author: CAVANAUGH, Judge:

text:
    533 A.2d 1029
    James J. BICKFORD and Louise Bickford, H/W, Appellants, v. Raymond JOSON, M.D., and Mercy Catholic Medical Center Fitzgerald-Mercy Division.
    Superior Court of Pennsylvania.
    Argued Nov. 19, 1986.
    Filed Oct. 15, 1987.
    Reargument Denied Dec. 8, 1987.

      James Beasley, Philadelphia, for appellants.
    Lori Olitsky Strauss, Philadelphia, for Joson, appellee.
    Thomas J. Ericson, Havertown, for Mercy, appellee.
    Before CAVANAUGH, OLSZEWSKI and TAMILIA, JJ.
   CAVANAUGH, Judge:

In this claim by appellants, James J. and Louise Bickford, for personal injuries on the basis of medical malpractice, the parties by cross motions for summary judgment, brought before the trial court the issue of the statute of limitations. After consideration of the record, the court found appellants’ suit to be barred by the running of the statute of limitations and dismissed. We affirm.

The claim of malpractice is based on the assertion that the appellees, Raymond Joson, M.D., and Mercy Catholic Medical Center, failed to perform appropriate diagnostic studies, particularly a myelogram within twenty-four hours (or so) of appellant’s hospitalization. A myelogram is a diagnostic study which consists of roentgenography of the spinal cord after injection of a contrast medium. Mr. Bickford was hospitalized after he fell down a flight of stairs at his residence on March 23, 1976 and suffered quadriplegia. It is appellants’ contention that had the myelogram been timely done, a decompressive laminectomy would have been indicated and performed with the result that his quadriplegia would have been alleviated or reversed.

In order to determine whether or not the trial court erred in granting summary judgment on the basis of the statute of limitations, we must properly focus on the posture of the case before the trial court. That is, in order to grant summary judgment, the court must determine that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Pa.R.C.P. 1035(b). Thus, for summary judgment purposes, appellees must concede that appellants have stated facts which support a cause of action. The efficacy of the claim and the facts which appellants claim in support of it must be unchallenged. The complaint, in general terms, alleges close to twenty averments of negligence and malpractice. The gist of the cause of action, however, has been reduced by appellants to a simple claim that a substantial cause of Mr. Bickford’s paralysis is the failure of Dr. Joson to perform a myelogram. It is conceded that appellant’s fall down a flight of stairs in his house on March 23,1976 caused him to become paralyzed, but, it is claimed, if a myelogram had been performed very soon after his admission to Mercy Catholic Medical Center a decompressive laminectomy may have been performed reversing the paralysis. Since Mr. Bickford left the care of appellees, Joson and Mercy Catholic Medical Center, upon his discharge from the hospital on May 17, 1976, the negligence or malpractice in failing to perform the myelogram may fairly be stated to have occurred at least during the period of admission from March 23 to May 17, 1976. Suit was not commenced until May 2, 1982.

The efficacy of limitation laws has won unequivocal judicial approval. For example, our highest court has recognized that the defense of the statute of limitations is not a technical defense but is substantial and meritorious.

“Statutes of limitation are vital to the welfare of society and are favored in the law____ They promote repose by giving a stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence____ Mere delay, extended to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.”

Schmucker v. Naugle, 426 Pa. 203, 204, 231 A.2d 121, 123 (1967), quoting from United States v. Oregon Lumber Co., 260 U.S. 290, 299-300, 43 S.Ct. 100, 103, 67 L.Ed. 261 (1922). Further, it has been stated that “The purpose of any statute of limitations is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims.” Insurance Co. of North America v. Carnahan, 446 Pa. 48, 284 A.2d 728, 729 (1971); Ulakovic v. Metropolitan Life Ins. Co., 339 Pa. 571, 575-576, 16 A.2d 41 (1940). See also Cunningham v. Insurance Co. of North America, 515 Pa. 486, 530 A.2d 407 (1987).

The Bickfords’ argument on appeal is that, although the two year statute of limitations (42 Pa.C.S.A. § 5524(2)) would ordinarily be a bar to this action for injuries to the person, its stricture is inapplicable since appellants are entitled to invoke the “discovery rule” in order to extend the period of limitations. A growing line of Pennsylvania cases have alluded to this rule in deciding the applicability of the statute of limitations. The rule found its roots in the seminal case of Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959) which held that “(t)he injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers, 397 Pa. at 290, 154 A.2d at 792. The law became more explicit in Anthony v. Koppers Co., Inc., 284 Pa.Super. 81, 425 A.2d 428 (1980), rev’d on other grounds, 496 Pa. 119, 436 A.2d 181 (1981). Anthony set forth three independent phases of knowledge which must be reasonably discoverable before the statutory period commences:

(1) knowledge of the injury;
(2) knowledge of the operative cause of the injury; and,
(3) knowledge of the causative relationship between the injury and the operative conduct.

The discovery rule has been more simply stated in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) (en banc), Petition for Allowance of Appeal denied April 30, 1984, wherein the court reduced the level of reasonable knowledge to (1) knowledge that one has been injured; (2) that his injury has been caused by another party’s conduct. Although Cathcart was an asbestos (“creeping disease”) case, application of the Cathcart test to medical malpractice cases was recently espoused in Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 516 A.2d 53 (1986). Most importantly, our Supreme Court has characterized the discovery rule components simply as the inability despite reasonable diligence to determine “the injury or its cause.” Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 86, 468 A.2d 468, 471-472 (1983). See also Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323 (1987).

We conclude that even when discovery rule principles are applied to the present case, appellant’s claim is barred. As to the knowledge that he has been injured, it is clear that the injury — failure to alleviate or reverse a paralysis — was obvious to appellant who had knowledge of the continued gravity of his paralysis with only slight improvement from the time he left the hospital. Appellant does not argue otherwise. Appellant’s brief at P. 13. However, Bickford argues that he did not, in fact, have any information to apprise him that a myelogram pointing to possible relief from his paralysis might have been performed until, at the earliest, August of 1981 when in consultation with a physician, Dr. Boor, the possibility of his undergoing myelography was for the first time discussed with appellant. The argument, then, is that Bickford could not reasonably learn within two years of the failure of appellees to perform a myelogram which was a substantial contributing factor to his continued state of paralysis. However, given the presumed validity of appellants’ claim, we fail to see that there was any barrier to the discovery of the operative cause of the injury, i.e., the failure to perform myelography. The facts supporting the claim were known or at least knowable from the time of the hospitalization — when no myelogram was performed. The essence of appellants’ cause of action is that appellees did not conform to community standards of medical care and it must follow that consultation with an attorney would have disclosed to Bickford the existence of his legal claim. Stated otherwise, at the time of the tort alleged by appellant, all the facts to support the claim were known or reasonably knowable to him. Appellant does not argue that he is excused because of any obscurity of his legal theory of malpractice. Indeed, to so argue would be inconsistent with the standard of reasonable medical care. Nor does he argue that prudent legal inquiry would not have disclosed the existence of his claim at any time following the alleged malpractice. Indeed, in an era of complex and sophisticated legal rights and the general availability of legal services, the duty to make legal inquiry within two years of the injury is wholly reasonable. Under these circumstances, we find the words of an analogous case in the United States Supreme Court to be pertinent:

We are unconvinced that for statute of limitations purposes a plaintiff’s ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.
We thus cannot hold that Congress intended that “accrual” of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government. If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be ¡incompetently advised or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff’s discovery of the relevant facts about injury.

United States v. Kubrick, 444 U.S. 111, 122, 123, 100 S.Ct. 352, 359, 360, 62 L.Ed.2d 259 (1979) (footnotes omitted).

Pennsylvania law is not to the contrary. In DeMartino v. Albert Einstein Medical Center, 313 Pa.Super. 492, 460 A.2d 295 (1983), we said:

Thus, once the patient is aware or should reasonably have become aware that medical treatment is causing him personal injury the statute begins and the prospective plaintiff is required to begin doing those things for which the statute of limitations specifically provides time: “an opportunity to select and consult with a lawyer, investigation, initiation of suit, discovery, joinder of additional parties, etc.” Keating v. Zemel, 281 Pa.Superior Ct. 129, 134 n. 4, 421 A.2d 1181, 1184 n. 4 (1980). It is during this two year period that the medical malpractice plaintiff, like any other plaintiff pursuing any other legal claim, makes the decision whether or not to pursue any legal rights he may possess.

DeMartino, 313 Pa.Superior Ct. at 501, 460 A.2d at 300.

Similarly, under the Pennsylvania discovery rule, there is no requirement that the plaintiff reasonably discover that his injury has been caused by the negligent conduct of another. Anthony v. Koppers, supra; DeMartino v. Albert Einstein Medical Center, supra; Groover v. Riddle Memorial Hospital, supra; Held v. Neft, 352 Pa.Super. 195, 507 A.2d 839 (1986).

To be sure, on occasion, our court has found that summary judgment was improperly entered in a discovery rule case. In Petri v. Smith, 307 Pa.Super. 261, 453 A.2d 342 (1982) a panel decided that although the mother of a child allegedly injured at birth knew well within two years of the injury (physical and mental retardation), and the operative causes (failure to perform a caesarean section and improper administration of drugs) there was a sufficient dispute as to the third prong of the Anthony text, i.e., knowledge of the causative relationship between the injury and the operative conduct. It appears that Petri at least comes close to improperly concluding that the plaintiff must be charged with knowledge that the negligent conduct of another must have caused the injury. Nevertheless, the conclusion was simply that, under all the facts, whether or not the plaintiff acted with reasonable diligence in discovering the cause of the birth defect was properly a question for the jury.

