text:
    462 A.2d 286
    Louis A. CANULLI and Elizabeth Canulli, his wife, and all others similarly situated, Appellants, v. ALLSTATE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued March 25, 1981.
    Decided June 17, 1983.
    Petition for Allowance of Appeal Denied Nov. 14, 1983.

      Richard C. Angino, Harrisburg, for appellants.
    Duane C. Quaini, Harrisburg, for appellee.
    Before PRICE, WIEAND and LIPEZ, JJ.

       PRICE, J., did not participate in the consideration or decision of this case.

   WIEAND, Judge:

Louis and Elizabeth Canulli have appealed from an order which granted a partial summary judgment in favor of Allstate Insurance Company in an action brought by the Canullis to recover a fire loss. The order appealed from does not terminate the litigation or prevent appellants from litigating their claim for moneys allegedly due under the terms of the insurance policy issued by Allstate. Such an order is not final but interlocutory. Therefore, this Court lacks jurisdiction, and the appeal must be quashed.

The policy issued by Allstate and providing coverage for appellants’ dwelling house was a deluxe homeowners’ policy and provided for payment of the “actual cash value” in the event of damage or destruction by fire or other enumerated peril. “Actual cash value” is the actual cost of repair or replacement less depreciation. See: Farber v. Perkiomen Mutual Insurance Company, 370 Pa. 480, 481-482, 88 A.2d 776, 777 (1952); Patriotic Order Sons of America Fire Hall Assn. v. Hartford Fire Insurance Co., 305 Pa. 107, 112, 157 A. 259, 260 (1931); Anno., Depreciation as Factor in Determining Actual Cash Value For Partial Loss Under Insurance Policy, 8 A.L.R. 4th 533 (1981). Under certain circumstances the policy also obligated the insurer to pay “replacement costs.” This is the actual cost of repair or replacement without deduction for depreciation. See: Reese v. Northern Insurance Company of New York, 207 Pa.Super. 19, 215 A.2d 266 (1965); Higgins v. Insurance Company of North America, 256 Or. 151, 163, 469 P.2d 766, 774 (1970); Anno., Construction and Effect of Provision of Property Insurance Policy Permitting Recovery of Replacement Cost of Property, In Excess of Actual Cash Value, 66 A.L.R.3d 885 (1975). Liability for replacement costs, however, could not exceed actual expenditures made in rebuilding and did not accrue “unless and until actual repair or replacement [was] completed.”

On January 26, 1978, appellants’ home was destroyed by fire. Proof of loss was submitted, and “actual cash value” of the dwelling was determined to be $45,000. This amount was paid by Allstate without prejudice to appellants’ rights under the policy to claim additional sums in accordance with the “replacement cost” feature of the policy. Appellants made demand upon Allstate for the sum of $15,000 under the replacement cost coverage of their policy which Allstate refused to pay until appellants completed the repair or replacement of their home.

The Canullis commenced an action against Allstate to recover this additional sum, together with the cost of additional temporary housing. The complaint contained averments that Allstate’s practice of refusing to pay “replacement cost” until there had been actual repair or replacement was (1) contrary to the terms and conditions of the policy, (2) contrary to the laws of Pennsylvania, and/or (3) based upon policy provisions which had not been disclosed or explained to the Canullis. By other averments of the complaint, the Canullis sought to represent a class consisting of all Pennsylvania residents insured under fire insurance policies written by Allstate who (1) had suffered com-pensable fire losses within six years of the filing of the complaint and (2) suffered compensable fire losses in the future. They requested that the court enjoin Allstate (1) from withholding payments of replacement costs more than 60 days after proofs of loss were submitted, (2) from depreciating losses resulting from fire, (3) from withholding payments for additional living expenses, and (4) requiring Allstate to pay interest on all amounts withheld beyond 60 days after proofs of loss were received. They also sought punitive damages, costs and attorneys’ fees.

It is unnecessary to a comprehension of the instant appeal and the issues sought to be raised thereby that we recite all the many pleadings that followed the filing of the initial complaint. Suffice it to say that ultimately the Canullis filed a third amended complaint, to which Allstate filed an answer containing “new matter”; and the Canullis filed a reply. Thereafter, Allstate filed a motion for partial summary judgment, and the trial court entered an order staying any proceedings to certify the class pending resolution of the motion for partial summary judgment.

On February 13, 1980, after the motion for partial summary judgment had been fully argued, the trial court filed an opinion and entered an order as follows:

AND NOW, this 13th day of February, 1980, summary judgment is granted in defendant’s favor that:
1) the practice of the defendant Allstate Insurance Company of requiring actual repair or replacement prior to its making any payment in excess of the actual cash value of the insured property at the time of the loss up to the policy limits is, as a matter of law, consistent with the terms and conditions of the policy issued by defendant to plaintiff;
2) the policy issued by defendant to plaintiff which contained as one of its express conditions a requirement that actual repair or replacement be completed prior to the defendant making any payments in excess of the actual cash value of the insured property at the time of the loss is, as a matter of law, consistent with the applicable statutory law set forth in the Act of Aug. 23, 1961, P.L. 1081, § 1, 40 P.S. 636 and the judicial law interpreting it.

Summary judgment on the grounds that the Canullis were bound by the provisions of the policy because one who accepts a policy of insurance is charged with knowledge of its terms and conditions was denied. The court held that “under certain circumstances when the insurer by its conduct creates expectation on the part of the insured concerning coverage, it cannot rely solely upon provisions of the policy to deny coverage. In the instant case plaintiffs assert that [Allstate’s] promotional literature received by plaintiffs in the mail was misleading and that on this basis they can recover beyond the strict terms of the policy. Under these circumstances factual issues exist which preclude granting [Allstate’s] third request for summary judgment.”

It seems apparent that the order of the trial court granting partial summary judgment did not terminate the litigation between the parties or preclude appellants from litigating their cause of action against the appellee insurer. They have not been prevented from pursuing their claim for the difference between “replacement cost” and “actual cost,” and they have not been put out of court on their claim for additional costs of temporary housing. The effect of the trial court’s order was merely to hold that two of several theories were lacking in merit and could not be pursued upon a trial of the cause. Such an order is interlocutory. It is not final and appealable. See: Schaefer v. American States Insurance Co., 272 Pa.Super. 67, 414 A.2d 672 (1979). See also: Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) and cases there cited. “Were we to hold that the trial court’s ruling rejecting [two of plaintiff’s theories of recovery], while also requiring the parties to proceed to trial on a theory of contract arising out of the same transaction, is a final order from which an appeal must be taken, many potential problem areas would arise. If the time for filing an appeal would begin to run against a litigant whenever the trial court refused to consider a suggested legal theory of recovery, a litigant would need to file appeals at various stages of a law suit. Unless and until the rejection of a particular legal theory, or theories of recovery puts the plaintiff out of court on his cause of action against the ... defendant, no final order has been entered and no appeal may be filed. Hudock v. Donegal Mut. Ins. Co., 438 Pa. 272, 264 A.2d 668 (1970); Catanese v. Scirica, 437 Pa. 519, 263 A.2d 372 (1970) ....’’ J.A. & W.A. Hess, Inc. v. Hazle Township, 465 Pa. 465, 470-471, 350 A.2d 858, 861 (1976) (emphasis supplied). Accord: Fred Lowenschuss Associates v. De Pallo, 274 Pa.Super. 290, 296, 418 A.2d 411, 414 (1980). See also: Pugar v. Greco, 483 Pa. 68, 73-74, 394 A.2d 542, 545 (1978); Praisner v. Stocker, supra 313 Pa.Super. at —, 459 A.2d at 1261; Samuels v. Hendricks, 300 Pa.Super. 11, 18, 445 A.2d 1273, 1277 (1982); Bracken v. Bracken, 294 Pa.Super. 371, 373, 439 A.2d 1247, 1247-1248 (1982); Mitchell v. Center City Cadillac, 287 Pa.Super. 350, 353, 430 A.2d 321, 322 (1981); Giannini v. Foy, 279 Pa.Super. 553, 556, 421 A.2d 338, 339 (1980).

Appellants argue that the trial court’s order was final and appealable as “the putative class members ... have a right to appeal the court’s dismissal of their potential claims____” It is correct, of course, that an order denying class certification is a final and appealable order. Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 348 A.2d 734 (1975); Janicik v. The Prudential Insurance Company of America, 305 Pa.Super. 120, 126 n. 1, 451 A.2d 451, 454 n. 1 (1982); Haft v. United States Steel Corpora tion, 305 Pa.Super. 109, 113 n. 2, 451 A.2d 445, 447 n. 2 (1982); ABC Sewer Cleaning Company v. Bell of Pennsylvania, 293 Pa.Super. 219, 225 n. 3, 438 A.2d 616, 619 n. 3 (1981). The order here sought to be appealed, however, did not deny class status. A determination on the status of the class has not yet been made. Rule 1707 of the Rules of Civil Procedure requires that the motion for certification in a class action be filed within thirty days after the close of the pleadings. In the instant case, however, the trial court, pursuant to authority contained in Pa.R.C.P. 1707(b), stayed all class action aspects of the litigation pending resolution of appellee’s motion for summary judgment. Rule 1715 of the Rules of Civil Procedure provides that any judgment entered in a class action suit prior to certification of the class is binding only upon the named parties. The putative members of the class are, therefore, unaffected by the order of the trial court entering partial summary judgment in favor of appellee. The parties affected by the order granting partial summary judgment are the appellant property owners and the appellee insurer. The partial summary judgment has not determined finally their respective rights and liabilities; these are yet to be litigated. The partial summary judgment has no effect upon and does not bind members of the potential class. Were we to allow an appeal under the circumstances of this case we would open the doors to appeals from many interlocutory orders. Appeals from orders entering partial summary judgment or dismissing one theory of a multi-theory complaint could be assured by the expedient of inserting class action aver-ments in the complaint, even though there be no reasonable expectation that certification of the class will ever be granted.

