author: CIRILLO, Judge:

text:
    656 A.2d 1378
    The Estate of Rose K. LAKATOSH, Deceased, As Successor in Interest of the Estate of Rose K. Lakatosh, An Alleged Incompetent, Appeal of Roger JACOBS.
    Superior Court of Pennsylvania.
    Argued Feb. 8, 1995.
    Filed April 13, 1995.

      Dennis S. Hudak, Bethlehem, for appellant.
    Dean C. Berg, Northampton, for appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from an order of the Court of Common Pleas of Northampton County denying Roger Jacob’s post-trial exceptions. We affirm.

This matter involves the finances of an elderly woman, Rose K. Lakatosh (Rose), and the scurrilous motives and actions of a man, Roger Jacobs (Roger), who sought to take advantage of the confidential relationship he developed with Rose so as to siphon money from her for his own benefit. On August 10, 1990, Donald F. Spry, II, Guardian of the Estate of Rose K. Lakatosh, deceased, filed a Petition for an Accounting and Imposition of a Constructive Trust on Roger Jacobs. On March 3, 1993, Spry filed a petition seeking revocation of Rose’s last will and testament, dated November 11, 1988, on grounds of undue influence. A non-jury trial was held before the Honorable F.P. Kimberly McFadden on March 16-18, 1993. On December 30, 1993, it was ordered that a constructive trust in the amount of $128,565.29 be imposed on Roger, and that Rose’s will dated November 11, 1988 be revoked.

Roger filed timely post-trial exceptions to the trial court’s decision of December 30, 1993. Roger now appeals from the denial of his post-trial exceptions. On appeal, in his statement of questions involved, Roger has raised thirty-one (31) allegations of error on the part of the trial court which span four pages and consist of ninety-seven (97) lines. This is an egregious violation of the rules of appellate procedure. Rule 2116(a) of the Pennsylvania Rules of Appellate Procedure provides:

The statement of questions involved ... should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception!.]

Pa.R.A.P. 2116(a). When a party’s brief fails to conform with the requirements of the rules of appellate procedure and the discovered defects are substantial, this court may, in its discretion, quash or dismiss the appeal pursuant to Rule 2101 of the rules of appellate procedure. See Pa.R.A.P. 2101. Presently, Roger’s nonconformance with the requirements of the Pennsylvania Rules of Appellate Procedure are substantial and, therefore, permit dismissal of this appeal.

Although we choose not to dismiss this appeal, we admonish Roger and his counsel for this flagrant disregard of the rules of appellate procedure and caution that future violations will not be handled quite so tolerantly. What Roger’s counsel must understand, as well as all those who come before an appellate court, is that his is not the only case which needs to be heard and if we are to do the best job we can in providing efficient and equitable relief, then all appellate counsel must adhere to the rules which allow this court system to function efficiently and fairly.

One of the reasons we decline to dismiss Roger’s appeal is that his own actions effectively negate his prior non-conformance with Rule 2116. That is, Roger has only addressed three issues in the argument section of his brief. As a result, all of those issues set forth within his statement of questions involved, which are not addressed in the argument section of his brief, are waived. Cosner v. United Penn Bank, 358 Pa.Super. 484, 517 A.2d 1337 (1986) (finding issue waived when no argument in support contained in brief). The three issues which Roger raises is his brief are:

(1) Whether the Appellant acted improperly as the deceased’s Power of Attorney and, as a result, improperly converted or caused the deceased to lose her money?
(2) Whether the will of the deceased, dated November 11, 1988, and prepared by a licensed attorney, was valid?
(3) Whether the trial court erred in granting Letters of Administration Pendente Lite for the Estate of the deceased to the deceased’s nephew?

With regard to issues one and three, we need not reach the merits of these issues since Roger’s argument section pertaining to these issues consists of general statements unsupported by any citation of authority. The argument portion of an appellate brief must include a pertinent discussion of the particular point raised along with discussion and citation of pertinent authorities. Pa.R.A.P. 2119(a). We decline to become Roger’s counsel, and will not consider these issues further.

One issue, therefore, remains for this court’s review, namely, whether the trial court erred in finding that Rose’s will, dated November 11,1988, was an invalid testamentary disposition and subject to revocation.

Our standard of review in will contests is well settled:

“Our review in [a will contest] is limited to determining whether the findings of fact approved by the court ... rest on legally competent evidence, and whether an error of law has been made or an abuse of discretion committed.” In Re Estate of Ziel, 467 Pa. 531, 536, 359 A.2d 728, 731 (1976); In re Estate of DiPietro, 306 Pa.Super. 238, 240, 452 A.2d 532, 533 (1982). “It is not our task to try the case anew.” In re Estate of Ross, 316 Pa.Super. 36, 40, 462 A.2d 780, 782 (1983). “This rule is particularly applicable ‘to findings of fact which are predicated upon the credibility of witnesses, whom the judge has had the opportunity to hear and observe, and upon the weight given to their testimony.’ ” Estate of Gilbert, [342] Pa.Super. [82], [87], 492 A.2d 401, 404 (1985) [ (]quoting In re Estate of Dembiec, 321 Pa.Super. 515, 519-20, 468 A.2d 1107, 1110 (1983)[) ].

In re Estate of Bankovich, 344 Pa.Super. 520, 522-23, 496 A.2d 1227, 1229 (1985).

Rose was a woman in her early to mid seventies in March of 1988 when Roger Jacobs came into her life. Roger introduced himself to Rose by delivering his business card to her at her home in Northampton, Pennsylvania, after which he began to perform odd jobs for Rose. At the time Roger came to know Rose, Rose had no contact with any of her family members except for an occasional visit from her sister, Margaret Berg. Roger had an active relationship with Rose from the spring of 1988 until June of 1990, when a fire partially destroyed Rose’s home.

Roger had much contact with Rose after they first met in March of 1988. Roger lived just a few miles from Rose and visited her at least once a day and sometimes as often as two or three times a day. Roger assisted Rose around her house and drove Rose to various appointments and took her on various errands. These facts suggest that this elderly woman came to depend on Roger as the only person with whom she really had substantial contact. As subsequently discussed at greater length, we agree with the trial court that Roger gained the confidence of Rose. This determination is also supported by Rose’s conduct.

In March of 1988, Rose expressed her concern to Roger about a slander lawsuit which had been filed against her by her nephew, Dean Berg. Roger responded to Rose’s concerns by contacting his second cousin, Attorney Richard Jacobs, who agreed to be Rose’s attorney. Also, in June, 1988, Rose told Roger that she owned some stock and asked Roger to contact Janney Montgomery Scott (“JMS”), a financial investment company, to check on her investments. On several occasions between June of 1988 and November of 1988, Roger took Rose to meet with a representative of JMS to review various stock certificates. Roger was present at these meetings and also actively participated in these meetings.

In the summer of 1988, Roger suggested to Rose that she execute a power of attorney so that she would have someone to care for her should she need it. On November 11, 1988, Rose executed a power of attorney making Roger her attorney-in-fact. On that same date, Rose executed a new will which left all of her estate to Roger, except for a $1,000.00 gift to her church. Both the will and the power of attorney were prepared by Attorney Richard Jacobs and, at that time, he concluded, after conferring with Rose about her will, that she was of sound mind and capable of disposing of her assets. Three days later, however, after the execution of the will, Attorney Jacobs prepared a petition to have Rose evaluated in order to determine if she was competent to assist her counsel in the defense of the slander action. The petition supposedly was Attorney Jacobs’ response to Rose’s inability to provide information for discovery requests in July of 1988, as well as Rose’s inability to remember things and grasp the value of her stocks or realize their worth in the fall of 1988. In addition, in an answer to a motion for sanctions in the slander action, Attorney Jacobs requested the court not to issue sanctions until Rose could be evaluated to determine her mental capacity to assist her counsel in the defense of the action.

Although Roger was not present in Attorney Jacob’s office at the time the will and the power of attorney were executed, Rose informed Roger of the new will and its provisions on the very same day that it was executed. Additionally, Roger obtained several copies of the newly executed power of attorney and delivered these copies to JMS, as well as banks where Rose had savings and checking accounts, namely, Northeastern Bank and Merchants Bank. Roger testified at trial that his understanding of the power of attorney executed by Rose was that it permitted him to liquidate any of her assets as he saw fit, whether for her benefit or not.

On January 5, 1989, Attorney Jacobs, who continued to represent Rose in the slander action, prepared a draft of a letter to the Disciplinary Board of the Supreme Court of Pennsylvania in which he stated that he was retained by Rose to represent her in the slander action and “[i]n the process of the suit it became quite apparent to me that Rose is really not competent to understand the nature of her acts nor at this point do I believe she is competent to handle her own estate.” Also, Attorney Jacobs noted that he received responses from Rose like “God will protect me” and “everything will be alright because God will punish him.”

Concerning Rose’s finances and Roger’s power of attorney, Roger unlawfully converted $128,565.29 in assets from Rose’s estate for his own benefit or for the benefit of others, not including Rose, from September, 1988 to June, 1990. Among other improper conversions, Roger caused approximately $72,-000.00 of Rose’s assets to be transferred to Patricia Fox, a woman who had been friends with Roger since February of 1984, but who was not known by Rose personally.

In June, 1990, Rose was living in squalor and filth and had fallen behind in the payment of certain household bills including water/sewer bills, and County and City property taxes. On June 18, 1990 Rose executed a general revocation of the power of attorney placed in Roger Jacobs. On September 4, 1993, Rose died.

