author: WIEAND, Judge:

text:
    516 A.2d 384
    William PASCONE and Tanya Pascone, Appellants, v. THOMAS JEFFERSON UNIVERSITY, Appellee.
    Superior Court of Pennsylvania.
    Argued March 15, 1986.
    Filed Oct. 15, 1986.

      Barton A. Haines, Philadelphia, for appellants.
    James Young, Philadelphia, for appellee.
    Before WICKERSHAM, WIEAND and POPOVICH, JJ.
   WIEAND, Judge:

The principal issue in this appeal following a defense verdict in an action of medical malpractice against Thomas Jefferson University is whether the trial court erred when it refused to allow the plaintiffs to introduce into evidence portions of the videotaped deposition of a defense expert who was not called to testify at trial. We conclude, for reasons hereinafter appearing, that the trial court did not abuse its discretion or commit error; and, therefore, we affirm.

In February, 1962, Tanya Pascone gave birth to a baby girl who had severe birth defects. The child received treatment at Johns Hopkins University Hospital in Baltimore, Maryland, but died within three months of birth. Following the death of their first child, Tanya Pascone and her husband, William Pascone, moved from their residence in Maryland to Philadelphia where, in 1963, Mrs. Pascone came under the care of various physicians in the Department of Obstetrics and Gynecology at Jefferson University. The Pascones apprised their physicians, who were employees of Jefferson University, with respect to the medical history of their first child and inquired whether there was a danger that another child would be born with similar birth defects. The Pascones were informed that such an occurrence was unlikely. Based on this advice, Mrs. Pascone again became pregnant and, in 1964, gave birth to a normal, healthy boy. Tragically, however, history was repeated when, in 1968, another girl, Sonya, was born to Mrs. Pascone with birth defects similar to those of the first child.

The Pascones commenced an action against Jefferson University to recover damages for their emotional suffering and for the medical expenses which they had incurred as a result of Sonya’s disabilities. They contended that the hospital was vicariously liable for the negligence of hospital-employed physicians who had failed to determine and advise them, prior to conception of their daughter Sonya, that there was a likelihood that additional children would be born with congenital birth defects. At trial, liability was made to depend upon whether competent physicians, acting in accordance with accepted standards of practice within the medical community during the 1960s, should have been aware that the disabilities suffered by the Pascones’ first child were genetically transmitted and thus could reappear in children subsequently born to them.

In defense of this issue, the hospital offered the testimony of Dr. William Beck, an obstetrician and gynecologist, who opined that in light of the state of genetic research during the relevant time period, a competent obstetrician would not have been expected to know the cause of the birth defects suffered by the Pascones’ first child, would not have conducted independent research to determine the cause thereof, and would not have been expected to seek consultation with a geneticist. After the hospital had rested, the plaintiffs sought to rebut Dr. Beck’s testimony by offering the cross-examination testimony of Dr. Kaighn Smith, whose pre-trial depositions had been recorded on videotape. Dr. Smith, a board certified obstetrician and gynecologist, had been retained by the hospital to give an expert medical opinion concerning the standards of medical care during the 1960s. Unsure of whether Dr. Smith would be available during trial, counsel for Jefferson University had caused Dr. Smith’s deposition to be taken and recorded approximately two and one-half weeks before the scheduled trial date. The videotaped deposition of Dr. Smith included cross-examination which had been conducted by plaintiffs’ attorney. By asking Dr. Smith during cross-examination to assume certain hypothetical facts, plaintiffs’ counsel had been able to extract answers which plaintiffs believed would be helpful in showing that the hospital physicians had been negligent. In support of their motion to admit the videotaped cross-examination of Dr. Smith at trial, plaintiffs argued that because Jefferson University had deposed Dr. Smith for the sole purpose of using his testimony at trial, the trial had actually commenced upon the taking of his deposition and, therefore, Dr. Smith’s testimony was already in evidence. In any event, the Pascones argued, the answers elicited from Dr. Smith during cross-examination contradicted the trial testimony of Dr. Beck and should be received for purposes of rebutting the same.

The trial court ruled that plaintiffs could not use the answers extracted from Dr. Smith during cross-examination. The court reasoned (1) that answers given by the witness on cross-examination had been premised upon hypothetical facts which had not been proved during trial; (2) that the testimony which plaintiffs wished to present to the jury had been elicited by the use of leading and suggestive questions which, if Dr. Smith were to become plaintiffs’ witness, would be objectionable; and (3) that Dr. Smith had refused to testify as a witness for the plaintiffs and to permit plaintiffs to use his depositions would be to force him to testify against his will.

We are unable to agree with the third reason advanced by the court for refusing to allow plaintiffs the use of Dr. Smith’s deposition. Although Dr. Smith may have believed that he was giving testimony as a defense witness, the record discloses that he was fully aware that he was giving testimony via deposition for use at trial and that all or part of his testimony could be used for that purpose.

The evidentiary ruling of the trial court, however, must be affirmed if it was correct for any reason. See: E.J. McAleer & Co. v. Iceland Products, Inc., 475 Pa. 610, 613 n. 4, 381 A.2d 441, 443 n. 4 (1977); Gwinn v. Kane, 465 Pa. 269, 279 n. 12, 348 A.2d 900, 905 n. 12 (1975); Green v. Juneja, 337 Pa.Super. 460, 464 n. 5, 487 A.2d 36, 39 n. 5 (1985); Emerick v. Carson, 325 Pa.Super. 308, 316 n. 2, 472 A.2d 1133, 1137 n. 2 (1984). “It is well settled that the admission of expert testimony is a matter within the sound discretion of the trial court, whose decision will not be reversed unless the court clearly abused that discretion.” Pirches v. General Accident Insurance Co., 354 Pa.Super. 303, 307, 511 A.2d 1349, 1351 (1986). See: Schnabel Associates, Inc. v. T & M Interiors, Inc., 352 Pa.Super. 303, 305, 507 A.2d 1241, 1242 (1986); Jackson v. Spagnola, 349 Pa.Super. 471, 476, 503 A.2d 944, 947 (1986).

The admissibility of videotaped depositions is governed by Rule 4017.1 of the Rules of Civil Procedure. That rule states, in pertinent part:

(a) Any deposition taken upon oral examination may be recorded by videotape. Except as provided by this rule, the rules of this chapter governing the practice and procedure in depositions and discovery shall apply.
(g) In addition to the uses permitted by Rule 4020 a videotape deposition of a medical witness or any witness called as an expert, other than a party, may be used at trial for any purpose whether or not the witness is available to testify, (emphasis added).

Rule 4020 provides, inter alia:

(a) At the trial, any part or all of a deposition, so far as admissible under the rules of evidence, may be used against any party who was present or represented at the taking of the deposition or who had notice thereof if required, in accordance with any one of the following provisions:
(5) A deposition upon oral examination of a medical witness, other than a party, may be used at trial for any purpose whether or not the witness is available to testify.

Pa.R.C.P. 4020(a)(5) (emphasis added). In general, the test of admissibility of a deposition under these rules is the same as that for the admissibility of like testimony offered by a witness on the stand in open court. 10 Goodrich-Am-ram 2d § 4020(a):10.

The law is clear that “[a] question assuming a fact not proved or admitted is improper and should be excluded.” 98 C.J.S. Witnesses § 341. See: Kirschman v. Pitt Publishing Co., 318 Pa. 570, 574, 178 A. 828, 829 (1935). See also: McCormick on Evidence § 14 (3d ed. 1984). In this case, not only did plaintiffs fail to prove many of the assumed facts underlying hypothetical questions asked of Dr. Smith on cross-examination, but a substantial portion of the assumed facts was actually disproved by other evidence offered during trial. This is particularly significant when it is remembered that plaintiffs’ offer of Dr. Smith’s deposition was made for the first time on rebuttal after the parties had fully presented their evidence and had rested their cases. Under these circumstances, we conclude, the trial court did not abuse its discretion by refusing to admit into evidence the videotaped cross-examination of Dr. Smith.

Moreover, “it has long been held that one may not lead his own witness with suggestive questions.” Rogan Estate, 404 Pa. 205, 214, 171 A.2d 177, 181 (1961). The limitation on the form of questions which a party may ask his own witness is not modified by Pa.R.C.P. 4020(d) which permits the introduction of deposition testimony by either party. 10 Goodrich-Amram 2d § 4020(d):2. “The distinction, applicable to live witnesses called to the stand, between the direct examination form of questioning and the cross-examination form of questioning, remains fully applicable.” Id.

In the instant case, although plaintiffs wanted the jury to hear their cross-examination of Dr. Smith, they were making him their own witness when they offered into evidence his deposition testimony. See: Pa.R.C.P. 4020(d). As the Pascones’ witness, Dr. Smith could not testify by way of leading questions asked by plaintiffs’ counsel. This was true just as if the doctor’s testimony had been given from the witness stand in open court. A review of the transcript of Dr. Smith’s deposition reveals unequivocally that the questions asked of him on cross-examination were hypothetical in form and were thus, by their very nature, suggestive and leading.