The order appealed from in the instant case is not final either as to appellants or the members of the putative class they seek to represent. Although an appeal may be taken by permission from an interlocutory order pursuant to Chapter 13 of the Rules of Appellate Procedure, see: 42 Pa.C.S. § 702(b); Pa.R.A.P. 312, appellants did not seek certification of the order in the trial court pursuant to 42 Pa.C.S. § 702(b). We are constrained to conclude, therefore, that the appeal in the instant case was not properly taken and must be quashed.

Appeal quashed.

         The preparation of an opinion in this appeal was reassigned to the writer on February 11, 1983.

      . Allstate had paid appellants’ temporary housing costs for several months following the fire, but denied liability for any additional housing costs on the grounds that coverage was limited to the lesser of (a) the time required, in the exercise of due diligence and dispatch, to repair or replace the property or (b) the time required for the insured's household to become settled in permanent quarters.

      . Pa.R.C.P. 1707 provides:
      Motion for Certification of Class Action. Time for Filing. Hearing
      (a) Within thirty (30) days after the pleadings are closed or within thirty (30) days after the last required pleading was due, the plaintiff shall move that the action be certified as a class action. The court may extend the time for cause shown. If the plaintiff fails to move for certification, the court if so notified shall promptly set a date for a certification hearing.
      (b) The court may postpone the hearing to a later date pending the disposition of other motions or to permit discovery with respect to the class action issues.
      (c) The hearing shall be limited to the Class Action Allegations. In determining whether to certify the action as a class action the court shall consider all relevant testimony, depositions, admissions and other evidence.

      . Pa.R.C.P. 1715 provides:
      Judgment
      (a) Except by special order of the court, no judgment by default or on the pleadings or by summary judgment may be entered in favor of or against the class until the court has certified or refused to certify the action as a class action.
      (b) A judgment entered on preliminary objections in a class action before certification shall bind only the named parties to the action.
      (c) A judgment entered in an action certified as a class action shall be binding on all members of the class except as otherwise directed by the court.
      (d) In all cases the judgment shall be framed by the court and shall specify or describe the parties who are bound by its terms.


source: Caselaw Access Project

author: ROWLEY, Judge:

license: Public Domain

text:
    462 A.2d 686
    MERION SPRING COMPANY T/A Green Spring Company, v. MUELLES HNOS. GARCIA TORRES, S.A., Appellant; MERION SPRING COMPANY T/A Green Spring Co., Appellant v. MUELLES HNOS. GARCIA TORRES, S.A.
    Superior Court of Pennsylvania.
    Argued May 5, 1982.
    Filed May 27, 1983.
    Reargument Denied Aug. 4, 1983.
    Petition for Allowance of Appeal Granted Dec. 15, 1983.

      Richard Friedman, Philadelphia, for appellant (at No. 1343) and for appellee (at No. 1418).
    Gilbert E. Toll, Philadelphia, for appellant (at No. 1418) and for appellee (at No. 1343).
    Before SPAETH, ROWLEY and CIRILLO, JJ.
   ROWLEY, Judge:

These are cross-appeals from a judgment entered pursuant to an order of the court en banc. The court rendered a partial “Judgment N.O.V.” in favor of the appellant in No. 1418, but otherwise affirmed the general decision entered by the trial judge who sat without a jury.

Merion Spring Company (hereafter “Merion” or “plaintiff”), appellant in No. 1418, commenced this action on February 14, 1974, by filing a complaint in assumpsit. Merion sought damages in the amount of $32,515.75 for breach of a contract for the sale of twenty-five automobile spring manufacturing machines. In April 1976, the defendant, appellant in No. 1343, Muelles Hnos. Garcia Torres, S.A. (hereafter “Muelles” or “defendant”), a corporation formed and located in the Republic of Mexico, filed an answer averring that it had not breached the contract. Furthermore, by way of counterclaim, Muelles averred that Merion had breached the contract and prayed that judgment be entered in its favor in an amount in excess of $500,-000. 00, in large part representing a claim for lost profits. In December, 1978, the case was tried before the Honorable Calvin T. Wilson, sitting without a jury. Following two days of testimony, the trial judge returned a general decision in favor of Muelles on both the complaint and the counterclaim, assessing against plaintiff Merion the following damages:

Money Paid $ 20,000.00
Interest since breach Estimated
Maintaining Nonproductive Plant 2,300.00
Operating Loss 12,000.00
Loss [sic] Profits 200,000.00
Total $234,000,00

Muelles filed no exceptions to the trial judge’s decision. However, Merion filed timely exceptions and was granted leave to file further exceptions within ten days of the completion and filing of the transcript of testimony. After the additional exceptions were filed, all were briefed and argued before a three-judge court en banc which included the trial judge. The court en banc entered what it styled as a “Judgment N.O.V.” in favor of Merion with respect to the damages awarded for lost profits on the ground that such losses had not been proven with sufficient certainty to permit their inclusion in the decision returned against Mer-ion. The court said:

The lost profits which are alleged by defendants [Muelles] are remote, are speculative and were not proved at trial to a degree of certainty that would warrant the grant of those damages. The court finds that defendant’s business was unestablished and inoperable for spring manufacturing purposes prior to the time of the making of the contract. (Op.Ct. En Banc, p. 7)

Merion’s remaining exceptions were dismissed and the court ordered that judgment be entered in favor of Muelles in the reduced amount of $34,000.00.

Muelles filed an appeal challenging 1) the propriety of the “Judgment N.O.V.,” 2) the court’s failure to award a specific amount for the interest element of the damages assessed and 3) mistakes or errors in the transcript of testimony. Merion also filed an appeal claiming that the trial court’s conclusion that it had breached the contract was against the weight of the evidence and that the damages assessed for losses due to “nonproductive plant” and for “operating loss” were not supported by any competent evidence of record.

FACTS

The agreement upon which these appeals are based is evidenced by two handwritten memoranda, signed by the parties, which were executed on May 21, 1972, in the Greyhound Bus Terminal in Philadelphia. The memoranda set forth the agreement of the plaintiff to sell, and the defendant to buy, twenty-five automotive spring manufacturing machines for the sum of $42,250.00. One memorandum stated that the machines were to be “working and running” while the other stated only that they were to be “working.” The machines had been purchased earlier by Merion at a public sale in Detroit. Merion first offered the machines for sale at the end of April, 1972, while they were still in Detroit. Muelles learned through a broker that the machinery was offered for sale and Muelles’ president, Luis Garcia Torres, and its general manager, Emilio Cano Bazal-dua, traveled to Detroit. There the two men made a superficial inspection of the equipment. At that time, the machines were partially disassembled and being prepared for shipment to Merion’s plant in Philadelphia. Torres and Cano accepted Merion’s invitation to inspect the machinery more thoroughly in Philadelphia and they visited Merion’s plant accompanied by a Mr. Mota, an engineer hired in Detroit for the purpose of assisting in the inspection. At the end of this visit, the memoranda were signed.

Subsequent to the formation of the agreement and upon Merion’s request, Muelles forwarded a check to Merion in the amount of $2,000.00 as a deposit on the full purchase price of the machinery. In an accompanying letter, Muelles stated that it expected the machines to be delivered “working and running to our satisfaction.” On June 5, 1972, Merion responded, denying having committed itself to turn over the machinery in such condition as to satisfy Muelles, but stating that it would comply with the terms set out in the memoranda. Merion again wrote to Muelles on July 25, 1972, and demanded that Muelles pay the balance due on the purchase price or storage charges of $8,000.00 or forget about the transaction and forfeit the sum already paid. In response, Muelles offered information legitimizing the delays. It informed Merion that the Mexican government had altered the regulations governing the importation of machinery and that it was seeking legal advice as to how to proceed with respect to obtaining an import license.

Having failed to obtain the requested payment, on July 30, 1972, Merion again wrote to Muelles demanding this time only that the Mexican firm pay the additional deposit of $8,000.00 demanded on July 25. On August 30, 1972, Muelles sent a check to Merion in the amount of $6,000.00 and promised to send $2,000.00 more the following week. Muelles also informed Merion that it required six pictures and detailed specifications for each machine from Merion in order to procure the necessary import license. Muelles was tardy in sending the additional $2,000.00. On October 6, 1972, Merion demanded that Muelles pay the $2,000.00 plus one-half of the handling and loading charges, a total sum of $3,450.00. Merion stated that, should payment not be made within seven days, “we will assume that you are no longer interested in the equipment and you may consider your advance money as compensation for liquidated damages.” These demands were renewed on October 18. On October 21, 1972, Muelles sent a check for $2,000.00. In an accompanying letter, Muelles agreed to pay the extra charges, but asked for an adjustment in the date from which these storage and handling charges began to accrue. Muelles also again sought the information it required to obtain an import license. Both by letter and cable, on October 30, Merion again demanded payment of $3,400.00.

