author: ROWLEY, Judge:

text:
    562 A.2d 1385
    COMMONWEALTH of Pennsylvania, v. Betty Lee WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 5, 1989.
    Filed Aug. 21, 1989.
    Joseph Hyena, Public Defender, Norristown, for appellant.
    Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellee.

      Before CIRILLO, President Judge, and BROSKY, ROWLEY, McEWEN, OLSZEWSKI, TAMILIA, POPOVICH, JOHNSON, and MELINSON, JJ.
   ROWLEY, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Montgomery County following Betty Lee Williams’ guilty plea to a charge of possession of heroin with intent to deliver. The only issue raised on appeal is whether the sentencing court abused its discretion and imposed too severe a sentence. The case was certified to this Court En Banc to consider whether appellant’s petition for permission to appeal from the discretionary aspects of sentence should be granted. After thorough consideration of the briefs and the arguments of counsel, we deny the petition for permission to appeal.

On July 10, 1987, the Pennsylvania State Police, Montgomery County Detective’s Office, and the Pottstown Police Department obtained a tip from an informant which indicated that the appellant, Betty Lee Williams, and several other individuals were making a “drug run” to obtain heroin in New York that evening. The confidential source further revealed that Williams would be travelling on the Pennsylvania Turnpike in a light blue Chevrolet Chevette bearing Pennsylvania tag JEY-540. As a result of this information, the authorities established a surveillance network on the turnpike. At approximately 11:55 p.m., a Chevette matching the informant’s description was sighted travelling westbound on the turnpike in Upper Moreland Township, Montgomery County. The vehicle was stopped, and the occupants were searched and questioned. As a female officer approached Williams to conduct a body search, Williams voluntarily handed over a package containing fifty-seven bags of heroin which she had concealed in her bra. The drugs were seized, and Williams was arrested and detained.

On February 9, 1988, Williams entered an open plea of guilty to the charge of possession of heroin with intent to deliver. The plea was accepted by the Honorable Samuel W. Salus, and sentencing was deferred pending receipt of the pre-sentence investigation. On April 13, 1988, after a full sentencing héaring, Williams was sentenced to a term of fifteen to thirty-six months imprisonment. A petition for reconsideration was denied on April 25, 1988, and this appeal followed.

Initially, we note that Williams does not challenge the legality of her sentence. Rather, she assails the discretionary aspects of her sentence and Judge Salus’ supposed abuse of discretion in imposing it. Therefore, an appeal in this case was not taken as of right, and appellant’s appeal must be considered as a petition for permission to appeal. 42 Pa.C.S. § 9781(b); Note to Pa.R.A.P. 902; Commonwealth v. Tuladziecki, 513 Pa. 508, 511, 522 A.2d 17, 18 (1987). Because Williams is appealing the discretionary aspects of her sentence, she is required, pursuant to Pa.R. A.P. 2119(f) and the opinion of our Supreme Court in Commonwealth v. Tuladziecki, 513 Pa. at 511-12, 522 A.2d at 19, to include in her brief a separate statement of the reasons relied upon for such an appeal. Here, Williams has included in her brief a separate “statement of reasons why appeal should be granted,” thereby satisfying the requirement of Rule 2119(f) and Tuladziecki.

Accordingly, we proceed to consider whether Williams has demonstrated, as she must if we are to grant her petition for permission to appeal, that there exists “a substantial question that the sentence imposed is not appropriate” under the Sentencing Code. 42 Pa.C.S. § 9781(b). “It is only where a party can articulate reasons why a particular sentence raises doubts that [the sentencing] scheme as a whole has been compromised that the appellate court should review the manner in which the trial court exercised its discretion.” Tuladziecki, 513 Pa. at 515, 522 A.2d at 20.

What constitutes a “substantial question” under section 9781(b) must be evaluated on a case by case basis. However, we will be inclined to allow an appeal where an appellant advances a colorable argument that the trial judge’s actions were: 1) inconsistent with a specific provision of the Sentencing Code; or 2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 585 A.2d 115, 119 n. 7 (1987). It is, of course, axiomatic that sentencing is a matter that is vested in the trial court’s discretion, and we will not vacate a sentence that is within statutorily prescribed limits and remand for resentencing absent a manifest abuse of that discretion. Commonwealth v. Plank, 498 Pa. 144, 145, 445 A.2d 491, 492 (1982). The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal “furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.” Tuladziecki, 518 Pa. at 513, 522 A.2d at 20 (emphasis added).

Appellant’s “statement of reasons why appeal should be granted” is as follows:

The [sentencing] Court did not adequately consider those factors which would have mitigated against a sentence of fifteen (15) months to three (3) years of confinement. The Sentencing Court failed to consider defendant’s serious medical condition. Defendant suffers from a chronic heart condition. Defendant’s family physician advised the Sentencing Court that any term of incarceration could result in serious medical complications. Secondly, the appellant had maintained steady employment prior to her arrest despite her heart ailment. At this time, defendant was the primary source of support for her invalid son. In light of her employment and her son’s poor health, it is argued that the Trial Court failed to consider the hardship created by imposing a lengthy prison sentence. Further, testimony was presented by outstanding members of the community who verified the fact that defendant was making a sincere effort to change her lifestyle. The record reflects that Ms. Williams had numerous family and personal problems to deal with in the past several years. Unfortunately, appellant reverted back to drug usage to deal with these problems. However, the record reflects that appellant had made concrete steps to ensure a more productive and stable future prior to her incarceration.
A lengthy prison sentence will only thwart appellant’s chances for any constructive rehabilitation.
Therefore, appellant respectfully requests that this sentence be vacated and a more appropriate sentence be imposed to meet to [sic] the rehabilitative needs of the appellant.

Appellant has failed to include in this statement any specific, articulable reasons why her sentence raises doubts that the sentencing scheme as a whole has been compromised. She does not aver, for example, that Judge Salus was unaware of or misinformed about her medical condition, her steady employment history, or her efforts at rehabilitating herself. To the contrary, appellant concedes in the statement that her physician advised the court of the seriousness of her medical condition, that “outstanding members of the community” informed the court of her efforts to change her lifestyle, and that “the record reflects” both the problems that have beset her in the past and the efforts that she was making “to ensure a more productive and stable future.” Thus, although she asserts that the sentencing court “failed to consider” or “did not adequately consider” various factors, her statement makes clear that the court was in fact provided with adequate information on which to base its sentencing decision. “It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.” Commonwealth v. Devers, 519 Pa. 88, 102, 546 A.2d 12, 18 (1988) (holding that where pre-sentence report exists, reviewing court will presume that sentencing court was aware of relevant information regarding defendant’s character and weighed those considerations along with mitigating statutory factors). The essence of appellant’s Rule 2119(f) statement is that Judge Salus, after considering the information provided to him, should have imposed a lesser, “more appropriate” sentence. In effect, appellant asks this Court to substitute its judgment regarding an appropriate sentence for that of Judge Salus. Such a statement does not raise a substantial question that the sentence imposed was in fact inappropriate. Commonwealth v. Billett, 370 Pa.Super. 125, 131, 535 A.2d 1182, 1185 (1988).

Moreover, a “summary of argument” is provided for elsewhere in an appellate brief. The purpose of a separate statement of reasons relied upon for allowance of appeal is not to summarize appellant’s argument on the merits of the discretionary sentencing issue, but to enable this Court to decide, without undertaking a studied analysis of the remainder of appellant’s brief, whether appellant’s case is one of the “exceptional cases” in which the sentencing court’s exercise of discretion should be reviewed. If, at the outset of our consideration of appellant’s petition for permission to appeal, we evaluate the substantive merits of appellant’s claim, appellant “has in effect obtained an appeal as of right from the discretionary aspects of a sentence.” Tuladziecki, 513 Pa. at 513, 522 A.2d at 19. In Commonwealth v. Gambal, — Pa. —, 561 A.2d 710 (1989), our Supreme Court held that if the brief of the appellant in an appeal from the discretionary aspects of a sentence does not include a Rule 2119(f) statement, this Court may quash the appeal, even though the opposing party has raised no objection to the absence of the statement, if “review may be significantly hampered by the lack of [the] concise statement____” Id., — Pa. at —, 561 A.2d at 713. While the Court’s opinion in Gambal is not dispositive of the present case, in which the requisite statement has been provided, it nevertheless serves to illustrate the importance to the reviewing court of the statement of reasons relied upon for allowance of appeal.

It is contemplated by [42 Pa.C.S. § 9781(b) ] that a determination of whether a substantial question exists will be made prior to a full examination of the merits of the issue of the appropriateness of thé sentence. Where a concise statement of the reasons relied upon for appeal is provided, the court’s need to delve into the detailed arguments provided in the appellant’s brief is minimized, and, thus, the inquiry into whether there is a substantial question is more clearly separated from a full consideration of the merits of the appeal.

Id., — Pa. at —, 561 A.2d at 713 (citation omitted).

Accordingly, where, as here, appellant’s Rule 2119(f) statement contains no factual averments which suggest that the sentencing scheme as a whole has been compromised, but instead merely paraphrases appellant’s argument as to why the sentencing court abused its discretion in imposing the allegedly excessive sentence, the petition for permission to appeal must be denied.

