author: SPAETH, Judge:

text:
    502 A.2d 1264
    Joseph Edward MARTIN v. JOHNS-MANVILLE CORPORATION, Pittsburgh Corning Corporation, Owens-Corning Fiberglas Corp., Eagle-Pitcher Industries, Inc., Forty-Eight Insulations, Inc., the Celotex Corporation, Keene Corporation, Unarco Industries, Inc., Combustion Engineering, Inc., and Raybestos Manhattan, Inc. v. INDUSTRIAL FURNACE SUPPLIES, INC. v. OWENS-ILLINOIS, INC. Appeal of COMBUSTION ENGINEERING, INC. Joseph Edward MARTIN, Appellant, v. JOHNS-MANVILLE CORPORATION, Pittsburgh Corning Corporation, Owens-Corning Fiberglas Corp., Eagle-Pitcher Industries, Inc., Forty-Eight Insulation, Inc., Celotec Corporation, Keene Corporation, Unarco Industries, Inc., Combustion Engineering, Inc., Raybestos-Manhattan, Inc., v. INDUSTRIAL FURNACE SUPPLIES, INC., Owens-Illinois, Inc.
    Superior Court of Pennsylvania.
    Argued April 25, 1983.
    Filed Dec. 20, 1985.
    Petition for Allowance of Appeal Granted July 1,1986.

      Richard K. Willman, Pittsburgh, for appellant in No. 1322 and for appellee in No. 1323.
    William R. Caroselli, Pittsburgh, for appellant in No. 1323 and for appellee in No. 1322.
    Patrick R. Riley, Pittsburgh, for Owens, appellee.
    Kathleen S. McAllister,' Pittsburgh, for Celotec, appellee.

      Before CERCONE, President Judge, and SPAETH, HESTER, CAVANAUGH, WICKERSHAM, WIEAND and HOFFMAN, JJ.
   SPAETH, Judge:

This is an asbestosis case. It is before us on remand from the Supreme Court of Pennsylvania. We had reversed the trial court’s order denying appellant’s post-trial motions and had ordered a new trial on damages. Martin v. Johns-Manville Corp., 322 Pa.Super. 348, 469 A.2d 655 (1983). The Supreme Court reversed and remanded with instructions that we consider an issue that we had found it unnecessary to decide: Whether the trial court erred in instructing the jury that it could reduce any award of damages for appellant’s disability by the percentage of his disability due to cigarette smoking. Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985). On this issue we affirm.

In 1978 appellant, who had been an asbestos worker for thirty-nine years, became unable to work. His family physician, Arthur R. Koenig, M.D., had previously diagnosed appellant as having emphysema. The causes, he thought, were appellant’s exposure to asbestos products and his cigarette smoking. N.T. Vol. Ill at 184-86. Appellant became a smoker in about 1941. N.T. Vol. I at 349. His smoking increased over the years and in the 1960’s and 1970’s he was smoking two packs of cigarettes per day. Id. at 350.

On April 16, 1978, appellant filed a complaint alleging that the defendants who had manufactured the asbestos products that he had worked with over the years were strictly liable for his disability on the theory that they had failed to warn of the dangerous propensities of those products. The case was tried to a jury from November 9 to 24, 1981. Appellant states in his brief that “loss of past and future earning capacity taken to a work expectancy of sixty-five years of age was in excess of $177,000.” Brief for Appellant at 9. See N.T. Vol. Ill at 134-37. The jury awarded appellant $67,000.

Appellant argues that there was no factual basis for the trial court to charge the jury that it could reduce the amount of any award of damages by the amount of appellant’s disability due to his cigarette smoking. The trial court’s charge in this regard was as follows:

If after considering all of the evidence you find that Martin’s condition was solely due to his smoking cigarettes, you would not award him any damages. If, however, you find that his condition was solely due to exposure to asbestos, then you would award him the full amount as you determine those damages to be. If, however, you find that his condition is due both to his cigarette smoking and to his exposure to asbestos, then you first determine what the total amount of damages are, and then the next thing you do is determine what percent of his condition is due to cigarette smoking, and then you will reduce the total amount by the percentage that you find is due to cigarette smoking.
N.T. Vol. V at 86-87.

In its opinion the trial court cites Section 433A of the Restatement (Second) of Torts in support of its charge. That section provides:

(1) Damages for harm are to be apportioned among two or more causes where
(a) there are distinct harms, or
(b) there is a reasonable basis for determining the contribution of each cause to a single harm.
(2) Damages for any other harm cannot be apportioned among two or more causes.
Restatement (Second) of Torts § 433A (1965).

It was for the trial court, as an initial matter, to determine whether the evidence permitted apportionment:

It is the function of the court to determine
(b) whether the harm to the plaintiff is capable of apportionment among two or more causes.
Id. § 434.

Upon determining that the evidence did permit apportionment, the trial court was bound to instruct the jury on apportionment, see Heymann v. Electric Service Manufacturing Co., 412 Pa. 338, 194 A.2d 429 (1963); Perigo v. Deegan, 288 Pa.Super. 93, 431 A.2d 303 (1981). Of course, we will not reverse the trial court’s refusal to award a new trial unless the court has abused its discretion. See Becker v. Butler County Memorial Hospital, 249 Pa.Super. 321, 378 A.2d 316 (1977); Williams v. Pepsi-Cola Metropolitan Bottling Co., 240 Pa.Super. 578, 362 A.2d 314 (1976).

Appellant does not argue that the trial court erred in applying Section 433A. Neither does he argue that the damages that the jury awarded were inadequate. Instead, he argues that an instruction on apportionment of damages is only warranted if there is evidence as to the percentage of the plaintiff’s disability attributable to cigarette smoking and the percentage attributable to asbestosis, and that here, such evidence was not produced. We are not persuaded by this argument. While appellant is correct that none of the physicians who testified at trial as to his condition was able to assign a percentage to each of the causes of his disability, we are aware of no case requiring such assignment. In our view, the evidence that was produced was sufficient to enable the jury to reach a reasonable approximation of the harm due to each cause.

Six physicians testified at length regarding appellant’s condition. In addition to Dr. Koenig, Jerome F. Wiot, M.D., a radiologist, Murray Sachs, M.D., a pulmonary specialist, and David Laman, M.D., also a pulmonary specialist, testified on appellant’s behalf. Morris Zachary Gardner, M.D., a radiologist and John G. Shively, M.D., a pulmonary specialist, testified on behalf of appellees. Their testimony on the question of the causes of appellant’s disability may be summarized as follows.

Dr. Sachs, Dr. Wiot and Dr. Laman agreed that appellant suffered from pulmonary disease having both obstructive and restrictive components. See, e.g., N.T. Vol. II-A at 10; N.T. Vol. I-A at 764-65. Dr. Wiot explained that with an obstructive lung disease, the airway passages in the lungs are blocked. Id. at 724. Dr. Sachs explained that with a restrictive lung disease, the lungs do not fill to capacity. He illustrated restrictive lung disease by the example of an attempt to blow up a balloon in a milk bottle: “You can blow up the balloon so far and then the confines of the milk bottle will prevent the balloon from expanding any further. That is what we mean by restrictive lung disease, something that is preventing the lung from expanding to what it should be able to expand to.” Id. at 768.

Testimony of appellant’s witnesses established that asbestosis is primarily a restrictive lung disease, id. at 769-70 (Sachs); 726 (Wiot), and that emphysema and chronic bronchitis, primarily caused by cigarette smoking, id., are obstructive lung diseases. Dr. Laman stated, however, that while cigarette smoking is a substantial factor in the development of obstructive lung disease, asbestosis has an obstructive component as well, for when asbestos fibers become deposited in small airways in the lungs the air passages become blocked. N.T. Vol. II-A at 16.

Dr. Wiot, whom appellant had retained to examine his chest x-rays, but who had not otherwise examined appellant, described his findings at trial with the use of the x-rays. He observed “emphysematous changes” and “bullous changes” in the upper portion of the lungs. N.T. Vol. I-A at 667. He explained that bullous changes represent a breakdown in pulmonary tissue and are indicative of emphysema. Id. at 693-94. See also id. at 776-77 (testimony of Dr. Sachs). Dr. Wiot also stated that the x-rays showed “long-standing obstructive lung disease.” Id. Dr. Laman testified that it is not uncommon for cigarette smokers to develop bullae. N.T. Vol. II-A at 23. See also N.T. Vol. I-A at 694 (Wiot). Dr. Wiot and Dr. Sachs agreed that appellant had emphysema. N.T. Vol. I-A at 694, 776-77.

In further reviewing appellant’s x-rays at trial, Dr. Wiot observed pleural plaques from the mid-zones of the lungs down. Id. at 669-70. Dr. Laman and Dr. Sachs likewise found pleural plaques in the lower two-thirds of the lung field. N.T. Vol. II-A at 12; Vol. I-A at 749. Dr. Wiot, Dr. Sachs and Dr. Laman agreed that pleural plaques are caused by inhalation of asbestos fibers. Id. at 697-98, 769-70; Vol. II-A at 13-14. Dr. Wiot described the system used to classify pleural plaques by the density of the opacity and by the number of opacities present in the lungs. Although he described the opacities found in appellant’s lungs as small and irregular, he noted that the size of the opacity bears little relationship to the extent of disability that a person has suffered. N.T. I-A at 667, 683-84.

