author: HESTER, Judge:

text:
    617 A.2d 790
    Bernard E. GALLAGHER and Mildred B. Gallagher, his wife, Parents and Natural Guardians of Edward P. Gallagher v. HARLEYSVILLE MUTUAL INSURANCE COMPANY, Appellant. Bernard E. GALLAGHER and Mildred B. Gallagher, Parents and Natural Guardians of Edward P. Gallagher, Appellants, v. HARLEYSVILLE MUTUAL INSURANCE CO.
    Superior Court of Pennsylvania.
    Argued March 12, 1992.
    Filed Nov. 19, 1992.

      Alexander Kerr,. Philadelphia, for Harleysville Mut. Ins.
    James J. Riley, III, Pottsville, for Bernard and Mildred Gallagher.
    Before POPOVICH, HUDOCK and HESTER, JJ.
   HESTER, Judge:

Harleysville Mutual Insurance Company appeals from judgment entered following the April 22, 1991 order denying post-trial motions filed following a jury award in favor of Bernard E. and Mildred B. Gallagher, in their capacity as guardians of their son, Edward P. Gallagher. The Gallaghers cross-appeal from an interim order granting a compulsory nonsuit against them on a breach of contract claim. For ease, we refer to Harleysville as appellant and the Gallaghers as appellees until we address the issue raised in the Gallaghers’ cross-appeal. The issues presented in this appeal are: 1) whether a Pennsylvania insurer must provide benefits to a Maryland resident under section 201(b) of the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §§ 1009.101-.701 (repealed) (the “Act”), when the accident occurred in Maryland, which does not have a no-fault plan; 2) whether appellees are entitled to attorney’s fees under the Act; 3) whether the trial court correctly defined for the jury the medical services that are compensable under the Act; and 4) whether the trial court erred in granting a compulsory nonsuit on a contract claim prior to trial.

Edward P. Gallagher, appellees’ son, was injured seriously on October 29, 1977, while a passenger in a truck operated by Robert D. Bair, Jr. Edward was a resident of Maryland, where the accident occurred, and Bair was a resident of Pennsylvania, where his truck was registered. The truck was insured by appellant. Appellant paid in excess of $80,000 in medical benefits to appellees before it decided that the Act did not apply due to the fact that the accident occurred in Maryland and the injured party was a Maryland resident. Appellees, who have since moved to Pennsylvania, instituted this action on February 16, 1983, to compel resumption of medical payments. Appellees’ complaint also contained a count based on a contract allegedly entered into by the parties. Appellant counter claimed for benefits paid prior to termination. The parties filed cross-motions for summary judgment as to appellant’s liability for payment under section 201(b) of the Act. The trial court granted judgment in favor of appellees, and the case was scheduled for a jury trial to determine whether certain medical services being provided to Edward were compensable. On April 21, 1986, prior to hearing or trial, the court, sua sponte, granted a “nonsuit” against appellees as to their contract count.

Jury trial commenced on July 21, 1986. The issue was whether medical services being provided to Edward by Re-Med Recovery Care Center (“Re-Med”) were services necessary for maintenance and support of Edward and thus, noncompensable “custodial care” under the Act or whether the services were rehabilitative and compensable. The jury concluded that the services were not merely for maintenance and support but were rehabilitative. This appeal followed judgment entered on the jury award following denial of post-trial motions.

The provisions of the Act that are relevant to a determination of the first issue presented in this appeal include former section 201(b) of the Act, which provided:

Accident outside this State.—If the accident resulting in injury occurs outside of this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is:
1) an insured; or
2) the driver or other occupant of a secured vehicle.

40 P.S. § 1009.201(b) (repealed) (Purdon’s 1991 Supplement) (emphasis added). Also relevant is former section 110(c), which provided in relevant part:

The basic loss benefits available to any victim or to any survivor of a deceased victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance in effect in the state of domicile of the victim on the date when the motor vehicle accident resulting in injury occurs. If there is no such state no-fault plan in effect or if the victim is not domiciled in any state, then basic loss benefits available to any victim shall be determined pursuant to the provisions of the state no-fault plan for motor vehicle insurance, if any, in effect in the state in which the accident resulting in injury occurs.

40 P.S. § 1009.110(c)(1) (repealed) (Purdon’s 1991 Supplement).

In Ropka v. Government Employees Insurance Co., 347 Pa.Super. 507, 500 A.2d 1171 (1985), we held that Maryland’s legislation does not constitute a “no-fault plan” because it does not restrict the victim’s right to bring a tort action to recover damages for his injuries. Thus, section 110(c) does not apply, and section 201(b), by its terms, allows recovery for Edward.

Attempting to avoid this statutory language, appellant offers the following argument. The Act, appellant notes, “focuses ... on victims of Pennsylvania' accidents.” Appellant’s brief at 12 (emphasis in original). Furthermore, appellant continues, the Act was based upon proposed uniform no-fault legislation that the drafters envisioned would be enacted in every state. If the uniform act had been adopted in every state as planned, section 110(c) would have applied herein, and this action would have been unnecessary. Appellant suggests that to apply section 201(b) to this situation, where the injury occurred outside of the Commonwealth and was sustained by a domiciliary of a state which does not have a no-fault plan, “would vitiate the policy” stated in section 102 of the Act, which is to take care of victims of Pennsylvania accidents.

Appellant’s argument is unrealistic. Section 201(b) clearly covers accidents occurring outside of the Commonwealth. Edward’s state does not have a no-fault plan. We fail to see the relevance of the fact that section 102, which contains the policy statement for the Act, “focuses” on Commonwealth accidents when section 201(b) specifically covers accidents occurring outside of the Commonwealth. Furthermore, every state did not enact a no-fault plan. We cannot premise a holding on envisioned events which did not occur. We also view as irrelevant those cases relied upon by appellant that involve interpretations of other sections of the Act limiting recovery to victims of Pennsylvania accidents. Section 201(b) is clearly designed to provide coverage for victims of out-of-state accidents.

Appellant states that “[t]he fact that some states do not have no-fault plans, however, means that the statute as drafted does not address a situation like [appellees’] situation, where neither the domicile of the victim nor the accident site has a no-fault plan.” Appellant’s brief at 13-14. This argument is not supportable. Section 201(b) covers appellees’ situation by allowing a party injured in an out-of-state accident to recover basic loss benefits against the insurer of the secured vehicle. See Ropka v. Government Employees Insurance Co., supra (since Maryland did not have no-fault plan, Maryland residents could recover under section 201(a) of the Act for an accident occurring in this Commonwealth irrespective of the fact that their insurance contract, written in Maryland, contained no such provision).

Along similar lines, appellant argues that courts interpret the Act as intending to preserve a non-domiciliary’s “recourse to the laws of his domicile. E.g. Swezey v. Home Indemnity Co., 691 F.2d 163, 167 n. 5 (3d Cir.1982).” Appellant’s brief at 14. Appellant fails to acknowledge, however, that in the cited case, the non-domiciliary had recourse to a state no-fault plan. Here, the injured party has no such recourse, as determined in Ropka. He does have recourse to the normal Maryland tort system.

Finally, appellant suggests that “[n]owhere does the Act affirmatively authorize recovery of benefits by domiciliaries of states without no-fault plans who, like Edward Gallagher, are injured outside Pennsylvania’s borders.” Appellant’s brief at 17. Again, we disagree. Section 201(b) does authorize such recovery; it simply fails to affirmatively exclude from recovery victims who are non-residents. Appellant would have us place the bracketed words in the statute:

Accident outside this State.—If the accident resulting in injury occurs outside of this Commonwealth, a victim or a survivor of a deceased victim is entitled to receive basic loss benefits if such victim was or is: ...
1) an insured; or
2) the driver or other occupant of a secured vehicle [unless the occupant is a citizen of another state].

The result advocated by appellant would appear to be precluded by our decision in Ropka. Since the wording of the statute is clear, the letter of the statute cannot be disregarded under a pretext of pursuing its spirit of being primarily concerned with our citizen’s interests. 1 Pa.C.S. § 1921(b). Accordingly, we reject appellant’s interpretation and affirm the trial court’s decision that coverage is provided.

It is of interest to here note that in Greider v. Pennsylvania Assigned Claims Plan, 316 Pa.Super. 146, 462 A.2d 836 (1983), Judge Wieand, writing for this court, held that “basic loss benefits are unavailable where an accident occurs outside the Commonwealth and neither the victim (a passenger), nor the vehicle in which the injury was sustained was insured.” It would appear to follow, therefore, that in the event the vehicle was insured in Pennsylvania, the passenger-victim could collect basic loss benefits for injuries sustained in an accident occurring outside Pennsylvania.

Next, we address the propriety of the trial court’s assessment of attorney’s fees against appellant. The trial court determined that appellant’s refusal of coverage had a reasonable foundation until Ropka was decided and until the jury decided that the medical services being provided to Edward by Re-Med were covered. It held that upon receipt of confirmation of time spent following the jury award on July 24, 1986, it would assess attorney’s fees accordingly. Appellant contends that appellees are not entitled to recover any attorney’s fees under the Act. In this case, we are asked to examine only section 1009.107(3) of the Act to determine whether appellees are entitled to attorney’s fees. That section provided: “If, in any action by a claimant to recover no-fault benefits from the obligor, the court determines that the obligor has denied the claim or any significant part thereof without reasonable foundation, the court may award the claimant’s attorney a reasonable fee based upon actual time expended.” 40 P.S. § 1009.107(3) (repealed) (Purdon’s 1991 Supplement).

