author: CIRILLO, President Judge:

text:
    558 A.2d 556
    Ernestine Walker SANDERS v. Mike SANDERS, Jr., Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1989.
    Filed May 3, 1989.

      William Goldstein,. Philadelphia, for appellant.

      Allen N. Abrams, Philadelphia, for appellee.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   CIRILLO, President Judge:

This is a consolidated appeal from two orders entered in the Court of Common Pleas of Philadelphia County. The parties, appellee Ernestine Walker Sanders (“Mrs. Sanders”) and appellant Mike Sanders, Jr., (“Sanders”) were married in 1972 and divorced in 1980. Previously, Mrs. Sanders had been married to Mr. James Walker (“Walker”). During her marriage to Walker, two children were born, Sheila and Steven. This dispute involves the paternity and support of Steven. Steven’s birth certificate identifies his mother as Ernestine Walker, appellee here, and his father as James Walker.

When appellee and Walker separated, appellee filed a complaint for support against Walker. On April 4, 1972, an order was entered in the Court of Common Pleas, Family Court Division, D.R. # 256613, requiring Walker to pay $18.00 a week for each of his two children, Sheila and Steven. In September of 1981, the order as to Sheila was vacated as of July 6, 1981, the date of her eighteenth birthday, and the order as to Steven was increased to $25.00 per week. This amendment was agreed upon by the parties and reduced to a formal court order and entered on September 4, 1981, D.R. # 256613. No appeal was taken.

In April of 1979, Mrs. Sanders filed a complaint for support against Sanders on behalf of Steven and also on behalf of Celeste, a daughter born during her marriage to Sanders. In February of 1982 the parties entered into a settlement agreement, which was approved by the court. In that agreement, Sanders was required to pay $83.00 per week for child support. The agreement stated that Steven and Celeste Sanders were the “minor children of Mike Sanders, Jr. and Ernestine Walker Sanders.” The parties entered into a stipulation which provided that Mrs. Sanders would not “initiate or file any action in any court to increase support for their children, Steven and Celeste[.]” Thereafter, in August of 1985, Mrs. Sanders filed a complaint for support. The hearing officer proposed that support be increased from $83.00 per week to $160.00 per week. As a result of testimony from that hearing, it was determined that Mrs. Sanders was already receiving $100.00 per month in voluntary support for the minor child Steven from Walker, her first husband. Notwithstanding the consensual support order between Mrs. Sanders and Walker, Mrs. Sanders maintained that appellant Sanders is Steven’s natural father.

Sanders filed exceptions to the proposed support order. These exceptions were granted, and the case was remanded for specific findings of fact and conclusions of law as to appellant’s obligation to support Steven. At that hearing, Mrs. Sanders testified that Steven was born during her marriage to Walker, and that Walker was identified as the father on Steven’s birth certificate. Despite this, she maintained that Sanders was the natural father of Steven. The court ordered the parties to submit to blood tests, after which the matter was to be re-listed to resolve the issue of paternity.

Sanders took exception to the court’s order, arguing that the court was without jurisdiction to order blood tests since a previous agreement for an order of support between Mrs. Sanders and Walker had already established the paternity of Steven. These exceptions were denied, and Sanders was ordered to pay $160.00 per week for both children. The order was dated March 12, 1987. On April 7, 1987, this order was vacated pending adjudication of Sanders’ motion for reconsideration. On May 13, 1987, the order was amended, reinstating the original temporary order of $83.00 per week. On December 2,1987, the trial court entered the following order for support:

The Court finds that the Order of March 12, 1987 was entered in error since the proposed order of $160.00 per week was no longer in existence after the remand. Wherefore, the defendant’s Motion to Reconsider is Granted, and the Order of March 12, 1987 is hereby Vacated.
The temporary order of October 23, 1985 requiring the defendant to pay $83.00 per week is continued. Further, Ernestine Walker Sanders, Mike Sanders, Jr. and the child, Steven, are to submit to H.L.A. blood studies. Re-list before Judge Levin upon completion of tests. This Court will reserve decision on the issue of the Court’s right to determine paternity because of the prior adjudication in the James Walker case.

Sanders did not appear for the blood tests and filed an appeal on December 23, 1987 from the temporary support order of December 2, 1987. On March 22, 1988, the court found him in contempt. Two days later Sanders filed an appeal from the order holding him in contempt. Pursuant to the parties’ stipulation, the appeals were consolidated.

Sanders raises one issue for our review: Does the entry of an order for support of a child from which no appeal was taken necessarily determine the issue of paternity and therefore bar further reconsideration of that issue at a later date? The order to which appellant refers is the consensual support order between Mrs. Sanders and Walker, from which Walker never appealed. Sanders argues that this order established Walker as the father of Steven, that since no appeal was ever taken from that order the parties are precluded from relitigating the paternity issue, and that therefore the support order and the contempt order should be vacated.

We note initially that the December 2 order is a hybrid order, containing both an order for support and an order directing Sanders to submit to blood testing. That part of the order pertaining to support is a temporary order, not a final order. The appeal, therefore, is premature and must be quashed. DeWald v. Pauline, 312 Pa.Super. 391, 458 A.2d 1016 (1983) (final order is one which ends litigation, or alternatively, disposes of the entire case; an order is interlocutory and not final and appealable unless it effectively puts the defendant “out of court”); Nixon v. Nixon, 312 Pa.Super. 313, 458 A.2d 976 (1983) (where no final order of support exists, the order is interlocutory and unappealable).

With respect to that part of the order requiring Sanders to submit to blood testing, we find the appeal therefrom is properly before us. See Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 558 A.2d 548 (1989); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 303 n. 3, 472 A.2d 1128, 1130 n. 3 (1984); see also Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963) (an appeal may be maintained from an order directing a blood test to determine paternity entered in a support action, and such appeal is not subject to dismissal on the theory that the order is interlocutory). Sanders argues that the court’s order requiring him to undergo H.L.A. blood testing is improper because the issue of paternity is settled. Sanders argues that the case of R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980), is controlling.