Unlike Petri we see no basis for a jury question in the present matter. In effect, the jury would have to be told that the plaintiff knew of his injury and that his claim as to malpractice — a breach of a duty of due care — was knowable and, in fact, was pursued by a lawsuit as soon as plaintiff sought counsel. Under the facts, the only reasonable conclusion is that counsel should have been sought sooner, i.e., within two years of the date of the claimed malpractice. We think that the facts do not permit an extension of the statute beyond two years since the purpose of the limitation is precisely that — to provide a reasonable period of time so that an injured person may assess their legal rights, seek advice and pursue his claim — but at the same time protect adverse parties from stale claims. This conclusion follows the reasoning of our Supreme Court in Pocono International Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983) stated:

As a matter of general rule, a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based and to institute suit within the prescribed statutory period. Walters v. Ditzler, 424 Pa. 445, 450-451, 227 A.2d 833, 835 (1967); Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981); Med-Mar, Inc. v. Dilworth, 214 Pa.Super. 402, 257 A.2d 910 (1969). Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations, Nesbitt v. Erie Coach Co., 416 Pa. 89, 204 A.2d 473 (1964), Bell v. Brady, 346 Pa. 666, 31 A.2d 547 (1943); even though a person may not discover his injury until it is too late to take advantage of the appropriate remedy, this is incident to a law arbitrarily making legal remedies contingent on mere lapse of time. Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute.
The “discovery rule” is such an exception, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause. (Emphasis in original.)

The court concluded:

We hold, therefore, that the “discovery rule” exception arises from the inability, despite the exercise of diligence, to determine the injury or its cause, not upon a retrospective view of whether the facts were actually ascertained within the period. (Emphasis in original.)

468 A.2d at 471-472.

Order affirmed.

      . There is no evidence that Dr. Boor or any other physician or health care personnel offered any advice that a myelogram should have been performed at the time of the post-accident admission and it appears that appellant did not learn of the possibility of the present cause of action until after counsel was consulted in September, 1981.

      . Kubrick involved a statute of limitations defense to a suit under the Federal Tort Claims (Act) 28 U.S.C. § 2401(b) [28 U.S.C.S. § 2401(b) ].


source: Caselaw Access Project

author: OLSZEWSKI, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    533 A.2d 1034
    Rodolfo FOLINO and Lidia Folino, Appellants, v. Howard J. YOUNG, Jr., Judith N. Agsten, and Kendall Stitzel, Appellees.
    Superior Court of Pennsylvania.
    Argued April 28, 1987.
    Filed Oct. 21, 1987.
    Reargument Denied Dec. 11, 1987.

      John R. Badal, Reading, for appellants.
    David M. Kozloff, Reading, for Young, appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge:

Appellants appeal from the trial court’s order dismissing their motion for post-trial relief. In this appeal, we must decide: (1) whether the trial court, in a subsequent civil action, erred by excluding evidence of appellee Young’s prior criminal conviction which arose out of the same facts that were the focus of the civil action; and (2) whether ■appellants are entitled to a directed verdict against appellee Young on the issue of negligence. For the reasons stated below, the order of the trial court is reversed and the case remanded for a new trial. Trial court to enter a directed verdict for appellants on the issue of negligence. Jurisdiction is relinquished.

The present action arose out of a collision which occurred in the early afternoon of December 15, 1980, on U.S. Route 22, a three-lane highway, in Maidencreek Township, Berks County. Appellee Young was driving in a southerly direction in the southbound lane and upon entering a left-hand curve, crossed into the right-hand northbound lane where a collision occurred with appellants’ northbound vehicle. Subsequently, two additional northbound vehicles were involved in the collision. A passenger in appellee Young’s vehicle died in the collision and, in a prior criminal jury trial, Young was convicted of homicide by vehicle (75 Pa.C.S.A. § 3732) based on his conviction for driving at an unsafe speed (75 Pa.C.S.A. § 3361).

Appellants thereafter initiated the instant civil action against appellee Young for damages arising out of the same collision. The jury found that appellee Young was not negligent and entered a verdict in his favor. Appellants filed a post-trial motion requesting a new trial or, in the alternative, a partial directed verdict against Young on the issue of liability. The trial court denied appellants’ motion and this timely appeal followed.

Central to this appeal is appellants’ contention that the trial court erred by excluding evidence of Young’s prior criminal conviction which arose out of the same facts that were the focus of the subsequent civil action. Appellants contend that Young’s prior conviction should have been admitted as conclusive evidence that Young was operating his vehicle at an unsafe speed and was, therefore, negligent at the time of the collision.

It is well established that questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will be reversed on appeal only where a clear abuse of discretion exists. See Camp Construction Corp. v. Lumber Products Co., 311 Pa.Super. 381, 457 A.2d 937 (1983). We agree with appellants that the trial court abused its discretion in excluding evidence of Young’s conviction for driving at an unsafe speed.

The leading Pennsylvania case concerning the admissibility of a criminal conviction in a subsequent civil trial is Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965) cert. denied, 381 U.S. 925, 85 S.Ct. 1561, 14 L.Ed.2d 684, in which our Supreme Court found that proof of an extortion conviction was conclusive evidence of the fact of extortion in a subsequent civil suit against the convicted extortioner. In Hurtt, our Supreme Court recognized that “in Pennsylvania, judgments in criminal cases for years were held inadmissible to establish the facts in a civil case. But the tendency of recent decisions is away from enforcing a rigid rule.” Id., 416 Pa. at 497, 206 A.2d at 626. The Court further stated:

In so deciding, we recognize a valid existing distinction in cases involving the record of conviction of relatively minor matters such as traffic violations, lesser misdemeanors, and matters of like import. Especially in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s “trial technique.” In such cases, it is not obvious that the defendant has taken advantage of his day in court ...
The policy shifts with regard to major criminal convictions such as the one presented. We find it incredible in such a situation that a defendant would present less than his best defense, knowing that his failure would result in the loss of substantial property, or even his liberty.

Id., 416 Pa. at 499, 206 A.2d at 627 (citation omitted) (footnote omitted).

In the instant case, the trial court, relying on Hurtt, concluded that Young’s conviction for driving at an unsafe speed was “merely a summary offense which is clearly not admissible in a subsequent civil action____” Trial court opinion at 4. If Young had been convicted only of driving at an unsafe speed, we would agree with the trial court’s conclusion. Appellee Young, however, was not merely convicted of driving at an unsafe speed, but was convicted of homicide by vehicle based on his conviction for driving at an unsafe speed. Homicide by vehicle is defined as follows:

§ 3732. Homicide by vehicle
Any person who unintentionally causes the death of another person while engaged in the violation of any law of this Commonwealth or municipal ordinance applying to the operation or use of a vehicle or to the regulation of traffic except section 3731 (relating to driving under influence of alcohol or controlled substance) is guilty of homicide by vehicle, a misdemeanor of the first degree, when the violation is the cause of death.

75 Pa.C.S.A. § 3732 (emphasis added). In the present case, the jury found that Young unintentionally caused the death of a passenger in his vehicle “while engaged in the violation of [a] law of this Commonwealth ... applying to the operation ... of a vehicle,” i.e., driving at an unsafe speed in violation of 75 Pa.C.S.A. § 3361.

Based on the rationale in Hurtt, we conclude that the trial court abused its discretion by excluding evidence of Young’s prior criminal conviction for driving at an unsafe speed. If Young had been successful in contesting the charge of driving at an unsafe speed in his criminal trial, he would not have been convicted of homicide by vehicle. Since homicide by vehicle is designated a misdemeanor of the first degree (75 Pa.C.S.A. § 3732), punishable by imprisonment of up to five years (18 Pa.C.S.A. § 1101(3)), Young had reason to assert “his best defense, knowing that his failure would result in the loss of substantial property, or even his liberty.” Hurtt, 416 Pa. at 499, 206 A.2d at 627. Moreover, this was not a case involving a minor criminal conviction where “expediency and convenience, rather than guilt ... control the defendant’s ‘trial technique.’ ” Id. Rather, Young took full advantage of his day in court in an attempt to avoid conviction for homicide by vehicle based on a conviction for driving at an unsafe speed. Accordingly, the order of the trial court is reversed and the case remanded to the trial court for a new trial.

Since we are remanding for a new trial, we must determine whether the trial court must enter a partial directed verdict for appellants on the issue of negligence. A trial court may direct a verdict for plaintiff only if:

... there are no facts upon which a jury could properly find for the defendant. Highland Tank and Mfg. Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966). If there is a conflict of evidence, and the conflict provides a basis upon which a jury could possibly render a verdict for the party against whom the directed verdict is sought, the case must go to the jury. Cox v. Equitable Gas Co., 227 Pa.Super. 153, 324 A.2d 516 (1974). However, the conflict must be real. If there is no more than a scintilla of evidence on the side ruled against, and a jury could not base its verdict upon that evidence, a directed verdict may still be proper. Cromley v. Pa. R. Co., 211 Pa. 429, 60 A. 1007 (1905).

Krupa by Krupa v. Williams, 316 Pa.Super. 408, 415, 463 A.2d 429, 432 (1983).