Prior to the trial concerning the petition for the imposition of a constructive trust brought by Petitioner Spry, Spry also filed a petition to revoke Rose’s will dated November 11, 1988 based on undue influence. The trial court granted Spry’s request to revoke the will. We must now determine, in view of the aforementioned facts, whether the trial court committed error or abused its discretion in its application of the law when it found that Rose’s will should be revoked. Bankovich, supra, 344 Pa.Super. 520, 496 A.2d 1227.

Spry maintains that the will must be revoked because Roger failed to carry his burden of proving the absence of undue influence surrounding Rose’s execution of the November 11th will. The court in Bankovich, supra, 344 Pa.Super. 520, 496 A.2d 1227, discussed the burden of proof in a case involving the allegation of undue influence:

The burden of proof in cases of this type is as defined by the Supreme Court in Estate of Reichel, 484 Pa. 610, 400 A.2d 1268 (1979). The Court stated:
When the proponent of a will proves that the formalities of execution have been followed, a contestant who claims that there has been undue influence has the burden of proof. The burden may be shifted so as to require the proponent to disprove undue influence. To do so, the contestant must prove by clear and convincing evidence that there was a confidential relationship, that the person enjoying such relationship received the bulk of the estate, and that the decedent’s intellect was weakened.
Id. at 614, 400 A.2d at 1270. [Accord]: In re Estate of Pedrick, 505 Pa. 530, 538-39, 482 A.2d 215, 219 (1984); Estate of Shelly, 484 Pa. 322, 332, 399 A.2d 98, 103 (1979).

Bankovich, 344 Pa.Super. at 523, 496 A.2d at 1229 (emphasis added).

Initially, it must be ascertained whether a confidential relationship existed between Roger Jacobs and Rose Lakatosh. A confidential relationship exists “whenever one person has reposed a special confidence in another to the extent that the parties do not deal with each other on equal terms, either because of an overmastering dominance on one side, or weakness, dependence or justifiable trust, on the other.” Estate of Clark, 467 Pa. 628, 635, 359 A.2d 777, 781 (1976); Commonwealth, Dep’t of Transp. v. E-Z Parks, Inc., 153 Pa.Commw. 258, 267, 620 A.2d 712, 717, appeal denied, 534 Pa. 651, 627 A.2d 181 (1993). It has also been held that:

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not confined to a particular association of parties, but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other’s interest.

Estate of Buriak, 342 Pa.Super. 371, 373, 492 A.2d 1166, 1167 (1985) (quoting Estate of Keiper, 308 Pa.Super. 82, 82, 454 A.2d 31, 33 (1982)).

Further, the existence of a power of attorney given by one person to another is a clear indication that a confidential relationship exists between the parties. Foster v. Schmitt, 429 Pa. 102, 239 A.2d 471 (1968); Hera v. McCormick, 425 Pa.Super. 432, 448-49, 625 A.2d 682, 691 (1993). In fact, “[n]o clearer indication of a confidential relationship [can] exist than giving another person the power of attorney over one’s entire life’s savings.” Bankovich, 344 Pa.Super. at 524, 496 A.2d at 1229 (citations omitted). “This is particularly true[ ] when the alleged donee is shown to have spent a great deal of time with the decedent or assisted in decedent’s care.” Hera, 425 Pa.Super. at 449, 625 A.2d at 691.

The trial court properly concluded that the testimony at trial indicated that a confidential relationship existed between Rose and Roger. The facts illustrate that from the time Roger came to know Rose he developed a close relationship with her which included her confiding in him about her legal problems as well as her financial affairs. Since Rose had very little contact with other individuals, she became dependent upon Roger’s assistance in her everyday life. Roger developed a confidential relationship with Rose since he occupied a position towards Rose as an advisor, counselor and confidant, and inspired Rose’s confidence that he would act in good faith for her interests. Clark, supra, 467 Pa. 628, 359 A.2d 777; Buriak, supra, 342 Pa.Super. 371, 492 A.2d 1166. Such a finding is especially true here as Roger spent a great deal of time with Rose and assisted in her care. Also, all of this occurred even before Rose made Roger her power of attorney which, in and of itself, is sufficient for a finding that a confidential relationship existed. Foster, supra, 429 Pa. 102, 239 A.2d 471; Hera, supra, 425 Pa.Super. 432, 625 A.2d 682; Bankovich, supra, 344 Pa.Super. 520, 496 A.2d 1227. Furthermore, Roger admitted, both in his answer to Spry’s petition and in his brief on appeal, that he had gained the confidence of Rose.

Next, Spry, as contestant of the will, needed to prove that the person enjoying the confidential relationship received the bulk of the estate. On November 1, 1988, the date of the will’s execution, the value of Rose’s estate amounted to $268,-672.11. Since Roger was to receive all of Rose’s estate, except for the $1,000.00 gift to her church, it is without question that Roger was to receive the bulk of Rose’s estate.

Lastly, it must be ascertained whether Rose suffered from a weakened intellect at the time the will was executed. Concerning this issue, we have stated that:

[t]he “weakened intellect” which must be shown in order to establish a prima facie case of undue influence upon the testator need not amount to testamentary incapacity. Although testamentary capacity is to be determined by the condition of the testator at the very time he executes a will, evidence of incapacity for a reasonable time before and after the making of a will is admissible as an indication of lack of capacity of the day the will is executed.

Burns v. Kabboul, 407 Pa.Super. 289, 308, 595 A.2d 1153, 1163 (1991), appeal denied, 529 Pa. 655, 604 A.2d 247 (1992) (citations omitted). Moreover, the Pennsylvania Supreme Court has stated that “[ujndue influence is generally accomplished by a gradual, progressive inculpation of a receptive mind. The ‘fruits’ of the undue influence may not appear until long after the weakened intellect has been played upon.” Bankovich, 344 Pa.Super. at 525, 496 A.2d at 1230 (quoting In re Estate of Clark, 461 Pa. 52, 65, 334 A.2d 628, 634 (1975)).

It matters not that Attorney Jacobs determined that Rose had the testamentary capacity to dispose of her estate on the day she executed her will, as a weakened intellect is distinguishable from testamentary incapacity. Burns, supra, 407 Pa.Super. 289, 595 A.2d 1153. “[Weakened mentality as relevant to undue influence need not amount to testamentary capacity ... for the particular mental condition of the testatrix on the day she executed the will is not as significant when reflecting upon undue influence as it is when reflecting upon testamentary capacity.” In re Estate of Clark, 461 Pa. at 65, 334 A.2d at 634. Our review of the record reveals that there is ample evidence to support the trial court’s finding that Rose had a “weakened intellect” at the time she executed the November 11, 1988 will.

Although Roger testified that Rose was in good physical and mental health on the day the will was executed and that he had no difficulty communicating with her, he also testified that, around the time of the will’s execution, Rose had trouble remembering things and had no understanding of her estate or assets. Significantly, it was Roger himself who suggested that Rose execute a power of attorney so that someone could help her if it was necessary. According to Roger’s testimony, he was concerned with Rose’s susceptibility to being taken advantage of, and it was this concern which sparked the idea for the power of attorney.

Moreover, the representations made by Attorney Jacobs in the pleadings and correspondence in the slander suit questioning Rose’s competence and ability to understand her estate also indicate that her intellect was weakened at the time the will was executed. Although the mental evaluation requested by Attorney Jacob’s was never actually conducted, his concern three days after the will’s execution that Rose lacked the mental capacity to meaningfully participate in the lawsuit is evidence of her weakened intellect three days before. Additionally, less than two months after Rose signed the will, Attorney Jacobs drafted a letter questioning Rose’s ability to understand the nature of her actions and handle her own estate.

Further, an audio tape, which had been made of a conversation between Rose and Attorney Jacobs on the day the will was executed, also evidences the notion that Rose suffered from a weakened intellect at the time. Attorney Jacobs testified at trial that, because Roger was to receive the bulk of Rose’s estate and was not her blood relative, he thought it wise to make the tape as evidence of the will’s validity, should it be challenged. Instead of reinforcing the integrity of the will, the audio tape supports the proposition that Rose suffered from a weakened intellect.

The audio tape revealed that Rose was easily distracted and clearly had difficulty remaining focused on the issue of the will. Also, as pointed out by the trial court, even though Attorney Jacobs repeatedly attempted to re-direct Rose’s attention to the issue of the will, she could not remain focused or coherent. Rose made several comments on the tape which indicate that she had a weakened intellect and that she was somewhat out of touch with reality. Specifically, Rose referred to Roger as “an angel of mercy” who “saved her life” because, before she met him, she had been “so low in hell.” Rose also repeatedly claimed that her nephew, Dean Berg, threatened to rob and kill her and that he was persecuting and torturing her.

Finally, proof of Rose’s weakened intellect can be seen in the state in which she was living. That is, she was an elderly woman; helpless and unable to prevent the consumption of her assets by Roger during the period before and after the execution of her will, from September, 1988, to June, 1990, when she finally had Roger’s power of attorney revoked. Also, Rose was living in filth in the spring of 1990, with her bills not having been paid, and, after a house fire, it was discovered that her house was in shambles with trash throughout and dead cats found in her freezer and bathtub.