In R.J.K., the parties lived together at various times between 1972 and 1977. During this time, two children were born. The parties were separated, although appellee/mother continued to see her husband, the appellant, on an irregular basis. She also persuaded appellant to sign a support agreement for one of her children, and later, to agree to an increase in the support to include her second child. Both consensual support orders were approved by the court. No appeal was taken from either order. Appellant failed to comply with the support order, and appellee filed a rule to show cause why the appellant should not be held in contempt. In response, appellant filed a petition to strike the support order. The petition was denied, and appellant was found in contempt. He appealed, and this court affirmed, reiterating the well-settled rule that entry of a court order for support of a child, from which no appeal is taken, necessarily determines the issue of paternity. Id., 279 Pa.Superior Ct. at 73-74, 420 A.2d at 750. Absent an appeal, the doctrine of res judicata “operates to foreclose any subsequent challenge on the issue of paternity.” Id., 279 Pa.Superior Ct. at 74, 420 A.2d at 751, citing Commonwealth ex rel. Nedzwecky v. Nedzwecky, 203 Pa.Super. 179, 199 A.2d 490 (1964). See also Wachter v. Ascero, 379 Pa.Super. 618, 621, 550 A.2d 1019, 1020 (1988) (absent an appeal taken directly from the order of support, or the showing of fraud in relation to that order, the aggrieved party is foreclosed from challenging the paternity of the child; the issue of paternity is established as a matter of law); Shindel v. Leedom, 350 Pa.Super. 274, 278, 504 A.2d 353, 355 (1986); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 174, 384 A.2d 1285, 1287 (1978).

An examination of the case law reveals that in the cases applying the doctrine of res judicata for the purpose of precluding relitigation of the paternity issue, the party appealing or contesting his paternity was the same party who was previously ordered to pay support, or who had previously entered into a consensual order of support. In order for the doctrine to apply, there must be a coalescence of (1) identity of cause of action; (2) identity of persons to the action; (3) identity of the quality or capacity of the parties; and (4) identity of the thing sued upon. Gardner v. Gardner, 371 Pa.Super. 256, 261, 538 A.2d 4, 7 (1988); Brandschain v. Lieberman, 320 Pa.Super. 10, 466 A.2d 1035 (1983). In the cases we have reviewed, there existed an identity of the parties to both causes of action. See, e.g., Wachter v. Ascero, 379 Pa.Super. 618, 550 A.2d 1019 (filed Dec. 1, 1988); Schultz v. Connelly, 378 Pa.Super. 98, 548 A.2d 294 (1988); Gardner v. Gardner, 371 Pa.Super. 256, 538 A.2d 4 (1988); Barclay v. Barclay, 367 Pa.Super. 529, 533 A.2d 143 (1987); Manze v. Manze, 362 Pa.Super. 153, 523 A.2d 821 (1987); Shindel v. Leedom, 350 Pa.Super. 274, 504 A.2d 353 (1986); Chrzanowski v. Chrzanowski, 325 Pa.Super. 298, 472 A.2d 1128 (1984); R.J.K. v. B.L., 279 Pa.Super. 71, 420 A.2d 749 (1980); Armstead v. Dandridge, 257 Pa.Super. 415, 390 A.2d 1305 (1978); Commonwealth ex rel. Palchinski v. Palchinski, 253 Pa.Super. 171, 384 A.2d 1285 (1978). Unlike the usual case, in which the putative father against whom a consensual order or court order has already been entered later contests his paternity, here we have the rare case where two men are paying support for the same child, and both men have apparently acknowledged the child as their son during the time when they were married to Mrs. Sanders, respectively. Sanders relies upon the support order against Walker to show that Walker’s paternity has been established as a matter of law, thus barring relitigation of the paternity issue.

Hypothetically, if Walker were to contest his paternity, the support order entered against him from which no appeal was taken would bar reconsideration on his behalf. R.J.K., supra. However, the situation before us is novel. We must decide whether a putative father, against whom a temporary support order has been entered, can rely upon a determination of paternity resulting from the presumptive father’s failure to appeal a support order entered against him, in order to preclude relitigation of the paternity issue.

The trial court concluded that Mr. Sanders could not rely upon a support order entered against another man to prevent the court from determining who the natural father of the child is. The court stated: “We find that this argument cannot prevail where, as here, the defendant is attempting to use R.J.K. to preclude the court from finding out who the real father is. Moreover, [Sanders] cannot refuse to take the blood test simply because Walker had entered into an agreement to support Steven; especially since [Sanders] had also agreed to support him on two separate occasions.” We disagree.

Relitigation of the paternity issue is barred under the doctrine of collateral estoppel. “The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 236, 464 A.2d 1313, 1318 (1983). See Norris v. Beck, 282 Pa.Super. 420, 422 A.2d 1363 (1980) (paternity is necessarily adjudicated in entering the initial support order); see also Zampetti v. Cavanaugh, 406 Pa. 259, 265, 176 A.2d 906, 909 (1962) (“a consent decree ... binds the parties with the same force and effect as if a final decree had been rendered after a full hearing on the merits.”)

Unlike res judicata, there is no requirement that there be an identity of parties between the two actions to invoke the bar. “Parties to a subsequent action need not be the same as those in the prior suit in order to raise the question of collateral estoppel. Collateral estoppel may be used as either ‘a sword or a shield’ by a stranger to the [prior] action, as long as the party against whom the defense is invoked is the same.” [citations omitted]

Day, 318 Pa.Super. at 236-37, 464 A.2d at 1319.

A plea of collateral estoppel is valid if: (1) the issue decided in the prior adjudication was identical with the one presented in the later action; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. In re Estate of R.L.L., 487 Pa. 223, 228 n. 8, 409 A.2d 321, 323 n. 8 (1979).

We find that Mrs. Sanders, who filed a complaint for support against Sanders after a consent order had already been entered against Walker for support of the same child, is collaterally estopped from raising the issue of paternity and seeking support from Sanders. All of the elements for a valid claim of collateral estoppel exist here: the issue of paternity was adjudicated by entry of the initial order against the presumptive father, Walker, Norris v. Beck, supra; the consent order between Mrs. Sanders and Walker was a final judgment on the issue of paternity, binding the parties with the same force and effect as if there had been a full hearing on the merits and a final decree rendered, Zampetti v. Cavanaugh, supra; the party against whom the “shield” is asserted, Mrs. Sanders, was a party to the prior adjudication (the consent order between Mrs. Sanders, then Mrs. Walker, and James Walker); and, the party against whom collateral estoppel is asserted, Mrs. Sanders, has had a full and fair opportunity to litigate the issue in question in a prior action. Mrs. Sanders had the opportunity, as well as the knowledge, to fully and fairly litigate the issue of the child’s paternity during the proceedings with Walker. However, at that time she chose not to do so. Mrs. Sanders later filed for support from appellant Sanders. For some time, then, Mrs. Sanders received support from two sources for the same child. Although Mrs. Sanders stated that she had informed Walker, her husband at the time Steven was born, of his non-paternity, she nonetheless assigned paternity to him on the birth records, permitted him to support the child and assume parental duties, and, after separation, she sought and received support payments on behalf of Steven from him. Mrs. Sanders is therefore estopped from seeking support for the same child from another source.

