text:
    552 A.2d 275
    VIRGINIA MANSIONS CONDOMINIUM ASSOCIATION v. Robert O. LAMPL, Individually and as General Partner of HRT Land Company, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 1, 1988.
    Filed Dec. 20, 1988.

      Michael R. Kelly, Pittsburgh, for appellant.
    Mark J. Christman, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and TAMIL1A and HESTER, JJ.
   CIRILLO, President Judge:

This is an appeal from an order of the Court of Common Pleas of Allegheny County dismissing appellant Robert Lampl’s counterclaim in an action initiated by appellee, Virginia Mansions Condominium Association (hereinafter VMCA), to collect certain condominium fees and assessments. We reverse.

VMCA commenced its action against Lampl, both individually and as general partner of HRT Land Company, in April of 1987. The suit sought to recover unpaid common fees and assessments associated with Lampl’s condominium units. Lampl responded with preliminary objections asserting, inter alia, the pendency of a prior action which he had filed claiming damages from VMCA for its failure to repair fire damage to several condominium units and the surrounding common areas. Lampl’s suit asked that the named defendants — VMCA, its insurance company and that company’s agent, and two insurance trustees of the condominium association — be held jointly and severally liable for the damages claimed. He indicated that his defense in the VMCA action would be identical to the claims raised in his suit, which he incorporated by reference, and that he had set off the fees VMCA sought in an effort to mitigate the damage VMCA had caused him. He asked that the court dismiss VMCA’s action or stay it pending the determination of his earlier filed suit.

Lampl’s preliminary objections were denied in June. He then filed one pleading containing an answer, new matter, counterclaim and complaint to join additional defendants. The counterclaim again raised, inter alia, the same allegations as were contained in Lampl’s suit. VMCA then filed preliminary objections to the counterclaim raising the defense of the pendency of Lampl’s prior action. On October 16,1987, the court sustained VMCA’s preliminary objections and dismissed Lampl’s counterclaim. Lampl then filed this appeal asking this court to find error in the trial court’s action in dismissing his counterclaim for the reason that there was a prior action pending.

Generally, the pendency of a prior action, or lis pendens, may be pleaded either as a preliminary objection, Pa.R.C.P. 1017(b)(5), or in the answer, Goodrich-Amram 2d § 1017(b):3 & 13. The party raising the defense of lis pendens can ask that the action in which the defense is being raised be abated, that it be stayed pending the outcome of the prior litigation, or that the actions be consolidated. Where, as here, the defense is being asserted as a ground for abatement, it will be waived if it is not raised as a preliminary objection. 2 Standard Pennsylvania Practice 2d § 12:5. Therefore, Lampl correctly raised the defense of lis pendens in his preliminary objections to VMCA’s complaint. Whether the trial court’s ruling on his preliminary objections was correct is not before us, nor could it be, as that was an interim ruling in a case that has not yet reached final judgment. However Lamp] may have viewed that ruling, he had no choice but to file an answer to the complaint and raise the defense again in his counterclaim. Only when his counterclaim was dismissed was there a final, appealable order. Fidelity Bank v. Duden, 361 Pa. Super. 124, 521 A.2d 958 (1987) (en banc) (pre-trial order dismissing a counterclaim is final and appealable).

The trial court sustained VMCA’s preliminary objection and dismissed Lampl’s counterclaim on the basis that “the relief sought in the counterclaim is identical to the relief sought in the prior action [Lampl’s suit].” This was incorrect for two reasons. First, the fact that another action is pending upon a claim will not prevent the same claim from being used as a setoff in a subsequent action. 2 Standard Pennsylvania Practice 2d § 12:15. Secondly, the court erred in limiting its reasoning to only one of the three requisite factors necessary to sustain a preliminary objection based on the pendency of a prior action.

In order to find lis pendens a valid objection to the immediate entertainment or continuation of a suit, the objecting party must demonstrate to the court that in each case “the parties [are] the same, and the rights asserted and the relief prayed for [are] the same.” Hessenbruch v. Markle, 194 Pa. 581, 45 A. 669 (1900); Procacina v. Susen, 301 Pa.Super. 392, 447 A.2d 1023 (1982); Raw v. Lehnert, 238 Pa.Super. 324, 357 A.2d 574 (1976); Taylor v. Humble Oil, 225 Pa.Super. 177, 311 A.2d 324 (1973); Commonwealth ex rel. Lindsley v. Robinson, 30 Pa.Cmwlth. 96, 372 A.2d 1258 (1977). VMCA attached Lampl’s earlier-filed complaint as an exhibit to its preliminary objections. The court, therefore, had the necessary information available for examination as it determined, first, whether VMCA’s claim of lis pendens should prevail, and, second, how to proceed if the lis pendens was valid. The record is clear on its face. At the time of this ruling,, the parties to the two actions being compared — Lampl’s suit and his counterclaim — were not the same or even substantially the same. See Penn Bank v. Hopkins, 111 Pa. 328 (1885). There were one plaintiff (Lampl) and five defendants in Lampl’s suit. Only one of those defendants (VMCA) sued Lampl, albeit in two capacities. The counterclaim filed by Lampl attempted to name two additional defendants, also party defendants in his previously filed suit. Even if this attempted joinder were to be considered effective, neither the number nor the identity of the defendants in Lampl’s complaint and counterclaim pleadings matched at the time VMCA’s preliminary objections were before the court. Moreover, the various interests each defendant had at stake in the litigation were different, as were their respective responsibilities to Lampl and the wrongs allegedly committed by each.

Further, the rights asserted are not identical in each suit, nor is the relief requested. Lampl’s suit sought compensatory damages for breach of contract (one count against all defendants; one against only VMCA and the two insurance trustees), negligent entrustment (against VMCA and the two insurance trustees), and punitive damages from the two insurance trustees for breach of fiduciary duty. His counterclaim asks for compensatory damages from VMCA and the two insurance trustees (whose joinder Lampl tried to accomplish as part of his counterclaim) for breach of contract, negligent entrustment, and civil conspiracy. No punitive damages were requested and no count for breach of fiduciary duty was included. Additionally, the counterclaim requested declaratory relief with regard to the setoff Lampl claimed and the assessment sought by VMCA. Although both Lampl and VMCA claim relief based in contract, VMCA’s suit seeks to recover under the contract between the condominium association and the owners, but the contractual part of Lampl’s claim arises from the contract of insurance between the association and its insurance company. There is some commonality between the suits as both seek monetary damages, but Lampl’s counterclaim also seeks equitable relief. Even if both actions arise out of the same factual transaction, when the remedies being pursued are different, the actions are not deemed to be the same. Kramer v. Kramer, 260 Pa.Super. 332, 394 A.2d 577 (1978).

The “stringent” test for the defense of lis pendens was not met in this case. General Accident Fire & Life Assurance Corporation, Ltd. v. Flamini, 299 Pa.Super. 312, 445 A.2d 770 (1982). For that reason we find that the trial court erred in sustaining VMCA’s preliminary objections and in dismissing Lampl’s counterclaim on the basis of the pendency of his previously filed suit. Because of this decision, the trial court did not pass on VMCA’s motion to strike. This must be addressed on remand. We note that, of the alternatives available to the trial judge when confronted with a situation such as this, consolidation for trial, pursuant to Pa.R.C.P. 213, might be the most appropriate and judicially efficient manner of resolving these matters. 3 Standard Pennsylvania Practice 2d § 19:8. See also General Accident Fire & Life, supra (consolidation may be proper when dismissal is not); Raw v. Lehnert, supra (proper for court to order, on its own motion, consolidation); Procacina, supra (where there is no identity of causes of action, court should consider consolidation).

Reversed and remanded for further proceedings in accordance with this opinion. Jurisdiction relinquished.

      . Lampl later filed an amended complaint in his suit removing the insurance company and its agent as parties.

      . These parties were trustees of an insurance trust set up to pursue claims and distribute funds paid to VMCA by its insurance company consequent to a December 1985 fire in one condominium unit, owned by Lampl, which destroyed that unit and caused damage to adjoining units and common areas.

      . A setoff is correctly asserted in a counterclaim, Pa.R.C.P. 1031, and may be raised there so long as it arises out of the same series of occurrences giving rise to the plaintiffs cause of action. 6 Standard Pennsylvania Practice 2d § 29:29.

      . Within his preliminary objections to VMCA’s suit was an averment that, in order to properly raise the defense of pendency of the prior action, he would have to join the VMCA insurance trustees. VMCA objected to Lampl’s "counterclaim and complaint to join additional defendants” on the basis that Lampl had not filed a complaint to join. The trial court labeled this issue as moot after it ruled on VMCA’s preliminary objection to the counterclaim.


source: Caselaw Access Project

author: BROSKY, Judge: CIRILLO, President Judge,

license: Public Domain

text:
    552 A.2d 279
    COMMONWEALTH of Pennsylvania, Appellant, v. David Sean CARILLION.
    Superior Court of Pennsylvania.
    Argued Aug. 17, 1988.
    Filed Dec. 22, 1988.

      Annette M. Hutchison, Assistant District Attorney, New Castle, for Com., appellant.
    Larry P. Gaitens, Pittsburgh, for appellee.
    Before CIRILLO, President Judge, and CAVANAUGH, BROSKY, WIEAND, OLSZEWSKI, KELLY, POPOVICH, JOHNSON and MELINSON, JJ.
   BROSKY, Judge:

This appeal is taken by the Commonjvealth of Pennsylvania from an order granting appellee a new trial after appellee’s conviction for multiple counts of indecent assault, indecent exposure, corruption of a minor, statutory rape, involuntary deviate sexual intercourse and other related offenses committed upon a ten year old female victim.