The Pascones argue that Dr. Smith was a “hostile witness” and, therefore, that the use of leading questions was proper. We disagree. Dr. Smith cannot be characterized as a hostile witness merely because Jefferson University was the party which scheduled his deposition. Moreover, there is nothing in the transcript of Dr. Smith’s testimony to suggest that he was unwilling or even reluctant to answer the questions posed to him by plaintiffs’ counsel on cross-examination. Therefore, the use of suggestive questions could not be justified on the ground that Dr. Smith was, at the time of his deposition, a hostile witness.

We also find meritless the argument made by appellants that trial had commenced when Dr. Smith’s depositions were taken for later use. Nothing in the record of this case even remotely suggests that the parties considered the taking of Dr. Smith’s videotaped deposition to be the initiation of trial proceedings. Indeed, Dr. Smith’s deposition had been taken only for use at trial in the event he was not available to testify at trial. Appellants would have us hold that where a party takes the deposition of a medical expert with the intention of using it at trial, that party is bound by the expert’s testimony and must in all events present the deposition to the jury. Such a conclusion, however, would be in direct contradiction of Pa.R.C.P. 4020(d) which provides: “A party shall not be deemed to make a person his own witness for any purpose by taking his deposition. The introduction in evidence of the deposition or any part thereof ... makes the deponent the witness of the party introducing the deposition [at trial].” Under this rule, it seems clear and we therefore hold that Dr. Smith’s deposition was not in evidence prior to the commencement of trial proceedings.

Having considered piecemeal the individual arguments made by the Pascones on this appeal, it is now time to step back and look not at the trees but at the forest. When this is done it becomes quite clear that plaintiffs are not entitled to a new trial because of the evidentiary ruling which excluded Dr. Smith’s deposition testimony. The issue upon which liability was to be determined was whether physicians, practicing according to medical standards in effect during the 1960s, should have been aware that the birth defects experienced by the plaintiffs’ first child were genetically transmitted and likely to reoccur in children subsequently conceived and born to them. A careful examination of Dr. Smith’s deposition testimony discloses that during both direct and cross-examination he maintained unequivocally and consistently that obstetricians practicing in the decade between 1960 and 1970, including those practicing at Jefferson University, could not then be expected to know that birth defects suffered by plaintiffs’ first child were genetically transmitted. Moreover, he said, physicians would not then have been required and would not have been expected by then prevailing standards to investigate further the cause of the child’s maladies. By suggestive hypothetical questions, however, plaintiffs’ counsel was able to extract answers suggesting that under certain hypothetical circumstances the physicians might possibly have been deemed negligent. At trial, after plaintiffs and defendant had rested, the circumstances on which the hypothetical questions had been premised remained unproved and, in fact, had been disproved in part. The trial court’s evidentiary ruling which denied plaintiffs’ attempt to use the cross-examination portion of the videotaped depositions of Dr. Smith, under these circumstances, was not legally erroneous, was not an abuse of the trial court’s discretion, could not have resulted in a different verdict, and does not warrant the granting of a new trial.

Appellants also contend that the trial court committed error when it permitted counsel for Jefferson University to cross-examine Dr. Laird Jackson beyond the scope of direct examination. Dr. Jackson was called by the plaintiffs to testify to the content, compilation, and completeness of certain medical records which had been kept by the hospital’s Genetic Counseling Clinic during the late 1960s. On cross-examination, Dr. Jackson was permitted, over objection, to testify to the prevailing standard of practice in the medical community during the relevant time period. Wide latitude was afforded Jefferson University during cross-examination because, the court said, it was questionable whether Dr. Jackson would be available for recall as a witness by the defense and also in the interest of clarity to aid the jury’s understanding of his entire testimony. The court advised plaintiffs’ counsel that he would be allowed to cross-examine Dr. Jackson fully regarding matters covered by defense examination of the witness, and plaintiffs’ counsel did in fact cross-examine Dr. Jackson fully with respect thereto.

Ordinarily, cross-examination should be limited to matters brought out on direct examination. Woodland v. Philadelphia Transportation Co., 428 Pa. 379, 385, 238 A.2d 593, 596 (1968); Magnavox Co. v. Royson Engineering Co., 195 Pa.Super. 139, 144, 169 A.2d 559, 561-62 (1961). The scope or limitation of cross-examination, however, “is largely within the discretion of the trial judge, and his action will not be reversed on appeal in the absence of an abuse of that discretion or unless obvious disadvantage resulted therefrom.” Rohr v. Logan, 206 Pa.Super. 232, 239, 213 A.2d 166, 171 (1965). See: Townsend Will, 430 Pa. 318, 323, 241 A.2d 534, 537, cert. denied sub. nom., Cochran v. Morris, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed.2d 270 (1968); King v. Holt, 200 Pa.Super. 431, 435, 188 A.2d 760, 762 (1963). See also: Kemp v. Qualls, 326 Pa.Super. 319, 324, 473 A.2d 1369, 1371 (1984). Although the trial court in the instant case permitted Dr. Jackson to be asked about matters which exceeded the scope of direct examination, the Pascones have failed to identify any disadvantage suffered by them as a result of the exercise of the trial court’s discretion. We, too, have been unable to perceive any disadvantage to the plaintiffs because of the trial court’s decision to allow Dr. Jackson to testify fully during one and the same appearance as a witness. Because the court’s decision to broaden the scope of cross-examination was not prejudicial to the Pascones, but was made out of courtesy to the witness and in the interest of proceeding expeditiously, we conclude that there was no abuse of discretion.

Judgment affirmed.

POPOVICH, J., concurs in the result.

      . The Pascones also presented a claim on behalf of their daughter for her “wrongful life.” However, this claim was dismissed prior to trial on a motion for summary judgment, and the dismissal is not before this Court for review.

      . Dr. Smith’s direct testimony had been supportive of the defense view of the case and had not been even arguably favorable to the plaintiffs. The testimony which plaintiffs’ counsel wished the jury to hear and which he referred to in his offer of proof had been elicited during cross-examination of Dr. Smith.

      . To illustrate, many of the questions which had been posed to Dr. Smith during cross-examination were based on the following assumptions: that in 1967 a genetic counseling clinic was established at Jefferson University; that there existed a protocol at the hospital whereby expectant mothers who had previously given birth to deformed children were referred to the clinic; and that the obstetricians who treated Mrs. Pascone were aware that such counseling was available. These facts, the Pascones maintained, were supported by the deposition testimony of Dr. Laird Jackson, a professor of pediatrics and director of the Division of Medical Genetics at Jefferson University. Dr. Jackson’s deposition, however, was not introduced into evidence by the Pascones at trial. Moreover, Dr. Jackson substantially contradicted these assumptions when he took the stand and testified live at trial. On cross-examination, Dr. Jackson testified as follows:
      Q. Are you aware of whether there was any procedure, written or unwritten, at Jefferson at any time before July, 1968 which would have instructed the obstetricians to send to you for counseling a person who presented with a history of having a prior birth of a child which had died at the age of three months and had missing radius, died of a bleeding disorder?
      A. There wasn’t one at Jefferson then, there wasn’t one at any hospital in Philadelphia and there isn’t one now.
      Q. Regardless of whether there was any procedure, would a competent obstetrician before July, 1968, in your opinion, have referred to you a patient who presented the history I’ve described when they reported to that obstetrician?
      A. No, I don’t think so.
      Q. Why not?
      A. Because I don’t think they saw that the problem of recurrence or risk of recurrence of genetic disorders was a problem of paramount importance to them. It was way down on their priority lists. They did not see or did not realize that these things could become important to families. They did not see there were things that families could do to change what would happen to them, and it was simply not in their pattern of practice. It was not something they understood could be important to their patients.
      Q. Should a competent obstetrician at any time before July, 1968 have recognized the symptoms reported in Mrs. Pascone’s history as being a genetic problem?
      A. No. I would say that these things—and by and large this is true today. The difference at present between today and then is not the obstetrician recognizes the problem as genetic, it’s the obstetrician recognizes there may be somebody who can say that. So they send the patient to somebody who has that ability. Obstetricians still spend their time learning about things they can do to help the mother during the course of the pregnancy, and they learn who they can call upon for help for other things. And I think the key differences are two: They recognize some of those problems can be helped by others and they recognize other people who are around or can help that. In 1967 or 1968 most of us [who] were doing that were unknown to the obstetricians, or almost unknown.
      N.T. at 12.47-12.50.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    516 A.2d 390
    COMMONWEALTH of Pennsylvania v. Richard Allen BAUGHMAN, Appellant.
    Superior Court of Pennsylvania.
    Argued June 25, 1986.
    Filed Oct. 9, 1986.