Although it is certainly possible that Sanders is the child’s biological father, once paternity in Walker had been determined as a matter of law, paternity was no longer a relevant fact. A mother simply cannot attempt to establish paternity in someone after paternity has already been established under the law; she cannot seek and receive child support from two men for the same child. This is a legal impossibility. See Commonwealth ex rel. Coburn v. Coburn, supra (paternity is only a “relevant fact” when paternity has not been established either by consent or order in a prior proceeding); Manze v. Manze, 362 Pa.Super. 153, 162, 523 A.2d 821, 825 (1987) (where paternity has been established either by consent or order, paternity is not a relevant fact in a later proceeding). This court has previously held that a father is estopped from denying paternity by long delay in raising the issue at all (assuming he was aware of non-paternity) and by his acceptance and support of the child during that time. Commonwealth ex rel. Gonzalez v. Andreas, 245 Pa.Super. 307, 369 A.2d 416 (1976); Commonwealth ex rel. Weston v. Weston, 201 Pa.Super. 554, 193 A.2d 782 (1963); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). More recently, in Seger v. Seger, 377 Pa.Super. 391, 547 A.2d 424 (1988), we stated:

If a father’s conduct works an estoppel on his assertion of non-paternity in a support matter, there is no principle in law which would prevent the same application to a case, such as here, where the mother informs the father he is responsible for the pregnancy, marries him, assigns paternity to him on the birth certificate, permits him to support the child for years, and [later] repudiates his paternity. Under these circumstances, permitting a blood test was improper and denying visitation rights is impermissible.

Id., 377 Pa.Superior Ct. at 397, 547 A.2d at 427. In Seger, appellant/father and appellee/mother were married on September 3, 1977. A daughter, Jessica, was born during the marriage. Appellant was named as the father on the birth records. When Jessica was four years old, the mother told appellant that Jessica was not his daughter. Appellant continued to raise and support Jessica until the mother moved to Florida in 1986, taking Jessica with her. Id., 377 Pa.Superior Ct. at 393-94, 547 A.2d at 425.

Appellant then filed a complaint for custody of Jessica. Following a hearing on the complaint, temporary custody was awarded to appellant, with the court ordering the parties and Jessica to undergo blood tests. The results of the tests indicated that appellant was not Jessica’s biological father. Thereafter, the court granted custody of the child to the mother, with “liberal visitation rights to be agreed upon by the parties” to appellant, even though the court found appellant had no legal right to visit the child. The order, however, proved unworkable, and appellant filed a petition for contempt against appellee for failure to comply with the visitation order. Following a hearing on the contempt petition, the court vacated its order and entered a new order finding appellant had “no legal standing to visit with the child in view of the fact that he is not the biological father of said child.” Id. Appellant appealed this order.

Appellant claimed the court erred in denying him partial custody and visitation, notwithstanding the fact he was not the biological father. We held that, under the facts of the case, since appellant could not have introduced blood tests to disprove paternity, “neither should appellee be able to do so since the law presumes appellant is the child’s father.” Id., 377 Pa.Superior Ct. at 397, 547 A.2d at 427.

Although the facts of Seger differ from those in the case before us, we conclude that the underlying rationale of Seger is equally applicable to the circumstances in this case. We hold therefore, that Mrs. Sanders is estopped from denying the presumptive father’s paternity, and find that the trial court erred in ordering the parties to undergo blood tests. Cf. John M. v. Paula T., 377 Pa.Super. 72, 546 A.2d 1162 (1988) (putative father has standing to litigate a claim that he is the biological father of a child born to a woman while she was married to another, who is presumed to be the child’s father).

Appeal from temporary order of support is quashed; order finding appellant in contempt is vacated and the case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . We note that the appeal from the March 22 contempt order, docketed at 01029 Philadelphia, 1988, is interlocutory. See Hester v. Bagnato, 292 Pa.Super. 322, 437 A.2d 66 (1981) (unless sanctions are imposed, an order declaring a party in contempt is interlocutory).

      . We note that both orders are entered in the Court of Common Pleas, Family Court Division.

      . The Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. §§ 6131 et seq., provides that where paternity is a relevant fact, the court, upon its own initiative, may order the mother, child, and alleged father to submit to blood tests. 42 Pa.C.S. § 6133. This section applies to all civil matters and certain criminal matters. 42 Pa.C.S. § 6132. However, our cases have limited the trial court’s authority to order testing. Paternity is not a relevant fact, and hence testing cannot be ordered, when paternity has already been established by consent or order in a prior proceeding.- Wachter v. Ascero, supra; Manze v. Manze, supra.

      However, we recognize that potential situations exist where a request for court ordered blood testing would be made on behalf of a child in order to determine the biological father for purposes other than custody, support, or visitation. Today’s advanced medical technology links many diseases and health problems to genetics. Various genetic diseases, such as Tay-Sachs, sickle cell anemia, and heart disease, to name a few, could be detected and treated or cured if the child’s parent or guardian were aware of the potential for such diseases. The potential for contraction of such a disease might alter the individual’s lifestyle and impact upon life decisions. In this situation, paternity is a relevant fact in an action distinct from the traditional custody, support and visitation actions, and good cause exists for court ordered blood testing. See Pa.R.C.P. 4010(a); see also John M. v. Paula T., 377 Pa.Super. 72, 80, 546 A.2d 1162, 1167 (1988) (the “good cause” requirement of Rule 4010(a) is "a limitation upon the right to compel a litigant to submit to the [blood] test[,] ... [and] entails more than mere relevancy.”)
      Our law must keep pace with medical technology. We must recognize these potential situations and, when presented with such, allow blood testing even though it may damage family integrity. Otherwise, we might neglect our primary duty to consider the child’s best interests. See Commonwealth ex rel. Coburn v. Coburn, 384 Pa.Super. 295, 305, 558 A.2d 548, 553 (en banc) (1989) (Cirillo, P.J., concurring).

      . We note that our disposition of this issue does not affect the temporary order of support entered against Sanders on behalf of the parties’ daughter, Celeste.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    558 A.2d 562
    PBS COALS, INC., a Pennsylvania Corporation, Appellee, v. BURNHAM COAL COMPANY, a Pennsylvania Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1988.
    Filed May 10, 1989.

