author: CIRILLO, Judge:

text:
    671 A.2d 1140
    REFUSE MANAGEMENT SYSTEMS, INC. Appellant v. CONSOLIDATED RECYCLING AND TRANSFER SYSTEMS INC., LCA Leasing, Inc. and North Penn Recycling, Inc. REFUSE MANAGEMENT SYSTEMS, INC. v. CONSOLIDATED RECYCLING AND TRANSFER SYSTEMS INC., LCA Leasing, Inc. and North Penn Recycling, Inc. Appeal of LCA LEASING, INC.
    Superior Court of Pennsylvania.
    Argued Dec. 5, 1995.
    Filed Feb. 12, 1996.

      Nicholas D. Krawec, Pittsburgh, for Refuse Management System, Inc.
    Jeff Brooks, Pittsburgh, for LCA Leasing, Inc.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   CIRILLO, Judge:

This is an appeal and cross-appeal from an order granting in part the post-trial motions of defendant LCA Leasing,' Inc. and assessing damages in favor of plaintiff Refuse Management Systems, Inc. We affirm in part, vacate in part, and remand.

Refuse Management Systems, Inc. (RMS) is a waste and recycling brokerage company, which arranges, and coordinates transportation for hauling waste to disposal sites. LCA Leasing, Inc. (LCA) is the on-site leasing agent for a fifty-two acre property located in Chester, Pennsylvania which encompasses a waste transfer station and several other properties and rentals. LCA procures tenants, receives the rent for the property and transfers the payments to the corporate offices in Pittsburgh, Pennsylvania.

LCA leased the transfer station to Consolidated Recycling and Transfer Systems, Inc. (Consolidated) in 1988, whereby Consolidated would run the day-to-day operations and, in return, LCA would receive a royalty payment from Consolidated’s operation of the facility. Consolidated contracted with RMS to ship wastestream from the Chester facility to landfills in West Virginia, Ohio, Pennsylvania and Indiana. On April 17, 1990, RMS sent a facsimile (FAX) verifying that two trucks would pick up waste from the facility the next day, and outlining the billing and payment procedures. In a return FAX, Kirk Johnson, then working for Consolidated, confirmed the contract, which set the price at $43.00 per ton with a twenty-two ton minimum, directed that invoices be sent to the Princeton, New Jersey office, and changed the payment terms from three to within ten days of invoicing.

Less than three months later, Consolidated had outstanding bills with several of the haulers, including $4,802.67 owed to RMS. On July 3, 1990, after Consolidated had also defaulted on its lease and violated its agreement with LCA, LCA took possession of the transfer station. LCA met with Consolidated’s employees at the transfer station, announced that it was taking over operation of the transfer station, and offered them the opportunity to work for LCA. Kirk Johnson, who was RMS’s main contact, remained in his position as scalemaster at the facility and became an employee of LCA.

Later that day, LCA discovered that the trucking companies which hauled the trash from the transfer station were reluctant to service the facility because of Consolidated’s unpaid invoices. The transfer station was required, under Pennsylvania law, to remove any waste it received within a twenty-four hour period. LCA had to remove the accumulated waste quickly, or it would be sent notification of a violation. In an effort to avoid such violation, LCA agreed to pay one of Consolidated’s outstanding invoices as an inducement to each company which would commit to sending trucks to the Chester facility that day. RMS was one of these companies, and subsequently continued to provide service for LCA under the same terms and conditions as it had for Consolidated.

On August 28, 1990, LCA sent RMS a letter directing that all future invoices be sent to Kirk Johnson at the Chester address, instead of the Pittsburgh office. LCA would only prepare checks for tonnage hauled during the previous week from approved invoices forwarded by Kirk Johnson. Three weeks later, Mr. Johnson and'RMS’s president discussed a rate adjustment to $44.00 per ton, with a twenty-one and one-half ton minimum per load, which Mr. Johnson confirmed by FAX dated September 19,1990.

Throughout the summer, LCA continued to seek another lessee to operate the transfer station and entered into an agreement with North Penn Recycling, Inc. (North Penn), effective October 15, 1990. Kirk Johnson was retained as a scalemaster for North Penn at the transfer station. On October 31,1990, Mr. Johnson informed RMS that there was a “name change,” but that everything else, including invoicing directly to the Chester station, was to remain the same. As a result, RMS regarded North Penn as LCA operating under a different name, and did not make the routine credit check for a new account. RMS merely changed its internal records to reflect the name change.

By November 13, 1990, North Penn was already in default on its account, and when RMS called the station to inquire about it, Mr. Johnson informed RMS that North Penn was a separate entity from LCA and the sole obliger on all shipments after October 13, 1990, pursuant to its agreement with LCA. RMS, however, continued to provide services to North Penn until November 19, 1990. After an unsuccessful attempt to collect the debt, RMS commenced this action against Consolidated, North Penn and LCA for the unpaid invoice balances.

The Honorable Eunice Ross presided over the one-day bench trial. At the close of testimony, the court invited the parties to submit briefs supporting their respective positions in lieu of oral argument. Subsequently, the court found that a contract existed between RMS and LCA, that LCA had failed to notify RMS that a new company, North Penn, was operating the facility, and, on September 12, 1994, entered an order against LCA for $34,042.62, plus interest at 6% per annum from the date of the last invoice. LCA filed exceptions to the order of the court requesting (1) judgment notwithstanding the verdict (j.n.o.v.), (2) a new trial, or (3) a remittitur of the damage award.

Judge Ross dismissed the exceptions, denied a new trial, reduced the damage award against LCA by $18,580.32, and entered a new order on December 15, 1994 against LCA for $15,462.32, which did not include interest as awarded initially. RMS immediately filed a motion to mold the verdict claiming that the court miscalculated the invoices in its modification and misapplied $6,000.00, which was paid by North Penn, to the amount owed by LCA. RMS then filed this timely appeal on January 13, 1995; subsequently, LCA filed its appeal.

LCA raises five issues in its cross-appeal:

1. Did the trial court err in permitting RMS to try this action on a contract theory where RMS did not allege a contract cause of action against LCA?
2. Did the trial court err in concluding that a long-term contract existed between RMS and LCA where RMS presented no evidence of any undertaking of greater than one day’s duration?
3. Did the trial court err in concluding that LCA was liable for invoices submitted by RMS after October 19,1990 where the only evidence of LCA’s obligation in that regard were the alleged hearsay statements of an employee of North Penn Recycling, Inc.?
4. Did RMS waive its point of error regarding the trial court’s alleged miscalculation of the remittitur where it did not present any basis for the alleged error in any post-trial motion?
5. Is RMS permitted double recovery for amounts paid by North Penn Recycling toward the outstanding balance for which RMS seeks recovery against LCA and where RMS did not plead or present evidence to support the $6,000 as an item of its damages?

In reviewing a non-jury verdict, the appellate court must determine “whether the findings of the trial court are supported by the evidence or whether the trial court committed error in any application of the law.” Coscia v. Hendrie, 427 Pa.Super. 585, 589, 629 A.2d 1024, 1026 (1993). An appellate court has the authority to determine whether the findings of the trial court support its legal conclusions, and may interfere with those conclusions if they are unreasonable in light of the trial court’s factual findings. C.R. by Dunn v. The Travelers, 426 Pa.Super. 92, 626 A.2d 588, 591 (1993). Additionally, as this court recently stated:

It is well settled that judgment notwithstanding the verdict may be granted “only in a clear case, where after viewing the evidence in the light most favorable to the verdict winner, no two reasonable minds would disagree that the verdict was improper.” Similarly, a new trial may only be awarded when the verdict is so contrary to the evidence as to shock one’s sense of justice.

McDole v. Bell Telephone Co. of PA, 441 Pa.Super. 88, 93, 656 A.2d 933, 935 (1995) (citations omitted).

LCA first claims that the court erroneously permitted RMS to try this action on a contract theory because RMS made no reference or allegation in its complaint that a contract was entered into between RMS and LCA. LCA avers that it was undeniably prejudiced, since it prepared its defense for trial based on the claims LCA interpreted were being alleged by RMS, namely, agency and fraud. This claim is meritless.

After carefully examining the pleadings, we find that the facts in RMS’s complaint were sufficient for LCA to ascertain a possible contract theory. Specifically, we note the following defense raised by LCA in its response:

Plaintiffs claim is barred in whole or in part [by] the doctrine of novation.

Defendant’s New Matter p. 7 (emphasis added).

A novation is a “substituted contract that includes as a party one who was neither the obligor nor the obligee of the original duty.” RESTATEMENT (SECOND) OF CONTRACTS § 280 (1979) (emphasis added). The requisites of a novation are: (1) the displacement and extinction of an existing valid contract; (2) the substitution for it of a valid new contract, whereby a new party replaces one of the original parties; (3) sufficient legal consideration for the new contract; and (4) the agreement or consent of all the parties to the new contract. Yoder v. T.F. Scholes, Inc., 404 Pa. 242, 173 A.2d 120 (1961) (emphasis added). Furthermore, it is well established that “[h]e who asserts a novation must properly plead and prove it.” Id., at 245, 173 A.2d at 122 (citing Taylor v. Stanley Co. of America, 305 Pa. 546, 158 A. 157 (1932)).