We recently interpreted this provision of the Act and concluded that it was intended to punish an insurer who either delays paying no-fault benefits or unreasonably denies a legitimate claim. Freeze v. Donegal Mutual Insurance Co., 412 Pa.Super. 305, 603 A.2d 595 (1992). As a penal provision, we held that the section was to be strictly construed. While an insurer’s denial is no longer reasonable once an appellate court decision fixes its obligation to pay, Rago v. State Farm Mutual Automobile Insurance Co., 355 Pa.Super. 207, 513 A.2d 391 (1986), where the appellate court decision at issue does not address the precise, reasonable basis upon which insurer was denying benefits, attorney’s fees are not warranted until that basis is rejected by the appellate courts. Wingeart v. State Farm Mutual Automobile Insurance Co., 340 Pa.Super. 420, 490 A.2d 849 (1985).

Appellant’s argument is that section 201(b) does not apply because the policy of the Act is to provide for Pennsylvania accidents or Pennsylvania residents, neither of which are at issue herein. While we must reject appellant’s policy argument in light of the wording of the statute, we do not believe that appellant’s position is so unreasonable as to warrant the imposition of attorney’s fees. Furthermore, in Ropka, the accident occurred in Pennsylvania and thus the precise issue presented in this appeal was not decided in that case. Accordingly, we reverse the trial court’s determination that attorney’s fees are to be awarded to appellee.

Appellant next argues that the trial court did not instruct the jury properly on the issue of whether the services rendered by Re-Med to Edward are rehabilitative. Former sections 1009.404 and 1009.405 of the Act outlined the criteria for determining whether an insurer is required to pay for a particular treatment. In relevant part, those provisions stated that the treatment is covered if “it has contributed or will contribute substantially to rehabilitation.” 40 P.S. §§ 1009.-404(b)(2), 1009.405(b)(2) (repealed) (Purdon’s 1991 Supplement). Under section 1009.1Ó3 of the Act, rehabilitative services were defined as “services necessary to reduce disability and to restore the physical, psychological, social and vocational functioning of a victim.” Services that do not reduce disability or restore functioning are custodial in nature and not recoverable under the Act. Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985). The trial court instructed the jury in relevant part:

Under the No Fault Act, a person can recover for costs which qualify as allowable expenses. Allowable expenses are defined under the No Fault Act as the reasonable charges for reasonably needed and used medical and vocational rehabilitative expenses. In this case it is for you to determine what services qualify as allowable expenses under the No Fault Act. In determining whether the costs claimed here are covered by the No Fault Act, you should keep in mind that the act only allows recovery of allowable expenses, that is, those services which qualify as reasonably needed and vocational rehabilitative services.
Services which are custodial in nature are not covered by the Pennsylvania No Fault Motor Vehicle Insurance Act and may not be recovered in this lawsuit. Under the No Fault Insurance Act costs for medical and vocational rehabilitative services are recoverable from the No Fault carrier, Harleysville, in this case if two conditions are met. First, the services provided to the victim must be necessary to reduce his disability and to restore his physical and psychological and social and vocational junction. In addition, in order to qualify as medical and vocational rehabilitative services, the services must be provided in a facility accredited by the responsible governmental agency as being in accordance with applicable requirements and regulations ....

R.R. at 382a-384a (emphasis added).

Appellant argues that the “charge did not enunciate criteria for determining what services constitute ‘rehabilitative services’ clearly enough.” Appellant’s brief at 25. Appellant does not state in what particular the instructions were inadequate nor does it suggest what instruction the trial court should have given. Instead, it argues only that the “inadequacy of the jury charge at issue can best be appreciated by comparing Edward Gallagher’s situation to that of the claimant in Pennsylvania National Mutual Casualty Insurance Co. v. Fertig, 382 Pa.Super. 335, 555 A.2d 208 (1989).” Appellant’s brief at 27. The victim in Fertig was a quadriplegic who was being cared for in a nursing home. In determining that the services were non-compensable custodial care, we stated in that case, “Services which do not reduce the disability of the victim or restore his functioning, being custodial in nature, would not be recoverable under the No-Fault Act....” Id., 382 Pa.Super. at 339, 555 A.2d at 209.

We fail to comprehend appellant’s argument. The charge at issue directly tracked the language of the statute and Fertig. Further, a comparison of the claimant in Fertig and Edward’s situation supports the jury’s determination that the services at issue are recoverable. Edward is not paralyzed and receives services at Re-Med which increase his functioning. Appellant apparently is dissatisfied with the jury’s determination that Edward is receiving services that are recoverable under the Act; however, this determination is supported by the evidence, a fact which appellant does not contest. Appellant is attempting to transform an argument regarding the sufficiency of the evidence into an argument relating to jury instruction. However, the jury instructions were proper under the law in effect at the time.

Appellant argues secondarily that the trial court should have charged the jury that unless the increase in functioning produced by treatment survives removal from the facility, it is not compensable. However, the statute contains no such restriction on recoverability. If the services have or will contribute to rehabilitation, they are covered, regardless of whether rehabilitation survives institutionalization. Furthermore, this argument is moot in light of Drake v. Pennsylvania National Mutual Casualty Insurance Co., supra n. 2.

In their cross-appeal, the Gallaghers argue first that the trial court erred in granting a nonsuit, prior to trial, on count two of their complaint, which sounded in contract. In count two, the Gallaghers sought to recover for certain services Edward received while at home. The Gallaghers alleged that an agreement existed between them and the insurer allowing them to remove Edward from a nursing home for approximately four years, when he was cared for in their home. The cost of this care was $107,200. The Gallaghers argue that Harleysville agreed to pay for these services, which were less than what it would have cost the insurer had Edward gone to an approved facility, such as Re-Med.

The Gallaghers argue that the order was improper because a nonsuit may be entered only after testimony has been taken under Pa.R.Civ.P. 230.1. Harleysville counters that the Gallaghers have waived this argument by failing to file post-trial motions to the compulsory nonsuit, as required by Rule 227.1, which provides, inter alia, that post-trial motions must be filed within ten days after nonsuit is entered. The Gallaghers filed a motion for reconsideration of the order five months after it was entered, following the jury award.

We agree that what the trial court did cannot be characterized as granting a nonsuit, which is entered under Rule 230.1 only after a plaintiffs evidence has been presented to the jury. The trial court’s action is properly characterized as either a summary judgment grant or grant of judgment on the pleadings as to the count in contract. Thus, post-trial motions were not required under Rule 227.1, which provides, inter alia, that such motions may not be filed with respect to orders disposing of motions for judgment on the pleadings or for summary judgment or other proceedings that do not constitute a trial. Since post-trial motions with respect to the order were not allowed, we disagree with Harleysville’s position that the Gallaghers waived this issue by failing to file those motions.

In count two, the Gallaghers made the following allegation about what Harleysville agreed to pay. “The defendant, Harleysville, accepted coverage of this loss and warranted to the plaintiffs that it would pay all medical bills and other economic losses under the policy of insurance in accordance with the Pennsylvania No-Fault Law. A copy of the letter dated July 6, 1978, from Harleysville is attached hereto as Exhibit ‘B’.” Complaint at ¶ 18. Exhibit B indicates, as suggested by the allegations, that Harleysville agreed to pay for medical services covered by its policy, which comports with the requirements of the Act. Construing the allegations of the complaint and the contents of the supporting letter in the light most favorable to the Gallaghers, it is clear that Harleysville agreed to cover any medical services that are compensable under the Act. In light of our Supreme Court’s recent decision in Drake v. Pennsylvania National Mutual Casualty Insurance Co., supra n. 2, we must reverse the order and remand for a determination of whether the services that were provided in the Gallaghers’ home are compensable under the Act. We express no opinion on the matter since the nature of the services for which the Gallaghers seek recovery cannot be ascertained based on the record.

In accordance with the foregoing, the judgment is affirmed in part and reversed and remanded in part. Jurisdiction is relinquished.

      . The Reilly decision has been overruled, as is discussed in more detail in footnote two.

      . Fertig was reversed in Drake v. Pennsylvania National Mutual Casualty Insurance Co., 529 Pa. 44, 601 A.2d 797 (1992). In Drake, our Supreme Court held that custodial services are compensable under section 1009.103 as an allowable expense of a professional medical treatment or care. The issue of whether custodial care is covered as an allowable expense under section 1009.103 was not raised by the Gallaghers, and we have therefore reviewed appellant’s argument that the jury was improperly instructed as to the definition of covered services.


source: Caselaw Access Project

author: HUDOCK, Judge.

license: Public Domain

text:
    617 A.2d 796
    James A. TALIFERRO, Jr., Appellant, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corporation, Raybestos-Manhattan, Inc., Armstrong World Industries, Inc., Amatex Corporation, Celotex Corporation, Eagle-Picher Industries, Inc., Forty-Eight Insulation, Inc., GAF Corporation Garlock, Inc., H.K. Porter Co., Inc., Southern Textile Corporation, Keene Corporation, Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., Pacor, Inc., Pittsburgh Corning Corporation, Unarco Industries, Inc., Crown Cork & Seal Company, Inc., Fibreboard Corporation, Appellees, Nicolet, Inc., Turner & Newall, Ltd., D.A.R. Industrial Products, Inc.
    Superior Court of Pennsylvania.
    Argued Sept. 17, 1992.
    Filed Dec. 9, 1992.

      Steven J. Cooperstein, Philadelphia, for appellants.
    Ira Lefton, Pittsburgh, for Pittsburgh Corning & Fibreboard Corp., appellees.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   HUDOCK, Judge.

James Taliferro (Appellant) appeals from the trial court’s grant of compulsory non-suit to several defendants in an asbestos case. We reverse.