The Commonwealth argues that appellee’s non-accessibility to the entire Lawrence County Children’s Services (Children’s Services) file pertaining to the victim does not warrant the grant of a new trial here. Specifically, the question for consideration before the court en banc is whether, pursuant to Article I, Section 9 of the Pennsylvania Constitution, appellee’s access to the contents of the Children’s Services file is mandated under the circumstances. Due to the unique procedural posture of the instant case, as delineated infra, we affirm the order of the trial court awarding appellee a new trial; yet, for reasons appearing below, we decline to hold that appellee’s right to inspect the contents of the Children’s Services file in toto is compelled by Article I, Section 9 of our State Constitution.

I.

The procedural history leading up to the instant appeal is as follows: Subsequent to formal charge of the above offenses, appellee filed several pre-trial motions. Included among these were a Motion for pre-trial discovery and inspection and a Supplemental Request for omnibus pre-trial relief. In the former Motion, appellee requested, inter alia, “[a]ll written or recorded statements and substantially verbatim oral statements” of intended Commonwealth witnesses and “[t]he written and/or recorded statement of [the victim].” Appellee requested in his supplemental prayer for relief, inter alia, “access to the records of the [Children’s Services] with regard to [the victim] to examine to learn [sic] if she made any statements about abuse concerning [appellee].” Along with this, appellee asserted that “any such statements must be submitted to [him] for possible use for trial____”

Pursuant to this court’s decision in Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984), the trial court interpreted the Sixth Amendment right to confront under the Federal Constitution to mean that appellee must be permitted to inspect those portions of the Children’s Services file which contain statements made by the victim regarding any alleged abuse by appellee. Consequently, after conducting an in camera inspection of the Children’s Services file to ascertain the existence of any such statements, a remedy fashioned by this court in Ritchie, the trial court, by Order of May 9, 1984, released to appellee’s counsel portions of the Children’s Services file limited, however, to the victim’s verbatim statements of child abuse committed by appellee.

Appellee stood trial and was subsequently convicted by a jury of twenty counts of sex-related offenses. Following conviction, appellee filed post-verdict motions. While disposition of these post-verdict motions was pending, the Pennsylvania Supreme Court, having allowed the Commonwealth’s petition to appeal our disposition in Ritchie, supra, handed down its decision in that case. See 509 Pa. 357, 502 A.2d 148 (1985). This resulted in the issuance of a series of orders by the trial court. The first one, dated January 20, 1986, ruled the Commonwealth to show cause why appellee, through counsel, should not have access to the complete Children’s Services file of the victim and, further, why appellee’s counsel should not be permitted to argue the utility, if any, of the contents of the file for the purpose of cross-examination or other evidentiary objectives consistent with the Pennsylvania Supreme Court’s directive in Ritchie, supra.

Subsequently, by Order of March 14, 1986, and with the apparent consent of the Commonwealth, the trial court ordered the Children’s Services file relating to the victim to be turned over, all inclusively, to appellee’s counsel for examination at his office. The court’s order included a caveat to appellee’s counsel not to disclose any of the material contained therein to any other person. Appellee’s counsel was then ordered to file with the trial court a statement concerning whether or not appellee had been prejudiced at his trial by the non-disclosure of any material in the file. Pursuant to yet another Order dated April 16, 1986, the trial court advised, after reviewing the April 10, 1986 letter submitted by appellee’s counsel {see note 1, infra) that it would conduct its own in camera examination of the subject file to determine whether appellee’s allegations of prejudice were substantiated. Finally, under Order filed January 16, 1987, the trial court, after in camera inspection of the file, granted appellee a new trial. It is from this Order that the Commonwealth has filed its timely appeal.

After the Notice of Appeal had been docketed with this court, the United States Supreme Court filed its decision in Ritchie, infra, affirming the Pennsylvania Supreme Court’s holding that Ritchie was entitled to know whether the Children’s Services file contained information that may have changed the outcome of his trial had that information been revealed to him. However, the High Court disagreed with the breadth of Pennsylvania Supreme Court’s mandate permitting access by Ritchie’s counsel to the Children’s Services file and, therefore, reversed that determination. The Court grounded its holding on the non-applicability of the confrontation and compulsory process clauses of the Sixth Amendment to the United States Constitution to Ritchie. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987).

II.

At this juncture, and in order to complement our own analysis, we deem it useful to delineate the various rationales expressed by the Ritchie courts.

A.

Ritchie was charged with various sex offenses committed against his twelve-year old daughter. During the pre-trial discovery stage of his case, Ritchie sought access by subpoena to the Children’s Services records concerning his daughter relative to the current complaint as well as to a medical examination report contained in an earlier, separate report of child abuse. Children’s Services refused compliance with the subpoena citing the confidentiality of the records pursuant to the Child Protective Services Law, 11 P.S. § 2201 et seq. Ritchie then filed a Motion for sanctions arguing entitlement to the information in the agency’s files “because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence.” Pennsylvania v. Ritchie, supra, 480 U.S. at 44-45, 107 S.Ct. at 995. The trial court, without conducting its own independent examination of the file, accepted the assertion of the agency representative that no medical reports existed in the file which would be of benefit to Ritchie. Ritchie then went to trial and was convicted on all counts. He was sentenced to a term of incarceration of three to ten years.

B.

On appeal from his judgment of sentence to this Court, Ritchie contended that his Sixth Amendment right to confrontation had been violated by reason of the inaccessibility of the contents of the agency file to him for trial preparation. While we agreed that the confidentiality restrictions contained in the Child Protective Services Law (11 P.S. §§ 2214 and 2215) must defer to Ritchie’s Sixth Amendment rights, nevertheless, we did not interpret this constitutional provision to authorize the blanket disclosure which Ritchie had sought. Instead, we fashioned a two-step procedure, followed by the trial court here, in which the trial court, on remand, would inspect, in camera, the agency file to ascertain the existence or not of verbatim statements (or the equivalent) made by the victim. If such statements were extant, then the trial court was directed to make available to Ritchie’s counsel only that part of the agency file containing those verbatim statements (or their likes). This court further directed that the entire agency file be submitted to Ritchie’s counsel for the limited opportunity to argue content relevance. The Commonwealth could then counter that the failure to disclose amounted to no more than harmless error.

C.

The Commonwealth then appealed to the Pennsylvania Supreme Court. That court interpreted Ritchie's Sixth Amendment confrontation and compulsory process guarantees to encompass comprehensive review of the agency file to search for evidence. The court reasoned:

[W]e are asked for the right to inspect the entire file. The rationale for such a request is the same rationale underlying the right granted in Matter of Pittsburgh [Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981),] to inspect prior statements of a victim or witness. In short, as with prior statements, the eye of an advocate may see connection and relevancy in any material gathered from the victim, other witnesses, or circumstances developed by the investigation of a child. See also, Commonwealth v. Hamm, 474 Pa. 487, 378 A.2d 1219 (1977). ‘The search for truth’ and the quest for ‘every man’s evidence’ so plainly the basis of the Sixth Amendment, and so aptly applied in Matter of Pittsburgh, are as applicable to any material as to prior statements. When materials gathered become an arrow of inculpation, the person inculpated has a fundamental constitutional right to examine the provenance of the arrow and he who aims it. Otherwise, the Sixth Amendment can be diluted to mean that one may face his accusers or the substance of the accusation, except when the accuser is shielded by legislative enactment.

509 Pa. at 366-67, 502 A.2d at 153; footnote omitted. Our high court held, as did this court, that the Commonwealth’s interest in maintaining the confidentiality of the Children’s Services file must transgress neither Ritchie’s rights to confront witnesses against him nor to have compulsory process to obtain their testimony. Applying the principles of due process, the court’s analysis was as follows:

We agree with appellee [Ritchie] that it would be absurd to read the [Child Protective Services] statute as providing that the records be made available to a court of competent jurisdiction, while denying any use of them to the litigants in a criminal case before such courts. Notwithstanding the trial court’s ‘finding’ that the files contained nothing that would benefit appellee, it is apparent that appellee was denied the opportunity to have the files reviewed with the eyes and the perspective of an advocate. Neither the confidentiality provision of the Child Protective Services Law nor any other argument yet advanced justifies that denial.

Id., 509 Pa. at 367, 502 A.2d at 153. It then proceeded to direct the identical remedy designed by us, albeit to accommodate its more expansive reading of the Sixth Amendment. In other words, our Supreme Court’s mandate required unabridged access of the agency file to Ritchie’s counsel, whereupon counsel would be given the opportunity to argue relevance for cross-examination and other evidentiary purposes. The Commonwealth was accorded the corresponding right to assert the harmlessness of any error of nondivulgence.

Acknowledging the impact of the confrontation clause upon the truth-seeking process of a criminal trial, our Supreme Court observed:

The extent to which a criminal defendant can cross-examine the witnesses testifying against him is controlled by the confrontation clause of the Amendment. The purpose of that clause is to provide an accused with an effective means of challenging the evidence against him by testing the recollection and probing the conscience of an adverse witness.

Id., 509 Pa. at 364, 502 A.2d at 152.