Testifying for appellees, Dr. Shively stated that appellant’s chest x-ray showed one pleural plaque consistent with asbestos and that pulmonary function studies that he had conducted of appellant revealed a restrictive lung problem. N.T. Vol. IV at 106-10. Dr. Gardner testified that in his review of appellant’s x-ray he also found pleural plaques but that they were of “the most minimal positive category. I definitely did identify'them but in very, very low quantity, very mild, very minimal.” Id. at 14-16. He further stated that while the plaques were consistent with asbestosis, he would expect to find more of them before making a diagnosis of asbestosis. Id. 17-18. He thus concluded that the x-rays “are not absolutely diagnostic of asbestosis.” Id. at 18. Both Dr. Shively and Dr. Gardner agreed that the x-rays showed chronic obstructive lung disease, caused, Dr. Shively stated, by smoking. Id. at 13, 107.

As to the causes of appellant’s disability, his witnesses agreed that both asbestosis and cigarette smoking were significant factors. Dr. Sachs testified as follows:

Q. Now, Mr. Caroselli [counsel for appellant] asked you what role asbestosis played in that disability and I am going to ask you, are you able to differentiate and tell us what role the emphysema played in his disability?
A. I can’t separate these two diseases for you in terms of percentage. My opinion is that both play a significant role in this man’s disability, but I have no way of equating them or breaking them down. I can’t tell you that asbestos contributed 48% and emphysema 52%, I don’t know how to do that. There is no way I know of to separate these two diseases which are so closely intertwined.
I believe that both of them exist to a significant degree and they are both significant factors in this man’s disability. That is the best I can do with that.
Q. Would the impairment due to chronic bronchitis and due to emphysema be disabling?
First of all, can you answer that: Maybe you don’t know.
A. I don’t know how much emphysema he has because superimposed on the emphysema is a significant amount of pleural thickening and fibrosis in the lungs. So if we were to take those away, I don’t know if the remaining lung would be normal or not. I have no way of knowing that.
Q. Just so I understand it correctly, what you are saying is you can’t tell us the degree to which this man would be disabled solely from the chronic bronchitis and the emphysema?
A. I don’t know how to give you a percentage.
Q. However, my understanding is that it is your opinion that the emphysema and bronchitis are significant factors in whatever disability he may have?
A. That is correct.
Q. And am I correct that his longstanding cigarette smoking is a significant factor in his disability?
A. It is a factor in the sense that it enhances the genesis of bronchitis and emphysema and many people think it enhances the genesis of asbestosis. That is it enhances the fibrosis of asbestosis and certainly enhances the associated complication of asbestosis.
Q. Touching on that point while we are talking about chronic obstructive lung disease, am I correct that the cause of that disease syndrome would be Mr. Martin’s cigarette-smoking history? Would that be a cause?
A. Yes, I believe that that is the most likely affiliated factor.
N.T. Vol. I-A at 787-89.
Dr. Laman testified:
Q. And do you have an opinion, Doctor, with reasonable medical certainty whether or not his abestosis is a substantial factor in his total and permanent disability?
A. Yes. His asbestosis is a substantial factor in his total and permanent disability.
Q. And finally, Doctor, are you able to ascribe or indicate to the jury what percentage of his disability is total and permanent disability as attributable to his asbestosis and what percentage is attributable to his cigarette smoking?
A. It is not possible for me to separate out the relative contribution of cigarette smoking and asbestos from the cause of his obstructive pulmonary disease and the cause of his total and permanent disability. Both factors are important in producing the effect and the pulmonary disability that he has.
N.T. Yol. II-A at Í8-19.

It was Dr. Shively’s view that while “there were radio-graphic findings consistent with asbestosis____[t]here was no evidence ... that the asbestos exposure ... contributed at all to [appellant’s] impairment.” N.T. Vol. IV at 115. He gave the opinion that appellant’s disability was caused by chronic obstructive lung disease with pulmonary emphysema and chronic bronchitis, which in turn were caused by cigarette smoking. Id. at 114.

In considering “whether the harm to the plaintiff is capable of apportionment among two or more causes,” Restatement (Second) of Torts § 434(l)(b), supra, we note that harm may be apportioned either when the plaintiff has suffered distinct harms, or when there are separate causes of a single harm. Id. § 433A, supra. While it is apparent from the testimony at trial that appellant suffered separate harms — chronic bronchitis, emphysema and asbestosis — the “harm” for which he sued and as to which the jury found him entitled to recover was his disability. Thus it was for the trial court to decide, under Section 434 of the Restatement (Second) of Torts, supra, whether the causes of appellant’s disability, as testified to at trial, were fairly capable of apportionment.

Comment a to Section 433A of the Restatement explains in general when invocation of that section is appropriate:

The rules stated in this Section apply whenever two or more causes have combined to bring about harm to the plaintiff, ... They apply where each of the causes in question consists of the tortious conduct of a person____ The rules stated apply also where one or more of the contributing causes is an innocent one, as where the negligence of a defendant combines with the innocent conduct of another or with the operation of a force of nature, or with a pre-existing condition which the defendant has not caused to bring about the harm to the plaintiff. The rules stated apply also where one of the causes in question is the conduct of the plaintiff himself, whether it be negligent or not.
Restatement (Second) of Torts § 433A comment a.

Thus, Section 433A is directed at the “causes” of harm, not at the manner in which the harm is brought about. That is, the section may be applied when the defendant’s conduct was negligent or when the defendant was strictly liable for his conduct. Moreover, and of particular importance in this case, damages may be apportioned if the plaintiff’s conduct, even though innocent, has contributed to the harm. Thus, the question whether appellant was negligent in smoking cigarettes is irrelevant to deciding whether his damages may be reduced because of the part that smoking played in his disability.

Further comment to Section 433A explains that certain kinds of harm “are normally incapable of any logical, reasonable, or practical division.” Examples of such indivisible harms are death, a broken limb, or “any single wound.” Thus, “[b]y far the greater number of personal injuries ... are ... normally single and indivisible.” Comment i. The comments and examples make clear that damages may be apportioned if any reasonable basis exists for doing so:

A negligently scratches B’s arm with a nail. The wound becomes infected, and B negligently fails to consult a physician until the infection has seriously damaged the arm. A is not liable for the aggravation of harm caused by B’s negligence.
Restatement (Second) of Torts § 433A, illus. 10.

See also Prosser & Keeton, Torts 345 (5th ed. 1984) (“Where a factual basis can be found for some rough practical apportionment, which limits a defendant’s liability to that part of the harm which that defendant’s conduct has been a cause in fact, it is likely that the apportionment will be made.”).

Here, the principal question is not as appellant argues, whether the respective percentage contributions of asbestosis and bronchitis and emphysema were proved, but whether there was a reasonable basis for the jury to apportion appellant’s disability among those causes. We note that we are not aware of any other case in which section 433A has been used to apportion damages in an asbestosis case. Evidence of cigarette smoking has, however, been held admissible to show the possible causes of lung cancer in an asbestos worker. See, e.g., Gideon v. Johns-Manville Products Corp., 761 F.2d 1129 (5th Cir.1985).

In support of the argument that no reasonable basis for apportioning damages exists, appellant relies upon Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 424 A.2d 902 (1981), a case in which we held apportionment to be improper, and which appellant argues is analogous to this case. We are unable to agree. In Wade, the Groves Company contracted to dump waste and fill on the Williams property, as a result of which, water drainage problems were created on the Wade property, and when it rained, water and other debris flowed onto their land. In an action by Mr. and Mrs. Wade against the Groves Company and Mrs. Williams, the trial court apportioned the damages between the Company and Mrs. Williams. Reversing, we said:

In the case at bar there were neither distinct harms nor a reasonable basis for determining the contribution of each cause to a single harm. The single resulting harm of silt and debris being deposited upon the Wades’ land was caused jointly by appellee Williams and appellant Groves Company. The negligence of both combined to cause a single injury. No specific part nor any hypothetically separate portion of the injury was singularly caused by one or the other.
283 Pa.Super. at 473-74, 424 A.2d at 906-07.

Here, in contrast, appellant’s witnesses’s testified that the smokers’ diseases of emphysema and chronic bronchitis as well as asbestosis were significant “specific parts” of appellant’s disability. Moreover, the jury saw the x-rays and heard Dr. Wiot’s explanation of the “specific parts” — bullae, indicative of emphysema, in the upper portion of the lungs, and pleural plaques, indicative of asbestosis, in the lower portions. The jury knew, from appellant’s testimony, the length of time he had been an asbestos worker and a smoker. That the testimony did not establish the exact proportion that each disease contributed to appellant’s disability suggests, not that the damages should not have been apportioned, but only that medical science has not yet been able to calculate the proportions as exact percentages. This inability does not diminish the fact that the causes of the harm were, unlike the indivisible harm in Wade, distinct and capable of rough approximation.

Affirmed.

      . Appellant died before this case was argued in the Superior Court.

      . Appellant retired at the age of 58. During his last year of work he earned $19,650. If he had made the same amount in each of the six years until he reached age 65, his total wage loss would have been about $118,000.

      . One commentator has suggested that when evidence is produced that cigarette smoking has contributed to an asbestos worker’s lung disease, the court might reduce damages in proportion to the extent that smoking caused the disease and in doing so should consider a number of factors, including the number of years the plaintiff smoked, the extent, duration and intensity of his exposure to asbestos, the nature and severity of the disease, the costs of required health care and the amount of damages awarded. Special Project, An Analysis of the Legal, Social, and Political Issues Raised by Asbestos Litigation, 36 Vanderbilt L.Rev. 573, 632 (1983).