      Richard Disalle, Pittsburgh, for appellant.
    Anthony J. Polito, Pittsburgh, for appellee.
    Before DEL SOLE, JOHNSON and MONTGOMERY, JJ.
   DEL SOLE, Judge:

This is an appeal from a final decree in equity entered in a declaratory judgment action. Appellee, PBS Coals, Inc., (PBS) sought a declaration that it was not responsible for the costs of correcting a mine drainage problem where the agreement transferring interests in the subject properties did not include specific language allocating such a burden. The trial court determined that the agreement imposed no obligation upon PBS to treat the after-discovered drainage problem. We reverse.

The record reveals that Appellant, Burnham Coal Company, (Burnham) drafted an agreement by which it transferred its interests in certain strip-mining properties to PBS. One of the properties being transferred was in need of reclamation work, and the parties acknowledged the estimated cost of reclamation by agreeing upon a reduced price for a piece of equipment to be sold as part of the transaction. The agreement also acknowledged that any obligations owed by Burnham to property owners under previous agreements would be assumed by PBS. An inspection of the dragline to be sold to PBS was made by a PBS official while the equipment sat on snow-covered property which was also to be transferred by the agreement. After the agreement was executed, Burnham withdrew from the property, and PBS began the process of reclaiming the land.

It was not until the Spring thaw that an acid water discharge was discovered on one of the transferred properties, that which a PBS official had visited earlier in order to inspect the equipment being sold by Burnham. The parties agree that if the problem existed at the time the agreement was signed, neither was aware of it. After the drainage was discovered, the parties met at the site and discussed various options for treating it. Although PBS denied that it was responsible for correcting the situation because it had never mined the property and Burnham had, the fact that PBS had men and equipment on site and that a generally amicable business relationship still existed between the parties caused PBS to make the initial efforts to correct the situation. PBS, by this course of conduct, also hoped to prevent the drainage problem from adversely affecting the other five permits issued on the transferred properties. If a violation had been discovered on property covered by one of the permits, all other permits issued under the same mine drainage permit would have gone into violation; such an occurrence would have prevented PBS from mining any remaining coal and would have resulted in the loss of revenue it expected to gain when it entered into the agreement with Burnham. Because the DER will not issue a permit to any coal company whose operations are in violation of DER regulations, PBS would have been significantly impaired in its coal mining operations if it had been required to have the permit covering the subject property placed in its name. Because of the drainage problem, PBS refused to tender the $276,000 balance which it owed Burnham for the equipment transferred earlier as part of the transaction. Discussions took place between the parties regarding the outstanding debt, the drainage problem and the DER permits. A letter was eventually signed by both parties in an effort to resolve the situation. Burnham agreed to maintain the relevant DER permit in its name, and PBS agreed to remit the balance of its outstanding debt.

Upon discovery of the discharge by the Pennsylvania Department of Environmental Resources (DER), Burnham was advised that penalties would be assessed against it pursuant to the Pennsylvania Clean Streams Law, 35 P.S. § 691.1 et seq. and the Surface Mining Conservation and Reclamation Act, 52 P.S. § 1396.1 et seq. unless measures were taken to correct the problem. Burnham notified PBS that when such penalties were assessed, Burnham would seek to enforce the agreement, which it asserted, placed responsibility for complying with leasehold obligations, including environmental laws, upon PBS. PBS subsequently instituted this action, and Burnham filed a counterclaim seeking reimbursement for the costs incurred in treating the discharge under a consent adjudication with the DER. The trial court found the agreement ambiguous and admitted extrinsic evidence in order to clarify the parties’ intent. Having considered the circumstances under which the parties negotiated, the trial court interpreted the agreement as imposing only reclamation liabilities.

Burnham argues that the agreement was unambiguous and that it was error for the trial court to admit extrinsic evidence. Specifically, Burnham maintains that it was error for the trial court not to adopt the common meaning of the term ‘as is’. ” when reviewing Paragraph 3 of the agreement in question. That section states: “PBS agrees that it will accept the properties upon which Burnham has operated under any of the agreements assigned hereby “as is.” The term “as is” has been accepted in the context of the sale of goods as meaning without implied warranties and with all faults. See 13 Pa.C.S. § 2316(c)(1). It is Burn-ham’s view that the clause obligates PBS to assume all liabilities, of whatever origin.

The use of the term, “as is” in the context of a transfer of real property interests presents a question of first impression in Pennsylvania. Other jurisdictions, however, have addressed the issue. In Craven v. Elmo, D.C.App., 442 A.2d 526 (1982), the sales contract which effectuated a property transfer contained an “as is” clause. The purchaser refused to proceed with the sale unless all outstanding housing code violations on the premises were corrected. The District of Columbia Court of Appeals held that the property was intended to be sold “as is,” thereby relieving the seller of any contractual obligation to remedy the violations. Similarly, in 1845 Ocean Associates v. Stein, 87 A.D.2d 765, 449 N.Y.S.2d 54 (1982), the sales contract transferring an apartment building contained an “as is” clause. After the closing, it was discovered that the building’s compactor was not in working order. The purchasers were denied the damages they sought for the cost of repair since the passing of title on an “as is” basis was held to extinguish any claim for after-discovered defects or breakdowns. The court also stated that the buyer’s remedy is to inspect prior to closing in order to make adjustments at the time of closing. While these cases involve the transfer of real property in the form of physical structures, an “as is” clause has also been employed in the transfer of undeveloped land. In In re Hawaii Daiichi-Kanko, Inc., 24 B.R. 163 (Bankr.D.Haw.1982), forty-four acres were conveyed under an agreement which contained an “as is” clause. The court held that the term “as is” means that the property is to be sold in its then-existing physical condition. ■ Quoting an earlier case, the opinion pointed out that “as is” merely means that the purchaser must take that for which he bargained. And finally, in Lenawee County Bd. of Health v. Messerly, 417 Mich. 17, 331 N.W.2d 203 (1982), the court interpreted an “as is” clause to mean that the risk of loss was to be placed upon the purchasers of an apartment building. If the “as is” clause was to have any meaning at all, the court held, it must be interpreted to refer to those defects which were unknown at the time that the contract was executed. We find the reasoning of these cases, in light of the particular facts of the instant case, to be persuasive.