It is noteworthy, in light of our disposition of the matter at hand, that the appellate courts of this Commonwealth perceived these dual-pronged constitutional guarantees to embrace the pre-trial discovery stage of a criminal proceeding. Conversely, both this court and the Pennsylvania Supreme Court recognized the right to pre-trial discovery to be of constitutional significance.

D.

The opinion of the United States Supreme Court in Rit chie, analyzed separately the confrontation and the compulsory process clauses of the Sixth Amendment.

1.

It rejected the notion adopted by this Commonwealth’s highest tribunal that the confrontation clause translated into a constitutionally compelled rule of pre-trial discovery. Instead, the court simply held that the guarantee of the confrontation clause is limited to an accused’s trial rights. It does not operate, opined the Court, to mandate pre-trial disclosure of information that might be helpful in trial preparation.

Nothing in the case law supports such a view. The opinions of this Court show that the right of confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. See California v. Green, 399 U.S. 149, 157, 90 S.Ct. 1930, 1934, 26 L.Ed.2d 489 (1970) [.]...
The ability to question adverse witnesses however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony. Normally the right to confront one’s accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. Delaware v. Fensterer, supra, 474 U.S. [15] at 20, 106 S.Ct. [292], at 295 [, 88 L.Ed.2d 15]. In short, the Confrontation Clause only guarantees ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’ Id. at 20, 106 S.Ct., at 295 (emphasis in original).

Pennsylvania v. Ritchie, supra 480 U.S. at 53, 107 S.Ct. at 999; all emphasis in text; footnote omitted.

The court concluded its analysis of the confrontation clause with respect to the issue before it by holding that the guarantee would be implicated only if Ritchie had been impermissibly prevented from cross-examining his victim-daughter. Ritchie, however, was accorded the benefit of cross-examining the victim fully. Notwithstanding Ritchie’s position and the Pennsylvania Supreme Court’s acceptance thereof, the withholding of the agency file did not rise to the level of constitutional dimension.

2.

The United States Supreme Court read the compulsory process clause of the Sixth Amendment to require prosecutorial assistance in uncovering arguably useful information in preparation for trial, viz: names of witnesses and other evidence available to the accused which may be in the file, despite the impediment of a state-created restriction on accessibility — instantly, as well as in Ritchie, the statutory confidentiality of the Children’s Services file. However, the Supreme Court indicated that the law regarding the applicability of the compulsory process clause to this genre of cases was unsettled, as evidenced in Ritchie by the Pennsylvania Supreme Court’s conclusion, albeit nebulous, that refusal to disclose the contents the Children’s Services file transgressed the bounds of compulsory process. Instead, the United States Supreme Court adopted a due process analysis in determining whether non-production of the agency file to Ritchie hindered his access to favorable witnesses or other exculpatory evidence. It reasoned that since the statute provides for qualified disclosure by court order (see 11 P.S. § 2215(a)(5)), and no contrary state policy is otherwise apparent, due process requires divulgence when a court of competent jurisdiction determines that the material for which production is sought is essential to the accused’s defense. The court, however, tempered this directive by concluding that carte blanche disclosure of protected information is not appropriate whenever an accused makes a general claim that the sought-after evidence may be vital to his case.

A defendant’s right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth’s files. See United States v. Bagley, 473 U.S. [667], at 675, 105 S.Ct. [3375], at 3379[, 87 L.Ed.2d 481]; United States v. Agurs, supra, 427 U.S. [97], at 111, 96 S.Ct. [2392] at 2401 [, 49 L.Ed.2d 342]. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States, 384 U.S. 855, 875, 86 S.Ct. 1840, 1851, 16 L.Ed.2d 973 (1966), this Court has never held — even in the absence of a statute restricting disclosure — that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194 [, 10 L.Ed.2d 215], it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court’s attention, the prosecutor’s decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State’s files to argue relevance. See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30 (1977) (“There is no general constitutional right to discovery in a criminal case, and Brady did not create one”).

Id. 480 U.S. at 59-60, 107 S.Ct. at 1003; footnote referenced in above quote is numbered “16” in text of case.

The remedy devised by the highest tribunal of this Nation differed materially from that contemplated by our Supreme Court. As noted above, the United States Supreme Court disaffirmed the broad license given to defense counsel by this Commonwealth’s highest court to conduct an unchecked search through the prosecution’s file. In other words, the Supreme Court rejected the notion embraced by the Pennsylvania Supreme Court that Ritchie’s right to evidence in the agency file pivotal to his defense could only be adequately safeguarded by his counsel. Instead, the United States Supreme Court confined disclosure to in camera review by the trial court, with the accused retaining the right to apply directly to the court for discovery of any specific information contained in the file and to argue its significance to his case. The Supreme Court also imposed upon the trial court an ongoing duty to unveil information deemed immaterial upon initial in camera inspection which later becomes critical as the proceedings progress. The court further directed that, on remand, if the trial court were of the opinion, after independent, in camera inspection, that the agency file contained information which probably would have changed the outcome of Ritchie’s trial, then he must be awarded a new trial. On the other hand, if no information which would fit this probability appeared extant or if the trial court determined that the non-disclosure was harmless, then the trial court would be free to reinstate his conviction.

To summarize, then, the United States Supreme Court disavowed the applicability of the confrontation and compulsory process clauses of the Sixth Amendment to the pre-trial discovery stage of a criminal proceeding, denominating these guarantees, instead, as trial rights designed to thwart improper restriction on the scope of cross-examination.

III.

While the U.S. Supreme Court’s analysis in Ritchie buttresses our conclusion that, instantly, appellee’s entitlement or not to pretrial disclosure of the Children’s Services file for information which he believed may have played a pivotal role in the outcome of his trial is governed by a judicially promulgated rule of court rather than by constitutional fiat, we also find support for our position in the jurisprudence of this Commonwealth.

A.

In Commonwealth v. Byuss, 372 Pa.Super. 395, 539 A.2d 852 (1988), the accused, charged with rape, involuntary deviate sexual intercourse and other offenses, had sought, at the pre-trial stage, direct access to medical reports of the victim’s psychiatric condition at the time of the incident, including any accounts of the incident which were made part of the said reports. Alternatively, he requested the trial court to conduct an in camera inspection of the reports. The trial court did this and concluded that because no exculpatory material relevant to Byuss’ defense existed in the file, disclosure was not warranted. Following trial, Byuss was convicted on all charges.

B.

After the United States Supreme Court had handed down its decision in Ritchie, supra, Byuss filed supplemental post-verdict motions alleging that his right to review the various medical reports was guaranteed by Article I, Section 9 of the Pennsylvania Constitution. After he was sentenced, Byuss lodged a direct appeal with this court raising the State constitutional issue.

C.

Taking cue from the view expressed by the United States Supreme Court in Ritchie, supra, that the right to confront and to have compulsory process are trial, not pre-trial, rights, this court, likewise, concluded that Byuss had suffered no constitutional impairment pursuant to Article I, Section 9 of our State Constitution under the circumstances. For a unanimous panel, Judge Wieand wrote:

These rights [i.e., to review reports, etc.] conferred by Article I, Section 9 of the Pennsylvania Constitution, are also trial rights. They do not guarantee the right to search unsupervised through the Commonwealth's file prior to trial.
A defendant’s right to discover materials in the possession of the Commonwealth is determined in Pennsylvania not by constitutional guarantee but by Pa.R.Crim.P. 305. Under this rule, the reports sought to be examined by appellant are not the subject of mandatory disclosure, but are discoverable only at the discretion of the trial court under Rule 305 B(2).

Id. 372 Pa.Super. at 397-399, 539 A.2d at 854-55.

D.

1.

Turning to the matter at bar, we have seen that the trial court scrupulously regarded appellee’s post-trial contention that the Children’s Services file may have contained some potentially favorable material which might have altered the outcome of his trial. The court examined the file in camera after appellee’s counsel was given in toto access thereto. Based upon its in camera review, the trial court concluded that the lack of disclosure prior to trial of certain material contained in the Children’s Services file (see note 1, supra) so prejudiced appellee that the only appropriate remedy would be the award of a new trial. As in Byuss, we agree that appellee’s right to confrontation has been neither compromised nor even implicated under the State Constitution. Moreover, the applicable provision of Rule 305 under which appellee’s initial requests fell and which controlled Byuss’ pretrial application for discovery of the medical reports states that disclosure is discretionary with the trial court. See Pa.R.Crim.P. 305 B(2), infra, at note 5. Hence, the procedure set forth in Pennsylvania v. Ritchie, supra, and endorsed by Byuss that the trial court conduct an in camera inspection of the file after which, if the court first determines that the sought-after information is extant and material to the accused’s defense may, in its discretion, order the Commonwealth to make such disclosure to the accused is in keeping with the tenor of this Rule. The right here involved stemmed from appellee’s initial request for pre-trial discovery pursuant to Pa.R.Crim.P. 305 of what he believed to be significant portions of the file. Upon post-trial in camera inspection of the subject file, the trial court determined and we agree, that formerly withheld portions of this file were critical to appellee’s defense.

2.