      . It may be noted that in two opinions, Smialek v. Chrysler Motors Corp., 290 Pa.Super. 496, 434 A.2d 1253 (1981), and Embrey v. Borough of West Mifflin, 257 Pa.Super. 168, 390 A.2d 765 (1978), we have applied Section 433A when the victim died.


source: Caselaw Access Project

author: SPAETH, President Judge: BECK, Judge,

license: Public Domain

text:
    502 A.2d 1271
    In re ESTATE OF Darrell DORONE. Appeal of William DORON and Carol Doron, Parents and Natural Guardians of Darrell Dorone, a/k/a Darrell Doron.
    Superior Court of Pennsylvania.
    Argued June 6, 1985.
    Filed Dec. 27, 1985.

      William R. Bell, Philadelphia, for appellants.

      Before SPAETH, President Judge, and McEWEN and BECK, JJ.
   SPAETH, President Judge:

This is an appeal from two orders of the Court of Common Pleas of Lehigh County appointing a temporary guardian to consent to blood transfusions as necessary during emergency surgery on appellants’ son, who was a patient at The Lehigh Valley Hospital Center and was unconscious as the result of an automobile accident. Appellants’ son was a Jehovah’s Witness and had purportedly signed a medical alert card to the effect that for religious reasons he did not wish to be given blood transfusions. Appellants argue that the court should have appointed them as temporary guardians of their son, rather than a hospital administrator, and that the orders authorizing blood transfusions infringed their son’s right to self-determination and his First Amendment right to freedom of religion. As it developed, at least one blood transfusion did prove necessary during the surgery. As appellee, the hospital where the surgery was performed argues that appellants have waived all issues by failing to file exceptions to the court’s orders. It also argues that the case is moot. We hold that the failure to file exceptions will be excused; that the case is not moot; and that the court’s orders did not violate the rights of appellants’ son, either to self-determination or freedom of religion. We therefore affirm the orders.

1

We must consider appellee’s arguments first, for if all issues have been waived, or the case is moot, that is the end of the matter.

The trial court issued the orders in response to emergency telephone calls during which the patient’s attending surgeon and the assistant hospital administrator said that the patient was unconscious; that he would die unless surgery were immediately performed; that if complications developed during the surgery, he would die without a blood transfusion; but that the patient’s parents would not authorize a transfusion. Slip op. of tr. ct. at 1-3. It is not surprising that in these circumstances the orders were terse. The first, dated August 1, 1984, simply appointed a hospital administrator temporary guardian to consent to blood transfusions necessary incident to the surgery to be performed that day. The second, dated August 3, added as a preface the words, “it appearing that failure to appoint a temporary guardian for Darrell Dorone will result in irreparable harm to the alleged incompetent ...; ” this language tracks the statutory provision under which the trial court acted. Slip op. of tr. ct. at 10; 20 Pa.C.S. § 5513. Neither order conformed to the form contemplated by Pa.R.C.P. 1517, which requires a statement of the issues, a statement of the facts, and a discussion of the questions of law and the court’s conclusions.

In the circumstances, we do not believe that exceptions to the orders were necessary. When an order neither comports with the requirements of Rule 1517 nor contains a suggestion that exceptions must be filed in order to preserve a right of appeal, the failure to file exceptions will be excused. Commonwealth v. Derry Township, 466 Pa. 31, 41-42, 351 A.2d 606, 611 (1976); Tallon v. Liberty Hose Co. No. 1, 336 Pa.Super. 530, 534 n. 1, 485 A.2d 1209, 1211 n. 1 (1984); Storti v. Minnesota Mutual Life Insurance Co., 331 Pa.Super. 26, 28-29, 479 A.2d 1061, 1062; Barton v. Penco, 292 Pa.Super. 202, 204, 436 A.2d 1222, 1223 (1981). But see Cornell v. D’Italia, 287 Pa.Super. 233, 429 A.2d 1186 (1981). Accordingly, appellants’ failure to file exceptions did not result in waiver of the issues appellants seek to have us decide.

The question remains, however, whether these issues have become moot. As a general rule an actual case or controversy must exist at all stages of the judicial process, and a case once “actual” may become moot because of a change of facts. Pennsylvania Coal Mining Association v. Commonwealth, Department of Environmental Resources, 498 Pa. 1, 444 A.2d 637 (1982); Commonwealth v. Joint Bargaining Committee for Pennsylvania Social Services Union, 484 Pa. 175, 398 A.2d 1001 (1979); In re Gross, 476 Pa. 203, 382 A.2d 116 (1978); Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966). An exception is made, however, for cases in which the issues are capable of repetition but likely to evade review if the general rule on mootness is applied. Stottlemyer v. Stottlemyer, 458 Pa. 503, 329 A.2d 892 (1974); Wiest v. Mount Lebanon School District, 457 Pa. 166, 320 A.2d 362 (1974), cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974); Commonwealth v. Joint Bargaining Committee, supra, 484 Pa. at 175, 398 A.2d at 1001; Sherrer v. Lamb, 319 Pa.Super. 290, 466 A.2d 163 (1983). Thus a case will not be found moot when the challenged action is in its duration too short to permit full litigation and there is a reasonable expectation that the same complaining party will be subject to the same action again, Commonwealth v. Roger Buehl, Appeal of Philadelphia Newspapers, Inc., 316 Pa.Super. 215, 462 A.2d 1316 (1983), citing Weinstein v. Bradford, 423 U.S. 147, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975), or, in a class action, when there is a “constant existence of a class of persons suffering the deprivation,” Sherrer v. Lamb, supra, 319 Pa.Super. at 295, 466 A.2d at 166, citing Gerstein v. Pugh, 420 U.S. 103, 111, 95 S.Ct. 854, 861, 43 L.Ed.2d 54 (1975). Where the same party will not be subject to the harm again and the action is not a class action, still, the case will not be found moot if the issues capable of repetition but likely to evade review are “substantial questions,” or “questions of public importance.” Colonial Gardens Nursing Home, Inc. v. Bachman, 473 Pa. 56, 373 A.2d 748 (1977); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976); Goldsmith v. Lower Moreland School District, 75 Pa.Cmwlth. 288, 461 A.2d 1341 (1983); accord In re Remley, 324 Pa.Super. 163, 471 A.2d 514 (1984).

Here we may assume that the particular patient, appellants’ son, is not reasonably likely to suffer another emergency involving surgery incident to which he is subjected to a transfusion by court order. However, there is a large class of other Jehovah’s Witnesses, and it is reasonably likely that at least some of these will be involved in emergencies in which a doctor will seek a court order authorizing a transfusion. Moreover, the issues raised by this case are capable of evading review if the general rule of mootness is applied, for a transfusion ordered by a court in an emergency will always be given before the appellate process can be completed. Finally, the rights alleged to have been violated include the First Amendment right to freedom of religion, a matter of public importance. We therefore conclude that this case is not moot.

Our Supreme Court’s decision in In re Gross, supra, is not to the contrary. There the Court held that the appeal of an order denying an injunction to halt administration of medication against the patient’s will was moot after the patient was released. The case is distinguishable because the law under which the medication was administered, and which the appellant was challenging as unconstitutional, had been amended before the appeal was heard. Id., 476 Pa. at 203, 382 A.2d at 116.

2

On the merits of this case, the issue presented is narrow. Specifically, it is: was the evidence that the patient would refuse a blood transfusion of such quality that the court should not have appointed a temporary guardian to consent to a transfusion being given? Obviously, this is not an abstract question; it can only be answered in the context of the particular facts of the situation that confronted the court. We must therefore start our discussion by stating what those facts were.

On July 30, 1984, the patient was injured in an automobile accident in New Jersey. Surgery was performed, but he lapsed into a coma and was transported by helicopter to appellee, the Lehigh Valley Hospital Center, a regional trauma center, arriving there on August 1. Slip op. of tr. ct. at 3.

On August 1, counsel for appellee orally petitioned the trial court for authority to administer a blood transfusion to the patient. A brief ex parte hearing was conducted by telephone. The court heard testimony by the patient’s attending surgeon and the assistant hospital administrator, the testimony being transcribed by an official court reporter who was listening on an extension. Slip op. of tr. ct. at 2. The doctor testified that the patient had “an acute subdural hematoma” and that “without surgery, death [was] imminent.” N.T. 8/1/84, 2. The doctor further testified that the patient was in the operating room awaiting surgery, and that while it might “be possible to do the surgery without a blood transfusion,” “very rapid” and “severe” bleeding might result that “would require transfusion in order to save his life.” Id., 2-3. The assistant hospital administrator testified as to the patient’s name and age, which he believed to be 22 years. Id., 5. The trial court “found that the patient would die if surgery were not immediately performed”. Slip op. of tr. ct. at 2. The court “also found that [the patient] would die without a blood transfusion if complications developed during the operation”. Id. (footnote omitted). The court entered an order appointing the hospital administrator “temporary guardian to consent to blood transfusions to be administered to [the patient] in connection with surgery being performed by [the doctor at the hospital]”. Order of 8/1/84. Immediately after the hearing, surgery was performed. The temporary guardian was present during the surgery, and consented to a transfusion. Slip op. of tr. ct. at 4.

On August 3, on oral petition by counsel for appellee, a second ex parte hearing was conducted by telephone, the testimony again being transcribed by an official court reporter who was listening on an extension. The attending surgeon testified that the patient had developed a blood clot in the brain and that he believed that the clot should be surgically removed immediately because the patient was “in danger of sinking further into a coma of irreversible massive brain damage” and was “in danger of death from that.” N.T. 8/3/84, 6. The doctor further testified that the patient’s blood count was already “dangerously low”, and that if no transfusion could be administered during the surgery the patient “could die from the hemorrhage [that might result]”. Id., 5-6. Finally, the doctor testified that he had spoken with the patient’s father, mother, and fiancee, and also his minister, and that while the father had signed forms consenting to the surgery — both the surgery that had been performed on August 1st and the surgery that the doctors believed should be performed on August 3rd — they had not consented to a blood transfusion because they were Jehovah’s Witnesses. Id., 6-7. The assistant hospital administrator testified, indicating his willingness again to serve as the patient’s temporary guardian, id., 9, and the court thereupon entered an order appointing him “temporary guardian to consent to blood transfusions to be administered” in connection with the surgery and the patient’s recovery. Order of 8/3/84.