Initially, the fact that a novation must be “properly” pleaded suggests that it is an affirmative defense. Affirmative defenses are governed by Pa.R.C.P. 1030, 42 Pa.C.S.A., which provides:

All affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, assumption of the risk, consent, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a .responsive pleading under the heading “New Matter.” A party may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

Novation is not specifically enumerated as an affirmative defense in Pa.R.C.P. 1030, however, the list is clearly not exclusive. An affirmative defense is “matter asserted by a defendant which, assuming the complaint to be true, constitutes a defense to it. [It is a] response to a plaintiff s claim which attacks the plaintiffs legal right to bring an action, as opposed to attacking the truth of the claim.” Black’s Law Dictionary 60 (6th ed. 1990). This court recently explained that an affirmative defense “will require the averment of facts extrinsic to the plaintiffs claim for relief.” Falcione v. Cornell School District, 383 Pa.Super. 623, 628-629, 557 A.2d 425, 428 (1989).

A review of Pa.R.C.P. 1030 reveals that several listed defenses specifically shield a defendant from liability on a contract: accord and satisfaction, estoppel, failure of consideration, and impossibility of performance. Additionally, in Falcione, supra, we held that a defendant seeking to avoid liability on its contract due to rescission, “had an obligation to raise this issue in its new matter since it is a fact which is clearly extrinsic to the plaintiffs claim for relief.” Id. at 629, 557 A.2d at 428. Similarly, a substituted contract, in this case a novation, effects an immediate change in the legal relations between the parties; it discharges the original duty, whereby the remaining party would be foreclosed from enforcing the original duty upon breach of the substituted contract. RESTATEMENT (SECOND) OF CONTRACTS § 279 (1979). Applying these principles, we hold that both a “substituted contract” and a “novation” are affirmative defenses which must be raised under the heading new matter in a defendant’s responsive pleading, or the defenses will be deemed waived. See Pa.R.C.P. 1032(a), 42 Pa.C.S.A.

Instantly, LCA did raise the affirmative defense of novation in its new matter. In doing so, LCA is presumed to allege that all the requisites of a novation, including a valid contract, Yoder, supra, are present in its case. Clearly, any material facts set forth as new matter, including affirmative defenses, raise issues that are not encompassed in the previous pleading. Having exercised its option to aver the existence of a valid contract, a fact “extrinsic to the plaintiffs claim for relief,” Falcione, supra, LCA cannot now complain that RMS’s complaint was the cause of its failure to prepare its defense on a contract cause of action. Accordingly, this court need not examine RMS’s complaint to determine the sufficiency of the facts set forth therein against LCA.

In its second issue, LCA argues that the record is devoid of any evidence that the parties entered into an agreement, oral or written, on July 3, 1990, and therefore the court’s conclusion that a long term contract existed is an error of law. LCA alleges that the evidence of record shows only “a day-to-day, cash and carry operation.” We disagree.

LCA correctly points out that “the question of whether an undisputed set of facts establishes a contract is a matter of law.” Buff v. Fetterolf 207 Pa.Super. 92, 97, 215 A.2d 327, 330 (1966). It is also well settled that in order for an enforceable agreement to exist, there must be a “meeting of the minds,” whereby both parties mutually assent to the same thing, as evidenced by an offer and its acceptance, Hahnemann Medical College & Hospital of Phila. v. Hubbard, 267 Pa.Super. 436, 406 A.2d 1120 (1979). It is equally well established that “an offer may be accepted by conduct and what the parties do pursuant to the offer is germane to show whether the offer is accepted.” Accur-Weather, Inc. v. Thomas Broadcasting Co., 425 Pa.Super. 335, 340, 625 A.2d 75, 78 (1993). “In cases involving contracts wholly or partially composed of oral communications, the precise content of which are not of record, courts must look to the surrounding circumstances and course of dealing between the parties in order to ascertain their intent.” Boyle v. Steiman, 429 Pa.Super. 1, 17, 631 A.2d 1025, 1033 (1993); see also Westinghouse Electric Co. v. Murphy, Inc., 425 Pa. 166, 171, 228 A.2d 656, 659 (1967). We must, therefore, look to the parties’ “course of conduct” to ascertain the presence of a contract.

Instantly, the following is evident from the record: 1) LCA informed RMS that it was taking over the transfer station on July 3, 1990; 2) LCA agreed to pay RMS for one week of Consolidated’s delinquent account in order to induce RMS to service the station on that day; 3) RMS provided and LCA accepted removal services on July 3, 1990, and continued to utilize RMS’s services for approximately three months (July, August & September); 4) LCA paid RMS for the previous week’s services at the rate set between RMS and LCA’s predecessor until September 19,1990, when the parties agreed to a rate adjustment; and 5) LCA amended the billing/payment procedures in August, 1990.

This course of conduct continued until October 13, 1990. Thus, it is clear that LCA intended to utilize RMS’s services to haul waste from the station on a continuing basis at an agreed price, and to pay for those services each week. Such intent is sufficient evidence to support the trial court’s finding that a contract existed between the parties. Boyle, supra. We find, therefore, that the trial court’s conclusion that a contract existed between LCA and RMS was reasonable, and was not an error of law. C.R. by Dunn, supra; Coscia, supra.

LCA also argues that the court further erred in finding that Kirk Johnson was an agent of LCA. LCA contends that Kirk Johnson had no authority to enter into agreements with other companies, even when he worked for LCA.

The question of whether a principal-agent relationship exists is ordinarily one decided by the trier of fact, however, where the facts giving rise to the relationship are not in dispute, the question is one which is properly decided by the court. Joyner v. Harleysville Insurance Co., 393 Pa.Super. 386, 574 A.2d 664 (1990). An agency relationship is created where there is a manifestation by the principal that a person shall act for him, the person accepts the undertaking, and the parties understand that the principal is in control of the undertaking. Volunteer Fire Co. of New Buffalo v. Hilltop Oil Co., 412 Pa.Super. 140, 602 A.2d 1348 (1992). Once the agency relationship is established, authorization for the agent to act on behalf of the principal can be either expressly or impliedly granted or acquired by apparent authority. Turner Hydraulics, Inc. v. Susquehanna Construction Corp., 414 Pa.Super. 130, 606 A.2d 532 (1992).

Apparent authority arises from a manifestation by the principal that another is his agent. RESTATEMENT (SECOND) of AGENCY, § 8, comment a (1958). “The term ‘apparent authority’ has been broadly used by courts to describe the power which agents have in creating liability against their principals, although without authority.” Id. at comment f. In Pennsylvania, “apparent authority” exists where the principal, by words or conduct, leads persons with whom the alleged agent deals to believe that the principal has granted the agent the authority with which the agent purports to exercise. Turner, supra. Apparent authority may be derived from either the course of dealing between the parties or by a single transaction. Id.

Here, the record discloses the following undisputed evidence. Kirk Johnson was the scalemaster at the transfer station throughout the period in controversy, first, as an employee of Consolidated, then LCA, and finally North Penn, for the time that each operated the station. He was the main contact with whom RMS scheduled the trucks which were required each day to service the station. LCA directed that RMS send its invoice directly to Kirk Johnson in its letter of August 28, 1990, which stated:

Effective Friday, August 31, the checks prepared for the tons hauled out the previous week (Mon-Sat) will be based upon approved invoices we receive from Kirk Johnson in Chester. You should not send invoices to Pittsburgh anymore, but rather to Kirk Johnson in Chester. Kirk will fax approved invoices to us for payment.

Although LCA presented testimony, from the vice-president in charge of the transfer station, that it was he and not Mr. Johnson who approved the invoices, the letter does not disclose this to the reader.

Secondly, the September 19, 1990 correspondence concerning the rate adjustment was sent by Kirk Johnson, and specifically states:

Rate Adjustment, effective 9/19/90.
Per our tele [-] conversation this a.m.:
Rate per ton: $44.00, with minimum of 21.5 tons (43,000 lbs) per load.

The FAX was signed by RMS’s president to document its agreement, but no evidence was offered to establish that anyone other than Kirk Johnson was required to approve the rate change for LCA. By such actions, LCA manifested that Kirk Johnson acted as its agent, with authority to arrange for RMS’s services, to approve its invoices for payment and, to negotiate its rate adjustments. This is sufficient to hold LCA liable for Mr. Johnson’s actions under an apparent authority theory. Volunteer Fire Co., supra; Turner, supra.

LCA next assigns error in the court’s conclusion that LCA was liable for invoices submitted by RMS after October 19, 1990. LCA complains that impermissible hearsay evidence was the basis for the court’s findings, and therefore there was no competent evidence upon which to hold LCA liable. LCA also claims that at the time the statement was made, Kirk Johnson was no longer an employee of LCA, and therefore did not have any authority to make a binding statement that LCA was responsible for invoices. We cannot agree.