All of this goes to establish that Rose suffered from a weakened intellect at the time the November 11, 1988 will was executed. As a result, the burden of disproving undue influence shifted to Roger. Burns, supra, 407 Pa.Super. 289, 595 A.2d 1153; Bankovich, supra, 344 Pa.Super. 520, 496 A.2d 1227. “Once the burden of disproving undue influence shifts to the proponent [of the will], it is incumbent upon the proponent to demonstrate the absence of undue influence by clear and convincing evidence.” Burns, 407 Pa.Super. at 307, 595 A.2d at 1163 (citations omitted).

Consequently, we conclude that the trial court’s findings rest on legally competent evidence and the trial court did not commit error or abuse its discretion in finding that Rose’s will should be revoked because Roger failed to carry his burden of proving the absence of undue influence. Bankovich, supra, 344 Pa.Super. 520, 496 A.2d 1227; see also Matter of Estate of Evasew, 526 Pa. 98, 104, 584 A.2d 910, 913 (1990) (holding that “[w]hen the relationship between persons is one of trust and confidence, the party in whom the trust and confidence are reposed must act with scrupulous fairness and good faith in his dealings with the other and refrain from using his position to the other’s detriment and his own advantage”).

Order affirmed.

      . Moreover, we note that it has been held that when an appellant raises an extraordinary number of issues on appeal, as in this case, a presumption arises that there is no merit to them. In United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir.1982), the court had an opportunity to address this situation:
      Because of the inordinate number of meritless objections pressed on appeal, spotting the one bona fide issue was like finding a needle in a haystack. One of our colleagues has recently cautioned on the danger of "loquaciousness:”
      With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully demonstrates that the trial court committed more than one or two reversible errors. I have said in open court that when I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that this is an irrebuttable presumption, but it is a presumption nevertheless that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
      Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View From the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982).

      . This court points out with noted impatience Roger’s failure to comply with Rule 2119 of the Pennsylvania Rules of Appellate Procedure, which provides:
      The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part — in distinctive type or in type distinctively displayed — the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
      Pa.R.A.P. 2119(a). Roger’s brief violates Rule 2119(a) because it is not divided into as many parts as there are questions to be argued, nor is the particular point to be addressed set out at the head of each part in distinctive type or distinctively displayed.


source: Caselaw Access Project

author: WIEAND, Judge.

license: Public Domain

text:
    656 A.2d 1385
    Renee MONTGOMERY, Appellant, v. SOUTH PHILADELPHIA MEDICAL GROUP, INC. and Joseph L. Chapman, M.D., Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 27, 1994.
    Filed Feb. 21, 1995.
    Reargument Denied April 25, 1995.

      Stewart J. Eisenberg, Philadelphia, for appellant.
    Donna L. Goodman, Plymouth Meeting, for appellees.
    Before ROWLEY, P.J., and WIEAND and SAYLOR, JJ.
   WIEAND, Judge.

In this appeal from an order refusing to remove a compulsory non-suit, we are asked to review rulings by the trial court that (1) plaintiffs expert, a board certified internist and cancer specialist, was unqualified to express an opinion regarding the standard of care expected of a physician’s assistant, and (2) plaintiffs evidence was insufficient to submit to a jury the issue of causation.

On August 13, 1985, Renee Montgomery presented herself for an annual physical examination at the South Philadelphia Medical Group. There she was examined by Barbara O’Rourke, a physician’s assistant. According to Montgomery’s testimony, she informed O’Rourke that she had been experiencing pain in her left breast. At the completion of the examination, O’Rourke noted that Montgomery had fibrocystic breasts and ordered a baseline mammogram. The mammogram was performed at the offices of the medical group on August 20, 1985, and revealed no abnormality. During the succeeding year, Montgomery was treated at various times by the defendant medical group and continued to complain of pain in her left breast. However, she was not referred to a physician or told to seek other medical advice.

On September 8, 1986, after experiencing irregular vaginal bleeding, Montgomery was seen by Dr. Larry Seidman, a gynecologist in the offices of the medical group, and he found a suspicious mass in her left breast. He immediately referred Montgomery to Dr. John Fobia, who confirmed the presence of the mass and performed a biopsy. When the mass was determined to be malignant, Montgomery underwent a modified radical mastectomy of the left breast, followed by chemotherapy. The cancer was found to be Stage II and had spread to one lymph node.

Montgomery filed a civil action against the medical group in which she contended that O’Rourke, an employee of the medical group, had been negligent in failing to refer her to a physician after she had complained of pain in her left breast. At the close of her case, the trial court entered a compulsory non-suit, which it subsequently refused to remove.

A motion for a non-suit may be granted only where it is clear that no other conclusion could be reached under the evidence presented. Bowser v. Lee Hosp., 399 Pa.Super. 332, 337, 582 A.2d 369, 371 (1990), allocatur denied, 527 Pa. 614, 590 A.2d 755 (1991); A.J. Aberman, Inc. v. Funk Bldg. Corp., 278 Pa.Super. 385, 393, 420 A.2d 594, 598 (1980). When considering such a motion, issues of credibility and the weight to be assigned to the evidence are not to be resolved by the trial judge, but must be left for the finder of fact to resolve at the close of the evidence. Scott v. Purcell, 490 Pa. 109, 113, 415 A.2d 56, 58 (1980). Because a jury may not reach its verdict on mere speculation, however, a trial court may enter a non-suit if the plaintiff has failed to produce sufficient evidence to meet his or her burden of proof. Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680, 683 (1983). On appeal from an order granting a non-suit, a reviewing court must view the evidence, and any reasonable inferences therefrom, in the light most favorable to the plaintiff. A.J. Aberman, Inc. v. Funk Bldg. Corp., supra.

At trial, the plaintiff introduced the testimony of Dr. George I. Karp, M.D., a board certified internist, to establish that O’Rourke had breached a duty of care by failing to refer the plaintiff to a qualified physician after the plaintiff had complained of breast pain. Initially, the trial court overruled an objection to the expertise of the witness and permitted his testimony to be heard by the jury. At the close of the plaintiffs case, however, the court ruled that the witness was not qualified to testify to the appropriate standard of care for a physician’s assistant and entered a compulsory non-suit.

Whether a witness should be permitted to testify as an expert is a question for the discretion of the trial court, whose decision will not be overruled absent an abuse thereof. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 107, 563 A.2d 1201, 1207 (1989), allocatur denied, 525 Pa. 583, 575 A.2d 114 (1990); Mitchell v. Randall, 368 Pa.Super. 421, 426-427, 534 A.2d 508, 510 (1987). Pennsylvania’s standard for qualifying a witness as an expert is liberal. If the witness possesses knowledge outside the ordinary reach and offers testimony which could assist the trier of fact, the witness may testify as an expert. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 6, 588 A.2d 1, 5 (1991); Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 597-598, 437 A.2d 1198, 1201 (1981). To qualify as an expert, a witness need not possess all of the knowledge on a subject; rather, the witness should have a reasonable pretension to specialized knowledge. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Lira v. Albert Einstein Med. Center, 384 Pa.Super. 503, 509, 559 A.2d 550, 553 (1989), allocatur denied, 527 Pa. 635, 592 A.2d 1302 (1990); McDaniel v. Merck, Sharp & Dohme, 367 Pa.Super. 600, 608, 533 A.2d 436, 442 (1987), allocatur denied, 520 Pa. 589, 551 A.2d 215 (1988); Pratt v. Stein, 298 Pa.Super. 92, 152-153, 444 A.2d 674, 706 (1982); Packel & Poulin, Pennsylvania Evidence, Ch. VII, § 702.3 (1987). The weight to be assigned to the expert’s testimony, of course, is for the trier of fact. Kuisis v. Baldwin-Lima-Hamilton Corp., supra, 457 Pa. 321, 319 A.2d 914. See also: Palmer v. Lapp, 392 Pa.Super. 21, 27, 572 A.2d 12, 15 (1990).

A witness may qualify as an expert if his or her experience or education logically or fundamentally embraces the matter at issue. Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 42, 485 A.2d 408, 418 (1984) (en banc), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985). In the area of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Estate of Pew, 409 Pa.Super. 417, 424, 598 A.2d 65, 69 (1991), allocatur denied, 530 Pa. 645, 607 A.2d 255 (1992). See also: Lira v. Albert Einstein Med. Center, supra, 384 Pa.Super. 503, 559 A.2d 550. “ ‘Different doctors will have different qualifications, some doctors being more qualified than others to testify about certain medical practices. It is, however, for the jury to determine the weight to be given to expert testimony, in light of the qualifications shown by the expert witness.’ ” Pratt v. Stein, supra, 298 Pa.Super. at 153 n. 52, 444 A.2d at 706 n. 52., quoting Taylor v. Spencer Hosp., 222 Pa.Super. 17, 24 n. 2, 292 A.2d 449, 453 n. 2 (1972).

In Taylor v. Spencer Hosp., supra, 222 Pa.Super. 17, 292 A.2d 449, the plaintiff-patient brought suit against the defendant-hospital and alleged that the nurses on its staff had been negligent in providing her with care and treatment. At trial, the plaintiff called a medical doctor to testify to the degree of care owed to her by the hospital and its staff. The Superior Court held that the doctor was a qualified expert. The Court said:

It is evident that the nurses in the instant case made decisions involving the medical treatment of [the plaintiff], and that these decisions were not uniquely administrative or outside the knowledge of a medical doctor. All areas of medical expertise within the knowledge of nurses are also within the knowledge of medical doctors. This issue has never been considered or decided before in Pennsylvania, but our Supreme Court has, by implication, approved the use of the testimony of a medical doctor to establish acceptable standards of nursing care. Baur v. Mesta Machine Co., 405 Pa. 617, 176 A.2d 684 (1961).

