per year, he should provide them from his own earnings. See DeWalt v. DeWalt, supra (parent not required to provide sufficient funds to allow college-age child to remain idle during summer months.)

Finally, Mother contends that Father’s net income was incorrectly calculated in two respects. Mother contends that Father’s net income would be considerably higher if Father filed his income tax jointly with his wife and also that Father had received bonuses in the past which should be added into his income. We do not agree. There is no evidence of record that Father had received or expected to receive any bonuses for 1989. In fact, the only evidence regarding bonuses was that the company’s profits were down and bonuses were speculative. Similarly, there is no evidence that Father’s net income would be higher if he changed his tax status. We cannot find error based on Mother’s assumption that such is the case.

Order affirmed.

      . Thus, Father’s total support payment is $730 per month out of his net monthly income of $3,100.00 or nearly 25%.


text:
    579 A.2d 1309
    COMMONWEALTH of Pennsylvania, Appellee, v. Nikolai ZDRALE, Appellant.
    Superior Court of Pennsylvania.
    Argued May 23, 1990.
    Filed Aug. 13, 1990.
    Reargument Denied Sept. 27, 1990.

      S. Michael Streib, Pittsburgh, for appellant.
    Lawrence N. Claus, Deputy Atty. Gen., Pittsburgh, for Com., appellee.
    Before TAMILIA, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant, Nikolai Zdrale, was convicted by a jury of criminal solicitation and conspiracy. Post-trial motions were denied and appellant was sentenced to five (5) to ten (10) years imprisonment. This direct appeal followed. We affirm.

On appeal, appellant claims that the trial court erred by admitting into evidence hearsay statements of an alleged co-conspirator, by consolidating the trial and by admitting statements made by the co-defendant.

The charges arose from a conspiracy which included multiple actors. The central figure in the conspiracy was William Fiore. Mr. Fiore was a landfill operator and had experienced numerous regulatory problems with the Pennsylvania Department of Environmental Resources (D.E.R.). Due to the D.E.R.’s enforcement over Mr. Fiore’s landfill operations, he was losing approximately $300,000.00 a month, and his operations were shut down. In May of 1984, Mr. Fiore told Vito Vincent Lucí, a D.E.R. employee, that he had paid someone to kill two D.E.R. officials. The two officials were Charles A. Duritsa and Howard Wein.

In 1985, Mr. Fiore enlisted appellant in his plot. Appellant was also a landfill operator and a businessman in Greensburg. It was arranged that Mr. Fiore would pay Leroy Bradford Smith to kill Mr. Duritsa. The money would be given to appellant, who in turn would pay Mr. Smith. Another actor, James Marvin Thomas, was also brought into the plot. Mr. Thomas was one of appellant’s employees and his primary responsibility was to drive.

In August of 1985, Mr. Thomas drove appellant and Mr. Smith from Greensburg to the East Liberty section of Pittsburgh. The three waited in East Liberty for approximately 40 to 45 minutes, across the street from the Highland Building. The D.E.R. was located in the Highland Building. A man walked out of the building and appellant pointed him out to Mr. Smith. Mr. Smith proceeded to follow the man for awhile and then returned to the others and they went back to Greensburg.

In September of 1985, Mr. Smith asked Mr. Thomas to drive him to Bedford, Pennsylvania, to pick up a truck. The two went to Bedford in appellant’s automobile. Mr. Smith drove the truck back to Greensburg and parked at an Elby’s Restaurant. Mr. Thomas followed in appellant’s car. The following day, Mr. Smith asked Mr. Thomas to follow him to Pittsburgh to drop off the truck, which was still parked at the Elby’s restaurant. This conversation transpired in appellant’s hearing aid store. They first drove to Honda Village, purchased two pairs of gloves and then picked up the truck at the Elby’s restaurant. Mr. Thomas followed Mr. Smith to the East Liberty section of Pittsburgh. Appellant’s car was used at all times.

Mr. Thomas was instructed to park the car and get in the truck. Mr. Smith then drove the truck around a certain route for a while. They returned to the car and Mr. Thomas was instructed to get in the driver’s seat of the truck. Mr. Smith went to the trunk of the car, pulled out a seabag and returned to the truck. Mr. Smith sat in the passenger seat and pulled a shotgun from the seabag and laid it across his lap. Mr. Smith instructed Mr. Thomas to drive the truck around the same route they had driven before. After driving around for a while Mr. Smith told Mr. Thomas to pull the truck into an alley. Mr. Smith wiped down the inside of the truck with alcohol, which was also in the seabag, and the two went back to the car and drove to Greensburg.

During the drive back to Greensburg, Mr. Smith told Mr. Thomas about the contract on Mr. Duritsa’s life and how he had planned to execute the contract. Mr. Smith also told Mr. Thomas that he was initially going to be paid $5,000.00 for the contract. Mr. Smith returned to East Liberty on another occasion with the purpose of killing Mr. Duritsa, but suspected a set up and aborted the attempt.

Appellant first contends that the trial court erred in permitting the admission of out-of-court statements made by Mr. Smith during the drive from Pittsburgh to Greens-burg, in September of 1985. Appellant claims that the testimony was inadmissible hearsay and did not fall under the co-conspirator exception to the hearsay rule. The Commonwealth did not call Mr. Smith as a witness but presented Mr. Thomas. Mr. Thomas reiterated the conversation he had with Mr. Smith while traveling from Pittsburgh to Greensburg, after the aborted attempt on Mr. Duritsa’s life. The testimony is as follows:

Q. And, did Mr. Smith talk about that gun?
A. Yes.
Q. What did he say to you?
A. He says that if the shotgun wouldn’t do it that he was going to put on a jogging outfit and jog right past the guy and shoot him in the head?
Q. Who was the guy he was talking about?
A. State official.
Q. Is that what he told you?
A. Yeah.
Q. When did he tell you that?
A. On the way back to Greensburg.
Q. Did Mr. Smith tell you anything else on the way back to Greensburg?
A. Yes, he told me about who paid him. He told me that Bill Fiore paid him $5,000.00 and he gave it to Nick Zdrale to give to Brad, and Brad felt that there was more money involved that Nick Zdrale took some of it.
Q. Did he tell you what this money was being paid for? A. To kill this attorney.
Q. He tell you why Mr. Fiore wanted this person killed? A. Yeah, he told me that this attorney testified against Bill Fiore.
Q. What was the amount if you recall that he said was paid?
A. $5,000.00
(Tr. 144, 145.)

Appellant is correct in that the testimony was hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Commonwealth v. Thomas, 372 Pa.Super. 349, 539 A.2d 829 (1988). However, the testimony clearly falls within the co-conspirator exception to the hearsay rule. The co-conspirator exception allows the introduction of statements made by a co-conspirator, if they were made during the conspiracy, in furtherance thereof, and where there is other evidence of the existence of a conspiracy. Commonwealth v. Dreibelbis, 493 Pa. 466, 426 A.2d 1111 (1981).