On November 1, 1972, however, matters took a turn for the better. By letter, Merion assured Muelles that “we are trying to cooperate with you” and acknowledged receipt of the October 21st letter. After setting forth a calculation showing $36,150.00 due on account, Merion asked that Muelles pay $16,150.00. On November 16, 1972, Merion again wrote to Muelles stating that it was sending two pictures of each machine and “whatever information we had available to us.” Merion stated that it performed these tasks as “a favor to you at no charge” but suggested that, if Muelles needed anything further along these lines, it contact someone else to do the work. Merion closed by saying, “we have done more than we should and insist upon payment of an additional $16,150.00 ____” This demand was renewed on December 1,1972, and again Merion threatened to sell the equipment if payment was not tendered within seven days.

In January, 1973, a Merion representative then in Mexico received an additional $10,000.00 on account. Relations between the two parties were stable for two months, but in March, Merion twice demanded that Muelles make an additional payment of $8,000.00. During the Spring of 1973, Muelles completed construction of the plant intended to house the twenty-five machines. In June, 1973, Cano again visited Philadelphia in order to make a final inspection of the equipment and tender final payment of the balance then due. However, this inspection disclosed that some of the machines had been canibalized and some parts were missing. Moreover, some of the machines were missing altogether and few, if any, were in operable condition. Cano returned to Mexico without making any payment and without the machinery. By letter, On June 29, 1973, Muelles informed Merion as to some of the defects revealed by the inspection. On July 12, 1973, Merion informed Muelles by letter and confirming cable that it considered Muelles to be in default and that a public sale of the machinery would be held on July 20, 1973. At the sale, Merion purchased the machinery for a nominal sum. Thirteen months later, Mer-ion filed suit for the balance of the purchase price and the expenses of storage and handling.

SCOPE OF REVIEW

Our initial task in this case, as in every case which we undertake to review, is to determine our proper scope of review. In the case before us, the trial judge heard the testimony without a jury pursuant to Pa.R.C.P. No. 1038. As permitted by that rule, the trial judge made only general findings of liability as to all parties and he disposed of all claims for relief. See Rule 1038(b). He did not, as is within his discretion, avail himself of the opportunity of entering specific findings of fact or conclusions of law. Id. In its turn, the court en banc reviewed only the general decision of the trial judge and did not itself make any specific findings of fact. Because there have been no findings of fact approved by the court en banc, this case does not come within the well-settled rule that the findings of a trial judge approved by a court en banc, if supported by competent evidence and in the absence of an error or law or abuse of discretion, will be given the weight of a jury verdict and will not be disturbed on appeal. See, e.g., First Pa. Banking and Trust Co. v. Liberati, 282 Pa.Super. 198, 203, 422 A.2d 1074, 1076 (1980) and cases there cited.

In determining our scope of review under these circumstances, we look to the language of Rule 1038 and its apparent purpose. Promulgated in 1969, Rule 1038 abolished the prior practice of requiring trial judges in non-jury trials to enter detailed findings of fact and conclusions of law upon the request of any party to the lawsuit. See Act of April 22, 1874, P.L. 109, as amended, 12 P.S. § 689, suspended by Pa.R.C.P. No. 1038(f)(1), repealed by the Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(a) [634]. Instead, as noted above, Rule 1038(b) provides that:

The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion. (Emphasis added.)

Furthermore, Rule 1038(d) requires that every “trial of an action in assumpsit, by a judge sitting without a jury, shall be conducted as nearly as may be as a trial by jury is conducted____” (Emphasis added.) Parallel rules of civil procedure promulgated simultaneously with Rule 1038 direct that other non-jury actions also follow this requirement. E.g., Pa.R.C.P. Nos. 1048 (trespass), 1058 (ejectment), and 1067 (quiet title). See 434 Pa. lx-lxvi (1969). In 1972, the Supreme Court promulgated Rule 1007.1 which requires any party seeking a trial by jury to take the affirmative step of demanding such a trial. This rule abolished the prior practice in civil cases of allowing cases to be tried before a judge sitting without a jury only upon agreement of the parties. See Act of April 22, 1874, P.L. 109, 12 P.S. § 688 repealed Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(a) [634], Thus, the general rule has shifted and no longer outwardly favors trial before a jury over non-jury trials. Additionally, in 1977, the Supreme Court simultaneously promulgated Pa.R.C.P. No. 227.1 and amended Rules 1038 and 1518. These changes made uniform in both jury and non-jury trials the time requirement for filing exceptions or post-trial motions.

From these developments we draw three conclusions. First, many of the procedural differences between jury and non-jury trials have been recently eliminated. Second, one of the purposes behind the rule changes is to induce litigants and trial judges to utilize the potentially speedier and less expensive method of trying cases before a judge without a jury in an effort to cope with ever increasing caseloads. Time is conserved under Rule 1038 by dispensing with the selection and instruction of the jury as well as the elimination of the preparation of detailed findings and conclusions. Finally, in the absence of a demand for a jury trial, there is a tacit agreement of the parties that the trial judge sits as the arbiter of both law and fact. The parties impliedly agree that the fact-finding function normally associated with and reserved to the jury can adequately be performed by the trial judge. The trial judge’s competence to perform this function lies at the bottom of the modern movement to make it easier to try cases in this manner. It is now permissible for even the form of the decision to resemble a verdict rendered by a jury. Therefore, third, we conclude that a general decision rendered by a trial judge sitting without a jury, should be reviewed by the same standards and accorded the same deference as a general verdict rendered by a jury.

Accordingly, in assessing Merion’s claim that the verdict is against the weight of the evidence, we consider all of the evidence and assess its weight to determine whether the trial court committed clear error or palpably abused its discretion. In the absence of an error of this magnitude, the appellate courts will not overturn the verdict even where, judged by the record before us, it is against the preponderance of the evidence. Coyne v. John Gibbons Coal Co., 314 Pa. 502, 506, 172 A. 653, 654-655 (1934); McRay v. Pittsburgh Railway Co., 132 Pa.Super. 386, 393, 200 A. 717, 720 (1938).

The other two questions properly before us present issues concerning the legal sufficiency of the evidence presented at trial. Merion contends in this court as it did before the trial court that there is no evidence of record to support a damage award for losses due to “nonproductive plant” and “operating loss.” Furthermore, Merion argues, and the court en banc so held, that Muelles’ evidence of lost profits was insufficient as a matter of law to allow compensation for any such loss. Were we here deciding an appeal from a jury verdict, these issues would be cast as challenges to the court en banc’s denial of a Judgment N.O.V. on the one hand and a grant of a Judgment N.O.V. on the other. We have held supra, that where, as here, a trial judge sitting without a jury renders a general decision without entering specific findings and conclusions and the court en banc reviews that decision, without itself rendering such findings and conclusions, we review the trial judge’s general decision as we would a general jury verdict. Therefore, despite a shift in vocabulary which we discuss below in more detail, we will apply to these two claims the familiar standards relating to the granting or denial of a Judgment N.O.V. after a general jury verdict:

A judgment notwithstanding the verdict should be entered only in a clear case, when the facts are such that no two reasonable persons could fail to agree that the verdict was improper; any doubts should be resolved in favor of the verdict winner. The evidence must be considered in the. light most favorable to the verdict winner, giving him the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in favor of the verdict winner. Martin v. Soblotney, 296 Pa.Super. 145, 168-169, 442 A.2d 700, 702 (1982) (petition for allowance of appeal granted 9/14/82) (citations omitted).

No. 1418: Merion’s Appeal

A.

In claiming that the decision in favor of Muelles on the issue of liability was against the weight of the evidence, Merion argues that the trial judge and the court en banc arbitrarily disregarded evidence of Muelles’ delay in taking delivery of the machines, presumably establishing that Muelles breached the contract. We disagree. First, the memoranda memorializing the agreement did not specify any time for the completion of performance. Also, the delays by Muelles were beyond its control. The court en banc aptly observed that the delays were caused by an unexpected change in the Mexican government’s import regulations and unforeseeable delay in the construction of Muelles’ plant. It also appears that Merion agreed to store the machines for Muelles once Muelles tendered assurances that it would pay the extra charges involved. Muelles did in fact make payments totalling $20,000.00, almost half of the original purchase price, as evidence of its desire to keep the transaction alive. The court en banc reasoned further as follows:

The seller [Merion] purchased machinery, some of which was forty years old, disassembled and to be transported to another city. It is reasonably assumed that upon a subsequent agreement to sell the machinery in working and running condition, the subsequent buyer [Muelles] may justifiably expect the seller to reassemble and test the machinery to assure the buyer of the operability of the equipment. [Merion] was fully aware that [Muelles] sought to use the machinery for its intended purpose, making automobile springs. Although [Merion] denies having obligated itself to test the machinery, the court finds [Muelles] refusal to make final payment prior to a demonstration of the working and running condition of the machinery ... a reasonable precaution in international trade and not a breach. [Merion’s] obligation to put the machinery in running and working condition was thus a condition precedent to [Muelles’] obligation to make full payment. The court finds th[at Merion] breached the contract when it failed to sell and deliver the machinery in good working order.