The facts and procedural history were summarized by the trial court as follows:

[Appellant] is a 52 year old present worker at the Philadelphia Naval Shipyard. This case arises from [Appellant’s] occupational exposure to asbestos at the Shipyard during a 14-year period beginning with his hiring in August, 1967, and ending in August, 1981, when he was diagnosed with lung cancer. [Appellant] has also experienced bilateral pleural thickening, for which he also sought damages.
A trial before this Court and a jury began on February 22,1990. On February 26,1990, at the close of [Appellant’s] case, [Appellees][] moved for compulsory nonsuit. Owing to scheduling problems, and by agreement of counsel, some defense testimony was presented while the Court considered this Motion, with the understanding that the testimony would not be considered in the resolution of the Motion.
The Motion was granted, and the jury was discharged on February 27, 1990. Subsequently, [Appellant] pled a Post-Trial Motion to remove the non-suit. After oral argument, the Motion was denied, by Order dated October 4,1991, and docketed October 28, 1991. This timely appeal followed.
According to the evidence, [Appellant] began working at the Philadelphia Naval Shipyard in August of 1967 as a laborer. Over the ensuing 14 years, he continued to perform essentially the same job—general cleanup and removal of debris from ships being constructed, reconstructed, or repaired—albeit under a succession of job titles. Beginning at the age 16, and continuing through this period, [Appellant] admittedly smoked heavily—on average, a pack a day, although some of the medical records admitted into evidence reported that he smoked as little as half a pack a day, while other records claimed that his consumption was closer to two packs a day.
In May of 1981, [Appellant] began to experience severe chest pain accompanied with coughing up blood. A diagnosis of epidemoid cancer of the upper lobe of his right lung followed. The location of the tumor rendered surgical excision impossible, therefore, [sic] a course of radiation and chemotherapy was selected. This treatment was apparently successful, as the tumor was eliminated and, as of the date of trial, no further cancer had been detected in [Appellant’s] body. Concurrently, [Appellant] quit smoking entirely, and has not reacquired the habit since. During his Navy Yard employment, he was exposed to asbestos on almost a daily basis until at least 1976, when asbestos was supposedly-banned at the facility. [Appellant] suggested on cross-examination that he believed that asbestos products continued in use even later, although there was no independent proof of this belief.
According to the evidence, [Appellant] also has pleural thickening in both lungs, however, this thickening is presently asymptomatic. According to [Appellant’s] expert, Dr. Allan Freedman, the thickening is not responsible for any complaints voiced by [Appellant], and is not the cause of the reductions in pulmonary function noted in the course of testing, which Dr. Freedman attributes to the radiation therapy administered.

Trial Court Opinion at pp. 1-3 (footnotes and references to notes of testimony omitted).

Appellant raises the following issues on appeal:

1. Did the court below err in granting a compulsory nonsuit on [Appellant’s] claim for asbestos-related lung cancer?
2. Did the court below err in granting a compulsory nonsuit on [Appellant’s] claim for asbestos-related pleural thickening?

Appellant’s Brief at p. 3. A motion for compulsory non-suit allows a defendant to test the sufficiency of a plaintiffs evidence and may be entered only in cases where it is clear that the plaintiff has not established a cause of action; in making this determination, the plaintiff must be given the benefit of all reasonable inferences arising from the evidence. Hatbob v. Brown, 394 Pa.Super. 234, 575 A.2d 607 (1990). When so viewed, a non-suit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action; it is the duty of the trial court to make this determination prior to the submission of the case to the jury. Id. When this Court reviews the grant of a non-suit, we must resolve all conflicts in the evidence in favor of the party against whom the non-suit was entered. Eisenhauer v. Clock Tower Associates, 399 Pa.Super. 238, 582 A.2d 33 (1990). With these standards in mind, we shall review Appellant’s claims.

Appellant first argues that the trial court erred in ruling that the evidence presented by him was insufficient to raise a jury issue as to his cause of action for asbestos-related lung cancer. The trial court based its ruling on the belief that Appellant’s medical expert had no foundation for his opinion that asbestos exposure was a substantial contributing factor to his lung cancer. Appellant argues that this conclusion was in error because none of the defendants had objected to the expert’s expression of opinion on causation. Appellant claims that the trial court was therefore bound to accept that opinion in ruling on the motion for compulsory non-suit. Alternatively, Appellant then claims that, when Dr. Freedman’s deposition is considered in its entirety, there can be no question concerning the sufficiency of the causation evidence he presented. Appellees argue that Dr. Freedman’s sole basis for his expert testimony regarding causation was based on an epidemiological study which did not discuss the increased risk of contracting lung cancer for a latency period shorter than twenty-five years after exposure and did not address the synergetic effects of asbestos exposure and cigarette smoking. The trial court concurred in Appellees position and, therefore, granted the non-suit. Upon review, we find the grant of non-suit was improper.

Initially, we find no merit to Appellant’s claim that Appellees’ failure to object to Dr. Freedman’s expert testimony renders it sufficient to establish a jury question as to causation. As stated by the trial court, “[t]o so rule would require this Court to equate admissibility with sufficiency.” Trial Court Opinion at p. 6. Appellant’s evidence of causation rested entirely upon the deposition of Dr. Allen Freedman, a board certified specialist in both the pulmonary and critical care subspecialties of internal medicine. On direct examination, Dr. Freedman testified that he has seen people with asbestos-related diseases on numerous occasions over a seven-year period. He further testified that he has treated hundreds of people with asbestos-related diseases and has testified as an expert on prior occasions, for both plaintiff and defendant, in asbestos cases. Asked whether there are baseline or background risks for the development of lung cancer among the non-asbestos exposed, non-cigarette smoking general population in this country, Dr. Freedman responded that based on statistics gathered in this country and abroad, this baseline risk was 11 per 100,000 per year. Dr. Freedman was then asked if there is an increased risk of lung cancer for persons occupationally exposed to asbestos but who are not cigarette smokers. In response, Dr. Freedman, for the first time, cited a study by Selikoff in which over 17,000 insulators in America and Canada were studied over a period of years. Dr. Freedman then stated that Selikoff found a five-fold increase in risk above baseline and that other individuals had found increased risks in the same range depending on the different population groups. Turning next to cigarette smoking, Dr. Freedman responded that a number of studies existed, but, for comparative purposes, he suggested it is best to use Selikoff s study in which he found cigarette smokers who are not exposed to asbestos have a ten-fold increase above baseline of developing lung cancer. Finally, Dr. Freedman was asked if there was an increased risk above the baseline for persons who both smoke cigarettes and who have been occupationally exposed to asbestos. Dr. Freedman responded that the risks were even higher, although risks combine in various ways and interact differently. Once again referring to Selikoffs study, Dr. Freedman stated that the two risks act synergistically, thereby creating a fifty-fold increase in risk of developing lung cancer. Dr. Freedman further opined that after a person stops smoking, the increased risk declines over time until it approaches the baseline between ten and fifteen years. When a person ceases to be exposed to asbestos, there is only a very small decline because the asbestos remains in the body.

Turning to a discussion of Appellant, after completely examining him, his medical and employment history, and his medical and employment records, Dr. Freedman stated:

I summarized a number of impressions; the first with respect to his exposure to asbestos for approximately 20 years, also with respect to his being a cigarette smoker; the next impression is with respect to the right upper lobe epidermoid or squamous cell carcinoma that he had that was found to be metastatic or spread to the mediastinal or central lymph nodes and was characterized as a stage III cancer which is—we have stage I, stage II, and stage III, of course, is the kind of cancer that just can’t be cut out because of where it’s spread and where it’s located.
I concluded that as of the date of the last medical records that I had, his cancer appeared to have responded to therapy and was stable. I believed that to a reasonable degree of medical certainty, which I believe is the phrase in a you [sic] attorneys use, that [Appellant’s] cigarette smoking and his asbestos exposure were substantial contributing factors to his bronchogenic carcinoma.
I concluded that he had bilateral abnormalities of the pleural lining and also a plaque that was seen on his left diaphragm, and that these pleural abnormalities were most likely due to his asbestos exposure, and I also rendered an opinion regarding future risks in [Appellant’s] case.

Deposition of Allen P. Freedman, M.D., 2/8/90, at pp. 80-81. Upon further questioning, Dr. Freedman then reiterated that, to a reasonable degree of medical certainty, asbestos exposure was a substantial contributing factor to both Appellant’s pleural thickening and plaques and his development of lung cancer.

Dr. Freedman further opined, to a reasonable degree of medical certainty, that the restrictions in pulmonary functions and reduction in diffusing capacity experienced by Appellant were caused by his lung cancer and treatment, which caused scarring and reduction in the size of the lung. Once again, Dr. Freedman opined:

I believe to a reasonable degree of medical certainty that [Appellant’s] occupational exposure to asbestos was a substantial contributing factor to the development of his pleural plaques; also, that it was a substantial contributing factor to his development of bronchogenic carcinoma and the complications of bronchogenic carcinoma, including the pulmonary "restrictive pattern with consequent reduction in lung volumes, in diffusing capacity and shortness of breath.

Deposition of Allen P. Freedman, M.D., 2/8/90, at p. 120. When asked if he had an opinion to a reasonable degree of medical certainty as to whether each individual period of asbestos exposure was a substantial contributing factor to the development of pleural thickening and lung cancer, Dr. Freedman responded that he was unable to separate the contributions of the individual periods of exposure, but that each and every individual period of exposure was a substantial contributing factor.

Dr. Freedman was then asked questions regarding Appellant’s increased risk of contracting lung cancer in the future. Obviously, because Appellant had already contacted lung cancer, the actual questioning concerned, for the most part, the increased risk of recurrence. In response, Dr. Freedman testified that Appellant’s risks are actually compounded by asbestos exposure alone, and the heavy exposure he described actually appears to be similar to that of an insulator. Thus, without referring to any specific study, Dr. Freedman stated that Appellánt had a five-fold increased risk. Because Appellant also had a smoking history, Dr. Freedman testified that the interaction of these two risks represented a fifty-fold increase in contracting lung cancer. Dr. Freedman also stated the fact .that, because Appellant already had lung cancer once before, he had a higher incidence of lung cancer recurring. Dr. Freedman also opined that Appellant had at least a 100-fold increased risk of developing mesothelioma.