      Anthony S. Guido, DuBois, for appellant.
    Joseph A. Curcillo, III, Assistant District Attorney, Clear-field, for Com., appellee.
    Before ROWLEY, McEWEN and TAMILIA, JJ.
   PER CURIAM:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Clearfield County. Following a bench trial, appellant Richard Allen Baughman was convicted of operating a motor vehicle while under the influence of alcohol, 75 Pa.C.S. § 3731. Post-trial motions were denied, and appellant was sentenced to thirty days to one year imprisonment, a fine of $500.00, and directed to attend a driving course. We affirm.

Appellant does not deny that he was under the influence of alcohol or that he was operating a motor vehicle. The sole question presented for our review, an issue of first impression, is whether the dirt track, through a field which was open to the public and occasionally used for vehicular traffic, on which appellant was operating the motor vehicle under the influence of alcohol, was “a trafficway” as defined by 75 Pa.C.S. § 102.

Appellant was discovered in his vehicle, by a deputy sheriff, attempting to move his car. The car was straddling a railroad track which ran parallel to the “trafficway” in question. At trial, the trafficway was described as a one-lane, dirt road which was on private property and dead-ended. Tire tracks appeared on the dirt from cars occasionally travelling on the surfaceway.

Section 102 of the Vehicle Code, 75 Pa.C.S. § 102, defines trafficway as follows:

“Trafficway.” The entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom.

Appellant contends that the phrase “between property lines or other boundary lines” defines “trafficway” so that the term “clearly contemplates a private roadway used by several different residences to gain access. In other words, a private roadway located between the boundary lines of several properties which are used in common by the various properties for access.”

The restrictive definition appellant urges upon us is inconsistent with the Statutory Construction Act of 1972. Our Court “must construe the words of a statute according to their plain meaning.” Commonwealth v. Stanley, 498 Pa. 326, 335, 446 A.2d 583, 587 (1982); see also 1 Pa.C.S. § 1903. Webster’s Third New International Dictionary (1981) at 260 defines “boundary” as “something that indicates or fixes a limit or extent.” Thus, the phrase “between property lines or other boundary lines” is intended to aid in establishing a method for delineating the width of the trafficway. Nowhere in the definition of trafficway do we find restrictive wording that limits the definition to private access roadways used by several properties. In fact, Section 102 provides a separate definition for private roads or driveways.

The testimony adduced at trial also established that there were no signs or barriers prohibiting access to the road and that people occasionally drove their cars on the road. Teenagers, especially, were known to drive on the road and park. Thus the road was “open to the public,” it was customarily used by at least certain members of the public, and it was used for vehicular traffic. All the elements of a “traffic-way” having been satisfied, we hold that the dirt track on which appellant was driving the vehicle while under the influence of alcohol was a “trafficway” within the meaning of 75 Pa.C.S. § 102. Therefore, the judgment of sentence for driving while under the influence of alcohol under 75 Pa.C.S. § 3731 must be affirmed.

Judgment of sentence affirmed.


author: ROWLEY, Judge:

text:
    516 A.2d 392
    James R. DOVERSPIKE and Carl Doverspike, t/d/b/a J.C. Enterprises, a partnership, v. Donald E. CHAMBERS and Shirley Chambers, his wife, Elizabeth Herberline and Robert C. Chambers, Co-Executors of the Estate of Mary E. Chambers, Deceased. Appeal of Donald E. CHAMBERS and Shirley Chambers, his wife. Donald E. CHAMBERS and Shirley Chambers, his wife, Appellants v. James R. DOVERSPIKE and Carl Doverspike, t/d/b/a J.C. Enterprises, a partnership v. Elizabeth HERBERLINE and Robert C. Chambers, Co-Executors of the Estate of Mary E. Chambers, Deceased.
    Superior Court of Pennsylvania.
    Argued March 24, 1986.
    Filed Oct. 15, 1986.

      E.J. Strassburger, Pittsburgh, for appellants.
    Louis Emanuel, Pittsburgh, for appellees.
    Before ROWLEY, WIEAND and DEL SOLE, JJ.
   OPINION OF THE COURT

ROWLEY, Judge:

This case arose out of the execution of an oil and gas lease by life tenant Mary E. Chambers in favor of the developer, James R. Doverspike and Carl Doverspike, t/d/b/a J.C. Enterprises (Doverspike). The remaindermen to the estate are Mary E. Chambers’ son, Donald E., and his wife, Shirley (remaindermen). Upon the death of the life tenant, the remaindermen brought an action of trespass against Doverspike for trespass and conversion, and later amended their action to include a request for declaratory judgment, seeking to be declared the owners of the gas rights to the estate. Doverspike brought an action in equity against the remaindermen and the estate of the life tenant seeking both a preliminary and final injunction to to enjoin the remaindermen from interfering in the operation of the gas wells, a declaratory judgment declaring itself to be the owner of the gas rights in the real estate, and damages for breach of warranty by the life tenant.

The actions were consolidated by an order of court dated February 3, 1983, and both parties thereafter moved for summary judgment. The trial court granted Doverspike’s motion for summary judgment, denied remaindermen’s motion for summary judgment, and entered judgment for Doverspike. Thereafter, the remaindermen filed exceptions to the order granting and denying summary judgment and petitioned for reconsideration of the order entering judgment. The petition for reconsideration was granted, and thereafter, the trial court confirmed its initial decision and denied the exceptions advanced by the remaindermen on reconsideration.

The remaindermen then filed the appeal at 898 Pittsburgh, 1985 in which they raise two issues: 1) whether the trial court erred in granting summary judgment based on the open mine doctrine; and 2) whether they were entitled to summary judgment because the lease did not comply with the Statute of Frauds. Doverspike raised the additional issues at 899 Pittsburgh, 1985 of whether, if the lease terminated with the death of the life tenant, the remainder-men have any interest in the property or improvements of Doverspike, and if the remaindermen are the owners of the wells, whether the doctrine of unjust enrichment requires them to compensate Doverspike for the benefit they have been granted.

On review of an order granting summary judgment, an appellate court needs to determine only whether there is a genuine issue of triable fact. Bowman v. Sears, Roebuck and Co., 245 Pa.Super. 530, 369 A.2d 754 (1976). The granting of the summary judgment can be sustained only if the pleadings, depositions, answers to interrogatories and admissions plus any affidavits show that there is no genuine issue as to a material fact and that the moving party is entitled to a judgment as a matter of law. Jeffries v. McCague, 242 Pa.Super. 76, 363 A.2d 1167 (1976).

The following undisputed facts are established in the record. By deed dated May 29, 1970, Donald B. Chambers and his wife, Mary E. Chambers, conveyed two tracts of land, totalling approximately one hundred and eight acres, to their son, Donald E. Chambers, and his wife, Shirley. The deed contained the following reservations:

ALSO EXCEPTING AND RESERVING a life estate in the above described premises unto Donald Brooks Chambers and Mary Evelyn Chambers, his wife, for and during their natural lifetime of both the said Donald Brooks Chambers and Mary Evelyn Chambers, his wife.
ALSO EXCEPTING AND RESERVING from both of the above described tracts the coal and mining rights and release of damages as heretofore sold and conveyed and/or excepted and reserved.
ALSO EXCEPTING AND RESERVING unto Donald Brooks Chambers and Mary Evelyn Chambers, his wife, for and during the natural lifetime of both the said Donald Brooks Chambers and Mary Evelyn Chambers, his wife, the gas rentals and/or royalties.

The deed also stated that the real estate was “UNDER AND SUBJECT to outstanding gas and oil leases.”

Life tenant Donald B. Chambers died on January 14, 1971. On November 18, 1976, surviving life tenant, Mary E. Chambers, executed an oil and gas lease in favor of Doverspike. Although the remaindermen did not sign the November 18, 1976 lease, Donald E. Chambers at least minimally assisted his mother, the surviving life tenant, in negotiating the lease with Doverspike. The time period of the lease, as stated therein, was “for the term of 2 years from this date and so long thereafter as oil or gas is produced from the premises or as operations continue for the production or storage of oil and gas.” Within the lease period, Doverspike drilled two of the three wells specified in the lease. In 1979, the life tenant and Doverspike entered into a lease extension, and by August of 1981, the third well was completed. On May 19, 1982, Mary E. Chambers died, thus vesting the fee simple interest in the one hundred and eight acres in the remaindermen.

I.

The remaindermen first argue that the open mine doctrine permits a life tenant to operate mines or wells which were open and producing before the creation of the life estate. Because the wells in this case were not open before the creation of the life estate, the remaindermen argue that it was improper for the trial court to apply the open mine doctrine. The remaindermen also argue that it was error for the trial court to sua sponte raise the issue of the applicability of the open mine doctrine. We hold that the open mine doctrine is inapplicable here, and because there are issues of fact, it was error to grant the summary judgment as a matter of law.