Our decision in Byuss is dispositive of the issue of whether Article I, Section 9 of the Pennsylvania Constitution warrants untrammeled pre-trial fishing expeditions of the Children's Services files by defense counsel because “the eye of the advocate may see connection and relevancy in any material ...” notwithstanding an independent, in camera inspection of the file by the trial court. Commonwealth v, Ritchie, supra 509 Pa. at 366, 502 A.2d at 153. Instead, appellee's “interest in a fair trial [can] ‘be protected fully by requiring that the [Children’s Services] file be submitted only to the trial court for in camera review.’ ” Commonwealth v, Byuss, supra 372 Pa.Super. at 397-399, 539 A.2d at 854, quoting Pennsylvania v. Ritchie, supra 480 U.S. at 59-60, 107 S.Ct. at 1003.

3.

We have no quarrel with the trial court’s conclusion that the previously undisclosed material in the Children’s Services file may have been helpful to appellee’s defense. The import of these heretofore undisclosed statements of the caseworker and the victim’s mother gave rise to the possibility that the victim and her mother may have cooperated to “frame” appellee. This determination was made after the trial court’s in camera inspection of these various statements. We do not, under these circumstances, interfere with the trial court’s discretion to award a new trial, absent a manifest abuse of its discretion or the commission of an error of law which controls the outcome of the case. Hence, the trial court properly exercised its discretion by correcting the legal error of non-disclosure in the first instance by granting appellee a new trial.

Rather, the gravamen of our concern with expansively interpreting Article I, Section 9 of the Pennsylvania Constitution to embrace untrammeled defense fishing expeditions for all confidential materials, relevant or not, relating to a victim's reported sexual abuse readily envisions reluctance on the part of sexual abuse victims, child and adult alike, to report these criminal indiscretions to those entrusted to seek recourse in the courts for these hapless victims out of fear that their (the victims’) confidences relayed to counsellors, caseworkers and law enforcement officials will be subjected to the unbridled scrutiny of adverse interests. However, it is strictly upon the peculiar circumstances of this case — the heretofore undivulged information contained in the Children’s Services file brought to light by virtue of the trial court’s in camera inspection of this file — that we are constrained to uphold its Order granting appellee a new trial.

ORDER AFFIRMED.

CIRILLO, President Judge, files a concurring statement.

JOHNSON, J., concurs in the result.

CIRILLO, President Judge,

concurring:

I join in the result reached by the majority in this case, however I write separately to emphasize my belief that the Commonwealth’s interest in the confidentiality of the information contained in the Children’s Services file must yield to the Commonwealth’s greater interest in promoting and protecting the defendant’s constitutional right to confront and cross-examine witnesses against him. I am in agreement with the Pennsylvania Supreme Court’s statement that “[w]he i materials gathered become an arrow of inculpation, the person inculpa ;ed has a fundamental constitutional right to examine the provenance of the arrow and he who aims it.” Commonwealth v. Ritchie, 509 Pa. 357, 367, 502 A.2d 148, 153 (1985), aff'd. in part and rev’d. in part, Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). This, in my opinion, is essential to the integrity of the criminal justice system.

Al though in Commonwealth v. Ritchie the Pennsylvania Supreme Court relied upon the sixth amendment of the United States Constitution, the same result may be reached on independent state grounds. I would recognize a higher level of protection under our state constitution, and allow defense counsel complete access to the Children’s Services file. The information must be viewed by the “eye of an advocate.” Commonwealth v. Ritchie, 509 Pa. at 367, 502 A.2d at 153. “Denial of access to a witness’ prior statements ... imposes a handicap that strikes at the heart of cross-examination[,]” Pennsylvania v. Ritchie, 480 U.S. at 71, 107 S.Ct. at 1009 (Brennan, J., dissenting), and dilutes the search for truth. To find otherwise would deny counsel the tools of his or her trade and inhibit effective cross-examination.

      . Pursuant to the directive of this Order, appellee’s counsel, according to the trial court’s opinion, filed a letter dated April 10, 1986, with the court advising that appellee had been prejudiced because of the unavailability of a substantial portion of the Children’s Services file prior to his trial.
      The theretofore non-available information particularized by appellee's counsel, as set forth by the trial court in its opinion included, inter alia, the revelation that although the victim had undergone a pelvic examination, the results were absent, an admission by the victim to her social worker that she had mixed feelings toward her mother — at times hostile and on other occasions protective — the social worker’s impression that the victim’s mother had feigned emotional upset at the time of her initial report of abuse to the police and had also given inconsistent statements to her lawyer and to others and the victim’s inconsistent statement regarding the duration of her sexual experience with appellee. This letter has not been included as part of the record certified to this court, even though its contents are discussed in the opinion of the trial court and referred to in the trial court’s order of April 16, 1986, supra in text.

      . Justice Blackmun departed from the five-Justice majority in the court’s discussion of this issue. He spurned the “plurality’s effort to divorce confrontation analysis from any examination into the effectiveness of cross-examination.” Id. 480 U.S. at 61, 107 S.Ct. at 1004. However, he agreed that the remedy fashioned by the plurality (i.e., in camera inspection of the file by the trial court) was adequate to address the confrontation dilemma and therefore, on that basis, Justice Blackmun concurred in the judgment.

       See Fed.Rule Crim.Froc. 16(d)(2); Pa.Kules [sic] Crim.Proc. 305(E) ("If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule [mandating disclosure of exculpatory evidence], the court may ... enter such order as it deems just under the circumstances”).

      . In a footnote the United States Supreme Court in Ritchie cited Pa.R.Crim.P. 305, which delineates the procedure for obtaining pretrial discovery. See, 480 U.S. at 59-60, 107 S.Ct. 1003, supra in text at p. 468-470.

      . Article I, Section 9 of the Pennsylvania Constitution provides:
      In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

      . Pennsylvania Rule of Criminal Procedure 305 B(2) referred to in Byuss, supra, reads:
      (2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy of photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that he request is reasonable:
      (a) the names and addresses of eyewitnesses;
      (b) all written or recorded statements; and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
      (c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
      (d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.


author: ROWLEY, Judge:

text:
    552 A.2d 288
    In re In the Interest of PAUL S.—Date of Birth January 26, 1979 Appeal of JOSEPH S. and Pearl S.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Dec. 30, 1988.

      James Johnson, State College, for appellants.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   ROWLEY, Judge:

This appeal of Joseph and Pearl S., the parents of nine-year-old Paul S., is from the trial court’s order of September 25, 1987, directing that Paul be returned to foster care. Paul, who had been declared dependent and placed in the legal custody of appellee, Clearfield County Children and Youth Services (hereinafter “CYS”), had been residing with appellants for approximately three months on a temporary, trial basis.

Appellants raise three issues in this appeal: 1) whether the trial court erred in applying a “best interests” rather than a “clear necessity” standard in determining whether Paul should be returned to foster care; 2) if the “clear necessity” standard is appropriate, whether the standard was met in this case ; and 3) whether the trial court erred in allowing Dona Braznock, a CYS caseworker, to give opinion testimony on the ultimate issue of where Paul should live. For the reasons set forth below, we reverse the trial court’s order of September 25, 1987, and remand the case to the trial court for a determination in accordance with the “clear necessity” standard.

The facts of the case, briefly summarized, are as follows: Paul was born on January 26, 1979. On May 28, 1982, CYS petitioned the court for an interim emergency order of custody with regard to Paul, asserting that appellants’ residence was unlivable owing to, inter alia, lack of running water and electricity, inadequate heat, and insufficient food. The court entered an emergency custody order that same day, and Paul was removed from appellants’ home and taken into the custody of CYS. On June 3, 1982, the court entered as a court order the stipulation of appellants, CYS, and Paul’s guardian ad litem that Paul was a dependent child within the meaning of the Juvenile Act. Paul’s placement with a foster family was periodically reviewed by the trial court over the next several years, with appellants being allowed regular visitation with Paul. Eventually arrangements were made for Paul to have overnight visits with appellants on weekends; extended visits subsequently lasted up to seven days.

On June 17, 1987, the court entered an order continuing legal custody of Paul with CYS; granting temporary physical custody of Paul to appellants for approximately six weeks, their custody to begin at the end of the then-current school year; directing both CYS and Lutheran Social Services, whose caseworker had been working with appellants, to monitor and evaluate appellants’ home and Paul’s placement therein; and giving CYS the right to supervise the placement. A hearing was subsequently held on September 2 and 4, 1987, to review Paul’s placement and disposition, with testimony being taken from Dona Braznock, the CYS caseworker; Dorothy Nixon, appellants’ neighbor; Paul’s twenty-one-year-old brother, Bill S.; Pearl S., Paul’s mother; and Beverly Hatten, Paul’s foster mother. In addition, Paul, who suffers from a speech problem and learning disabilities, was interviewed by Judge Ammerman in chambers.

In an order filed September 25, 1987, the trial court, finding that Paul continued to be dependent and that his best interest and permanent welfare would be served by his return to foster care “pending a hopeful change in the conduct and circumstances of the parents resulting from the initiation of remedial action” by CYS and Lutheran Social Services, directed that Paul be returned to foster care forthwith, with legal custody to continue with CYS. In the order and a subsequently filed opinion, Judge Ammerman explained that his decision was based on the history of the case, having taken judicial notice of all prior proceedings, and on the opinion of the CYS caseworker, Dona Braznock, that conditions were deteriorating at appellants’ home. This appeal followed.

In their first issue, appellants argue that the trial court erred when it determined, based on a “best interests of the child” standard, that Paul should be returned to foster care. Only upon a showing of “clear necessity,” appellants contend, can a child be removed from the parental home. Appellee counters that where, as here, the child in question has been adjudicated dependent, decisions concerning the child’s placement should be made on the basis of the child’s best interests.