Upon cross-examination, Dr. Freedman was asked whether the asbestos exposure experienced by the insulators in the Selikoff studies differed from the type of exposure to which Appellant was exposed. Dr. Freedman testified that he could not answer the question with a simple yes or no. He then referred to another Selikoff study of shipyard workers who were found to have half the risk of the insulators above mentioned, or a two and one-half increased risk. Dr. Freedman then stated that Appellant described direct handling of asbestos in addition to the “bystander” exposure detected in the shipyard studies and, for that reason, Appellant was similar to an insulator. Dr. Freedman further stated that Appellant would have had an increased risk of developing lung cancer from cigarette smoking alone and, from his asbestos exposure alone, he would have had a substantially increased risk. He stated that if Appellant had never smoked cigarettes, he would not be at all surprised if Appellant developed lung cancer. The same conclusion would result if Appellant had only smoked cigarettes and had not been exposed to asbestos. Dr. Freedman also agreed that lung cancer found in the upper lobe of the lung was a classic area caused by cigarette smoking and that cancer of the lower lung is associated with asbestos exposure. Dr. Freedman testified that he was aware of other studies by Selikoff which found lower incidences of cancer for those exposed less to asbestos, but noted that these preliminary studies were based on much smaller groups.

Counsel for defense then asked Dr. Freedman about yet another study conducted by Selikoff that incorporated the effects of cigarette smoking on asbestos workers. Counsel misread this particular study. Dr. Freedman then noted that there is conflicting authority as to whether one must develop asbestosis prior to the onset of lung cancer. Dr. Freedman admitted on cross-examination that in other depositions he had testified that the latency period for asbestos-related lung cancer was in the range of twenty years. Dr. Freedman was then asked if he ever testified that the latency period could be as short as fourteen years, the approximate amount of exposure experienced by Appellant. He agreed that the average latency for lung cancer is twenty years. Dr. Freedman explained that twenty years is the time period in which lung cancer most frequently develops, considering all asbestos-related cancers, but he has never ruled out shorter periods of latency. Dr. Freedman further agreed that a 1979 study by Selikoff states that only one incidence of lung cancer occurred before twenty years elapsed from initial exposure. Dr. Freedman again stated that the best data comes from larger studies, that Selikoffs shipyard study shows an increased risk of exposure of two and one-half percent, and that Appellant’s exposure could be treated as an insulator with a five-fold increase in risk.

On further cross-examination, Dr. Freedman agreed that in most cases pleural thickening is not a disease. He further agreed that Appellant’s pleural thickening is not responsible for any of his present medical complaints or reductions in pulmonary functions. Dr. Freedman was then questioned by different defense counsel. Dr. Freedman agreed that the period of Appellant’s asbestos exposure was approximately fourteen years rather than the “approximately twenty” Dr. Freedman had once written in his report. Dr. Freedman was once again asked about the article summarizing Selikoffs findings regarding the over 17,000 insulator workers and agreed that the average latency period found was between twenty to forty years, with most incidences of lung cancer showing up in thirty to forty years. In this study, which does not account for cigarette smoking, the statistics suggest a 2.55 rate of increase to those occupationally exposed between a ten and fourteen year period.

A third defense counsel cross-examined Dr. Freedman. Upon re-direct examination, Appellant’s counsel again referred him to the Selikoff study where Selikoff expected a 2.7 increase in lung cancer for those exposed between ten to fourteen years and found an actual 2.55 increased risk. Dr. Freedman then agreed with a study by Churg and Green which stated that lung cancer cases in asbestos workers did not begin to appear until ten years after exposure and peak at approximately thirty years. Reference was then made to a 1984 study by Auerbach, and others, which stated in asbestos-related cases, cancerous tumors occurred more frequently in the upper parts of the lung than the lower lung. Dr. Freedman again stated that if there was no evidence of a smoking history, he would have no difficulty concluding, given Appellant’s work history and resultant exposure, that Appellant’s lung cancer is attributable exclusively to the asbestos exposure. Dr. Freedman also opined that the period of latency was shortened by the synergistic effect of cigarette smoking and asbestos exposure. Dr. Freedman stated that there are a number of sources to support this conclusion. He then referred to a specific summary article which made the same finding. Dr. Freedman further cited to an article which supports the latency periods previously testified to by him.

Finally, on cross-examination once again, Dr. Freedman agreed that the author in this last article referenced did not state whether cigarette smoking was accounted for in reaching his conclusions. Dr. Freedman also stated that the study regarding the 2.55 increase in shipyard workers was not controlled for smoking. Dr. Freedman also admitted that the article he earlier referenced was basically a summary of findings by Selikoff and another authority, McDonald. Lastly, Dr. Freedman admitted that McDonald’s finding were also based on Selikoff, so that the relevant figures were 2.7 expected increase in risk in a ten to fourteen year period.

The trial court granted Appellees’ motion for compulsory nonsuit on the basis that Dr. Freedman’s causation testimony was based solely on an article which does not support his conclusions. It is readily apparent upon a thorough review of Dr. Freedman’s testimony, as summarized above, that this conclusion is overly simplistic. Although relying on several studies by Selikoff, Dr. Freedman recognized that these studies had to be supplemented by other studies that took into account the effect of cigarette smoking. Thus, it is the synthesis of the various authorities by the testifying expert that becomes most important.

To be admissible, evidence must be both competent and relevant. Moran v. G. & W.H. Corson, Inc., 402 Pa.Super. 101, 586 A.2d 416 (1991), alloc. den., 529 Pa. 650, 602 A.2d 860 (1992). Evidence is relevant, and therefore admissible, if it “logically or reasonably tends to prove or disprove a material fact in issue, tends to make such a fact more or less probable, or affords the basis for or supports a reasonable inference or presumption regarding the existence of a material fact.” Id., at 125, 586 A.2d at 428. Upon a review of the entire record, we conclude that the Selikoff study was relevant in that it provided Dr. Freedman with a basis for his conclusion that Appellant was at an increased risk of contracting lung cancer.

In the absence of his own study, an expert reasonably can turn to medical literature in the relevant field as the basis for reaching an opinion. See Mazur v. Merck & Co., Inc., 742 F.Supp. 239 (E.D.Pa.1990) (expert relied on medical studies discussing possible link between vaccine and disease). The fact that Appellant’s asbestos exposure was not identical to those workers studied by Selikoff, and that that particular Selikoff article did not consider the effects of smoking, is a matter of weight to be assigned the expert’s testimony rather than whether the study can be relied upon in reaching an opinion as to Appellant’s present condition and increased risk. See Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991) (fact that jury was not told how injuries in government studies cited by expert compared to plaintiffs injuries went to weight of the evidence rather than admissibility). As most recently stated by this Court:

In noting the necessity and value of permitting experts to rely on extrajudicial reports and sources, it is important to stress that it is actually the testifying expert’s opinion which is being presented and which is subject to scrutiny, cross-examination and credibility determinations. Hence, it is often the case, as it was here, that experts are questioned concerning whether relied-upon sources are “authoritative” or generally accepted, whether the source material is truly the type ordinarily relied on by similar experts, whether independent or further judgment was brought to bear on particular source material and whether the expert is competent enough to judge the reliability of the sources upon which he relied. These are the safeguards which assure that the experts’ opinions are not being offered based on inherently untrustworthy data or data which is not commonly used by other professionals. If an expert has made faulty assumptions or leaps of judgment in relying on certain sources or in forming conclusions based on those sources, these issues are the proper subject of cross-examination.

Primavera v. Celotex Corp., 415 Pa.Super. 41, 51, 608 A.2d 515, 520-21 (1992). The expert testimony was properly admitted in the present case, leaving the weight to be accorded such testimony open to challenge by cross-examination, defense expert witnesses, and for jury determination. Thus, the grant of compulsory non-suit was improper.

Appellant next claims that the trial court erred in granting a compulsory non-suit as to his asymptomatic pleural thickening. Initially, Appellant claims that the motion was untimely. More specifically, he argues that, while he agreed to allow a defense witness to testify before disposition of the written motion for non-suit submitted by Celotex and joined by Appellees, he did not consent to the consideration of a non-suit motion regarding pleural thickening made during oral argument on the written motion. Both the trial court and Appellees readily dismiss this issue by stating that Appellant agreed to allow this procedure to occur and cannot now be heard to complain. The court below and Appellees miss the point of Appellant’s claim. Appellant is not taking issue with the procedure used; rather, he takes issue with the matters considered during oral argument on the written motion.

The written motion for non-suit dealt only with Appellant’s lung cancer claims. Appellant brought suit to recover damages for his present medical condition, asymptomatic pleural thickening, prior contraction of lung cancer, and the increased risk and fear of the recurrence of lung cancer. The trial court, by considering both motions was able to, and did in fact, dismiss Appellant’s entire cause of action. This was not contemplated in the written motion for compulsory non-suit. However, we need not consider the effect of the failure to raise the non-suit regarding pleural thickening at the same time as the non-suit for lung cancer, because we find that the trial court erred in granting non-suit as to Appellant’s pleural thickening claim.