The open mine doctrine states that “tenants for life, only, may not open new mines or take minerals from the premises, except in cases of mines opened by the former owner. This was recognized in Westmoreland Co.’s Appeal, 85 Pa. 344____” Marshall v. Mellon, 179 Pa. 371, 375, 36 A. 201, 201 (1879). The reasoning behind the doctrine is that if the life tenant did open new mines, he would be committing waste, whereas if he simply continues to use mines of the former owner, he is then merely enjoying the use of the land in the same manner in which it was enjoyed when his estate came into being. See: Bruner Estate, 363 Pa. 552, 70 A.2d 222 (1950); Knox’s Estate (No. 1), 328 Pa. 177, 195 A. 28 (1937); Eley’s Appeal, 103 Pa. 301 (1883); Lynn’s Appeal, 31 Pa. 44 (1857); and 51 Am.Jur.2d Life Tenants and Remaindermen, § 154 (1970).

The open mine doctrine is not a rule of law but rather is an aid in the construction and interpretation of documents pertaining to mineral rights. In function it is very much like evidentiary presumptions or the rules of statutory construction found in 1 Pa.C.S. §§ 1501-1991. The open mine doctrine is not paramount to the grantor’s express intent concerning the life tenant’s rights to the proceeds or development of open mines in a deed or lease. See: Bruner Estate (No. 1), 328 Pa. 177, 195 A. 28 (1937); Murray’s Estate, 216 Pa. 270, 65 A. 675 (1907); Eley’s Appeal, 103 Pa. 301, (1883). “The application of the open mine doctrine to conventional life estates, where the creating instrument is silent as to the rights of the life tenant to the proceeds of the development of open mines is, therefore, the result of the judicially ascertained intent of the creator of the life estate.” William and Meyers, Oil and Gas Law, § 513 (Abridged Ed.1984). The doctrine should only be invoked if the grantor’s intent as to the life tenant’s rights cannot be clearly understood from the face of the document or if the document is silent as to the rights intended to be afforded to the life tenant.

In the case at hand, the deed creating the life estate contains precise, express provisions from which the intent of the grantors can be clearly understood. The deed which created the life estate specifically stated that the transfer was “UNDER AND SUBJECT to outstanding oil and gas leases. ALSO EXCEPTING AND RESERVING unto Donald Brooks Chambers and Mary Evelyn Chambers, his wife, for and during the natural lifetime of both the said Donald, Brooks Chambers and Mary Evelyn Chambers, his wife, the gas rentals or royalties.” The deed’s language is clear that when Donald B. Chambers and Mary E. Chambers transferred the real estate, not only did they intend to preserve their rights under existing leases, but they reserved, in an additional clause beginning with the word “also”, the right to gas rentals or royalties. Therefore, it is clear that the grantors intended to give the life tenants the power to execute leases in addition to those already existing. This fact can be ascertained by examination of the deed entered in the record. Because the express provisions of the deed are dispositive of the grantors’ intent, it is not necessary to apply the open mine doctrine as a rule of construction. See: Cronan v. Castle Gas Co., Inc., 354 Pa.Super. 381, 512 A.2d 1 (1986) (where the “interest created ...” was not clear and free from ambiguity, the Court applied the open mine doctrine).

Because the open mine doctrine is inapplicable here due to the clear, precise language of the deed which specifically reserved for the life tenant the rights under existing mineral leases and the right to gas rentals and royalties, it is not necessary for us to address the remaindermen’s argument regarding the applicability of the open mine doctrine where there is only a lease, and no drilling, prior to the commencement of the life estate. Having determined that the open mine doctrine is inapplicable, we now address the real issue raised in the motion for summary judgment: whether the life tenant alone had the right to execute mineral leases for a period in excess of her own life tenancy.

Although the trial court and Doverspike apply the open mine doctrine to resolve this issue, the open mine doctrine is also inapplicable here. The open mine doctrine applies, if at all, to establish whether the life tenant had the right to enter into leases and receive rents and royalties for mineral production during his or her life tenancy. The open mine doctrine is inapplicable to determine the duration of those leases entered into by the life tenant. Thus, here, where the issue is whether or not the mineral leases executed by the life tenant alone expired with the death of the life tenant, the open mine doctrine is not relevant.

To determine whether the life tenant had the right to execute mineral leases for a period in excess of her own life, we first consider the intent of the parties as manifested in the language of the operative documents. See: Lake Erie Gas Coal & Coke Co. v. Patterson, 184 Pa. 364, 39 A. 68 (1898). Unlike the intent to reserve a lease-making power in the life tenant, there is no language in the deed or the lease which would indicate any party’s intent to extend the lease given by the life tenant beyond her life. Thus, we cannot say as a matter of law that the life tenant had the authority to bind the remaindermen to a mineral lease after the termination of her life estate and after the remainder-men became owners in fee of the real estate.

The trial court presented no other authority to support its conclusion that the remaindermen were bound beyond the death of the life tenant to a lease to which they were not a party. Because there is nothing in the deed to warrant the conclusion that the remaindermen are bound by the life tenant’s lease, because the open mine doctrine is inapplicable to bind the remaindermen, and because the trial court has relied on no other authority to bind the remaindermen, evidence must be supplied to indicate whether the parties intended to extend the lease beyond the death of the life tenant. This evidence will have to be presented at trial so that the trier of fact can determine the intent of the parties. Because there is a material, disputed issue of fact, the trial court erred in granting the summary judgment.

II.

The remaindermen’s second argument is that the trial court erred by not granting summary judgment for them on the basis that the lease is unenforceable because it does not comply with the Statute of Frauds. However, Doverspike has raised numerous reasons both in its pleadings and by affidavit in opposition to the remaindermen’s motion for summary judgment, which are factually disputed, as to why the Statute of Frauds is inapplicable. These include whether the life tenant, who executed the lease, was an agent of remaindermen, whether partial performance was such as to take the lease out of the Statute of Frauds, and whether the facts show that the remaindermen are equitably estopped from asserting the Statute of Frauds.

Moreover, “while it is true that ordinarily the death of the Lessor terminates the lease, ‘the whole question in each case is one for construction, and must depend upon the intention of the parties.’ Billings’ Appeal, 106 Pa. 558.” Lake Erie Gas, Coal & Coke Co. v. Patterson, 184 Pa. 364, 368, 39 A. 68, 69 (1898). If the intention of the parties shows that the lease was not to terminate at the life tenant’s death, the Statute of Frauds will not render the lease unenforceable because the lease executed by the life tenant did comply with the Statute of Frauds. Because of the material factual issues which must be resolved in order to determine whether the Statute of Frauds applies here, it was proper for the court to deny the remaindermen’s motion for summary judgment on the basis of the Statute of Frauds.

Because we find that summary judgment should not have been granted and because the case must be remanded for trial, at which time evidence on the disputed issues of fact can be presented and the trier of fact can make factual findings, we find it unnecessary to address Doverspike’s ¿rguments which are based on the assumption that the remaindermen are in fact the owners of the wells and that the lease terminated at the death of the life tenant.

Summary judgment is vacated. Case remanded for trial. Jurisdiction is relinquished.

      . See: Cronan v. Castle Gas Co., Inc., 354 Pa.Super. 381, 512 A.2d 1 (1986) for a discussion of the merits of this issue.


author: CAVANAUGH, Judge: KELLY, Judge,

text:
    516 A.2d 397
    COMMONWEALTH of Pennsylvania v. Allen G. WASHINGTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 15, 1986.
    Filed Oct. 17, 1986.

      Richard S. Levine, Assistant Public Defender, Pittsburgh, for appellant.
    Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
    Before CAVANAUGH, OLSZEWSKI and KELLY, JJ.
   CAVANAUGH, Judge:

Appellant, Allen G. Washington, pled nolo contendré to a charge of retail theft and upon conviction was sentenced to imprisonment for a period of not less than seven nor more than fourteen months. The theft involved meat valued at $27.00 which Washington attempted to take from a market without payment. His appeal attacks the sentence as excessive and also asserts that the court improperly used misdemeanors not involving weapons in determining the prior record score for sentencing purposes. The trial court, in fact, used prior misdemeanor convictions in adding two points to the prior record score for sentencing guideline purposes. In Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986), a panel of this court held that ... in computing a defendant’s prior record score for sentencing purposes, a sentencing court cannot count that defendant’s prior misdemeanor convictions not involving use of a deadly weapon.” Since under the authority of Samuels the court improperly used misdemeanors in calculating the prior record score, we are constrained to vacate the sentence and remand for resentencing. Since appellant must be resentenced, we do not reach the excessive sentence issue.

Sentence vacated. Remanded for resentencing. Jurisdiction relinquished.

KELLY, J., files dissenting opinion.

KELLY, Judge,

dissenting:

I dissent. The majority relies upon the recent panel decision in Commonwealth v. Samuels, 354 Pa.Super. 128, 511 A.2d 221 (1986), in deciding that this case must be remanded for re-sentencing without resort to 204 Pa.Code § 303.7(a), which the panel in Samuels found unconstitutional. In Samuels, Judge Hoffman opined for the court that the Sentencing Commission had exceeded the scope of its legislative authorization in adopting 204 Pa.Code § 303.-7(a) which provides for enhancement of the guideline sentencing ranges based upon prior misdemeanor convictions not involving the use of a deadly weapon. However, I cannot agree.