Appellant claims that since the attempt on Mr. Duritsa’s life failed the conspiracy ended and thus, the statements did not satisfy the in furtherance requirement of the exception. Appellant further claims that the statements were merely idle conversation. The fact that the attempt failed does not by itself constitute abandonment of the conspiracy. The general rule is that a conspiracy ends when its principal objective is accomplished. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980); Commonwealth v. Watson, 355 Pa.Super. 160, 512 A.2d 1261 (1986). Even if the central objective has been nominally attained, the conspiracy does not automatically end. Evans, supra.

The evidence established that the principal objective of the conspiracy was to kill Mr. Duritsa. This objective was not accomplished at the time of the conversation since the attempt was aborted. Mr. Smith returned to East Liberty, on another occasion, to make a further attempt on Mr. Duritsa’s life and there is no indication that any of the co-conspirators withdrew from the conspiracy. In order for appellant to show effective detachment from the conspiracy it is necessary that the co-conspirators were given a reasonable opportunity to refrain from further action. Commonwealth v. Young, 233 Pa.Super. 429, 335 A.2d 498 (1975). The other conspirators were not given an opportunity to refrain from further action because when the conversation transpired neither appellant nor Mr. Fiore was aware of the failed attempt.

Furthermore, the conversation between Mr. Smith and Mr. Thomas was not merely idle conversation. When the content of the conversation is examined, it is apparent that Mr. Smith was informing Mr. Thomas of aspects of the conspiracy and further steps to be taken. Therefore, the conversation was more than idle conversation and satisfied the in furtherance requirement of the co-conspirator exception to the hearsay rule. U.S. v. Gibbs, 739 F.2d 838 (3rd Cir.1984).

Appellant also claims that the statements were inadmissible under 42 Pa.C.S. § 5912. Mr. Smith was a convicted perjurer and under 42 Pa.C.S. § 5912 was not considered a competent witness. The statute at issue provides:

§ 5912. Disqualification by perjury
In a criminal proceeding, a person who has been convicted in a court of this Commonwealth of perjury, which term is hereby declared to include subornation of or solicitation to commit perjury, shall not be a competent witness for any purpose, although his sentence may have been fully complied with, unless the judgment óf conviction be judicially set aside or reversed, or unless the proceeding is one to punish or prevent injury or violence attempted, done, or threatened to his person or property; in which cases he shall be competent to testify.
42 Pa.C.S. § 5912.

Although there is little legal precedent on this issue, this court has held that the statute is to be strictly construed. Commonwealth v. Meholic, 341 Pa.Super. 342, 491 A.2d 848 (1985). (a witness who had been charged with perjury but not yet tried or convicted was competent to testify).

The rules of statutory construction mandate that the language of a statute must be construed according to its plain meaning and, if possible, interpreted in a manner which gives effect to each and every provision of the act. 1 Pa.C.S. § 1903; Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982).

According to the plain meaning of 42 Pa.C.S. § 5912, a person convicted of perjury cannot be called as a competent witness to testify. The term “testify” is defined as,

“To bear witness; to give evidence as a witness; to make a solemn declaration under oath or affirmation, in a judicial inquiry, for the purpose of establishing or proving some fact.”
Black’s Law Dictionary 5th ed. at 1323 (1979).

The statute does not prohibit the introduction of out-of-court statements made by a convicted perjurer. In the instant case, Mr. Smith’s statements were not the equivalent of testimony because he did not testify.

In support of this proposition we adopt the reasoning announced in Commonwealth v. Blough, 369 Pa.Super. 230, 535 A.2d 134 (1987). In the Blough case, a wife’s extra-judicial statements were not considered testimony. During trial the statements were recounted by a third party under oath pursuant to a hearsay exception, and thus did not violate spousal immunity. This reasoning is also in accord with the case of Commonwealth v. Garrison, 398 Pa. 47, 157 A.2d 75 (1959). In the Garrison case, a wife, who was a co-conspirator, did not testify at her husband’s trial but evidence of a conversation between the wife and another co-conspirator was admitted. The testimony was admitted under the co-conspirator exception to the hearsay rule and found not to violate spousal immunity.

The Honorable Bernard F. Scherer aptly observed in his opinion, and we agree,

“Section 5912 must be interpreted as a rule protecting the integrity of the trial process insofar as it relates to the importance of the oath administered to witnesses who appear in person for the jury’s consideration.”
(Trial Court opinion p. 11).

The introduction of Mr. Smith’s statements did not compromise the importance of the oath and did not violate 42 Pa.C.S. § 5912.

Appellant further claims that because Mr. Smith was a convicted perjurer his statements lacked an independent indicia of reliability. The fact that the statement falls under the co-conspirator exception to the hearsay rule infers sufficient reliability. Watson, supra.

Appellant next contends that the trial court abused its discretion by consolidating appellant’s trial with that of William Fiore. The decision whether to consolidate is within the sound discretion of the trial judge and will not be reversed absent a manifest abuse of discretion, or a showing of prejudice and clear injustice. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988); Commonwealth v. Thomas, 361 Pa.Super. 1, 521 A.2d 442 (1987). When conspiracy is charged, conspirators should be tried together unless it can be shown that one or more will suffer actual prejudice. Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984).

In the instant case, both defendants were charged with conspiracy. The charges arose from the same acts and much of the same evidence was necessary and applicable to both defendants. The Commonwealth presented seventeen witnesses and the trial lasted for seven days. It was not an abuse of discretion to consolidate because separate trials would have required the time consuming duplication of all of this evidence. Therefore, joinder was in the interest of judicial economy and avoided unnecessary repetition of evidence. Commonwealth v. Patterson, 519 Pa. 190, 546 A.2d 596 (1988); Commonwealth v. Granberry, 346 Pa.Super. 395, 499 A.2d 671 (1985).

Appellant claims that he was prejudiced by consolidation because various statements made by Mr. Fiore, which did not implicate appellant, were admitted into evidence. Appellant also claims that a cautionary instruction should have been given. Appellant first cites to statements made to Vito Vincent Luci. The testimony revealed that Mr. Fiore told Mr. Luci that he was going to have Mr. Duritsa and Mr. Wein killed. The conversations between Mr. Fiore and Mr. Luci were tape recorded. These conversations were redacted before being played for the jury.

Appellant next cites to statements made by Mr. Fiore to Stanley P. Spolnick. Mr. Fiore and Mr. Spolnick were both incarcerated in the Westmoreland County Detention Center. The testimony of Mr. Spolnick was as follows:

Q. Did Mr. Fiore mention the name of Charles Duritsa?
A. Yes, he did.
Q. What did Mr. Fiore say in that regard?
A. He says, um, he was having trouble with the D.E.R. Official, he named him. His name was Duriska (sic.), and, um, it was over permits for dumps, at his dumping sites that something happened where he lost 5,000,000 bucks because he wouldn’t get these permits no more. He was a little upset. So, then he says, um, he hired Thomas and another individual I don’t know remember who he said he was, but he said I hired him to kill Duriska (sic.).
(Tr. 690, 691).