In Pennsylvania, a legal injury occurs when there is “damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). In Doe v. Johns-Manville Corporation, 324 Pa.Super. 469, 471 A.2d 1252 (1984), an en banc panel of this Court, relying on the definition of injury in Ayers v. Morgan, supra, held that asymptomatic pleural thickening constituted a legal injury and, therefore, upon discovery of same, the statute of limitations began to run on any action to recover damages for that condition and subsequent, related conditions. In Manzi v. H.K. Porter Company, 402 Pa.Super. 595, 587 A.2d 778 (1991), the trial court submitted a special interrogatory to the jury to determine whether Manzi’s pleural thickening was a compensable injury and, if they decided that it was not such, the trial court instructed the jury that Manzi would be able to return to court should he develop a subsequent disease. While this instruction seemingly contradicts the traditional notion that Pennsylvania is a one disease/one injury state, a panel of this Court determined that “pleural thickening ... has never been defined as a compensable injury as a matter of law in Pennsylvania,” Id., at 599, 587 A.2d at 780, and “no appellate court in this Commonwealth has treated a non-compensable condition as an injury.” Id., at 602, 587 A.2d at 781. Thus, the Manzi panel reasoned that, because no injury was found, the trial court’s instruction was consistent with Pennsylvania law.

The above-cited statements in Manzi were based on the fact that a jury determined that Manzi’s pleural thickening was not compensable, not on the basis that it was not compensable as a matter of law. Indeed, the Manzi panel stated, “[w]hether a condition such a pleural thickening is an injury entitling the plaintiff to damages is a factual question for the jury.” Id., at 598, 587 A.2d at 779. Finally, in a recent en banc panel decision, this Court found that Pennsylvania should join the majority of sister states and become a “two-disease” state in regard to asbestos litigation. This means that should the plaintiff develop a subsequent disease, he or she can bring a second lawsuit. The panel then stated that:

In reaching this conclusion [that an asbestos plaintiff may assert, in a second lawsuit, a claim for a distinct, separate disease if and when it develops at a later time] we have not adopted the argument that asymptomatic pleural thickening is insufficient injury, as a matter of law, to support a cause of action. In Pennsylvania, the Supreme Court has said that “injury is done when the act heralding a possible tort inflicts a damage which is physically objective and ascertainable.” Ayers v. Morgan, 397 Pa. 282, 290, 154 A.2d 788, 792 (1959). See, e.g.: Manzi v. H.K. Porter Co., supra [402 Pa.Super.] at 598, 587 A.2d at 779; Pounds v. Lehman, 384 Pa.Super. 358, 361, 558 A.2d 872, 873 (1989); Corbett v. Weisband, 380 Pa.Super. 292, 309, 551 A.2d 1059, 1068 (1988); Bickford v. Joson, 368 Pa.Super. 211, 214, 533 A.2d 1029, 1031 (1987); Groover v. Riddle Memorial Hospital, 357 Pa.Super. 420, 428, 516 A.2d 53, 57 (1986). The physiological changes evidenced by pleural thickening are a clear indication that damage which is objective and ascertainable has occurred to tissues in the thoracic cavity. Hence, we conclude that pleural thickening, even when asymptomatic, is an injury which gives rise to a cause of action.

Marinari v. Asbestos Corporation, Ltd., 417 Pa.Super. 440, 612 A.2d 1021 (1992) (en banc). Given this summary of the current law, we find that whether Appellant’s asymptomatic pleural thickening is a compensable injury is a question proper for jury determination. The grant of non-suit as to this claim was, therefore, also improper.

Order reversed. The matter is remanded to the trial court for proceedings consistent with this Opinion. Jurisdiction relinquished.

      . At the time of trial, only four non-bankrupt defendants had not reached a settlement with Appellant. Of these four, H.K. Porter Co., Inc., and Celotex Corporation filed for bankruptcy while post-trial motions were pending. These two defendants were therefore severed from the case, leaving Fibreboard Corporation and Pittsburgh-Corning as the only remaining defendants. All references to Appellees in this memorandum are to these two remaining defendants.

      . Dr, Freedman did not state this was the same study by Selikoff that he earlier referenced.

      . As shall be discussed infra, Dr. Freedman also discussed the increased risk of Appellant contracting mesothelioma.

      . Other studies by Selikoff consider the effect of smoking and exposure to asbestos.

      . Appellees argue that this Court should follow the lead of a number of our sister jurisdictions and find that epidemiological studies, such as that prepared by Selikoff and Hammond in the present case, are not competent evidence of the increased risk of any particular individual. For the reasons stated above, we decline to reach such a conclusion.
      It is also true that this Court can affirm the action of the trial court for a reason different than that stated or found by the trial court. Soloski v. Hetrick, 396 Pa.Super. 140, 578 A.2d 445 (1990). Appellees argue that non-suit as to Appellant’s lung cancer claims was also appropriate because Dr. Freedman’s deposition testimony could not establish "but for” causation with regard to asbestos exposure and his development of lung cancer. We reject this claim also, for, as indicated above, Dr. Freedman opined that the lung cancer would have developed even absent the smoking history of Appellant.

      . Generally, a motion for non-suit cannot be granted once a defendant has offered evidence. However, if a plaintiff waives operation of the general rule and agrees to defer the disposition of the motion until after the defense evidence is heard, this Court will consider if "plaintiff's evidence alone was sufficient to establish its claim.” Target Sportswear v. Clearfield Foundation, 327 Pa.Super. 1, 10, 474 A.2d 1142, 1147 (1984).

      . Appellees also mention the fact that Appellant is seeking recovery for an increased fear of cancer recurring or contracting an additional cancer. Although fear is a subjective concept, this Court has, in the past, allowed for such recovery. Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 539 A.2d 871 (1988); Doe v. Johns-Manville Corp., supra.


author: DEL SOLE, Judge:

text:
    617 A.2d 805
    COMMONWEALTH of Pennsylvania v. Robert Thomas NAUSS, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 16, 1992.
    Filed Dec. 9, 1992.

      Michael P. Gottlieb, Norristown, for appellant.
    Patricia E. Coonahan, Asst. Dist. Atty., Cheltenham, for Com., appellee.
    Before McEWEN, DEL SOLE and HUDOCK, JJ.
   DEL SOLE, Judge:

Appellant, who was serving a life sentence for a first degree murder conviction, takes this appeal from an additional sentence imposed after he was subsequently convicted on charges of escape. Three issues are raised in this appeal, each of which we find to be meritless.

Initially Appellant contends that the criminal complaint charging him with escape and conspiracy was invalid since it was executed by a correctional officer and not a police officer. In support of his position Appellant refers to Pennsylvania Rule of Criminal Procedure 133, which requires the approval of an attorney for the Commonwealth whenever the affiant of a complaint “is not a law enforcement officer.” We reject Appellant’s claim, however, because we find that this correctional officer was authorized as a law enforcement officer to file a complaint against Appellant.

The term “law enforcement officer” is defined in Pa.R.Crim. P., Rule 3, as “any person who is by law given the power to enforce the law when acting within the scope of that person’s employment.” Lieutenant Ewing, who executed the complaint, was acting within the scope of his employment as a correctional officer, when he filed the criminal complaint against Appellant. The powers of a correctional officer, such as Lieutenant Ewing, are set forth in 61 P.S. § 409.1. Therein it provides:

All wardens, deputy wardens, keepers, guards, turn keys and matrons shall have, and may exercise the power of peace officers in the performance of their duties generally in guarding, protecting and delivering prisoners, in protecting the property in interest of the county and in capturing and returning the prisoners they may have, that may have escaped.
61 P.S. § 409.1

A peace officer is defined in 18 P.C.S.A. § 501 as: “[a]ny person who by virtue of his office or public employment is vested by law with a duty to make arrests for offenses.” Since Lieutenant Ewing was authorized to exercise the powers of a peace officer relating to Appellants escape from the correctional facility, and because a peace officer’s duties include the power to make arrests, we conclude that Officer Ewing was authorized as a law enforcement officer to execute the complaint charging Appellant with criminal conspiracy and escape.

Appellant also contends that he was denied due process of law because the prosecution for the offense was not commenced within two years after it was committed as required in 42 P.A.C.S.A. § 5552(a). Appellant further argues that had the Commonwealth wished to toll the statute of limitations due to his absence from the Commonwealth it was required to allege such an exception in the indictment. The weakness of Appellant’s claim rests with the fact that his prosecution was timely commenced negating any need for an extension of time. Appellant was discovered missing from his cell on November 17, 1983. The very next day a criminal complaint was filed and an arrest warrant was signed. Subsection (e) of 42 Pa.C.S.A. § 5552 details when a prosecution will be deemed commenced and states:

(e) Commencement of prosecution.—Except as otherwise provided by general rule adopted pursuant to section 5503 (relating to commencement of matters), a prosecution is commenced either when an indictment is found or an information under section 8931(b) (relating to indictment and information) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without unreasonable delay.

42 Pa.C.S.A. § 5552(e).

Where the warrant for Appellant’s arrest was filed the day after he was discovered to have escaped from a correetional institution, we find the prosecution for this crime was timely commenced. The fact that Appellant was not apprehended, detained and brought to trial following the filing of Bills of Information until many years later, is irrelevant to a decision on this matter in this case because the arrest warrant was executed without unreasonable delay.

Lastly Appellant contends that the trial court erred in denying his motion to dismiss pursuant to Rule 1100. It is not disputed that Appellant was tried within 365 days of his arrest, as now required under Pa.R.Crim.P., Rule 1100; however, Appellant submits that the 180 day limitation which was set forth in the old Rule 1100 is applicable to this offense which was committed on November 17, 1983. Because he was not tried until approximately seven years later, Appellant argues that his motion to dismiss should have been granted.