In the instant case, there is no conflict of evidence on the issue of appellee Young’s negligence since Young’s violation of 75 Pa.C.S.A. § 3361 constitutes negligence per se. See Congini v. Portersville Valve Co., 504 Pa. 157,

470 A.2d 515 (1983). Our Supreme Court explained in In re Estate of Kravitz, 418 Pa. 319, 211 A.2d 443 (1965), which was decided five months after Hurtt, supra, that:

[I]n Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 ... an action of assumpsit was brought by an employer to recover money extorted from him by defendant. The Court directed a verdict for plaintiff The Court specifically ruled that since defendant has been convicted in a Federal Court of violating the Hobbs’ Anti-Racketeering Act as a result of the money payments to defendant involved in the present civil action, the record of defendant’s conviction was properly admitted in evidence and conclusively established the fact of defendant’s extortion. The Court said (page 498, 206 A.2d page 626):
“The same principles of public policy enunciated in Mineo [v. Eureka Security & Marine Ins. Co., 182 Pa.Super. 75, 125 A.2d 612 (1956) ] and Pennsylvania Turnpike Commission [v. United States Fidelity and Guaranty Co., 412 Pa. 222, 194 A.2d 423 (1963)], apply with equal force to the present case. The defendant was presented with more than ample opportunity to overcome the charges lodged against him while he was swathed in a cloak of presumed innocence. His case was twice presented to a federal jury which found him guilty of extortion beyond a reasonable doubt, upon the same facts which are now urged as the basis for his civil liability. To now hold that the effect of those jury determinations is nil not only would be to fly in the face of reason, but also would be a general indictment of the whole American jury system.”

Id., 418 Pa. at 326-327, 211 A.2d at 447 (emphasis in original).

We, consequently, conclude that upon remand of the case, the trial court shall enter a directed verdict for appellants on the issue of negligence.

Order reversed and case remanded for new trial. Trial court to enter a directed verdict for appellants on the issue of negligence. Jurisdiction is relinquished.

DEL SOLE, J., dissents with opinion.

DEL SOLE, Judge,

dissenting:

I respectfully dissent. The Majority would conclude that the trial court abused its discretion by excluding evidence of Young’s prior criminal conviction for driving at an unsafe speed. However, upon review of the record and the applicable case law, I disagree. Moreover, I am in total agreement with the reasoning employed by the trial court in deciding to exclude this evidence. See Trial Court Opinion, filed October 27, 1986.

In Hurtt v. Stirone, 416 Pa. 493, 206 A.2d 624 (1965), our Supreme Court discussed the admission of prior criminal convictions as conclusive evidence in subsequent civil actions arising from the same set of circumstances. The rule in that decision permitted the use of such evidence. As an exception, though, Hurtt excluded from the scope of its ruling the admission of convictions of relatively minor matters such as traffic violations and lesser misdemeanors. Id. at 206 A.2d at 627. Later, in Loughner v. Schmelzer, 421 Pa. 283, 218 A.2d 768 (1966), our Supreme Court reaffirmed this position by stating that, in an action for damages arising from an automobile accident, evidence that the plaintiff had been convicted of failure to drive on the right half of the highway was inadmissible even though it arose from the facts of the accident. Id. at 218 A.2d at 769.

It is my position that Hurtt and Loughner are controlling with respect to the admission of Young’s prior conviction of driving at an unsafe speed. This violation has been classified by the Motor Vehicle Code as a summary offense. 75 Pa.C.S.A. § 6502. Thus, the prior conviction was properly excluded by the trial court.

The Majority would hold that, even though Young’s conviction for driving at an unsafe speed was a summary offense, Hurtt would not preclude its admission at trial. In Hurtt, our Supreme Court wrote that “in traffic violations, expediency and convenience, rather than guilt, often control the defendant’s ‘trial technique’. In such cases, it is not obvious that the defendant has taken advantage of his day in court.” Id. at 206 A.2d at 627. The Majority points out that Young’s conviction for homicide by vehicle hinged upon his success in contesting the driving at an unsafe speed charge. Thus, Young had reason to assert his best defense since his failure would result in substantial loss of property or freedom. From this, the Majority concludes that “Young took full advantage of his day in court in an attempt to avoid conviction for homicide by vehicle based on a conviction for driving at an unsafe speed.” Maj. op. 225. I disagree with the Majority’s approach insofar as a determination of whether or not Young indeed took “advantage of his day in court” raises an issue collateral to the case at bar. Further, I do not believe that a decision of this nature can be simply based on a review of the record. Rather, if this Court were to utilize this analysis each time the preclusion of a prior minor conviction occurred, we would need to order a hearing to ascertain whether or not the defendant asserted his/her best defense. A collateral process such as this clearly is unsupported by Hurtt’s holding.

As a practical matter, even if Young’s prior conviction were to be considered admissible, its preclusion by the trial court amounted to harmless error. During trial, Appellants were permitted to introduce evidence of Young’s driving at an unsafe speed. The trial judge aptly points out in his Opinion that the jury was then instructed on all Motor Vehicle Code sections which Appellants claimed Young violated. Driving at an unsafe speed was one of these sections. The trial court further instructed the jurors that if they found that Young violated this section of the Code, they were required to find that Young was negligent as a matter of law. The jury considered the evidence, along with the trial court’s instructions, and apparently decided that the rate of speed at which the car was travelling did not precipitate the accident. Thus, the preclusion of Young’s prior conviction was harmless.

Appellants attempt to circumvent Hurtt by stating that Young’s conviction for homicide by vehicle based on driving at an unsafe speed was admissible since it did not fall within Hurtt’s exception for minor traffic offenses. Homicide by Vehicle is a misdemeanor of the first degree. 75 Pa.C.S.A. § 3732. Appellants concede that it would have been unnecessary for the trial court to instruct the jury that Young had been found guilty of homicide by vehicle. Instead, Appellants argue that it would have been sufficient to instruct the jury that it had been conclusively established in a prior proceeding that Young was operating his vehicle at an unsafe speed and was therefore negligent as a matter of law. The trial court properly assessed the impact of this scheme by noting that the result of permitting plaintiff’s introduction of this evidence “in the instant case would be nothing more than a circuitous method to admit into evidence, as conclusive evidence of negligence, that which comprises a clearly inadmissible summary offense.” Trial Court Opinion, 10/27/86, 6.

Further, recently in Commonwealth v. Heck, 341 Pa.Super. 183, 491 A.2d 212 (1985), we found that the homicide by vehicle section of the Motor Vehicle Code was unconstitutional insofar as it violated due process of law by imposing criminal liability upon a mere showing of ordinary negligence. Id. at 491 A.2d at 221. Consequently, the legitimate connection between the homicide by vehicle conviction and Appellants’ civil action becomes even more tenuous.

Accordingly, I would affirm.

      . Appellants additionally contend that the jury’s finding of no negligence on the part of appellee was against the weight of the evidence, against the law, and contrary to the charge of the court. We need not address these issues, however, since the case is remanded for a new trial.

      . Appellants’ complaint asserted a cause of action not only against appellee Young, but also against Kendall Stitzel and Judith N. Agsten, the alleged owners of the vehicle Young was operating at the time of the accident. These defendants, however, were removed from the case. The trial court entered a compulsory nonsuit in favor of Stitzel and Agsten was dismissed as a defendant by agreement.

      . Appellants do not contend on appeal that the trial court erred by excluding evidence of Young’s conviction for homicide by vehicle. Rather, appellants argue that the trial court erred by excluding only evidence of Young’s conviction for driving at an unsafe speed.

        . We do not reach this conclusion merely because a motor vehicle code violation is involved. A motor vehicle code violation may be either a “major criminal conviction” which is admissible in a subsequent civil trial or a "minor matter" which is not admissible in a subsequent civil trial. See Hurtt, supra. In Cromley v. Gardner, 253 Pa.Super. 467, 385 A.2d 433 (1978) (en banc), this Court stated:
      [T]he Hurtt court was not dealing with a conviction of a motor vehicle code violation. Therefore, it is understandable that no attempt was made to categorize vehicle code violations according to their degree of seriousness. It cannot be contended, however, that all code violations are of equal gravity.

        Id., 253 Pa.Superior Ct. at 472, 385 A.2d at 435. In the instant case, violation of 75 Pa.C.S.A. § 3361, "Driving vehicle at safe speed,” is a "minor matter" since it is a summary offense (75 Pa.C.S.A. § 6502(a)) which is punishable only by a fine of $25 (75 Pa.C.S.A. § 6502(c)) and the imposition of two points against the driver’s record (75 Pa.C.S.A. § 1535(a)).

      . The trial court also found that:
      Even assuming arguendo that the exclusion by the trial judge of defendant’s prior convictions was erroneous, such error was not reversible error. The mere exclusion of evidence is not grounds for a new trial where evidence of the same fact was introduced by the party requesting a new trial.
      The trial judge, at the request of plaintiffs, instructed the jury on all Motor Vehicle Code sections which the plaintiffs claimed the defendant violated when the accident occurred, and with respect to which evidence was presented.

        Trial court opinion at 6-7 (citations omitted).
      We, however, find that the trial judge’s exclusion of evidence of appellee Young’s prior conviction was reversible error. In Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973), this Court stated: ‘‘[T]he exclusion of evidence may not be grounds for a new trial where said evidence would not have affected the verdict or where other evidence of the same fact was introduced by the party applying for the new trial.” Id., 226 Pa.Superior Ct. at 386, 313 A.2d at 756. Evidence of Young’s prior conviction would have affected the jury’s verdict since it is conclusive evidence of Young's negligence. See our discussion infra. In addition, evidence of the same fact, i.e., Young’s prior conviction for driving at an unsafe speed, was not introduced by appellants. Rather, the trial judge merely instructed the jury on the motor vehicle code section which appellants claimed Young had violated.

        . Our Supreme Court explained in Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983), that:
      A finding of negligence per se does no more than satisfy plaintiffs burden of establishing that a defendant’s conduct was negligent.