We are unable to see how this evidence prejudiced appellant. The statements never mentioned appellant. Apparently, appellant’s trial counsel did not view this evidence as prejudicial because appellant was not implicated. Initially, appellant’s trial counsel objected to the tape-recorded conversations between Mr. Fiore and Mr. Luci, but after hearing the evidence did not request a cautionary instruction. Appellant’s trial counsel repeatedly emphasized that appellant’s name was never mentioned. Furthermore, a co-defendant’s statement, which is redacted to eliminate references to the other co-defendant, is admissible and not prejudicial if it does not identify the co-defendant as a participant in the crime. Commonwealth v. Marsh, 388 Pa.Super. 610, 566 A.2d 296 (1989). Appellant has merely speculated that prejudice occurred, and we will not find an abuse of discretion without a showing of actual prejudice. Patterson, supra.

In the alternative, appellant contends that the trial court erred by admitting these statements into evidence on several theories. Appellant first claims that the statements made to Mr. Luci were inadmissible because they occurred prior to the commencement of the conspiracy. Rulings on evidentiary matters are within the sound discretion of the trial court and will not be reversed absent a flagrant abuse of discretion. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The remoteness in time of evidence showing instances of hostility and strained relations goes to the weight of the evidence and not its admissibility. Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974). In the instant case the statements were highly relevant to prove motive and intent. Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236 (1982); Commonwealth v. Kaster, 300 Pa.Super. 174, 446 A.2d 286 (1982). Moreover, evidence of a defendant’s actions before and after the commission of a crime may be admissible to show motive and malice. Kaster, supra.

Appellant also claims that both the testimony of Mr. Luci and Mr. Spolnick violated the case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Appellant’s reliance on Bruton is misplaced. The Bruton rule is only applicable when a confession is inculpatory. In the instant case, the statements did not expressly implicate appellant as an accomplice. Appellant’s name was not even mentioned in these statements. The Bruton case is inapposite and it was not an error to admit these statements. Commonwealth v. Hassine, 340 Pa.Super. 318, 490 A.2d 438 (1985).

Judgment of sentence affirmed.


author: ROWLEY, Judge: BROSKY, Judge,

text:
    579 A.2d 1315
    COMMONWEALTH of Pennsylvania, Appellant, v. Lawrence Todd LABELLE.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Aug. 28, 1990.

      Francis P. Sempa, Asst. Dist. Atty., Wilkes-Barre, for Com., appellant.
    Arlin M. Adams, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI , TAMILIA, POPOVICH, JOHNSON and MELINSON *, JJ.

       OLSZEWSKI and MELINSON, JJ., did not participate in this decision.

   OPINION ANNOUNCING THE JUDGMENT OF THE COURT

ROWLEY, Judge:

Does a driver’s guilty plea to summary offenses of driving a vehicle at an unsafe speed, 75 Pa.C.S. § 3361, and reckless driving, 75 Pa.C.S. § 3714, preclude the Commonwealth from maintaining a subsequent action, arising from the same incident, against the driver for driving while under the influence of alcohol, 75 Pa.C.S. § 3731(a)? This is the principal issue presented in this appeal by the Commonwealth from the trial court’s order quashing, on double jeopardy grounds, an information charging appellee with driving under the influence (“DUI”). After careful consid- . eration, we vacate the trial court’s order and remand for further proceedings.

The relevant facts disclosed at the appellee’s preliminary hearing on the DUI charge are as follows: Appellee, Lawrence Todd Labelle, was driving a sports car when he was involved in a one-car accident on the morning of June 2, 1985, in Lackawanna County. His passenger, Mary Ellen Conaboy, suffered serious injuries and was rendered a quadriplegic. Just prior to the accident appellee stopped to purchase gasoline at a truck stop complex. After getting the gas, he drove through the parking lot in a reckless and erratic fashion before stopping in front of the restaurant in the complex. Appellee and his passenger went into the restaurant and came out with two cans of soda. The attendant at the service station portion of the truck stop saw appellee pour the contents of the cans of soda into a liquor bottle and drive away, squealing his tires. Preliminary Hearing Transcript at 26-28. The accident occurred moments later. Appellee was found to have had a blood alcohol level of .24.

The chronological sequence of events following the accident is established by the record. On June 10, 1985, eight days after the accident, Officer Lee Walters signed a complaint charging appellee with driving under the influence of alcohol. One week later, on June 17, 1985, Walters also charged appellee with the summary offenses of driving his vehicle at an unsafe speed and reckless driving. Appellee appeared before District Justice Donald Yurgosky on August 23, 1985 and pled guilty to the two summary offenses. He paid the fines and costs at that time.

Two days later, at his August 25th preliminary hearing, the DUI charge was dismissed by the District Justice pursuant to Pa.R.Crim.P. 130(d), as then interpreted by this Court in its April 26, 1985 decision in Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985). The Court held in Revtai that Rule 130, which provides for the filing of a complaint against a defendant within five days of his release after his arrest without a warrant for driving under the influence, was mandatory in nature. Our Court further held that dismissal of the charges was the appropriate remedy for a violation of the five-day deadline.

The decision in Revtai, however, was reversed by this Court in Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987), on March 18, 1987, before the two-year statute of limitations ran on the DUI charge against appellee. The District Attorney promptly re-filed the DUI charge against appellee on the basis of Schimelfenig, and a preliminary hearing was held on April 7, 1987. District Justice Grunik found a prima facie case had been established and bound appellee over for trial.

On May 11, 1987, appellee moved to dismiss the DUI complaint on double jeopardy grounds. The Court of Common Pleas of Lackawanna County granted the motion to dismiss. The Commonwealth now appeals from that order. The sole issue presented by the Commonwealth is whether the trial court erred in granting appellee’s motion to quash the information and dismiss the DUI charge on double jeopardy grounds.

The Commonwealth contends that this case is governed by Commonwealth v. Beatty, 500 Pa. 284, 455 A.2d 1194 (1983), based upon dicta which appears in the text: “[T]he disposition of a summary offense in a traffic matter prior to the trial of a misdemeanor or felony does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.” Id., 508 Pa. at 291, 455 A.2d at 1198. The Commonwealth’s brief, in essence, sets forth a two-fold argument: First, under Beatty, the double jeopardy clause is inapplicable to the factual situation before us. Second, even if the double jeopardy clause were applied in the present case, it would not bar prosecution of the DUI charge.