Id. 222 Pa.Super. at 24, 292 A.2d at 452-453 (footnote omitted). Accord: Ragan v. Steen, 229 Pa.Super. 515, 331 A.2d 724 (1974) (physician who was not a radiologist but who was knowledgeable of the risks of x-ray treatment could testify as an expert in an action against a radiologist). It would seem that knowledge as to the treatment and care of patients which may be possessed by a physician’s assistant is also knowledge generally possessed by a medical doctor. Therefore, the Court’s reasoning in Taylor v. Spencer Hosp., supra, 222 Pa.Super. 17, 292 A.2d 449, applies with equal force when a qualified physician has been called to testify as an expert regarding the standard of care owed to a patient by a physician’s assistant.

The decision in Dierolf v. Slade, 399 Pa.Super. 9, 581 A.2d 649 (1990), does not command a contrary result. In that case the plaintiff, who had been injured after undergoing oral surgery to correct a deformity in her jaw and who thereafter suffered a dropped foot due to compression of her peroneal nerve, had sued her oral surgeon for negligence. The medical expert whom she called to testify, however, was not an oral surgeon but an orthodontist who had never performed oral surgery, had never observed a peroneal nerve injury, was not a neurologist, was not board certified, and had rarely ever been present in an operating room. Moreover, the opinion that the expert had been called to offer was not his own but that of a colleague.

Dr. Karp, the expert in the instant case, had been educated in medicine and trained in the care and treatment of cancer patients. He was a board certified internist with a sub-specialty in cancer treatment since 1981. He had worked at the National Cancer Institute in Bethesda, Maryland, and the Dana Farber Cancer Center in Boston, Massachusetts, and had held a position as an instructor at Harvard Medical School and the Robert Wood Johnson Medical School. At the time of trial he possessed staff privileges at two hospitals and was a member of the cancer committee of the Robert Wood Johnson University Hospital, where he reviewed administrative aspects of the care of cancer patients. His primary experience had been in the care and treatment of cancer patients, and he had treated between 250 to 400 patients with breast cancer. Given his background and experience, Dr. Karp was qualified to testify to the standard of care owed by medical practitioners to a patient with unidentified pain in her breast and to render an opinion as to the steps which should have been taken by a medical practitioner in caring for such a patient. The trial court erred, therefore, when it excluded Dr. Karp’s testimony that the physician assistant employee of the medical center had been negligent in her treatment of the plaintiff.

After careful consideration, however, we are compelled to agree with the trial court that the plaintiffs evidence of causation was insufficient to require submission to a jury.

A cause of action sounding in medical malpractice requires proof of four elements: (1) that the medical practitioner owed a duty to the patient; (2) that the practitioner breached that duty; (3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) that the damages suffered by the patient were the direct result of the harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990), citing Morena v. South Hills Health Sys., supra, 501 Pa. 634, 462 A.2d 680, and Prosser, Law of Torts, § 30 at 143 (4th ed.1971). Where the events and circumstances of a malpractice action are beyond the knowledge of the average lay person, the plaintiff must present expert testimony that the acts of the medical practitioner deviated from good and acceptable medical standards, and that such deviation was a substantial factor in causing the harm suffered. Cohen v. Albert Einstein Med. Center, 405 Pa.Super. 392, 398, 592 A.2d 720, 723 (1991), allocatur denied, 529 Pa. 644, 602 A.2d 855 (1992). See also: Mitzelfelt v. Kamrin, supra, 526 Pa. at 62, 584 A.2d at 892; Brannan v. Lankenau Hosp., 490 Pa. 588, 595, 417 A.2d 196, 199 (1980). To be admissible, the opinion of an expert witness must be rendered within a reasonable degree of medical certainty. Accord: Mitzelfelt v. Kamrin, supra, 526 Pa. at 62, 584 A.2d at 892. Whether an expert’s opinion is reasonably certain must be decided after considering the expert’s testimony in its entirety. Cohen v. Albert Einstein Med. Center, supra, 405 Pa.Super. at 400, 592 A.2d at 724. See also: Williams v. Dulaney, 331 Pa.Super. 373, 383, 480 A.2d 1080, 1086 (1984). That an expert may have used less definite language does not render his entire opinion speculative if at some time during his testimony he expressed his opinion with reasonable certainty. Hreha v. Benscoter, 381 Pa.Super. 556, 562, 554 A.2d 525, 527 (1989), allocatur denied, 524 Pa. 608, 569 A.2d 1367 (1989). See also: Kravinsky v. Glover, 263 Pa.Super. 8, 21, 396 A.2d 1349, 1356 (1979). But see: McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 344, 472 A.2d 1149, 1151 (1984) (medical expert’s testimony that he could not opine whether plaintiffs ulcer had been caused by ingestion of donut without knowledge of contents of donut was not testimony within reasonable degree of medical certainty). As the Court said in Kravinsky v. Glover, supra, 263 Pa.Super. 8, 396 A.2d 1349:

[An] expert must testify with “reasonable certainty” that “in his ‘professional opinion, the result in question did come from the cause alleged.’ ” McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 496, 129 A. 568, 569 (1925). See Hamil v. Bashline, supra, 481 Pa. 256, 392 A.2d 1280. An expert fails this standard of certainty if he testifies “ ‘that the alleged cause “possibly”, or “could have” led to the result, that it “could very properly account” for the result, or even that it was “very highly probable” that it caused the result.’ Niggel v. Sears, Roebuck & Co., 219 Pa.Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Trans. Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A. 256 (1926); Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965).” Albert v. Alter, 252 Pa.Super. 203, 225, 381 A.2d 459, 470 (1977).

Id. 263 Pa.Super. at 21, 396 A.2d at 1355-1356.

In Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), the defendants had failed to promptly diagnose and treat a patient’s heart attack, and the patient had subsequently died. Whether there was a causal connection between the defendants’ negligent delay in diagnosing and treating the patient and his succeeding death was not susceptible of proof to a reasonable degree of medical certainty. It could be shown to a reasonable degree of medical certainty, however, that the defendants’ negligence had increased the risk of death. The Supreme Court adopted a reduced standard of certainty in such cases, saying:

Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) [of the Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go the jury upon a less than normal threshold of proof.

Id. at 271, 392 A.2d at 1287-1288 (footnote omitted). Thus, where the testimony of the plaintiffs expert establishes that the defendant’s failure to diagnose and treat an existing condition has increased the risk of harm, the question of whether that conduct caused the plaintiffs ultimate injury requires a jury determination. Jones v. Montefiore Hosp., 494 Pa. 410, 417 n. 8, 431 A.2d 920, 924 n. 8 (1981).

In Jones v. Montefiore Hosp., supra, the plaintiff had been referred to the defendant-hospital for treatment of an unidentified mass in her right breast. The plaintiff submitted to surgery in which the hospital’s doctors removed two masses; however, they did not entirely remove a part of one of the masses. During the next year the remaining mass continued to grow, but the hospital’s doctors, although aware of the problem, did not provide or recommend further treatment. It was later discovered that the mass was cancerous, that the cancer had metastasized to a lymph node, and that treatment with chemotherapy and a modified radical mastectomy would be required. The plaintiff sued the hospital and its doctors, but the jury returned a verdict for the defendants. In reversing, the Supreme Court said:

In Hamil v. Bashline, supra, 481 Pa. 256, 392 A.2d 1280, we noted that Section 323(a) of the Restatement (Second) of Torts (1965) has long been recognized as part of the law of Pennsylvania, and then held that the effect of that section was to relax the degree of certainty ordinarily required of a plaintiffs evidence to provide a basis upon which a jury may find causation:
[OJnce a plaintiff has demonstrated that defendant’s acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate case will have been made out if the jury sees fit to find cause in fact.
481 Pa. at 272, 392 A.2d at 1288 (emphasis supplied). Thus, medical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant’s conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.

Id., 494 Pa. at 416-417, 431 A.2d at 923-924 (footnote omitted). Because the medical testimony had shown that the defendants’ conduct increased the plaintiffs risk of injury from the mass whose presence was known, the jury should have been instructed, the Court said, that it could impose liability if it decided that the defendants’ negligence had been a substantial factor in bringing about the harm. Id. at 418, 431 A.2d at 924.

Later, in Mitzelfelt v. Kamrin, supra, 526 Pa. 54, 584 A.2d 888, the Court reaffirmed its holdings in Hamil v. Bashline, supra, 481 Pa. 256, 392 A.2d 1280, and Jones v. Montefiore Hosp., supra, 494 Pa. 410, 431 A.2d 920. In Mitzelfelt, a patient at the defendant-hospital had undergone surgery, during which the patient’s blood pressure had been permitted to drop dramatically. Afterwards, the patient developed partial paralysis of all four extremities. At trial, the patient’s expert could not opine with certainty that the patient’s injury had been caused by the negligence of the medical practitioners. Rather, the witness testified as follows:

Q. Doctor I asked you to advise everybody in this courtroom whether the type of injury that [the plaintiff] suffered after this operation ... is or is not necessarily a result of negligence or malpractice?
A. Not necessarily is the answer. Nobody can be sure. Twenty percent of these patients do badly, no matter what you do. (emphasis supplied).
******
Q. The bottom line is, do you know within a reasonable degree of medical certainty, ... that this drop in that blood pressure, ... caused the problem that [the plaintiff] has? A. No. It is my opinion that it could have, but I wouldn’t put it as a reasonable degree of medical certainty.