        See Section 288 B of the Restatement of Torts Second; Prosser, Torts Ch. 5 § 36 pp. 200-201 (4th ed. 1971). However, the burden remains upon plaintiff to establish that his complained of injuries were proximately caused by the statutory violations. Kaplan v. Kaplan 404 Pa. 147, 171 A.2d 166 (1961).

        Id., 504 Pa. at 163 n. 4, 470 A.2d at 518 n. 4.


author: TAMILIA, Judge: ROWLEY, Judge,

text:
    533 A.2d 1039
    COMMONWEALTH of Pennsylvania v. Lavonne PHILLIPS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 18, 1987.
    Filed Oct. 14, 1987.
    Reargument Denied Dec. 7, 1987.

      Bernard T. McArdle, Greensburg, for appellant.
    John W. Peck, II, Assistant District Attorney, Arnold, for Com., appellee.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after a jury convicted appellant of robbery and theft. The charges arose from the robbery of a Hardees restaurant on August 10, 1985. A sentence of thirty six (36) to seventy-two (72) months imprisonment was imposed. This timely appeal followed the denial of appellant’s motion to modify sentence.

Appellant’s only contention on appeal is that the court abused its discretion in sentencing appellant outside of the sentencing guidelines without adequately stating its reasons for doing so. The issue raised by appellant challenges the discretionary aspects of the sentence rather than the legality of the sentence and thus the appeal must be perfected as explained in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987).

In Tuladziecki, the Supreme Court noted that 42 Pa.C. S.A. § 9781(b) provides for the filing of a petition for allowance of appeal of the discretionary aspects of sentencing. The procedural rules are then set forth indicating that Pa.R.A.P. 902 provides for the notice of appeal to operate as the petition for allowance required under the statute. Pa.R.A.P. 2116(b) and Pa.R.A.P. 2119(f) are also discussed with the language of Rule 2119(f) establishing the further action required.

Pa.R.A.P. 2119(f) provides:
(f) An appellant who challenges the discretionary aspects of a sentence in a criminal matter shall set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. The statement shall immediately precede the argument on the merits with respect to the discretionary aspects of sentence.

Commonwealth v. Thomas, 363 Pa.Super. 348, 354, 526 A.2d 380, 382-83 (1987).

Also, as we stated in Commonwealth v. Muller, 364 Pa.Super. 346, 528 A.2d 191 (1987):

Notice of appeal under Pa.R.A.P. 902 operates as a ‘petition for allowance of appeal’ which is required by 42 Pa.C.S. § 9781(b). The briefing stage must then deal with the appropriateness of the appeal. (Comments to Rule 902). There the question of appropriateness is handled in the usual manner, first by alleging any question relating to the discretionary aspect of the appeal in the ‘statement of question involved’ required by Pa.R.A.P. 2116(a) and (b).

Id., 36 Pa.Superior Ct. at 349, 528 A.2d at 192.

In the case sub judice, appellant did adequately set forth his issue in the statement of questions involved by stating:

Did the lower court abuse its discretion in sentencing the appellant to a term of incarceration in excess of the sentencing guidelines without expressing permissible and sufficient reasons to warrant imposing a sentence outside the guidelines.

(Appellant’s brief at 3.)

However, “next in the sequence, prior to argument on the merits, see Pa.R.A.P. 2119(f), there must be a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of the sentence before going to the merits.” Muller at 351, 528 A.2d at 193. It is in this respect that appellant’s petition for allowance of appeal is deficient. Nowhere prior to his argument on the merits has appellant set forth a statement of reasons in support of his petition for allowance of appeal.

Despite this inadequacy, the procedural requirement of a separate section reciting the reasons relied upon for allowance of appeal has been waived in the instant action as the Commonwealth has failed to object to appellant’s noncompliance with rule 2119(f). Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987); Commonwealth v. Rumbaugh, 365 Pa.Super. 388, 529 A.2d 1112 (1987).

Therefore, since appellant has raised a substantial question that his sentence was not proper under the sentencing guidelines and since the Commonwealth has waived the procedural requirement of a separate statement, we will address the merits of the case.

Appellant argues the trial court relied upon two impermissible considerations in imposing a sentence which was outside the guidelines: (1) the court should not have considered a conviction appellant had in another case because the crime upon which the conviction was based occurred after the offense in this case; (2) the court should not have considered his testimony false simply because he offered the same alibi in the present case as in the other case in which appellant was convicted, and the court’s reliance on testimony which was not part of the record in this case, to support its conclusion of false testimony, was improper.

The trial court explained that one reason it sentenced appellant outside the sentencing guidelines was because of a “fluke” in the guidelines, appellant was convicted and sentenced for two robberies yet was able to claim a zero prior record score at each sentencing.

At No. 1700 C 1985 the defendant was tried and convicted on March 4, 1986, for the September 4, 1985, robbery of a state liquor store in Arnold. On May 9, 1986, he was sentenced to 21k to 5 years incarceration for this crime. After hearing the defendant’s petition to modify sentence, his sentence was reduced to 12 to 36 months incarceration on July 18, 1986. Meanwhile, the defendant had also been charged at the present number with the August 10, 1985, robbery of Hardee’s Restaurant in New Kensington. As at No. 1700, the jury returned a verdict of guilty, this time on May 7, 1986. The sentence, which is the subject of this appeal, as previously noted, was imposed August 19, 1986. When defendant appeared for sentencing at No. 1700 on May 9, 1986, he was afforded a prior record score of zero, for although he had been recently convicted at No. 1849, he had not yet been sentenced. Section 303.7(g) of the sentencing guidelines provides that a defendant must be convicted and sentenced before an offense will be counted against him as part of his prior record score. When the defendant appeared for sentencing on August 19, 1986, for his conviction at No. 1849, Section 303.7(g) again mandated a zero prior record score since the crime on which he had already been sentenced at No. 1700 occurred (September 4, 1985) after the current offense (August 10, 1985). Had the order of the sentencing dates been reversed, the defendant would have had a prior record score of three instead of zero.

(Slip Op., Ackerman, J., 8/6/86, pp. 1-2.)

We find the trial judge acted properly in taking appellant’s other criminal conviction into account where it was not provided for in the sentencing guidelines. There was no error in considering a conviction for an offense committed subsequent to the one at issue. Commonwealth v. Johnson, 333 Pa.Super. 42, 481 A.2d 1212 (1984). As we have determined that a subsequent conviction which was not accounted for in the guidelines was a sufficient reason to warrant the trial court’s decision to deviate from the guidelines, it is not necessary to address appellant’s remaining contention.

Accordingly, the Order of the court below is affirmed.

Order affirmed.

ROWLEY, J., concurs and dissents with statement.

ROWLEY, Judge,

concurring and dissenting:

I join in the majority’s discussion of the procedural problems in this case and in the majority’s conclusion that the procedural requirement of Pa.R.A.P. 2119(f) has been waived. I also agree with the majority’s discussion of the merits of the issue concerning the trial court’s consideration of appellant’s other criminal conviction. However, I respectfully dissent from the majority’s conclusion that because there was a sufficient reason to warrant the trial court’s decision to deviate from the guidelines, we need not consider appellant’s second argument as to why the trial court erred in deviating from the guidelines.

Our Supreme Court has held that “a sentence based in part on an impermissible consideration is not made proper simply because the sentencing judge considers' other permissible factor as well.” Commonwealth v. Bethea, 474 Pa. 571, 579-580, 379 A.2d 102, 106 (1977). Rather, the appropriate inquiry in such a case is not whether the court considered legitimate factors in imposing sentence, but whether the court considered only such factors. See also: Commonwealth v. Chase, 365 Pa.Super. 572, 530 A.2d 458 (1987). Therefore, before affirming the judgment of sentence on the basis that there was a legitimate reason for imposing the sentence outside the guidelines, I think the Court should determine whether any of the reasons for deviating from the sentencing guidelines was improper.

Appellant’s second argument as to why the trial court erred in sentencing outside the guidelines is that the trial court’s conclusion that appellant’s testimony was willfully false was based on facts outside the record. The trial court concluded that appellant’s testimony was false because, as presiding judge at both of appellant’s trials, the trial court knew that appellant had provided the same unsubstantiated alibi in both cases. When the trial court explained in its opinion this reason for sentencing appellant outside the record, the trial court attached to its opinion a copy of the transcript of the prior trial and stated that it was to be made a part of the record in this case. The court’s sua sponte reopening of the record to admit something without the knowledge of either party and without providing either party an opportunity to object was improper and therefore did not in fact make the transcript from the prior trial part of the record in this case. Thus the court’s consideration of the testimony from the prior trial to support the imposition of a sentence outside the guidelines in this case was impermissible.

Although there may be adequate and proper reasons to support the sentence imposed by the trial court, I cannot determine that the trial court would have imposed the same sentence had it not considered appellant’s testimony to have been false. Therefore, I would vacate the judgment of sentence and remand for resentencing.

      . 18 Pa.C.S.A. § 3701(a)(1)(ii).

      . 18 Pa.C.S.A. § 3921(a).

      . This sentence was ordered to be served consecutive to a sentence appellant was currently serving at 1700 C. 1985.


author: PER CURIAM:

text:
    533 A.2d 1042
    COMMONWEALTH of Pennsylvania, Appellee, v. Glenn A. MORRIS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 18, 1987.
    Filed Oct. 19, 1987.
    Reargument Denied Dec. 9, 1987.