Upon review, I find that the Samuels decision is flawed in that: 1) it treats the enabling act as a penal law subject to the doctrine of strict construction, when in fact the enabling act creates and empowers a legislative commission and is not in any sense a penal law; 2) it construes 42 Pa.C.S.A. § 2154(2) separately, and not in the context of 42 Pa.C.S.A. 2154 as a whole; and 3) it finds that the language of the enabling act is plate glass clear, when in fact the language is ambiguous. Furthermore, I would find that when the enabling act is construed in accordance with the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq., the statute necessarily implies the authority to adopt the provision of the Sentencing Guidelines, 204 Pa.Code § 303.7(a), found unconstitutional in Samuels. Consequently, I dissent and would affirm the judgment of sentence.

On August 6, 1984, the appellant entered a Giant Eagle Supermarket in Pittsburgh, Pennsylvania. Security guards watched him stuff four packages of steaks into his pants. They then followed the appellant through the store and waited for him at the exit as he passed the check-out stand without paying for the steaks. The appellant was confronted by a security guard at the door, whereupon he turned and ran through the store towards the meat counter. The pursuing security guards subdued the appellant and retrieved the four packs of steaks he had attempted to steal. He was then detained by security personnel until city police arrived and placed the appellant under arrest.

On September 7, 1984, the appellant was charged by information with one count of Retail Theft. On January 24, 1985, the appellant appeared before the Honorable Loran L. Lewis and entered a plea of nolo contendere. Judge Lewis accepted the plea and proceeded to find the appellant guilty based upon the evidence presented. Appellant was sentenced on April 23, 1985, to a period of imprisonment of not less than seven (7), nor more than fourteen (14) months. Appellant was sentenced within the mitigated minimum sentencing range for the offense gravity and prior record score assigned. In calculating the appellant’s prior record score under 204 Pa.Code § 303.7, the trial court included two points, pursuant to 204 Pa.Code § 303.7(a), to reflect the appellant’s prior misdemeanor convictions. A timely motion to reconsider the sentence was filed on May 2, 1985. This motion was denied on May 6, 1985. A notice of appeal was filed on May 22, 1985. This appeal followed.

The appellant raises two grounds for relief on appeal. First, the appellant argues that the sentence imposed was manifestly excessive under the facts and circumstances of this case. Secondly, the appellant contends that the sentence imposed pursuant to the sentencing guidelines was invalid [unconstitutional] in that the legislature did not grant the Sentencing Commission authority to establish the use of prior misdemeanor convictions not involving the use of deadly weapons as a method of enhancing sentences. I find no merit in these contentions.

The appellant’s first contention, regarding the alleged excessiveness of the sentence, was not properly preserved for review. In his brief to this Court the appellant argues that it was an abuse of the trial judge’s discretion to fail to consider the evidence presented to establish the appellant’s character and potential for rehabilitation. The appellant also contends that the trial judge failed to consider alternatives to a sentence of total confinement as required by 42 Pa.C.S.A. § 9721.

However, these issues were neither raised nor argued in the trial court. The appellant’s only argufnent with respect to the alleged excessiveness of the sentence was that, after the two prior record score points which were attributable to prior misdemeanor convictions not involving the use of deadly weapons were deducted, the sentence was then manifestly excessive. (Motion to Reconsider Sentence at 2). The appellant’s motion was insufficient to preserve the issues regarding mitigation evidence and sentencing alternatives. These issues are only preserved by specific and timely objections in a motion to reconsider sentence argued in the trial court. See Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985); Commonwealth v. Martin, 328 Pa.Super. 498, 477 A.2d 555 (1984). Thus, the appellant’s first contention on appeal is without merit.

The appellant next contends that the trial court erred in applying 204 Pa.Code § 303.7(a) to determine the proper sentencing range under the sentencing guidelines. The appellant argues that the express inclusion of felonies and crimes involving the use of deadly weapons in 42 Pa.C.S.A. § 2154(2) implies the exclusion of the consideration of prior misdemeanor convictions not involving the use of deadly weapons from calculation of the appellant’s prior record score under the guidelines. The Court in Samuels agreed with this contention; I do not. My reasoning follows.

This case presents, primarily, a question of statutory construction. Although the appellant challenges the validity of 204 Pa.Code § 303.7(a), it is the legislative authorization in 42 Pa.C.S.A. § 2154 which controls, and which must be construed by this Court. If 204 Pa.Code § 303.7(a) was promulgated within the scope of authority delegated to the Sentencing Commission, it is constitutional; if not, it is unconstitutional.

In construing the enactments of the legislature, appellate courts must refer to the provisions of the Statutory Construction Act. The legislature has directed that, “In the construction of the statutes of the Commonwealth, the rules set forth in this chapter shall be observed, unless the application of such rules would result in construction inconsistent with the manifest intent of the General Assembly.” 1 Pa.C.S.A. § 1901. In 1 Pa.C.S.A. § 1921(a), (b) the legislature further explained that:

(a) The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.
(b) When 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.

Thus, we must first determine whether the issue may be resolved by reference to the express language of the statute.

The statute at issue provides:

The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant. The guidelines shall:
(1) Specify the range of sentences applicable to crimes of a given degree of gravity.
(2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.
(3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.

42 Pa.C.S.A. § 2154.

In finding that 204 Pa.Code § 303.7(a) was unconstitutional, Judge Hoffman opined:

The language of the enabling act at issue here, § 2154(2), is plate glass clear: it does not state that the sentencing guidelines shall specify a range of sentences of increased severity for defendants previously convicted of misdemeanors not involving the use of a deadly weapon. If the Legislature wants to provide for such sentences, it must explicitly so state in the authorization provisions. Moreover, because § 2154(2) authorized the creation of guidelines “which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant,” (emphasis added), see also 42 Pa.C.S.A. 9721(b); 204 Pa.Code § 303.1(a), it is, in a sense, a penal provision. As such, it “shall be strictly construed.” 1 Pa.C.S.A. § 1928(b). We are constrained, therefore, to find that, in computing a defendant’s prior record score for sentencing purposes, a sentencing court cannot count that defendant’s prior misdemeanor convictions not involving the use of a deadly weapon.

Samuels, 511 A.2d at 238. (Footnote omitted) (emphasis supplied). I find fault with this reasoning in several respects and therefore, 1 reject its conclusions.

First, the Court in Samuels incorrectly states that “because § 2154(2) authorized the creation of guidelines ‘which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors,’ (emphasis added), ..., it is, in a sense, a penal provision. As such, it ‘shall be strictly construed.’ 1 Pa.C.S.A. § 1928(b).” Samuels, 511 A.2d at 238. To the contrary, 42 Pa.C.S.A. § 2154 is in no sense a penal law, and consequently, need not be strictly construed. 1 Pa.C.S.A. § 1928(c).

“Penal laws” are defined as “all statutes and embodiments of the common law which establish, create or define crimes or offenses including any ordinances which may provide for imprisonment upon conviction or upon failure to pay a fine or penalty.” See Pa.R.Crim.P. 3(n); see also In re Investigating Grand Jury, 496 Pa. 452, 437 A.2d 1128 (1981); Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472 (1977). The enabling act, which this Court is called upon to construe, does not establish, create, or define any crime, offense, or ordinance. To the contrary, the enabling act creates and empowers a legislative commission to adopt sentencing guidelines. Clearly the enabling act is administrative, and not penal.

It may be that the sentencing guidelines must be strictly construed; but even accepting that proposition, it does not follow that the enabling act itself must be strictly construed because it authorizes the commission to adopt the sentencing guidelines. See Commonwealth by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 460-461, 329 A.2d 812, 817 (1974), on remand 26 Pa.Cmwlth. 399, 365 A.2d 442 (1976) (merely because a statute contains a penal provision does not require that the entire statute be strictly construed); Commonwealth v. Broughton, 257 Pa.Super. 369, 378, 390 A.2d 1282, 1286 (1978) (rule of strict construction applies only to penal provisions of statute, and not to provisions regarding requirement of proof).

Secondly, the statute at issue is 42 Pa.C.S.A. § 2154 in its entirety, and not merely § 2154(2) as the Court in Samuels suggests. Sections of a statute must be read together and construed with reference to the entire statute. See Wilson v. Central Penn Industries, 306 Pa.Super. 146, 452 A.2d 257 (1982). Moreover, only by construing each section of a statute in light of, with reference to, or in connection with the other sections of the statute, can a section’s real meaning and the legislative intent be ascertained. See Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

By considering only the language of 42 Pa.C.S.A. § 2154(2), the Samuels panel ignored the broad grant of authority contained in the language of 42 Pa.C.S.A. § 2154 preceeding that particular sub-provision. Moreover, by failing to construe the enabling act in the context of the legislative package in which it was passed, the Samuels panel ignored the significance of the compromise nature of the enabling act.