After the doctor and temporary guardian had departed for the operating room, the court received word that an attorney was telephoning from his law office in Philadelphia. The attorney was “patched into the conference call ... and then verbally entered his appearance for [the patient]”. Slip op. of tr. ct. at 8 n. 21. A rather extended colloquy between the court, the attorney, and counsel for appellee ensued. The court summarized what had occurred before the attorney’s call, concluding by saying that it was about “to dictate on the record an order formalizing” its verbal appointment of the temporary guardian. N.T. 8/3/84, 13. The court then invited the attorney to make such statement as he wished. Id. In the ensuing statement the attorney said that he assumed that when the patient was injured, he was carrying a medical alert card. Id., 14-15. He explained that as a member of Jehovah’s Witnesses he himself carried such a card. Id. The court responded that at the August 1st hearing it had been advised that the patient had been carrying “some kind of card identifying him as a Jehovah’s Witness and indicating something about blood transfusions”, but that the court had not seen the card because it apparently had been left in New Jersey with the patient’s personal effects when the patient was transported by helicopter to appellee hospital. Id. 14-17. With the court’s permission, the attorney read from his card. He said that his card included the statements: “I direct that no blood transfusions be administered to me even though others deem such necessary to preserve my life or health”. “This is in accord with my rights as a patient and my beliefs as one of Jehovah’s Witnesses.” “I hereby release the doctors and the hospital of any liability for damages attributed to my refusal. This document is valid, even if I am unconscious, and it is binding upon my heirs or legal representatives.” And, “The Bible commands: Keep abstaining from blood”. The attorney further described his card as providing a place for the bearer’s signature. Id., 16-18.

As we have noted at the outset of this opinion, appellants argue that they should have been appointed temporary guardians, and that in appointing the hospital administrator temporary guardian to consent to blood transfusions, the trial court infringed their son’s, the patient’s, right to self-determination and his First Amendment right to freedom of religion. In support of this argument, appellants cite cases in which courts have allowed competent Jehovah’s Witnesses to refuse blood transfusions. Appellants reason from these cases that the trial court should have applied the doctrine of substituted judgment, under which a court will try to determine what an incompetent patient would have done had the patient been able to make a decision. Had the trial court applied this doctrine, appellants maintain, it should have found from the evidence of the patient’s possession of a medical alert card, his standing as a Jehovah’s Witness, and the refusal of appellants as his parents to consent to a transfusion, that the patient would himself have refused a transfusion. Brief of Appellants at 81.

We know of no Pennsylvania appellate decision applying the doctrine of substituted judgment to allow refusal of medical treatment in any circumstances, and appellants have cited none. Moreover, where the doctrine has been followed, it has typically been applied to allow refusal of life-preserving treatment on behalf of an incompetent who is terminally ill or has a limited life expectancy, Superintendant of Belchertown State School v. Saikewicz, 373 Mass. 728, 370 N.E.2d 417 (1977); Matter of Conroy, 98 N.J. 321, 486 A.2d 1209 (1985); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976); Matter of Storar, 52 N.Y.2d 363, 438 N.Y.S.2d 266, 420 N.E.2d 64 (1981), or where the treatment is not contemplated in a life-threatening situation, In re Boyd, 403 A.2d 744 (D.C.1979). Appellants have cited no case in which the doctrine has been applied as they urge it should be here: to refuse, in an emergency and against the treating physician’s advice, to provide life-preserving treatment to a young adult who, if the treatment is successful, will return to competency, with a full life expectancy.

The Court of Appeals for the District of Columbia has cautioned against application of the doctrine of substituted judgment in such circumstances. In In re Osborne, 294 A.2d 372 (D.C.1972) the court said:

Whenever possible it is better for the judge to make a first-hand appraisal of the patient’s personal desires and ability for rational choice. In this way the court can always know, to the extent possible, that the judgment is that of the individual concerned and not that of those who believe, however well-intentioned, that they speak for the person whose life is in the balance. Thus, where the patient is comatose, or suffering impairment of capacity for choice, it may be better to give weight to the known instinct for survival which can, in a critical situation, alter previously held convictions. In such cases it cannot be determined with certainty that a deliberate and intelligent •choice has been made.
Id. at 374-75.

The approach taken by the Supreme Court of New Jersey in its recent decision in Matter of Conroy, supra, is also instructive. That case concerned a petition by the guardian of an incompetent, terminally ill nursing, home patient, seeking permission to remove her feeding tube. In discussing how to determine what the patient would have done if able to choose for herself, the Supreme Court said that it could consider a broad array of evidence, including written documents, oral directives to family members, friends, or health care providers, durable powers of attorney, reactions the patient had expressed regarding medical treatment administered to others, the patient’s consistent pattern of conduct respecting decisions about his own medical care, and the tenets of the patient’s religious belief. 98 N.J. at 361-62, 486 A.2d at 1229-30. Particularly pertinent to the issue before us is the care the court contemplated being taken to assess the probative value of such evidence; the court said that the evidence should be evaluated according to the remoteness, consistency and thoughtfulness of the patient’s prior statements or actions, and according to the patient’s maturity at the time of the statements or actions. The court also said that the length of time the patient had held the views in question should be considered, as well as whether the patient had acted on them before. Id. at 362-63, 486 A.2d at 1230. Cf. Matter of Storar, supra, 52 N.Y.2d at 379, 438 N.Y.S.2d at 273, 420 N.E.2d at 72 (proof that person now incompetent left instructions to terminate life sustaining procedures when there was no hope of recovery must be by clear and convincing evidence).

In the present case, involving a young person whose refusal of treatment would be both contrary to medical advice and life-threatening, the need for caution was particularly acute. While a medical alert card would be some evidence of what the patient would do if competént, it could not by itself support an application of the doctrine of substituted judgment. The court would still have to inquire into and consider factors such as how recently the card had been executed and the circumstances surrounding its execution. The court would need evidence on whether the patient had signed the card as an affirmation of faith and statement of unity with other members of his congregation, or whether he had really contemplated it as binding in a death-threatening situation. The court would also have to consider whether circumstances had intervened since the card had been signed that cast doubt on whether it still expressed the patient’s firm and final decision.

The trial court, however, was in no position to conduct such an inquiry. The patient was in danger of death every moment surgery was delayed. The medical alert card carried by the patient was not before the court. The court did not know the circumstances under which the patient had signed the card, or even whether he had in fact signed it. Slip op. of tr. ct. at 7 n. 19. No witnesses were present to testify regarding the firmness of the patient’s beliefs. While the court knew that the patient’s parents were at the hospital, its knowledge that they were committed to the tenets of Jehovah’s Witnesses justified the conclusion that their testimony alone would be inadequate to support a finding that the patient’s faith would not waver, even in the face of death.

The trial court states in its opinion, slip op. of tr. ct. at 16, that given the situation confronting it, it adopted the approach of United States Court of Appeals Judge J. Skelly WRIGHT, who, in similar circumstances, wrote:

The final, and compelling, reason for granting the emergency writ was that a life hung in the balance. There was no time for research and reflection. Death could have mooted the cause in a matter of minutes, if action were not taken to preserve the status quo. To refuse to act, only to find later that the law required action, was a risk I was unwilling to accept. I determined to act on the side of life.
Application of the President and Directors of Georgetown College, Inc., 331 F.2d 1000, 1009-10 (D.C.Cir.1964).

We agree with the trial court’s determination, and hold that the orders appointing the hospital administrator temporary guardian to consent to blood transfusions were properly issued.

Appellants’ argument that as the patient’s parents they should have been appointed guardians is without merit. Section 5513 of the Probate, Estates and Fiduciaries Code, under which the trial court issued its orders, provides that “notice of the petition and hearing shall be required as shall appear to the court to be feasible in the circumstances.” 20 P.S. § 5513. In the emergency situation governing the granting of these orders, the court acted within its discretion in not requiring notice to, and testimony by, appellants. The doctor testified that appellant father had consented to the surgery, and that appellants “were aware of the risks of surgery [but refused to consent to a blood transfusion]”, and “were aware that we would seek a Court Order [authorizing a transfusion].” N.T. 8/3/84, 6-7. It is evident that had the court required formal notice to appellants and heard their testimony, the result would not have been different; as we have discussed, testimony confirming appellants’ opposition to a transfusion would not have been sufficient to warrant application of the doctrine of substituted judgment. Moreover, for the trial court to have appointed appellants temporary guardians would have been self-defeating: the court knew that as guardians the parents would refuse to given the consent necessary to achieve what the court had properly found was necessary to save the patient’s life. When the appointment of a guardian is within the discretion of the court, as it was here, the court should not select as a guardian someone who has, or may have, an interest adverse to that of the incompetent. In re Voshake’s Guardianship, 125 Pa.Super. 98, 189 A. 753 (1937).

The orders of the trial court are affirmed.

BECK, J. files a dissenting opinion.

BECK, Judge,

dissenting:

I dissent.

The majority sensibly frames the issue narrowly: whether the evidence was of “such quality” that it was proper for the court to appoint a temporary guardian to consent to a blood transfusion for an adult Jehovah’s Witness member.

Unlike the majority, I would conclude that at the point that the trial court appointed the assistant hospital administrator as guardian, the court did not have evidence of “such quality” that its action should be affirmed. Other relevant evidence was available to the court and necessary for its determination.