Our review of the trial record convinces us that there is ample evidence of record to support the conclusions of the trial judge and the court en banc that Merion breached the contract. Furthermore, the parties’ correspondence concerning the delays may be readily construed to support a finding that any delay on the part of Muelles was excused or agreed to by Merion. Merion’s subsequent failure to put the machinery in working order, however, has not been excused. Finding no error or abuse of discretion, we therefore affirm that part of the order of the court en banc dismissing Merion’s exceptions on the issue of liability.

B.

In regard to Merion’s claim that the evidence was insufficient as a matter of law to sustain a damage award for losses sustained for “nonproductive plant,” and “operating loss,” we are confronted with a different situation. After a thorough review of the record, we conclude that there is no evidence which supports the assessment of these damages. There were only two figures mentioned during the trial relating to damages other than amounts related to calculation of lost profits and the amount paid by Muelles toward the purchase price of the equipment. The first of these is an offer of proof by Muelles’ counsel that Muelles’ losses for nonproductive plant and operating loss “... have been $12,395.83 ...” (N.T. Yol. I, 12/4/78, p. 121.). The second figure—“about $2,000.00, $1,000.00”—was given in response to a question regarding the proportion of total losses in one year represented by amortization of the building constructed to house the machinery. Merion’s counsel objected to the admission of the evidence and moved to strike. After a brief discussion the trial judge agreed. (N.T.Vol. I, 12/4/78, pp. 124-125).

Needless to say, neither an offer of proof nor properly stricken testimony can serve as evidence upon which to base an award of damages. The record is otherwise totally barren of any evidence of the extent of these damages. As a matter of law, therefore, the evidence was insufficient to sustain an award of these elements of damages and the court en banc should have sustained Merion’s exceptions in this regard. Accordingly, we reverse that part of the order of the court en banc dismissing Merion’s exception to the grant of such damages.

No. 1343: Muelles’ Appeal

A.

Initially we conclude that two of the questions raised by Muelles, those regarding the absence of a specific amount for interest and the lack of quality of the transcript of testimony, are not properly before us. As described above, Muelles failed to file any exceptions whatsoever and made no attempt to obtain leave of court pursuant to Pa.R.C.P. Rule 1038(d) to do so, even though more than three months elapsed between the filing of the transcript and the briefing of Merion’s exceptions commenced. Additionally, Muelles has not sought to correct or modify the record pursuant to Pa.R.A.P. 1926. Furthermore, there was more than a year for Muelles to seek leave with respect to the form of the verdict. Rule 1038(d) expressly provides that issues not raised in the exceptions are waived. Zvonik v. Zvonik, 291 Pa.Super. 309, 316 n. 4, 435 A.2d 1236, 1240 n. 4 (1981). See also In re: Estate of Litostansky, 499 Pa. 321, 453 A.2d 329 (1982). Muelles has therefore waived these two issues.

B.

Muelles’ challenge to the propriety of the entry of a “Judgment N.O.V.” presents a question which is far more substantial. First, we note that “Judgment N.O.V.” is no longer in the legal lexicon with respect to trials without a jury. Rule 1038(d) states in part:

No motion for a new trial, for judgment non obstante veredicto [judgment N.O.V.], in arrest of judgment or to remove a nonsuit may be filed.

Furthermore, Rule 1038(e) specifies the permissible range of actions which may be taken by the court en banc in ruling on post-trial exceptions where the trial judge heard the case without a jury:

[Exceptions shall be heard by the court en banc, which shall sustain or dismiss them in part, affirm, modify or reverse the decision, direct the entry of judgment in favor of any party, or order a new trial as to all or any of the issues or parties.

As set forth above, the court en banc concluded that proof of Muelles’ lost profits was “uncertain” and that the possibility of such profits occurring in the absence of Merion’s breach was, as a matter of law, too “speculative” and too “remote” to permit levying such damages. The court also relied on the status of Muelles as a new business “unestablished and inoperable for spring manufacturing purposes.” The court en banc therefore sustained Merion’s exception to the damages awarded for lost profits but dismissed Merion’s exceptions to the general finding of liability and the damages assessed for nonproductive plant and operating loss. This portion of Muelles’ appeal thus questions the propriety of the court en banc’s order sustaining Merion’s exception as to the lost profits awarded by the trial judge.

Although this change in vocabulary has occurred, we do not understand that the Supreme Court intended any alteration in the standards we are to apply in assessing the propriety of the court en banc’s action. We believe the change in procedure wrought by Rule 1038 was intended to strengthen the finality of a decision rendered by the trial judge sitting without a jury. Thus, where the court en banc substitutes its judgment for that of the trial judge, thereby taking the case away from the trier of fact, due respect for the trial judge’s fact-finding function requires that such substitution be made “only in a clear case” in accordance with the standard set forth in Martin v. Soblotney, supra. Where the trial judge makes no detailed factual findings, and the court en banc, also without making factual findings, rules that the evidence is insufficient, as a matter of law, to support the trial judge’s general decision, it may do so only after reading the testimony most favorably to the verdict winner, resolving all conflicts therein in favor of the prevailing party, and giving the verdict winner the benefit of all facts and inferences reasonably deductible from the evidence so read. See Axilbund v. McAllister, 407 Pa. 46, 49, 180 A.2d 244, 246 (1962). Our review of the record in light of the foregoing standard convinces us that the court en banc erred in sustaining Merion’s exception to the trial judge’s award of lost profits damages in favor of Merion.

There is no dispute that this is a proper case for awarding consequential damages for lost profits. Merion was aware that Muelles sought to purchase the twenty-five machines as a means of starting operations in a new automotive spring manufacturing plant being built in Mexico. Thus, at all times, Merion had reason to know that lost profits would likely result from a material breach on its part. See R.I. Lampus Co. v. Neville Cement Products Corp., 474 Pa. 199, 378 A.2d 288 (1977). The only question presented is whether sufficient proof of such losses was adduced at trial to. support the trial judge’s award.

Damages for lost profits, like other contract damages, may not be awarded when the evidence leaves the trier of fact without any guideposts except his or her own speculation. Sufficient evidence must be introduced to permit a reasonably certain estimate of the amount of anticipated profits lost due to the breach. Commonwealth Trust Co. of Pittsburgh v. Hachmeister Lind Co., 320 Pa. 233, 238-243, 181 A. 787, 789-790 (1935); Gaudy v. Seaman, 188 Pa.Super. 475, 149 A.2d 523 (1959). Damages for lost profits are usually a matter readily susceptible of proof when a business is established and continuing, Hachmeister Lind Co., supra (business began fourteen months before breach, continued for two years between breach and before trial), or when a business later establishes itself in a comparable market, Gaudy v. Seaman, supra (business began 8V2 months before breach, upon breach business ceased for IV2 years, business was reestablished and operated for two years prior to trial). For an entirely new business, however, the certainty requirement has been an insurmountable barrier to obtaining an award for lost anticipated profits. Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. at 487-490, 261 A.2d at 324-325; Pollock v. Morelli, 245 Pa.Super. 388, 397-398, 369 A.2d 458, 462-463 (1976). Although some jurisdictions have held that new businesses cannot, as a matter of law, submit sufficient evidence to obtain an award for lost profits, see cases collected 22 Am.Jur.2d, Damages, § 173, we are not directed to nor can we locate any such authority in Pennsylvania. Rather, in the cases cited above, the courts of this Commonwealth have adopted the rule suggested by Restatement, Contracts § 331(1), and Restatement, Second, Contracts § 352, that new businesses may be able to adduce sufficient evidence to obtain an award for lost profits while recognizing that such proof is often more difficult to obtain and present. Restatement § 331 was cited with approval in both Hachmeister Lind Co., 320 Pa. at 243, 181 A.2d at 791, and Exton Drive-In, 436 Pa. at 488-489, 261 A.2d at 324. Comment c to that section states:

The present section does not purport to divide profits into kinds of classes ____ Speculative profits are those the evidence of which is so meager or uncertain as to afford no reasonable basis for inference. The rule applicable to profits is in no respect different from that applicable to all gains prevented or losses suffered; it is proving income and outgo that the amount of any kind of profit is established. The kind and amount of evidence that will be held to afford a sufficient basis for estimation varies greatly in different kinds of cases.

We understand our cases to stand for no different principle.

This rule is salutary, for it reduces the weight given the age of the business from determinative on the point of lost profits, to a factor, albeit a relatively important one, to be taken into account in weighing and analyzing the evidence. Because there is no business history from which to reasonably predict subsequent events, the evidence must be substantial and it must be shown to have a close relationship to the individual firm in question as well as the relevant economic and financial conditions prevailing at the time the losses occurred. As the Restatement, Second, suggests, lost profits from a new business

may be established with reasonable certainty with the aid of expert testimony, economic and financial data, market surveys and analyses, business records of similar enterprises, and the like. Restatement, Second, § 352, Comment b.

See also Restatement § 331, Comments b and d, Illustrations 6 and 8.