It is well established that an out-of-court statement offered for the purpose of proving the truth of the matter asserted contained in the declaration constitutes hearsay. Carney v. Pennsylvania Railroad Co., 428 Pa. 489, 240 A.2d 71 (1968); see also Fed.R.Evid. 801(c). The out-of-court statement, however, is not hearsay when it is introduced merely for the purpose of establishing that the statement was made, rather than its truth. Spotts v. Reidell, 345 Pa.Super. 37, 497 A.2d 630 (1985). Neither is the statement hearsay if it is offered to explain a course of conduct. Id.

The evidence at issue here is the statement of Kirk Johnson to RMS on October 31, 1990 that the station’s changes to reflect North Penn was only a “name change.” Neither party asserts that the statement was offered to prove that LCA had, in fact, changed its name to North Penn. RMS offered the statement to show why it had not run its standard credit check on a new account. The statement, therefore, is not hearsay testimony. Spoils, supra.

The statement was contained in a FAX transmission from RMS to North Penn on November 20, 1990, wherein RMS sought to clarify which company, LCA or North Penn, was responsible for the outstanding invoices. This correspondence states that on October 31, 1990, Kirk Johnson informed RMS’s traffic department to change the name on its shipping tickets to read “North Penn Recycling.” Testimony from RMS’s president established that Kirk Johnson also related that RMS should continue to send the invoices to his attention at the Chester station. LCA does not claim that these directives were not issued or that either of these requests would not be within the scope of the duties that Kirk Johnson would perform on behalf of LCA.

LCA’s vice-president testified that LCA entered into a “private agreement” with North Penn and that LCA made no effort to notify RMS regarding the change in the operating company or that Kirk Johnson was now employed by North Penn. Accordingly, until LCA had informed it of a change, it was not unreasonable for RMS to assume either that Kirk Johnson was still acting within the scope of his employment and with, the same apparent authority granted by LCA, Turner, supra, or that LCA had decided to operate the transfer station under a name more indicative of the type of business it was operating at the facility. It was LCA’s failure to inform RMS of the change in operating companies for the transfer station which, in fact, made RMS’s loss possible.

LCA next asserts that RMS waived its point of error regarding the trial court’s miscalculation in its modified order since it did not present any basis for the error in any post-trial motion. LCA has misinterpreted the record. As explained above in note 4, RMS did raise the issue in a motion for reconsideration immediately upon receiving the trial court’s modified order. In its initial order, the trial court awarded RMS the exact amount it claimed as damages against LCA. Until the court modified the verdict, RMS had neither reason nor opportunity to raise the issue. Hence, there was no waiver.

RMS questions whether the court erred in: 1) granting LCA’s request for remittitur; 2) its calculation of the reduction of damages ordered; and 3) applying the $6,000 payment made by North Penn Recycling to reduce the liability of LCA?

RMS first asks if the trial court erred in granting LCA’s request for remittitur. We answer with a resounding yes, and write here in an attempt to stem the flow of the increased misuse of legal terms in our courts.

A remittitur by definition is:

The procedural process by which an excessive verdict of the jury is reduced. If money damages awarded by a jury are grossly excessive as a matter of law, the judge may order the plaintiff to remit a portion of the award. In the alternative, the court may award a complete new trial or a trial limited to the issue of damages. The court may also condition a denial of a motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount.

Black’s Law Dictionary, 1295 (6th ed. 1991) (citations omitted) (emphasis added). It is readily apparent, therefore, that a motion for a remittitur should only be made, and can only be granted, when there is a jury trial and verdict.

Our supreme court recently clarified the standard upon which a remittitur may be granted. In Pennsylvania, a remittitur may only be granted where the trial court determines that “the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption” and articulates the reason supporting a reduction of the verdict. Haines v. Raven Arms, 539 Pa. 401, 402, 652 A.2d 1280, 1281 (1995) (emphasis added). The trial court cannot simply grant a remittitur, it can suggest or recommend one to the affected party, and, if refused, the court must grant a new trial. Once the trial court determines that the jury award is excessive under the law and articulates the reasons for its determination, the award winner has the option of accepting the recommended remittitur or, in the alternative, choosing to undergo a new trial. Otherwise, the court’s order is tantamount to an improper interference with the jury’s verdict and would violate a person’s constitutional right to a jury trial, where entitled, as guaranteed by the Seventh Amendment. As the United States Supreme Court explained in Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S.Ct. 296, 301, 79 L.Ed. 603 (1935),

[t]he controlling distinction between the power of the court and that of the jury is that the former is the power to determine the law and the latter to determine the facts.... Where the verdict is palpably and grossly inadequate or excessive, it should not be permitted to stand; but, in that event, both parties remain entitled, as they were entitled in the first instance, to have a jury properly determine the question of liability and the extent of the injury by an assessment. Both are questions of fact. Where the verdict is excessive, the practice of substituting a remission of the excess for a new trial is not without plausible support in the view that what remains is included in the verdict along with the unlawful excess — in that sense that it has been found by the jury — and that the remittitur has the effect of merely lopping off an excrescence.

Id. at 486, 55 S.Ct. at 301 (emphasis added).

In the instant case, we have a non-jury trial. Accordingly, LCA’s motion for a remittitur was improvidently made and granted. It would defy logic to hold otherwise. We would be hard pressed indeed to find that a court could so shock its own conscience in granting an award. Rather, the appropriate procedure in a non-jury action is to move for a modification of the verdict. Thus, Judge Ross did not grant a remittitur. In actuality, the court reconsidered its original decision, recalculated the amount of damages and modified its original verdict, despite the use of the word remittitur in both LCA’s motion and the trial court opinion.

This brings us, appropriately, to RMS’s next question: did the trial court err in its recalculation of the damages? It is well-established that this court, on appeal, will not substitute its judgment for that of the fact-finder in the award of damages so long as the award is supported by competent evidence and the proper application of the law. In re Estate of Cornell, 336 Pa.Super. 594, 486 A.2d 424 (1984).

The trial court found that RMS had actual notice that North Penn was the party responsible for payment for RMS’s services on November 13, 1990. The court also determined that LCA, due to its failure to notify RMS of the change, was liable for the invoices from October 23 through November 13, 1990. The record discloses during that period there were thirty-one invoices, numbered 8686 through 8699 and 9020 through 9036, totalling $30,279.48.

This information was found in Plaintiffs Exhibit # 6. The problem arose because several of the invoices appear on more than one page. It is assumed that the court attempted to deduct the invoices dated November 14 through November 19, 1990 from its initial award of $34,042.62. Starting on page two of Exhibit # 6, the invoices numbered 9037 through 9046 were issued during those six days and total $9,763.16. It appears that the court continued to page three of the exhibit, where these same invoices and several from November 13,1990 were repeated, and the resulting mathematical error doubled the amount by which the court sought to amend the verdict. The amended amount is the result of a mistake in calculation, and is therefore not supported by competent evidence, Cornell, supra. Accordingly, we vacate the modified order.

In the final issue raised in this appeal, both parties question how the $6,000 payment by North Penn should be applied. RMS established at trial that the payment was received on November 20, 1990, and was applied to the oldest balance on account. RMS asserts that the trial court found that North Penn was liable for the invoices after November 13, 1990, and accordingly, the $6,000 payment should be credited to that amount and not to the amount for which LCA was found to be liable. LCA, on the other hand, argues that RMS would then receive an impermissible double recovery. We must agree with RMS.

It is well settled that an award of compensatory damages is meant to compensate an innocent party for the injury suffered; “the loss sustained should be compensated with the least burden to the wrongdoer consistent with the idea of fair compensation to the injured.” Feingold v. Southeastern Pennsylvania Transportation Authority, 339 Pa.Super. 15, 28, 488 A.2d 284, 291 (1985) (quoting Incollingo v. Ewing, 444 Pa. 299, 307, 282 A.2d 206, 228-229 (1971)). Accordingly, we must determine which application of the money would most fairly compensate RMS in light of the actions of the wrongdoer leading to the injury.

We previously stated that it was LCA’s failure to notify RMS that North Penn had taken over the operation of the transfer station which led to RMS’s loss. RMS presented testimony that it would routinely do a credit check on its new accounts and would establish a line of credit for the company based on the information obtained. Obviously, this procedure would operate to limit the losses RMS might suffer in providing services to an account that was not financially stable. We conclude, therefore, that the fairest application of the money is one which would limit the loss in a manner similar to that which would have been effected if RMS had the proper notification.

The trial court found that LCA was liable for the unpaid invoices from October 23, 1990 through November 13, 1990, the date when RMS had actual notice that North Penn was an entity separate from LCA. The tdtal of the invoices for this time period is $30,279.48. The invoices for the week of November 13 through November 19, 1990 total $9,763.16. If we credit the $6,000 payment against the amotmt owed by LCA, RMS’s loss will be $15,763.16. If, however, we apply the $6,000 payment to the balance owed by North Penn, the loss to RMS will be reduced to $3,763.16. We discern no double recovery as contended by LCA.