I agree with the majority that the existence of the medical alert card alone would not support an application of the doctrine of substituted judgment. The trial court, however, did not request or hear the testimony of the patient’s parents or his fiancee, who were present in the hospital. Even in this emergency situation, the judge had readily available, by telephone, witnesses who were prepared to testify as to, among other things: whether the patient signed the medical alert card and, if he did, under what circumstances; whether the patient was an adult; and whether the patient’s beliefs were firm and whether he would have adhered to them if death was certain. The trial court should have heard this testimony.

It may well be that, in this particular case, even after hearing such testimony the trial judge would have been justified in concluding that the patient’s intent had not been sufficiently proven. The court could then have properly appointed the assistant hospital administrator as temporary guardian to consent to blood transfusions.

The majority excuses the trial court’s failure to hear the available testimony on the ground of “its (the court’s) knowledge that they (the parents) were committed to the tenets of Jehovah’s Witness.” Maj. op. at 73-74. In an action of this nature a court cannot refuse necessary testimony because it concludes on its own in advance what that testimony will be. I do not deny the urgency of the situation faced by the trial judge in this case. The parents’ and the fiancee’s testimony, however, was available to the judge on the same emergency basis as the doctor’s and the assistant hospital administrator’s, and such testimony was essential to the judge before he decided to appoint the assistant hospital administrator as guardian.

The majority cites In re Osborne, 294 A.2d 372, 374-75 (D.C.1972), for the proposition that substituted judgment should be applied reluctantly and that “it is better ... to make a first-hand appraisal of the patient’s personal desires and ability for rational choice.” Id. I would agree that a competent patient’s first-hand expression of his or her desires is the best guidepost for a court. The portion of Osborne quoted by the majority goes on, however, to conclude that, in the absence of the possibility of asking the patient, a court should “give weight to the known instinct for survival.” Maj. op. at 72. Such a statement comes very close to stating a compelling state interest in always sustaining life in any situation.

I am very concerned that by quoting with approval the above passage and by affirming the trial court’s action in spite of its failure to take available testimony, the majority’s opinion will be read more broadly than intended. I do not view the holding in this case as requiring courts in the future to approve life-preserving treatment to incompetent adults in a broad variety of emergency situations in the face of available evidence of the patient’s intent to the contrary. I would therefore emphasize the narrowness of the holding in this case. The state’s interest in preserving life must give way to the patient’s much stronger personal interest in directing the course of his own life. Matter of Conroy, 98 N.J. 321, 348, 486 A.2d 1209, 1223 (1985). Competent, persons generally are permitted to refuse medical treatment, even at the risk of death. Id., at 352, 486 A.2d at 1225. I would hold that the same should be true of incompetent persons, if it can be determined that their desires as expressed when competent would continue to constitute their present intent. See In re Osborne, supra, 294 A.2d at 375 n. 5 (rejecting view that the state must have a compelling interest in sustaining life).

Since the trial court refused to hear essential testimony, in a proper case, I would have reversed.

      . We note that appellants’ son is not himself a party to this action, and we do not intimate by our ensuing discussion that appellants have standing to raise his First Amendment rights. They do have standing, however, to argue that they should have been appointed their son’s temporary guardian, and to decide whether the trial court erred in not appointing them we must consider whether their son’s rights were violated; if his rights were not violated, as we conclude they were not, then the court’s refusal to appoint appellants his guardian violated no right of appellants.

      . Another factor that may be important in deciding whether a case is moot is the existence of a full record. Janet D. v. Carros, supra, 240 Pa.Super. at 291, 362 A.2d at 1060. Here, however, this factor is not important. Briefs have been submitted by both parties, and by the Hospital Association of Pennsylvania as amicus curiae. The hearing conducted by the trial court was short, but that was because the court viewed the situation as an emergency in which the need for the order was immediate. Slip op. of tr. ct. at 9. The issue before us is the obligation of the court in precisely such an emergency situation. We therefore do not anticipate that in another case like this one the record will be any fuller.

      . The same constitutional right was alleged to have been violated in Wiest v. Mount Lebanon School District, supra. In that case the plaintiffs were members of a high school graduating class who sought to enjoin inclusion of an invocation in their graduation ceremony as violative of the First Amendment. While the court did not specifically discuss the public importance of the issue, it found the case not moot because the issue was capable of repetition but likely to evade review. At the time of the appeal the graduation ceremony was over and the plaintiffs, having graduated, could not be subject to the same harm again. 457 Pa. at 166, 320 A.2d at 362.
      As we have noted, appellants also allege that their son’s "right to self-determination" was violated. We think it unnecessary to consider to what extent this might differ from his right to freedom of religion.

      . The Supreme Court of New Jersey has reasoned similarly in John F. Kennedy Memorial Hospital v. Heston, 58 N.J. 576, 279 A.2d 670 (1971). There the Court heard the appeal of an order appointing a guardian to consent to blood transfusions necessary to save the life of an unconscious Jehovah’s Witness, even though the transfusions had already been given. As here, it was alleged that the order violated First Amendment rights. The New Jersey Supreme Court said:
      The controversy is moot. [The former patient] is well and no longer in plaintiff hospital. The prospect of her return at some future day in like circumstances is too remote to warrant a declaratory judgment as between the parties. Nonetheless, the public interest warrants a resolution of the cause, and for that reason we accept the issue.

        Id. at 579, 279 A.2d at 671.

      . Hamilton v. McAuliffe, 277 Md. 336, 353 A.2d 634 (1976), cited by appellee at 15-17 of its brief, is also not to the contrary. In that case plaintiff sought a declaratory judgment that a court order authorizing a blood transfusion against his wishes violated his constitutional rights. The order had not been appealed to the highest court of the state. Even though the Court of Appeals found the issue moot, it specifically distinguished the situation where the judicial review of the original order was sought on appeal, and cited Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and John F. Kennedy Hospital v. Heston, supra, 58 N.J. at 576, 279 A.2d at 670, in support of the distinction. Id., 277 Md. at 341 n. 3, 353 A.2d at 637 n. 3.

      . Appellee has moved to strike appellants’ brief and reproduced record on the ground that they include exhibits not of record. We deny the motion, but we note that appellants’ action was improper, and, as will be apparent from the discussion that follows, we have confined ourselves to the facts of record.

      . It should be added, however, that even in cases involving competent patients whose refusal is based on religious grounds, the right to refuse treatment is not absolute. Instead, where courts have found the refusal of treatment valid, they have balanced the patient's right to refuse treatment against compelling state interests. Holmes v. Silver Cross Hospital, 340 F.Supp. 125 (N.D.Ill.1972); In re Osborne, 294 A.2d 372 (D.C.1972); John F. Kennedy Memorial Hospital, supra, 58 N.J. at 576, 279 A.2d at 670. Among such state interests that the courts have considered in this balancing test are the state’s interests in preserving life, in preventing suicide, in protecting dependent third parties, and in preserving the ethical integrity and standards of treatment of the medical profession. Satz v. Perlmutter, 362 So.2d 160 (Fla.1978).

      . JUDGE BECK is entirely correct in saying, in her dissent, that this opinion should be read narrowly. While we disagree with her view that the trial court should be reversed for not speaking with the patient’s parents and fiancée, we emphasize that this is because in the circumstances of this case the patient’s need for surgery was immediate; the parents had already demonstrated their own view by informing the surgeon that they would not consent to a transfusion; and the trial court simply did not have enough time to gather sufficient evidence, either in terms of quantity or quality, to warrant a finding that the patient would have refused blood transfusions if competent. Our decision today does not reach situations in which the trial court may delay its decision without risk of death or other grave and irreversible consequences to the patient, or situations where clear and convincing evidence of what the patient would do if competent is immediately available to the court.


author: MONTEMURO, Judge:

text:
    502 A.2d 1281
    COMMONWEALTH of Pennsylvania v. Christopher KAMINSKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 5, 1985.
    Filed Dec. 13, 1985.

      Edward S. Blanarik, Jr., Assistant Public Defender, Am-bridge, for appellant.
    Sheryl A. Serratta, Assistant District Attorney, Bellefonte, for Com., appellee.
    Before SPAETH, President Judge, and MONTEMURO and MONTGOMERY, JJ.
   MONTEMURO, Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Centre County after a jury trial at which appellant was found guilty of escape. 18 Pa.C.S. § 5121. Following the denial of his post-verdict motions, appellant was sentenced to two and one half to five years imprisonment. This appeal followed.

On April 28, 1983, when the alleged escape occurred, appellant was imprisoned at the State Correctional Institution at Rockview in Centre County. On the same day, a criminal complaint was filed and an arrest warrant was issued. Although a search for appellant commenced the evening of the escape, it proved to be fruitless. It was not until November 20, 1983, that appellant was finally located in Pittsburgh, Pennsylvania, at which time he was arrested on the escape charge. Appellant was detained in Pittsburgh until December 7, 1983, when he was transported to Centre County and was formally arraigned.

This unexplained delay, appellant argues, necessitated his discharge on the escape charge. He now urges this court to reverse his conviction due to the lower court’s failure to grant his motion for discharge.

Pa.R.Crim.P. 123(a) provides that:

[w]hen a defendant has been arrested in a court case, with a warrant, outside the judicial district where the warrant of arrest was issued, ■ the defendant shall be taken without unnecessary delay to the proper issuing authority in the judicial district of arrest for the purpose of posting bail, as permitted by law.