This court’s recent opinion in General Dynafab, Inc. v. Chelsea Industries, Inc., 301 Pa.Super. 261, 265-66, 447 A.2d 958, 960 (1982), supports this view. Plaintiff Dynafab, although “arguabl[y] ... a newcomer,” showed that there was significant interest in its product before Chelsea breached the contract and demonstrated through various means what it estimated to be its lost profits. Most importantly, the court made the following observation:

Evidence was submitted also concerning the projected sales, raw material needs and profitability of the plant — Clearly, this evidence is not entirely of an unspe- culative nature, however, ... if the jury believed it, it [the jury] could come to a reasonable determination as to damages resulting from loss of future profits. Id.

While we do not here review the verdict of a jury, we have determined that our scope of review is essentially the same. Thus, the crucial question remains whether, as a matter of law, Muelles put on the record sufficient credible information to permit a reasonable estimate of its lost profits. With this discussion in mind, we proceed to an evaluation of Muelles’ evidence.

The only witness to testify as to Muelles’ lost profits was its general manager, Emilio Cano Bazaldua. Cano provided a wealth of details concerning economic and financial conditions prevailing in Mexico during the four years following the completion of construction of the plant intended to house the machinery. Cano provided specific data concerning the Mexican government’s protection of domestic manufacturing, estimated plant production, prices, direct and indirect labor cost, the cost of skilled and supervisory labor, administrative and sales staff and operations expense and the broad outlines of the applicable tax structure. The figures he produced came from his own knowledge; either he personally developed the data in his capacity as Muelles’ general manager or he was aware of the prevailing rates and figures because of his long association with the automobile parts industry. Cano also took into consideration the devaluation of the Mexican peso in September, 1976. At almost every point, Cano utilized patently conservative data in estimating Muelles’ lost profits, forcing estimated income down and estimated expenses up. Under ideal or even under more realistic conditions, Muelles’ lost profits could have been substantially higher. Cano stated that he and his accountants arrived at a total estimated lost profits of $325,000.00 for the four-year period 1974-1977. Finally, we note that, while Cano did not himself perform any mathematical calculations while on the stand, he sufficiently explained the necessary operations to enable the fact finder to perform them. We conclude that, based on the testimony of Cano, there is sufficient evidence to permit a reasonable estimate of Muelles’ lost profits in the amount originally awarded by the trial judge, $200,000.00.

Cano’s testimony was admitted and allowed to remain on the record over the strenuous and repeated objections of counsel for Plaintiff Merion. Merion does not now contest the admissibility of this evidence. Furthermore, in overruling Merion’s objections at trial, the trial judge stated that “the testimony will remain in; that I would give it whatever pro[b]ative value it is worth.” (N.T.Vol. II, 12/5/78, p. 46.) The general decision rendered by the trial judge indicates that he found Cano to be a credible witness. Not being in a position to observe Cano and draw our own conclusion as to his veracity, but finding no inherent contradictions or unreliability in his recorded testimony, we too conclude that Cano’s testimony is credible. We also note that Merion’s counsel could not shake Cano’s testimony during cross-examination and that Merion presented no testimony to rebut or contradict those matters which Cano asserted to be fact.

The court en banc concluded, and Merion here argues, that the evidence of lost profits was “remote,” “speculative,” and “not proved at trial to a degree of certainty that would warrant the grant of those damages.” (Op.Ct. En Banc at 7.) However, the court en banc never explained why it so found or in what respect the evidence was lacking. In other contexts, the Pennsylvania Supreme Court has attempted to discourage the practice of writing opinions in conclusory terms unsupported by analysis or discussion. Scaife Co. v. Rockwell-Standard Corp., 446 Pa. 280, 290, 285 A.2d 451, 456 (1971), and cases there cited. The court en banc did discuss the proper legal standard to be applied in this case, but nowhere can we find any explanation of its application. The court moved directly from its discussion of the applicable legal standard to its result without informing us of how it got there. We therefore add “remote, ... speculative, ... and uncertain” to the list of conclusory terms cited with disapproval by the court in Scaife Co., supra.

We also reject Merion’s attempt to convince us that the flaws in the data quoted by Cano require that we reject his testimony. We find observations made almost thirty years ago an apt answer to Merion’s arguments on this point.

[D]amages in such a case as this cannot be determined with mathematical certainty and ... a defendant who has broken a contract should not be allowed to profit by his breach because of the difficulty in fixing damages with exactness____
It is not difficult to shoot these estimates full of holes as the [plaintiff] has done. On the other hand, ... [w]e do not think this is a case where it can be really said that there would have been no profit ... had the contract been performed. We think there would have been some profit. As to the amount, we do not see that our estimate can be any better than that of the trial judge and we are satisfied with what he has done .... Smith v. Onyx Oil and Chemical Company, 218 F.2d 104, 110, 111-112 (3d Cir.1955).

The United States Court of Appeals for the Third Circuit has also allowed recovery for lost profits where some of the evidence submitted was “pretty highly speculative.” Stentor Electric Manufacturing Co., Inc. v. Klaxon Co., 115 F.2d 268, 274 (3rd Cir.1940), reversed on other grounds, 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). This court has also recognized that proof of lost profits “is not entirely of an unspeculative nature ____” General Dynafab, Inc. v. Chelsea Industries, Inc., 301 Pa.Super. at 266, 447 A.2d at 960. Such must always be the case because, as a consequence of the breach, the injured party was not only deprived of whatever profits it would have made from the transaction, but it has also been deprived of the business records necessary to determine these profits with specificity. The only situation in which specificity could have been maintained is now lost due to Merion’s course of action' breaching the contract. Having committed the breach, Mer-ion cannot now be heard to complain about imprecision in the method of estimating the profits lost to Muelles. See also Hachmeister Lind Co., 320 Pa. at 239-243, 181 A. at 790-791.

Furthermore, the imprecision encountered in this case is no greater than that encountered in survival actions brought by the estates of minors where the future earnings of the decedent minors are calculated through the use of statistical averages and future possibilities which no longer have a chance of becoming reality. See, e.g., McClinton v. White, 497 Pa. 610, 613-615, 444 A.2d 85, 86 (1982); Hall v. George, 403 Pa. 563, 556-567, 170 A.2d 367, 369 (1961). The figures relied upon by Muelles in this case are, for the purpose of calculating lost profits,' very conservative estimates of what would have been likely to happen had Merion not breached. These estimates bear a strong relationship to the factual situation and the circumstances of Muelles. Finally, we observe that an award of $200,000.00 for lost profits represents only $50,000.00 per year over the first four calendar years after Merion’s breach and the completion of Muelles’ plant. Under the very different conditions prevailing in Mexico than in the United States during the time in question, we do not believe that such an award is at all unwarranted.

We therefore reverse that part of the order of the court en banc sustaining Merion’s exception to the award for lost profits damages and reinstate the original award of $200,-000.00 in favor of Muelles originally entered by the trial judge.

We therefore remand this case to the trial court for the entry of judgment in favor of Muelles on the complaint and in favor of Muelles on its counterclaim in the amount of $220,000.00.

Jurisdiction is relinquished.

      . Merion also brought suit against another Mexican firm, Suspen-siones Y Parties Automotrices, S.A., which was found not to have been a party to the transaction or the contract. Merion does not attempt to disturb this finding.

      . There is no dispute that a contract was in fact formed. The two memoranda consisted of a list briefly describing the equipment which was the subject of the sale. On the back of each list was a note setting forth the terms of the deal. The note endorsed by Merion’s representative stated in full:
      I accept to send you this twenty-five (25) equipment working. Will check by Mr. Mota, cost you $42,250.00.
      The full text of the note signed by Muelles’ representative stated: We accept to buy this twenty-five (25) machine. No controls in the furnace, and no packing, no freight, no rigging, but working and running by $42,250.00.

      . The present practice formerly prevailed in Allegheny County only, see Act of May 5, 1981, P.L. 198, as amended, 17 P.S. § 634, repealed Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(a) [940], while in Philadelphia County, parties were required to endorse their initial pleadings indicating whether they did or did not wish to proceed before a jury. See Act of July 12, 1913, P.L. 711, as amended, 17 P.S. § 695, repealed Act of April 28, 1978, P.L. 202, 42 Pa.C.S.A. § 20002(a) [975].

      . We recognize that there is some authority holding that where, as here, there are no findings or conclusions entered by a trial judge after a non-jury trial, both the court en banc and the appellate courts “... must review the entire record ... and attempt to make our own determination of the facts.” Ballinger v. Howell Manufacturing Co., 407 Pa. 319, 322, 180 A.2d 555, 556 (1962) (action in assumpsit) (emphasis supplied). Accord: Idell v. Falcone, 427 Pa. 472, 474, 235 A.2d 394, 395 (1967) (assumpsit); Yoo Hoo Bottling Company of Pennsylvania v. Leibowitz, 432 Pa. 117, 119, 247 A.2d 469, 470 (1968) (equity); Exton Drive-In, Inc. v. Home Indemnity Co., 436 Pa. 480, 486, 261 A.2d 319, 323 (1969), cert. denied, 400 U.S. 819, 91 S.Ct. 36, 27 L.Ed.2d 46 (1970) (assumpsit) (plurality opinion in which three justices joined; two justices concurred only in the result; two justices dissented); Smith v. Peacock Construction Co., 214 Pa.Super. 324, 326, 257 A.2d 592, 593 (1969) (assumpsit); First Trinity Evangelical Lutheran Church Appeal, 216 Pa.Super. 379, 381, 268 A.2d 219, 220 (1970) (statutory proceeding by petition); Thompson v. Equitable Life Assurance Society of the United States, 218 Pa.Super. 339, 344, 279 A.2d 225, 227 (1971) (assumpsit) (dissenting opinion), reversed, 447 Pa. 271, 275-276, 290 A.2d 422, 424 (1972) (upholding views of Superior Court dissent). Of these cases, only in the last did the trial take place after the promulgation of Rule 1038. See Thompson, 447 Pa. at 273, 290 A.2d at 423. No case has been found dealing with this precise point after Thompson.