Application of the $6,000 to the amount owed by North Penn, while it does not totally compensate the plaintiff, does limit the loss which RMS must suffer from North Penn’s insolvency. This result most nearly reflects the goal of RMS’s procedural credit check, which would have been effected had LCA. properly notified RMS of the change in operating companies. Additionally, LCA should not benefit from the inadvertent “windfall” of the payment, simply because the computer mindlessly applied the payment to the invoices for which LCA is responsible. We determine that application of the payment to North Penn’s, liability, therefore, most fairly compensates RMS for its injury, and does not overly burden LCA. Feingold, supra; Incollingo, supra.

Accordingly, we affirm the decision of the court relating to LCA’s liability on a contract, and vacate the order of the court with regard to the damages. We also remand the case to the trial court to enter an order in accordance with this opinion, which includes the interest from the original order.

Order affirmed in part, vacated in part, and remanded.

Jurisdiction relinquished.

      . A waste transfer station is essentially a location where small haulers, that cannot afford to transport great distances, bring their waste. The waste is then consolidated and loaded onto larger trucks for transport to a landfill.
      The owner of the 52-acre property is Chester Solid Waste Management Associates. When it purchased the property in 1984, LCA was the leasing agent on site, and part of the agreement required retention of LCA's name. The license for the waste transfer facility was issued to LCA.

      . Judgment by default was entered against Consolidated and North Penn when they failed to respond to the complaint filed in 1991. Both defaulting companies are apparently financially insolvent.

      . RMS also claimed damages for fraud on behalf of LCA, which was not addressed by the trial court’s order and opinion. RMS states that the claim of fraud is not an issue on appeal, thereby abandoning the claim.

      . RMS's appeal is properly before this court. The trial court opinion of February 7, 1995 notes that RMS had petitioned the court for reconsideration of the modification of the court’s original order. Pursuant to Rule 1701(b)(3), the trial court could grant reconsideration of its order, even after an appeal is taken, if: (i) an application for reconsideration is timely filed with the trial court, and (ii) the trial court files an order expressly granting reconsideration within the time prescribed for the filing of a notice of appeal. Pa.R.A.P. 1701(b)(3), 42 Pa.C.S.A. RMS filed its notice of appeal twenty-eight days after the entry of the order, when the trial court did not act upon its petition, in order to preserve the appeal.
      Subdivision (b)(3) is intended to handle the troublesome question of the effect of application for reconsideration on the appeal process.... The better procedure under this rule will be for a party seeking reconsideration to file an application for reconsideration below and a notice of appeal, etc..... If the trial court . . . fails to enter an order "expressly granting reconsideration” within the time prescribed by these rules for seeking review, Subdivision (a) becomes applicable and the power of the trial court ... to act on the application for reconsideration is lost.

        Pa.R.A.P. 1701, Note. Since the trial court did not enter the required order within the thirty-day period during which RMS could file its appeal, the trial court lacked jurisdiction to take any further action on the plaintiff's motion. Pa.R.A.P. 1701(a), 42 Pa.C.S.A.; see also Hoag v. Hoag, 435 Pa.Super. 428, 646 A.2d 578 (1994).

      . In light of this discussion, LCA's assignment of further error in the trial court’s "sua sponte” determination of its liability for “failure of an attempted novation of a contract between LCA and RMS,” (Appellee’s brief, n. 1), is equally without foundation.

      . LCA’s final issue also concerns the $6,000 payment by North Penn on its account, so we will consider its arguments when we address the issue here.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    671 A.2d 1151
    Ada M. DEMMLER and L. Frank Demmler, Appellants, v. SMITHKLINE BEECHAM CORPORATION, a Pennsylvania Corporation, formerly known as SmithKline Beckman Corporation, trading as: Smith Kline & French Laboratories, Appellee.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed Feb. 14, 1996.

      Richard G. Johnson, Pittsburgh, for appellants.
    Kerry A. Kearney, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

On March 23, 1988, after taking a physician-prescribed dosage of the drug Parnate, Ada M. Demmler suffered a hypertensive crisis, which is a side effect of Parnate. The episode caused Demmler to become permanently disabled, including a partial paralysis and brain damage. Parnate is an antidepressant medication manufactured and sold by defendant, SmithKline Beecham Corporation (SmithKline), with warnings concerning hypertensive crises. It is a psychiatric drug classified as an monoamine oxidase inhibitor (MAOI). Christopher M. Erstling, M.D., a psychiatrist at Shadyside Hospital, had prescribed the drug to Demmler for treatment of her depression. In this appeal, it is contended that Smith-Kline failed to give adequate warnings concerning an available antidote to hypertensive crises.

On March 22, 1990 Demmler and her husband, L. Frank Demmler, initiated a strict liability action against SmithKline, alleging inadequate warnings, inadequate product descriptions, and overpromotion of Parnate. On May 10, 1994, the trial court granted summary judgment in favor of SmithKline on all claims, except plaintiffs’ claim of inadequate warning as it related to Nifedipine, an alleged antidote to hypertensive crises associated with Parnate. On September 30, 1994, after reviewing plaintiffs’ supplemental expert report and Smith-Kline’s motion to dismiss, the trial court found that there was no evidence supporting a claim that SmithKline’s package inserts or warnings to physicians were inadequate and, therefore, dismissed the remaining portion of plaintiffs’ case. The Demmlers filed this timely appeal.

A trial court’s order dismissing a case prior to trial is properly characterized as either a summary judgment or a judgment on the pleadings. See: Gallagher v. Harleysville Mut. Ins. Co., 421 Pa.Super. 192, 202, 617 A.2d 790, 796 (1992). Since discovery was fully conducted in the instant case, we will treat the order entered as the entry of summary judgment. See: Pa.R.C.P. 1035, 42 Pa.C.S. Our standard of review, therefore, is as follows:

An order granting summary judgment is appropriate when a review of all the interrogatories, affidavits and depositions of record indicates that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Buckno v. Penn Linen & Uniform Service, Inc., 428 Pa.Super. 563, 565, 631 A.2d 674, 675 (1993). However, “[a]n entry of summary judgment may be granted only in cases where the right is clear and free of doubt.” Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989). When considéring whether summary judgment is proper, the record must be examined in the light most favorable to the non-moving party, with all doubts resolved against the moving party. Denlinger, Inc. v. Dendler, 415 Pa.Super. 164, 170, 608 A.2d 1061, 1064 (1992).

Ducko v. Chrysler Motors Corp., 433 Pa.Super. 47, 49, 639 A.2d 1204, 1205 (1994). See also: Fletcher v. Raymond Corp., 424 Pa.Super. 605, 609-610, 623 A.2d 845, 847 (1993); Burnside v. Abbott Laboratories, 351 Pa.Super. 264, 273-274, 505 A.2d 973, 978 (1985).

Under Pennsylvania law, strict liability is imposed on the manufacturer or seller of a product in a defective condition unreasonably dangerous to the user or consumer. Incollingo v. Ewing, 444 Pa. 263, 287, 282 A.2d 206, 219 (1971). In order to recover in a products liability case, the plaintiff has the burden of showing that (1) the product was defective; (2) the defect caused the injury; and (3) the defect existed at the time the product left the manufacturer. Ducko v. Chrysler Motors Corp., supra at 50, 639 A.2d at 1205; Fletcher v. Raymond Corp., supra at 610, 623 A.2d at 848. “A product may be deemed defective if it lacks adequate warnings or instructions necessary for safe use of the product. Fletcher v. Raymond Corp., supra. See also: Incollingo v. Ewing, supra. Of course, “[tjhere are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs.... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous.” Restatement (Second) of Torts, § 402A, Comment k. See also: Incollingo v. Ewing, supra at 287-288, 282 A.2d at 219-220; Hahn v. Richter, 427 Pa.Super. 130, 628 A.2d 860 (1993) (en banc), allocatur granted in 537 Pa. 650, 644 A.2d 736 (1994); Restatement (Second) of Torts, § 388.

“Whether a product is defective because of a failure to give an adequate warning is initially a question of law to be decided by the trial court.” Fletcher v. Raymond, Corp., supra at 611, 623 A.2d at 848. “ ‘[W]here the drug is available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.’ ” Dion v. Graduate Hosp. of Univ. of Penna., 360 Pa.Super. 416, 422, 520 A.2d 876, 879 (1987), quoting Incollingo v. Ewing, supra at 288, 282 A.2d at 220. See also: Hahn v. Richter, supra at 142, 628 A.2d at 866. “ ‘As a medical expert, the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient. His is the task of weighing the benefits of any medication against its potential dangers. The choice he makes is an informed one, an individualized medical judgment bottomed on a knowledge of both patient and palliative.’ ” Windham v. Wyeth Laboratories, 786 F.Supp. 607, 611 (S.D.Miss.1992), quoting Reyes v. Wyeth Laboratories, 498 F.2d 1264, 1276 (5th Cir.), cert. denied, 419 U.S. 1096, 95 S.Ct. 687, 42 L.Ed.2d 688 (1974). See also: Hahn v. Richter, supra; Mazur v. Merck & Co., Inc., 742 F.Supp. 239, 252 (E.D.Pa.1990). Generally, expert medical testimony is required to determine whether the drug manufacturer’s warning to the medical community is adequate because prescription drugs are likely to be complex medicines, esoteric in formula and varied in effect. Dion v. Graduate Hosp. of Univ. of Penna., supra at 425-426, 520 A.2d at 881. See generally: Hamil v. Bashline, 481 Pa. 256, 267, 392 A.2d 1280, 1285 (1978).