      Gregory Cecchetti, Assistant Public Defender, Lower Burrell, for appellant.
    Before ROWLEY, JOHNSON and MONTGOMERY, JJ.
   PER CURIAM:

Appellant was convicted of third degree murder at the conclusion of a jury trial. Following the denial of post-verdict motions, appellant was sentenced to eight to sixteen years imprisonment. This direct appeal was then timely taken. Appellant raises six issues which primarily concern the denial of his motion to suppress evidence seized from his residence pursuant to two search warrants issued by different magistrates. For the reasons which follow, we affirm the judgment of sentence.

Appellant was arrested on March 18, 1985 and charged with criminal homicide in connection with the death of Roy Calvin Backes. The following day, Trooper Nusser of the Pennsylvania State police obtained a search warrant from District Justice Shirley Miller. In applying for this warrant, Trooper Nusser verbally related certain facts to the Magistrate. These facts, as summarized by the suppression court, were:

... that a Mr. Layman had advised [Trooper Nusser] that he had driven [appellant] and the victim in the early morning hours of March 18 to the place where the body was discovered; that a heated argument had taken place between [appellant] and the victim in the car; and that [appellant] had made threats of violence toward the victim. Office [sic] Nusser had also advised the magistrate that the [appellant] had told him that he was wearing a brown shirt or sweater earlier in the morning.

After hearing the recitation of these facts, which would clearly support a determination of probable cause, the magistrate instructed Trooper Nusser to reduce the information to a written affidavit. With the assistance of the magistrate’s secretary, the affidavit was typed. However, none of the above facts were included in the affidavit of probable cause.

When the completed application for the search warrant was presented to her, the magistrate merely glanced at it before signing it. With the magistrate’s certification of probable cause, Trooper Nusser proceeded to execute a search of appellant’s residence.

While conducting this search, other items which were thought to be connected to the case were observed. Trooper Nusser promptly sought a second search warrant to seize this additional evidence. The second warrant was issued by District Justice Jeane C. Anderson. The affidavit of the second warrant set forth, inter alia, that while conducting a lawful search of appellant’s residence, a pair of blue jeans and a pair of brown cowboy boots, both of which were stained with blood, were discovered. Magistrate Anderson then issued the warrant.

With the second warrant in hand, the trooper resumed the search of appellant’s residence. The brown shirt, the subject of the first warrant, as well as the jeans and boots were seized. Appellant filed a motion to suppress this evidence, arguing the lack of sufficient probable cause to support the issuance of the warrants. At the suppression hearing, the Commonwealth agreed with appellant’s argument and conceded that both search warrants were invalid. However, the Commonwealth maintained, as it does now, that the case falls within the good faith exception to the exclusionary rule, first announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), and recently recognized by this court in Commonwealth v. Melilli, 361 Pa.Super. 429, 522 A.2d 1107 (1987). Over appellant’s objection, the suppression court then permitted the Commonwealth to present testimony to establish the good faith of Trooper Nusser with respect to obtaining and relying on the search warrants.

At the conclusion of the hearing, the court denied appellant’s suppression motion. The court reasoned that Trooper Nusser, in good faith, relied upon the warrants which were issued by two different magistrates. In reaching its result, the court considered the fact that Trooper Nusser travelled to appellant’s house so as to obtain a description of the dwelling to be included in the application for the warrant and that Trooper Nusser verbally informed Magistrate Miller of the facts linking appellant to the crime. The trial court found that Trooper Nusser did not enter appellant’s residence until after having received a certification of probable cause in the search warrant. The trial court found further evidence of Trooper Nusser’s good faith in that he “did not rush to seized the boots or other clothing in plain view with blood, but rather, he immediately proceeded to contact a second detached and neutral magistrate for the purpose of determining the proper course to protect the accused and properly proceed with his investigation.” The trial court agreed with the Commonwealth’s proposition that it was the magistrate, and not the state trooper, who made the critical mistake. Thus, the trial court concluded that suppression of the physical evidence in this case would not further the deterrent effect of the exclusionary rule since that particular course of conduct would punish the police for the magistrate’s error. After reviewing the record before us, we agree with the trial court’s analysis and therefore affirm the judgment of sentence.

Only recently, this court adopted the Leon good faith exception to the exclusionary rule in Commonwealth v. Melilli, supra. There we held that each of three prerequisites must be satisfied if the good faith exception is to be applicable in a given situation. The exception will apply to situations in which the law enforcement officials have acted (1) in good faith; (2) in reasonable reliance upon a procedure expressly sanctioned by existing judicial decisions; and (3) pursuant to authorization obtained from a neutral magistrate. Commonwealth v. Melilli, supra, 361 Pa.Superior Ct. at 440, 522 A.2d at 1112. Our inquiry of good faith, however, turns upon the reasoning of the Leon court.

In Leon, supra, the issue facing the Court was whether the exclusionary rule should be modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a neutral and detached magistrate, but ultimately found to be unsupported by probable cause. In resolving the issue, the Court considered the often competing goals of, on the one hand, deterring official misconduct and, on the other, establishing procedures under which criminal defendants are acquitted or convicted on the basis of all the evidence which exposes the truth. United States v. Leon, supra. 468 U.S. at 900-901, 104 S.Ct. at 3409.

After an exhaustive review of its origins, the Court concluded the exclusionary rule was created to deter police misconduct. With the purpose of the exclusionary rule in mind, the Court reasoned

... where the officer’s conduct is objectively reasonable, “excluding the evidence will not further the ends of the exclusionary rule in any appreciable way____” [Further,] [penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterence of Fourth Amendment violations.

Id. at 919-920, 104 S.Ct. at 3419.

The Leon Court noted that “[i]n the ordinary case, an officer cannot be expected to question the magistrate’s probable-cause determination or his judgment that the form of the warrant is technically sufficient.” Id. at 921, 104 S.Ct. at 3419. This statement cannot be more applicable to the instant case. Trooper Nusser proceeded to Magistrate Miller’s office after he observed appellant’s residence, and informed the magistrate of the facts at his disposal. Magistrate Miller indicated that the information would be sufficient to support a determination of probable cause and asked Trooper Nusser to complete a written affidavit. With the assistance of the magistrate’s secretary, the search warrant application, including the affidavit, was typed. When given to the magistrate for review, Magistrate Miller merely glanced at the words on the application before certifying that there was probable cause to search appellant’s residence. Had the magistrate read the application more carefully, it would have been obvious that there was insufficient information in the affidavit to support a determination of probable cause. However, once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Id.

We conclude, therefore, that Trooper Nusser’s conduct in relying upon the magistrate’s certification of probable cause in issuing the first warrant was entirely reasonable and fully comports with Leon and Melilli Thus, the lower court was correct in applying the good faith exception in the instant case.

Judgment of sentence affirmed.

      . The facts which were related to Magistrate Miller, as well as the information pertaining to the issuance of the search warrants and their subsequent execution were brought forth during a hearing which occurred after the initial suppression hearing. The purpose of this hearing was to permit the Commonwealth an opportunity to present evidence of Trooper Nusser’s good faith. The circumstances giving rise to the occurrence of this hearing are set forth more completely infra.

      . Appellant asserts that Pa.R.Crim.P. 2003(b) was violated when the court permitted this testimony. Commonly referred to as the four corners rule, Rule 2003(b) prohibits a court from considering evidence other than the affidavit to establish probable cause to support the search warrant. See, Commonwealth v. Milliken, 450 Pa. 310, 300 A.2d 78 (1973); Commonwealth v. Crawley, 209 Pa.Super. 70, 223 A.2d 885 (1966), aff'd per curiam, 432 Pa. 627, 247 A.2d 226 (1968). We disagree. The hearing was to establish the good faith of the law enforcement personnel, and occurred after the Commonwealth conceded the validity of the warrants. The testimony was not received, as appellant contends, to establish probable cause.

      . The Court was careful to caution that deference to the magistrate is not, however, boundless. Id. at 914, 104 S.Ct. at 4316.

      . Our analysis leads us to a similar conclusion with respect to the second search warrant, which was issued by Magistrate Anderson.


author: TAMILIA, Judge: CIRILLO, President Judge,

text:
    533 A.2d 1045
    CROZER-CHESTER MEDICAL CENTER and Reproductive Health and Counseling Center v. Robert E. MORAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 26, 1987.
    Filed Nov. 16, 1987.

      Eugene Hamill, Glenolden, for appellant.
    Donald T. Petrosa, Media, for Crozer-Chester, appellee.
    Donald A. Browns, Media, for Reproductive Health, appellee.
    Before CIRILLO, President Judge, and TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

This appeal is from an Order requiring appellant, Robert Moran, to pay a fine for contempt of court or in the alternative to be committed to a specific jail term. The sole issue before us is whether the Order in question should be interpreted as imposing penalties for civil or criminal contempt. We conclude the penalties imposed were in the nature of civil, not criminal, contempt.

To reach the conclusion that the contempt Order in question is civil rather than criminal, the June 26, 1986 Order of the lower court, requiring appellant to either make immediate payment of a $1,500 fine or face forty-five days incarceration, cannot be read in isolation from the prior and ongoing proceedings in this action. Had this been an initial hearing, and Order standing alone, the provision of the Order providing for either a fine or jail would sound in criminal contempt. We must look, however, to the February 6, 1986 Order of the lower court wherein appellant was found to be in violation of the original injunction and was adjudicated to be in civil contempt. That adjudication is as follows.