In order to evaluate appellants’ claim, we must briefly delineate the procedure that follows the filing of a petition alleging that a child is dependent under the terms of the Juvenile Act. Initially the court must determine whether, on the basis of clear and convincing evidence, the child in question is dependent. In Interest of Ryan Michael C., 294 Pa.Super. 417, 420, 440 A.2d 535, 536 (1982); In Interest of Pernishek, 268 Pa.Super. 447, 457, 408 A.2d 872, 877 (1979). If a finding of dependency is made, the court then proceeds to consider possible dispositions. Pursuant to 42 Pa.C.S. § 6351(b), the court may not enter an order removing a dependent child from his or her home without first finding

(1) that continuation of the child in his home would be contrary to the welfare of the child; and
(2) whether reasonable efforts were made prior to the placement of the child to prevent or eliminate the need for removal of the child from his home, if the child has remained in his home pending such disposition; or
(3) if preventive services were not offered due to the necessity for an emergency placement, whether such lack of services was reasonable under the circumstances; or
(4) if the court has previously determined pursuant to section 6332 (relating to informal hearing) that reasonable efforts were not made to prevent the initial removal of the child from his home, whether reasonable efforts are under way to make it possible for the child to return home.[]

In evaluating possible dispositions, the court is guided by the purposes of the Juvenile Act, among which are “[t]o preserve the unity of the family whenever possible,” 42 Pa.C.S. § 6301(b)(1), and to provide for the child’s care, protection, and development “in a family environment whenever possible, separating the child from parents only when necessary for his welfare or in the interests of public safety,” 42 Pa.C.S. § 6301(b)(3). Thus, even a child who has been adjudicated dependent may not be separated from his or her parents unless evidence is presented showing that such a separation is “clearly necessary.” Ryan Michael C., supra; Pernishek, supra.

After a child has been separated from his or her parents, a different standard applies:

[Ojnce the child has been taken from the parents, the court will appraise the evidence, and award custody, according to the child’s best interests. In applying this standard the court will recognize the natural parents’ claim to custody. In a given case this claim may prove of decisive weight....

In re Donna W., 284 Pa.Super. 338, 343-44, 425 A.2d 1132, 1134-35 (1981) (quoting Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 391, 324 A.2d 562, 572 (1974)). After a child has been removed from the parental home, the court is required to conduct regular disposition review hearings to determine, inter alia, the continuing necessity for and appropriateness of the placement and the progress being made toward alleviating the circumstances which necessitated the placement. 42 Pa. C.S. §§ 6351(e), (f).

The case before us is not one in which the parents of a child who has been adjudicated dependent, and who remains in foster care, seek to have the child returned to their home. In such cases, the best interests standard clearly applies. In re Bennage, 303 Pa.Super. 318, 320, 449 A.2d 707, 708 (1982). In the present case, Paul had already been returned to the physical custody of his parents, albeit on a temporary basis. Appellants cite no case, and our research has uncovered none, setting forth the standard by which the trial court shall, determine, in a case such as this, whether the dependent child should remain with the natural parents or be returned to foster care. The legislative history of 42 Pa.C.S. §§ 6301 et seq. also fails to address this question.

Accordingly, we turn to the language of the Juvenile Act for guidance. As noted earlier, the purposes of the Act include “preserving] the unity of the family whenever possible ” and providing for the child’s care “in a family environment whenever possible, separating the child from parents only when necessary for his welfare____” 42 Pa.C.S. § 6301(b)(1), (3) (emphasis added). Furthermore, the Act directs that at each disposition review hearing, the court shall determine, among other things, the continuing necessity for the child’s placement. 42 Pa.C.S. § 6351(f). The repeated emphasis in the Act upon the desirability of preserving the family unit persuades us that “clear necessity” is the appropriate standard in the present case. Even though Paul was returned to his natural family on a temporary, trial basis, the family was nevertheless reunited, and the Act does not suggest that a standard less strict than “clear necessity” should apply if Paul’s removal from the family was once again sought. As the trial court’s determination, expressed in the order of September 25, 1987, that Paul should be returned to foster care was made on the basis of Paul’s “best interests” rather than “clear necessity,” the order is, accordingly, reversed.

In their second issue, appellants contend that CYS failed to show that Paul’s return to foster care was clearly necessary. Therefore, they ask that, if the clear necessity standard is found to be appropriate, we not only vacate the trial court’s order, but also direct that Paul be returned to them. However, it is not for this Court, but for the trial court as factfinder, to determine whether Paul’s removal from his family was clearly necessary. Accordingly, having reversed the trial court’s order, we remand the case to the trial court to make the necessary determination.

In their third issue, appellants contend that the trial court committed reversible error when it allowed Dona Braznock, the CYS caseworker, to give opinion testimony concerning the ultimate issue in the case, i.e., who should have legal and physical custody of Paul. Ms. Braznock recommended that legal custody of Paul continue with CYS and, because she saw conditions deteriorating at appellants’ home, that Paul be returned to his foster parents (N.T., 9/2/87, at 24). When cross-examined concerning her professional qualifications, Ms. Braznock testified that she had majored in criminology and had worked for six months as a resident counselor in a group home for delinquent boys before beginning employment with CYS in January of 1987 (N.T., 9/4/87, at 14). Appellants argue that the caseworker’s testimony was both self-serving, given her employment by CYS, and highly prejudicial, inasmuch as it “presented to the [trial] court an appearance of authority and understanding of the issue, but it lacked substance in that it did not have a foundation in fact to support it” (Brief for Appellant at 29).

We do not agree. Our courts have held that a witness, whether lay or expert, will be permitted to testify concerning the ultimate issue to be decided by the trier of fact, provided that admission of the opinion testimony will not cause confusion or prejudice. Kozak v. Struth, 515 Pa. 554, 562, 531 A.2d 420, 424 (1987). Given the trial court’s statement that it would take into account the fact that Ms. Braznock “doesn’t have [as] much experience as some other people have” (N.T., 9/4/87, at 15), as well as the fact that Ms. Braznock’s employment by CYS was known to the court, her opinion testimony cannot have been confusing or prejudicial. Accordingly, we conclude that the trial court did not err in allowing Ms. Braznock to express her opinion concerning Paul’s custody and placement, and her opinion may be taken into account by the court on remand.

Order reversed and case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . The first and second issues are presented in appellants’ brief as a single issue: Should physical custody of Paul S. have remained with his parents?

      . The language of the statute is in accordance with the federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. §§ 670 et seq., which requires that juvenile courts, in cases where federal reimbursement is sought, 1) determine, prior to placing a child in foster care, whether reasonable efforts have been made to enable the child to remain safely at home; and 2) determine whether reasonable efforts have been made to reunite children in foster care with their biological parents. Neither the state nor the federal statute defines “reasonable efforts."


text:
    552 A.2d 292
    COMMONWEALTH of Pennsylvania v. Eugene SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1988.
    Filed Dec. 30, 1988.

      Rochelle S. Friedman, Pittsburgh, for appellant.
    Terrance G. Faye, Assistant District Attorney, Greens-burg, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and TAMILIA, JJ.
   ROWLEY, Judge:

This is an appeal from an order denying appellant's motion to quash criminal charges alleging that the prosecution is barred on grounds of double jeopardy. The sole question presented is whether a consent agreement entered into by a husband and wife, pursuant to the Protection From Abuse Act, creates a bar to criminal prosecution for the crimes alleged to have occurred out of the same conduct which brought about the consent agreement. We conclude that it does not.

This case arose out of a domestic dispute which occurred on March 15, 1987, between appellant, Eugene Smith, and his wife, Diann Marie Smith. The parties were living separately, each residing with one of their two minor children; their daughter with Diann and their son with appellant. It is alleged that while transporting the couple’s son to Diann for a visit, appellant struck Diann with his vehicle and struck her about the head and neck with his opened hand and closed fist. The police arrested appellant later that night on two counts each of simple assault and aggravated assault. An additional charge of recklessly endangering another person was filed on April 7, 1987, also stemming from the incident on March 15, 1987.

On March 19, 1987, Diann filed a petition pursuant to the Protection From Abuse Act (PFA) in the Court of Common Pleas, Civil Division, Westmoreland County at No. 1744 of 1987. On the following day, Diann and appellant entered into a consent agreement under the PFA which was approved and made a part of the trial court’s order of May 8, 1987. Appellant has not, according to the record presently before the Court, ever been found in contempt of that order.

On May 26, 1987, the District Attorney of Westmoreland County filed an Information/Indictment against appellant for the charges that were filed pursuant to the incident which occurred on March 15, 1987. Appellant filed an omnibus pre-trial motion which included, inter alia, a motion to quash the information on grounds of double jeopardy, based upon the prior resolution of the PFA proceedings. After a hearing on the motion, the trial court denied the motion to quash. The trial court held that the PFA is a civil action, and therefore, appellant had not been subjected to a previous criminal prosecution. Appellant now appeals from that order.

Initially, we must determine whether this appeal is properly before us. We note that the trial court has made no finding that appellant’s claim of double jeopardy was frivolous. In Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986), our Supreme Court reevaluated its position on interlocutory appeals alleging double jeopardy. The Court concluded that “an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous.” Id., 510 Pa. at 346, 508 A.2d at 291. See also Commonwealth v. Williams, 361 Pa.Super. 501, 522 A.2d 1143 (1987). Because the trial court has made no finding of frivolousness in the instant case, the court’s order denying the motion to dismiss on double jeopardy grounds is final and properly before us. However, the only issue ripe for review is the question of double jeopardy and we limit our review of appellant’s arguments accordingly.