We do not agree with the Commonwealth’s first contention, that under Beatty, appellee’s conviction of the two summary offenses does not give rise to any constitutional double jeopardy concerns. As to the Commonwealth’s second contention, we hold, for the reasons set forth in section II of this opinion, that the double jeopardy clause may bar prosecution of the DUI charge depending upon what conduct on the part of appellee formed the basis of his summary convictions. Finally, we disagree with appellee’s contention that the Commonwealth is “foreclosed” from pursuing prosecution because it failed to take an appeal from the dismissal of the DUI charge from the District Magistrate.

I.

A.

An analysis of the applicability of Beatty must begin with the recognition that two distinct provisions may bar subsequent criminal actions arising from the same set of circumstances in this Commonwealth, one statutory and the other, constitutional. The statutory provision, section 110 of the Crimes Code, essentially provides that a subsequent prosecution is barred by a former prosecution if the offense was based on conduct arising from the same criminal episode and “if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense.” 18 Pa.C.S. § 110(l)(ii).

In Beatty, our Supreme Court construed section 110. Two drivers were involved in a collision and pulled their vehicles over to the side of the road. An altercation ensued during which Mr. Beatty broke the other driver’s jaw, and then left the scene without identifying himself. After an investigation, Beatty was charged with, and pled guilty to, the summary offense of failing to identify himself at the scene of an accident, 75 Pa.C.S. § 3743. He was also charged with aggravated assault, waived a preliminary hearing, and was bound over for trial. His motion to dismiss the aggravated assault charge was granted by the trial court.

In reviewing the trial court’s decision, our Supreme Court applied § 110 of the Crimes Code and the compulsory joinder rule of Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (“Campana II”). The result was the clear and unambiguous holding that “neither section 110(l)(ii) nor [the] compulsory joinder rule [as set forth in Campana ] requires the barring of the prosecution of the aggravated assault charge.” Commonwealth v. Beatty, supra, 500 Pa. at 291, 455 A.2d at 1198.

In the case at bar, appellee concedes that section 110 does not, by itself, preclude the subsequent prosecution. Therefore, the only other possible bar to the subsequent prosecution is constitutional.

The constitutional provision which may preclude a subsequent criminal action, the double jeopardy clause of the Fifth Amendment, is the provision which appellee relies upon in the present case to bar his prosecution for DUI. That provision states that “[n]o person shall be ... subject for the same offence to be twice put in jeopardy of life and limb____” United States Const. Amend. V.

It is well-settled that section 110 claims and Fifth Amendment double jeopardy claims are separate and distinct. Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). In Johnson, our Court recognized that section 110 and the double jeopardy clause may at times “overlap in their applications, [but] this is not true in all situations.” Id., 319 Pa.Superior Ct. at 470, 466 A.2d at 640. Section 110 and the double jeopardy clause obviously do not overlap in the case at bar due to appellee’s concession. Therefore, it is unnecessary and indeed inappropriate to consider those cases utilizing a section 110 analysis: Commonwealth v. Taylor, 513 Pa. 547, 522 A.2d 37 (1987); Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984); Commonwealth v. Breitegan, 500 Pa. 384, 456 A.2d 1340 (1983); Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984); Commonwealth v. Kresge, 317 Pa.Super. 405, 464 A.2d 384 (1983); Commonwealth v. Dickerson, 303 Pa.Super. 46, 449 A.2d 570 (1982) (plurality).

It is significant that nowhere in the Beatty decision, relied upon by the Commonwealth, is the Fifth Amendment to the United States Constitution, the clause upon which appellee- relies, mentioned. Beatty was decided under 18 Pa.C.S. § 110 and Commonwealth v. Campana, supra. Thus, any reliance by the Commonwealth on the proposition that Beatty controls is misplaced. See dissenting opinion by Brosky, J. in Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989) (where appellant challenged the contemplated prosecution only on Fifth Amendment grounds and not upon section 110 or Campana compulsory joinder grounds, resolution of the case “must” rest squarely upon a determination of double jeopardy law).

B.

In determining that Beatty does not control, our decision today effectively overrules the decision of a panel of this Court in Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989). There, the Court held “[i]n this Commonwealth, the constitutional protections of the double jeopardy clause are not implicated where a felony or misdemeanor prosecution is preceded by a conviction before a district justice, whether by summary trial or guilty plea, for a summary offense.” Id., 381 Pa.Superior Ct. at 575, 554 A.2d at 534. This decision was clearly erroneous because it was based upon the aforementioned dicta, and not upon the rule of law as set forth by the Supreme Court in Beatty and Taylor, supra

Evers, like the case at bar, involved only the constitutional double jeopardy issue and did not involve section 110. The majority recognized as much when it noted “that the holding of the supreme court in Taylor rests upon an interpretation of 18 Pa.C.S. § 110(l)(ii),” yet still proceeded to cite Taylor as controlling authority. The majority proceeded in such fashion because it was

unwilling to believe ... that the other statements made by our supreme court in the context of the Taylor decision, which do not specifically involve Section 110(l)(ii), are mere surplusage. Our supreme court in Taylor, and earlier in Beatty, expressly considered and addressed constitutional double jeopardy protections.

Id., 381 Pa.Superior Ct. at 573, 554 A.2d at 533. This was an impermissible use of dictum, given the context of the case.

Our Supreme Court has noted that language which “goes beyond” the issue decided must be considered dictum. Stellwagon v. Pyle, 390 Pa. 17, 26, 133 A.2d 819, 823 (1957). Further, the Court has stated that “[g]eneral expressions in an opinion must be considered in the light of and cannot be dissevered from the facts of that case; what is actually decided and controlling is the law applicable to the particular facts of that particular case.” In Re Trust Estate of Pew, 411 Pa. 96, 105, 191 A.2d 399, 404 (1963) [overruled on other grounds in Estate of Tyler, 474 Pa. 148, 377 A.2d 157 (1977)]. Our Court erred in disregarding the Supreme Court's thorough analysis based upon § 110 and Campana principles, and instead relying upon a single reference to the words “double jeopardy,” without any mention of the Constitution, as controlling.

Our colleague Judge Brosky noted in his dissent to Evers that § 110 and the compulsory joinder rule of Campana “offer greater protection to [an] accused than does the double jeopardy clause.” Commonwealth v. Evers, 381 Pa.Super. at 579, 554 A.2d at 536 (Brosky, J. dissenting). It is evident that by enacting § 110, the legislature meant in no uncertain terms to protect Pennsylvania citizens from the type of harassment anticipated by drafters of the Fifth Amendment. But for the same reasons as noted previously in this opinion, reliance on Beatty and Taylor is unwarranted in the case at bar because appellee has raised only a constitutional argument, and not one invoking the statutes and case law of Pennsylvania. In Taylor, as well as Beatty, the sole reference to double jeopardy was in the statement, “[o]ur interpretation of section 110(l)(ii), which allows a summary offense to be disposed of prior to the prosecution for the misdemeanor, ‘does not present the type of governmental harassment of a defendant that would offend double jeopardy concerns.’ ” Taylor, 513 Pa. at 553, 522 A.2d at 40, quoting Beatty.