Id., 526 Pa. at 58, 584 A.2d at 891. Despite this testimony, at the close of evidence the jury entered a verdict for the plaintiff. The Supreme Court affirmed.

In such a case, where the plaintiff faces a risk of harm regardless of any negligence on the part of the defendant, the Court held, the plaintiff need not eliminate every possible cause of the injury; rather, the plaintiff need only present sufficient evidence so that reasonable minds could conclude that the defendant’s conduct had been a substantial cause of the harm. Id. at 64, 584 A.2d at 892. Thus, the Court authorized an even more relaxed standard to determine whether the plaintiff had established a causal connection between the acts of the defendant and the injury. The Court said:

A defendant cannot escape liability because there was a statistical possibility that the harm could have resulted without negligence. “The fact that some other cause concurs with the negligence of the defendant in producing an injury does not relieve the defendant from liability unless he [or she] can show that such other cause would have produced the injury independently of his [or her] negligence.” Majors v. Brodhead Hotel, 416 Pa. 265, 273, 205 A.2d 873, 878 (1965). Once there is sufficient testimony to establish that (1) the physician failed to exercise reasonable care, that (2) such failure increased the risk of physical harm to the plaintiff, and (3) such harm did in fact occur, then it is a question properly left to the jury to decide whether the acts or omissions were the proximate cause of the injury. See Bashline, supra, 481 Pa. at 262, 392 A.2d at 1286; Gradel v. Inouye, 491 Pa. [534] at 541, 421 A.2d [674] at 677 [(1980)]. “The jury, not the medical expert, then has the duty to balance probabilities and decide whether defendant’s negligence was a substantial factor in bringing about the harm.” Bashline, supra, 481 Pa. at 273, 392 A.2d at 1288-89; Gradel, 491 Pa. at 544, 421 A.2d at 679.

Mitzelfelt v. Kamrin, supra, 526 Pa. at 68, 584 A.2d at 894-895. Therefore, where the plaintiff has alleged that the defendant’s conduct increased the risk of injury, the defendant will not be relieved from liability merely because the plaintiffs medical expert was unable to say with certainty that the defendant’s act caused the harm. So long as reasonable minds can conclude that the defendant’s conduct was a substantial factor in causing the harm, the issue of causation may go to the jury upon a less than normal threshold of proof. Id. See also: Sacks v. Mambu, 429 Pa.Super. 498, 502, 632 A.2d 1333, 1335 (1993); O’Rourke by O’Rourke v. Rao, 411 Pa.Super. 609, 617, 602 A.2d 362, 365 (1992).

In the instant case, there was evidence that the plaintiff had been examined by employees of the defendant and that the plaintiff had complained of pain in her left breast. There also was evidence that, despite this complaint, the plaintiff had not been referred to a physician. There was no evidence, however, of the presence of any lump or mass; and a mammogram showed no abnormality. Thus, there was no evidence that an examination by a physician would have disclosed anything more than was discovered by the physician’s assistant. The time when the tumor could first have been detected does not appear. Was it detectable a year earlier or only a short time before it was discovered by Dr. Seidman? Although Dr. Karp testified that the failure to refer plaintiff to a physician fell below the standard of care required of a physician’s assistant, he was either unable or unwilling to say that the risk of harm had been increased thereby. He said only that it was “very possible” that the failure to refer her to a physician “may have increased her chance of having a positive lymph node” when the cancer was eventually diagnosed and that it “may have increased her risk for requiring a mastectomy with chemotherapy.” On cross-examination he said, “[H]ad the tumor been diagnosed one year eariier, it is indeed possible that if it were small enough, the breast could have been conserved and treated by lumpectomy/radiation therapy alone.” All of this was speculative, he conceded, saying “one can only speculate as to had it been diagnosed earlier what its size may have been, since we don’t know, nor will we ever know.”

After careful consideration, we hold that this testimony was insufficient even under the relaxed standards of Hamil v. Bashline, supra, 481 Pa. 256, 392 A.2d 1280, Jones v. Montefiore Hosp., supra, 494 Pa. 410, 431 A.2d 920; and Mitzelfelt v. Kamrin, supra, 526 Pa. 54, 584 A.2d 888. The plaintiff-appellant’s tumor was removed by mastectomy and subsequent chemotherapy. Insofar as the record discloses, it has not recurred. Her evidence showed only that if the tumor could have been diagnosed earlier — there is no evidence it could have been — then it is possible that it may have been treatable by lumpectomy or radiation instead of by mastectomy and chemotherapy. Under these circumstances, the trial court did not err by entering a compulsory non-suit.

Affirmed.

      . Annual physical examinations were required pursuant to Montgomery's employment by the Albert Einstein Medical Center.

      . This testimony was contradicted by O'Rourke, who was called as of cross-examination by the plaintiff, and by the patient’s medical records, which contain no reference to such a complaint.

      . This, too, is contradicted by the patient’s medical records, which contain no reference to such complaints.

      . Pursuant to agreement of the parties, the testimony of Dr. Karp was presented to the jury through a deposition which had been recorded on video tape.

      . Section 323(a) of the Restatement (Second) of Torts provides:
      § 323. Negligent Performance of Undertaking to Render Services One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
      (a) his failure to exercise such care increases the risk of such harm[ ]. . ..


author: HESTER, Judge: OLSZEWSKI, Judge,

text:
    657 A.2d 1
    Sharon LUCAS-RASO, Appellant, v. AMERICAN MANUFACTURERS INSURANCE COMPANY, Gordon Saul, in his own Right and/or d/b/a Gilbertsville Associates and Gilbertsville Associates M & S Company.
    Superior Court of Pennsylvania.
    Argued Nov. 30, 1994.
    Filed Feb. 28, 1995.
    Reargument Denied May 10, 1995.

      Jeffry S. Pearson, Norristown, for appellant.
    Diane M. Matlesky, Philadelphia, for American Mfrs. Ins. Co., appellee.
    Before OLSZEWSKI, JOHNSON and HESTER, JJ.
   HESTER, Judge:

Sharon Lucas-Raso appeals from the May 19, 1994 order entered in this declaratory judgment action by the Bucks County Court of Common Pleas. The court granted appellee, American Manufactures Insurance Company, a worker’s compensation insurance carrier, subrogation rights as to the other defendants in this personal injury suit. We have determined that 75 Pa.C.S. § 1720 does not bar appellee from asserting its subrogation rights against the other defendants in appellant’s law suit since her injury did not arise from the maintenance or use of a motor vehicle. Therefore, we affirm.

The facts, as summarized by the trial court, are undisputed. [Appellant] testified that on January 10, 1987, she was the store manager for the Fashion Bug located in the Gilbertsville Shopping Center. On that morning, she drove to work. It was snowing. It was still snowing when she arrived at the parking lot of the shopping center, and there was a dusting of snow on the surface. She parked in the shopping center parking lot in front of the World Travel Store which was immediately next door to the Fashion Bug. She parked facing a driveway immediately in front of those stores. She got out of her car, locked it, and crossed the access lane within the parking lot and immediately adjacent to the Fashion Bug. It was still snowing. She waited until the assistant manager arrived, and then, pursuant to company policy, they both entered the store. They went to the rear of the store where they secured the proceeds of the previous day’s business, calculated it, and checked it with the register tapes. She then prepared the deposit slip and put the deposit and the deposit slip in a locked bank bag. Once again, pursuant to company policy, she and the assistant left the store with the deposit bag, relocking the store. They walked to her car where she unlocked the passenger door and the assistant manager entered the car. It was their intention to drive the bank deposit bag to the bank so as to make the deposit. It was company policy for this entire procedure to be followed, including the two of them driving the deposit bag to the bank, which was located in the same shopping center. After the assistant manager had entered the vehicle, the plaintiff began to walk towards the rear of the vehicle with the intention of walking around the car and to the driver’s side door where she intended to enter it in order to drive to the bank. As she was walking towards the rear of the car, she fell in a hole in the parking lot. She was not touching the car at that time and did not fall against it. The fall, apparently, was caused by a hole in the parking lot and a slippery condition caused by the still falling snow.
The defendant felt that she was hurt and sat on the ground for a few moments in order to collect herself. Of course, the assistant manager had gotten out of the car and eventually helped her to her feet. She thereupon walked around the car, got into the driver’s seat, and they then drove to the bank where the deposit was made. It was this fall which forms the basis of the law suit against the other defendants.
As a result of the fall, and whatever injuries she incurred, in addition to the lawsuit heretofore referred to, she made a claim for Workmen’s Compensation benefits. As a result of that claim, she has received benefits in the approximate amount of $35,000.00. As a result, the defendant, American Manufacturers Insurance Company, the Workmen’s Compensation carrier, intends to assert a subrogation claim against any recovery she makes against the other defendants named herein.

Trial Court Opinion, 3/5/93, at 1-3. The court concluded that it could not find a causal connection between appellant’s injuries and the use of her vehicle. Therefore, it determined that the worker’s compensation carrier was not barred from asserting its rights to subrogation as to the other defendants in the suit. Appellant filed this appeal.