      On the whole, these cases are not well-supported by prior precedent and provide no thoughtful analysis supporting the adoption of that standard. Furthermore, these cases are irreconcilable on the manner in which to employ this fact-finding function and no standards have been set for the proper weight to be accorded the general findings or any opinions produced by the trial judge or the court en banc. Furthermore, to allow what is essentially a retrial before an appellate court is anomalous. See Spatz v. Nascone, 283 Pa.Super. 517, 544, 424 A.2d 929, 942-943 (1981). We have not had the opportunity of seeing and hearing the witnesses which is so essential to the proper performance of the fact-finding function. Finally, adherence to and application of this standard of review would either directly contravene the provisions of Rule 1038(b) by placing a de facto requirement upon the trial courts to enter detailed findings and conclusions or, in the alternative, would strangle the appellate process by imposing a burden which appellate courts are ill-equipped to bear. For these reasons, as well as for those stated in the text, we depart from this precedent.
      We also wish to note that we are not here confronted with a situation where the court en banc has with the participation of the trial judge, altered a finding of fact originally entered by that judge, cf. First Pennsylvania Savings Association v. Four Seasons Racquet Club, Inc., 287 Pa.Super. 180, 429 A.2d 1160 (1981), nor where the court en banc has entered its own findings of fact when none were entered by the trial judge.

      . Muelles argues that Merion has failed to preserve its “new business” argument on appeal. However, the issue was briefed and argued before the court en banc without objection from Muelles. Furthermore, the court en banc relied upon Muelles’ status as a new business in partial justification for the entry of its order sustaining Merion’s exception to the award of lost profits damages. We conclude, therefore, that this issue is properly before us.

      . Restatement, Contracts § 331(1) states:
      Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.

      . Restatement, Second, Contracts § 352 states:
      Damages are not recoverable for loss beyond an amount that evidence permits to be established with reasonable certainty.

      . We must reject Muelles’ argument that these authorities call for a two-step analysis, namely, that reasonable certainty is required only to establish the fact of loss and a less precise standard (or even no standard whatsoever!) to determine the amount of the loss. (Brief for Muelles, p. 17.) On the contrary, our cases stand for the proposition that reasonable certainty is required for both the fact of loss and the amount of loss sustained. Additionally, we note that this is not a requirement of mathematical certainty, but only that the estimate made as to the amount of lost profits be reasonably certain. The process of estimation, of course, need not be completely free of analytical or statistical error for that is the nature of an estimate. However, the requirement of reasonable certainty as to the amount as well as to the fact of loss assures that the finder of fact will not determine the rights of any party upon the basis of speculation.

      . At trial, Luis Garcia Torres, president of Muelles, was also called to the stand. However, counsel for both parties stipulated that Torres’ testimony "... in main ... would be that same as the previous witness,” i.e., Cano.


author: HESTER, Judge: POPOVICH, Judge,

text:
    462 A.2d 699
    COMMONWEALTH of Pennsylvania v. Joseph A. NUGENT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 22, 1983.
    Filed June 10, 1983.

      David Weinstein, Philadelphia, for appellant.
    August T. Groover, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ..
   HESTER, Judge:

On April 4, 1979, appellant, Joseph A. Nugent, was operating a six-axle crane in Darby Borough, Delaware County, Pennsylvania. Officers Mower, Terra and Blythe, of the Borough of Darby Police Department, observed the crane moving along Shelbourne Road, Wycombe Avenue and, finally, MacDade Boulevard, where they stopped it for apparent size and weight violations. When appellant presented an expired permit authorizing the operation of the oversized and overweight vehicle, the officers ordered him to drive one mile farther to a Pantry Pride parking lot for the purpose of weighing the crane with portable scales.

Each of the six axles was weighed individually by a portable scale placed under each tire. The combined weight of the six axles reflected a gross vehicle weight of 175,160 pounds; therefore, the vehicle was 101,880 pounds in excess of the legal maximum weight of 73,280 pounds for vehicles operating upon Pennsylvania highways.

Appellant was thereafter taken to District Justice Thomas J. Lacey’s office and required to post $29,400.00 as bond before the crane could be released. A summary offense hearing was subsequently conducted by District Justice Lacey; appellant was adjudged guilty of violating the maximum gross weight provision of the Vehicle Code and ordered to pay $29,400.00 as a fine. A trial de novo before the Court of Common Pleas of Delaware County resulted in the same verdict and identical fine. This appeal was promptly taken from .the judgment of sentence.

Appellant argues first that the entire weighing procedure was improperly conducted because neither Officer Mower nor Officer Terra was qualified to weigh the crane, and the multiple draft weighing process was not authorized by statute. Section 4981(a) of the Vehicle Code provides that “.... measurement and weighing shall be conducted by qualified personnel who have been trained in the use of weighing and measuring equipment in a training program approved by the Department of Agriculture.” 75 Pa.C.S.A. § 4981(a). According to appellant, Officer Terra was not certified at the time of the accident; Officer Mower admitted unfamiliarity with the Public Weighmaster’s Act; and, complete testimony indicated Terra alone was in charge.

Appellant’s recollection of testimony is erroneous. At the time of arrest, Officer Mower was a sergeant for the Borough of Darby Police Department. He received instruction for law enforcement purposes from both the Pennsylvania State Police and the Pennsylvania Department of Agriculture in the particular multiple draft weighing employed in this case. N.T., August 13, 1972, p. 13. It is not material that Mower, or the two attending officers, were unfamiliar with the Public Weighmaster’s Act. Section 4981 makes no specific reference to the Act; it simply requires training and certification following participation in a program conducted by the Department of Agriculture. Officer Mower testified to his certification and presented to the Court his certification card, later admitted as evidence. N.T. pp. 6 and 7.

We agree with appellant that Officer Terra was not qualified to properly administer the multiple draft weighing process; however, this deficiency was not fatal to the validity of the weighing procedure so employed. Officer Terra was not in charge of the weighing procedure; he was in charge of the three-man team that surveyed the crane’s movement, detained appellant and transported appellant to the magistrate’s office. The actual weighing was simply a segment of the team’s activities and the evidence demonstrated that Officer Terra yielded to the expertise of both Mower and Blythe when the multiple draft weighing began. Officer Terra did nothing more than record numbers as Officers Mower and Blythe read them aloud from the scales. N.T., p. 31. We are aware of no statutory or judicial authority which requires that more than one certified officer administer the weighing process or which would prohibit the guided assistance of non-certified officers. See Commonwealth v. Michael, 301 Pa.Super. 92, 446 A.2d 1350 (1982).

With respect to the alleged improper weighing procedure employed here, appellant maintains that multiple draft weighing is not authorized by statute. As statutory support for his position, appellant cites the Public Weighmaster’s Act.

A licensed public weighmaster shall not use any scale to weigh a load which exceeds the normal or rated capacity of the scale.
73 P.S. § 1783.

According to appellant, this section clearly, albeit impliedly, authorizes only the weighing of a single object on one scale. Appellant recognizes the propriety of multiple draft weighing for severable tractor-trailer units; however, he argues that such weighing receives no legislative or judicial sanction for single unit vehicles such as cranes.

We disagree. We interpret § 1783 of the Public Weigh-master’s Act as prohibiting the use of any scale or scales, the total weight capacity of which cannot tolerate the vehicle’s gross weight; hence, the total weight capacity can be reached by either a single unit scale or the combined readings from multiple, portable scales.

Admittedly, this interpretation does not promote a finding of compliance with § 1783 of the Public Weighmaster’s Act, were it applied. The Darby Borough officers engaged six portable scales to record that portion of the crane’s weight distributed over each of the 12 wheels. The scales had an individual capacity of 20,000 pounds and five of the twelve wheels registered a weight of 20,000 pounds. Officer Mower acknowledged that those particular portions of the axles exceeded 20,000 pounds; the scales had reached capacity and could not register the true weight. We do not consider § 1783 of the Public Weighmaster’s Act, however. Officer Mower was not a licensed public weighmaster; he was simply certified by the Bureau of Public Weights and Measures to weigh vehicles for law enforcement purposes. As such, he was not subject to the provisions of the Public Weighmaster’s Act.