Any remaining uncertainty as to whether a prior summary conviction can raise double jeopardy concerns is resolved by the recent opinion of the U.S. Supreme Court in Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In that opinion, which will be discussed at greater length in section II of this opinion, the Court considered whether the State’s intended prosecution of respondent on homicide and assault charges deriving from a motor vehicle accident was barred on double jeopardy grounds by respondent’s prior convictions, resulting from the same accident, of driving while intoxicated, a misdemeanor, and failing to keep right of the median, a violation comparable to a summary offense under Pennsylvania law. The Court held that the subsequent prosecution was in fact barred, as the State had filed a bill of particulars indicating that it intended to establish essential elements of the more serious offenses by proof of the conduct for which respondent had already been convicted. Thus, the double jeopardy clause of the Fifth Amendment may indeed serve to bar prosecution of a more serious offense once a defendant has been convicted on a summary charge, if the requirements set forth in case law are met.

II.

A.

Having determined that Beatty does not control, and that Evers was wrongly decided, we turn our attention to the impact of the double jeopardy clause on appellee’s situation of having pled guilty to the offenses of reckless driving, 75 Pa.C.S. § 3714, and driving a vehicle at an unsafe speed, 75 Pa.C.S. § 3361. The constitutional prohibition of double jeopardy consists of three separate guarantees: (1) It protects against a second prosecution for the same offense after acquittal. (2) It protects against a second prosecution for the same offense after conviction. (3) It protects against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). In the case at bar we are concerned with the second guarantee.

Our analysis of appellee’s double jeopardy claim begins, but does not end, with the test established by the U.S. Supreme Court in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.”

Id. at 304, 52 S.Ct. at 182, 76 L.Ed.2d at 309, quoted in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2225, 53 L.Ed.2d 187 (1977). The focus of the Blockburger test is on the statutory elements of the offenses at issue. Ianelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616, 627 n. 17 (1975). “If each [offense as statutorily defined] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Id.

In Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980), the U.S. Supreme Court suggested that a prosecution that passes the Blockburger test may nevertheless face an additional hurdle. As a result of an automobile accident that resulted in the death of two children, Vitale was charged with failing to reduce his speed and involuntary manslaughter. He was found guilty of the former offense based on evidence that he had recklessly failed to slow his vehicle to avoid a collision with the victims. When the State subsequently sought to prosecute the defendant on the involuntary manslaughter charge, the Illinois Supreme Court held that the double jeopardy clause barred the manslaughter prosecution because the lesser offense of failing to reduce speed required no proof beyond that necessary for conviction of the greater offense of manslaughter.

In its opinion the U.S. Supreme Court observed that if a careless failure to slow is always a necessary element of manslaughter by .vehicle under Illinois law, then the two crimes would be the same under the Blockburger test; if, on the other hand, the manslaughter offense did not always require proof of a failure to slow, the two offenses would not be the same under Blockburger. Id. at 419-20, 100 S.Ct. at 2266-67. Instead of ending its analysis with this assertion, however, the Court went on to suggest the following:

In any event, it may be that to sustain its manslaughter case the State may find it necessary to prove a failure to slow or to rely on conduct necessarily involving such failure; it may concede as much prior to trial. In that case, because Vitale has already been convicted for conduct that is a necessary element of the more serious crime for which he has been charged, his claim of double jeopardy would be substantial under Brown [v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)] and our later decision in Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977).

Id. at 420, 100 S.Ct. at 2267 (emphasis added). Because the Court was uncertain of the relationship of the two offenses under Illinois law and did not know the reckless act or acts upon which the State would rely to prove manslaughter, it vacated the judgment of sentence and remanded the case to the Illinois Supreme Court for further proceedings. Id. at 421, 100 S.Ct. at 2267-68.

What was merely suggested in Vitale is now, as a result of the Supreme Court’s recent opinion in Grady v. Corbin, supra, a constitutional mandate: “We hold that the Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” 110 S.Ct. at 2087 (footnote omitted; emphasis added). The case before the Court, like Vitale and the case now before us, involved multiple charges arising out of an automobile accident. After allegedly causing the fatal accident, respondent Thomas Corbin pled guilty to driving while intoxicated, a misdemeanor, and failing to keep right of the median, a traffic infraction. He was subsequently indicted on additional charges, including reckless manslaughter, criminally negligent homicide, and third-degree reckless assault. The New York Court of Appeals, the state’s highest court, held that the double jeopardy clause as interpreted in Vitale barred prosecution of the charges just mentioned.

In affirming the New York court’s judgment, the U.S. Supreme Court explained that although the Blockburger test served to guard against the imposition of multiple punishments for a single offense, id. 110 S.Ct. at 2090, “a technical comparison of the elements of the two offenses as required by Blockburger does not protect defendants sufficiently from the burdens of multiple trials,” id. 110 S.Ct. at 2093.

If Blockburger constituted the entire double jeopardy inquiry in the context of successive prosecutions, the State could try Corbin in four consecutive trials: for failure to keep right of the median, for driving while intoxicated, for assault, and for. homicide. The State could improve its presentation of proof with each trial____ Corbin would be forced either to contest each of these trials or to plead guilty to avoid the harassment and expense.
Thus, a subsequent prosecution must do more than merely survive the Blockburger test. As we suggested in Vitale, the Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted.

Id. 110 S.Ct. at 2093 (citation and footnotes omitted). The Court emphasized that it was not creating an “actual evidence” or “same evidence” test, but that “[t]he critical inquiry is what conduct the State will prove, not the evidence the State will use to prove that conduct.” Id.

The traditional Blockburger test, then, remains the first step in the analysis of a double jeopardy claim. “If application of that test reveals that the offenses have identical statutory elements or that one is a lesser included offense of the other, then the inquiry must cease, and the subsequent prosecution is barred.” Id. 110 S.Ct. at 2090. Because respondent Corbin had conceded that prosecution of the reckless manslaughter, criminally negligent homicide, and reckless assault offenses was not barred under the Blockburger test, this step did not detain the Court. Id. 110 S.Ct. at 2093. The second step in the Court’s analysis, an inquiry into the conduct to be proven by the State, was similarly straightforward. Because the State had filed a bill of particulars indicating that it would establish essential elements of the offenses at issue by proving that Corbin had been driving while intoxicated and had crossed over the median, the conduct for which he had already been convicted, it was apparent that the intended prosecution was barred by the double jeopardy clause. Id. 110 S.Ct. at 2094.

B.