Instantly, appellants do not contend that SmithKline failed to give adequate warning to physicians about the dangers of hypertensive crises associated with Parnate. Rather, appellants argue that SmithKline manufactured and sold an unreasonably dangerous product when it failed to advise physicians that Parnate-induced hypertensive crises could be treated with a widely available drug named Nifedipine. In the report prepared by appellants’ medical expert, Donald M. Yealy, M.D., of the University of Pittsburgh, School of Medicine, it is stated that “offering oral or sublingual Nifedipine may have prevented the intracranial hemorrhage, associated with the MAOI-induced hypertensive crisis suffered by Ada Demmler.” (Plaintiffs’ Supplemental Expert Report — Antidote, September 21, 1994). Nifedipine, according to Dr. Yealy’s report, is well known to have a fairly rapid onset of activity, and of lowering the blood pressure. This, it is asserted, would have offered Mrs. Demmler a greater chance of averting a tragic intracranial hemorrhage.

For purposes of this appeal, we resolve any doubt about the availability and benefits of Nifedipine as an antidote in appellants’ favor. We also assume that Mrs. Demmler suffered a Parnate-induced hypertensive crisis. Additionally, the evidence was that SmithKline did not warn physicians about the availability of Nifedipine to treat complications arising from the use -of Parnate. Nevertheless,-we must affirm the judgment in favor of SmithKline, for appellants have failed to establish that SmithKline’s product was defective. Appellants have also failed to establish that the alleged defect caused Mrs. Demmler’s injuries.

Based on our review of the record, we agree with the conclusion of the . trial court that appellants have failed to present sufficient evidence on the record from which a reasonable jury could infer that appellee manufactured and sold a defective product. SmithKline specifically warned of . the hazard of hypertensive crises associated with Parnate and suffered by Mrs. Demmler. See: Restatement (Second) of Torts, § 402A, Comment j; Restatement (Second) of Torts, § 388 (discussing duty to warn of hazards). The evidence was that SmithKline provided package inserts and product descriptions which warn physicians that Parnate is “a potent agent with the capability of producing serious side effects____ The most important reaction associated with Parnate (tranylcypromine sulfate, SK & F) is the occurrence of hypertensive crises which have sometimes been fatal.... If a hypertensive crisis occurs, Parnate [] should be discontinued and therapy to lower blood pressure should be instituted immediately.... On the basis of present evidence, phentolamine (available as ‘Regitine’) is recommended.” Moreover, the non-obvious nature of appellants’ antidote theory required a showing by expert testimony that SmithKline’s warning to the medical community was inadequate. Dion v. Graduate Hosp. of Univ. of Penna., supra. In Dr. Yealy’s opinion, “Smith[K]line should have been aware of the information [regarding Nifedipine] and could have chosen to use [it].... [T]his information could have been disseminated in a variety of formats, including the Physicians Desk Reference or other direct mailings to physicians.” (Plaintiffs’ Supplemental Expert Report — Antidote, Sept. 21, 1994) (emphasis supplied). Dr. Yealy’s expert opinion, even if wholly credited, however, does not evidence that SmithKline’s instructions or warnings to the medical community concerning Parnate and its side effects were inadequate. Dr. Yealy merely points out that SmithKline had the opportunity, but not the obligation, to include helpful information about Nifedipine when warning physicians about Parnate. Accordingly, the record supports no basis upon which a reasonable jury could impose liability on SmithKline based on the alleged defect in the Parnate warning supplied to prescribing doctors.

A second and independent reason for affirming the summary judgment granted in favor of SmithKline is that the plaintiff/appellants failed to establish any causal link between the alleged defect and Mrs. Demmler’s injury. The law requires that “there must be some reasonable connection between the act or omission of the defendant and the injury suffered by the plaintiff.” Burnside v. Abbott Laboratories, supra at 274, 505 A.2d at 978. “In the duty to warn context, assuming that plaintiffs have established both duty and a failure to warn, plaintiffs must further establish proximate causation by showing that had defendant issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided.” Mazur v. Merck & Co., Inc., supra at 262. See also: Staymates v. ITT Holub Indus., 364 Pa.Super. 37, 51, 527 A.2d 140, 147 (1987) (evidence must support a reasonable inference that that existence of an adequate warning may have prevented the injury). In the event that a warning is inadequate, proximate cause is not presumed. Mazur v. Merck & Co., Inc., supra; Staymates v. ITT Holub Indus., supra. Accord: Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir.1992); Windham v. Wyeth Laboratories, supra at 613. “[T]o create a jury question, the evidence introduced must be of sufficient weight to establish ... some reasonable likelihood that an adequate warning would have prevented the plaintiff from receiving the drug.” Thomas v. Hoffman-LaRoche, Inc., 949 F.2d 806, 812 (5th Cir.1992). See also: Plummer v. Lederle Laboratories, 819 F.2d 349, 358-359 (2nd Cir.1987); Stanback v. Parke, Davis and Co., 657 F.2d 642, 645-646 (4th Cir.1981). Absent proof that a more thorough or more explicit warning would have prevented Mrs. Demmler’s use of Parnate, appellants cannot establish that SmithKline’s alleged failure to warn was the proximate cause of Mrs. Demmler’s injuries.

The uncontradicted deposition testimony of Dr. Christopher Erstling was that he prescribed Parnate to Mrs. Demmler based upon his years of clinical experience and his review of medical literature, rather than any information supplied by SmithKline. Even if information about Nifedipine was required to make Parnate safe for use, the record is devoid of any evidence that a different warning would have altered Mrs. Demmler’s use of Parnate in accordance with Dr. Erstling’s instructions. Therefore, we hold that a reasonable jury could not find that the alleged failure to warn was the proximate cause of appellants’ injuries.

In this strict liability action, appellants assert that SmithKline, the manufacturer and seller of the prescription drug Parnate, is liable to appellants for injuries sustained when wife-appellant suffered a Parnate-induced hypertensive crisis. It is undisputed that SmithKline specifically warned prescribing physicians about the hazard of hypertensive crises associated with the use of Parnate. Appellants contend, nevertheless, that SmithKline’s product was defective because it failed to warn physicians that Nifedipine was an effective antidote to a hypertensive crisis. We hold that SmithKline’s product was not defective, and additionally, that appellants have failed to prove prima facie that there was a proximate causation between the alleged defect and appellants’ injuries. Liability will not be imposed upon a drug manufacturer “ ‘for unfortunate consequences attending [use of a prescription drug] merely because he has undertaken to supply the public with an apparently useful and desirable product[,] attended with a known but apparently reasonable risk.’ ” Incollingo v. Ewing, supra at 288, 282 A.2d at 220, quoting Restatement (Second) of Torts, § 402A, Comment k. See also: Hahn v. Richter, supra at 143, 628 A.2d at 866.

Affirmed.

DEL SOLE, J., did not participate in the consideration or decision of this appeal.

      . Plaintiffs’ original expert report was authored by an unknown person. The trial court found this report to be inadequate and granted plaintiffs an additional 120 days to correct its deficiencies.


author: POPOVICH, Judge.

text:
    671.A.2d 1156
    COMMONWEALTH of Pennsylvania, Appellee, v. Wendy TITHER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1995.
    Filed Feb. 21, 1996.

      Jeffrey D. Litts, Assistant Public Defender, Doylestown, for appellant.
    Troy Leitzel, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Bucks County after appellant was convicted of driving under the influence and sentenced to forty-eight (48) hours to twenty-three (23) months imprisonment. Appellant herein contends that the trial court erred in denying her motion to suppress evidence obtained subsequent to an invalid investigative stop. Upon review, we find that the trial court erred in concluding that reasonable suspicion existed to justify the investigative stop. Accordingly, we reverse the judgment of sentence and remand for a new trial consistent with this opinion.

The trial court concisely set forth the facts of this case as follows:

In this case, the officer, a 23-year veteran in full uniform and in a marked police vehicle, was on routine patrol at about 6:55 p.m. in a section of Bristol Township, Bucks County, Pennsylvania, known to this officer for frequent drug transactions and prostitution problems. For 11 years prior to this incident, the officer had patrolled this particular area of the Township. During his 23 years of service, he made 40 to 50 drug arrests, including in this particular area.
Suddenly he heard someone yell, “5-0, 5-0.” He knew this to be street jargon warning that police are in the area. He then noticed several things at the same time. He observed an Oldsmobile Cutlass automobile stopped in the middle of the one-way street about 100' in front of him. He noted people on the sidewalk. He- also noticed a male standing in the street, reaching into the car. Upon hearing “5-0, 5-0” being yelled, the male left the car and walked into the nearest building. The car pulled away immediately. The officer concluded • that he was witnessing a possible drug sale and he proceeded to try to follow the vehicle to stop it and look for drugs. Meanwhile, other cars got between them. Finally, the Oldsmobile made a left turn and so did the officer. The Oldsmobile then pulled over on its own and stopped.. The officer had not activated his overhead lights. He noted that the interior light was on in the car, and he observed the female driver looking towards the right and downward. The male passenger looked left and downward toward the middle of the seat.
The officer stopped behind the Oldsmobile and approached on foot. As he arrived at the rear of the vehicle, it started to pull away so he knocked on the side windows of the vehicle. The defendant stopped the vehicle again.