Appellant argues that the trial court erred as a matter of law in declaring that her injuries did not arise from the maintenance or use of an automobile and that 75 Pa.C.S. § 1720 did not bar appellee from asserting a third-party claim against the shopping center defendants. The Act of February 12, 1984, P.L. 26, No. 11, Section 3, 75 Pa.C.S. §§ 1701 et seq., is a chapter of the Vehicle Code known as the Motor Vehicle Financial Responsibility Law, essentially the successor to the No-Fault Motor Vehicle Insurance Act, 40 Pa.S. §§ 1009.101 to 1009.701. Section 1720 of the current statute provides, in relevant part, as follows:

In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under Section 1711 (relating to required benefits) 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement, whether primary or excess under Section 1719 (relating to coordination of benefits).

The only issue to be resolved is clarification of the meaning of the term “maintenance or use of a motor vehicle” as intended in this section. Clearly, if we determine that appellant’s injuries were sustained as a result of the maintenance or use of her vehicle, appellee would be barred from asserting a subrogation claim. See Allstate Insurance Company v. McFadden, 407 Pa.Super. 537, 595 A.2d 1277 (1991).

In Alvarino v. Allstate Insurance Company, 370 Pa.Super. 563, 537 A.2d 18 (1988), we adopted the interpretation of a Pennsylvania Supreme Court case, decided before the enactment of the No-Fault Act, which construed the phrase “arising out of the ownership, maintenance or use” of a motor vehicle. The Court held that the phrase “arising out of means causally connected with, not proximately caused by.” Id. “But for” causation, i.e., a cause and result relationship, is enough to satisfy this provision of the policy. Id. 370 Pa.Super. at 567, 537 A.2d at 20, quoting Manufacturers Casualty Insurance Company v. Goodville Mut. Cas. Co., 403 Pa. 603, 607-08, 170 A.2d 571, 573 (1961). This rationale also was determined to be applicable to the phrase as used in the No-Fault Act. See Schweitzer v. Aetna Life and Casualty Company, 306 Pa.Super. 300, 452 A.2d 735 (1982). A finding that the harm arose from an instrumentality or external force other than the motor vehicle itself will defeat a claim that the vehicle contributed to the cause of the injuries. Erie Insurance Exchange v. Eisenhuth, 305 Pa.Super. 571, 451 A.2d 1024 (1982) (injuries sustained by passenger sitting in car who was shot did not arise from the use of the motor vehicle).

While the No-Fault Act was promulgated to compensate persons injured in motor vehicle accidents, it was not intended to be a general liability insurer whose coverage extended to all injured parties no matter how tenuous the connection between the injury and the use of a motor vehicle. See Camacho v. Nationwide Insurance Company, 314 Pa.Super. 21, 460 A.2d 353 (1983); see also Monaghan v. Pennsylvania Manufacturer’s Association Insurance Company, 301 Pa.Super. 419, 424, 447 A.2d 1037, 1040 (1982) (“No-Fault was not intended to be a panacea for all injuries that could be traced to a motor vehicle no matter how far removed from the actual operation of a vehicle”).

We have held that when a person is engaged in the lawful use of an insured vehicle, that person is deemed to be an occupant that vehicle if the following criteria are met.

(1) [TJhere is a causal relation or connection between the injury and the use of the insured vehicle;
(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not actually be touching it;
(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time;
(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.

Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984).

In defining the parameters of the instant issue, we have held that when determining issues of causation, the legislature intended to compensate losses directly resulting from motoring accidents and to leave injuries tangential to driving to other systems of compensation. Prudential Property and Casualty Insurance v. McDaniel, 342 Pa.Super. 557, 493 A.2d 731 (1985). Moreover, there must be evidence that the use of the motor vehicle contributed to the injuries sustained and the harm suffered. Alvarino v. Allstate Insurance Company, 370 Pa.Super. 563, 537 A.2d 18 (1988). The injuries suffered must arise from the use of the motor vehicle. Id. Throughout more recent decisions, we have relied upon and expanded prior interpretations of the “maintenance and use” clause since that language remains a threshold requirement in the current statute. See 75 Pa.C.S. § 1720. Moreover, we have elaborated upon the purpose of automobile insurance and have reiterated that it is designed to compensate vehicle-caused injuries. Smith v. United Services Automobile Association, 392 Pa.Super. 248, 572 A.2d 785 (1990). There must be a link between the injury and the motor vehicle before compensation will be awarded. Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988).

It is not disputed that “maintenance and use” is presumed if occupancy can be shown. Appellant argues that she was an occupant of her vehicle and therefore, using it at the time of her injury. To establish occupancy, appellant cites Fisher v. Harleysville Insurance Company, 423 Pa.Super. 362, 621 A.2d 158 (1993), and Frain v. Keystone Insurance Company, 433 Pa.Super. 462, 640 A.2d 1352 (1994), and maintains that she satisfies the test formulated in Utica Mutual Insurance Co. v. Contrisciane, supra, 504 Pa. 328, 473 A.2d 1005, for determining whether she was occupying her vehicle.

While we acknowledge that the Motor Vehicle Financial Responsibility Act was promulgated with the intention of providing complete coverage to Commonwealth motorists, the decisions relied upon by appellant are distinguishable from the instant facts. Specifically, Frain, Fisher, and Utica, involve the presence of another motor vehicle which served as either the instrument or the impetus for the injury. We ruled that the claimants were in the process of entering their vehicles when they incurred their injuries. In each case, we determined that the chain of causation as represented by entry into their vehicles, remained unbroken by the occurrence with harm. The role played by the second vehicle was the causal link and pivotal in the injuries caused in Frain, Fisher, and Utica. In effect, it was the presence of another vehicle which prevented the claimants from completing the process of entering their vehicles. Herein, no other vehicle was involved, appellant had not entered then exited the vehicle, she had not even opened her driver’s side door or started her engine. She merely argues that she was walking toward the rear of the car with the intention of entering it when she fell into the snow-covered pothole.

Even if we agreed that falling in the pothole did not constitute a break in appellant’s act of entry into her motor vehicle, and concurred that she, therefore, was an occupant, she still must prove the existence of a causal connection between the injuries sustained and the maintenance and use of the motor vehicle. See Alvarino v. Allstate Ins. Co., supra, 370 Pa.Super. 563, 537 A.2d 18 (lack of a causal connection precluded recovery where child was bitten by dog while riding in a motor vehicle); see also Roach v. Port Authority of Allegheny County, 380 Pa.Super. 28, 550 A.2d 1346 (1988) (causal connection nonexistent where passenger on bus was injured as the result of a fight between two other passengers); see also McKelvey v. Prudential Property and Casualty Insurance Company, 392 Pa.Super. 216, 572 A.2d 769 (1990) (injuries suffered by an insured who injured shoulder when he struck a door frame while rushing to aid his children after an automobile crashed into his home were not covered under the Motor Vehicle Responsibility Law).

Automobile insurance compensates claimants who are injured in vehicle-caused injuries. Smith v. United Services Automobile Association, 392 Pa.Super. 248, 572 A.2d 785 (1990). Undisputably, entering a vehicle is essential to it’s use. See Frain v. Keystone Insurance Company, supra, 433 Pa.Super. 462, 640 A.2d 1352. Presently, appellant, who intended to enter her automobile, claims she stumbled after stepping into a snow-covered pothole and was injured as a result. She has failed to show how her vehicle contributed to her fall. Clearly, if appellant had encountered the same snow-covered pothole in a different location in the parking lot, this case would not be before us. Appellant has offered no connection to link her fall to the use of her vehicle other than her claim that she was en route to enter it. The facts illustrate that it was not the act of entering her vehicle which caused appellant’s fall, and there was no other vehicle involved to break the chain of entry.

Moreover, while we acknowledge the principle that an employee injured in a job-related motor vehicle accident may be in greater need of Worker’s Compensation benefits than in any other type of job injury, appellant presents us with no evidence that the legislature intended to encompass all injuries, no matter how tenuous. Clearly, appellant has manipulated case law and formulated an argument which transgresses a reasonable, rational approach to compensating injured persons. Therefore, while we acknowledge that appellant was vehicle-oriented at the time of her fall, she has failed to establish the necessary nexus between her injury and the use of the insured vehicle.

Order affirmed.

OLSZEWSKI, J., files a Concurring Statement.

OLSZEWSKI, Judge,

concurring:

We respectfully concur in the result, but write separately. We would hold that section 1720 does not apply because the “action” at issue, the one in which appellee insurer has asserted its subrogation rights, is appellant’s slip-and-fall case against the parking lot owner and its maintenance contractor. This tort suit is not an “action[] arising out of the maintenance or use of a motor vehicle”; rather, it is an action arising out of the tortfeasors’ alleged negligence in maintaining a parking lot. For this reason, we would find that we need not address the question of whether appellant was “occupying” her vehicle when she fell.

      . This test was formulated after a thorough review of several insurance policies and an analysis consistent with the Uninsured Motorist Act. 40 Pa.S. § 2000.

      . We stress that occupancy is not established simply because an injury occurs in or adjacent to a vehicle. See Huber v. Erie Insurance Exchange, 402 Pa.Super. 443, 587 A.2d 333 (1991).

      . In Fisher, the claimant was driven to a site to hunt deer. State law mandates that a motor vehicle occupant may not possess a loaded gun. Therefore, while the driver sat in the truck with the engine running, Fisher stood in the beam of its headlights to unload his rifle. Before he could gather all his shells, he was struck by an oncoming car. We found that a causal connection existed pursuant to 75 Pa.C.S. § 1733, which requires, in cases of multiple policies of insurance, the payment must first be made from the policy which covers the “motor vehicle occupied by the injured person at the time of the accident.” We concluded that because he needed to unload his rifle before entering and because he was making preparation to enter the vehicle when he was struck, there was causation.