Thirdly, I reject the characterization of the enabling act as “plate glass clear.” Assuredly, “we have no authority to befog the plate glass clarity of [a legislative enactment.]” Port Authority v. Amalgamated Transit Union, Local Division 85, 430 Pa. 514, 520, 243 A.2d 433, 436 (1968) (Concurrence by Musmanno, J.). On the other hand, “nothing ambiguous can be said to be clear.” Sterling v. Philadelphia, 378 Pa. 538, 559, 106 A.2d 793, 803 (Dissent by Musmanno, J.). The clarity which this Court found in Samuels is illusory. It is founded upon the unspoken and unsupported assumption that because the numbered sub-provisions of § 2154 are mandatory they must necessarily be exclusive. Thus, the Court presumed that because the Commission was required to “specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon,” 42 Pa.C.S.A. § 2154(2), that the Commission was precluded from considering misdemeanors not involving the use of a deadly weapon in constructing the prior record enhancement provisions of the sentencing guidelines. I find no support for this construction in the express language of the statute.

The appellant contends that the ancient maxim “expressio unius est exclusio alterius’’ (the expression of one thing implies the exclusion of others), makes the plain meaning of the statute clear. This contention is plainly without merit. “The maxim [expressio unius est exclusio alterius ] is not of universal application, but is to be applied only as an aid in arriving at intention and not to defeat the apparent intention.” Fazio v. Pittsburgh Rys. Co., 321 Pa. 7, 11-12, 182 A. 696, 698 (1936), quoting 25 R.C.S., page 981, § 229; See also Commonwealth v. Kramer, 146 Pa.Super. 91, 22 A.2d 46 (1941). The maxim defines by implication, and is of no assistance in determining the plain meaning of the express language. Compare § 1921(b) and § 1921(c).

Thus, the enabling act contains an apparent ambiguity with respect to whether the numbered subprovisions were intended to be mandatory and exclusive or merely mandatory. The apparent ambiguity in the statute, however, does not negate the authority of the Commission to promulgate the rule. “While it is true that statutory language confering power to administrative agencies must be clear and unmistakable, Green v. Milk Control Commission, 340 Pa. 1, 16 A.2d 9 (1940), it is also true that language capable of more than one meaning can be ‘clear and unmistakable’ in the context of its usage by the selection of the meaning which is neither forced, strained, nor contrary to the purpose for which the authority is conferred. ” Commonwealth v. Butler County Mushroom Farm, 499 Pa. 509, 516, 454 A.2d 1, 5 (1982). (Emphasis added).

It is well settled that powers delegated to administrative bodies may be expressly stated or necessarily implied in the legislative grant, see Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 310, 382 A.2d 731, 736 (1978). It has also been held that “[I]n determining the outermost limits of [a] Board’s delegated authority ... we must primarily consider the express language of its enabling statute, and, where the statute nei ther affirms nor negates the authority exercised by the agency, the manifest purpose of the legislation____” McKinley v. State Bd. of Funeral Dir., 11 Pa.Cmwlth. 241, 246, 313 A.2d 180, 183 (1973). (Emphasis added). See also Upper St. Clair Twp. v. Comwlth., Dept. of Community Affairs, 478 Pa. 546, 561, 387 A.2d 456, 464 (1978) (One litmus of ... authority is the purpose for which authority was conferred).

Therefore, we must look to the legislative intent. Section 1921(c) provides:

When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters:
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.

1 Pa.C.S.A. § 1921(c). Discussion of the above factors and analysis follows.

■ First, it is necessary to examine the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the former law. Essentially, we must consider the historical context in which the statute was adopted. The distinguished jurist Oliver Wendell Holmes, Jr. explained:

The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only axioms in a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternatively consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage.

Federal and state governments have struggled to establish fair and reasonable means for sanctioning the offender since the prison system was first introduced shortly after the American Revolution. However, the widespread sentencing reform of the past decade is unprecedented. Sentencing reform was proposed by virtually all state legislatures during the 1970s, and only the wave of prison reform in the late 1800s is comparable. During the early and middle 1970’s the former system of indeterminate sentencing came under criticism from a wide spectrum of political interests. While commentators were uniform in their criticism of the indeterminate sentencing system, they were divided as to the proper focus for reforms.

A number of commentators focused on reforms involving mandatory sentences for violent crimes and sentences of increased severity for repeat offenders. Popular sentiment favored mandatory prison sentences for offenders using deadly weapons. This sentiment was translated into legislative action in many states. Several studies indicated, however, that enforcement of mandatory sentences would be expensive and not cost-effective. Other studies indicated that repeat violent offenders committed a disproportionately high portion of the total crimes committed. One of the products of this research was the passage of minimum mandatory sentence laws for repeat offenders in 27 states between 1977 and 1980, with similar laws being considered in 14 other states.

Other commentators were concerned with the disparity in the severity of sentences imposed under the indeterminate sentencing system. A study of sentences imposed in federal district courts revealed wide disparity in decisions to incarcerate, length of sentence imposed, and application of statutory provisions regarding parole and probation eligibility. A Pennsylvania study using 1977 statistics revealed significant regional disparity with regard to incarceration rates. While 38.9% of all offenders statewide were incarcerated, rural areas had nearly double the incarceration rate of Allegheny or Philadelphia counties. This disparity led to a movement in favor of general sentencing reform.

It was in this context of national sentencing reform that the Pennsylvania General Assembly began the legislative process which would eventually lead to the passage of a legislative package which included the provisions of 42 Pa.C.S.A. § 2154. It is in this context that we must determine the legislative intent.

In 1976, the Senate adopted an amendment to Senate Bill 995 which would mandate minimum prison sentences for certain violent felonies. After a long legislative battle the bill was defeated in the House. For the next two years the House and Senate proposed and debated, but failed to pass numerous sentencing reform bills proposed in both chambers. The General Assembly was divided as to the proper focus for reform. The Senate leadership supported mandatory minimum sentences for repeat violent offenders; while the House leadership pressed for general sentencing reform through the adoption of uniform guidelines.

On September 21, 1978, the deadlock was broken when the House approved Senate Bill 195 which the House amended by adding to it the provisions of House Bill 953 (which had languished in the Senate Appropriations Committee since June 13,1978). The Senate rejected the amendments initially and appointed three Senators to a joint House-Senate conference committee. The House reciprocated. The conferees reached an accord on a compromise proposal. On November 15, 1978 both chambers signed the bill; it was approved by the Governor on November 26, 1978.

The resulting legislation was a product of compromise; its structure reflects compromise. The Sentencing Commission was formed, empowered, and directed to adopt guidelines. At the same time the Senate conferees were successful in having interim guidelines passed which would require sentencing judges to consider a four year minimum prison sentence for defendants convicted of certain violent felonies who had previously been convicted of one of the same designated violent felonies. Additionally, a specific provision requiring increased sentences for prior felony or weapons offense convictions was included in the guideline authorization provisions. Thus, the Senate conferees were able to superimpose the specific interests of the Senate upon the outline for broad reform proposed by the House.

The legislative authorization was conferred upon the Sentencing Commission in the first part of 42 Pa.C.S.A. § 2154 with sweeping language:

The commission shall adopt guidelines for sentencing within the limits established by law which shall be considered by the sentencing court in determining the appropriate sentence for felonies and misdemeanors committed by a defendant.

The only express reservation included in the authorization was that the guidelines be established “within the limits established by law.” It is within this broad grant of authority that I would find the authority to adopt 204 Pa.Code § 303.7(a) necessarily implied.

It is important to note that when the enabling act was passed, there was no reason for the legislature to restrict the Commission’s discretion in formulating the guidelines. The legislature had already ensured that it would have a strong voice in the formulation of the guidelines, and final approval of the guidelines after they were proposed. First, the Commission was to be comprised of eleven members, four of which were required to be members of the legislature. 42 Pa.C.S.A. § 2152. Secondly, the legislature reserved the power to reject the guidelines by concurrent resolution. 42 Pa.C.S.A. § 2155(b).

Senator Gekas stated during the Senate debate over the January 1981 draft of the proposed guidelines that:

... we on the Commission, which included two Members of the Senate, followed the mandate of our legislation which said go to the drawing boards of the criminal statutes and create a set of guidelines within those statutes that would ensure as best as humans can insure to shrink the disparity between sentences that are given out____

1 Senate Leg.J. 401 (1981). (Emphasis added). The legislature had vested the Commission with virtually unlimited discretion in the formulation of sentencing guidelines within the statutory limits.

It is apparent from the legislative history that § 2154(2) was adopted as part of the compromise between the Senate and the House, and was intended to assure the Senators that the guidelines would address their specific concerns with respect to repeat violent offenders. See 1 Senate Leg.J. 403 (1981) (Remarks of Sen. O’Pake: “ ... we settled for the only compromise we could get in 1978____”); see also 1 House LegJ. 561 (1981) (Remarks of Rep. McVerry: “The Sentencing Commission was established ... for two reasons____ One of those reasons was to avoid mandatory sentencing that was being proposed.”). In this compromise process, there is no indication of an intent by the legislature to limit or otherwise alter the use of prior misdemeanor convictions in the fashioning of an appropriate sentence for an offender. See generally 1 House LegJ. at 559-567 (1981); 1 Senate Leg.J. at 401-408 (1981).