Petition for permission to appeal denied.

TAMILIA, J., concurs in the result.

      . The Court also held that ‘‘[a]fter the appeal was quashed, ... appellant’s prompt application for leave to bring his brief into conformity with the requirements of Pa.R.A.P. 2119(f) should have been granted, and the appeal reinstated upon satisfactory compliance.” Id., — Pa. at —, 561 A.2d at 714.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    562 A.2d 1389
    Yvonne MARTIN, Appellant, v. Joseph MARTIN, Appellee.
    Superior Court of Pennsylvania.
    Submitted April 24, 1989.
    Filed Aug. 23, 1989.

      Frank A. Wolfe, Ford City, for appellant.
    Robert Petrosky, Kittanning, for appellee.
    Before WIEAND, McEWEN and WATKINS, JJ.
   WIEAND, Judge:

This is an appeal from the denial of a mother’s petition to modify a custody order which had awarded custody of two daughters to their father. The trial court determined that there had not been a material change in circumstances following the original custody order and, therefore, declined to reconsider the best interests of the children. We reverse and remand for additional proceedings.

On March 1, 1988, after a full hearing, the Court of Common Pleas of Armstrong County entered an order awarding custody of Brandy Ann Martin, age fourteen, and Dawn Lynn Martin, age twelve, to their father, Joseph Martin. Less than three months later, the children’s mother, Yvonne Martin, filed a petition to modify the custody order. The court held a hearing, at which the children’s mother and maternal grandmother testified, and at which the children were again interviewed in camera. At the close of the mother’s evidence, father moved for dismissal of the petition on the ground that mother had failed to show a substantial change in circumstances adversely affecting the children. The court granted father’s motion for dismissal on the basis of Superior Court decisions holding that a party must prove a substantial change in circumstances to warrant a reexamination of the children’s best interests. See: Snarski v. Krincek, 372 Pa.Super. 58, 538 A.2d 1348 (1988); Constant A. v. Paul C., 344 Pa.Super. 49, 496 A.2d 1 (1985); Burr v. Morgart, 339 Pa.Super. 341, 488 A.2d 1155 (1985). On appeal, mother contends that the trial court abused its discretion when it declined to re-examine the best interests of the children.

In Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), the Supreme Court eliminated the requirement that the petitioning party prove a substantial change in circumstances in order to modify an order placing primary physical custody in one parent to an order of shared custody by both parents. The Court’s decision was based on 23 Pa.S.C. § 5310, which provides as follows:

Any order for the custody of the child of a marriage entered by a court in this Commonwealth or any state may, subject to the jurisdictional requirements set forth in 42 Pa.C.S. §§ 5342 (relating to purposes and construetion of subchapter) and 5344 (relating to jurisdiction), be modified at any time to an order of shared custody in accordance with this subchapter.

(emphasis added). Husband argues that the elimination of the requirement that a party show changed circumstances under Karis has application only where the petitioner seeks joint custody and does not apply where, as here, mother has not requested the court to change its order to one of shared custody but seeks a transfer of custody to herself alone.

In Jaindl v. Myers, 520 Pa. 147, 553 A.2d 407 (1989) (per curiam), the Supreme Court reversed an unpublished memorandum by a panel of the Superior Court which had held that Karis did not eliminate the need to show a substantial change in circumstances where a mother, by petition to modify, had sought to obtain primary custody of a child previously awarded to the child’s father. The Supreme Court did so by per curiam order reversing the decision of the Superior Court on the basis of Karis. The effect of this per curiam order of reversal was recognized by Chief Justice Nix who, writing in dissent, explained as follows:

Because today’s decision is based on Karis v. Karis, 518 Pa. 601, 544 A.2d 1328 (1988), it is implicitly a statement that the original custody order involved in the instant case was modifiable without proof of a “substantial change in circumstances.”
Thus the unstated result of this Court’s reversal is to signal the bar of this Commonwealth that petitions for modification of custody orders may be entertained at any time without regard to whether there have been any material changes which would warrant a reevaluation.

Jaindl v. Myers, supra, 520 Pa. at 147-151, 553 A.2d at 407-408 (Nix, C.J., dissenting).

The per curiam decision in Jaindl, which reversed an unpublished decision of the Superior Court, is binding precedent. See: Commonwealth v. Gretz, 520 Pa. 324, 325, 554 A.2d 19, 20 (1989) (per curiam) (“Although the panel decision in [this case] was supported by an unpublished memorandum, which of itself could not have been cited as precedential, our per curiam affirmance constituted a binding decision of precedential authority on the question presented to and accepted for review by this Court.”). Thus, it seems clear that the per curiam order of the Supreme Court in Jaindl is a directive that petitions for modification of custody orders may be filed at any time, and in all such cases the court hearing the petition must consider the best interests of the child or children. Although such a rule will undoubtedly increase the workload of trial courts, it will have the beneficial effect of providing closer supervision by trial courts of their own custody orders. The potential for using frequent modification petitions to harass, moreover, can be limited by the power of trial courts to award counsel fees in cases where modification petitions have been filed in bad faith to harass and annoy. See: 42 Pa.C.S. § 2503(9).

The trial court in this case stated: “After reviewing the testimony and the Briefs of counsel we are constrained to deny the Petition on the ground that a substantial change of circumstances has not taken place since our last order. Consequently, we will not reconsider the best interests of the children at this time.” Trial Court Opinion at 1.

Because the court relied on a body of case law which has now been overruled, we must reverse and remand to the trial court for further hearing and a determination of the best interests of the children.

Reversed and remanded for further proceedings consistent with the foregoing opinion. Jurisdiction is not retained.


author: BECK, Judge:

text:
    563 A.2d 94
    PENNSYLVANIA MANUFACTURERS’ ASSOCIATION INSURANCE COMPANY, Appellee, v. Ronald B. WOLFE and Rose Wolfe, His Wife, Richard C. Angino and Angino & Rovner, P.C., Appellants. PENNSYLVANIA MANUFACTURERS’ ASSOCIATION INSURANCE COMPANY, Appellant, v. Ronald B. WOLFE and Rose Wolfe, His Wife, Richard C. Angino and Angino & Rovner, P.C., Appellees.
    Superior Court of Pennsylvania.
    Argued Sept. 7, 1988.
    Filed July 11, 1989.
    Reargument Denied Aug. 31, 1989.
    Petition for Allowance of Appeal Granted Jan. 29, 1990.

      Richard C. Angino, Harrisburg, for appellants (at 96) and appellees (at 139).
    Dennis J. Bonetti, Harrisburg, for appellant (at 139) and appellee (at 96).
    Before BECK, KELLY and HESTER, JJ.
   BECK, Judge:

This case presents a question not previously addressed in our appellate case law. The issue is: Where an attorney for an injured employee who has been paid worker’s compensation benefits negotiates a structured settlement on behalf of the injured employee in the employee’s action against a third party tortfeasor, and the initial payment under the settlement is not sufficient to pay both the attorney’s fee and the subrogation claim of the employer’s compensation carrier under Section 319 of the Workmen’s Compensation Act, Pa.Stat.Ann. tit. 77, § 671 (Purdon 1989), is the attorney or the carrier entitled to first payment?

Section 319 states in pertinent part:

Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employe, his personal representative, his estate or his dependents. The employer shall pay that proportion of the attorney’s fees and other proper disbursements that the amount of the compensation paid or payable at the time of recovery or settlement bears to the total recovery or settlement. Any recovery against such third person in excess of the compensation theretofore paid by the employer shall be paid forthwith to the employe, his personal representative, his estate or his dependents, and shall be treated as an advance payment by the employer on account of any future instalments of compensation.

Pa.Stat.Ann. tit. 77, § 671 (Purdon Supp.1988).

The issue arises from the following facts and procedural history. On December 19, 1981, appellant Ronald Wolfe suffered injuries from a fall on the parking lot of Weis Markets. At the time of the injury, Wolfe was engaged in making a delivery for his employer, Allegheny Beverage Corporation. Allegheny’s worker’s compensation carrier, appellee/cross-appellant Pennsylvania Manufacturers’ Association Insurance Company (“PMA”), soon began paying Wolfe compensation benefits.

On December 18, 1983, Wolfe instituted a personal injury action against Weis Markets, the alleged third party tortfeasor. Wolfe was represented in this action by co-appellant, the law firm of Angino & Rovner, P.C. (“Angino”). Angino and Wolfe executed a contingent fee agreement whereby Wolfe agreed to pay Angino a fee equal to forty percent (40%) of the amount recovered.

There is a factual dispute between the parties as to whether Angino also agreed to represent PMA’s subrogation interest in the Wolfe personal injury suit. The parties exchanged various letters and otherwise communicated with each other both prior to institution of the personal injury suit and thereafter. PMA argues these communications form a contract between PMA and Angino pursuant to which Angino agreed to represent PMA’s interest. Angino denies that such a contract was formed.