      . In Frain, the claimant was entering a friend’s parked vehicle after a ceramics class. Believing that an oncoming vehicle would hit the parked car, Mrs. Frain ran away from the vehicle and tripped over a flower bed. We determined that the claimant was an occupant of the vehicle since she had placed her handbag in the car, and was in the process of entering the vehicle through the opened front door when she turned and ran from the oncoming tractor trailer. The fact that her entry was interrupted by an attempt to dodge harm did not break the chain of causation.

      . See Walters v. Kamppi, 118 Pa.Commw. 487, 545 A.2d 975 (1988).

      . See Walters v. Kamppi, supra, 118 Pa.Cmwlth. 487, 545 A.2d 975.


author: TAMILIA, Judge:

text:
    657 A.2d 5
    COMMONWEALTH of Pennsylvania v. Paul David CRISP, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 17, 1995.
    Filed March 6, 1995.

      John H. Daneri, Erie, for appellant.
    Marshall Piccinini, Asst. Dist. Atty., Erie, for Com., appellee.
    Before TAMILIA, FORD ELLIOTT and CERCONE, JJ.
   TAMILIA, Judge:

Paul David Crisp appeals from the May 10, 1994 judgment of sentence entered following a jury trial in which he was convicted of possession of drug paraphernalia. Appellant subsequently was sentenced to six (6) to twelve (12) months’ imprisonment to be served consecutively to any state sentence, however he was paroled on July 14, 1994. The facts have been set forth by the trial court as follows.

Parole Agent James Kuhn was called to report to 2034 West 34th Street in Erie on December 2, 1993, because the Erie Police were executing a search warrant and Defendant, who was on parole at the time, was located at this address and was being uncooperative. Agent Kuhn was not Defendant’s supervising parole agent but the agent on duty. Before going to 2034 West 34th Street, Agent Kuhn checked Defendant’s file, which indicated that Defendant had informed his supervising parole officer that his new address was 5432

West Ridge Road, Apartment 4, but that this address had not been verified.

Upon arrival at 2034 West 34th Street, Agent Kuhn questioned Defendant on whether he lived at the 5432 West Ridge Road address. Defendant stated that he did in fact live at that address, showed Agent Kuhn a key for the apartment and told Agent Kuhn that he could go to the residence and verify this information.

Agent Kuhn then proceeded to 5432 West Ridge Road, Apartment 4, to verify that address as Defendant’s residence and to check for any further parole violations, as Defendant admitted that he had consumed alcohol while on parole, which is a parole violation. An Erie County Detective and a police officer from the City of Erie accompanied Agent Kuhn to 5432 West Ridge Road for security reasons. In his search of the apartment, Agent Kuhn verified that Defendant did reside there and also discovered contraband. Upon discovery of the contraband, Agent Kuhn ceased the search.

(Slip Op., Domitrovich, J., 9/9/94, pp. 2-3.)

On appeal to this Court, appellant argues the trial court erred in denying his motion to suppress the evidence obtained by the parole officer. In In the Interest of McElrath v. Commonwealth, 405 Pa.Super. 431, 592 A.2d 740 (1991), this Court set forth the standard to review the denial of a motion to suppress evidence.

In reviewing the denial of a motion to suppress evidence, an appellate court has a duty to determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, an appellate court considers only the evidence of the prosecution’s witnesses and so much of the evidence for the defense which remains uncontradicted when fairly read in the context of the record as a whole. When the evidence viewed in this manner supports the factual finding of the suppression court, we will reverse only if there is an error in the legal conclusion drawn from those factual findings.

Id. at 436, 592 A.2d at 742 (citations omitted).

Appellant initially argues the parole agreement signed by him did not authorize a warrantless search of the 5432 West Ridge Road apartment. Subsection number 2 of the agreement states as follows:

2. Your approved residence is listed below and may not be changed without the written permission of the parole supervision staff[.]
.....

On the same page of the agreement, the last paragraph contains the following language:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in the possession of which constitutes a violation of parole/reparole shall be subject to seizure and may be used as evidence in the parole revocation process.

Appellant contends, according to the agreement, the only residence approved by the parole supervision staff was listed on the agreement signed by appellant, and thus they had no authority to search the other residence.

We find this argument to be totally lacking in merit. First, the record reveals appellant gave Agent Kuhn verbal permission and, in fact, handed him the keys to the apartment. The consent was completely voluntary and at no time did appellant revoke his consent to the search. Secondly, the signed agreement provides the parole supervision staff with authority to search appellant’s “residence.” The restriction in paragraph 2 which requires a change of residence to be approved in writing is not meant to be a restriction on appellant’s parole officers. Rather, it is a restriction of appellant to permit his parole agent to effectively monitor his compliance with parole conditions. Appellant’s suggested reading of the two clauses would create an absurd result which would permit parolees to give false information regarding their residence or to quickly change residences without written approval, thus evading supervision at will.

Appellant also argues the search was illegal because the agent requested two police officers to accompany him to verify appellant’s residence. As such, appellant contends once the parole agent verified his residence and then commenced a detailed search of drawers, cabinets, etc., he in effect “switched hats” and became a “stalking horse” for the police.

The record does not support appellant’s argument. Prior to the search, appellant admitted to the agent he had been consuming alcohol in violation of his parole. The officer then sought and received permission from appellant to conduct a search to verify his residence and locate additional probation violations. Agent Kuhn testified he asked the officers to accompany him not to assist in the search but to provide protection. In addition, the record reveals the police officer in question was a member of the City of Erie Bureau of Police and thus outside his jurisdiction while Agent Kuhn searched the Millcreek Township residence. Accordingly, we find no evidence Agent Kuhn was acting as a “stalking horse” for the police.

Finally, appellant argues the parole agreement is overbroad and coercive in nature and violates a parolee’s rights against unreasonable search and seizure as guaranteed by the fourth amendment of the United States Constitution. He contends the express consent provided in the agreement strips him of any right to privacy and his signature on the agreement was not consensual as he had no choice other than remaining in jail.

When presented with an issue raising both constitutional and nonconstitutional grounds, this Court must make a determination on nonconstitutional grounds if possible and avoid the constitutional question. Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992). In this case, there were two grounds for authorizing the search: 1) the written parole agreement and 2) appellant’s uncoerced statement to Agent Kuhn consenting to a search. Accordingly, we find the verbal consent sufficient to authorize a valid search, and thus we need not address the constitutional issue raised by appellant.

Judgment of sentence affirmed.

      . 35 P.S. § 780-113(a)(32).


author: POPOVICH, Judge.

text:
    657 A.2d 8
    COMMONWEALTH of Pennsylvania, Appellant, v. Jason Michael PROCTOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed April 6, 1995.

      Merritt E. McKnight, Dist. Atty., Lock Haven, for Com., appellant.
    Stephen C. Smith, Pittsburgh, for appellee.

      Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge.

The Commonwealth appeals the order of the Court of Common Pleas of Clinton County granting the motion to suppress filed by the defendant/appellee, Jason Michael Proctor. We reverse.

[WJhere the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.

Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 139 (1983).

Application of this standard to the instant case indicates that the defendant offered no testimony at the suppression hearing, and the Commonwealth’s uncontradicted testimony at the suppression hearing was as follows. Near midnight of September 11, 1993, Pennsylvania State Police Corporal Thomas V. McLaughlin was dispatched to a fatal accident in Bald Eagle Township on State Route 150 in Clinton County. Upon the trooper’s arrival, the defendant was observed behind the wheel of a vehicle, and he indicated that he was its operator.

As the trooper examined the scene, he observed “a terrible skid mark coming down the road and it ... was caused by th[e defendant’s] vehicle.” N.T. 8. When the trooper asked the defendant about the accident, he was told:

I was at the top of the hill. I saw a motorcycle coming. I thought he hit my mirror. As soon as he hit me, I shot into the other lane and got it back over and coasted to where I am now.

Id. at 9. The defendant’s use of the word “coasted” to describe his actions after impact seemed implausible to the trooper since “the skid marks could visually be observed” for at least a tenth of a mile from the top of the hill. This caused the trooper to have doubts about the defendant’s version of what occurred. After visually inspecting the skid marks, the trooper testified:

I came back to Mr. Proctor and I smelled alcohol on his breath. I thought I smelled it initially, but I got a better smell at this time, and he advised me that he had a couple of beers earlier.

Id. Further, in questioning the defendant, the trooper detected a “very irregular” speech pattern, a lack of quick responses to his questions and the defendant’s “blank look” when advised that the trooper doubted his explanation of events after impact. This was followed by a field sobriety test which the defendant failed.

Taking into consideration the defendant’s physical condition, irregular speech pattern, inability to describe his involvement in the accident with any degree of specificity, the physical facts being at odds with the defendant’s account and the inability to pass the field sobriety test, the trooper concluded that a crime had been committed and that the defendant was the responsible party. The defendant was arrested and handcuffed when he protested being transported to a local hospital for blood testing.

En route to the hospital, the defendant remarked to Trooper James R. Edwards that “he hope[d] that he didn’t know the person [operating the motorcycle] and ... if [the trooper] knew who it was.” Id. at 21. The trooper responded that he did not know the decedent. Once at the hospital, blood was drawn after the defendant was advised of his Miranda rights and the implied consent law.