Turning to the facts of the present case, we begin by applying the Blockburger test “to determine whether there are two offenses or only one.” The offense of reckless driving is defined in Section 3714 of the Motor Vehicle Code as follows:

Any person who drives a vehicle in careless disregard for the safety of persons or property is guilty of reckless driving, a summary offense.

75 Pa.C.S. § 3714. “This offense has but two elements: an actus reus — driving a vehicle; and a mens rea — careless disregard.” Commonwealth v. Wood, 327 Pa.Super. 351, 355, 475 A.2d 834, 836 (1984). Sections 3731(a)(1) and (4) of the Motor Vehicle Code, the provisions under which appellee was charged, define the offense of driving under the influence of alcohol as follows:

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

75 Pa.C.S. § 3731(a)(1), (4). This offense has two elements: 1) driving, operating, or being in control of a vehicle; and 2) either a) being under the influence of alcohol to such an extent that one is incapable of safe driving, or b) having an amount of alcohol in the blood that is 0.10 percent by weight or greater. See Commonwealth v. Griscavage, 512 Pa. 540, 544, 517 A.2d 1256, 1258 (1986).

A careful comparison of these statutes reveals that each offense contains at least one element that the other does not. Obviously, having consumed alcohol, as shown either by the amount of alcohol in the blood or by the inability to drive safely, is an essential element of DUI but not of reckless driving. Less obviously, reckless driving has as an essential element the act of driving a vehicle, an action that has not been an essential element of DUI since § 3731 was amended in 1982 to encompass not only driving a vehicle but also “operating” or “being in actual physical control of the movement” of a vehicle. See Commonwealth v. Crum, 362 Pa.Super. 110, 114-15, 523 A.2d 799, 801 (1987). Accordingly, as each offense requires proof of a fact that the other does not, they are not the same under Blockburger.

Having determined that the offenses of DUI and reckless driving are not facially the same, we turn to the question of whether the conduct relied upon by the Commonwealth to prosecute appellee on the subsequent charge (DUI) will necessarily be the same as that relied upon to convict him of the first charge (reckless driving). As the Supreme Court suggested in Vitale and confirmed in Corbin, only if the Commonwealth intends to base the DUI prosecution upon conduct for which appellee has not already been convicted in the reckless driving prosecution will the second prosecution escape the bar of the double jeopardy clause.

The conduct necessary to establish a violation of the reckless driving statute at issue in the present case can be proven by a variety of acts and circumstances which do not necessarily include driving under the influence of alcohol. See, e.g., Commonwealth v. Glassman, 359 Pa.Super. 230, 518 A.2d 865 (1986) (conduct of driving on the wrong side of roadway, without lights at night, while speeding and not stopping for stop signs constitutes reckless driving); Commonwealth v. Dandar, 249 Pa.Super. 327, 378 A.2d 319 (1977) (conduct of speeding in a school zone while there are 40 to 50 children in the area constitutes reckless driving). It may well be that the Commonwealth was prepared to prove at a summary trial that appellee had engaged in conduct which did not involve the presence of blood alcohol and/or its influence but which nevertheless constituted the offense of reckless driving. However, because appellee entered pleas of guilty to the summary offenses, the record does not disclose the nature of the conduct upon which the Commonwealth would have relied to prove the charges against appellee. Unlike the record before the Supreme Court in Grady v. Corbin, supra, in which the actions upon which the State intended to base the subsequent prosecution were revealed in terms specific enough to enable the Court to determine that respondent had already been prosecuted for the same conduct, the record in the case before us is devoid of any evidence clearly establishing the identity of conduct that invokes the double jeopardy clause.

Therefore, although appellee asserts that the DUI prosecution is barred by the double jeopardy clause, he has failed to demonstrate, either to the trial court or to this Court, that his conviction on the reckless driving charge was necessarily based on either his blood alcohol level or the effect of alcohol on his ability to drive. Because there are a multitude of facts and circumstances not involving the consumption of alcohol that could be relied upon to prove reckless driving, and the record before us does not reveal the basis for appellee’s conviction on that charge, appellee has failed to demonstrate that his prior conviction of reckless driving bars, on double jeopardy grounds, a subsequent prosecution for DUI. For this reason, we reverse the trial court’s order and remand for further appropriate proceedings.

III.

Having determined that the double jeopardy clause may, but does not necessarily, bar the subsequent prosecution in this case, we address appellee’s assertion that the Commonwealth is “foreclosed” from pursuing prosecution of the DUI charge because it failed to take an immediate appeal from the dismissal of the DUI charge by the District Magistrate on the basis of Commonwealth v. Revtai, supra. Appellee has failed to cite any authority which is directly applicable, and the case relied upon by appellee, Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978), is distinguishable.

The general rule is that an order dismissing a case for failure to establish a prima facie case is not final because the prosecution can bring the case before any other officer empowered to hold a preliminary hearing. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). In Prado, pursuant to the relevant local rules of court, only the Motions Judge was authorized to review a petition for rearrest in a homicide case. When the Motions Judge denied the petition, the order was final .because there was no authorized judicial officer to whom the rearrest petition could be presented. Thus, the general rule was inapplicable.

In the present case, unlike in Prado, there were other District Justices with whom the Commonwealth could have re-filed the charges and before whom the preliminary hearing could have been conducted. Moreover, Revtai was overruled prior to the running of the statute of limitations. Thus, nothing barred the Commonwealth from re-filing the DUI charge against appellee. Therefore, the general rule was applicable, and the Commonwealth is not precluded from pursuing the DUI charges even though no appeal was filed from the dismissal of those charges by the District Magistrate on August 25, 1985.

Reversed and remanded. Jurisdiction is relinquished.

TAMILIA, J., concurs in the result.

BROSKY, J., files a dissenting opinion.

BROSKY, Judge,

dissenting.

I dissent. My Brethren in the majority have overlooked the rather fundamental concept of res judicata in their analysis of the within dispute. This concept, I believe, compels affirmance of the order appealed from.

No one seems to dispute that the order of August 25, 1985, dismissing the charge against appellant for non-compliance with Rule 130(d) of the Pennsylvania Rules of Criminal Procedure, was a final and appealable order which terminated the case against appellant. Further, it is conceded that the Commonwealth did not appeal the dismissal of the charge against appellant. Thus, the matter became final, in essence, forevermore. The doctrine of res judicata indicates that once a matter is litigated to a final conclusion, it cannot once again be litigated by those parties. Although the doctrine has had substantially greater application in civil proceedings, it applies as well to criminal matters.