In April 1985, serious settlement negotiations between Weis Markets and Wolfe began. The result was an agreement that the case would be résolved via a structured settlement whereby the total value of the settlement would not be paid upfront, but rather spread out over a number of years. The structure envisioned an initial payment of $110,-000 to Wolfe, which Wolfe orally agreed to pay Angino as full payment for Angino’s contingent fee, plus monthly payments to Wolfe of $1,250 for life. Wolfe was also to receive sizeable lump sum payments every five years for the next twenty-five years.

PMA objected to this proposal on the ground that it did not provide a sufficient upfront payment to reimburse PMA for compensation it had already paid Wolfe as provided by Section 319 of the Workmen’s Compensation Act. PMA also immediately retained separate counsel to protect its interests in this matter.

Weis Markets refused to consummate the settlement without PMA’s approval, obviously fearing that it would be subject to an action by PMA if the settlement was unsatisfactory to it. In order to preserve the settlement, PMA and Angino agreed to hold their dispute over the priority of their respective claims in abeyance. PMA withdrew its objection to the settlement and a settlement agreement was executed between Weis Markets and Wolfe. This agreement began with the following recital:

Plaintiffs and Defendants entered into an agreement whereby Defendants agreed to pay to Plaintiffs $110,000 in a lump sum and periodic payments of $1,250 per month for life (20 year guarantee) with additional periodic balloon payments at five (5) year intervals commencing in 1990 and continuing to 2010. Said settlement has a present value of approximately $274,000. Following said agreement Pennsylvania Manufacturers’ Association (PMA) asserted a Worker’s Compensation lien interest in the settlement. Plaintiffs contend that the $110,000 lump sum payment is to cover Plaintiffs’ 40% attorney’s fees contract and expenses. PMA contends that it has a legal right to half of the lump sum because of its Worker’s Compensation lien. Being unable to resolve the issue existing between PMA and Plaintiffs, PMA, Plaintiffs and Defendant have agreed to escrow $55,000 of the $110,000 lump sum payment. Defendants are to be released from future litigation between PMA and Plaintiffs and from any future obligations in this regard.

The Settlement Agreement further recited that PMA would execute a release of the defendants in the Wolfe action and that defendants would then issue a check in the amount of $55,000 (one-half of the initial payment) jointly payable to PMA and appellants. The check was to be deposited in an escrow account. Although PMA was not a signatory to this Agreement, the check was issued as the Agreement contemplated and it recited that it was tendered by defendants in final settlement of all claims.

PMA and Angino then executed an Escrow Agreement governing the escrow of the $55,000. The Escrow Agreement begins with numerous recitals providing the background giving rise to the escrow arrangement. These recitals set forth the identities of the various parties and the facts relating to Wolfe’s injury and personal injury suit against Weis Markets. The recitals continue as follows:

WHEREAS, a dispute has arisen between Angino and PMA as to PMA’s entitlement to recover its subrogation interest from the initial lump sum payment of $110,000. It is PMA’s position that it is entitled to recover the its [sic] subrogation interest from the initial lump sum payment to the extent of 60 percent of PMA’s total workmen’s compensation lien existing at the time of this Agreement and which would recognize a 40 percent attorney’s fee payable to Angino for professional services rendered in connection with developing the settlement fund.
WHEREAS, it is Angino’s position that he is entitled to recover an attorney’s fee of 40 percent of $275,000, plus expenses, or $115,000 from any initial lump sum payment. Accordingly, it is Angino’s position that no money is available to PMA from the initial lump sum payment for PMA’s workmen’s compensation subrogation lien. WHEREAS, Angino and PMA desire to create a single, interest bearing account into which the sum of $55,000 would be deposited as a security to protect PMA’s subrogation lien pending a judicial determination of the priority of various claims to the proceeds by the parties to the instant agreement.

The actual covenants of the Escrow Agreement provide only for the establishment of the escrow account, the appointment of the escrow agent, and the disposition of the account upon resolution of the dispute between PMA and Angino.

On September 20, 1985, PMA instituted suit against Wolfe and Angino in the court of common pleas. The complaint contains three counts. The first count pleads PMA’s statutory subrogation lien and requests payment of the entire amount. Thus, Count I demands payment of more than the $55,000 of escrowed monies. This count pleads that Wolfe and Angino’s conduct in refusing to honor PMA’s subrogation interest entitles PMA not only to the amount that the Escrow Agreement recites as being PMA’s claim, i.e., the total compensation benefits paid minus PMA’s proportionate share of the attorney’s fees incurred by Wolfe in settling the personal injury lawsuit, but rather to the full amount of benefits paid without deduction for any share of the fees, plus interest. The complaint alleges that this amount is $87,468.81, not including interest.

Count II of the complaint sounds in contract and alleges that Angino agreed to represent PMA in connection with the Wolfe personal injury suit, failed to do so and is, therefore, liable for damages in the amount of all benefits PMA has paid to Wolfe, plus interest.

Count III sounds in tort, and alleges that Angino was negligent in failing to protect PMA’s subrogation interest. It seeks the same damages as Counts I and II.

After discovery, both parties filed Motions for Summary Judgment. The trial court granted PMA’s motion as to Count I, finding that PMA’s statutory subrogation interest has priority over appellants’ rights, but awarded PMA only the amount of the escrowed funds. The court refused to award PMA any further sums because of Wolfe/Angino’s allegedly improper conduct in refusing to honor PMA’s subrogation interest. The court also granted Wolfe/Angino’s motion for summary judgment as to Counts II and III, refusing to award PMA any damages for breach of contract or negligence by Angino. In this regard, the court found that by entering into the Escrow Agreement, PMA had waived its right to claim any amounts in excess of the escrowed monies. In the trial court’s words:

That agreement was made for the specific purpose of obtaining a settlement in the Wolfe’s [sic] negligence action, and it embodies the outer limits of the parties’ rights and liabilities with respect to the priority of their claims.

Trial Court Opinion at 4.

Both parties appealed. We agree with the trial court’s disposition and affirm.

We begin, as did the trial court, with a consideration of Counts II and III of the complaint, as to which the trial court entered summary judgment against PMA, and with the trial court’s determination that even as to PMA’s subrogation lien, pled in Count I, PMA was limited to claiming the escrowed funds alone, plus interest. As stated above, the trial court reasoned that PMA had waived its right to pursue any causes of action against Wolfe/Angino other than that based on its subrogation lien under Section 319. Moreover, even as. to the subrogation lien, the trial court found that PMA had waived its right to pursue any funds in excess of the $55,000 in the escrow fund, plus interest.

This is unquestionably a proper resolution. PMA was confronted with a difficult situation when, on the eve of the trial of Wolfe’s personal injury suit, it became clear that the structured settlement Weis was offering would not provide enough upfront monies to cover both Angino’s fee and PMA’s subrogation lien. PMA then hired separate counsel and considered its choices. It could either prevent the settlement by withholding its approval thereof, which Weis required, or it could agree to the settlement and resolve its dispute over its subrogation lien later. The first alternative was unsatisfactory. If the case was not settled, there was a good chance that a trial would yield a defense verdict. There would then be no fund from which PMA could collect its subrogation lien.

The second choice also had its disadvantages. If the case was settled, PMA would have to release Weis from any future claims and be left to proceed against Wolfe/Angino, with uncertain results. PMA chose the latter. In doing so, PMA made a conscious decision to forego its right to prevent the structured settlement and allow the Wolfe personal injury suit to go to trial, at which PMA could have asserted its subrogation lien. PMA chose instead to permit the settlement, avoid a risky trial, and to assert its subrogation lien only against Wolfe/Angino and only under those conditions that are set forth in the various agreements between the parties. These agreements reveal that the sole right PMA reserved was a right to protect its subrogation lien under Section 319. They also reveal that PMA expressly recognized that under Section 319, this lien is limited to the amount of compensation benefits payable, minus PMA’s proportionate share of the attorney’s fees expended in obtaining the recovery against the third party tortfeasor. Both the Settlement Agreement and the Escrow Agreement are expressly premised on PMA’s recognition that its rights in this matter are limited to its subrogation lien, and that the lien is calculated by subtracting PMA’s share of attorney’s fees from benefits payable, yielding in this case a subrogation lien valued at $55,000, i.e., the escrowed amount.

This premise, on which all parties depended in agreeing to allow the settlement to proceed and to have the dispute between PMA and Wolfe/Angino resolved separately, is contained in the recitals of both the Settlement Agreement and the Escrow Agreement, as quoted above. Both agreements recite that PMA’s claim is its subrogation claim, that the value of the claim is sixty percent (60%) of the compensation already paid by PMA, and that the resolution of this claim and this claim alone would be pursued separately by PMA and Wolfe/Angino.

PMA would have us ignore these recitals and consider its agreement to escrow funds in a vacuum. This we cannot do, as our Supreme Court has specifically stated that:

The recital of a fact upon the truth of which the execution of a contract is dependent and which, reflecting a joint attitude of mind, is made an integral and essential part of a contract, is conclusive in the absence of mistake sufficient to reform the contract.

Kefover v. Potter Title and Trust Co., 320 Pa. 51, 57, 181 A. 771 (1935). An exception to this general rule, not applicable to this case, arises where the recitals of background facts in the parties’ agreements are in conflict with the operative provisions of the agreements and we are faced with resolving an ambiguity. In the instant case, the agreements clearly and uniformly express the understandings of the parties and the background against which they were reached. We cannot ignore what the agreements unambiguously state.