It is undisputed that appellant was not taken before the proper authority in Pittsburgh “for the purpose of posting bail.” Although he is not clear, appellant seems to argue that not only was Pa.R.Crim.P. 123(a) violated, but so too was Pa.R.Crim.P. 123(d), which deals with the procedure to be followed when a defendant fails to post bail. The remedy appellant sought for these violations was a discharge pursuant to Pa.R.Crim.P. 123(g). See N.T. March 8, 1984, at 10.

However, even if these violations occurred, subsection g of Rule 123 does not direct a particular result, but rather leaves to the discretion of the court of the issuing jurisdiction the option to either:

(1) discharge the defendant from custody; or
(2) release the defendant on bail, conditioned upon the defendant’s appearance at the preliminary hearing; and
(3) forfeit all costs, including mileage and transportation charges, of the arresting and transporting person, in order that such costs and charges shall not be taxed in the case. (Emphasis added).

In the instant case, after appellant was returned to Centre County and arraigned on the escape charge, bail was set at $5,000, although appellant was unable to post it. N.T. March 8, 1984 at 12. Thus, appellant was provided with one of the remedies specified in the subsection of the rule which he argues is applicable in this case. Appellant has presented no argument as to how the Centre County Court, which arraigned him and set bail, abused its discretion by granting him relief pursuant to Pa.R.Crim.P. 123(g)(2) and (3) rather than pursuant to Rule 123(g)(1). Our independent review of the record and of the circumstances of this case fail to unearth any such abuse by the Centre County Court. As such, we find no merit to appellant’s Rule 123 claim.

Appellant next argues that the lower court erred by denying his motion to dismiss pursuant to Pa.R.Crim.P. 1100. He argues that because 260 days elapsed between the filing of the complaint on July 28, 1983, and his trial on the escape charge on April 13, 1984, and because the Commonwealth failed to exercise due diligence in bringing him to trial within 180 days, his rights under the Rule were violated. Our review of the record convinces us that due diligence was shown by the Commonwealth, and, as such, the lower court properly excluded the 114 days between the filing of the complaint and appellant’s arrest on November 20, 1984. See Pa.R.Crim.P. 1100(d)(1). As such the Commonwealth tried appellant within the 180 day requirement of Rule 1100.

While the Commonwealth undisputedly bears the burden of proving by a preponderance of the evidence that due diligence was exercised by the police in their efforts to arrest a defendant, “due diligence,” as the term is used in the Rule 1100(d) context, means reasonable efforts are required, not perfect vigilance or exhaustive and constant investigation. Commonwealth v. Branch, 337 Pa.Super. 22, 486 A.2d 460 (1984); Commonwealth v. Laurie, 334 Pa.Super. 580, 483 A.2d 890 (1984) (cases collected). Our focus on review is to determine whether the police did what they could have done, given the information available to them. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977); Commonwealth v. Dorsey, 294 Pa.Super. 584, 440 A.2d 619 (1982).

In light of these standards, we are convinced due diligence was exercised by the Commonwealth. As stated earlier, a search of the area surrounding the prison compound commenced on the same day that appellant was found missing. That evening, “a regional message was sent” by teletype which listed appellant as an escapee. N.T. April 11, 1984, at 4-5. The next day, April 29, 1983, a helicopter search of the greater State College area ensued after an employee of the prison reported that he thought he had spotted appellant. The state policemen stationed in Centre County contacted their counterparts in Clinton County, Huntingdon County and Pittsburgh after receiving information that appellant might be found in those areas, although all the investigations which followed these communications were unsuccessful. Id. at 5-6, 12. Furthermore, another search was undertaken in Centre County between the above-mentioned aerial search and appellant’s arrest. Id. at 5. We find that this record clearly establishes the Commonwealth’s due diligence. Commonwealth v. Cooper, 333 Pa.Super. 559, 570 n. 8, 482 A.2d 1014, 1019-20 n. 8 (1984); Commonwealth v. Dorsey, supra.

Appellant’s next contention relates to testimony of defense witness Donald O’Shea. Appellant contends that the court below erred when it limited the scope of Mr. O’Shea’s testimony. This claim of error has not been preserved for our review, because not only did defense counsel fail to object to the court’s ruling, but apparently was satisfied with the trial court’s ruling. The assignment of error is therefore waived. Commonwealth v. Tallon, 478 Pa. 468, 478-79, 387 A.2d 77, 83 (1978).

Appellant next argues the evidence was insufficient to support the verdict in that the Commonwealth failed to disprove beyond a reasonable doubt the defense of duress. Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, and giving the Commonwealth the benefit of all reasonable inferences from that evidence, we disagree. Commonwealth v. Brown, 314 Pa.Super. 311, 460 A.2d 1155 (1983).

For the defense of duress to be successful, four requirements must be met, namely: “the escapee must be confronted with a specific threat of death or serious bodily injury; there must either be no time to complain to authorities, or a history of futile complaints; there must be no evidence of force by the escapee against prison personnel or others in the escape; and the escapee must return to official detention as soon as possible after leaving the prison.” Id., 314 Pa.Superior Ct. at 319, 460 A.2d at 1159. These requirements are in the conjunctive; unless all four requirements exist, the defense of duress fails. In other words, if the Commonwealth disproved, beyond a reasonable doubt, one of these prerequisites, such as the specific threat, or the expeditious return to the authorities, the Commonwealth has met its burden. See Commonwealth v. Brown, supra.

In the instant case, the evidence sufficiently disproves appellant’s contention, necessary for the duress defense, that he expeditiously returned to custody. It was undisputed that appellant remained at large for over three and a half months and that he never returned voluntarily to custody but rather was apprehended by the police. In addition, although appellant testified that he attempted to signal his counselor whom he saw driving the day after the escape, he admitted that when he saw the police who were searching for him on that same day, he hid in the laundry room of an apartment building where he had spent the night. N.T. April 13, 1984, at 88-89. His reason for not volunteering himself to the police was that “they would have probably shot me.” Id. His only justification for not returning to custody after this episode was the vague claim that he was “confused”. On the other hand, the Commonwealth established that appellant did not report to any authorities during the entire three and a half month period. Indeed, appellant’s own testimony contradicted his claim that he planned to return to custody. Given all the evidence presented, we believe the jury could have properly concluded that duress had not been established and that the Commonwealth disproved beyond reasonable doubt appellant’s defense to the crime of escape. Commonwealth v. Brown, supra, 314 Pa.Superior Ct. at 319, 460 A.2d at 1159.

Alternatively, appellant claims the Commonwealth failed to establish what he calls one of the elements of escape, i.e., that he unlawfully removed himself from official detention. See 18 Pa.C.S. § 5121(a) (“A person commits an [escape] if he unlawfully removes himself from official detention ... ”). Appellant stipulated at trial that he was “officially detained” on the day of the escape. N.T. April 13, 1984 at 21-22. Aside from appellant’s failure to establish the defense of duress, the Commonwealth did establish that appellant was not given permission to leave and that he was required to return from his work detail by approximately 4:00 p.m. on the day of his escape. Id. at 27. It is of course undisputed that he never did return. Clearly, the jury could have concluded that the elements of escape were established beyond a reasonable doubt.

Appellant also argues that the verdict was against the weight of the evidence. To the extent that appellant makes an argument in this regard, this contention appears to rest on what may be considered contradictory evidence relating to the lawfulness of his absence from the prison. Any conflict of the testimony goes to the credibility of witnesses which is solely to be resolved by the jury. Essentially, the jury chose, as was its prerogative, to believe the Commonwealth’s witnesses. We will therefore not disturb the jury’s findings. Commonwealth v. Brown, supra.

Finally, appellant contends his sentence was manifestly excessive, although he recognizes the sentence which was imposed is within the statutory range. Appellant argues that the court below did not “properly” weigh a list of mitigating factors. Our review of the sentencing hearing and the opinion of the lower court leads us to conclude that the court did consider these factors, but felt the seriousness of the offense necessitated the confinement imposed. Considering that the sentence is within the statutory limits, and that the court complied with the requirements of the Sentencing Code, we cannot find a manifest abuse of discretion based upon this record. Commonwealth v. Brown, supra. We therefore affirm.

Judgment of sentence affirmed.

      . Although the record is somewhat unclear, appellant apparently was also arrested on other, unrelated charges in addition to escape.

      . Pa.R.Crim.P. 123(d) provides: ■
      When a defendant fails to post bail, the arresting person shall:
      (1) return the defendant to the judicial district where the warrant was issued without unnecessary delay, for preliminary arraignment by the proper issuing authority, or
      (2) lodge the defendant in a suitable place of detention in the judicial district of arrest, and forthwith notify the proper issuing authority in the judicial district where the warrant was issued of the defendant’s detention, and the place of such detention. Upon receipt of this notice, the issuing authority shall, without unnecessary delay, cause the defendant to be brought to the judicial district where the warrant was issued for preliminary arraignment by the proper issuing authority.

      . Centre County was “the judicial district where the warrant of arrest was issued.” Pa.R.Crim.P. 123(g).

      . Although we find ample support in the record for the lower court’s decision to deny appellant’s motion to dismiss, we Eire struck by the inherent contradiction between appellant’s Pa.R.Crim.P. 1100 argument regarding the Commonwealth’s lack of due diligence in finding appellant, and his next assignment of error, which relates to his defense of duress. See discussion, infra. That defense requires, among other things, that an "escapee must return to official detention as soon as possible Eifter leaving the prison." Commonwealth v. Brown, 314 Pa.Super. 311, 319, 460 A.2d 1155, 1159 (1983) (emphasis added).

      . The trial court’s ruling came after the Commonwealth objected to appellant’s offer of proof as to Mr. O’Shea.