In Commonwealth v. Bellamy, 251 Pa.Super. 165, 380 A.2d 429 (1977), this court considered a case where a criminal defendant was discharged for the Commonwealth’s failure to comply with Rule 1100. The Commonwealth failed to appeal the dismissal of the defendant but later, actually after expiration of the appeal period, petitioned the trial court for reconsideration. The petition was granted and the court rescinded its prior order. On appeal we found that the failure to appeal the previous order of dismissal rendered the matter res judicata. Our discussion there is instructive:

An order sustaining a motion to dismiss and discharging an appellant is a final order, and the Commonwealth is entitled to appeal therefrom without any further action on the part of the lower court. Commonwealth v. Wydo, 205 Pa.Super. 62, 208 A.2d 12 (1965); Commonwealth v. Fox, 181 Pa.Super. 292, 124 A.2d 628 (1956). In the' instant case, the Commonwealth was required to file its appeal within thirty days of the entry of the order on August 8, 1975____ No appeal, however, was taken. The Commonwealth’s petition to reconsider, filed September 22, 1975, could not extend the thirty day appeal period____ As we stated in Commonwealth v. Wydo, supra, “[t]he fact that an order sustaining a [motion for discharge] is final for purposes of appeal precludes any further action on the matter by the lower court. Unless set aside on appeal, the matter becomes res judicata.” ... “If the court’s action was believed to be erroneous, the proper tribunal to determine any error was an appellate court; the burden was on the Commonwealth to appeal.”

Prior to Bellamy, in Commonwealth v. Yahnert, 216 Pa.Super. 159, 264 A.2d 180 (1970), we expressed similar comments regarding the Commonwealth’s failure to appeal the granting of a demurrer, the appealability of which, at that time, was not questioned. The Commonwealth chose, instead of appealing, to re-indict the appellant on the same charges. We stated, “[t]he Commonwealth having failed to appeal, the action of the court on Bill No. D-42 is res judicata to the charge contained therein____ The effect of the above was to preclude a new indictment. ‘[T]he judgment entered on the demurrer, if sustained, is a discharge, and bars a second prosecution for the same cause____’ Commonwealth v. Marino, 142 Pa.Super. 327, 330, 16 A.2d 314 (1940).” A similar holding was made in Commonwealth v. Wydo, 205 Pa.Super. 62, 208 A.2d 12 (1965).

Although, as noted by the majority, ordinarily the dismissal of a complaint by the district magistrate for failure to establish a prima facie case is not a bar to the refiling of a complaint, nor a final and appealable event, this can be explained by the rather simple fact that such action is not considered final as to the charge contained therein. However, the recitation of this principle by the majority is puzzling because in the present case the charge was not dismissed for a failure to establish a prima facie case. Rather, and quite neatly side-stepped by the majority, the discharge in the present case was of a different nature, a dismissal for non-compliance with a rule of procedure/limitation. Unlike a dismissal for failure to establish a prima facie case, a discharge for a violation of Rule 130 is considered both final and appealable. In fact, the Commonwealth, through the office of the District Attorneys, (including the District Attorney’s office from which the present case originated), has filed many appeals from the same type of dismissal. Thus, the present case is far different from that where a charge is dismissed for failure to establish a prima facie case, and the majority’s failure to answer this res judicata aspect of the appeal, in at least a plausible fashion, leaves a logical hole in its analysis which greatly weakens their decision. Furthermore, their analysis of the double jeopardy issue is not only premature until this issue is resolved, but it also fails to consider what appears to be a res judicata protection encompassed within the general double jeopardy prohibition.

There is authority indicating that the ancient plea of autrefois acquit, or former acquittal, encompassed within the realm of the double jeopardy protection, does not require an adjudication on the merits but can be based upon á final disposition of the charge on other, grounds as well. Perhaps no case demonstrates this point more effectively than that of the United States Supreme Court’s decision in United States v. Oppenheimer, 242 U.S. 85, 37 S.Ct. 68, 61 L.Ed. 161 (1916).

In Oppenheimer, the court considered a situation similar in many material facets to the present one. There, Oppenheimer was indicted a second time for a conspiracy to conceal assets from a trustee in bankruptcy, the first having been found time barred. By way of defense “Oppenheimer set up a previous adjudication upon a former indictment for the same offense that it was barred by the one year statute of limitations in the Bankruptcy Act for offenses against that act ... an adjudication since held to be wrong in another case.” (emphasis added). Justice Oliver Wendell Holmes, writing for the Court stated:

Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases except in the modified form of the 5th Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb; and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy in the sense of being before a jury upon the facts of the offense charged. It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. It cannot be that a judgment of acquittal on the ground of the statute of limitations is less a protection against a second trial than a judgment upon the ground of innocence, or that such a judgment is any more effective when entered after a verdict than if entered by the government’s consent before a jury is empaneled; or that it is conclusive if entered upon the general issue ..., but if upon a special plea of the statute, permits the defendant to be prosecuted again.

242 U.S. at 87, 37 S.Ct. at 69. There are other recitations of this principle, although possibly having their genesis in the decision in Oppenheimer. In 9 ALR 3d, at 223, it is stated that “[wjhile the elements constituting a plea of former conviction or acquittal also support a plea of double jeopardy, the former, but not the latter, plea is limited to a final judgment entered upon the merits.” At 21 Am Jur 2d § 321 it is stated “[t]he doctrine of res judicata has essentially two aspects. In some cases, a prior judgment may act as a complete bar to a subsequent prosecution of the defendant. Thus, a prior judgment dismissing an indictment on the ground that the offense charged was barred by the statute of limitations has been held to bar — irrespective of any question of former jeopardy — a second prosecution under a new indictment for the same offense.” (citing to Oppenheimer, supra.)

The decision in Oppenheimer would really appear to be most dispositive of the present case. Like here, there was a discharge of the criminal defendant upon grounds unrelated to his guilt or innocence. Further, there was never an adjudication of the party’s guilt or innocence, nor had jeopardy attached in the sense that a jury had been impanelled. Moreover, in both Oppenheimer and the present case, the grounds upon which the discharge of the appellant rested had been later found erroneous, thus providing the opportunity for a re-indictment for the same offense. The United States, like the Commonwealth here, had an opportunity to appeal the decision discharging the appellant, but did not. The thrust of the entire decision in Oppenheimer rests upon the fact that the criminal defendant had a right to consider the final disposition of the charge as just that, final. Thus, the concept of res judicata, which protects the integrity of final dispositions and bars relitigation of the disposed matter, came into play to bar the second prosecution.

In the present case, the charge against appellant was disposed of in a manner which, at the time, had as much finality as a dismissal based on Rule 1100, the statute of limitations (rule 130 itself is a statute of limitations regarding time limitations for filing criminal complaints), or a demurrer. The fact that the Commonwealth had a right to appeal, (in light of the decision in Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986), a right which is not enjoyed as to all discharges of the criminal defendant), makes their failure to do so and their attempt to relitigate a closed matter, all the more questionable. I dare say, that if the situation were reversed, and previously violations of 130(d) were considered non fatal but the law was subsequently changed by a decision of this Court or our Supreme Court to require strict compliance, I hardly doubt that my colleagues in the majority would seriously entertain an appellants attempt to receive a discharge for the Commonwealth’s previous non-compliance with the rule. We would simply respond that the conviction was final and the appellant’s failure to appeal the Rule 130(d) violation precluded collateral relief. Why then should our decision be different when it is the Commonwealth who failed to appeal and is now, in essence, seeking the collateral benefit of a favorable decision which it chose not to litigate? I see no reason that it should and the majority has offered none, thus, I dissent.