Moreover, we have no doubt that Wolfe/Angino reasonably relied on PMA’s expressed position that it would assert a claim only to the escrowed monies and only on the basis of its subrogation interest. They may well never have agreed to the structured settlement and escrow arrangement if they envisioned that PMA would later be permitted to reverse fields and assert a claim for the entire amount of compensation payable, thereby denying liability for any contribution toward attorney’s fees, plus interest, costs and other relief, under theories ranging from professional negligence to breach of contract.

We, therefore, construe this case as did the trial court and find “the long and short of this entire litigation ... [to be] a legal question as to which party has priority to the sum of $55,000 which is now in escrow.” Trial Court Opinion at 6-7.

The trial court’s grant of summary judgment in favor of Wolfe/Angino on Counts II and III of PMA’s complaint is affirmed.

We now turn to the resolution of the admittedly difficult question of which of- the competing parties is entitled to first payment out of the initial lump sum payment from the structured settlement. We emphasize that this is a question of priority of payment and not of entitlement. Both parties clearly deserve to be paid. PMA had a duty to pay worker’s compensation benefits to Wolfe and it fulfilled this duty. Its recompense for such payments is its right to be subrogated to any recovery by Wolfe against a third party tortfeasor. Trumble [Trumbull] v. Paris Linen and Decorating Shops, 95 Montgo. Co. R. 125, aff'd mem., 249 Pa.Super. 629, 377 A.2d 1004 (1977), allocatur denied 11/10/77. On the other hand, there would be no fund from which to compensate PMA if it were not for the services of Angino in representing Wolfe in the third party action and in settling it. Thus, it would appear that the equities are in equipoise and our difficult task is to construe and apply the law, knowing that whatever the result, payment to one party will be delayed.

Determining who shall be paid first is a question of statutory construction. That is, where there is a structured settlement and some monies are paid at the outset, but the initial payment is not enough to cover the claims of both the attorney for the employee and a subrogated employer/carrier, does Section 319 contemplate that the injured employee’s attorney shall be paid first out of those monies, or does it contemplate that the employer/carrier will be paid first? In actuality, this problem was probably never contemplated by the legislators in drafting Section 319. The section was last amended in 1972, well before the advent of structured settlements as a popular means of resolving disputes. Moreover, there is no Pennsylvania case specifically addressing this issue. Thus, we must glean the proper application of Section 319 to this issue from more general principles regarding the meaning of Section 319 and the policies that underlay it. Our review of these principles and policies convinces us that the subrogation right is primary and attaches immediately upon recovery or settlement by the employee with the third party.

An employer’s right to be subrogated to the recovery of a compensated employee against a third party is an equitable right. Workmen’s Compensation Appeal Board v. Del Vecchio, 23 Pa.Commw. 244, 351 A.2d 691, 693 (1976). As such, the purpose of providing the right is to achieve substantial justice between the parties. Since the employer has already paid benefits to the employee, when the employee recovers funds from another in compensation for the same injury, the employer is subrogated so that it is reimbursed for payments made and so that a double recovery by the employee is prevented. Dale Manufacturing Co. v. Bressi, 491 Pa. 493, 421 A.2d 653, 654 (1980). Section 319 expresses this right unequivocally, stating that the employer “shall” be subrogated to the right of the employee against the third party tortfeasor.

The Supreme Court has recently commented on the mandatory nature of the employer’s subrogation right. In Winfree v. Philadelphia Electric Co. & Allis-Chalmers Corp., 520 Pa. 392, 554 A.2d 485, 487 (1989), the court noted that the purpose of the act is to provide the employee with an exclusive right to benefits from his employer without proving fault. In exchange for this right, the act provides the employer who has paid such benefits a subrogation right. As the Winfree court stated, “The legislature could not have manifested more clearly its intent that the subrogation rights [sic] of the employer is absolute____ as a general principle of law, the employer’s subrogation rights are statutorily absolute and can be abrogated only by choice.” Id.

The Supreme Court’s most comprehensive statement in recent years concerning the proper application of Section 319 is found in Rollins Outdoor Advertising v. Workmen’s Compensation Appeal Board, 506 Pa. 592, 487 A.2d 794 (1985). In Rollins, the employee had received $27,000 in compensation benefits. He sued a third party and received $67,000 in settlement proceeds. The settlement was not structured — the entire amount was paid in a lump sum. The employee then agreed with his employer’s compensation carrier that it would accept $10,000 in full payment of its subrogation claim, in exchange for which the employee would forego all future rights to compensation. The Supreme Court held that this was an illegal agreement and proceeded to determine the respective rights of the parties to the proceeds of the settlement with the third party.

The Rollins court made two calculations. First, it calculated the carrier’s credit for future compensation under the third sentence of Section 319 which provides that where the recovery of the employee against the third party exceeds the compensation already paid by the employer, the balance of the recovery that the employee receives is a credit to the employer against future compensation payable. Then, the court calculated the carrier’s liability to reimburse the employee for counsel fees and expenses incurred in prosecuting the third party action. This calculation was done in accordance with the second sentence of Section 319 which provides that a subrogated employer must give up out of its share of the recovery a proportionate amount of the attorney’s fees and expenses that the employee incurred in prosecuting the third party action. The court’s calculation of the future credit, or the “grace period” in which the carrier would be relieved of making future compensation payments to the extent that the third party recovery exceeded compensation already paid, begins with a deduction from the settlement proceeds of the employee’s contingent fee payable to his attorney in the amount of $25,000. The court’s equation deducts these fees prior to deducting the carrier’s subrogation claim.

Wolfe/Angino argue that because the Rollins court made an initial deduction for fees, the Rollins opinion establishes that the attorney’s right to payment is prior to the carrier’s right to payment. We disagree. The Rollins opinion does not address the issue presented herein. Although the Rollins court’s calculations do reflect a payment of attorney’s fees from the settlement proceeds, and then reflect deduction of the subrogated amount, we do not regard this mathematical formula as having any relevance to the priority issue we decide today. In Rollins, the settlement proceeds paid at the time of settlement were more than sufficient to pay both the entire attorney’s fees and the entire subrogation claim. The court’s calculations were solely aimed at determining the future period in which, under the third sentence of Section 319, the carrier would be relieved of paying the employee benefits to the extent that the settlement proceeds exceeded the amount of compensation already paid. This method of calculating the grace period cannot be construed as a holding that in all cases the attorney’s fee is to be paid first, no matter what prejudice may result to the subrogated party’s claim.

We also note that the Rollins court’s actual discussion of the employer’s subrogation right supports the position that the subrogation right is primary to the right of any other person to the fund, whether it be the employee himself or his attorney. After quoting Section 319, the court stated:

Thus, the compensation paid by the employer to the date of the third party recovery constitutes a claim against the recovery, payable immediately upon recovery to the employer. Any recovery in excess of the compensation paid to the date of recovery constitutes an advance of future compensation payable.

Id., 506 Pa. at 596, 487 A.2d at 796.

Further, the Rollins court commented that there was a substantial difference to the employer (or its carrier) between immediate reimbursement for compensation already paid and awaiting reimbursement by receiving a credit against future compensation payable. In Rollins, the employee had argued that it made no actual difference to the employer if it was not immediately reimbursed from the settlement proceeds for compensation already paid because the employer would ultimately be made whole by receiving a larger credit against future compensation payable. The Court responded that this assertion “ignores the value to an employer of receipt of the entire subrogation amount in a lump sum at the earliest possible time.” Id., 506 Pa. at 599, 487 A.2d at 797.

Thus, although we do not regard the Rollins opinion as having disposed of the issue presented here, we regard some of the Court’s statements as actually supporting the right of the compensation carrier to immediate payment from the recovery against the third party, prior to the claims of any other party thereto.

We also regard the precise language of Section 319 regarding the allocation of responsibility between employer and employee for attorney’s fees and expenses in the third party action as supportive of the view that the carrier’s subrogation claim is prior to the employee’s attorney’s fee claim. Section 319 in its present form dictates that the employer who has already paid benefits shall be subrogated to the right of the employee against the third party tortfeasor. Section 319 also recognizes the inequity of imposing the sole responsibility for payment of these fees on the employee since obtaining the recovery or settlement also benefits the subrogated employer. Accordingly, Section 319 states that the attorney’s fees from the third party action shall be prorated so that the subrogated employer must pay that proportion of the fees that the amount of compensation paid or payable bears to the total recovery or settlement against the third party. This provision defines the employer’s responsibility to give up a portion of its subrogation claim in order to contribute toward the employee’s attorney’s fee. The balance of the fees are the employee’s responsibility.