ADJUDICATION OF CIVIL CONTEMPT
And now, this 6 day of February, 1986, after Defendant, Robert E. Moran, knowingly, intelligently and voluntarily, waived his right to an evidentiary hearing upon the Attachment and Citation of Contempt entered by this Court against Robert E. Moran, it is hereby:
ADJUDGED and DECREED that the Defendant, Robert E. Moran, is in civil contempt of this Court by reason of his going onto the property of Plaintiffs and otherwise acting in a manner violative of the Court’s Decree nisi entered February 10,1984, and final Decree entered November 9,1984; the conduct of the Defendant, Robert E. Moran, has willfully violated the terms and conditions of the decrees of this Court on December 7, 1985, and it is therefore hereby:
ORDERED:
1. That an [sic] conditional fine of $1500.00 be imposed upon the Defendant, Robert E. Moran; however, the Defendant may purge himself of the contempt and avoid the necessity of paying the fine by staying off the private property of Crozer-Chester Medical Center and Reproductive Health and Counseling Center in accordance with the Court’s decrees referred to above, so long as the decrees remain in effect;
2. Should sufficient evidence be brought before the Court that the Defendant, Robert E. Moran, has entered onto the private property of the Plaintiffs subsequent to the date of this Order, in violation of this Court’s decrees, the Court will order immediate payment of the above fine and in default thereof, the Defendant, Robert E. Moran, will be sentenced to 45 days in the Delaware County Prison;
3. Said future violation, or any other future violation may also be the basis for a new Petition for Contempt;
4. The Court hereby finds, based upon the Stipulation of the Defendant, Robert E. Moran, that the said Defendant has the financial ability to pay the fine hereby imposed by this Order;
5. This Order shall remain in effect until further Order of this Court. (Emphasis added.)

A review of the Order shows a conditional fine of $1,500 was imposed, and in default thereof, incarceration for forty-five (45) days. Additionally, the Order contained a purging condition whereby appellant could avoid any sanctions by abiding by the terms of the injunction.

This Court, by Per Curiam Order in Crozer-Chester Medical Center v. Moran (J-84028/86, filed February 13, 1987), has already found the February 6, 1986 Order to be in the nature of civil contempt. As this appeal is from the June 26, 1986 Order which resulted after appellant violated the February 6, 1986 civil contempt Order, we can not now, in effect, reverse ourselves and find appellant is entitled to a criminal contempt jury trial. Our discussion in that earlier memorandum is applicable here.

In the case of In Re B, 482 Pa. 471, 394 A.2d 419 (1978), the Pennsylvania Supreme Court made clear the principles governing this case:
The distinction between criminal and civil contempt is ... a distinction between two permissible judicial responses to contumacious behavior.
These judicial responses are classified according to the dominant purpose of the court. [Quoting In Re Martorano, 464 Pa. 66, 77, 346 A.2d 22, 27-28 (1975).]
As we said in Commonwealth v. Charlett, [481] Pa. [22], 391 A.2d 1296 (1978), quoting from Woods v. Dunlop, supra, 461 Pa. [35] at 40, n. 2, 334 A.2d at [619] 622, n. 2 [1975]:
Discovery of the Court’s dominant purpose requires a functional analysis of the court’s action____ Basically, the reviewing court must decide whether the citing court’s purpose was to ‘vindicate the dignity and authority of the court and to protect the interest of the general public.’ Such citation is for criminal contempt. If the citation’s purpose is to coerce the contemnor into compliance with the order of the court to do or refrain from doing some act primarily for the benefit of a litigant or a private interest the citation is for civil contempt. (Citations omitted.)
Id., 482 Pa. at [476], 394 A.2d at 421.
The evidence indicated that appellant entered upon the property of appellees intending to be disruptive of appellees’ activities. The court was attempting to coerce the appellant to refrain from acts interfering with the private rights of others. This is in the nature of civil contempt. Appellant’s actions were in direct contravention of the terms of the injunction and, therefore, we hold that the lower court did not abuse its discretion in sanctioning appellant.
Appellant is provided the opportunity to purge himself of his contempt by refraining from engaging in the activities prohibited.

Crozer-Chester Medical, supra at 5-6.

The June 26, 1986 Order appealed from, in its entirety, provides as follows:

ORDER
AND NOW this 26th day of June, 1986 after hearing in Open Court, it is ADJUDGED and DECREED as follows:
1. By entering the private property of plaintiffs on April 29, 1986 defendant Moran has violated the Courts prior decrees, and pursuant to the Adjudication of Civil Contempt Order, of February 6,1986, defendant Moran is ORDERED to make immediate payment of the fine of $1,500.00 by 4:00 P.M. this afternoon. If that fine is not paid, defendant is hereby SENTENCED to a term of imprisonment in the County Jail for a term of forty-five days. He is COMMITTED to the custody of the Sheriff pending payment of the fine or for transportation to the jail. The fine, if paid, is payable to the County of Delaware.
2. By entering the private property of the plaintiffs on May 2, 1986, May 10, 1986, and May 12, 1986, and acting in a manner violative of the Courts prior Decree Nisi and Final Decree, the defendant Moran, has committed Civil Contempt of this Court, and is therefore ADJUDICATED and DECREED as being in Civil Contempt of this Court, and it is therefore ORDERED:
1. That a conditional fine of $1,500.00 for each of the three violations, a total of $4,500.00, is hereby IMPOSED upon defendant Moran. However he may purge himself of that contempt, for those individual instances, and avoid payment of the fines, by staying off the property of the Medical Center and the R.H.C.C. in accordance with the Courts decrees referred to, so long as those decrees remain in effect. Said fines, if payable, shall be payable one half to the County of Delaware and one half to the Borough of Upland.
2. If sufficient evidence is entered and brought before this Court, that the defendant has entered the property again, subsequent to the date of this Order, the Court will ORDER immediate payment of those fines and, in default thereof, defendant will be SENTENCED to a term of ninety days in the County Jail.
Future violations, if any, may also be the basis for a new petition or petitions for contempt. And, if further petitions are required, or are filed, the Court will then entertain a request, at that time, for any counsel fees and costs incurred by the plaintiffs for those petitions. For this proceeding each party will pay its own counsel fees and costs.
This Order shall remain in effect until further Order of this Court. (Emphasis added).

The portion of the Order directing either the payment of the $1,500 fine or imprisonment was merely the imposition of the previously determined penalty for contempt as appellant had violated the condition by engaging in the prohibited activities. This was not a new penalty or a penalty for past actions, but rather enforcement of an earlier adjudication of contempt which was triggered when appellant violated the purging condition by going upon the prohibited property.

No other reasonable means is available to the court to maintain the peace and to protect persons in the free enjoyment and use of their property guaranteed by the constitution, federal and state, against persistent and chronic harassment. To require new and additional trials on already adjudicated violations, is a wasteful and improper use of judicial resources.

Appellant argues that since he could not purge himself of the fine for contempt, he was subject to a criminal contempt penalty. He misses the point by construing the fine as the purge to avoid jail. The fine, in fact, is an alternative to jail because the contemnor failed to purge himself of the contempt by avoiding the prohibited acts. Were we to follow appellant’s reasoning, a civil contempt Order could only be enforced via a criminal contempt Order which would necessitate a jury trial. It would take little imagination on the part of activists such as these to force every case to a criminal type jury trial by assuring that the protesters manning the front line were impecunious and, therefore, unable to pay the fine. If the civil contempt Order is to have any meaning whatsoever, enforcement must be possible. The fine or term of imprisonment appellant now faces was imposed conditionally. Appellant could have avoided the penalties if he had abided by the terms of the injunction. Appellant’s approach would require no less than three trials in any civil contempt action: the first to establish the existence of the prohibited behavior and to establish sanctions; a second to determine if the behavior continued and the sanctions could be imposed; .and a third, criminal in nature, which would determine before a jury, if requested, whether sanctions could be imposed and then only in the amount of $100 or fifteen days in jail. Such a holding in this type of case emasculates the concept of civil contempt, embroils the court and the victims in the endless litigation fostered by the contemnors and achieves the result they desire — disruption of the program under attack and constant media coverage. No matter how worthy the cause, the orderly conduct of society, pursuant to the rule of law, cannot be sacrificed in that fashion. Since appellant failed to purge himself of the contempt, the previously imposed sanctions may now be enforced.

We find appellant is not entitled to a jury trial on the contempt proceedings as they were civil in nature. The Order from which appellant appeals is simply an Order enforcing a previously entered civil contempt finding.

Order affirmed.

CIRILLO, President Judge, dissents.

CIRILLO, President Judge,

dissenting:

I respectfully dissent.

The portion of the order appealed from, which was dated June 26, 1986, required appellant Moran

to make immediate payment of the fine of $1,500.00 by 4:00 p.m. this afternoon. If that fine is not paid, defendant [Moran] is hereby SENTENCED to a term of imprisonment in the County jail for a term of forty-five days. He is COMMITTED to the custody of the Sheriff pending payment of the fine or for transportation to the jail.

The two reasons given for the above penalty were Moran’s violation of prior decrees prohibiting him from entering the private property of appellees as well as violation of a contempt order issued in February of 1986. The February order also imposed a $1,500 fine; however, that fine was conditional upon Moran’s compliance with prior decrees barring him from the private property of Crozer-Chester Medical Center (CCMC) and Reproductive Health and Counseling Center (RHCC). The fine imposed in that portion of the June order now appealed from is not conditional. Therein lies the focus of our review. The categorization and characterization of a contempt order as conditional or unconditional plays a critical role in our determination of whether Moran was subject to civil contempt or criminal contempt.

CCMC and RHCC argue that the portion of the order appealed from which imposed an unconditional fine was in the nature of a civil contempt penalty. Moran, however, argues that by not placing conditions on payment of the fine, he was subject to penalties for criminal contempt and, therefore, the requirements of 42 Pa.C.S. § 4136 apply. I agree, and for that reason dissent.