Appellant contends that the Protection From Abuse Act is a criminal proceeding, with warrantless arrests being authorized by 18 Pa.C.S. § 2711. He argues that because the PFA proceedings were terminated by an order of the trial court confirming a consent agreement, the criminal charges based upon the same factual episode must be dismissed. In support of his argument, he cites Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985), and claims that the Pennsylvania Supreme Court has ruled that the PFA is a criminal proceeding. Appellant’s reliance is misplaced.

In Allen, the defendant had been enjoined from physically abusing or harassing his wife, pursuant to the PFA. Approximately one month after entry of the order, Allen forcibly entered his wife’s home and physically abused her. He was subsequently arrested and charged with criminal trespass and simple assault. A charge of rape was later filed and consolidated with the other charges. Several days after Allen’s arrest, his wife filed a petition requesting that Allen be found in contempt of the PFA order. After a hearing, the trial court found Allen in contempt of the order and ordered him to pay a fine of $750 plus costs.

Subsequently, Allen filed a motion to quash the criminal informations arguing that the prosecution was barred on double jeopardy grounds by the prior adjudication of the contempt proceeding. The trial court denied the motion and Allen appealed. The Superior Court granted Allen partial relief, agreeing that the criminal contempt and the charge of simple assault involved the same elements, thus barring prosecution for simple assault. The Court reversed that portion of the trial court’s order and affirmed as to the other charges. Cross-appeals were heard by the Supreme Court which reversed this Court’s decision, holding that indirect criminal contempt and simple assault do not contain the same elements and vindicate different public interests. Therefore, the Court held, a finding that Allen was in contempt of the PFA order did not bar subsequent prosecution of the simple assault charge.

Apparently, appellant believes that the Supreme Court’s finding the contempt order not civil, but criminal, is tantamount to ruling that the PFA itself is a criminal proceeding. That reading is incorrect. The question in Allen was whether a criminal contempt citation would bar subsequent prosecution of a simple assault charge. The Commonwealth had argued that the contempt citation involved was civil, not criminal, and that no jeopardy attached with the contempt citation. The Court held that the contempt was criminal contempt because it was used to protect the dignity and authority of the court and the interest of the general public; and that it was indirect criminal contempt because it was outside the actual presence of the court. The Court noted that in order for jeopardy to attach, the contempt complained of had to be criminal in nature and not civil. Id., 506 Pa. at 511, 486 A.2d at 368. In determining whether the prosecution was barred on double jeopardy grounds, the Court applied the test enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932):

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

Allen, supra, 506 Pa. at 510, 486 A.2d at 368. The Court went on to hold that the contempt order’s purpose was protection of the Court’s dignity and enforcement of its order, not punishment for the assault. The contempt proceeding required finding an element separate from the assault charge, willful disobedience of the court’s order. Therefore, the prosecution on the criminal assault charge after the finding of contempt of the court’s order did not violate double jeopardy. Id., 506 Pa. at 514, 486 A.2d at 370.

In the instant case, there has been no determination of contempt under the protection from abuse order. Rather, appellant complains that it was the entry of the protection from abuse order which was the final disposition of a criminal prosecution. He argues that since the decision of Allen, the legislature has enacted 18 Pa.C.S. § 2711, which was in effect at the time of this incident, and which provides for the warrantless arrest of persons who have committed acts of domestic violence, although outside of the officer’s presence. Appellant argues that the procedures included in that statute have transformed the PFA into a criminal statute, providing for arrest, arraignment before a magistrate, bail and notice to the victim of his or her rights under the PFA. Therefore, he concludes, the legislature has set forth a criminal procedure to address domestic violence, and once proceedings under the PFA are concluded, the Commonwealth is barred from prosecuting any further charges based upon that same conduct. We find the claim without merit.

Section 2711 of the Crimes Code provides for the warrant-less arrest, upon probable cause, that the actor has committed involuntary manslaughter, simple assault, aggravated assault [under § 2702(a)(3), (4) or (5) ] or reckless endangerment of another person, against his or her spouse or other person with whom he or she resides, even though the offense did not take place in the officer’s presence. The statute further provides that the actor is entitled to a preliminary arraignment by the proper issuing authority and the right to post bond, subject to the issuing authority’s determination of whether the actor poses a threat of danger to the victim. The statute also provides that the officer should notify the victim of the availability of a shelter in the community and the rights available to a victim of domestic abuse under the PFA.

At the time § 2711 was adopted, all of the crimes mentioned in the statute were misdemeanors. Pa.R.Crim.P. 101 allows an arrest without a warrant on probable cause when the offense is a misdemeanor not committed in the presence of the officer only when such arrest is specifically authorized by statute. See, e.g., 75 Pa.C.S. § 3731(c) (police officer authorized to arrest without a warrant any person he or she has probable cause to believe was operating a motor vehicle under the influence); and 18 Pa.C.S. § 3904 (law enforcement officers have the same right to arrest without a warrant for any grade of theft as exists in the case of the commission of a felony). In enacting § 2711, the legislature was authorizing warrantless arrests in cases of domestic violence in which one of the above mentioned crimes occurred. Prior to the enactment of that provision, police were not foreclosed from prosecuting persons who committed acts of domestic violence and were the subjects of PFA orders. See Allen, supra. They merely did not possess the authority to arrest suspects who had not committed the criminal acts in their presence, or without first obtaining a warrant. See Comment, Spouse Abuse: A Novel Remedy For a Historic Problem, 84 Dick.L.R. 147, 155 (1978). This statute added to the list of offenses which allow police officers to' make warrantless arrests. Although this statute may advance one of the legislative interests behind the PFA; i.e., quick and responsive action in cases of domestic violence, {see Eichenlaub v. Eichenlaub, 340 Pa.Super. 552, 560-561, 490 A.2d 918, 922 (1985)), it does not create a new class of criminal offenses. Rather, it provides for the immediate arrest of a person whom the officer has probable cause to believe has committed one or more of the listed offenses.

Appellant further argues, however, that § 2711 also requires the officer to provide notice to victims of domestic violence of their rights under the PFA, and that excluded from that list is “the right to file a criminal complaint for the same underlying offenses of domestic violence.” Appellant ignores the plain reading of the statute. It requires an officer to notify the victim of his or her rights under the PFA; i.e., the right to file a petition from abuse, which could include restraining the abuser from further abuse, directing the abuser to leave the household, prevent the abuser from entering the residence, school, business or place of employment; award custody or visitation of any minor children involved; or direct the abuser to pay support to the victim or any minor children involved. The fact that the legislature omitted the right to file a criminal complaint from the list of rights under the PFA does not mean that the legislature has revoked such rights. The PFA specifically provides that, “Any proceeding under this act shall be in accordance with the Rules of Civil Procedure and shall be in addition to any other available civil or criminal remedies.” 35 P.S. § 10189. Moreover, appellant ignores the fact that the arresting officer has as much right to file a criminal complaint in these cases as a victim, which is what occurred in the instant case. See Pa.R.Crim.P. 133.

In short, appellant’s appraisal of the PFA is in error. The primary purpose of the act is not retrospective punishment, but rather, advance prevention of physical and sexual abuse. Eichenlaub, supra, 340 Pa.Superior Ct. at 560, 490 A.2d at 922. As the Court in Allen had occasion to explain:

To hold criminal prosecutions barred by a finding of indirect criminal contempt would either gravely impair the Commonwealth’s interest in punishing crime or severely restrict the practical utility of the Protection From Abuse Act. Advance prevention of physical and sexual abuse is the primary goal of the legislature in passing the Abuse Act. To preclude subsequent prosecutions for assault (or rape or sexual abuse of children) after a finding of contempt would encourage abusive persons to continue violent criminal actions against their spouses or children without risking any penalty more severe than the six months the Act provides for contempt. In the alternative, victims, courts and prosecutors would be forced to forgo the only sanction against violation of orders under the Protection From Abuse Act — its contempt provisions — in order to punish an assaultive spouse.

Id., 506 Pa. at 515, 486 A.2d at 370. We believe that the same policy concerns hold true in the present context. Accordingly, we find that the trial court did not err in denying appellant’s motion to quash the charges.

Order affirmed.

      . 35 P.S. § 10181, et seq.

      . 18 Pa.C.S. § 2702 was amended Dec. 11, 1986, P.L. 1517, No. 164, § 1, changing the grading of aggravated assault under subsection (a)(3), (4) and (5) from misdemeanors of the first degree to felonies of the second degree.


author: CERCONE, Judge:

text:
    552 A.2d 296
    Stephen STOLEC and Nancy Ganster, Administrators of the Estate of Stephen M. Stolec, Deceased, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY.
    Superior Court of Pennsylvania.
    Submitted Oct. 31, 1988.
    Filed Dec. 28, 1988.
    Rodney P. Permigiani, Pittsburgh, for appellants.

      Robert W. Deer, Pittsburgh, for appellee.
    Before MONTEMURO, HOFFMAN and CERCONE, JJ.
   CERCONE, Judge:

Appellants, Stephen Stolec and Nancy Ganster, Administrators of the Estate of Stephen M. Stolec, deceased, appeal the order granting appellee’s motion for judgment on the pleadings. We affirm.