Were we to hold that the attorney must be paid in full for his services before the subrogated employer can receive any payment on its subrogation claim where, as here, the initial payment under the settlement will be totally exhausted by the attorney’s fees, we would be construing Section 319 in a manner contrary to its basic intent. We would effectively be forcing the employer not only to contribute the proportionate share of the fees that the statute requires the employer to pay, but also to forego the value of having its subrogation claim satisfied at the earliest possible time. By requiring the employer to await payment until future installments under the settlement are paid, we would be denying the employer the use of that money until further settlement payments are made, despite Section 319’s directive that the employer receive this money as reimbursement for benefits already paid. The attorney, on the other hand, would have been paid in full and the employee’s obligation for his share of the fees satisfied in full. We do not read Section 319 as forcing a subrogated employer to “structure” repayment of its subrogation claim, while allowing the employee and his attorney to avoid structuring payment of the attorney’s fee. Such a result would clearly undermine the intent underlying Section 319, which provides an “absolute” subrogation right to the employer in an attempt to do full justice between the parties.

By resolving this matter as we do, both parties receive a portion of the upfront settlement payment. Angino receives the proportion of his fee that the statute requires PMA to pay. PMA receives the amount in escrow. The balance of Angino’s fee must be collected from future settlement payments and Wolfe will receive the balance of the settlement as it is due. We regard this as the most equitable solution and the one most consonant with the absolute subrogation right that Section 319 grants.

Thus, we affirm the trial court’s judgment directing payment of the escrowed funds, plus accrued interest, to PMA in satisfaction of its subrogation claim for compensation benefits paid.

      . On appeal, PMA. concedes that it does bear responsibility for a proportionate share of Wolfe’s attorney’s fees in prosecuting the third party action. However, PMA contends that the total compensation paid is $93,700 and that PMA’s share of fees is only $18,400, thus leaving PMA with a total subrogation claim of $75,280. This is over $20,000 more than the amount of the escrowed funds.

        PMA Brief to this Court also contains a summary request for an award of its own attorney’s fees and expenses in prosecuting this action. We may summarily dismiss this request by noting that PMA agreed to prosecute this action to resolve all outstanding issues between the parties and there is nothing in the record to indicate that in doing so PMA conditioned its agreement to litigate these issues on Wolfe or Angino paying PMA’s fees and expenses. As we conclude infra, the instant dispute is limited to a dispute over disposition of the escrowed funds, plus interest.

      . We also note that PMA’s contract and tort claims are in a sense mooted by our disposition of their subrogation claim. By granting PMA relief on this claim, we effectively remove any damages they may have suffered as a result of Wolfe/Angino’s conduct, except to the extent that PMA waived its right to further damages. Moreover, we have difficulty in seeing how PMA could prove that Wolfe/Angino’s conduct was the cause of any damage to PMA under any circumstances. Since PMA retained new counsel before the Wolfe personal injury action was resolved, PMA was able to protect its interest fully before any damage to PMA could be done through a resolution of that action which did not take account of PMA’s interest.

      . Wolfe/Angino also attack PMA’s subrogation claim on the independent ground that PMA cannot assert a subrogation claim where the third party tortfeasor action is resolved through a settlement as opposed to being tried to a verdict because a settlement does not establish the negligence of the third party as the cause of the employee’s injuries. The trial court rejected this contention on the ground that it has recently been rejected in several appellate cases. See Helms Express v. Workmen’s Compensation Appeal Board (Lemonds), 106 Pa.Commw. 287, 525 A.2d 1269 (1987), appeal dismissed 10/88; Heiser v. Workmen’s Compensation Appeal Board, 95 Pa.Commw. 350, 505 A.2d 1060 (1986); Trumble v. Paris Linen and Decorating Shops, 95 Montg. Co.R. 125, aff'd mem., 249 Pa.Super. 629, 377 A.2d 1004 (1977), allocatur denied 11/10/77. The record reveals that this issue is also presently pending in a separate workmen’s compensation administrative proceeding between these parties concerning PMA’s right to future credit against compensation payable. The workmen’s compensation referee presiding over that matter has already determined that PMA’s subrogation claim is not invalid on the ground that the Wolfe personal injury was resolved through a settlement. The referee’s decision has been appealed to the Workmen’s Compensation Appeal Board. We find no error on this ground, but leave final determination of the question to the workmen’s compensation authorities where it properly resides. We decide today only whether, assuming PMA has a valid subrogation claim, it preempts Wolfe/Angino’s claim to the initial settlement payment. Should the workmen’s compensation authorities later determine that PMA had no subrogation claim for any independent reason, obviously all of the initial payment will be due to Wolfe/Angino.

      . We take some comfort from the fact that to a certain extent, the parties themselves created this difficult position. It is they who determined that they would not resolve the priorities question at the time of structuring the settlement or, alternatively, refuse to settle unless sufficient upfront monies were available for both. They determined that it was advisable to secure a settlement first, thereby avoiding the possibility of no fund for either to lay claim to, and then take their chances on priority of payment.


author: CIRILLO, President Judge:

text:
    563 A.2d 102
    Ruth BEDFORD v. Robert BEDFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued June 7, 1989.
    Filed Aug. 3, 1989.

      Susan E. Grosh, Lancaster, for appellant.
    Russell W. Stabler, Lancaster, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and MONTEMURO, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of support entered in the Court of Common Pleas of Lancaster County in response to appellant Robert Bedford’s petition to modify his support obligation. We affirm in part and vacate in part.

Robert Bedford (hereinafter “father”) and Ruth Bedford (hereinafter “mother”) had two children during the course of their marriage: Michael and Robert, Jr. After the parties’ divorce, a support obligation for these children, who were living with their mother, was placed upon their father. From time to time, the amount of father’s obligation was modified because of a change in circumstance which the parties brought to the court’s attention. As of November 17, 1987, father was obligated to pay the amount of eighty-five dollars per week (forty-two dollars and fifty cents each) for the support of Michael and Robert.

On April 11, 1988, father filed a petition for modification of his support obligation. In the petition, he requested a reduction in his support obligation on the ground that his son Michael was scheduled to graduate from high school on June 10, 1988. A conference on this petition was held between the parties and a domestic relations hearing officer. On June 29, 1988, the hearing officer filed a recommendation with the court suggesting that it continue father’s support obligation of forty-two dollars a week for Robert, Jr., but that it terminate father’s support obligation for Michael because he had turned eighteen and graduated from high school. Upon consideration of this recommendation, the trial court entered an order directing the parties to comply with the terms of the recommendation. See Pa.R. C.P. 1910.11(f).

On July 7,1988, mother filed exceptions to the recommendation and requested a hearing before the court of common pleas. A de novo hearing was then conducted by the trial court pursuant to Pa.R.C.P. 1910.11(i). On August 15, 1988, the trial court entered an order raising father’s support for Robert, Jr. from forty-two dollars and fifty cents a week to fifty-five dollars per week and continuing father’s support for Michael in the amount of thirty dollars per week. Regarding father’s support obligation toward Michael, the court stated: “There was no estrangement between Michael Bedford and [his father] and Michael Bed-ford was entitled to support and it would not be an undue hardship for [father] to provide support for Michael Bed-ford.” Shortly after this order was entered, father filed this appeal.

On appeal, father claims that the trial court erred by ordering him to pay support for his son Michael’s college expenses. He contends specifically that the trial court erred in the following respects:

(1) the trial court erred by failing to find that Michael’s estrangement from his father relieves his father of his duty to pay support for Michael’s college expenses;
(2) the trial court erred by ordering father to pay support towards Michael’s college expenses without considering the earning capacity of Michael and his mother;
(3) the trial court erred by not finding that Michael failed to make a good faith effort to minimize his college expenses by timely applying for scholarships, grants, and loans, and by not concluding that Michael should defer his acceptance into college until after he has timely applied for this aid; and
(4) the trial court erred by concluding that it would not be an undue hardship for father to provide support towards Michael’s college expenses.

In addressing these claims of trial court error, we are mindful that our review of the trial court’s support order is limited to a determination of whether the court abused its discretion in fashioning the award. Leonard v. Leonard, 353 Pa.Super. 604, 608, 510 A.2d 827, 829 (1986). An abuse of discretion is not “merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985) (quoting Boni v. Boni, 302 Pa.Super. 102, 109, 448 A.2d 547, 550 (1982)). A finding of abuse is not lightly made and must rest upon a showing of clear and convincing evidence. Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 356 (1986).

Father first argues that the trial court erred by not concluding that Michael is estranged from him and, further, that this estrangement bars Michael’s right to recover support from him for his college expenses. He buttresses this claim by describing the minimal amount of contact that Michael has had with him since he separated from Michael’s mother when Michael was four.

Mother counters this estrangement argument by asserting that it was father and not Michael who willfully terminated the father-son relationship by choosing not to continue to visit or communicate with his son. She urges this court to affirm the trial court’s finding that there is no estrangement between Michael and his father which would affect Michael’s right to receive support from his father for his college education.

We approach these contentions regarding the nature of the relationship between Michael and his father and its effect on father’s duty to pay support for Michael’s college education by noting that until recently only two factors were considered in determining whether to award educational support to an adult child. These two factors were: (1) the desire and ability of the child to successfully pursue post-secondary education; and (2) the ability of his or her parents to contribute to that effort without undue hardship.