At the close of the hearing, the court heard argument from counsel before concluding that the defendant’s acknowledgement of consuming “a couple of beers” was suppressible as the product of a “custodial interrogation.” This appeal ensued and challenges the court’s suppression of the defendant’s admission to ingesting beer. The court’s ruling was premised upon the following; to-wit:

While Trooper McLaughlin’s testimony was somewhat unclear as to how the Defendant’s acknowledgement that he had “had a couple of beers” arose, the Court believes that aspect of the investigation took place after Trooper McLaughlin had walked the skid marks. In any event, the Court believes that once Trooper McLaughlin had walked the skid marks to confirm what he believed to be inconsistencies between the Defendant’s version of the accident and the physical facts, the Defendant could reasonably have believed that he was then under custodial interrogation. While neither the District Attorney nor defense counsel inquired specifically as to whether Defendant was advised to remain at the scene while Trooper McLaughlin walked the skid marks, the court must assume that Defendant believed he was required to do so. Moreover, the Court must reasonably conclude that Defendant’s admission regarding the consumption of alcoholic beverages was made in response to a specific inquiry from Trooper McLaughlin. Under such circumstances, Defendant should have been given Miranda warnings. Therefore, reference to Defendant’s admission of such consumption will be suppressed.

Suppression Court Opinion, 4/23/94 at 5-6 (Emphasis added). We disagree.

In this Commonwealth, the test for custodial interrogation is whether the suspect is physically deprived of his freedom in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by said interrogation. Commonwealth v. Gonzalez, 519 Pa. 116, 546 A.2d 26, 29 (1988); Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74, 84 (1987); Commonwealth v. Reed, 400 Pa.Super. 207, 583 A.2d 459, 462-63 (1990). Once it is established that a defendant is in custody (or his freedom of movement is curtailed in any significant way), Miranda warnings are necessary as a condition precedent to the admission of the accused’s inculpatory statements. Id.

In resolving the issue at hand, we are guided by the United States Supreme Court decision of Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), wherein an Ohio State trooper stopped the defendant after observing him weave across the roadway. When the defendant had difficulty standing, the trooper concluded that he would be charged with a traffic offense and his freedom to leave was terminated. However, the defendant was not informed that he had been taken into custody. Rather, the defendant was asked to perform a field sobriety test, which he failed, and whether he had used intoxicants. The defendant admitted that “he had consumed two beers and had smoked several joints of marijuana a short time before.” Additionally, the defendant’s speech was slurred and the trooper had difficulty understanding him. The trooper thereupon formally arrested the defendant and transported him to jail.

At the jail, an intoxilyzer test was administered to the defendant but it proved negative. Thereafter, in response to questions from the trooper, the defendant admitted that he had been drinking and under the influence of alcohol. At no time during this sequence of events was the defendant advised of his Miranda rights.

The defendant was charged with driving while under the influence of alcohol and/or drugs. He moved to suppress the various incriminating statements as violative of his Fifth Amendment rights. The trial court denied the motion, and the defendant pleaded “no contest.” Following sentencing, the defendant’s conviction was reversed by the Sixth Circuit Court of Appeals as violative of Miranda. On certiorari, the United States Supreme Court ruled that roadside questioning of a driver did not rise to the level of “custodial interrogation.” More specifically, as herein germane, the Court observed:

In short, the atmosphere surrounding an ordinary traffic stop is substantially less “police dominated” than that surrounding the kinds of interrogation at issue in Miranda itself, see 384 U.S., at 445, 491-498, 86 S.Ct., at 1612, 1636-1640, and in the subsequent cases in which we have applied Miranda.
In both of these respects, the usual traffic stop is more analogous to a so-called “Terry stop,” see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), than a formal arrest. Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose “observations lead him reasonably to suspect” that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly in order to “investigate the circumstances that provoke suspicion.” United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975). “[T]he stop and inquiry must be ‘reasonably related in scope to the justification for their initiation.’ ” Ibid quoting Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884. Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer’s suspicion. But the detainee is not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause to arrest him, he must then be released. The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinion that Ten-y stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not “in custody” for the purposes of Miranda.
******
Turning to the case before us, we find nothing in the record that indicates that [defendant] should have been given Miranda warnings at any point prior to the time [the Ohio State] Trooper ... placed him under arrest. For the reasons indicted above, we reject the contention that the initial stop of [defendant’s] car, by itself, rendered him “in custody.” And [defendant] has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. At no point during that interval was [defendant] informed that his detention would not be temporary. Although [the Ohio State] Trooper ... apparently decided as soon as [defendant] stepped out of his car that [defendant] would be taken into custody and charged with a traffic offense, [the Ohio State Trooper] never communicated his intention to [defendant]. A policeman’s unarticulated plan has no bearing on the question whether a suspect was “in custody” at a particular time; the only relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation. Nor do other aspects of the interaction of [the Ohio State Trooper] and [defendant] support the contention that [defendant] was exposed to “custodial interrogation” at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked [defendant] a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest.
We conclude, in short, that [defendant] was not taken into custody for the purposes of Miranda until [the Ohio State Trooper] arrested him. Consequently, the statements [defendant] made prior to that point were admissible against him.

468 U.S. at 438-440, 441, 104 S.Ct. at 3149-3150, 3151-3152 (Emphasis added; footnotes omitted). Accord Commonwealth v. Bruder, 488 U.S. 9, 10-12, 109 S.Ct. 205, 207, 102 L.Ed.2d 172 (1988) (Ordinary traffic stops do not involve custody for purposes of Miranda); Commonwealth v. Toanone, 381 Pa.Super. 336, 553 A.2d 998 (1989).

Consistent with the dictates of Berkemer, supra, 468 U.S. 420, 104 S.Ct. 3138, we observe that the defendant remained at the scene for a short period of time to allow Trooper McLaughlin to complete his investigation (e.g., “23:34 hours” arrival time, with Miranda warnings given at the hospital at “00:19 hours” following his arrest). Second, at no state of the investigation was the defendant informed that his detention would not be temporary. Third, a single trooper questioned the defendant at the scene, resulting in the defendant’s admission to the consumption of alcohol. See Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412, 422 n. 6 (1988) (Defendant’s admission to consuming a “few beers” during questioning at the scene of a vehicular accident not sufficient probable cause to believe that defendant was intoxicated). Fourth, the field sobriety test was conducted in plain view of passing motorists, and, thus, did not constitute coercive activity equivalent to stationhouse interrogation by police triggering one’s Miranda rights.

Additionally, the defendant had a duty under the Motor Vehicle Code to remain at the scene and cooperate with police in their investigation of the accident (e.g., supplying identification and documentation of vehicular ownership and insurance coverage). See 75 Pa.C.S.A. §§ 3742, 3743 and 3744; Gonzalez, supra, 519 Pa. 116, 546 A.2d 26.

Consequently, in short, the defendant was not taken into custody for the purpose of invoking Miranda until Trooper McLaughlin arrested him for transportation to the hospital to draw blood for testing. See Berkemer, supra, 468 U.S. 420, 104 S.Ct. 3138; Gonzalez, supra, 519 Pa. 116, 546 A.2d 26; Toanone, supra, 381 Pa.Super. 336, 553 A.2d 998. Stated otherwise, our review of the record establishes that the defendant’s stay at the accident scene was for a short period to facilitate Trooper McLaughlin’s investigative responsibilities to establish what occurred and who was involved. It was during this investigative detention, see Douglass, supra, 372 Pa.Super. 227, 539 A.2d 412, that the defendant “advised” the trooper that he had been drinking.

Accordingly, we hold that questioning the defendant, and his remaining at the accident site while the trooper investigated the physical evidence (e.g., skid marks), did not inhibit his freedom of movement in any significant way sufficient to activate the necessity for Miranda rights. To the extent that the suppression court holds to the contrary, we reverse. Bruder, supra, 488 U.S. 9, 109 S.Ct. 205; Berkemer, supra, 468 U.S. 420, 104 S.Ct. 3138; Gonzalez, supra, 519 Pa. 116, 546 A.2d 26; Toanone, supra, 381 Pa.Super. 336, 553 A.2d 998.

Order reversed. Jurisdiction is relinquished.

      . The Commonwealth avers in its supplemented brief that the suppression court's order "substantially handicaps the prosecution.” Contrast Commonwealth v. Proctor, 439 Pa.Super. 207, 653 A.2d 696 (1995). This certification satisfies the condition precedent to the Commonwealth's right to appeal. Id.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . One should not forget that Trooper McLaughlin was dispatched to the scene of a vehicular accident. His first observation as he approached the scene was of skid marks leading to the defendant’s van. On questioning from the trooper, the defendant stated that the motorcyclist had struck his side mirror. He reacted by "coasting” to a stop after impact.
      Because the physical facts did not support the defendant’s version of what occurred, Trooper McLaughlin's investigation continued with an examination of the skid marks. After completion of the examination, the trooper returned to the defendant's location. It was at this point in time that the defendant “advised” the trooper that he had "a couple of beers earlier.” Additional questioning followed when the trooper detected an odor of alcohol emanating from the defendant. And, with the defendant’s slurred speech and hesitation in responding to questioning, field sobriety tests were conducted and failed. Viewing the evidence in concert, the trooper then decided to arrest the defendant and not before. The investigation had not been completed prior thereto.