It is also apparent from a review of legislative actions regarding the enabling act and the guidelines that the legislature did not perceive 204 Pa.Code § 303.7 to have been adopted outside the authority conferred by 42 Pa.C. S.A. § 2154. The sentencing reform process began in the legislature, in 1976. After two years of debate, a compromise was reached, and the legislation under review was passed and became law.

The initial proposed guidelines were published in October 1980. However, these guidelines were severely criticized as too lenient and too restrictive of judicial discretion. The proposed guidelines were revised and republished in January, 1981. The legislature responded in April, 1981 with the passage of the Hagarty Resolution. While stopping short of rejecting the guidelines outright, the resolution urged and directed the commission to increase the upper limits of guideline sentences, give judges greater lattitude in sentencing where aggravating and mitigating circumstances were found, eliminate the exclusive list of such circumstances, and increase the severity of sentences for offenses against persons. Significantly, the legislature made no mention, negative or otherwise, of the prior record provisions concerning prior misdemeanor convictions not involving the use of a deadly weapon, which were part of the legislation being criticized, and which the Samuels panel found to have violated the “plate glass clarity” of the legislative authorization.

In January 1982, when the Commission presented a new set of guidelines, the provision found unconstitutional by the Samuels panel, remained in the guidelines. The Senate expressly approved the guidelines in Senate Res. 227 and the House took no action on them within the 90 day period specified by the Act. They became effective on July 22, 1981. See Kuphal, 500 A.2d at 1212.

The guidelines as finally adopted were an expression of the legislature’s intent. The guidelines were subjected to the closest scrutiny at every stage in the adoption process. The Senate expressly approved the guidelines by resolution and the House implicitly approved them by silence. In Commonwealth v. Frazier, 347 Pa.Super. 64, 69, 500 A.2d 158, 161 (1985), this Court recognized that the guidelines expressed the intent of the legislature when we stated, “[t]here was virtually no opposition to the Guidelines as finally adopted by the legislature.” It defies common sense and logic to suggest that throughout the four year adoption process, and the four years the guidelines have been law, that the General Assembly has sat idle and mute while guidelines which it neither authorized nor intended became and remained law.

The legislature has directed that in the interpretation of legislative enactments the courts are to consider “the consequences of a particular interpretation.” 1 Pa.C.S.A. § 1921(c)(6). The legislature has also created a statutory presumption that, “the General Assembly does not intend a result which is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1). The Samuels construction leads to just such results.

Significantly, I find that the construction imposed upon the enabling act by the Samuels panel, leads to results which could decimate enforcement of sentencing uniformity, thereby frustrating the primary purpose of the legislation. In Commonwealth v. Stevens, 349 Pa.Super. 310, 313, 503 A.2d 14, 16 (1986), and Commonwealth v. Royer, 328 Pa.Super. 60, 66, 476 A.2d 453, 456 (1984), this Court stated that, “The purpose of the sentencing guidelines is to insure that more uniform sentences are imposed in this Commonwealth.” In Samuels, however, this Court opened the flood gates for evasion and variance.

Under the guidelines as adopted, all prior misdemeanor and felony convictions are used in calculating the offender’s prior record score. Consequently, prior record is, ordinarily, not a factor in determining whether aggravated circumstances are present or in considering whether the offender should be sentenced outside of the guidelines. (See Stevens, supra; Commonwealth v. Drumgoole, 341 Pa.Super. 468, 473, 491 A.2d 1352, 1354 (1985)); see also, Implementation Manual of the Pennsylvania Commission on Sentencing, Part V., at 15 (1982).

Under Samuels, however, prior misdemeanors not involving the use of a deadly weapon may not be used in calculating the offender’s prior record score. Consequently, our rulings in Stevens and Drumgoole, that factors considered within the guidelines provide no basis to sentence in the aggravated range or outside the guideline ranges, no longer apply with respect to prior misdemeanors not involving the use of a deadly weapon. The result is that a sentencing judge may sentence in the aggravated range or outside the guideline sentencing ranges, where the offender’s prior record includes such misdemeanors. Samuels, 511 A.2d at 239 n. 22. Because prior misdemeanor convictions not involving the use of deadly weapons are frequently present, the potential for evasion and variance is great.

Finally, administrative and legislative interpretations of the statute must be considered. 1 Pa.C.S.A. § 1921(c)(8). The construction of 42 Pa.C.S.A. § 2154 by the Sentencing Commission is entitled to deference by this Court. A construction of a statute by those charged with its execution is entitled to great weight, and should not be disregarded or overturned except for cogent reasons and unless it is clear that such a construction is erroneous. Dear v. Holly Jon Equipment Co., 283 Pa.Super. 74, 423 A.2d 721 (1980); Spicer v. Department of Public Welfare, 58 Pa.Cmwlth. 558, 428 A.2d 1008 (1981). Furthermore, “administrative interpretations, not disturbed by the legislature, are appropriate guides to legislative intent.” MacLeod, supra.

The Sentencing Commission was comprised of four eminent jurists, four members of the General Assembly, a District Attorney, a Defense Attorney, and a Law Professor. Each member was selected for his legal acumen. Assuredly, their construction of the statute is entitled to some deference. Moreover, the misdemeanor provisions were a focus of continuous debate and revision by the Commission. The Commission altered the prior misdemean- or provisions of the Offender Score no less than six times during the adoption process. Importantly, the Commission considered the precise issue raised in the instant appeal.

At the June 29, 1981 meeting of the Commission, Judge Scirica expressed his concern that the legislature did not authorize enhancement for prior convictions of misdemeanors not involving the use of a deadly weapon. A motion to delete the prior misdemeanor provisions from the Offender Score passed over the opposition of both of the members from the General Assembly who were present. However, at the September 25, 1981 meeting, the Commission reversed its previous decision. Senator Gekas moved that prior misdemeanor convictions be included in the Offender Score provisions. The motion carried without opposition, with Judge Scirica and all three members of the General Assembly who were present voting in favor of the motion.

The Commission considered the issue and found that provisions providing for the enhancement of sentence based upon prior misdemeanor convictions not involving the use of a deadly weapon could be adopted within the scope of the legislative authorization. This deliberate decision by the Commission was entitled to deference by this Court. This is especially true, in light of the legislature’s actions in approving the guidelines and allowing them to remain law for the past four years.

CONCLUSION

Having duly considered the factors enumerated in 1 Pa.C. S.A. § 1921(c), I would find that the numbered subprovisions of 42 Pa.C.S.A. § 2154 were intended to be mandatory, but not exclusive. Because interests in sentencing uniformity required that a factor as significant and as common as prior misdemeanor convictions not involving the use of deadly weapons be specifically dealt with in the guidelines, and because uniformity in sentencing was the primary purpose of the legislation, I would find that the authority to adopt 204 Pa.Code § 303.7(a) was necessarily implied in the authority confered by 42 Pa.C.S.A. § 2154. See McKinley v. State Bd. of Funeral Directors, supra, 313 A.2d at 183. Because the construction imposed upon the enabling act by the Samuels panel would frustrate this purpose, I find that the Samuels construction must be rejected. See Commonwealth v. Butler County Mushroom Farm, supra, 454 A.2d at 5.

Finally, I would add that I believe that the exercise of the power of judicial nullification in Samuels was unwarranted. I take consolation, though, in the fact that the legislature is free to alter the effect of the judicial construction of the statute with remedial legislation. The legislature has already begun this process. See House Bill 1498, 169th Session (Pa.1985) (Bill reported to Joint Conference Committee with identical language amending 42 Pa.C.S.A. § 2154(2) to expressly authorize use of juvenile adjudications and prior misdemeanor convictions not involving the use of a deadly weapon to enhance sentences). This, of course, is further evidence of the legislature’s intent in this regard.

Based upon the foregoing reasons, I would uphold the validity of 204 Pa.Code § 303.7(a) and affirm the judgment of sentence.

      . Appellee argues that since the same sentence could have been given under the sentencing guidelines even if the two points for prior record score was not considered, we should affirm since appellant has shown no prejudice. However, the sentencing guidelines provide a substantial range of minimum sentences including a mitigated range which, if chosen, would necessarily place this sentence substantially below the sentence given. Since we have no way of knowing the effect which the prior record score had on the trial court’s sentencing decision, appellant is entitled to be resentenced.

      . Because the majority reversed and remanded for re-sentencing based upon Samuels, they found it unnecessary to address the appellant’s claim that the sentence was excessive. Because I would affirm the judgment of sentence, I must address this claim, as well as the constitutionality issue.