In speaking to the applicability of the amended speedy trial rule found in Rule 1100, this court in Commonwealth v. Palmer, 384 Pa.Super. 379, 558 A.2d 882 (1989), remarked that “[t]he longer period [contained in the new rule, effective December 31, 1987] became applicable immediately upon its effective date in all cases where the period established by the prior rule had not expired.” Id. at 383, 558 A.2d at 884. Although Appellant argues that the 180 day period expired on May 15, 1984 prior to the effective date of the new rule, the Commonwealth counters this argument by noting that after the complaint was filed Appellant’s whereabouts were unknown until he was apprehended on October 31, 1990. Because an exclusion was allowed for the period of time in which a defendant could not be apprehended due to the fact that his whereabouts were unknown despite due diligence by the police, Pa.R.Crim.P., Rule 1100(d)(1) now (c)(1), the period established under the old rule had not expired when the new rule became effective in 1987. Any dispute raised by Appellant regarding the Commonwealth’s demonstration of due diligence is waived since it was not raised before the trial court and no allegations of prejudice have been made. See trial court opinion at 6.

We thus agree with the Commonwealth that Appellant’s motion to dismiss was properly denied since Appellant was tried within 365 days as provided in the new Rule 1100. We specifically reject Appellant’s claim that his motion should have been granted even under the amended Rule 1100 because he was incarcerated, rather than released on bail and not tried within 180 days. First, Appellant never petitioned for bail, Pa.R.Crim.P., Rule 1100(e), and second he would not have been released even if he had petitioned since he was serving a life sentence on a separate charge.

For the reasons stated, we find Appellant’s claims to be meritless and affirm the Judgment of Sentence.

Judgment of Sentence affirmed.


author: JOHNSON, Judge.

text:
    617 A.2d 808
    Michael HATCHER, Appellant, v. TRAVELERS INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Aug. 25, 1992.
    Filed Dec. 11, 1992.

      Quentin Brooks, Philadelphia, for appellant.
    Thomas P. Muldoon, Philadelphia, for appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge.

Michael Hatcher appeals from the grant of summary judgment for Travelers Insurance Company (Travelers) in his action for damages under the Assigned Claims Plan.

The sole question presented for appellate review is whether § 1702 of the Motor Vehicle Financial Responsibility Law (MVFRL), 75 Pa.C.S. § 1701 et seq., compels the production of the police accident report involving the injured claimant and the unidentified/uninsured vehicle in order for the claimant to avoid summary judgment when proceeding with a claim through the Assigned Claims Plan. We conclude that the trial court committed an error of law in interpreting § 1702 as compelling the production of a copy of the police accident report. We reverse and remand.

This Court’s scope of review of a grant of summary judgment is plenary. Briggs v. Erie Insurance Group, 406 Pa.Super. 560, 594 A.2d 761 (1991). Applying the same standards as the trial court, we must accept as true all well-pleaded facts in the non-moving party’s pleadings, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom. Id. Summary judgment may only be granted if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. Pa.R.C.P. 1035(b). A grant of summary judgment will be overturned only if there has been an error of law or a clear abuse of discretion. Tonkovic v. State Farm Mutual Automobile Insurance Co., 407 Pa.Super. 522, 595 A.2d 1269 (1991).

Hatcher was the non-moving party. Accordingly, we must accept as true all well-pleaded facts in his pleadings, and give him the benefit of all reasonable inferences. Hatcher maintains that he was walking with an acquaintance in Philadelphia. While they were waiting for a traffic light to change in their favor, an unidentified vehicle attempting a turn slid on the ice and struck Hatcher on his left side. The car sped off before either Hatcher or his friend could record the license number.

Hatcher, with his friend’s assistance, sought immediate medical treatment at Germantown Hospital, located several blocks away. Hatcher was visited at the hospital by two Philadelphia police officers from the 14th police district. Hatcher reported the accident to the officers, describing the vehicle, how it struck him, and in what direction it proceeded afterwards. Hatcher had no further communication with the Philadelphia Police.

Hatcher brought an action for damages pursuant to the Assigned Claims Plan (Plan), 75 Pa.C.S. §§ 1751-1757 (part of the MVFRL), against Travelers, the designated carrier. The claim was referred to arbitration, wherein Hatcher was awarded $15,000.00. Travelers appealed the arbitration award to the trial court.

Travelers subsequently filed a Motion for Summary Judgment. The Motion stated, inter alia, that: (1) The purpose of the MVFRL, § 1702, is to prevent fraudulent claims from being presented to insurers for first party and uninsured benefits; (2) Section 1702 applies to Hatcher’s claim under the Plan; (3) Hatcher had a duty to comply with § 1702 and report the incident to the police; (4) Hatcher had not been able to locate a copy of the police report regarding this incident, and, thus, had not provided Travelers with a copy of the police report; (5) Travelers had used the services of an investigator in an effort to locate the police report, which failed to locate a copy of the police report; and, (6) Because Hatcher had failed to comply with the reporting requirement of § 1702, as interpreted by Gallagher v. Pennsylvania Financial Responsibility Assigned Claims Plan, Slip Op. No. 2537, Court of Common Pleas (Philadelphia, June 16, 1988), and Jackson v. Pennsylvania Financial Responsibility Assigned Claims Plan, 394 Pa.Super. 274, 575 A.2d 626 (1990), Hatcher failed to state a claim upon which relief may be granted. Travelers’ Motion for Summary Judgment, ¶¶ 1-10.

The trial court granted the Motion, stating that “[n]o evidence exists that [Hatcher] ever reported the accident to the police. Upon investigation no such record of an accident exists in police files and the plaintiff has been unable to produce a copy of said report.” Opinion and Order, October 24, 1991. However, sufficient evidence exists, in the form of Hatcher’s affidavit that the accident was reported to the police, to establish this as a genuine issue of material fact. Only if the police report must be produced in order to establish a prima facie case can the grant of summary judgment be upheld; otherwise, the trial court has committed an error of law.

We disagree with the trial court’s expansive interpretation of § 1702. Regarding the interpretation of this statute, the intent of the legislature controls. As set forth in 1 Pa.C.S. § 1921:

§ 1921. Legislative intent controls

(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.

The statute in question, 75 Pa.C.S. § 1702, provides the definition of an uninsured motor vehicle for purposes of the MVFRL, and is thus applicable in any action against the Plan. Section 1702 states, in pertinent part:

“Uninsured motor vehicle.” Any of the following:
(3) An unidentified motor vehicle that causes an accident resulting in injury provided the accident is reported to the police or proper governmental authority and the claimant notifies his insurer within 30 days, or as soon as practicable thereafter, that the claimant or his legal representative has a legal action arising out of the accident.

These words are clear and free from all ambiguity: an unidentified motor vehicle that causes an accident resulting in injury is an uninsured motor vehicle for purposes of the MVFRL only if the accident is reported to the police (or proper governmental authority). The statute does not require that a police report be produced by the claimant. Neither does the statute require the police report be produced; it only requires that the accident involving the unidentified vehicle be reported to the police. We will not expand the meaning of § 1702 without clear guidance from the General Assembly.

Travelers and the trial court based their position upon Jackson v. Pennsylvania Financial Responsibility Assigned Claims Plan, supra. In Jackson, this Court focused on the admission that the accident had never been reported to the police. We concluded that, given the clear and unambiguous meaning of § 1702, an unidentified vehicle can qualify as an uninsured vehicle only if the accident involving the unidentified vehicle has been reported to the police. Jackson, at 276, 575 A.2d at 627. In Gallagher it also was admitted that no police report had been filed. However, Gallagher, being an unpublished trial court opinion, has no precedential value for this Court. Turner v. May Corp., 285 Pa.Super. 241, 427 A.2d 203 (1981).

Nonetheless, both cases are distinctly different from the issue presented by Hatcher, the claimant on this appeal. Here, Hatcher has supplied an affidavit, in response to the Motion, stating that he reported the accident involving the unidentified car to two Philadelphia Police Department officers while still at Germantown Hospital. There is no basis in § 1702 for the leap the trial court makes from a claimant having to report the accident to now having to produce the accident report in order to avoid summary judgment.

This Court has previously stated that, in interpreting the Uninsured Motorist Act, and the No-Fault Act (repealed and replaced by the MVFRL), the statutes are to be construed liberally. Brader v. Nationwide Mutual Insurance Co., 270 Pa.Super. 258, 264, 411 A.2d 516, 519 (1979). Our Supreme Court stated in Harleysville Mutual Casualty Co. v. Bluming, 429 Pa. 389, 395, 241 A.2d 112, 115 (1968), that “[t]he purpose of the uninsured motorist law is to provide protection to innocent victims of irresponsible drivers.” The MVFRL’s chief policy goal is the establishment of a liberally compensatory scheme of uninsured and underinsured motorist protection. Ronca, Sloane and Mundy, Pennsylvania Motor Vehicle Insurance: An Analysis of the Financial Responsibility Law, (1986), p. 96. The liberal compensatory intent of the Uninsured Motorist Act is preserved, if not strengthened, in the MVFRL, because the MVFRL has essentially adopted the language of the Uninsured Motorist Act as to the purpose of uninsured motorist coverage. The MVFRL states, in pertinent part:

Uninsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of uninsured vehicles.

75 Pa.C.S. § 1731(b).

Accordingly, we cannot conclude that requiring the claimant to produce the police accident report is in accord with the legislature’s chief policy goal of establishing a liberally compensatory scheme. This Court is constrained to conclude that § 1702, in conjunction with the chief policy goal of establishing a liberally compensatory scheme and the purpose set forth in § 1731(b), requires only that a claimant report the accident to the police, and nothing more.

As there is no case law regarding whether a written report is required, we have looked to other sources to supplement our research. We find the text in the Corpus Juris Secundum instructive as to the question of whether a written report is required. 61A C.J.S. Motor Vehicles § 563.12 (1970 & Supp. 1992). This section concerns recovery against state indemnity funds or corporations for injuries suffered in hit-and-run cases where the offending motorist is unidentified or unknown, and recovery is predicated upon compliance with certain conditions fixed by statute, including reporting of the accident to certain designated authorities. Specifically, it states:

Report to police or other authorities. Under some regulations, report of the hit-and-run accident to the police department, within a specified time thereof, is made a condition precedent to relief. Ordinarily, what the injured person reported to the police concerning the occurrence of an automobile accident, claimed to have involved a hit-and-run automobile, is determinative of the question of compliance with the condition imposed by statute or required policy endorsement that the claimant report the accident. However, the failure by police authorities to record the report of a hit-and-run accident by the party seeking recovery does not invalidate an otherwise proper claim based on a report to the police.