The paramount goal of contractual interpretation is to ascertain and give effect to the intent of the parties. Greene v. Oliver Realty Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). In determining the intent of parties to a written agreement, the court looks to what they have clearly expressed, for the law does not assume that the language of the contract was chosen carelessly. Daniels v. Bethlehem Mines Corp., 391 Pa. 195, 137 A.2d 304 (1958). Here, the agreement contained a term which has common meaning; when something is accepted “as is” the buyer is put on notice that there may be liabilities attendant to the purchase. The warranties which may otherwise be implied by law do not attach when the buyer agrees to accept the goods in the condition in which they are found. While the harshness of placing the risk of loss in such a situation on an inexperienced consumer has sometimes been avoided by the courts, the facts of this case do not present us with a basis for relieving PBS of the burden here. The individuals who signed this agreement are seasoned businessmen who can safely be presumed to be familiar with terms of common usage in business transactions. The fact that the “as is” clause was applied to a transfer of real property interests as opposed to the sale of goods is not a sufficient basis for permitting PBS to plead ignorance of the meaning of that term. If PBS intended to avoid any potential liability arising from the purchase of these properties, it was necessary to bargain for a clause to that effect before executing the agreement. This is especially true where a PBS official testified that acid water is one of the company’s primary concerns when inspecting sites for potential mining operations. (N.T. 9/17/86 at 117). In the absence of allegations of fraud, mistake, overreaching or the like, it is not the function of the court to redraft a contract to be more favorable to a given party than the agreement which that party chose to enter. Borrell v. Borrell, 346 Pa.Super. 1, 498 A.2d 1339 (1985). PBS has not alleged that the agreement was executed under circumstances which would require the court to exercise its equitable powers in order to avoid an injustice. Accordingly, it was error for the trial court to conclude that the agreement imposed no obligation upon PBS to treat the after-discovered drainage problem. That responsibility rests squarely upon PBS. Moreover, Burnham was entitled to the money damages for which it counterclaimed.

Decree reversed. Case remanded for the entry of a final decree consistent with this opinion. Jurisidiction relinquished.


author: OLSZEWSKI, Judge: WIEAND, Judge,

text:
    558 A.2d 565
    Thomas I. DAWSON, Appellant, v. Patricia Lynn FOWLER, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed April 3, 1989.
    Petition for Allowance of Appeal Denied Oct. 2, 1989.

      David L. Lutz, Harrisburg, for appellant.
    Theresa E. Shade, Harrisburg, for appellee.
    Before WIEAND, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

Appellant, Thomas I. Dawson, appeals from an order denying his motion for a new trial. Appellant maintains that the trial court erred in failing to grant a new trial when the jury’s verdict: (1) did not include consideration of appellant’s lost wages and pain suffered; and (2) represented a “compromise verdict.” For reasons discussed below, we affirm.

On May 4, 1985, appellee, Patricia Lynn Fowler, backed her vehicle from a private driveway onto both lanes of the Blue Mountain Parkway, Dauphin County, in an attempt to proceed south on the Parkway. Appellant, driving his motorcycle in excess of the speed limit in the northbound lane of the Parkway, traversed the crest of a hill a short distance from appellee’s driveway and, with little time to react, collided with the left rear corner of appellee’s vehicle. As a result of the crash, appellant sustained foot and toe injuries and subsequently commenced suit to recover damages for lost wages, pain and suffering, and medical expenses.

Trial by jury commenced on May 5, 1986, and appellant presented evidence at trial of pain and suffering, $382.25 in medical bills, and $1,450.00 in lost wages. Special interrogatories were submitted to the jury. Following deliberation, the jury announced a verdict in favor of appellee. In answer to the special interrogatories, the jury found that the percentage of causal negligence on the part of appellant was 52% and 48% on the part of appellee. In response to individual polling, the jury indicated seven in favor of appellee and five in favor of appellant. The trial court, therefore, instructed the jury to deliberate further. Subsequently, the jury submitted the following question:

Judge Natale, can we give only fifty percent of the medical bills to the plaintiff and nothing more based on fifty percent/f ifty percent negligence. Total award to the plaintiff, $191.13? If so we have a 10 to 2 vote. Albert L. Groves.

The court further instructed the jury that, based upon their question, whatever award they made would be reduced by fifty percent and that a fifty/fifty verdict was, in essence, a plaintiff’s verdict. The court also mentioned that damages included lost wages and pain and suffering. The jury ultimately returned a verdict slip in favor of appellant against appellee for $382.25, together with a finding that there was 50% negligence on the part of each party. Individual polling revealed a ten to two vote in favor of the verdict.

On June 3, 1988, the trial court denied appellant’s motion for a new trial. This timely appeal followed.

Appellant first claims that the trial court erred in denying the motion for a new trial when the jury’s verdict does not account for lost wages and pain suffered. Appellant asserts that the verdict is inadequate and bears no reasonable relationship to the proven work loss and general damages, and therefore, should be set aside. Appellant also urges that the trial court erred in denying the motion for a new trial because “the jury’s verdict represented a ‘compromise verdict’ even though the law and the court’s instruction mandated that the jury separately consider the issue of comparative negligence and then consider damages.” Appellant’s brief at 16. Appellant contends that a compromise verdict has no place in a comparative negligence system; rather, the jury must consider the comparative negligence of the parties before determining plaintiff’s damages.

Our standard of review is well settled:

In Coleman v. Pittsburgh Coal Co., 158 Pa.Super. 81, 43 A.2d 540 (1945), this court stated: “Where the trial court grants a new trial on the ground of inadequacy the appellate courts will not interfere in the absence of a gross abuse of discretion:____ When the trial court refuses relief against an allegedly inadequate verdict the appellate court will exercise even greater caution in reviewing its action.” Id. at 85, 43 A.2d at 542; accord Hevener v. Reilly, [266] Pa.Super. [386], 404 A.2d 1343 (1979); Bronchak v. Rebmann, 263 Pa.Super. 136, 397 A.2d 438 (1979); Cohen v. Food Fair Stores Inc., 190 Pa.Super. 620, 155 A.2d 441 (1959). “[T]he function of determining whether a jury’s verdict is arbitrary and capricious lies with the trial court, and its decisions will not be set aside in the absence of clear error of law or palpable abuse of discretion.” Bronchak v. Rebmann, supra [263 Pa.Super. at] 140, 397 A.2d at 440. While the appellate court will review the entire record to determine whether an inadequate and unjust verdict has occurred, Prince v. Adams, 229 Pa.Super. 150, 324 A.2d 358 (1974), it is “justified in declaring the lower court guilty of such an abuse of discretion only if [it is] clearly convinced by the record that the jury was influenced by partiality or some misconception of the law or the evidence.” Gottlob v. Hillegas, 195 Pa.Super. 453, 457, 171 A.2d 868, 870 (1961).