      . The extent of defense counsel’s response to the ruling was as follows:
      THE COURT: All right. I’ll let him talk about the white pass status. His observation of the condition of the defendant. He can’t testify about whatever these items are taken from the cell, threatening you said or harassment by the guards and so forth. He cannot testify to that.
      Okay. In other words, I’m going to the white pass conversations and whatever you want him to say about knowing him and changes in his contentions I suppose in the last few weeks.
      DEFENSE COUNSEL: Okay.
      THE COURT: That’s subject to whatever other objections there may be depending on how the questions are asked.
      DEFENSE COUNSEL: Yes.
      N.T. April 13, 1984, at 61.

      . The apparent impetus for appellant’s escape was an alleged assault on him by a fellow prisoner which occurred on the same day as the escape. See N.T. April 13, 1984, at 82-86.

      . As duress is an absolute defense to the crime of escape, which relieves the defendant of any criminal liability, the Commonwealth’s "burden of disproving the defense of duress beyond a reasonable doubt,” Commonwealth v. Brown, 314 Pa.Super. 311, 321, 460 A.2d 1155, 1160 (1983), does not arise unless the defendant-escapee has presented evidence which would be admissible to establish the defense of duress. Cf. Commonwealth v. Stanley, 498 Pa. 326, 446 A.2d 583 (1982) (evidence admissible to establish defense); see also Commonwealth v. Brown, supra, 314 Pa.Super. at 319, 460 A.2d at 1160 (evidence of defense was presented). If proper evidence has not been presented, the defense is not at issue and there is nothing for the Commonwealth to disprove. Commonwealth v. Stanley, supra; Commonwealth v. Clark, 287 Pa.Super. 13, 429 A.2d 695 (1981). Of course the Commonwealth always bears the burden of proving the elements of the crime of escape beyond a reasonable doubt.

      . As we can affirm on this basis, we make no comment as to the sufficiency of evidence vis-a-vis the other requirements of the duress defense.

      . 42 Pa.C.S. § 9701, et seq.


author: WIEAND, Judge:

text:
    502 A.2d 1287
    COMMONWEALTH of Pennsylvania v. Kenneth Albert KOSTRA, Appellant.
    Superior Court of Pennsylvania.
    Argued May 14, 1985.
    Filed Dec. 31, 1985.

      David J. Graban, Sharon, for appellant.
    Charles S. Her'sh, Assistant District Attorney, Hermitage, for Commonwealth, appellee.
    Before SPAETH, President Judge, and ROWLEY and WIEAND, JJ.
   WIEAND, Judge:

At or about 4:00 a.m. on March 29, 1983, Kenneth Albert Kostra and several friends left a tavern after having spent the evening of the prior day and the early morning of the same day visiting licensed establishments in and around Sharon and Farrell, Mercer County. Less than a mile from the tavern, Kostra lost control of the vehicle which he was then driving. The vehicle left the road, became airborne, struck several utility poles, landed on its side, spun around and flipped upright. All passengers in the vehicle were injured. Russell Blackstock subsequently died. Kostra was tried by a jury for his part in the accident and was found guilty of homicide by vehicle, driving while under the influence of alcohol, homicide by vehicle while driving under the influence of alcohol, reckless driving and driving at an unsafe speed. Post-trial motions were denied, and Kostra was sentenced to prison for not less than three years nor more than six years on the conviction for homicide by vehicle while driving under the influence of alcohol. Kostra appealed.

Appellant’s first argument is that the Commonwealth failed to prove that he had been the legal cause of Black-stock’s death. He argues that the direct cause of Black-stock’s death was not the injuries received in the accident but the subsequent removal of life support systems used to keep Blackstock alive. We reject this argument.

It is correct, as appellant argues, that the Commonwealth must prove beyond a reasonable doubt each and every element of the offense, including a causal connection between death and the wrongful act. See: Commonwealth v. Floyd, 499 Pa. 316, 317, 453 A.2d 326, 327 (1982); Commonwealth v. Green, 477 Pa. 170, 174, 383 A.2d 877, 879 (1978). The Commonwealth must prove “beyond a reasonable doubt that [the] death occurred as a result of injuries received in the incident or of a chain of events stemming from the incident.” Commonwealth v. Baker, 299 Pa.Super. 241, 247, 445 A.2d 544, 547 (1982). Causation is an issue of fact for the jury. Commonwealth v. Hicks, 466 Pa. 499, 504, 353 A.2d 803, 805 (1976). “A defendant’s actions are the legal cause of death if they are a direct and substantial factor in bringing it about.” Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). “So long as a defendant’s actions are a direct and substantial factor in bringing about death, legal responsibility may be found.” Commonwealth v. Matthews, 480 Pa. 33, 37, 389 A.2d 71, 73 (1978). A defendant cannot escape legal liability for homicide if his act starts an unbroken chain of causation which leads to death. See: Commonwealth v. Robinson, 468 Pa. 575, 584, 364 A.2d 665, 670 (1976); Commonwealth v. Stafford, 451 Pa. 95, 100, 301 A.2d 600, 604 (1973).

In the instant case there was evidence that the cause of death had been multiple injuries sustained in the automobile accident. These injuries set in motion a chain of circumstances directly resulting in Blackstock’s death. This was sufficient to show that the accident had been a substantial factor in bringing about death and hence a legal cause of death. See: State v. Fierro, 124 Ariz. 182, 185, 603 P.2d 74, 77 (1979) (“The removal of the life support systems [where victim had suffered brain death] was not the proximate cause of death, the gunshot wounds were, and it was not error to find that the defendant was the cause of the victim’s death.”); State v. Inger, 292 N.W.2d 119, 124-125 (Iowa 1980) (where a victim had suffered brain death due to a serious altercation with defendant, sufficient evidence existed to find that the trauma inflicted by defendant was the proximate cause of the victim’s death; a possible intervening medical error, such as premature removal from a support system, was not a defense.).

Appellant contends that Blackstock was not brain dead when the life support system was removed. This is a tantalizing argument, but it must ultimately fail. At common law, death occurred when respiration and circulation ceased. In more recent times, the medical profession has expanded its definition of death to include the cessation of all brain functions. This expanded definition recognizes the ability, nonexistent at common law, to monitor brain functions. It also recognizes that heroic measures now available to sustain life, such as the use of life support-systems and organ transplants, were also unknown to the common law. See generally: Lovato v. District Court, 198 Colo. 419, 425-29, 601 P.2d 1072, 1076-1078 (1979); In re Haymer, 115 Ill.App.3d 349, 350-52, 71 Ill.Dec. 252, 254-5, 450 N.E.2d 940, 942-943 (1983).

The legislatures of the several states, together with the courts, have followed the medical community in accepting the cessation of brain functions as an equivalent of death. In some states, the courts have held that the cessation of brain functions is equivalent to death. See generally: People v. Eulo, 63 N.Y.2d 341, 472 N.E.2d 286, 482 N.Y.S.2d 436 (1984). Other states have adopted the Uniform Determination of Death Act. Pennsylvania has adopted this Act which provides that “[o]nly an individual who has sustained either: (1) irreversible cessation of circulatory and respiratory functions; or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” 35 P.S. § 10203.

The Uniform Act requires a cessation of all functions of the brain, including the brain stem. What this means appears in the opinion of the Court in In re Haymer, supra, as follows:

Where there is total brain death, the brain has no potential for recovery____ The cerebral cortex is the site of the highest centers of human intelligence, those concerned with the higher perceptions, and with the processes of thinking, emoting and consciousness. It may well be that lack of oxygen flow to the brain for a short period will result in total and irreversible cessation of the cortical brain functions. However, loss of oxygenated blood flow for such a period may not have a terminal effect upon the brain stem or lower brain. It is this portion of the brain which controls respiration, heart rate, blood pressure and other purely biological functions. Thus, a patient may well be rendered unconscious and incapable of recovering consciousness and any capacity for thought, emotion, and intellectual perception, but may have the ability to breathe spontaneously and maintain pulse and circulation. In such a situation, the person has not sustained total brain death (D. Meyers, Medico-Legal Implications of Death and Dying 12, 25-27 (1981)), and thus would not have “irreversible cessation of total brain function according to usual and customary standards of medical practice.” (Ill.Rev.Stat.1981, Ch. IIOV2, par. 302(b) [the Uniform Anatomical Gift Act]).

Id. at 353 n. 8, 71 Ill.Dec. at 256 n. 8, 450 N.E.2d at 944 n. 8.

In the instant case, Blackstock’s final days were described via stipulation of counsel introduced at trial as follows:

(3) On the night of April 5, 1983, and during the day of April 6, 1983, the patient’s condition deteriorated. His inter-cranial pressure markedly increased and exceeded his systemic blood pressure. He did not respond to measures undertaken to correct his inter-cranial pressure increase. He became totally unresponsive to any stimuli. He showed absolutely no sign of any neurological activity. Blood pressure also began to decrease down to 80 systolic. He was placed on dropamine-drip. Vital signs were maintained with dropamine infusion. He was elevated with the electrocardiogram which showed possible cerebral activity. However, this was not conclusive of absence of artifact. A cerebral CT scan was performed. This showed brain stem hemorrhage. A brain scan was performed and showed no inter-cranial blood flow. The entire clinical picture and studies performed showed that the patient had brain death. The family was explained the lack of any hope for any recovery. They requested that life-supporting measures be stopped.
(4) Russell Blackstock died in Northside Hospital on April 6, 1983. The final diagnosis was auto accident— multiple injuries, brain stem contusion and hemorrhage, splinetic lacerations.
(7) After examination of the deceased, Dr. Tochtenhagen [the Deputy Trumbell County Coroner] determined the cause of death to be brain stem hemorrhage and inter-cranial hemorrhage caused by the injuries resulting from the traffic accident of March 29, 1983.