See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 643, 190 A.2d 182, 184-85 (1963). By focusing exclusively on these two pragmatic factors, however, we found ourselves “champion[ing] the importance of post-secondary education over that of adult responsibility.” Milne v. Milne, 383 Pa.Super. 177, 186, 556 A.2d 854, 859 (1989) (en banc). We corrected this situation in Milne, supra, by holding that estrangement between a child and his or her parent should also be considered a factor in determining whether to award educational support for an adult child. We stated:

[W]e now make it clear that estrangement is one of the circumstances to be formally considered in deciding post-minority support cases. It should not necessarily be a complete defense to such an action, barring an award, nor even a dispositive factor, but it should be weighed in the equitable balance.

Id., 383 Pa.Superior Ct. at 197, 556 A.2d at 865. Articulating the rationale which prompted us to reach this holding, we declared:

By college age, children of divorced parents must be expected to begin to come to terms with the reality of their family’s situation. They must begin to realize that their attitudes and actions are their individual responsibilities. Whatever their biases and resentments, while one can understand how they got that way, when they become adults it is no longer appropriate to allow them to stay that way without consequence. One of a parent’s main duties in raising a child is to teach him that he must take responsibility for his actions. The time-honored way in which this is accomplished is to make certain that a child deals with the natural consequences that follow from whatever course of action was chosen. Consider the lesson we are teaching if we allow adult children to use the powers of the state to force a parent whom they have abused and rejected to contribute to their college education. This kind of message can hardly be considered one which is beneficial for the welfare of those children.

Id., 383 Pa.Superior Ct. at 190-191, 556 A.2d at 861.

The support action at issue in Milne was initiated by Caleb Milne against his mother. We concluded therein that Caleb Milne’s abusive behavior toward his mother and his willful estrangement from her was sufficient reason for us to refuse to order her to contribute towards his college expenses. Describing the factual scenario that led us to this decision, we stated:

Caleb Milne and his mother are estranged. It is undisputed that it was Caleb’s unilateral choice to leave his mother’s house. Caleb’s testimony shows his feelings of justification in cutting off relations with his mother and his lack of desire to improve them. The record indicates that, while her attempts to stay in contact with him have not been successful, she has made some efforts to leave the door open for his approach, should he wish to do so____ Perhaps, the single most compelling piece of evidence in this case is Ms. Milne’s testimony that her son “spat in my face and shoved me so that I fell over. He never spat but once. He did push me more than once. He struck me at least twice.”

Id., 383 Pa.Superior Ct. at 185, 556 A.2d at 859. Our decision not to award Caleb educational support from his mother, therefore, was based on our conclusion that Caleb unilaterally chose to reject and renounce his relationship with his mother.

In the present case, the situation is different. Unlike Caleb, Michael cannot be faulted for unilaterally renouncing his relationship with his father; one simply cannot renounce something which does not exist.

Michael and his father have not had a relationship to speak of since Michael was eleven years old and his father stopped exercising his right of visitation. Father’s reasons for discontinuing his visitation with Michael and his brother, Robert, Jr., are typical. During his visits with them, Michael and Robert, Jr. continued to chide him regarding his actions toward their mother. This behavior coupled with the children’s negative attitude toward him made his visits with them intolerable. As the years have passed and Michael has grown older, father has not made any effort to rekindle his relationship with his son.

Father, then, is not holding the door open for Michael, hoping that he will walk through it. This fact, however, does not relieve Michael of all responsibility for the distance which exists between his father and himself.

When a child is young and his or her parents get divorced, the child often becomes involved in the parents’ disputes. Because of this, the child’s view of the parents often becomes colored. One parent becomes the “good” person and the other parent becomes the “enemy.” As the child grows up, however, he must make an attempt to separate himself from his parents’ battles and begin to value each parent for whoever he or she is.

Michael has not made any effort to initiate contact with his father. Since he is now an adult asking his father for one of the benefits of their father-son relationship, this may be the time for him to to make some attempt to establish that relationship with his father. A parent is not, after all, simply another source of financial aid. See Milne, 383 Pa.Super. at 177, 556 A.2d at 854.

Consequently, we do not find that Michael is without fault for allowing the estrangement between himself and his father to continue. However, because Michael cannot be faulted for unilaterally initiating the estrangement, this does not provide a basis for denying Michael support from his father for his college education. Accord Powell v. Conway, 386 Pa.Super. 1, 562 A.2d 324 (1989) (where both father and daughter are responsible for any estrangement between them, case does not require consideration of daughter’s interaction with father “to reach a just result”). To conclude otherwise would be to reward father for neglecting his son. This we firmly refuse to do. Estrangement between a parent and child will only relieve or lessen a parent’s duty to pay support towards a child’s college education when that parent has made a concerted and good faith effort to establish and develop a relationship with his or her child, and the child has unquestionably and willfully rejected the parent’s outstretched hand. Clearly, that is not the situation in this case.

Father argues next that the trial court erred by ordering him to pay support towards Michael’s college expenses without considering the earning capacity of Michael and his mother. This contention is meritless.

The trial court clearly considered the ability of Michael and his mother to contribute to Michael’s college education in determining whether father should also contribute towards that goal. During the de novo hearing, information was elicited from mother concerning her income and expenses as well as Michael’s ability to contribute to his college expenses. In the trial court’s opinion, the court noted its findings with regard to this information. The court specifically stated its determination that Michael is making a financial contribution toward his college education by working as a computer consultant on independent projects. The court also set forth mother’s net weekly income and the outstanding debt upon which she is paying. Furthermore, it is obvious that in making the determination that father should pay support for Michael, the trial court contemplated mother’s voluntary contribution to Michael’s college education. The court stated: “[T]he court finds that Michael is entitled to support for his education, and there should be contribution from his father, as well as from his mother.” We thus dismiss this allegation of trial court error as frivolous.

Father also contends that the trial court erred by not finding that Michael had failed to make a good faith effort to minimize his college expenses by timely applying for scholarships, grants, and loans, and by not concluding that Michael should defer his acceptance into college until after he has timely applied for such aid. We disagree.

A review of the evidence in this case reveals that Michael did apply for financial aid through his college and that at the time of the hearing, he was still expecting to receive a federal grant of seven hundred and fifty dollars in conjunction with other educational loans. He did not, however, meet the deadline for applying for a scholarship through Penn State University. Nevertheless, given the circumstances of Michael’s late application to Penn State University, we cannot fault him for failing to timely apply for a scholarship through that institution.

Michael initially applied for acceptance at two colleges in New York, one of them being the Rochester Institute of Technology [R.I.T.]. While he was accepted at R.I.T. and received a three thousand dollar scholarship from that institution, Michael made the decision in late spring when no other financial aid was forthcoming that he could not afford to attend school there. At that point in time, Michael applied for and received acceptance at the York campus of Penn State University. By then, however, he had missed the deadline for applying for a scholarship through Penn State University. We believe that under these facts, Michael made a good faith effort to enroll in a school which, with the help of his parents, he could afford to attend and to obtain those forms of aid for which he was eligible.

Father argues lastly that the trial court erred by concluding that it would not be an undue hardship for him to provide support towards Michael’s college expenses. He claims that with a net monthly income of only $1,976.00 and monthly expenses totaling $2,232.00, he does not have income available with which to pay support towards his son’s college expenses.

In Pennsylvania, a parent is not legally required to pay support for his or her adult child’s college expenses if that parent is not financially able to do so. In Common wealth ex rel. Williams v. Williams, 242 Pa.Super. 550, 364 A.2d 410 (1976), we stated this rule as follows:

A [parent] has no duty to aid in providing a college education for his [or her] child, no matter how deserving, willing or able the child may be, unless the [parent] has sufficient estate, earning capacity or income to enable him [or her] to do so without undue hardship to [him or herself].

Id., 242 Pa.Superior Ct. at 552, 364 A.2d at 411 (citations omitted). See also Miller v. Miller, 353 Pa.Super. 194, 197, 509 A.2d 402, 404 (1986) (“[A] parent who has sufficient assets and earning capacity to furnish support without undue hardship for a child’s college education is charged with the duty to do so.”); Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. 640, 644, 190 A.2d 182, 184 (1963) (parent should have sufficient estate, earning capacity or income to enable him or her to pay support without undue hardship). In determining whether a parent has the ability to pay support for his or her adult child’s education, a court must consider the reasonable living expenses of that parent. Miller v. Miller, 353 Pa.Super. 194, 198, 509 A.2d 402, 404 (1986).

In the instant case, the record contains no evidence that the trial court considered father’s reasonable living expenses in determining whether it would be an undue hardship for him to pay support towards Michael’s college education. There was no discussion or testimony regarding father’s living expenses at the hearing which was held by the trial court on father’s duty to pay support. In addition, in the trial court’s opinion, there is no reference to any finding by the court concerning those expenses. Thus, while the record does include an income and expense statement which father filed, we are unable to discern whether the trial court considered father’s ability to pay support for Michael in view of the amount of father’s reasonable living expenses. See Miller, 353 Pa.Super. at 198, 509 A.2d at 404.