Gudat v. Heuberger, 275 Pa.Super. 535, 539-40, 419 A.2d 30, 32 (1980).

The amount of a jury verdict will rarely be held inadequate on appeal. Deitrick v. Karnes, 329 Pa.Super. 372, 374, 375, 478 A.2d 835, 836 (1984). Moreover, we emphasize that it is the province of the jury to assess the evidence and to accept or reject conflicting testimony given by witnesses. Bronchak, supra, 263 Pa.Super. at 139, 397 A.2d at 439. Even if testimony is uncontradicted, the jury is not required to accept everything or anything a party presents. Id., 263 Pa.Superior Ct. at 140, 397 A.2d at 440, citing Karcesky v. Laria, 382 Pa. 227, 114 A.2d 150 (1955); Lesoon v. Yellow Cab Company of Pittsburgh, 195 Pa.Super. 470, 171 A.2d 877 (1961). “If the verdict bears a reasonable resemblance to the proven damages, it is not the function of the court to substitute its judgment for that of the jury.” Id., citing Elza v. Chovan, 396 Pa. 112, 152 A.2d 238 (1959).

We have declared that seemingly low and unfair jury verdicts are nevertheless adequate when the jurors are presented with conflicting testimony on liability, contributory negligence, or degree of injury. Deitrick, supra. Instantly, liability was contested. Moreover, regarding appellant’s request for lost wages and pain suffered, our scrutiny of the record reflects that the degree of appellant’s injury, and any resultant pain and suffering, were subject to question. Following the accident, appellant was treated for “some sort of fracture of the left great toe” and released, transcript at 26, and subsequently experienced “uncomfortable pain in my heel and my lower left ankle,” transcript at 55. At the time of the accident, appellant had been working in a temporary position for approximately two weeks. He returned to work after two weeks and did not miss any more time as a result of his injuries. Id. The trial court aptly opined:

In the instant case, the issue of liability was vigorously contested. There was conflicting testimony between the parties. The jury was presented with inconsistent evidence and the amount of its award of damages reflects a compromise verdict. The granting of a new trial in this case limited to the issue of damages would amount to an abuse of discretion.

Opinion at 5. We find that the trial court acted within its discretion in upholding the jury’s verdict.

In addition, we do not agree with appellant that the jury's compromise verdict was improper. Appellant urges that “such a verdict has no place in a comparative negligence system.” Appellant’s brief at 17. Appellant, however, cites no authority for his assertion. We note that neither the comparative negligence statute, 42 Pa.C.S.A. § 7102, nor its interpretive case law, prohibit compromise verdicts and we decline to create such a prohibition. Moreover, we have acknowledged that:

[A] pure negligence doctrine, which reduces the plaintiff’s damages by the amount attributed to his causal negligence regardless of the degree of that negligence, would seem to eliminate the need for compromise verdicts. Conversely, Pennsylvania’s comparative negligence doctrine reduces the plaintiff’s damages in proportion to the amount of negligence for which he is responsible, providing the plaintiff’s negligence is not greater than the defendant’s causal negligence. In Pennsylvania, where the plaintiff is 51% or more causally-negligent, no recovery is permitted. To the extent that no recovery is permitted under Pennsylvania’s comparative negligence doctrine, a compromise verdict may be apropos.

Deitrick, supra, 329 Pa.Super. at 382, 478 A.2d at 840. We hold that notwithstanding a finding of comparative negligence, when liability is contested and conflicting testimony is presented, compromise verdicts are permissible to establish an amount that the jury determined would justly compensate a plaintiff for his loss. Fierman v. Southeastern Pennsylvania Transportation Authority, 277 Pa.Super. 252, 255, 419 A.2d 757, 759 (1980).

Order of the trial court is affirmed.

WIEAND, J., files a dissenting statement.

WIEAND, Judge,

dissenting:

I respectfully dissent. I would reverse and remand for a new trial.


text:
    558 A.2d 860
    James HACKENBERG v. SEPTA and Pennsylvania Financial Responsibility Assigned Claims Plan and Travelers Insurance Company. Appeal of PENNSYLVANIA FINANCIAL RESPONSIBILITY ASSIGNED CLAIMS PLAN and Travelers Insurance Company. James HACKENBERG, Appellant, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY and Pennsylvania Financial Responsibility Assigned Claims Plans and Travelers Insurance Company.
    Superior Court of Pennsylvania.
    Argued Jan. 20, 1989.
    Filed May 3, 1989.

      A. Richard Feldman, Philadelphia, for appellant (at 2033) and for PA Financial, appellee (at 2397).
    Bruce G. Cassidy, Philadelphia, for Hackenberg, appellee (at 2033) and appellant (at 2397).
    Alan C. Ostrow, Assistant City Solicitor, Philadelphia, amicus curiae.
    Before CIRILLO, President Judge, and BECK and TAMILIA, JJ.
   CIRILLO, President Judge:

This is an appeal from an order entered in the Court of Common Pleas of Philadelphia County denying the Travelers Insurance Company’s motion for summary judgment and granting the cross-motion for summary judgment filed by the Southeastern Pennsylvania Transportation Authority (SEPTA). We affirm.

On January 13, 1986, appellant, James Hackenberg, a Philadelphia bus driver, was involved in an accident while driving a bus owned by his employer, SEPTA. The bus was hit in the rear by an uninsured motorist. SEPTA was at that time, and continues to be today, self-insured as to motor vehicle liability. As a result of the mishap, Hackenberg allegedly sustained serious injuries, for which he received workmen’s compensation benefits.

On December 22, 1987, Hackenberg instituted a civil action against SEPTA, the Pennsylvania Financial Responsibility Assigned Claims Plan (Plan), and the Plan’s assigned carrier, Travelers Insurance Company (Travelers). Hackenberg sought uninsured motorist benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa. C.S. §§ 1701-1798 (Financial Responsibility Law). Both SEPTA and Travelers denied liability for Hackenberg’s damages, and on April 13, 1988, Travelers and the Plan (collectively referred to as Travelers) filed a motion for summary judgment, alleging, inter alia, that SEPTA was solely liable to Hackenberg. SEPTA filed a response to Travelers’ motion, as well as a cross-motion for summary judgment on its own behalf. Essentially, SEPTA asserted that section 303(a) of the Workmen’s Compensation Act, 77 P.S. § 481(a), immunized SEPTA from any liability to Hackenberg other than workmen’s compensation benefits.