Id. at § 563.12(a) (footnotes omitted).

This principle is followed in a series of cases from New York. New York had enacted the Motor Vehicle Accident Indemnification Corporation statute (MVAIC), N.Y.Ins. Law § 600 et seq. (now found at N.Y.Ins. Law § 5201 et seq. (Consol. 1985)), which is essentially similar to our MVFRL and its Assigned Claims Plan. The purpose of the legislature in enacting MVAIC was to afford to the injured person the same protection as he would have if the tortfeasor was insured. Gordon v. Motor Vehicle Accident Indemnification Corp., 90 Misc.2d 382, 394 N.Y.S.2d 509 (1976). As with our MVFRL, the MVAIC must be afforded a liberal construction in order to accomplish the protection sought to be given. Id.

When a person is injured by an unidentified vehicle, e.g., a hit-and-run, he files an action for damages against MVAIC. Id.; see also Petition of Casanova, 36 Misc.2d 489, 232 N.Y.S.2d 713 (1962). Under the New York statute, a claimant must file a report within 24 hours, or as soon as reasonably possible, with the police or other designated authority. N.Y.Ins Law § 608 (now N.Y.Ins. Law § 5208); Casanova, supra; Gordon, supra. Consistent with our holding in Jackson, the New York courts have found that failure by a claimant to comply with the reporting provision acts as a bar to a MVAIC claim.

In Casanova, though the claimant averred that he had reported the accident to the police within 24 hours, no corroboration of the alleged report appeared in the police department records. The New York court held that the statute did not require more of a claimant than to report the accident, and the failure of the police to record the report did not invalidate an otherwise proper claim. Id. Subsequently, in Gordon, after the accident the claimant went to a hospital for treatment, remained there for several hours, and then went home. The following day, he reported the accident from a telephone booth by dialing the police number 911. The defendant, MVAIC, was unable to ascertain if there was a record of the call. The New York court found that the claimant had complied with the reporting provisions of the statute, and granted leave for Gordon to proceed with his claim against MVAIC.

We find these cases persuasive as regarding this appeal. The chief policy goal of the General Assembly, in enacting the MVFRL, is to establish a liberally compensatory scheme, which is similar to the goal of the New York statute. Consequently, a liberal construction is mandated to accomplish the protection our legislature sought to create. Additionally, the reason for not requiring production of the accident report is based upon good common sense. A report may be incorrectly filed, lost, or misplaced. With the advent of computerization, it can be inadvertently destroyed by a single, misplaced keystroke. Though a claimant may report the incident, the police may not have filed a written report because of a superceding emergency, lack of diligence, or any number of other reasons.

Consequently, we conclude that the failure of the defendant insurance company to find a- police report, or the lack of a claimant to provide a copy of the police report, should not preclude the claimant from proceeding with his claim when sufficient evidence to otherwise prevent summary judgment has been introduced to indicate that the accident has been reported. In conjunction with the purposes of the MVFRL, this is a question of fact for the factfinder to decide. We have sufficient confidence in our jurisprudential system to believe a correct determination will be made by the factfinder as to whether the accident, in compliance with § 1702, has been reported.

Accordingly, we overturn the grant of summary judgment in this case, concluding that the trial court has made an error of law.

The order of the trial court is vacated and the case is remanded for further proceedings. Jurisdiction relinquished.


author: HOFFMAN, Judge.

text:
    617 A.2d 812
    COMMONWEALTH of Pennsylvania v. Pedro TORRES, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed Dec. 17, 1992.

      Denise L. Marley, Asst. Public Defender, Doylestown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge.

This is an appeal from judgment of sentence entered January 2, 1992, for driving under the influence, possession of a controlled substance with intent to deliver, possession of a controlled substance, and possession of drug paraphernalia. On appeal, appellant challenges the sufficiency of the evidence to support his convictions for possession of a controlled substance with intent to deliver, and possession of drug paraphernalia. For the reasons that follow, we affirm.

On January 10, 1991, the appellant was charged with possession with intent to deliver a controlled substance, possession of a controlled substance, possession of drug paraphernalia, and driving under the influence. On May 14, 1991, a suppression hearing was held and the court denied defendant’s motion to suppress the evidence discovered in his car. On the same day a non-jury trial was held and defendant was found guilty of all charges. Defendant filed timely post-verdict motions which were denied. On January 2, appellant was sentenced to a term of imprisonment of not less than three nor more than six years in a state correctional facility. This timely appeal followed.

Appellant first contends that the evidence is insufficient to support his conviction for possession with intent to deliver cocaine. Specifically, he argues that the quantity and manner of packaging of the drugs in the instant case is insufficient to prove guilt beyond a reasonable doubt. We disagree, and accordingly affirm.

The test for reviewing a sufficiency of the evidence claim is well settled:

[WJhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt.... This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989).

Section 780-113(a)(30) of the Health and Safety Code, 35 P.S., states:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:
(30) Except as authorized by this act, the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

In order to be convicted under 35 P.S. § 780-113(a)(30) of possession with intent to deliver, the Commonwealth must prove that that appellant “both possessed the controlled substance and had an intent to deliver that substance.” Commonwealth v. Parsons, 391 Pa.Super. 273, 283, 570 A.2d 1328, 1334 (1990), (citing 35 P.S. § 780-113(a)(30) (Purdon Supp. 1989), Commonwealth v. Davis, 331 Pa.Super. 285, 302-304, 480 A.2d 1035, 1044 (1984)). In the instant case appellant admits that he possessed the cocaine. N.T., 5/14/92 at 50-51. Appellant contends, however, that the Commonwealth has failed to establish that he had intent to deliver the cocaine.

When examining whether a controlled substance was possessed with intent to deliver, the court must consider all of the facts and circumstances surrounding the possession of the substance. Commonwealth v. Robinson, 399 Pa.Super. 199, 205, 582 A.2d 14, 17 (1990) allocatur denied, 528 Pa. 629, 598 A.2d 282 (1991); Commonwealth v. Ariondo, 397 Pa.Super. 364, 383-384, 580 A.2d 341, 350-352 (1990) allocatur denied 527 Pa. 628, 592 A.2d 1296 (1991). Additionally, the Commonwealth may establish the elements of a crime entirely by circumstantial evidence. Commonwealth v. Ramos, 392 Pa.Super. 583, 592-593, 573 A.2d 1027, 1032, allocatur denied 527 Pa. 602, 589 A.2d 692 (1990). Thus, possession with intent to deliver can be inferred from the quantity of the drugs possessed and other surrounding circumstances, such as lack of paraphernalia for consumption. Robinson, at 205, 582 A.2d at 17.

In the instant case the Commonwealth established the following relevant facts. Appellant was pulled over by a Officer Wayne Apice for traveling 45 miles per hour in a 25 mile per hour zone. Appellant was the sole occupant of his vehicle. Appellant was arrested for driving under the influence after Officer Apice detected a strong odor of alcohol on appellant’s breath and appellant failed several field sobriety tests. During an inventory search of appellant’s vehicle, officer Apice discovered 4.63 grams of cocaine, which were individually wrapped into seventeen packets, in a leather pouch in appellant’s glove compartment. Each packet weighed approximately .27 grams, and was wrapped in the corners cut from sandwich bags that were secured with a blue tie. Officer Apice also found a clear plastic bag containing three unopened boxes of plastic sandwich bags on the backseat. Officer Apice did not discover any drug paraphernalia commonly associated with the consumption of cocaine. Finally, two-hundred and thirty-six dollars in small denominations were discovered on appellant’s person.

Additionally, the Commonwealth presented the testimony of expert witness police officer Christopher Barry. Officer Barry testified that in his opinion the above mentioned facts indicated that appellant possessed the cocaine with intent to deliver, rather than for his own personal use.

Viewing this evidence in the light most favorable to the Commonwealth, we believe that the trier of fact could conclude that appellant possessed the cocaine with intent to deliver. Appellant’s reliance on Commonwealth v. Smagala, 383 Pa.Super. 466, 557 A.2d 347 (1989); Commonwealth v. Bagley, 296 Pa.Super. 43, 442 A.2d 287 (1982); Commonwealth v. Pagan, 315 Pa.Super. 7, 461 A.2d 321; and Commonwealth v. Gill, 490 Pa. 1, 415 A.2d 2 (1980) is misplaced. Each of these cases is factually distinguishable from the instant case. In both Smagala and Gill, unlike the instant case, the appellants possessed use paraphernalia, which indicated an intent to consume rather than distribute the controlled substances involved. Additionally in Bagley, expert testimony was not presented, as in the instant case, concerning the appellant’s intent to deliver the controlled substance. Finally, in Pagan, the appellant possessed only a small amount of marijuana; no testimony was presented by the Commonwealth as to how this amount was consistent with intent to deliver; and only ambiguous evidence of paraphernalia was presented.

The present case is more analogous to Robinson. In Robinson, after the appellant was pulled over for speeding, 38 vials of crack cocaine were found in a plastic bag that appellant attempted to throw into the backseat of his automobile. No use paraphernalia was found on appellant or in his automobile. The Commonwealth presented testimony of the arresting officer as to these facts as well as testimony from an expert witness. The expert witness stated that from the above mentioned facts, in his opinion, the appellant possessed the cocaine with intent to deliver. This court stated that the evidence was sufficient to support appellant’s conviction. In the instant case, the evidence was equivalent to that presented in the Robinson case, thus we conclude that the evidence was sufficient to support appellant’s conviction for possession with intent to deliver.