Portable scales for multiple draft weighing are employed with statutory authority. 75 Pa.C.S.A. § 4981(a); 75 Pa.C. S.A. § 4981(c); Commonwealth v. Pierce, 88 Montg. 368 (1967). In recognition of a possible variance between platform and multiple weighing devices, a one percent tolerance is considered when computing the total gross weight. 75 Pa.C.S.A. § 4981(c). Consequently, the differential does not forbid, as appellant asserts, the use of multiple draft weighing. Moreover, we are not impressed with appellant’s courtroom experiment with a postal scale and model crane to demonstrate the inaccuracy of multiple draft weighing. There was no certification presented by appellant of the postal scale’s accuracy; the portion of the model crane resting on the scale was raised to a far greater proportionate height than the actual crane held in violation here. We must defer to the judgment of the legislature in authorizing multiple draft weighing. Appellant simply does not demonstrate, with complete and convincing scientific evidence, that the legislature erred in accepting the accuracy of multiple draft weighing.

Next, appellant avers that Sergeant Donald Franklin, of the Chester Police Department, was not qualified to testify as the prosecution’s expert witness. Sergeant Franklin was certified by both the Department of Agriculture and the Pennsylvania State Police in the weighing and measuring of motor vehicles; he served two to three years as an instructor of weighing and measuring with the Pennsylvania State Police; and, he had testified as an expert in approximately 3,000 truck weighing cases in the Court of Common Pleas of Delaware County. N.T. pp. 49-50. Appellant chose not to cross-examine Sergeant Franklin on his qualifications; instead, he attempted to demonstrate the Sergeant’s ignorance of weighing principles of alleged common knowledge. For instance, appellant derided Franklin for opining that postal scales could only weigh letters accurately, not model trucks; for admitting that he was neither a weighmaster nor experienced in weighing cranes; and, for opining that the principles of weighing real trucks and toy trucks were different. Appellant distorts the issue with sophistry. Sergeant Franklin received extensive instruction, was an instructor and was obviously familiar with the litigated issues arising from weighing of motor vehicles. This much was clear and unchallenged. It was also sufficient in itself to qualify him as an expert. We attribute no significance to his ignorance of postal scales and toy trucks. Further, we are not impressed with his lack of experience in weighing cranes. The Vehicle Code addresses itself to the weighing devices for all motor vehicles, whether they be automobiles, pick-up trucks, tractor-trailer units or cranes. The weighing principles and processes remain identical; experience with weighing one carries over to weighing of another. Finally, a police officer can be certified to weigh vehicles without knowledge of the law of physics. A certified operator of weighing devices need understand the importance of accurate scales, the correct weighing methodology to employ and the precise reading of the registered scales. Sergeant Franklin was equipped with this knowledge. The Department of Transportation, in conjunction with the Department of Agriculture, certifies law enforcers, not physicists.

Further, we do not believe appellant was prejudiced when the Court made the following comment on appellant’s attack of Sergeant Franklin’s qualifications: “Mr. Wein-stein doesn’t know Sergeant Franklin as we do.” N.T. p. 49. We note f:rst that there was no jury present which could have placed undue emphasis upon the court’s apparent belief. We must recognize the trial judge’s complete training and experience in non-jury trials, and allow him broader objectivity even where he expresses premature beliefs. See Commonwealth v. Neal, 258 Pa.Super. 375, 392 A.2d 841 (1978), later proceeding 493 Pa. 335, 426 A.2d 576 (1981); Commonwealth v. Conti, 236 Pa.Super. 488, 345 A.2d 238 (1975). Secondly, and most importantly, additional qualifications were elicited which established Sergeant Franklin’s expert status.

Appellant also contends that he was confronted with an emergency while moving the crane; therefore, he was excused from possessing a written permit on April 4, 1979. Section 4964 of the Motor Vehicle Code allows the suspension of written authorization and the use of oral authorization for the movement of an overweight vehicle, providing an emergency affecting the public safety exists, and providing a written permit is applied for within 72 hours of movement. Appellant maintains that his employer, Markim Incorporated, was the only supplier of cranes for the movement of containment vessels storing contaminated water from the Three Mile Island facility. Furthermore, appellant maintains that his employer was given oral permission by the Department of Transportation to operate and move all its cranes in order to contribute to the clean-up of Three Mile Island. Finally, he alleges that a written permit was applied for within 72 hours of movement of the crane.

Officer Terra testified that, at the time he stopped the crane, appellant informed him that he was driving to Sun Oil in Marcus Hook, Pennsylvania; Three Mile Island was never mentioned. N.T. p. 33. Verbal permission to move the crane was not given until six hours following the detention and weighing. William A. Eason, a District Permits Engineer for the Department of Transportation, provided the court with a list of all permits issued to appellant’s employer in March and April, 1979. None of these permits authorized the movement of any of Markim’s overweight cranes from Darby Borough to any part of the Commonwealth. Obviously, then, no permit was applied for within the required 72 hour period. We can find no authority for the transport of the particular crane involved in this appeal from the fact that Markim had permission to move its other cranes. Oral permission for the movement of other cranes is not sufficient; the particular crane at issue must receive its own permit.

We agree with appellant to the extent that the lower court limited the written permit exception to emergencies within Delaware County. Appellant is correct inasmuch as he could qualify for oral authorization to move his crane to alleviate an emergency situation outside Delaware County; nevertheless, appellant has not proven that this particular crane was actually en route to Three Mile Island or that it had received either oral or written authorization. As alluded to above, appellant admitted, at the time he was detained on MacDade Boulevard, that he was en route to Marcus Hook, Pennsylvania, a town in the southeastern corner of the Commonwealth.

Appellant also challenges the constitutionality of the fine provision for the movement or operation of overweight vehicles. Insofar as the fine provisions are designed to discourage the overloading of cargo for additional profit, they are unjustly applied, according to appellant, to crane vehicles which cannot carry cargo. We disagree with appellant’s narrow interpretation of the policy reasons for the imposition of heavy fines. The fine provisions were also designed to protect the physical composition of highways and to assure the safety of traveling motorists. Commonwealth v. Frengel, 41 Pa. D. & C. 551 (1941). Certainly, the operation of an overweight crane poses a similarly high risk to the construction of highways and the welfare of travelers.

Nor do we agree that appellant’s violation can be excused because his was not a flagrant, intentional or bad faith disregard of the law. Appellant calls our attention to his employer’s routine practice of securing permits for its oversized and overweight vehicles; he also emphasizes the obtaining of a permit for the crane that was actually earmarked for the Three Mile Island clean-up, until it was disabled as the result of mechanical deficiencies.

Criminal intent or moral wrongdoing are not indispensable elements to the commission of all crimes. Some statutory crimes are designed to give criminal treatment to wrongs that are actually more civil in nature because criminal procedure can more effectively provide redress. In fact, intent and moral depravity are not composite requirements of the Commonwealth’s burden of proof in motor vehicle cases. Commonwealth v. Hennemuth, 294 Pa.Super. 360, 439 A.2d 1241 (1981). We are concerned solely with the existence of a permit for the particular crane in question; appellant’s compliance with the law in the operation of his other vehicles is simply not deserving of judicial attention. We lack judicial discretion to soften the application of the overweight provisions of the Vehicle Code simply because appellant is law-abiding in other respects. Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963); Commonwealth v. Burall, 146 Pa.Super. 525, 22 A.2d 619 (1941).

Appellant’s reliance on Commonwealth v. Thomas, 53 Pa.D. & C.2d 657, 21 Bucks 349 (1971), and Commonwealth v. Wiggins, 18 Bucks 554 (1968), is misplaced. In both opinions, the failure to obtain a permit was the result of clerical error; there had been an all-out effort to comply with the law. In Thomas, the defendant’s employer made application for a permit to operate the overweight tractor-trailer unit involved; however, he inadvertently gave a license number applying to another tractor of identical year, make and model. In Wiggins, the defendant secured a permit for the vehicle in question authorizing a load substantially less than the actual load. The defendant made application in a cursory fashion thereby causing an erroneous recitation of the rig’s weight. In both Thomas and Wiggins, there was an attempt to apply for a permit for the actual rig there involved; the violation was the result of clerical errors in the application process. The Thomas and Wiggins courts reversed the convictions because neither defendant attempted to evade the statutory provision; they had made affirmative attempts to comply, albeit ineffectively. In the instant matter, appellant made no application for. this particular crane.

It is appellant’s next contention that the lower court erred in excluding as hearsay the testimony of Markim’s president to the extent that Markim received oral permission to operate its cranes so long as the Three Mile Island emergency existed. According to appellant, this was not hearsay since it was not offered as the truth of the matter asserted; rather, it was offered as evidence of what Markim’s president heard and why he believed the transport of the overweight crane was lawful. Once again, appellant employs specious reasoning. If the issue were whether Markim’s president heard any statement, then the alleged oral statement offered would not be hearsay because the matter asserted would be unimportant. That is hardly the case here. The issue is what specifically did Markim’s president hear. According to appellant himself, he received oral permission from the Department of Transportation to operate all its vehicles. That is the truth of a particular matter asserted in the alleged statement; no clearer example of hearsay can be concocted.

In further attempts to strengthen his non-hearsay argument, appellant notes the lower court’s admission of Mar-kim’s reiteration of its receipt of oral permission to operate its cranes; therefore, the lower court erred in disregarding such evidence and concluding no such oral permission was given. As fact-finder, the court was entitled to evaluate the integrity and credibility of Markim’s president. Obviously, the court placed more credence in the testimony of the Department of Transportation’s permit manager who was not aware of any blanket oral permission issued to Mar-kim’s fleet of motor vehicles. See Robinson v. Robinson, 183 Pa.Super. 574, 133 A.2d 259 (1957); Bobst v. Bobst, 357 Pa. 441, 54 A.2d 898 (1947). This entire hearsay issue is, nevertheless, rendered moot by the Commonwealth’s affirmative evidence, and appellant’s failure to offer refutation thereof, of the absence of an application for a written permit within 72 hours of the crane’s movement.