The facts as determined by the lower court are undisputed by the parties. Specifically, on October 4, 1986, Stephen M. Stolec (hereinafter referred to as “decedent”), was a passenger in an automobile owned and driven by Mary Ann Roller, (hereinafter referred to as “driver”). A one-car accident involving this vehicle resulted in the untimely death of the decedent. The driver’s vehicle was covered by a policy of insurance with State Farm Fire and Casualty Company (hereinafter referred to as “State Farm”), appellee herein. The policy had limits of $25,000 for liability coverage and $25,000 for underinsured motor vehicle coverage. Appellants made a written demand on the appellee for the limits of both the liability and underinsured motor vehicle coverages. The appellee offered the limits of the liability coverage, but denied any recovery under the under-insured motorist provision.

Appellants commenced this action to recover for the wrongful death of the decedent. After the pleadings were closed, appellee filed a motion for judgment on the pleadings which the lower court granted. The basis of the lower court decision was that recovery under the driver’s policy was limited to the extent of the liability coverage and that the underinsured coverage was available only if there was a second policy under which the decedent was an insured or covered person. In reaching this decision, the lower court correctly followed our en banc decision in Wolgemuth v. Harleysville Mutual Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988).

In Wolgemuth, we were faced with resolving the issue of whether a guest passenger, who was a covered person under the terms of a policy of motor vehicle insurance applicable to the host vehicle, and who was injured in a single vehicle accident, could recover underinsurance benefits under the policy applicable to the host vehicle, when that passenger had already received the limits of the liability coverage under that same policy. We held that the policy definition of underinsured vehicle, which excluded the insured vehicle, did not violate either the express provision or the purpose of the Motor Vehicle Financial Responsibility Law and did not offend public policy.

In the instant case, the facts are virtually identical to the facts before us in Wolgemuth. Appellant was a guest passenger who was killed in a single vehicle accident. Appellee, insurance company for the driver, has offered to provide appellants with the limits of the liability coverage under the driver’s insurance, but refuses to provide appellants with any of the underinsurance benefits. Appellants argue that the contested language in the State Farm policy is contrary to the public policy of the Commonwealth of Pennsylvania as expressed in the Motor Vehicle Financial Responsibility Law. As pointed out above, we rejected this same argument when it was presented in the Wolgemuth case. Based on the sound rationale espoused in the Wolgemuth case, we again reject this argument in the present case.

Appellant has chosen to ignore our decision in Wolgemuth even though the case is factually indistinguishable and was specifically cited by the lower court in its order and analyzed in its opinion. Instead, appellant relies upon White v. Westfield Ins. Co., 67 Wash.Cty.Rep. 112 (1986). Not only are we not controlled by a court of common pleas decision, but also, the decision in White was filed prior to our decision in Wolgemuth. We can only assume that appellant cannot identify any distinction between the instant case and the case that was before us in Wolgemuth. Perhaps appellants, rather than acknowledging the existence of Wolgemuth, have chosen to hope it would not be considered precedent. Nonetheless, we are constrained by decisional law and affirm the lower court’s order granting appellee’s motion for judgment on the pleadings.

Order of the lower court affirmed.


author: OLSZEWSKI, Judge:

text:
    552 A.2d 297
    COMMONWEALTH of Pennsylvania v. Jerome R. VISHNESKI, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 15, 1988.
    Filed Jan. 6, 1989.

      Frank W. Hayes, West Chester, for appellant.
    Thomas J. Wagner, Assistant District Attorney, Phoenix-ville, for Com., appellee.
    Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.
   OLSZEWSKI, Judge:

This is an appeal from judgment of sentence in the Court of Common Pleas of Chester County entered against appellant for violation of 75 Pa.C.S.A. § 3361. Appellant contends that the trial court erred in: (1) admitting into evidence the arresting officer’s testimony regarding a VAS-CAR-Plus unit speed-timing taken over a distance of less than one-tenth mile, and (2) finding appellant guilty of 75 Pa.C.S.A. § 3361. For the reasons below, we affirm the trial court.

On March 22, 1987, appellant was driving north on Route 202 between Paoli Pike and Route 322 in Chester County. Officer Miller observed appellant’s car in front of him traveling at a high rate of speed. Consequently, Officer Miller followed appellant’s car for a distance of 0.0938 mile and timed the vehicle using a VASCAR-Plus speed-timing device. Appellant’s car was timed at 84.5 miles per hour in a 55 mile per hour zone. Thereafter, Officer Miller arrested appellant and charged him with violation of 75 Pa.C.S.A. § 3361, driving vehicle at unsafe speed.

Appellant was found guilty by the District Justice and appealed to the Court of Common Pleas. After a de novo trial, appellant was found guilty. Following denial of post-trial motions, appellant was sentenced to pay the statutory fine of $25, plus court costs and the statutory emergency fund fine of $10. This timely appeal follows.

Appellant first maintains that the trial judge erred in admitting into evidence the arresting officer’s testimony regarding a VASCAR-Plus unit speed reading taken over a distance of less than one-tenth mile. Specifically, appellant contends that the testimony is inadmissible because the procedure used by the arresting officer is contrary to the one-tenth mile calibration requirement found in 67 Pa.Code § 105.95 and contrary to the holding of Commonwealth v. Alexion, 33 Ches.Co.Rep. 37 (1984). In Alexion, supra, the trial court “[found] the Vio of a mile calibration to be reasonable and conclude[d] that it should also apply, as a minimum standard, to the use of VASCAR-PLUS.” Id. at 38.

In reviewing appellant’s contention, we turn to the applicable statutory provisions to determine the legislative intent regarding the use of a VASCAR-Plus unit. In ascertaining the legislature’s intent, we are mindful that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit,” 1 Pa.C.S.A. § 1921(b), and “[e]very statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). Section 3368 of the 1976 Vehicle Code, as amended, governs the use of speed-timing devices and reads in pertinent part:

(c) Mechanical, electrical and electronic devices authorized.—
(3) Electronic devices which calculate speed ry measuring elapsed time between measured rod surface points by using two sensors and devices which measure and calculate the average speed of a vehicle between any two points may be used by any police officer.
(4) No person may be convicted upon evidence obtained through the use of devices authorized by [section 3368(c)(3)] unless the speed recorded is six or more miles per hour in excess of the legal speed limit. Furthermore, no person may be convicted upon evidence obtained through the use of devices authorized by [section 3368(c)(3) ] in an area where the legal speed limit is less than 55 miles per hour if the speed recorded is less than ten miles per hour in excess of the legal speed limit. This paragraph shall not apply to evidence obtained through the use of devices authorized by [section 3368(c)(3) ] within a school zone.
(d) Classifications, approval and testing of mechanical, electrical and electroM® devices. — The department may, by regulation, classify specific devices as being mechanical, electrical or electronic. All mechanical, electrical or electronic devices shall be of a type approved by the department, which shall appoint stations for calibrating and testing the devices and may prescribe regulations as to the manner in which calibrations and tests shall be made. The certification and calibration of electronic devices under [section 3368(c)(3)] shall also include the certification and calibration of all equipment,, timing strips and other devices which are actually used with the particular electronic device being certified and calibrated. The devices shall have been tested for accuracy within a period of 60 days prior to the alleged violation. A certificate from the station showing that the calibration and test were made within the required period, and that the device was accurate, shall be competent and prima facie evidence of those facts in every proceeding in which a violation of this title is charged.
(e) Distance requirements for use ©ff meehameal, ele®= trical and electronic devices. — Mechanical, electrical or electronic devices may not be used to time the rate of speed of vehicles within 500 feet after a speed limit sign indicating a decrease of speed. This limitation on the use of speed timing devices shall not apply to speed limit signs indicating school zones, bridge and elevated structure speed limits, hazardous grade speed limits and work zone speed limits.

75 Pa.C.S.A. § 3368(c)-(e).

In accordance with Section 3368(d), the Department of Transportation has issued regulations classifying speed-timing devices and providing for the certification and calibration of these devices. The VASCAR-Plus unit has been classified as a electronic speed-timing device (nonradar) which calculates average speed between any two points. See 17 Pa.Bulletin 453 (January 24, 1987); Commonwealth v. Smolow, 364 Pa.Super. 20, 25 n. 3, 527 A.2d 131, 134 n. 3 (1987) (Department of Transportation has reclassified VAS-CAR as an electronic speed-timing device and approved its use by any police officer.). Moreover, the Department of Transportation has issued regulations in accordance with 75 Pa.C.S.A. § 3368(d) regarding the calibration and testing of electronic speed-timing devices such as the VASCAR-Plus unit. Appellant specifically refers us to 67 Pa.Code § 105.95(a)(4) which reads:

(a) Method. An electronic device governed by this sub-chapter shall be calibrated and tested as follows:
# # * * ft
(4) A course other than a lk mile can be used, but not less than Vio mile.

■ In reviewing the statutory scheme, we find that the legislature did not indicate a minimum distance requirement for the use of a VASCAR-Plus unit nor did it provide the Department of Transportation with the authority to regulate the use of the unit by imposing a distance requirement. Contrary to appellant’s contention, 67 Pa.Code § 105.-95(a)(4) does not specify a minimum distance requirement for use of the VASCAR-Plus unit. Instead, it sets forth the method to calibrate and test an electronic unit.