Section 4136 provides that if a person is charged with indirect criminal contempt for a violation of an injunction issued by a court, he shall enjoy among other rights, the right to a speedy and public trial by an impartial jury. As we mentioned earlier, one of the reasons that Moran was held in contempt was due to his violation of a court decree enjoining him from appellees’ private property. Section 4136 also limits penalties for indirect criminal contempt to $100 or 15 days in jail. Various exceptions, inapposite here, are made for direct criminal contempt, which involves contumacious acts committed in the presence of the court.

The Pennsylvania Supreme Court has comprehensively explained the difference between civil and criminal contempt in the case of In re Martorano, 464 Pa. 66, 346 A.2d 22 (1975). The supreme court held in Martorano that there is nothing inherent in a particular act which classifies it as civil or criminal contempt. Rather, the distinction between civil and criminal contempt is determined by the dominant purpose of the judicial response to contumacious behavior. Id., 464 Pa. at 77-78, 346 A.2d at 27-28. If the dominant purpose of the court is to prospectively coerce the contemnor to comply with an order of the court, the contempt is civil. If, however, “the dominant purpose of the court is to punish the contemnor for disobedience of the court’s order ..., the adjudication of contempt is criminal.” Id., 464 Pa. at 78, 346 A.2d at 28.

When the court’s dominant purpose is to coerce, the appropriate civil contempt penalty is “a conditional or indeterminate sentence of which the contemnor may relieve himself by obeying the court’s order, while a criminal adjudication of contempt punishes with a certain term of imprisonment or a fine which the contemnor is powerless to escape by compliance.” Id., 464 Pa. at 79, 346 A.2d at 28 (citing Shillitani v. United States, 384 U.S. 364, 368-70, 86 S.Ct. 1531, 1534-35, 16 L.Ed.2d 622 (1966)). The Martorano court then noted that the distinction between civil and criminal contempt exists solely to determine what procedural rights the contemnor has and what penalties are available for the court to impose. The court found that “a contemnor who will be sentenced to a determinate term of imprisonment or a fixed fine, which he is powerless to escape by purging himself of his contempt, is entitled to the essential procedural safeguards that attend criminal proceedings generally.” Martorano, 464 Pa. at 80, 346 A.2d at 29.

Cases decided subsequent to Martorano have considered the dichotomy between civil and criminal contempt. In Bruzzi v. Bruzzi, 332 Pa.Super. 346, 481 A.2d 648 (1984), we ruled that the label of civil contempt was inappropriate where, as here, the court was punishing the contemnor for past acts of misbehavior as opposed to conditioning punitive measures on failure to comply with court orders. Id., 332 Pa.Superior Ct. at 353, 481 A.2d at 651. We recognized that a distinguishing characteristic of a civil contempt order is that, due to its coercive nature, the contemnor holds “the key to the jailhouse door,” through which he may exit if he complies with the conditions of the order. Id., 332 Pa.Superior Ct. at 353, 481 A.2d at 652.

We did not accept in Bruzzi the argument that a contempt order should be described as civil because the court’s dominant purpose allegedly was to coerce compliance with an earlier custody order. We reasoned that the incarceration imposed in that case would not have been affected by the appellant’s strict compliance in the future with the terms of the custody order, and, therefore, the unconditional penalty for contempt was criminal in nature. Id., 332 Pa.Superior Ct. at 354 n. 5, 481 A.2d at 652 n. 5. That same reasoning applied to the appeal before us would also lead us to categorize the unconditional fine imposed on Moran as criminal in nature because it could not be purged by his future compliance with the court’s order. Moran was given no key to the jailhouse door.

The reasoning in Bruzzi seems to be at odds with the earlier case of Rouse Philadelphia Inc. v. Ad Hoc '78, 274 Pa.Super. 54, 417 A.2d 1248 (1979). In that case, we held that a fine of $5,000, payable to the City of Philadelphia within six months, was properly described as a penalty for civil contempt. The Rouse case involved the failure to comply with a prior court order prohibiting appellant and his many cohorts from picketing and preventing ingress and egress from the stores in a downtown shopping mall. The court in Rouse did not cite authority to support its reasoning that an unconditional fine could be an appropriate penalty for civil contempt. Rouse, 274 Pa.Super. at 72-73, 417 A.2d at 1258-59. The Rouse Court did not attempt to reconcile its reasoning on this point with the well-settled principles expressed in Martorano.

Rouse, however, may be explained and distinguished based on the particular facts involved in that case. A panel of this court in Rouse was preoccupied with the cost of more than $1,400,000 which the City of Philadelphia incurred in attempting to ensure compliance with the court’s order by appellant and his numerous fellow demonstrators. This amount included $400,000 in overtime for police and sheriff’s deputies. Id., 274 Pa.Superior Ct. at 73, 417 A.2d at 1258. Rouse should be confined to its extraordinary facts. Bruzzi is consistent with the comprehensive treatment of this issue by the Pennsylvania Supreme Court in Martorano, and its progeny, see, e.g., In Re B, 482 Pa. 471, 477, 394 A.2d 419, 421 (1978) (penalty for contempt was criminal in nature where appellant was powerless to purge himself of contempt by compliance with court’s order); Barrett v. Barrett, 470 Pa. 253, 262, 368 A.2d 616, 620 (1977) (crucial question to determine civil contempt is whether one has present ability to comply with conditions set by court to purge himself of contempt) and should be followed here.

In Schnabel Assoc., Inc. v. Building and Constr. Trades Council, 338 Pa.Super. 376, 487 A.2d 1327 (1985) this court listed five factors whose presence often indicate civil contempt. Civil contempt is likely to be found: (1) where the complainant is a private person as opposed to the government; (2) where the proceeding is a continuation of an original injunction as opposed to a separate and independent action; (3) where holding the defendant in contempt provides relief to a private party; (4) where the complainant primarily benefits from the relief requested; and (5) “where the acts of contempt complained of are primarily civil in character and do not of themselves constitute crimes or conduct by the defendant so contumelious that the court is impelled to act on its own motion.” Id., 338 Pa.Superior Ct. at 386, 487 A.2d at 1332-1333 (quoting Knaus v. Knaus, 387 Pa. 370, 378, 127 A.2d 669, 673 (1956)). The existence of these factors, however, is not dispositive of the issue. Rather, we must recognize that “ ‘even where the same facts might give rise to criminal as well as civil contempt, each has its own distinct procedures and confers distinct procedural rights; the two may not be casually commingled.’ ” Id. 338 Pa.Super at 386, 487 A.2d at 1333 (quoting Barrett v. Barrett, 470 Pa. 253, 260, 368 A.2d 616, 619 (1977)).

Further, the Schnabel court emphasized that the prohibition against obfuscating the distinction between civil and criminal contempt seeks to prevent the imposition of criminal contempt penalties without affording criminal procedural rights and safeguards. Id. 338 Pa.Super. at 390, 487 A.2d at 1335. In the appeal before us, even though it may be argued that the same facts might initially have given rise to either criminal or civil contempt, we should be meticulous in enforcing the different rights that attend the separate categorization of the two proceedings.

The authority that I have analyzed firmly supports my conclusion. An unconditional fine was imposed on Moran of which he was unable to purge himself by compliance with the court’s order. Where, as here, the dominant purpose of the trial court is to impose an unconditional punishment for past misbehavior, the appropriate label is criminal contempt and one must be afforded the rights that attend criminal proceedings generally. Therefore, because Moran was not afforded the rights that must attend a criminal contempt proceeding, I would reverse and remand.

      . Moran does not contest a second conditional fine imposed in the same order from which he now appeals. He concedes that the imposition of such a conditional fine is the appropriate form of penalty for civil contempt.


text:
    533 A.2d 1051
    COMMONWEALTH of Pennsylvania, Appellee, v. Eric WALLACE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 22, 1986.
    Filed Nov. 25, 1987.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CAVANAUGH, MONTEMURO and KELLY, JJ.
   CAVANAUGH, Judge:

Appellant entered a plea of nolo contendere to charges of robbery and criminal conspiracy. While admitting his involvement in the street robbery, appellant denied using a knife in perpetration of the crime as claimed by the complainant at the plea hearing. The court found that appellant had in fact used a knife during the robbery, and accordingly added the deadly weapon enhancement to the minimum ranges. Appellant was sentenced to two concurrent terms of two to ten years imprisonment. Following denial of his petition for reconsideration of sentence, appellant filed the instant appeal.

The sole issue raised on appeal is a constitutional challenge to the deadly weapon enhancement provision. This provision mandates augmented sentencing ranges when the accused possesses a deadly weapon during the commission of an offense. It is appellant’s position that the terms “possession” and “deadly weapon” are impermissibly vague. Appellant also claims that the deadly weapon enhancement provision is overbroad and violative of substantive due process because of the lack of a nexus between the particular behavior sought to be prevented, and the wide range of behavior actually proscribed by the wording of the provision.

Appellant’s argument rests solely on this court’s en banc decision in Commonwealth v. Taylor, 346 Pa.Super. 599, 500 A.2d 110 (1985), aff'd., per curiam 516 Pa. 21, 531 A.2d 1111 (1987). However, the view of the deadly weapon enhancement provision as unconstitutionally vague and overbroad was adopted by only three of the nine judges on the panel, and did not command a majority of the court; it is therefore not binding in the case at bar.

In a recent decision in Commonwealth v. McKeithan, 350 Pa.Super. 160, 504 A.2d 294 (1986), we declined to follow the holding in Taylor. Instead, in considering appellant’s facial attack on the vagueness of the statute, and absent a claim of infringement of First Amendment freedoms, it was held that the specificity of the statute is to be measured against the actual conduct in which the appellant engaged. Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245 (1976).