(Trial Court Opinion, p. 2-3). Upon speaking with appellant, the officer sensed an odor of alcohol on her person and observed alcoholic beverages in the vehicle. Appellant was asked to perform a field sobriety test which she failed. Subsequent to her arrest, appellant was given two Intoximeter 3000 tests which revealed that her blood alcohol level was .201 and .204.

When reviewing the denial of a motion to suppress evidence, our responsibility is as follows:

to determine whether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. If the suppression court held for the prosecution, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. When the factual findings of the suppression court are supported by the evidence, the appellate court may reverse if there is error in the legal conclusions drawn from those factual findings.

Commonwealth v. Talley, 430 Pa.Super. 351, 634 A.2d 640, 641-642 (1993) (citations omitted) (citing Commonwealth v. Lopez, 415 Pa.Super. 252, 609 A.2d 177, 178-179 (1992)).

We note initially that appellant was not stopped pursuant to a traffic violation. It is clear that the officer would have had authorization to stop appellant if he reasonable believed that a provision of the Motor Vehicle Code was violated. 75 Pa.C.S.A. § 6308; Commonwealth v. DeWitt, 530 Pa. 299, 608 A.2d 1030 (1992). Since the officer in this case did not testify to any traffic violation committed by appellant prior to the contested stop, we must look elsewhere for justification.

An officer does have the authority to approach or briefly detain a citizen without probable cause for investigatory purposes. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Arch, 439 Pa.Super. 606, 654 A.2d 1141, (1995). “In order for such a stop to be reasonable under the Fourth Amendment to the United States Constitution, the police officer must point to specific and articulable facts ‘which in conjunction with rational inferences deriving therefrom’ warrant the initial stop.” Arch, supra, 654 A.2d at 1143 (quoting Commonwealth v. Prengle, 293 Pa.Super. 64, 437 A.2d 992, 994 (1981)). To meet this standard, the officer must observe unusual and suspicious conduct by the suspect which leads the officer to reasonably believe that criminal activity may be afoot. Arch, supra, 654 A.2d at 1144. Furthermore, the officer’s conclusion cannot be based upon an “unparticularized suspicion” or “hunch.” Id. (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883).

In the present case, the officer testified that he suspected that a drug transaction was in progress based upon his observation of the following: that the area had a reputation for frequent drug transactions, that a black male was reaching into appellant’s car, that someone yelled “5-0, 5-0”, and immediately thereafter, the man walked into a house and appellant drove away. The officer testified that he did not -witness a transaction of any kind between appellant and the man leaning in the window. The officer did not see any money or drugs in the possession of either party. Further, the officer had no prior information that appellant was involved in criminal activity. With only the aforementioned facts before the officer, we are not convinced that reasonable suspicion of a drug transaction existed.”

The facts relied upon by the officer when viewed individually or in their totality, do not constitute reasonable suspicion. The fact that appellant was observed in a high crime-area known for drug-related activity is not sufficient to justify an investigative Terry stop. Commonwealth v. Martinez, 403 Pa.Super. 125, 588 A.2d 513, 515-516 (1991); Commonwealth v. Wilson, 440 Pa.Super. 269, 655 A.2d 557, 561 (1995). Similarly, that appellant drove away soon after someone yelled “5-0, 5-0” is likewise deficient to constitute reasonable suspicion. In DeWitt, supra, 608 A.2d at 1034, our Supreme Court held that flight from a police officer alone is insufficient to create a reasonable suspicion of criminal activity. See also Martinez, supra, 588 A.2d at 514.

Finally, the fact that there was a man reaching into appellant’s car window without any further observations is not indicative of criminal activity. In Commonwealth v. Malson, 434 Pa.Super. 155, 642 A.2d 520, 524, (1994), this court concluded that reasonable suspicion to stop the suspect did not exist. In its opinion, the court stated that “[o]ur decision in this regard is supported by several cases which stand for the proposition that an exchange of some unknown items between citizens in a public place, even a place known to be frequented by drug traffickers, does not, without more, establish probable cause to arrest those citizens.” Id. 642 A.2d at 523; See also Commonwealth v. Agnew, 411 Pa.Super. 63, 600 A.2d 1265 (1991). In the present case, the officer did not even observe an exchange between appellant and the man leaning into her window. The officer did not witness any actions which would suggest a transaction, let alone a drug transaction.

As explained above, each of the officer’s observations alone does not rise to a reasonable suspicion that criminal activity was afoot. Even when the observations are viewed in their totality, we come to the same conclusion. As this court has previously stated, “[w]hile the officer’s curiosity might have been aroused by the action that was witnessed, and while he may have had a hunch that illegal contraband was involved, that is not sufficient.” Wilson, supra, 655 A.2d at 563 (quoting Commonwealth v. Greber, 478 Pa. 63, 385 A.2d 1313, 1316 (1978)). Since we find that the officer did not have the requisite reasonable suspicion of criminal activity to justify the investigative stop, all evidence obtained subsequent thereto should have been suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Accordingly, we reverse the judgment of sentence and remand for a new trial consistent with this opinion.

Reversed and remanded; jurisdiction relinquished.


author: DEL SOLE, Judge: BECK, Judge,

text:
    671 A.2d 1159
    Ronald R. LOCKHART, Appellant, v. ERIE INSURANCE COMPANY, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 10, 1995.
    Filed Feb. 21, 1996.

      John A. Fitzpatrick, Philadelphia, for appellant.

      Jeffrey P. Lewis, Media, for appellee.
    Before DEL SOLE, BECK and HUDOCK, JJ.
   DEL SOLE, Judge:

Appellant, an insured under an property insurance policy issued by Appellee, filed a claim with Appellee seeking coverage for a loss his property sustained when nearby underground storage tanks leaked gasoline onto his property. Appellee denied coverage based upon a pollution exclusion clause contained in the policy. Appellant filed this suit claiming a breach of contract and seeking a Declaratory Judgment. A document titled, “Stipulation of Facts” was presented to the trial court upon which the court entered an Order stating that it “f[ou]nd in favor of the defendant [footnote omitted] and against the plaintiff.” (Trial Court Order filed 12/16/94). Judgment was not entered and post-trial motions were not filed, but this appeal followed.

On February 23, 1995, Appellant’s counsel was asked to respond to this court’s inquiry into whether Appellant’s issues were preserved because Appellant did not file post-trial motions. Counsel responded that he believed that post-trial motions were not necessary because this was a matter brought before the court on a case stated basis rather than on a stipulation of facts.

In a non-jury trial based upon a stipulation of facts, the parties submit an agreed statement of facts and the court renders a decision subject to exceptions and review before judgment is entered. Penn v. Nationwide Insurance Co., 363 Pa.Super. 13, 525 A.2d 400 (1987). By contrast, for a case to be submitted as a case stated the parties must (1) submit an agreed statement of facts; (2) request that the court enter judgment based upon the facts stated; and (3) reserve their right to appeal in this statement. Wertz v. Anderson, 352 Pa.Super. 572, 508 A.2d 1218 (1986). The distinction between a case stated and a case tried upon stipulated facts is important in determining what procedure must be followed in taking an appeal. “[W]here there is a trial without jury upon stipulated facts submitted for the decision of the court, a party must file post-trial motions pursuant to Rule 227.1(c) to preserve any right of appeal---- However, where the parties submit an agreed upon statement of facts for the entry of judgment by the court, the judgment is considered final and the parties must appeal within thirty days of the judgment without filing post-trial motions.” Miller v. Kramer, 424 Pa.Super. 48, 50-51, 621 A.2d 1033, 1035 (1993).

In the instant case, the document submitted to the court was entitled, “Stipulation of Facts”. It did not request that the court enter judgment and, as evidenced .by the wording of the court’s Order, the court made a finding but did not direct entry of a judgment. Furthermore, the parties did not reserve the right to appeal in their agreed upon statement.

Thus, the instant matter does not comply with the requirements of a case stated and was obviously submitted on a stipulation of facts.' Since Appellant failed to file post-trial motions and judgment was never entered, Appellant’s issues have not been preserved and, therefore, we must quash this appeal.

Appeal quashed.

BECK, J., files a concurring statement.

BECK, Judge,

concurring:

I join in the majority’s opinion and decision. Under the current law there is a difference between the submission of a case on stipulated .facts and the submission of a case stated. Each has its own requirements at filing, and different ramifications upon decision and appeal. On close analysis, the two procedures present a distinction -without a true difference, and pose a technical “trap” rather than a reasoned policy choice.