In Alexion, supra, the defendant, appealing from a summary speeding conviction, contended that the timing of his car by a VASCAR-Plus unit over a distance of less than one-tenth mile was “so fraught with unreliability as to be incapable of sustaining a conviction beyond a reasonable doubt.” Id. at 37. The trial court agreed. It reasoned that the VASCAR-Plus unit, a device which measures both the distance and the time necessary for a vehicle to pass over a particular distance, is subject to human error because “there is an inevitable lag between the time the operator thinks he sees the driver begin and end the measured distance and when he actually trips and untrips the device.” Id, In light of this potential for human error, the court found that it was necessary to establish a minimum distance requirement for use of the unit, and turned to 67 Pa.Code § 105.95(a)(4) for guidance. Finding that the Department of Transportation requires the calibration of “ ‘electrical-mechanical’ speed devices” over a distance of no less of one-tenth of a mile, the trial court concluded that it is important that such devices be operated, as well as calibrated, over the minimum distance set forth in the regulation. In reaching this conclusion, the trial court in Alexion, supra, improperly imposed a requirement that was not intended by the legislature. It is evident from the statutory provisions that the legislature considered the possibility of human error and sought to minimize it, not by imposing a minimum distance requirement for operation of an electronic device, but by requiring: (1) approval of the devices by the Department of Transportation; (2) calibrating and testing of the devices for accuracy, and (3) appointment of stations for calibrating and testing. Thus, the trial court in Alexion, supra, created a requirement where none existed in the statute. We, therefore, have no choice but to overrule Alexion, supra. See Halko v. Board of Directors of School District of Foster, 374 Pa. 269, 97 A.2d 793 (1953) (court in construing statute cannot rewrite such statute); Commonwealth v. Aljia Dumas Private Detective Agency, Inc., 246 Pa.Super. 140, 369 A.2d 850 (1977), allocatur denied, (additional remedy will not be fabricated from the statute when the legislature has clearly expressed its intent). In overruling Alexion, supra, we find the trial court in the instant case did not err in admitting into evidence a VASCAR-Plus unit speed-reading taken over a distance less than the distance specified for calibration in 67 Pa.Code § 105.95.

Second, appellant argues that there is insufficient evidence to support appellant’s conviction under 75 Pa.C. S.A. § 3361. Specifically, appellant contends that the evidence is insufficient because the Commonwealth presented no evidence of weather and roadway conditions rendering appellant’s speed unreasonable nor was there any testimony that appellant was traveling at a speed greater than would permit him to bring his vehicle “to a stop within the assured distance ahead.” 75 Pa.G.S.A. § 3361.

In evaluating a claim that the verdict is against the law for lack of sufficient evidence, we must determine:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is suffident evidence to find every element of the crime beyond a reasonable doubt____ The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence ... Moreover, in applying the above test, the entire trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted.)

Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986), quoting Commonwealth v. Harper, 485 Pa. 572, 576-577, 403 A.2d 536, 538-539 (1979).

Section 3361 reads:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S.A. § 3361. Instantly, the record indicates that appellant failed to drive at a speed that was reasonable or prudent under the conditions, and failed to have regard for the potential hazards then existing. The arresting officer described Route 202 North as a limited access highway having a posted speed limit of fifty-five miles per hour. He further explained that the section of Route 202 North between the Paoli Pike on-ramp and Route 322 exit comprises of three lanes and is approximately one-tenth of a mile in distance. Officer Miller testified:

Q. Now, ... can you describe the conditions of the roadway, and the actual and potential hazards which existed at the time you timed the vehicle?
A. Route 202 is a limited access highway, paved concrete. The section we are discussing is a three lane section. We have traffic entering 202 northbound from the Paoli Pike and traffic exiting 202 northbound of 322. So right at this section here you have traffic coming onto and off of 202 in this stretch.
Q. Which lane was the vehicle which you time in? A. Of the three lanes, it was in the middle lane, center lane.
Q. And if you enter Paoli Pike at that location and desire to travel north on 202, ... what do you have to do in order to travel onto 202 north?
A. You either get in the center lane or passing lane, the far left lane, one of the two. They’re the only two that continue past 322.
Q. And if you stay in the far right lane, what — where do you go in that lane?
A. Down the 322 exit.

N.T. 11/10/87 at 10 (emphasis added). The trial record further indicates that there was a truck traveling on Route 202 North at the same time appellant was traveling on the route. Appellant entered the highway from the Paoli Pike on-ramp and exited at the Route 322 exit. It is apparent from the record that appellant’s speed was unreasonable given the conditions of the highway. Appellant was traveling at 84.5 miles per hour in a 55 miles per hour zoned area where traffic must merge and exit while competing with the northbound flow of traffic. In addition, we note that appellant was entering and exiting the northbound highway at a high rate of speed within a distance of approximately one-tenth mile. The potential for hazards and conditions rendering traveling at a speed of 84.5 miles per hour unreasonable is clearly supported by the evidence. Accordingly, we find sufficient evidence to support a conviction under Section 3361.

Judgment of sentence affirmed.

      . The court below attempted to distinguish Alexion, supra, from the instant case. Although the trial court relied on an alternate legal ground to support the admissibility of the speed-reading, we can affirm if for any reason the admission of evidence was proper. See Commonwealth v. Pettiford, 265 Pa.Super. 466, 468, 402 A.2d 532, 533 (1979) (appellate court can affirm admission of evidence based upon erroneous grounds, if for any reason admission of evidence was proper); Commonwealth v. Hinton, 269 Pa.Super. 43, 48, 409 A.2d 54, 57 (1979) (“... judgment may be affirmed by the appellate court on any legal theory, regardless of rationale or theory employed by the lower court”).

      . Because we find that there is sufficient evidence to support a finding that appellant was traveling at an unreasonable speed “under the conditions," we do not reach appellant’s other contention that there was no testimony regarding whether he could bring his car "to a stop within the assured clear distance ahead.”


author: PER CURIAM:

text:
    552 A.2d 302
    Priscilla LICHTENWALNER, Rebecca Lichtenwalner and John Lichtenwalner, minors by Leon LICHTENWALNER and Constance Lichtenwalner, their Guardians and Leon Lichtenwalner and Constance Lichtenwalner, Husband and Wife, Appellants, v. Janet E. SCHLICTING, Executrix of the Estate of Allan W. Schlicting and Skyten Flying Club, Inc. and Cessna Aircraft Co., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1988.
    Filed Jan. 9, 1989.

      Patrick J. Reilly, Allentown, for appellants.
    Laura Ann Feldman, Philadelphia, for appellees.
    Before CIRILLO, President Judge, and WIEAND and McEWEN, JJ.
   PER CURIAM:

The complaint in this civil action contained separate counts alleging that the minor plaintiffs, Priscilla, Rebecca, and John Lichtenwalner, had suffered emotional distress when an aircraft owned by the defendant, Skyten Flying Club, Inc., and operated by Allan W. Schlicting, the decedent whose estate was named as a defendant, crashed into the yard of the home where the minor plaintiffs were residing. The defendants filed preliminary objections in the nature of a demurrer in which they asserted that the minor plaintiffs had failed to allege a valid cause of action in the absence of an averment that the aircraft had physically injured or impacted with the minor plaintiffs. The trial court, following argument, sustained the defendants’ preliminary objections but granted leave to plaintiffs to file an amended complaint within twenty (20) days. Specifically, the court’s order provided:

“It is ordered that defendants’ preliminary objections to plaintiffs’ complaint are hereby sustained; and
It is further ordered that plaintiffs are hereby granted leave to amend their complaint to allege their ‘best case’ within 20 days.”

From this order the plaintiffs appealed. We quash the appeal for lack of jurisdiction.

“As a general rule, in Pennsylvania, an order which sustains a preliminary objection in the nature of a demurrer, without dismissing the complaint, entering judgment, or otherwise terminating the action between the parties, is interlocutory and, therefore, lacks the requisite finality to be an appealable order. The reason for this rule is that the pleader may be able to amend the pleading demurred to so as to cure the defects attacked by the demurrer.” 16 Std.Pa.Prac. § 86:24. See: Sullivan v. Philadelphia, 378 Pa. 648, 107 A.2d 854 (1954); Jones v. Nissenbaum, Rudolph & Seidner, 244 Pa.Super. 377, 368 A.2d 770 (1976). Thus, an order sustaining preliminary objections in the nature of a demurrer and directing the plaintiffs to file an amended complaint is interlocutory and not appealable. See: Westbury Realty Corp. v. Lancaster Shopping Center, Inc., 396 Pa. 383, 386, 152 A.2d 669, 671 (1959); Shadie v. Nanticoke UAW Housing Co., 292 Pa.Super. 467, 437 A.2d 769 (1981); Graybill v. Fricke, 53 Pa.Cmwlth. 8, 10, 416 A.2d 626, 628 (1980).

In the instant case, it is abundantly clear that the minor plaintiffs are not “out of court” on their alleged cause of action for emotional distress. The order sustaining preliminary objections in the nature of a demurrer to their alleged causes of action and directing them to file an amended complaint is not final but interlocutory. Appellants’ counsel assured us at oral argument that an amended complaint could be filed, and appellants’ brief contains a request that, in the event we affirm the trial court’s order on its merits, an order be entered which will remand to allow them to file an amended complaint. Under these circumstances, we have no jurisdiction to consider the merits of the appeal. The appeal is premature and must be quashed.

It is so ordered.