On June 9,1988, the Honorable Ethan Allen Doty granted SEPTA’s cross-motion for summary judgment, and dismissed all claims against it. Judge Doty found, pursuant to our supreme court’s recent pronouncement in Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988), that SEPTA was immune from liability for uninsured motorist benefits as a matter of law. Furthermore, since Hackenberg did not maintain private liability insurance coverage, Judge Doty reasoned that Travelers, as the assigned carrier under the Plan, would be the proper obligor for uninsured motorists benefits under the Financial Responsibility Law. Accordingly, Judge Doty denied Travelers’ motion for summary judgment. This appeal followed.

The sole issue advanced for our review is whether an employee, who is injured in a motor vehicle accident in the scope of his employment, can be properly excluded from receiving uninsured motorist benefits from his self-insured employer by virtue of section 303(a) of the Workmen’s Compensation Act.

Pennsylvania Rule of Civil Procedure 1035(b) provides, in pertinent part, that on a motion for summary judgment,

[t]he judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

Pa.R.C.P. 1035(b); Dume v. Elkcom Co., 368 Pa.Super. 280, 533 A.2d 1063 (1987) alloc. den. 549 A.2d 915 (1988). When reviewing a trial court’s imposition of summary judgment, we have stated:

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. In so doing, we accept as true all well-pleaded facts in appellant’s pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Summary judgment is appropriate only in those cases which are clear and free from doubt.

Bobb v. Kraybill, 354 Pa.Super. 361, 364, 511 A.2d 1379, 1380 (1986) alloc. den. 513 Pa. 633, 520 A.2d 1384 (1987) (citations omitted). Thus, an appellate court is required to determine the existence of any genuine issues of material fact which the trial court may have overlooked. In so doing, we may reverse the trial court only where there has been an error of law, or a clear or manifest abuse of discretion. Lened Homes v. Department of Licenses and Inspections, 386 Pa. 50, 123 A.2d 406 (1956); Dume, supra; Peters Township School Auth. v. United States Fidelity & Guaranty Co., 78 Pa.Commw. 365, 467 A.2d 904 (1983). Applying these principles, we are faced with the resolution of whether the trial court properly concluded that no genuine issue of material fact existed and that the claim against SEPTA was barred as a matter of law.

Travelers maintains that Judge Doty “went astray by blindly following the result reached by the Supreme Court in Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988).” Lewis, it contends, dealt with a claim for uninsured motorist benefits under the old Uninsured Motorist Act, 40 P.S. § 2000, and not the Financial Responsibility Law. Travelers asserts that section 1735 of the Financial Responsibility Law, which was enacted ten years after section 303(a) of the Workmen’s Compensation Act, embodied a conscious effort by our legislature to modify the exclusivity provision of our workmen’s compensation law. Accordingly, Travelers contends that under the Financial Responsibility Law, SEPTA, as a self-insurer, is responsible for providing uninsured motorist benefits to its employees injured in motor vehicle accidents occurring in the course of their employment. This liability, Travelers states, is applicable regardless of whether SEPTA is also accountable for the payment of workmen’s compensation benefits. We disagree, and cannot accept this interpretation of section 1735.

Pennsylvania is an industrialized state. In order to promote certainty in the legal affairs of Pennsylvania’s industrial base, while at the same time protecting employees and their families from economic devastation arising from work-related injuries, our legislature formulated Pennsylvania’s Workmen’s Compensation Act. The Act was geared towards the assurance of quick, fair and certain compensation for employment-related injuries without requiring the complainants to resort to the courts for recovery. See Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548 (1987); Blouse v. Superior Mold Builders, Inc., 363 Pa.Super. 516, 518, 526 A.2d 798, 799 (1987).

The Act specifically delineates the coverage which it affords. Section 301(a) provides:

Every employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, without regard to negligence____

77 P.S. § 431. Although this “no-fault” system of recovery applies equally to all employment-related injuries, the legislature determined that employers should not be accountable for those injuries intentionally inflicted by third persons, as a result of non-employment-related matters. This concept is embodied in section 301(c), which states:

The term “injury arising in the course of his employment,” as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer

77 P.S. § 411(1) (emphasis added). Aside from the above-referenced exception, the Act clearly sought to provide the injured worker with his or her exclusive remedy at law. In essence, the Act was based on a theory of trade-offs. On the one hand, the employer is forced to surrender the numerous defenses which might be available in an employee’s action at common law. However, the injured employee’s recourse is strictly confined to those remedies provided by the statute itself, thus providing the employer with some degree of certainty in its legal affairs. Section 303(a) integrates the exclusivity principle into our statutory scheme, and provides:

(a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.

77 P.S. § 481 (emphasis added). Commenting upon this section of the Act, our supreme court has stated:

Section 303(a) of the Workmen’s Compensation Act, like its predecessor, is a version of the historical quid pro quo employers received for being subjected to a no-fault system of compensation for worker injuries. That is, while the employer assumes liability without fault for a work-related injury, he is relieved of the possibility of a larger damage verdict in a common law action____ So strong is the principle of exclusivity we have held that it is a nonwaivable defense, even when not timely raised.

Lewis, 517 Pa. at 471, 538 A.2d at 867 (citations omitted); see also 2A A. Larson, Workmen’s Compensation Law, § 65.11 (1987 ed.). In short, the exclusivity provision “bars tort actions flowing from any work-related injury.” Kline v. Arden H. Verner Co., 503 Pa. 251, 256, 469 A.2d 158, 160 (1983).

In Lewis, our supreme court was faced with the issue of whether employees of self-insureds could obtain uninsured motorist benefits from their employers for work-related vehicular accidents, despite the exclusivity provision provided by the Workmen’s Compensation Act. One of the three appellants in the case, Jerry Lewis, was employed by the School District of Philadelphia as a bus driver. While driving a school bus in the course of his employment, Lewis was involved in an accident with an uninsured motorist. The school district was self-insured as to motor vehicle liability and as to workmen’s compensation claims. Lewis submitted a workmen’s compensation claim, which was subsequently paid by his employer. However, Lewis later demanded that the school district pay him additional benefits pursuant to the Uninsured Motorist Act, 40 P.S. § 2000. The school district rejected Lewis’ request for additional moneys, and he later petitioned the Court of Common Pleas of Philadelphia County for an order to compel his employer to arbitrate the matter. The trial court denied his petition, reasoning that, as against an employer, benefits paid under the Workmen’s Compensation Act are an employee’s exclusive monetary remedy for injury suffered in the course of employment. We affirmed, and the supreme court accepted allocatur to address the issue.