       This case was reassigned.

      . The constitutional guarantee against double jeopardy is applicable to the states through the due process clause of the Fourteenth Amendment. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980). The double jeopardy protection afforded by the United States Constitution generally has been interpreted as coextensive with the protection afforded by Article I, Section 10 of the Pennsylvania Constitution. See Commonwealth v. Goldhammer, 507 Pa. 236, 247-48 n. 4, 489 A.2d 1307, 133 n. 4 (1985).

      . See also Commonwealth v. McAulay, 361 Pa.Super. 419, 522 A.2d 652 (1987) (separate analyses applied under § 110 and the Fifth Amendment); and Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984) (applying Johnson analysis).

      . The result of this determination, that the double jeopardy clause may be applied to summary traffic offenses, is in accord with the Supreme Court’s decision in Borough of West Chester v. Lal, 493 Pa. 387, 426 A.2d 603 (1981), as well as this Court’s decisions in Commonwealth v. Hoburn, 335 Pa.Super. 536, 485 A.2d 24 (1984), and Commonwealth v. Johnson, 319 Pa.Super. 463, 466 A.2d 636 (1983). Accord, State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983) ("Motor Vehicle violations tried in municipal courts are within the category of offenses subject to the Double Jeopardy Clause”).

      . Although appellee pled guilty to both charges, it was the reckless driving conviction which led the trial court to bar the DUI prosecution on double jeopardy grounds.

      . Former Justice (now Chief Justice) Rehnquist has called the words "same offense,” used in this context, "a phrase deceptively simple in appearance but virtually kaleidoscopic in application.” Whalen v. United States, 445 U.S. 684, 700, 100 S.Ct. 1432, 1442, 63 L.Ed.2d 715, 729 (1980) (Rehnquist, J., dissenting).

      . The offense is identified as a traffic infraction in In re Corbin v. Hillery, 74 N.Y.2d 279, 543 N.E.2d 714, 545 N.Y.S.2d 71 (1989), the opinion of the New York Court of Appeals in Corbin’s case. “A traffic infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment____” N.Y.Veh. & Traf.Law § 155 (McKinney 1988).

      . In Commonwealth v. Dickerson, 303 Pa.Super. 46, 449 A.2d 570 (1982), Judge Beck wrote that although DUI requires proof of facts not required by reckless driving, "to prove reckless driving one need allege no new facts” in addition to those required for DUI. Id. at 49; 449 A.2d at 572. As hers was a plurality opinion, it is not binding on this Court. In addition, the violation at issue in the case had occurred prior to the 1982 amendment of 75 Pa.C.S. § 3731, and, as noted earlier, the case involves a § 110 analysis.

      . Appellee has raised this ground in support of affirmance along with the double jeopardy challenge and a few others similar in nature. Of course, we are bound to affirm the order appealed from if valid reason exists to do so even though the trial court may have rested its decision on other grounds.

      . The fact that the appellant was dismissed on Rule 1100 grounds is of great significance because, like the dismissal here, such an action can in no way be construed as an adjudication on the merits or the equivalent of an acquittal upon the facts. Nor, under those circumstances, would “jeopardy” have attached under the longstanding rule that jeopardy attaches when the jury is empanelled or the first witness sworn. Thus the decision rests squarely, from a logical standpoint, on the fact that there was a conclusive disposition of the criminal charge which became final upon the Commonwealth’s failure to appeal.

      . Subsequently, it was determined to be a violation of double jeopardy to allow an appeal of a demurrer, at least where a successful appeal on the part of the sovereign would require post appeal litigation. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). However, it is noteworthy that we did not focus on this aspect of the problem in Yahnert. In fact, it does not appear that the decision rested on double jeopardy grounds at all. A fair reading of Yahnert suggests that we focused on the fact that the order granting a demurrer and discharging the defendant was a final and appealable order. Thus the Commonwealth’s failure to appeal rendered the matter closed and res judicata precluded the re-indictment or relitigation of the cause.

      . Perhaps just as puzzling is the fashion in which the majority attempts to distinguish the applicability of Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8 (1978), the case strongly relied upon by appellee.

        The majority asserts that unlike the situation in Prado, here there were other District Justices before whom the Commonwealth could have re-filed the charges and before whom the preliminary hearing could have been conducted. This may- be true, but also seems to be wholly irrelevant since the dismissal here was not based upon a failure to establish a prima facie case. As the dismissal was based upon a violation óf Rule 130, re-filing of the charges would have been futile as the law clearly called for dismissal of the charges for such a violation at the time in question. Each and- every District Justice would have been duty bound to likewise dismiss the charges; there was no room for discretion or disagreement. The only recourse available to the Commonwealth was the filing of an appeal which it did not do, thus, rendering the dismissal final. Thus, although Prado may indeed be distinguishable, distinguishing the case really does not answer the broader question raised.

      . It would seem as well, that the concepts of res judicata and collateral estoppel are firmly intertwined with the constitutional protections of due process and double jeopardy. Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), first held that collateral estoppel was a principle embodied in the the double jeopardy clause. Although the focus in Ashe v. Swenson centered on the collateral estoppel, i.e. issue preclusion, aspect of the doctrine of res judicata, this focus would appear explained by the fact that res judicata without the collateral estoppel aspect of it, i.e. merger and bar, would not have been applicable to the facts presented there. However, in reaching their conclusion that "this established rule of federal law is embodied in the Fifth Amendment guarantee against double jeopardy", 397 U.S. at 445, 90 S.Ct. at 1195, they recognized that the rule of federal law, the applicability of res judicata/collateral estoppel, had been established more than 50 years earlier in the decision in Oppenheimer. Thus, there is strong reason to believe that the United States Supreme Court would consider res judicata (merger and bar) embodied in the double jeopardy protection.

      . Although I am in general disagreement with the majority’s disposition, I would join in the majority’s Opinion, and applaud their decision, to the extent that it calls for the overruling of Commonwealth v. Evers, 381 Pa.Super. 568, 554 A.2d 531 (1989). For the reasons set forth in my Dissenting Opinion in Evers, it is fairly obvious, upon study of the relevant law, that the majority’s holding there, that constitutional double jeopardy protections do not apply or attach to summary convictions or acquittals, is seriously flawed. I am encouraged that Judge Johnson, a member of the majority in Evers, has also joined in the majority Opinion calling for the overruling of Evers.