Appellant next contends that there was insufficient evidence to support his conviction for possession of drug paraphernalia. Specifically, he argues, that three unopened boxes of sandwich bags are not drug paraphernalia, even if found within the same automobile where seventeen packets of cocaine wrapped in the end of sandwich bags was also found. We disagree, and accordingly affirm.

35 P.S. § 780—113(a)(32) provides that the following activities are prohibited:

(32) The use of, or possession with intent to use, drug paraphernalia for the purpose of planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packing, repacking, storing, containing, concealing, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of this act.

The term drug paraphernalia is defined in 35 P.S. § 780-102(b)(9) to include among other items:

(9) Capsules, balloons, envelopes and other containers used, intended for use or designed for use in packaging small quantities of controlled substances.

Thus, it is clear that ordinary packaging material can be drug paraphernalia. However, it is also true, that many items such as envelopes and balloons, etc., have uses which are entirely unrelated to illegal drug activity. 35 P.S. § 780-102 therefore provides guidance as to factors to be considered when determining whether an item is drug paraphernalia. The thrust of these considerations, is that the Commonwealth must establish that the items possessed, were used or intended to be used with a controlled substance. This burden may be met by the Commonwealth through circumstantial evidence. Ramos, at 593, 573 A.2d at 1032.

In the instant ease the evidence was sufficient to establish that appellant possessed drag paraphernalia. Three boxes of sandwich bags were found in appellant’s backseat. Seventeen packets of cocaine were found in appellant’s glove compartment. These packets consisted of cocaine wrapped in the corners of sandwich bags.

The Commonwealth then presented the expert testimony of officer Barry who testified that as the sandwich bags were similar to the material used to package the cocaine, he believed these sandwich bags were additional drug packaging material. N.T. at 43.

Viewing this evidence in the light most favorable to the Commonwealth as verdict winner, we believe the Commonwealth presented sufficient evidence to find appellant guilty of possession of drag paraphernalia.

For the foregoing reasons we find that there was sufficient evidence to allow the trier of fact to conclude that appellant possessed cocaine with intent to deliver and possessed drug paraphernalia. Accordingly, we affirm the judgment of sentence.

Affirmed.

      . 75 Pa.C.S.A. § 3731.

      . 35 P.S. § 780-113(a)(30).

      . 35 P.S. § 780-113(a)(16).

      . 35 P.S. § 780-113(a)(32).

      . In determining whether an object is drug paraphernalia, a court or other authority should consider, in addition to all other logically relevant factors, statements by an owner or by anyone in control of the object concerning its use, prior convictions, if any, of an owner, or of anyone in control of the object, under any State or Federal law relating to any controlled substance, the proximity of the object in time and space, to a direct violation of this act, the proximity of the object to controlled substances, the existence of any residue of controlled substances on the object, ... the existence and scope of legitimate uses for the object in the community, and expert testimony concerning its use. 35 P.S. § 780-102(b).


author: TAMILIA, Judge.

text:
    617 A.2d 816
    COMMONWEALTH of Pennsylvania v. Wayne Patrick MOORE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 14, 1992.
    Filed Dec. 17, 1992.

      William Seger, Johnstown, for appellant.
    David J. Flower, Dist. Atty., Somerset, for Com., appellee.
    Before TAMILIA, JOHNSON and HESTER, JJ.
   TAMILIA, Judge.

Wayne Patrick Moore appeals from the January 27, 1992 judgment of sentence imposing an aggregate ten (10) to twenty (20) year term of imprisonment. The sentence was imposed after appellant pled guilty to one count of robbery, one count of aggravated assault, four counts of burglary, five counts of theft, one count of receiving stolen property and three counts of criminal trespass. The charges stemmed from appellant’s crime spree throughout the Somerset County area during the years 1990 and 1991.

Appellant argues under the facts of this case the charges of aggravated assault and robbery should merge for sentencing purposes. The charges were related to the January 28, 1991 incident wherein appellant and a co-actor were attempting to burglarize the residence of Richard and Kathy Poorbaugh. As the pair tried to gain access to the Poorbaugh home, they were surprised by the Poorbaughs’ caretaker, Clyde Oakman, whom appellant’s cohort struck on the head with a crowbar and stole his wallet. Appellant argues the crime of robbery necessarily involved the crime of aggravated assault and, therefore, the two merge for the purpose of sentencing. We agree.

The test for whether offenses will merge for the purpose of sentencing is “whether the separate offenses are lesser included offenses and greater included offenses, i.e., the crimes do not merge for sentencing purposes unless the same facts support convictions of lesser concluded offenses.” Commonwealth v. Ennis, 394 Pa.Super. 1, 16, 574 A.2d 1116, 1123 (1990) citing Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989). Also see Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991). Aggravated assault is defined as:

(a) Offense defined.—A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.

18 Pa.C.S. § 2702. The crime of robbery is defined:

(a) Offense defined.—

(1) A person is guilty of robbery if, in the course of committing a theft, he:
(i) inflicts serious bodily injury upon another.

18 Pa.C.S. § 3701. The aggravated assault in the case before us was established by the blow to Oakman’s head with a crowbar. Absent the infliction of this serious bodily injury, the taking of the victim’s wallet would have constituted theft as opposed to robbery.

Based on this reasoning and that set forth in Ennis, we vacate the sentences for robbery and aggravated assault and remand this case to the trial court for resentencing in accordance with this Opinion. The balance of the judgment of sentence will remain in effect.

Judgment of sentence vacated and remanded in part and affirmed in part. Jurisdiction relinquished.

      . Pa.C.S. § 3701.

      . Id. § 2702.

      . Id. §-3502.

      . ■ Id. § 3921.

      . Id. § 3925.

      . Id. § 3503.

      . We are compelled to follow the reasoning set forth by Justice Flaherty in his Concurring Opinion in Commonwealth v. Burkhardt, 526 Pa. 341, 586 A.2d 375 (1991) (Justices Zappala and Papadakos concurred in the result of the Opinion by Justice McDermott). Joined by Chief Justice Nix and Justice Cappy, Justice Flaherty follows the reasoning of Commonwealth v. Williams, 521 Pa. 556, 559 A.2d 25 (1989), and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989), whereby it is only where the elements of a crime are subsumed into the elements of another crime that merger is required. When the crimes are part of an enterprise, each having elements which may stand alone, then merger is not implicated.


text:
    617 A.2d 817
    COMMONWEALTH of Pennsylvania v. Henry J. MANNEY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 9, 1992.
    Filed Dec. 17, 1992.

      H. Anthony Adams, Shippensburg, for appellant.
    Alison Taylor, Asst. Dist. Atty., Carlisle, for Com., appellee.
    Before CIRILLO, TAMILIA and BROSKY, JJ.
   TAMILIA, Judge.

Henry Joseph Manney appeals from the three (3) to twenty-three (23) month judgment of sentence imposed after he was found guilty, nonjury, of simple assault.

On August 30, 1991, appellant entered the home of his estranged wife and physically assaulted her. Because appellant was the subject of a protection from abuse (PFA) Order obtained by the victim earlier that year, he was immediately found guilty of indirect criminal contempt and sentenced to ninety (90) days incarceration. The Commonwealth thereafter prosecuted appellant for simple assault, he was convicted and sentence was imposed May 26, 1992. Manney appeals from the judgment of sentence and argues his conviction and incarceration for criminal contempt barred the subsequent prosecution for simple assault under the double jeopardy doctrine. We disagree.

The issue presented in this appeal was decided by the Pennsylvania Supreme Court in Commonwealth v. Allen, 322 Pa.Super. 424, 469 A.2d 1063 (1983), aff'd, 506 Pa. 500, 486 A.2d 363 (1984), cert. denied, 474 U.S. 842, 106 S.Ct. 128, 88 L.Ed.2d 105 (1985). The Allen Court held prosecution of the defendant for rape, simple assault and criminal trespass was not barred under the double jeopardy clause by a prior finding he was in contempt for violation of a PFA Order, even though the contempt proceeding involved the same conduct. Id. at 513-514, 486 A.2d at 369-370. Appellant attempts to discredit Allen arguing the Pennsylvania courts have not yet addressed this issue in light of Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and U.S. v. Felix, — U.S. -, 112 S.Ct. 1377, 118 L.Ed.2d 25 (1992), both of which stated the double jeopardy clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted. Grady cautioned the critical inquiry was to be what conduct the state would attempt to prove, not the evidence the state will use to prove that conduct. In relying solely on these United States Supreme Court cases appellant has, however, disregarded the 1992 Superior Court case which discussed Grady, Allen and Felix and found “[u]ntil either the Pennsylvania Supreme Court or the United States Supreme Court clearly indicates that a conviction of direct[] criminal contempt triggers double jeopardy protections for additional criminal charges based on the same conduct, we cannot grant the type of relief sought by appellant.” Commonwealth v. Warrick, 415 Pa.Super. 385, 392, 609 A.2d 576, 580 (1992).

Here, the attack on Mrs. Manney was introduced as evidence to establish appellant had violated the PFA Order. At this point, appellant was being prosecuted for his willful disobedience of a court Order and not his assaultive behavior. The violation of the Order and the underlying assaultive act which proves the violation are not the same offense for double jeopardy purposes. Accordingly, a conviction of indirect criminal contempt does not trigger double jeopardy protections for additional criminal charges based on the same conduct and appellant’s sentence must stand.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 2701.

      . Id., § 5110.

      . We realize the crime of which appellant herein was convicted was indirect criminal contempt, but find the court's reasoning plainly applicable to the matter before us.