(N.T. 11/21-22/83, at pp. 79-81) (emphasis added).

While this stipulation does not explicitly refer to the death of the brain stem, a review of the circumstances surrounding the victim’s death suggests no other conclusion than that the brain and the brain stem were dead. The brain stem controls respiratory and circulatory functions. Blackstock’s respiratory and circulatory functions, however, were being artificially maintained by life-supporting measures. When the life-supporting measures were suspended, death ensued. Thus it is evident that the brain stem was dead even before the life-support systems were removed, for the respiratory and circulatory functions were nonexistent without life-support measures. The evidence established, therefore, that Blackstock was legally dead even before heroic life support procedures were discontinued.

Appellant also contends that judgment should have been arrested because he was not tried within the time constraints of Pa.R.Crim.P. 1100. An extension should not have been granted, he argues, when a continuance of the trial was granted because of the hospitalization of a Commonwealth witness.

The run date on the homicide by vehicle offenses was October 5, 1983; the run date on the other offenses was September 26, 1983. These run dates were extended by agreement until October 30, 1983, because of the unavailability of both counsel during the September trial term. On October 11, the Commonwealth requested a continuance and an extension of time within which to commence trial because Mary Hoagland had become seriously ill and had been hospitalized. This witness was supervisor of the chemistry department at Sharon General Hospital and had made the analysis of appellant’s blood sample. Her analysis had disclosed blood alcohol of 0.196 per cent. Appellant had previously disclosed that he would probably challenge the accuracy of this analysis; and, therefore, the Commonwealth deemed the presence of the witness essential. The trial court granted the Commonwealth’s motion for continuance and extended the time for commencement of trial until November 21, 1983. Trial began on that date.

We reject the Commonwealth’s contention that this issue was waived by appellant’s failure to file pre-trial a motion to dismiss. Appellant’s opposition to the petition to extend the time for trial was sufficient to preserve for appellate review the propriety of the trial court’s extension order. Commonwealth v. Coleman, 477 Pa. 400, 408, 383 A.2d 1268, 1271-1272 (1978); Commonwealth v. Lyles, 315 Pa.Super. 194, 199, 461 A.2d 1237, 1239 (1983).

When reviewing a trial court’s Rule 1100 order, this Court examines the evidence presented by the Commonwealth and any uncontradicted evidence presented by the defendant. Commonwealth v. Lafty, 333 Pa.Super. 428, 434-435, 482 A.2d 643, 646 (1984); Commonwealth v. Bulling, 331 Pa.Super. 84, 90, 480 A.2d 254, 257 (1984). An extension is proper if the trial court finds that, despite the exercise of due diligence by the Commonwealth, trial could not be commenced within the prescribed period. Rule 1100(c)(3); Commonwealth v. Bulling, supra. “It is well settled that the illness of a Commonwealth witness may be a proper basis upon which to grant a Rule 1100 extension as the Commonwealth should not be penalized for events and circumstances which are wholly beyond its control.” Id., 331 Pa.Superior Ct. at 96, 480 A.2d at 260. “So long as the witness’ unavailability is through no fault of the Commonwealth, a finding of due diligence is warranted and an extension is proper.” Commonwealth v. Lafty, supra, 333 Pa.Superior Ct. at 436, 482 A.2d at 647. The witness in this case had been hospitalized in an intensive care unit with bleeding shingles. The trial court, under these circumstances, could properly grant the Commonwealth’s request for an extension of time.

Because the constitutionality of 75 Pa.C.S. § 8731(a)(4) (driving with a blood-alcohol reading of 0.10 per cent or greater) had not at the time of trial been ruled upon by the appellate courts, it was agreed by the parties and the trial court that the Commonwealth would prosecute appellant only under 75 Pa.C.S. § 3731(a)(1). This section of the Vehicle Code made it an offense to drive while under the influence of alcohol. Appellant presented a motion in limine in which he requested that his blood-alcohol reading should not be admitted under a § 3731(a)(1) prosecution because it was not relevant. It was irrelevant, he argued, because the reading had been obtained two hours after the fatal accident and did not establish that he was under the influence of alcohol while driving the death car.

Section 1547(d)(3) of the Motor Vehicle Code, 75 Pa.C.S. § 1547(d)(3), expressly permits the admission of chemical test results in prosecutions under Section 3731 where the reading is 0.10 per cent or more. Whether the time intervening between accident and withdrawal of blood was so great as to render the results inadmissible on grounds of relevancy required the exercise of discretion by the trial court. Our review discloses no abuse of that discretion. See and compare: Commonwealth v. Arizini, 277 Pa.Super. 27, 41, 419 A.2d 643, 650 (1980) (more than two hours); Commonwealth v. Tylwalk, 258 Pa.Super. 506, 510, 393 A.2d 473, 475 (1978) (more than four hours); Commonwealth v. Trefry, 249 Pa.Super. 117, 130, 375 A.2d 786, 793 (1977) (one and one-half hours), overruled on other grounds, Commonwealth v. Lapia, 311 Pa.Super. 264, 457 A.2d 877 (1983).

Appellant argues that the trial court erred when it discussed with the jury the absorption and expulsion of ingested alcohol by the human body. The court’s jury instructions, he contends, were in the nature of scientific facts not proved by the evidence. In fact, the trial court’s instructions were intended to focus the jurors’ attention on the time when appellant’s vehicle left the road and have them determine whether appellant at that time was under the influence of alcohol. The trial court’s discussion included, in summary, the following: (1) that alcohol travels from the stomach into the blood and through the blood into the brain; (2) that while alcohol is being absorbed into the blood it is also being expelled from the body through urination and breathing; (3) that it takes an unspecified time for alcohol to circulate through the body and register in chemical tests; and (4) that the jurors must consider the fact that the results were obtained two hours after the accident. These comments referred only to commonly known phenomena.

This Court considered similar jury instructions in Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). There, as in the instant case, the trial court, while not referring to any particular rate of assimilation or expulsion, told the jury that the time of consuming alcohol was a relevant consideration in determining whether the defendant had operated a vehicle while under the influence of alcohol. This Court said:

The trial court did not mention any particular rate that alcohol passes through the system, but rather merely stated an obvious and well known fact. Otherwise, anyone who became intoxicated would forever remain in that condition. Since the fact that people pass alcohol out of their bodies is a matter of common and general knowledge, it was proper for the trial court to take judicial notice of it in the charge to the jury. Commonwealth v. Milligan, 172 Pa.Super. 607, 94 A.2d 64 (1953); Commonwealth v. Harris, 351 Pa. 325, 41 A.2d 688 (1945); Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973).

Id., 259 Pa.Superior Ct. at 92, 393 A.2d at 732. The decision in Dougherty is determinative.

Appellant seeks to distinguish Dougherty because in that case the defendant had refused to take a breathalyzer test and the court’s reference to the passing of alcohol from the body had been made in connection with the number of drinks consumed. We reject this argument. The holding in Dougherty was clear. A trial court may take judicial notice of the commonly known fact that the per cent of blood alcohol is not static but varies constantly according to the time elapsing after initial ingestion. Cf. 29 Am. Jur.2d Evidence § 108 (1967) (“It is common knowledge that the intoxicating effect of alcohol diminishes with the passage of time after drinking the beverage.”). Similarly, it is a matter of common knowledge that alcohol travels from the stomach into the blood and in this manner reaches and affects the brain. Finally, the court could properly observe that it was necessary to consider the fact that blood had been withdrawn from appellant two hours after the accident. In this manner the jury was made aware that the results of the blood test were an aid but not necessarily controlling of intoxication at the time of the accident. We find no error in the trial court’s jury instructions which would require the granting of a new trial.

Finally, appellant attacks the constitutionality of the mandatory, minimum sentencing provisions of 75 Pa.C.S. § 3735. He alleges that this section violates the separation of powers doctrine. The constitutionality of this provision has already been upheld by this Court, and further discussion is unnecessary. Commonwealth v. Hernandez, 339 Pa.Super. 32, 39-40, 488 A.2d 293, 297 (1985). Accord: Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985); Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); Commonwealth v. Molina, 344 Pa.Super. 459, 496 A.2d 1196 (1985); Commonwealth v. Cooke, 342 Pa.Super. 58, 492 A.2d 63 (1985).

The judgment of sentence is affirmed.

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3731(a)(1).

      . 75 Pa.C.S. § 3735(a).

      . 75 Pa.C.S. § 3714.

      . 75 Pa.C.S. § 3361.

      . This argument is couched in terms of an error allegedly committed by the trial court in denying a defense demurrer to the Commonwealth's evidence. However, appellant did not rest after his demurrer had been denied and presented evidence in defense. The correctness of the court’s denial of the demurrer, therefore, cannot be questioned on appeal. Commonwealth v. McNeal, 493 Pa. 395, 397, 426 A.2d 606, 608 (1981); Commonwealth v. Alvarado, 333 Pa.Super. 63, 66, 481 A.2d 1223, 1224 (1984); Commonwealth v. Kuhn, 327 Pa.Super. 72, 79, 475 A.2d 103, 106 (1984). However, we may treat this, more properly, as a challenge to the - sufficiency of the evidence. See: Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976). In doing so, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner.

      . The trial court instructed the jury that "[a] blood alcohol reading of .196 does not create a presumption or any inference that Kenneth Kostra was under the influence at the time that he drove this motor vehicle____ Under our statute in Pennsylvania the fact that a person is driving under the influence or that he has a count rather of anything over .10 is not a presumption or an inference but it's certainly evidence that a jury can consider with all the other evidence in determining whether a person is under the influence.”