We must, therefore, vacate the trial court’s order of support insofar as it directs father to pay $30.00 per week for the support of Michael and remand for further proceedings consistent with this opinion. In doing so, we note that if the trial court determines that the monthly expenses listed by father on his income and expense statement are reasonable, it would be error for the court to order father to pay support for Michael since father’s monthly expenses would exceed his net monthly income. See Commonwealth ex rel. Williams v. Williams, supra, 242 Pa.Super. 550, 364 A.2d 410 (1976) (where father’s weekly net income after support payments were deducted was $125.44 and his weekly expenses were $141.46, child support order requiring him to aid in providing college education for his adult child was unjustified). If, however, the trial court determines that some of the monthly expenses claimed by father are not reasonable, the court may find that father has the ability to pay support for Michael without undue hardship to himself. In this regard, we point out that while father cannot be ordered to pay support for Michael if it would be an undue hardship on him, that does not mean that father cannot be required to make any personal sacrifices to help support his son through college. See Commonwealth ex rel. Ulmer v. Sommerville, 200 Pa.Super. at 644, 190 A.2d at 184.

Order affirmed in part and vacated in part. Case remanded to the trial court for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . Michael was absent from the de novo hearing because he was taking a placement examination at Penn State University which he was unable to reschedule.

      . Section (i) of Pa.RX.P. 1910.11 states, in pertinent part:
      If ... an order is entered and a demand for a hearing before the court is filed, there shall be a hearing de novo before the court.
      Pa.R.C.P. 1910.11.

      . Michael was an honor student in high school. In addition, he has an intelligence quotient of one hundred and seventy. Father readily admits that Michael has the ability and willingness to pursue a college education.

      . In father’s "Statement of Questions Involved" section of his brief, he lists the following three issues:
      1. Was it error to find that Michael Bedford and [father] were not estranged so as to prohibit support for post-secondary education?
      2. Was it error to find that Michael Bedford had not renounced his relationship with his father ... so as to forfeit his right to support for post-secondary education?
      3. Was it error not to find that Michael Bedford never discussed his educational plans with [his father] before applying and enrolling in college?
      All of these issues, however, raise the question of whether Michael’s action or inaction toward his father relieves his father of the duty to pay support for Michael’s college expenses. We will, therefore, address these issues as one.

      . Mother testified that father stopped visiting Michael when Michael was seven; father testified that he continued to visit Michael until he was eleven. While we have chosen to utilize the age of eleven as the point in time when father’s visits ended, it is inconsequential to our decision in this case whether father’s visitation with Michael ended when Michael was seven or eleven.

      . At the de novo hearing before the trial court, only mother and father testified regarding the relationship between father and Michael. Mother testified that she sent a letter to father sometime in 1987, informing him that Michael had won several awards in high school; she also sent him an invitation to Michael’s graduation. Father did not respond to either of these communications.
      Father testified that he sent Michael a birthday card when Michael turned twelve and that Michael failed to contact father when he received it. Father also testified that he telephoned Michael’s mother when Michael was fifteen and asked to speak with him; Michael refused to come to the phone. Mother denied that either of these events occurred.

      . According to father’s testimony, he feels unable to reach out to Michael because Michael has not ever made any attempt to show him that he had or has any feelings of love or affection toward him.

      . We strongly believe that children should discuss their post-secondary educational plans with their parents if they desire the parent to contribute toward that goal. See Milne, 383 Pa.Super. at 190, 200, 556 A.2d at 861, 866. In this case, however, we do not find Michael’s failure to consult with his father fatal to his recovery. It is clear that Michael did not discuss his college plans with his father because of the estrangement which exists between them. Moreover, Michael has chosen to attend Penn State University over several other more prestigous schools because of the cost. Michael, therefore, took into consideration the limited ability of his parents to finance his education in choosing the college in which he is enrolled.

      . This court has made various statements regarding the court’s responsibility to take into consideration the ability of an adult child to contribute to their education by applying for scholarships and financial aid. In Commonwealth ex rel. Hanerkam v. Hanerkam, 221 Pa.Super. 182, 289 A.2d 742 (1972), we stated:
      The potential availability to students of loans, grants, or self-help by part-time or summer employment does not negate the duty of the parent but does merit cognizance thereof when a serious question of undue hardship is presented.

        Id., 221 Pa.Superior Ct. at 186, 289 A.2d 742. Later, in Miller v. Miller, 353 Pa.Super. 194, 509 A.2d 402 (1986), we announced:
      It is well established that a parent who has sufficient assets and earning capacity to furnish support without undue hardship for a child’s college education is charged with the duty to do so. It is concomitantly true that the independent resources of a college-age child may be considered in determining the child's needs for support. That is not to say that a child must always contribute as much as possible to the payment of his ór her educational expenses. Clearly, if a parent can meet the support needs of a college-age child with ease, a court is free to impose a complete obligation.

        Id., 353 Pa.Superior Ct. at 198, 509 A.2d at 404 (citations omitted).


author: OLSZEWSKI, Judge: McEWEN, Judge,

text:
    563 A.2d 109
    COMMONWEALTH of Pennsylvania v. Giuseppe GAROFALO, Appellant.
    Superior Court of Pennsylvania.
    Argued March 8, 1989.
    Filed Aug. 3, 1989.

      James W. Harris, York, for appellant.
    John Flinchbaugh, Asst. Dist. Atty., York, for Com.
    Before WIEAND, McEWEN and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence after conviction for driving under the influence of alcohol pursuant to 75 Pa.C.S.A. § 3731(a)(4). On appeal, appellant raises several arguments for our review. For the following reasons, we affirm the judgment of sentence.

On June 22, 1987, at approximately 2:48 a.m., appellant was stopped by two officers from the Northern York County Police Department after the officers noted that the rear lights on appellant’s vehicle were not operational. Upon approaching the vehicle, one of the officers noted a strong odor of alcohol. Suspecting that appellant was under the influence, one of the officers requested that appellant perform several field sobriety tests. After failing two of the three tests, appellant was placed under arrest and taken to a hospital where a blood test was performed at approximately 3:35 a.m. The results of the blood test indicated that appellant had a blood-alcohol content of .12 percent.

Appellant was charged with driving under the influence under § 3731(a)(1) and (4) of the Motor Vehicle Code. After a trial by jury, appellant was convicted of operating a vehicle while his blood-alcohol level was in excess of .10 percent, a violation of § 3731(a)(4). Post-trial motions were filed and denied, and appellant was sentenced to a term of imprisonment totaling 48 hours to one year plus a fine of $500. Appellant then filed the instant appeal.

Appellant’s first contention relates to the admission of the results of his blood-alcohol test. Two arguments are advanced: first, that the introduction of the results violated the hearsay rule; and in the alternative, the introduction of the results violated the Confrontation Clause of the United States Constitution.

Before we address the merits of these claims, we must decide whether they are properly before this Court. It is well-settled that to preserve an issue for appellate review, two requirements must be met: first, the litigant must make a timely specific objection; and second, he must argue the alleged error on a post-trial motion. Commonwealth v. DeBooth, 379 Pa.Super. 522, 550 A.2d 570 (1988); Commonwealth v. Celijewski, 324 Pa.Super. 185, 471 A.2d 525 (1984); Commonwealth v. Hughes, 268 Pa.Super. 536, 408 A.2d 1132 (1979); Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). Timeliness requires a specific objection at the proper stage in the questioning of a witness and at the proper stage in the trial proceedings. In the case at bar, appellant made no objection pre-trial or during testimony of this case which would indicate that he was displeased with the results of the blood test, nor did he object to its admission into evidence. Under these circumstances, we deem these arguments to be waived, and on that basis, we reject appellant’s initial claims.

Our finding of waiver would not affect the outcome of this case were these arguments properly preserved for our review. Rather, these identical arguments were addressed and rejected by a recent panel of this Court in Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989). In that case, we held that blood-alcohol test results may be properly admitted into evidence without the presence of the technician who performed the test. We reasoned that said results fall within the business records exception to the hearsay rule and do not offend a defendant’s right of confrontation. In so doing, reliance was placed on Commonwealth v. Karch, 349 Pa.Super. 227, 229, 502 A.2d 1359, 1361 (1986), in which we stated:

It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present [citations omitted]. In Commonwealth v. Seville, [266 Pa.Super. 587, 405 A.2d 1262 (1979) ], a case directly on point with the one sub judice, the Court held that blood-alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. The Court reasoned that the test results were admissible under the hospital records exception to the hearsay rule: since a blood-alcohol test is basic and routine, it is highly reliable and thus rises beyond a mere opinion or conclusion to the level of medical fact. “No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts ... or the existence of some readily ascertained substance or chemical within the body.” Id. 266 Pa.Super. at 592, 405 A.2d at 1264. (Emphasis added). Even if the hospital records are hearsay, “... the elements of trustworthiness serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all persons who may have had a hand in preparing it.” Commonwealth v. Seville, 266 Pa.Super. at 492, 405 A.2d at 1265.

Kravontka, 384 Pa.Super. at 350, 558 A.2d at 867, citing Commonwealth v. Karch, 349 Pa.Super. at 243, 502 A.2d at 1369.