The terms which appellant challenges as vague are “possession” and “deadly weapon”. There is no assertion by appellant that his First Amendment rights were infringed. The arguments made by appellant deal exclusively with a range of scenarios where application of the deadly weapon enhancement provision would arguably work an unconstitutional result. Unfortunately for the appellant, his case exists outside the realm of the hypothetical, and we are compelled to look to the facts at hand, and appellant’s own conduct, in order to judge the vagueness of the statute. The complainant testified that appellant approached her, held an eight-inch knife to her throat and demanded her valuables. Appellant has not claimed that the term “possession” was so vague as to preclude him from realizing that his possession of the knife was behavior encompassed by the deadly weapon enhancement provision. Further, there could be no serious argument advanced which would convince us that the knife could have been considered anything but a deadly weapon by appellant, in view of the circumstances and manner in which it was used. It is eminently clear that the conduct appellant engaged in is precisely the kind of criminal activity that the statute was designed to deter and punish with enhanced prison sentences.

Appellant’s only other claim on appeal is that the statute is unconstitutional as overbroad and violative of substantive due process. It is urged that, due to its overbreadth, the statute will have an impact on activities which are not the intended focus of the deadly weapon enhancement provision, and which are protected by the First Amendment.

Appellant may have standing to challenge the statute as overbroad even though he does not claim that his own conduct was within the sphere of protected activity. Such a challenge may be raised vicariously on behalf of others against whom the statute may be unconstitutionally applied. Commonwealth v. DeFrancesco, 481 Pa. 595, 609-611, 393 A.2d 321, 328-329 (1978).

We note at this point that appellant failed to raise the overbreadth claim in his petition to vacate and reconsider sentence. As a general rule, such an omission would preclude this court from examining the issue. Pursuant to Pa.R.App.P. 302(a), “Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Id. See also Commonwealth v. Johnson, 355 Pa.Super. 123, 140-141, 512 A.2d 1242, 1251 (1986); Commonwealth v. Baker, 352 Pa.Super. 260, 264, 507 A.2d 872, 874 (1986); Commonwealth v. Whetstine, 344 Pa.Super. 246, 256, 496 A.2d 777, 782 (1985); Commonwealth v. Carrillo, 319 Pa.Super. 115, 123, 465 A.2d 1256, 1260 (1983). We recognize that there is a well-established exception to the above rule concerning issues that go to the legality of sentence. Commonwealth v. Button, 332 Pa.Super. 239, 251 n. 8, 481 A.2d 342, 348 n. 8 (1984). Such issues can never be waived solely on the basis of procedural error and may be raised for the first time on appeal. Commonwealth v. Lee, 363 Pa.Super. 400, 404-405, 526 A.2d 405, 406-407 (1987); Commonwealth v. Adams, 350 Pa.Super. 506, 516, 504 A.2d 1264, 1269 (1986); Commonwealth v. Barnhart, 345 Pa.Super. 10, 33, 497 A.2d 616, 628-629 (1985); Commonwealth v. Bossche, 324 Pa.Super. 1, 4-5, 471 A.2d 93, 94-95 (1984); Commonwealth v. Fulton, 315 Pa.Super. 420, 422 n. 4, 462 A.2d 265, 266 n. 4 (1983); Commonwealth v. Miranda, 296 Pa.Super. 441, 459 n. 17, 442 A.2d 1133, 1142 n. 17 (1982).

The legality of sentence exception to the waiver doctrine has traditionally been limited to situations where the claim is that the sentence is facially illegal. The obvious example is a case where a sentence is beyond the statutorily prescribed limits. See e.g., Commonwealth v. Ohlinger, 337 Pa.Super. 437, 440, 487 A.2d 25, 26 (1985) (minimum sentence proscribed under Youth Offender’s Act); Commonwealth v. Britton, 334 Pa.Super. 203, 221, 482 A.2d 1294, 1304 (1984) (en banc) appeal dismissed 509 Pa. 620, 506 A.2d 895 (sentence beyond the statutory limits); Commonwealth v. Mathis, 317 Pa.Super. 362, 372, 464 A.2d 362, 368 (1983) (definition of “illegal sentence”); Commonwealth v. Reardon, 297 Pa.Super. 193, 199-200, 443 A.2d 792, 795 (1981) (sentence in excess of statutory maximum). Moreover, as in Commonwealth v. Campbell, 351 Pa.Super. 56, 505 A.2d 262 (1986), “The question of the legality of multiple sentences based on a claim that the convictions should have merged for sentencing, is not waived by the failure to raise it in the trial court. This is because multiple sentences ... are beyond the power of the trial court.” Id., 351 Pa.Superior Ct. at 63, 505 A.2d at 265. See also Commonwealth v. Nelson, 337 Pa.Super. 292, 305, 486 A.2d 1340, 1347 (1984) (claim that offenses merged for sentencing purposes not waived); Commonwealth v. Fulton, supra (same); Commonwealth v. Welch, 291 Pa.Super. 1, 3, 435 A.2d 189, 189 (1981) (same).

Appellant herein does not complain of a merger of offenses or the imposition of a sentence in excess of the statutory maximum. Rather, in situations like the present, the “illegality” arises because the sentence is alleged to be tainted by the unconstitutionality of the factors considered in the exercise of the court’s discretion, not because the sentence is improper under settled sentencing strictures. Constitutional claims such as the ones involved in this appeal should be raised and preserved at each level of the criminal proceeding in order that the reviewing court will have the benefit of the lower court record on these issues. As President Judge Cirillo recently observed in a thoughtful and exhaustive examination of the subject, “The Pennsylvania Supreme Court has clearly held that constitutional issues, even sentencing issues based on the constitution, are waived if not properly raised in the trial court.” Commonwealth v. Hartz, 367 Pa.Super. 267, 273, 532 A.2d 1139, 1142 (1987). (Cirillo, P.J. concurring). In his Hartz concurrence, Judge Cirillo discussed challenges to the constitutionality of sentencing factors as well as claims that go to the legality of sentence or the jurisdiction of the court. See also Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134, 135 (1987) (“[I]ssues of constitutional dimensions can be waived.); Commonwealth v. Walton, 483 Pa. 588, 600, 397 A.2d 1179, 1185 (1979) (allegation that the lower court’s construction of a restitution statute violated due process was waived when not raised at the sentencing hearing); Commonwealth v. Lee, 478 Pa. 70, 73 n. 4, 385 A.2d 1317, 1319 n. 4 (1978) (due process challenge to the imposition of sentence by a judge other than appellant’s trial judge was waived); Commonwealth v. McConnell, 470 Pa. 312, 315-316, 368 A.2d 646, 647-648 (1977) (claim that a life sentence was unconstitutional on equal protection and due process grounds was waived); Commonwealth v. Boone, 467 Pa. 168, 181, 354 A.2d 898, 904 (1975) (claim that the imposition of a maximum as well as minimum sentence violated due process was waived for failure to advance this argument at the sentencing proceedings.)

Quite recently, in Commonwealth v. Sessoms, 516 Pa. 365, 375-376, 532 A.2d 775, 780 (1987), our Supreme Court indicated that an attack upon the constitutionality of the Sentencing Guidelines would be subject to appellate review only “where the issue has been properly preserved at all stages of adjudication up to and including any direct appeal.” Id. (quoting Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983). Sessoms involved a challenge to the constitutionality of the procedure by which the Sentencing Guidelines were adopted. Concluding that the aforementioned procedure was constitutionally infirm and that the resulting Guidelines were invalid, the Sessoms court reinforced the well-entrenched principle that constitutional issues are waived if not raised and preserved at all levels of adjudication. See also, Commonwealth v. Samuels, 516 Pa. 300, 302-303, 532 A.2d 404, 405 (1987).

In light of the controlling authority, we find that the appellant has waived his overbreadth challenge by failing to advance and preserve it in the court below. We are aware that our holding is in conflict with several recent Superior Court decisions that, without discussion or review of authority, equate constitutional issues with claims that go to the legality of sentence. See e.g. Commonwealth v. Cooke, 342 Pa.Super. 58, 68 n. 1, 492 A.2d 63, 68 n. 1 (1985); Commonwealth v. Eliason, 353 Pa.Super. 321, 324 n. 3, 509 A.2d 1296, 1298 n. 3 (1986); Commonwealth v. Irving, 347 Pa.Super. 349, 356, 500 A.2d 868, 872 (1985). To the extent that these cases contradict the ruling in Sessoms and clear precedents from our Supreme Court, they must be specifically rejected.

Judgment of sentence affirmed.

      . 42 Pa.C.S. § 9721; 204 Pa.Code § 303.4.

      . Judges Brosky and Johnson joined in the concurrence. Moreover, Judge Kelly joined in the constitutional non-waiver issue raised therein, in a separate concurrence.

      . We cite Sessoms in this context only as support for the proposition that constitutional issues which were not raised and preserved in the lower court cannot be considered for the first time on appeal. The focus in Sessoms was upon the constitutionality of the mechanism by which the Sentencing Guidelines were adopted. The Supreme Court held that the process was flawed insofar as it failed to comply with the requirements delineated in Art. Ill § 9 of the Pennsylvania Constitution, dealing with “bicameral consideration and presentment for gubernatorial approval.” Sessoms, supra 516 Pa. at 367-368, 532 A.2d at 776. Appellant herein has not challenged this aspect of the Guidelines and has limited his argument to the areas of vagueness and overbreadth.