Finally, appellant contends that the fine was incorrectly computed. Section 4945 of the Vehicle Code provides for a fine of $75.00 plus $75.00 for each 500 pounds in excess of 3,000 pounds over the permitted maximum gross weight. Moreover, where the gross weight of the vehicle exceeds 73,280 pounds, the fine is doubled “for other weight violations”. The lower court computed the fine as follows:

175,160 pounds - crane’s gross weight
73,280 pounds - statutory maximum
101.880 pounds - gross overweight
1.752 pounds - 1% statutory allowance
3,000 pounds - § 4945(a) base
4.752 pounds - defendant’s credit
101.880 pounds - gross overweight
4,752 pounds - defendant’s credit
97.128 pounds - net overweight
97.128 pounds - net overweight
-*■ 500 pounds - units per § 4945(a)
195 units - 500-pound units
(194.256 rounded)
195 - 500 pound units
x $75.00
$14,625.00 - fine on 500-pound units in excess of 3,000 pounds over maximum gross weight allowed
$14,625.00 - fine on 500-pound units
75.00 - base fine
$14,700.00
$14,700.00
x 2 - per § 4945(a)
$29,400.00
10.00 - costs
$29,410.00 - total fine

Appellant maintains that the two-fold increase of the $14,-700.00 attributed to the 500 pound units was not properly-applied here. According to appellant, such doubling is permissible only where fines are calculated according to axle weight or wheel weight violations. Appellant’s position here is predicated upon the statutory language directing the doubling of the fine “for other weight violations.” 75 Pa.C.S.A. § 4945(a). Since the phrase is included within the gross weight violation provision, instead of the axle weight and wheel weight violation provisions, appellant reasons that “other” refers only to the latter two types of weight violations.

We are constrained to disagree. There is no logical basis for doubling the fine for wheel and axle weight violations and not for gross weight violations. The entire vehicle, axle and wheels are assigned their own maximum weight-allowances and their minimum fine and fine per unit with due regard given their individual weight bearing capacity. It is not necessarily true that any type violation is likely to bring a heavier fine than the others; therefore, the doubling of the fine is more properly applied to all three violations.

Judgment of sentence affirmed.

POPOVICH, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring and dissenting:

I concur with the majority’s disposition of all but one of the issues presented on this appeal. I respectfully dissent from the Opinion of the majority insofar as it holds that the fine imposed was properly computed.

At the time the instant violation occurred, § 4945 of the Vehicle Code provided as follows:

§ 4945. Penalties for exceeding maximum weights
(a) Gross weight violations.—Any person operating a vehicle or combination upon a highway exceeding the maximum gross weight allowed by section 4941 (relating to maximum gross weight of vehicles) or the registered gross weight allowed by section 4942 (relating to registered gross weight), whichever is less, is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75 plus $75 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum or registered gross weight allowed. If the gross weight of any vehicle or combination exceeds 73,280 pounds, the fine shall be double the amount for other weight violations.
(b) Axle weight violation.—Subject to the provisions of section 4982(c) (relating to reducing or readjusting loads of vehicles), any person operating a vehicle or combination with a weight on an axle or pair of axles exceeding the maximum axle weights allowed by section 4943 (relating to maximum axle weight of vehicles) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $100 plus $100 for each 500 pounds, or part thereof, in excess of 2,000 pounds over the maximum axle weight allowed.
(c) Wheel weight violation.—Any person operating a vehicle or combination upon a highway exceeding the maximum wheel weight allowed by section 4944 (relating to maximum wheel load) is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $100 plus $100 for each 200 pounds, or part thereof, in excess of 200 pounds over the maximum wheel weight allowed.
(d) Concurrent violations.—In any case in which there are concurrent violations of more than one of the sections or subsections of this subchapter prescribing maximum weights, the only penalty imposed shall be for violation of that section or subsection which produces the greatest fine.

(Emphasis added). 75 Pa.C.S.A. § 4945.

The gross weight violations section, 75 Pa.C.S. § 4945(a), has been amended since the time of the infraction in the present case. The current statute provides:

(a) Gross weight violations.—
(1) Any person driving a vehicle or combination upon a highway exceeding the maximum gross weight allowed by section 4941 (relating to maximum gross weight of vehicles) or the registered gross weight allowed by section 4942 (relating to registered gross weight), whichever is less, is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $75 plus $75 for each 500 pounds, or part thereof, in excess of 3,000 pounds over the maximum gross weight or the registered gross weight.
(2) If the gross weight of any vehicle or combination exceeds the applicable gross weight allowed under section 4941(a), the fine imposed under this subsection shall be doubled.

The obvious revision is the deletion of the last sentence of old § 4945(a) and its replacement with sub-section (2), which directs that the penalty prescribed by sub-section (1) shall be doubled when the vehicle’s gross weight exceeds the gross weight allowed under § 4941(a). The maximum vehicle gross weight under § 4941(a) is 73,280 pounds. The statute apparently provides that if a vehicle is in excess of its registered gross weight but not the maximum gross weight, the fine is not doubled.

Appellant contends that since the phrase in old § 4945(a), “for other weight violations,” is included within the gross weight violation provisions, the word “other” must refer to axle weight and wheel weight violations, §§ 4945(b), (c). The majority holds that there is no logical basis for doubling the fine for wheel and axle weight violations and not for gross weight violations. I disagree with the majority on this point. Since the statute in question is a penal statute, it is subject to the rule of strict construction. 1 Pa.C.S.A. § 1928(b). “Words and phrases shall be construed according to rules of grammar and according to their common and approved useage____” 1 Pa.C.S.A. § 1903(a). I interpret the phrase, “the fine shall be double the amount for other weight violations,” as calling for a double penalty for violations of wheel and axle weights when the gross weight of the vehicle exceeds 73,280 pounds. Such an interpretation is not illogical if one considers that it is possible to have a wheel weight or axle weight violation without a gross weight violation. This possibility was articulated in Commonwealth v. Cunningham, 365 Pa. 68, 73 A.2d 705 (1950), where our Supreme Court had occasion to interpret an older version of the statute in question. The Court stated:

Under section 903(g) of the Vehicle Code a person who operates on a highway a combination of a truck tractor and semi-trailer violates the statute if the weight on any axle is in excess of 20,000 pounds; he also is guilty of a separate violation of the statute if the gross weight of the combined vehicles and their loads is in excess of 45,000 pounds. A violation of the provision in regard to the weight on an axle does not constitute a violation of the gross weight, and, vice versa, a violation in regard to the gross weight does not necessarily involve a violation in regard to the weight on any of the axles because the overall weight may be excessive but may be so distributed as not to overload the individual axles. [TJherefore, section 903(g) covers separate and distinct offenses____

Id., 365 Pa. at 70, 73 A.2d at 706. In those cases where the gross weight of the vehicle is within statutory máximums, a double penalty cannot be imposed even though there may be axle weight and wheel weight violations.

If the amended statute was applicable to the instant case, the penalty assessed would have been correct. However, although we might prefer the result required by the new statute, it cannot be applied retroactively. 1 Pa.C.S.A. § 1953; Commonwealth v. Hoetzel, 284 Pa.Super. 623, 630, 426 A.2d 669, 672 (1981). The majority’s interpretation of the statute ignores the plain meaning of the phrase, “for other weight violations.” The phrase fits logically into the scheme of the penalty provision. An argument that the subsequent substantial revision of the statute has simply clarified the original intent of the legislature would have us ignore the common usage of the words of the statute and our obligation to follow the rule of strict construction of penal statutes.

The fine imposed was improperly calculated. I would amend the sentence accordingly.

      . Vehicle Code, June 17, 1976, P.L. 162, No. 81, eff. July 1, 1977, 75 Pa.C.S.A. § 4941(a).

      . Public Weighmaster's Act, April 28, 1961, P.L. 135, 73 P.S. § 1771, et seq.

      . Portable scales employed by Officers Mower, Blythe and Terra were only 2.9 inches above the asphalt surface of the parking lot. The crane was driven up slight inclines to rest on the scales.

      . 75 Pa.C.S.A. § 4964.

      . Prior to amendment of the fine provisions, Commonwealth v. Tirpak, 271 Pa.Super. 357, 413 A.2d 705 (1979), operators could surpass the amount of the fine with the additional fee from an overload; hence, there was little or no deterrence to the operation of overweight vehicles.

      . 194.256 is rounded to the higher full number; a violator must pay “$75.00 for each 500 pounds, or part thereof, in excess, of 3,000 pounds over the maximum or registered gross weight allowed.” 75 Pa.C.S.A. § 4945.

      . Amended June 18, 1980, P.L. 229, No. 68, § 5, 75 Pa.C.S.A. § 4945(a).

      . Section 1953, entitled "Construction of amendatory statute," provides:
      Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended, and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.
      1 Pa.C.S.A. § 1953.