      . We note that while Appellant has included a copy of the "Stipulation of Facts” in the reproduced record, there is no such document in the original record.


author: KELLY, Judge:

text:
    671 A.2d 1161
    COMMONWEALTH of Pennsylvania, Appellant, v. Gerald J. LAWSON, Appellee.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1995.
    Filed Feb. 16, 1996.

      Alison Taylor, Assistant District Attorney, Carlisle, for Com., appellant.
    William Braught, Carlisle, for appellee.
    Before CAVANAUGH, KELLY and HESTER, JJ.
   KELLY, Judge:

In this appeal, the Commonwealth asks us to determine whether the sentencing court erred by failing to sentence appellee, Gerald J. Lawson, to the mandatory minimum term of three years imprisonment and impose a fine upon him of at least fifteen thousand dollars in accordance with 18 Pa.C.S.A. § 7508(a)(3)(ii) following his convictions for possessing . cocaine and possessing cocaine with intent to deliver. To answer this question, we must determine whether the Commonwealth proved by a preponderance of the evidence that appellee had been convicted of possessing at least ten and less than one hundred grams of cocaine with intent to deliver. We hold that the Commonwealth satisfied this burden and, therefore, the sentencing court erred in imprisoning appellee for a term of one to three years and fining him five thousand dollars based upon 18 Pa.C.S.A. § 7508(a)(3)(i). Accordingly, we vacate appellee’s judgment of sentence and remand for resentencing.

The relevant facts and procedural history of this case are as follows. Shortly before 11:00 p.m. on January 14, 1994, Conrad Thompson phoned the Carlisle Police Department and informed Dispatcher Edward Martin that appellee was sitting inside a 1985 red Dodge Omni in front of the Molly Pitcher Hotel in Carlisle and in possession of a significant amount of crack cocaine. Resultantly, Detective David Fones was dispatched to investigate Mr. Thompson’s tip. When Detective Fones arrived at the Molly Pitcher Hotel, he observed appellee sitting in a red car in front of the hotel just as Mr. Thompson had described to Dispatcher Martin.

At approximately 11:00 p.m., Detective Fones approached the red car in which appellee was seated and asked appellee to step out of it. Detective Fones then informed appellee that he had received a complaint that appellee was holding drugs. As Detective Fones began to request appellee’s permission to conduct a body search, appellee reached into his jacket pocket and pulled out a plastic baggie containing a white substance which Detective Fones believed to be consistent with crack cocaine. Upon Detective Fones’ request, appellee put this plastic baggie back into his pocket. Finally, Detective Fones completed his request to search appellee’s person and appellee consented to the search. This search revealed the aforementioned plastic baggie, two film canisters which also contained the same white substance that Detective Fones had observed inside the plastic baggie, and over two hundred dollars in U.S. currency.

Upon closer inspection, Detective Fones discovered that the plastic baggie contained nineteen individually wrapped “rocks” of the white substance. Similar unwrapped rocks were found by Detective Fones inside the film canisters; one canister contained thirty-six rocks and the other contained one hundred, two rocks. Detective Fones’ field test of one of these rocks indicated the presence of cocaine. Hence, appellee was arrested and charged with possession of cocaine and possession of cocaine with intent to deliver.

Each of the rocks that had been confiscated from appellee were then sent to the Pennsylvania State Police Crime Lab in Harrisburg for further analysis. Forensic Scientist Robert Wagner performed this analysis. Mr. Wagner’s testimony at appellee’s trial established the following facts. Mr. Wagner calculated the weight of the nineteen individually wrapped rocks from the plastic baggie to total 2.2 grams. Representative samples of these nineteen rocks were analyzed by Mr. Wagner for cocaine content and this analysis indicated the presence of cocaine in each sample. Mr. Wagner also determined the aggregate weight of the unwrapped rocks that had been found in both of the film canisters. The aggregate weight of the thirty-six rocks from the one canister was 3.9 grams and the aggregate weight of the one hundred, two rocks from the other canister was 12.5 grams. Mr. Wagner tested representative samples of rocks from each film canister and found cocaine in each sample. Mr. Wagner was unable to testify as to the number or aggregate weight of the rocks that he had actually tested for the presence of cocaine. It is apparent from Mr. Wagner’s testimony, however, that the rocks he had actually analyzed for cocaine content weighed less than ten grams.

On November 8, 1994, a jury found appellee guilty of possession of cocaine and possession of cocaine with intent to deliver. A sentencing hearing was subsequently conducted on January 3, 1995. At this hearing, no additional evidence was submitted regarding the weight of the cocaine for which appellee had been convicted of possessing with the intent to deliver. The entire transcript of appellee’s trial and a laboratory report authored by Mr. Wagner explaining his analysis of the rocks of cocaine, however, were made part of the record of this proceeding. At the conclusion of the sentencing hearing, the sentencing court entered appellee’s judgment of sentence which pertinently provides as follows:

“AND NOW, this 3rd day of January, 1995, the Defendant, Gerald J. Lawson, now appearing in Court for sentencing with Ellen K. Barry, Esquire, First Assistant Public Defender, and having previously been found guilty following a jury trial of Possession with Intent to Deliver a Schedule II Controlled Substance, namely, cocaine, and the Court being in receipt of a presentence investigation report, and the Court finding by a preponderance of the evidence that the amount of the cocaine possessed by Defendant with intent to deliver it [sic] was at least two grams and less than ten grams, the sentence of the Court, in accordance with the mandatory sentencing provision of 18 Pa.C.S. Section 7508(a)(3)[ (i) ], is that the Defendant pay the costs of prosecution, and a fine of $5,000.00, and that he undergo imprisonment in a state correctional institution for a period of not less than one year nor more than three years, with credit to be given for ten days previously served.

N.T. 1/3/95 at 7-8. On January 23, 1995, the Commonwealth, which had previously noticed its intent to seek a mandatory minimum sentence of three years and a fine of fifteen thousand dollars for appellee pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii) and had argued for such a sentence at the sentencing hearing, timely appealed from this judgment of sentence.

On appeal, the Commonwealth raises the following single issue for our review:

DID THE SENTENCING COURT ERR WHEN IT REFUSED TO IMPOSE THE MANDATORY MINIMUM SENTENCE REQUIRED BY 18 PA.C.S.A. § 7508(a)(3)(ii), WHERE THE COMMONWEALTH ESTABLISHED BY A PREPONDERANCE OF THE EVIDENCE THAT THE WEIGHT OF THE COCAINE THE DEFENDANT WAS CONVICTED OF POSSESSING WITH INTENT TO DELIVER WAS 18.6 GRAMS?

The Commonwealth’s Brief at 4.

Essentially, the Commonwealth contends that appellee should have been sentenced pursuant to the mandatory minimum sentencing requirements of 18 Pa.C.S.A. § 7508(a)(3)(ii) instead of 18 Pa.C.S.A. § 7508(a)(3)(i). According to the Commonwealth, the more severe mandatory minimum sentence should have been imposed on appellee by the sentencing court because the evidence of record at the time of his sentencing proved by a preponderance of the evidence that he possessed at least ten and less than one hundred grams of cocaine with intent to deliver. Hence, the Commonwealth asserts that the sentencing court erred when it imposed appellee’s judgment of sentence. We agree.

The Commonwealth has the right to appellate review of a judgment of sentence if the sentencing court refuses to apply the mandatory minimum sentencing provisions of 18 Pa.C.S.A. § 7508 where applicable. 18 Pa.C.S.A. § 7508(d). These sentencing provisions pertinently provide as follows:

(3) A person who is convicted of violating section 13(a)(14), (30) or (37) of The Controlled Substance, Drug, Device and Cosmetic Act where the controlled substance is coca leaves or is any salt, compound, derivative or preparation of coca leaves or is any salt, compound, derivative or preparation which is chemically equivalent or identical with any of these substances or is any mixture containing any of these substances except decocainized coca leaves or extracts of coca leaves which (extracts) do not contain cocaine or ecgonine shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fíne as set forth in this subsection:
(i) when the aggregate weight of the compound or mixture containing the substance involved is at least 2.0 grams and less than ten grams; one year in prison and a fine of $5,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drug trafficking offense: three years in prison and $10,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity;
(ii) when the aggregate weight of the compound or mixture containing the substance involved is at least ten grams and less than 100 grams; three years in prison and a fine of $15,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity; however, if at the time of sentencing the defendant has been convicted of another drag trafficking offense: five years in prison and $30,000 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity....

18 Pa.C.S.A. § 7508(a)(3)(i), (ii). In deciding which, if any, of these sections require the imposition of the specified mandatory minimum sentence, the sentencing court must determine whether the evidence presented at trial and any additional evidence presented by the Commonwealth or the defendant prior to sentencing preponderantly proves the section’s applicability. 18 Pa.C.S.A. § 7508(b). See Commonwealth v. Carroll, 438 Pa.Super. 55, 59, 651 A.2d 171, 173 (1994), allocatur denied, 541 Pa. 649, 664 A.2d 539 (1995) (where evidence supported sentencing court’s finding that preponderance of evidence indicated that defendant possessed less than two grams of heroin with intent to deliver, sentencing court correctly refused to apply 18 Pa.C.S.A. § 7508(a)(2)(i) when sentencing defendant); Commonwealth v. Jones, 413 Pa.Super. 482, 486, 605 A.2d 825, 827 (1992), allocatur denied, 531 Pa. 652, 613 A.2d 557 (1992) (because Commonwealth proved by a preponderance of evidence that defendant possessed 26.401 grams of cocaine, sentencing court erred in reassessing facts during sentencing process and failing to sentence defendant pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii)).