      . I note, however, that the sentencing court received a presentence investigation report and entertained argument from appellant’s counsel and testimony from the appellant and his wife prior to sentencing. Significantly, the appellant was sentenced in the mitigated minimum range for the offense gravity and prior record score assigned. Thus, the record indicates that the trial court not only considered the mitigation evidence, but in fact acted upon the mitigation evidence by sentencing the appellant within the mitigated minimum range of the sentencing guidelines.

      . 1 Pa.C.S.A. § 1901 et seq.

      . It is true that the guidelines have a significant impact upon the sentences actually imposed. However, the guidelines do not establish, create, or define any crimes, offenses or ordinances. They become applicable only after a defendant has been duly convicted of a crime for which he is to be punished. The guidelines do not effect the maximum penalties which may be imposed upon conviction. 42 Pa.C.S.A. § 2154; 204 Pa.Code § 303.1(i). The guidelines merely structure the manner in which the judiciary may exercise the discretion which the legislature has chosen to vest in the courts. See Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 362 (1985), aff’d sub nom., McMillan v. Pennsylvania, — U.S. —, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986).
      Though the guidelines may result in higher minimum sentences in particular cases, they do so only by restricting the sentencing judge's discretion with respect to existing penalties and not by creating new perils for the offender. Consequently, I see no reason to apply the doctrine of strict construction to the guidelines or the enabling act. Indeed, by restricting the arbitrary exercise of judicial discretion, the guidelines appear more remedial than penal. See 1 Pa.C.S.A. § 1928(c).

      . I note that § 2154(2) contains no authorization to the Commission whatsoever; hence, construction of § 2154(2) without reference to the remaining provisions of § 2154 is a futile exercise if determining the scope of the legislative authorization is the purpose of such inquiry.

      . "The Commission shall adopt guidelines for sentencing within the limits established by law____” 42 Pa.C.S.A. § 2154.

      . The fact that § 2154(2) is mandatory resolves nothing. The statute may still mean either: the Commission was required to consider only the designated factors; or the Commission was required to consider the designated factors among other factors to be taken into consideration. Hence, ambiguity remains and the statute cannot be said to be plate glass clear.

      . Oliver Wendell Holmes, Jr., The Common Law, at 5 (Howe, Ed. 1963).

      . Miller, Roberts, and Carter, Sentencing Reform: A review and annotated bibliography, at 6 (National Center for State Courts 1981).

      . See Martin, Interests and Politics in Sentencing Reform: The Development of Sentencing Guidelines in Minnesota and Pennsylvania, 29 Vill.L.Rev. 21, 22-27, nn. 4, 17-20 (1983-84) (hereinafter Martin).

      . Yeager, "Do Mandatory Prison Sentences for Handgun Offenders Curb Violent Crime, at 1, 27, (U.S. Gov. Printing Office, Washington, D.C.1976) (hereinafter Yeager ).

      . For example: Yeager, supra; J. Peterailia and P. Greenwood, "Mandatory Prison Sentences: Their Projected Effécts on Crime and Prison Populations," at 23-28 (U.S. Gov. Printing Office, Washington, D.C. 1977).

      . For example: M. Peterson and H. Braiker, Doing Crime: A Survey of California Prison Inmates (U.S. Gov. Printing Office, Washington, D.C., Nov. 1980); J. Peterailia, P. Greenwood, and M. Lavin, Criminal Careers of Habitual Felons (U.S. Gov. Printing Office, Washington, D.C., July 1978); Curbing the Repeat Offender: A Strategy for Prosecutors, (U.S. Gov. Printing Office, Washington, D.C., Sept. 1977).

      . Martin, at 23, n. 4.

      . See generally Kittrie and Zenoff, Sanctions Sentencing and Corrections, Ch. 12 “Reforming Sentencing,” at 526-576 (Foundation Press 1981) (hereinafter Kittrie ); see also Martin, at 22-27, & nn. 2, 7, 15, & 20.

      . See Legislation to Revise and Recodify Federal Criminal Laws: Hearings on HR. 6869, Before the Subcomm. on Criminal Justice of the House Comm, on Judiciary, 95th Cong. 1st & 2nd Sess. 52, part 3 (1977-1979) (statement of W.J. Anderson, Deputy Director, Gen. Gov’t. Div. of G.A.O., on Disparities in Criminal Sentencing and Prosecutive Practices in Fed.Dist.Ct), p. 2464; Pennsylvania Commission on Sentencing, Report on the Potential Impact of the Proposed Initial Guidelines on Incarceration Rates and Incarceration Lengths in Pennsylvania, unpublished (Nov. 6, 1980); See also Martin, at 76.

      . Kittrie at 547-554; Martin, at 23, nn. 6 & 7. See also Commonwealth v. Kuphal, 347 Pa.Super. 572, 581-82, 500 A.2d 1205, 1210 (1985) (Dissent by Spaeth, P.J.) (history of sentencing commission concept).

      . S.B. 995, 159th Session (Pa.1975) (Amended June 30, 1976). See Final Senate History, Session 1975 and 1976, at A-132; See also 1 House Leg.J. 6442 (1976).

      . Senate proposals included: S.B. 168, 159th Session (Pa.1975); S.B. 195, 161st Session (Pa.1977); S.B. 639, 161st Session (Pa.1977); S.B. 792, 161st Session (Pa.1977); S.B. 1498, 162nd Session (Pa.1978). House proposals included: H.B. 196, 161st Session (Pa.1977); H.B. 168, 161st Session (Pa.1977); H.B. 953, 161st Session (Pa.1977); H.B. 1469, 161st Session (Pa.1977); H.B. 2474, 162nd Session (Pa.1978); H.B. 2549, 162nd Session (Pa.1978).

      . Martin, at 62.

      . Martin, at 62-66; S.B. 195, 161st Session (Pa.1977), sponsored by Sen. Jubelirer; et al.; H.B. 953, 161st Session (Pa.1977), sponsored by Rep. Scirica, et al.

      . See 42 Pa.C.S.A. § 2151, 42 Pa.C.S.A. § 2152, 42 Pa.C.S.A. § 2153, 42 Pa.C.S.A. § 2154, and 42 Pa.C.S.A. § 2155. (These sections are successors to 1978, Nov. 26, P.L. 1316, No. 319 § 3).

      . 1978, Nov. 26, P.L. 1316, No. 319 § 5; reprinted at 42 Pa.C.S.A. § 9721, at 333.

      . 42 Pa.C.S.A. § 2154(2).

      . The remainder of the enabling act contained three minimum requirements for the guidelines:
      The guidelines shall:
      (1) Specify the range of sentences applicable to crimes of a given degree of gravity.
      (2) Specify a range of sentences of increased severity for defendants previously convicted of a felony or felonies or convicted of a crime involving the use of a deadly weapon.
      (3) Prescribe variations from the range of sentences applicable on account of aggravating or mitigating circumstances.
      The Sentencing Commission elected to exercise its broad powers in a format which divided the appropriate sentencing factors into three catagories: Offense Gravity Score, Offender Score and Aggravating or Mitigating Ranges. These catagories correspond to but are not limited to, the factors covered by the mandatory considerations in the subprovisions of the enabling act.

      . See Pennsylvania Commission on Sentencing, Synopses of Public Hearing Testimony Prepared by the Staff, unpublished (December 1980) (on file with the Pennsylvania Commission on Sentencing).

      . I note that provisions requiring enhancement of the sentencing guideline range based on prior misdemeanor convictions not involving use of a deadly weapon were included in the initial and revised guideline proposals.

      . House Res. 24 was passed by the House 157-37 on April 1, 1981, 1 House Leg.J. 566-67 (1981), and by the Senate 34-10 on April 8, 1981, 1 Senate Leg.J. 409 (1981). See also Kuphal, 500 A.2d at 1212.

      . See Martin at 98-99 & nn. 371-372. (Rep. Hargarty praised the final proposed guidelines, and all other former opponents were silent).

      . The fact that the guidelines were not adopted by concurrence of both Houses of the General Assembly and after presentment to the Governor is of no consequence to the present inquiry. The legality of the adoption procedures was addressed and resolved in Kuphal. However, unlike the Court in Kuphal, we are called upon to determine the legislative intent behind the enabling act and not the legality of the guideline adoption procedures. I note that administrative interpretations, not disturbed by the legislature, are appropriate guides to legislative intent. 1 Pa.C.S.A. § 1921(c)(8); Hospital Assn. of Pa. v. MacLEOD, 487 Pa. 516, 523 n. 10, 410 A.2d 731, 734 n. 10 (1980).

      . In Stevens, this Court held that the existence of a serious prior record alone was not sufficient to warrant a sentence greater than provided by the guidelines. In Drumgoole, this Court held that absence of a serious prior record is not a basis to sentence below the applicable guideline range. In both cases this Court determined that the presence or absence of a prior record was a factor which was accounted for within the sentencing ranges in the guidelines and thus could not be used twice.

      . See Sentencing Commission Meeting Minutes for: April 25-26, 1980; May 17, 1980; August 8, 1980; January 8-10, 1981; June 19, 1981; and September 25, 1981 (on file with the Pennsylvania Commission on Sentencing).