In support of his argument regarding the right of confrontation, appellant relies solely on the dissent in Karch, authored by then President Judge Spaeth, in which the issue is examined from a constitutional perspective. This identical argument, rejected by the majority in Karch, was likewise rejected after an exhaustive analysis by the Court in Kravontka. Because we find this latter analysis persuasive, appellant’s adherence to the dissent in Karch would be of no avail.

Nor do we find merit to appellant’s claim that the blood test results were not properly admitted under the Business Records as Evidence Act or the Motor Vehicle Code. In the case at bar, Charlene McGrath testified that she was the custodian of the laboratory’s records. As part of her testimony, she identified the laboratory record of appellant, which showed the date and time of the taking of the sample and performance of the test. She verified that the record was printed contemporaneously with the transaction to capture the exact date and time, and that this was the standard operating procedure. She also testified concerning the time at which the blood sample was taken and the eventual time at which it was tested. Moreover, the trial court took judicial notice that the hospital in which the test was taken was an approved laboratory for purposes of performing such blood tests at the time appellant’s test was performed. See Pennsylvania Bulletin, Vol. 17, No. 41, October 10, 1987. As such, all equipment, personnel, and procedures used are qualified and approved in accordance with 75 Pa.C.S.A. § 1547(c)(2) to allow admission of the record. Under these circumstances we conclude, as in Kravontka, that the mere fact that Ms. McGrath did not see the actual testing of appellant’s blood and the fact that appellant did not have an opportunity to cross-examine the actual test taker would not warrant a conclusion that the trial court erred by admitting the blood test results.

Next, appellant claims that 75 Pa.C.S.A. § 3731(a)(4), the act under which he was convicted, is unconstitutionally irreconcilable with 75 Pa.C.S.A. § 1547(d)(3). Appellant contends that the former statute mandates conviction for blood-alcohol percentage greater than .10 percent, whereas the latter statute, which uses the word “may,” implies conviction is permissive only. We disagree.

When reviewing a challenge to the constitutionality of statutes, there is a strong presumption in favor of a finding of constitutionality. An Act of Assembly will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution. All doubts are to be resolved in favor of sustaining the legislation. Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 196, 200, 484 A.2d 751, 754 (1984); Commonwealth v. Robinson, 497 Pa. 49, 52, 438 A.2d 964, 966 (1981); Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154, 425 A.2d 419, 421 (1981). In the present case, appellant has misconstrued the language of the statutes in question. Section 3731(a)(4) mandates that a person shall not drive a vehicle when his blood-alcohol level is .10 percent or greater. On the other hand § 1547, an evidentiary provision, states that a chemical test of the blood or urine may be introduced as evidence when seeking a conviction under § 3731; it does not mandate punishment or provide a burden of proof. Therefore, we find that the two statutes are wholly consistent with each other. Accordingly, we reject this claim.

Finally, appellant contends that the Commonwealth was unable to prove that, at the time of arrest, his blood alcohol content was .10 percent or greater. He argues that since the blood sample was taken at 3:35 a.m. while the actual analysis was performed at 11:20 a.m., a delay of approximately eight hours, the Commonwealth failed to prove beyond a reasonable doubt that he was intoxicated while driving as required by 75 Pa.C.S.A. § 3731(a)(4). We disagree.

Appellant is apparently laboring under the misguided notion that the results of the test pertain to his blood alcohol level at 11:20 a.m., rather than the time the actual blood sample was taken. To the contrary, Charlene McGrath, testifying as an expert in the field of blood analysis, related that shortly after a blood sample is removed it is placed in a preservative which will halt any chemical changes in the blood. According to Ms. McGrath, this procedure insures that as long as the sample is tested within twenty-four hours, it will reflect an accurate representation of the blood alcohol level at the time of the drawing of the blood. Here, appellant’s blood was drawn at 3:35 a.m., therefore, the results of the analysis of that blood, conducted well within the twenty-four hour limitation, pertain to that time period. Since appellant was arrested at 2:48 a.m. that same morning, the actual delay between the time appellant was operating his vehicle and the time the test was taken amounted to forty-seven minutes.

Under these circumstances, we find that the proper resolution of this issue is contained in the analysis of this Court in Commonwealth v. Boyd, 373 Pa.Super. 298, 541 A.2d 21 (1988) (en banc). In Boyd, relying in part on the analysis set forth in Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986), we determined that the Commonwealth need not attempt to offer evidence relating back to a blood alcohol test taken some time after a defendant’s arrest. According to both decisions, the Commonwealth is merely required to provide evidence beyond a reasonable doubt that a defendant was operating a vehicle while intoxicated. In so doing, the Commonwealth may introduce the test results as evidence of a defendant’s guilt, and their introduction alone does not compel a finding of guilt, especially where there is competent evidence of record challenging their accuracy. Commonwealth v. Boyd, 373 Pa.Super. at 300, 541 A.2d at 22.

Instantly, evidence was presented that appellant upon being stopped by police smelled strongly of alcohol, failed two of three field sobriety tests, and admitted to previously consuming four gin and tonics. Appellant's challenges to his blood alcohol test, rejected previously in this opinion, do not relate to the accuracy of the results, nor was any competent evidence introduced to suggest an inaccuracy. Under these circumstances, we conclude that a jury could properly find appellant guilty of operating a vehicle in violation of 75 Pa.C.S.A. § 3731(a)(4). We therefore reject his final claim.

Judgment of sentence affirmed.

McEWEN, J., files a concurring statement.

McEWEN, Judge,

concurring.

The author of the majority view quite correctly concludes that application of the principles presently prevailing in this Commonwealth require rejection of the arguments of appellant. Moreover, the fine expression of the majority, in rejecting the constitutional challenge, relies upon the careful rationale of our eminent colleague Judge Zoran Popovich in Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989). I write only to observe that I, most respectfully, do not share the view of my colleagues that the presentation of reports of blood alcohol analysis does not violate the rights of an accused under the Confrontation Clause of the United States Constitution. I forego expression of the basis for my conclusion since it in major measure mirrors the rationale already provided in the dissenting opinion of our esteemed former colleague and President Judge Edmund B. Speath, Jr., in Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986).

      . Appellant argues the following issues:
      1. The verdict of guilty is contrary to the weight of the evidence.
      2. The verdict of guilty is contrary to the evidence introduced at the trial of the defendant.
      3. The verdict of guilty is contrary to law.
      4. Did the learned Trial Judge err in permitting the results of the blood test to be admitted into evidence on the strength of the testimony of Charlene McGrath?
      5. Was the defendant denied his constitutional rights under the [C]onfrontation [C]lause of the Sixth Amendment by the admission of the blood test results without the presence of the lab technician, Carlene DeLuca?
      6. Was the Act under which the defendant was convicted, 75 Pa.C.S.A. [§] 3731(a)(4), unconstitutional because it is irreconcilable with 75 Pa.C.S.A. [§] 1547(d)(3)?
      7. Did the Commonwealth prove the level of alcohol in the defendant’s blood at the time of the stop?
      8. Did the evidence offered by the [C]ommonwealth showed [sic] the result at the time of the test and not at the time of driving?
      9. The Commonwealth did not prove beyond a reasonable doubt that the defendant was guilty of Driving Under The Influence, while the level of alcohol in his blood was .10% or greater.
      Brief of appellant at p. 3.

        Issues 1 through 3, despite being addressed by the trial court in the nature of a sufficiency of the evidence argument, are clearly boilerplate. As such, these specific arguments preserve no issue for appellate review; therefore, they are waived. See Commonwealth v. MacSherry, 371 Pa.Super. 164, 537 A.2d 871 (1988); Commonwealth v. Gregory, 309 Pa.Super. 529, 455 A.2d 1210 (1983) (boilerplate issues not preserved by the mere fact that the trial court addressed them in its opinion). In any event, in light of our disposition of the remaining issues, it is our determination that these specific issues are completely meritless. Therefore, for either reason, they must be rejected.

      . The pertinent parts of § 3731(a) provide as follows:
      § 3731. Driving under the influence of alcohol or controlled substance
      (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
      ******
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
      75 Pa.C.S.A. § 3731(a).

      . Appellant claims that the Commonwealth failed to lay a proper foundation prior to admittance of the test results. He argues that the testifying witness, Charlene McGrath, did not identify any blood record or testify about record keeping practices at the hospital where the test was taken. As such, he contends that the Commonwealth did not meet the requirements of 42 Pa.C.S.A. § 6108 which provides in pertinent part:
      (b) General Rule. — A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or otherwise qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.
      42 Pa.C.S.A. § 6108(b).

      . Appellant claims that the Commonwealth failed to show that his blood test was conducted by a qualified person as set forth in 75 Pa.C.S.A. § 1547(c) as follows:
      (c) Test results admissible in evidence. — In any summary or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
      75 Pa.C.S.A. § 1547(c).

      . Section 1547(d)(3) states as follows:
      If chemical testing of a person’s breath, blood or urine shows that the amount of alcohol by weight in the blood of the person tested is .10% of greater, this fact may be introduced into evidence if the person is charged with violating section 3731.
      75 Pa.C.S.A. § 1547.

      . In Boyd, the delay between the arrest and the taking of the breathalyzer test was thirty minutes. In Speights, the delay between the two events was two hours and forty-five minutes.