Generally, sentencing courts are vested with great discretion and this Court will not vacate a sentence unless an abuse of that discretion occurs. Commonwealth v. Wood, 432 Pa.Super. 183, 208, 637 A.2d 1335, 1347 (1994) (citing Commonwealth v. Smithton, 429 Pa.Super. 55, 59, 631 A.2d 1053, 1055 (1993)). But, errors of law cannot be committed when a sentence is being imposed. Id. at 208, 637 A.2d at 1347-48 (citing Commonwealth v. Edrington, 490 Pa. 251, 416 A.2d 455 (1980); Commonwealth v. Franklin, 301 Pa.Super. 17, 446 A.2d 1313 (1982)). Thus, a sentencing court lacks the authority to impose a sentence less severe than that which is mandated by 18 Pa.C.S.A. § 7508. Commonwealth v. Carroll, supra at 58, 651 A.2d at 172-73. See Commonwealth v. Logan, 404 Pa.Super. 100, 104, 590 A.2d 300, 301 (1991), allocatur denied, 528 Pa. 622, 597 A.2d 1151 (1991) (General Assembly unequivocally established that drug traffickers be punished according to minimum sentences of 18 Pa.C.S.A. § 7508). Therefore, we must vacate sentences which fail to comply with the mandatory sentencing requirements of that statutory provision. 18 Pa.C.S.A. § 7508(d). See Commonwealth v. Mayes, 436 Pa.Super. 1, 6, 647 A.2d 212, 215 (1994) (Superior Court will vacate sentence where sentencing court refused to apply 18 Pa.C.S.A. § 7508).

“[T]he identity of illegal narcotic substances may be established by circumstantial evidence alone, without any chemical analysis of the seized contraband.” Commonwealth v. Minott, 395 Pa.Super. 552, 562, 577 A.2d 928, 932 (1990) (citing Commonwealth v. Stasiak, 305 Pa.Super. 257, 451 A.2d 520 (1982); Commonwealth v. Leskovic, 227 Pa.Super. 565, 307 A.2d 357 (1973)). Moreover, when applying the mandatory minimum sentencing requirements of 18 Pa.C.S.A. § 7508 to a defendant from whom a large quantity of a controlled substance has been confiscated by the police upon his arrest, it is well accepted that the narcotics content of the entire confiscated substance is extrapolated from the testing of representative samples of the substance. Commonwealth v. Perez, 397 Pa.Super. 574, 578-79, 580 A.2d 781, 783 (1990), allocatur denied, 531 Pa. 652, 613 A.2d 558 (1992); Commonwealth v. Minott, supra at 559-60, 577 A.2d at 931. See Commonwealth v. Gorodetsky, 178 Pa.Super. 467, 474, 115 A.2d 760, 763-64 (1955), allocatur denied (chemist’s positive testing of representative samples of morphine tablets was sufficient to find morphine content in all tablets). The policy of the courts of this Commonwealth in cases pertaining to the sale or use of illegal narcotics has been eloquently explained by the Honorable William F. Cercone as follows:

... the courts will not ... constrict their fact-finding function in regard to the identity of drugs to a strict scientific analysis, but will rather permit the use of common sense and reasonable inferences in the determination of the identity of such substances.

Commonwealth v. Minott, supra at 562, 577 A.2d at 932. We reaffirm this policy and conclude that it applies to the facts of this case.

Instantly, appellee was sentenced pursuant to the mandatory minimum sentencing requirements of 18 Pa.C.S.A. § 7508(a)(3)(i) because the sentencing court specifically found that he possessed at least two and less than ten grams of cocaine with intent to deliver. But, this finding is not supported by the evidence that was before the sentencing court at the time of appellee’s January 3, 1995 judgment of sentence. The .uncontradicted testimony of Mr. Wagner at appellee’s trial singularly established by a preponderance of evidence that appellee possessed at least ten and less than one hundred grams of cocaine. Common sense and reasonable inferences from the evidence dictate this result.

Upon receipt, Mr. Wagner separately weighed the nineteen individually wrapped rocks of crack cocaine from the plastic baggie, the thirty-six rocks from the one film canister, and the one hundred, two rocks from the other canister. Mr. Wagner calculated the aggregate weight of these one hundred, fifty-seven rocks of crack cocaine to be 18.6 grams. After separately weighing the rocks of crack cocaine from the plastic baggie and the two film canisters, Mr. Wagner analyzed representative samples from each group of rocks for cocaine content. This analysis indicated the presence of cocaine in each sample. Even though Mr. Wagner failed to actually test all of the one hundred, fifty-seven rocks that had been confiscated from appellee by Detective Fones for cocaine content, it is well accepted that the cocaine content of all of these rocks is extrapolated from Mr. Wagner’s positive testing of representative samples of them. After all, circumstantial evidence in and of itself may establish the identity of the rocks as crack cocaine even if they were not chemically analyzed for their cocaine content. As such, it is more likely than not that all the rocks from the plastic baggie and two film canisters contained cocaine, not just the representative samples which were actually tested for cocaine content. Thus, for purposes of applying the mandatory minimum sentencing provisions of 18 Pa.C.S.A. § 7508 to appellee, it is irrelevant that Mr. Wagner failed to actually analyze at least ten grams worth of the rocks for cocaine content.

Further, common sense and reasonable inferences from the evidence indicate that appellee possessed all of the rocks of crack cocaine with intent to deliver. Appellee had over two hundred dollars on him when he was arrested. The crack cocaine that was found on appellee was in the form of rocks. After being qualified as an expert in drug enforcement, Detective Fones testified that this is the form in which the distribution of crack cocaine commonly occurs. Detective Fones further testified that the street value of these rocks was approximately three thousand, one hundred, forty dollars. Moreover, no drug paraphernalia was found in appellee’s possession by Detective Fones and appellee presented no credible evidence that he had possessed any of the crack cocaine for personal use. Finally, testimony was presented by Mr. Thompson indicating that appellee had fronted him some of the crack cocaine to sell to an unidentified person in the Molly Pitcher Hotel. Consequently, it is more likely than not that all of the crack cocaine confiscated from appellee by Detective Fones was possessed by appellee with intent to deliver.

Based upon the foregoing, we hold that the preponderance of the evidence established that appellee was convicted of possessing at least ten and less than one hundred grams of cocaine with intent to deliver. Therefore, the sentencing court abused its discretion in finding that appellee possessed at least two and less than ten grams of cocaine. As such, it erred in sentencing appellee under 18 Pa.C.S.A. § 7508(a)(3)(i) because sentencing courts lack the authority to impose a sentence less than that which is required by 18 Pa.C.S.A. § 7508. Accordingly, we must vacate appellee’s judgment of sentence and remand to the sentencing court for the imposition of the legislatively mandated sentence of 18 Pa.C.S.A. § 7508(a)(3)(ii) (a minimum term of three years imprisonment and a fine of at least fifteen thousand dollars) upon appellee.

Judgment of sentence vacated; case remanded. Jurisdiction relinquished.

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(30).

      . We note that Mr. Thompson was not an innocent bystander in this case. Mr. Thompson, a drug addict and alcoholic at the time of this incident, testified that he had driven appellee to the Molly Pitcher Hotel in the red Dodge Omni and had left appellee sitting in the car after appellee had fronted him a small amount of crack cocaine to sell to an unidentified person inside the hotel. Mr. Thompson further testified that, instead of selling the cocaine, he had exited the hotel through its back door, walked a few blocks to his house, smoked the cocaine, and then reported appellee to the police. Mr. Thompson admitted that he had planned to deceive appellee in this manner while they had been driving to the Molly Pitcher Hotel.

      . Ten of the nineteen individually wrapped rocks were actually weighed by Mr. Wagner. The total weight of these ten rocks was 1.26 grams. From this weight, Mr. Wagner estimated the total weight of the nineteen rocks.

      . This laboratory report was one of the Commonwealth’s exhibits admitted into evidence at appellee's trial.

      . No further sentence was imposed pursuant to appellee's conviction of possessing cocaine as it merged with his sentence for possessing cocaine with intent to deliver.

      . Indeed, in Commonwealth v. Minott, supra, Judge Cercone noted “that we would consider a requirement that each of the fifty packets [of cocaine] be individually analyzed an onerous and expensive burden and one not necessary for the effective functioning of the judicial process.” Id. at 562, 577 A.2d at 932.

      . At trial, appellee testified that Mr. Thompson, the man who had reported him to the police, had given him the crack cocaine to hold before he had entered the Molly Pitcher Hotel. But, by convicting appellee of both possession of cocaine and possession' of cocaine with intent to deliver, it is apparent that the jury discredited this testimony.