Chief Justice Nix, writing for the majority, reaffirmed the strength of the exclusivity of remedies concept embodied by section 303(a) of the Workmen’s Compensation Act, and confirmed “the clear mandate of section 303(a) that benefits under the Workmen’s Compensation Act shall be ‘in place of any and all liability’ on the employer’s part of a work injury.” Lewis, 517 Pa. at 473, 538 A.2d at 868 (emphasis in original). In rejecting the requested recovery by the employee, the court stated:

[F]or us to adopt [an exception which would treat uninsured motorist benefits as being outside the scope of section 303(a)], by embracing the fiction that a self-insured employer was being subjected to liability in some capacity other than that of employer, would require us to ignore an inescapable truth: that the employer, in paying uninsured motorist benefits, would be paying a worker for an injury sustained strictly in the course of employment. That reality cannot be pretended away. As to such injuries, section 303(a) of The Pennsylvania Workmen’s Compensation Act provides that the compensation under that statute is the employer’s exclusive liability, and that such liability is “in place of any and all other liability” on the employer’s part____ The terms of section 303(a) do not leave room for the exception advocated by the instant appellants. Although numerous policy arguments have been raised in support of an exception for uninsured motorist benefits, those arguments present considerations which must be directed to the legislature.

517 Pa. at 474-75, 538 A.2d at 868-69.

In the instant case, Travelers attempts to diminish the precedential value of Lewis by suggesting that it merely construed the interplay between the Workmen’s Compensation Act and the old Uninsured Motorist Act. The reasoning utilized by Chief Justice Nix cannot be applied by analogy, Travelers argues, to the relationship between the exclusivity provision of the Workmen’s Compensation Act, and the Financial Responsibility Law, which supposedly expressly addresses this scenario. In support of this argument, Travelers directs our attention to section 1735 of the Financial Responsibility Law, which reads:

§ 1735. Coverages unaffected by workers’ compensation benefits
The coverages required by this subchapter shall not be made subject to an exclusion or reduction in amount because of any workers’ compensation benefits payable as a result of the same injury.

75 Pa.C.S. § 1735. While at first glance section 1735 appears to be controlling, a thorough reading of the Financial Responsibility Law, in its entirety, negates this conclusion.

Section 1735, which is found in Subchapter C of the Financial Responsibility Law, 75 Pa.C.S. §§ 1731-1736, clearly prohibits a reduction or exclusion of “coverages required by this subchapter” because of any workers’ compensation benefits payable on the same claim. The provisions of Subchapter C, however, are apparently directed solely to insurance companies, who deliver or issue insurance policies throughout the Commonwealth. In defining the scope and amount of the coverage afforded by Subchapter C, section 1731 expressly requires that both uninsured and underinsured motorist coverage appear in the “motor vehicle liability insurance policy.” 75 Pa.C.S. § 1731(a) (emphasis added). It is critical to recognize that self-insurers such as SEPTA do not issue insurance policies, as do insurance companies. Consequently, the preliminary language set forth in section 1735, which states that “[t]he coverages required by this subchapter shall not be made subject to an exclusion or reduction ...” limits this section’s applicability to those entities who are controlled by Sub-chapter C — predominantly insurance companies. As a self-insurer, SEPTA’s uninsurance coverage is required by Sub-chapter H, not Subchapter C. See 75 Pa.C.S. § 1787(a)(3).

Our legislature expressly provided separate definitions of “insurers” and “self-insurers” so that any provisions applying to insurers would not mistakenly be read to apply to self-insurers. See 75 Pa.C.S. § 1702. Section 1702 provides, in pertinent part:

“Insurer” or “insurance company.” A motor vehicle liability insurer subject to the requirements of this chapter.
“Self-insurer.” An entity providing benefits and qualified in the manner set forth in section 1787 (relating to self-insurance).

75 Pa.C.S. § 1702. Using these definitional dissimilarities, our lawmakers carefully tailored the Financial Responsibility Law into the various subchapters in an attempt to avoid the exact sort of discrepancy that has arisen in this action.

A plain reading of the statutory scheme in question, including the definitional section of the law, supports the conclusion that our parliamentarians intended that the mandates of Subchapter H, and not Subchapter C, would apply to self-insurers such as SEPTA. The distinguishing features between the provisions are readily cognizable, and are helpful in ascertaining the context in which they are invoked. Subchapter H, section 1787, entitled “Self-insurance,” requires that self-insureds provide only uninsured motorist coverage, and not both underinsured and uninsured coverage as required by Subchapter C. Section 1787 also prohibits a claimant from stacking uninsured motorist benefits, whereas Subchapter C permits the stacking of uninsured and underinsured motorist coverages. Section 1791 requires insurance companies to offer underinsured, uninsured and bodily injury liability coverages up to at least $100,000 per person and $300,000 per accident whereas Subchapter H requires self-insureds to provide only uninsured motorist and bodily injury liability coverages of $15,-000 per person, and $30,000 per accident. Most importantly, Subchapter H makes no mention whatsoever of workers’ compensation benefits with regard to self-insureds. We will presume, since the legislature chose not to include a similar workmen’s compensation provision in Subchapter H, that it must have intended to prevent self-insurers from paying both workmen’s compensation benefits and uninsured motorist benefits.

We also observe that, notwithstanding Travelers’ laborious attempt to convince us that Lewis dealt only with the relationship between the Workmen’s Compensation exclusivity provisions and the old Uninsured Motorist Act, the Uninsured Motorist Act remains viable and has not been repealed by our legislature. Thus, to the extent that Lewis delineated a relationship between the two, that relationship would still appear to exist and to be subject to the supreme court’s interpretation as set forth in Lewis. In fact, the language found in section 1731 of the Financial Responsibility Law appears to be substantially similar to the mandates of the old Uninsured Motorist Act.

Having found no provision of the Financial Responsibility Law, relating to self-insureds, which expressly repeals the strong policy considerations underpinning the exclusivity clause of the Workmen’s Compensation Act, we conclude that the reasoning espoused in Lewis is applicable, and Hackenberg’s claim against SEPTA is barred as a matter of law. Viewing all the evidence proffered in the case in the light most favorable to Travelers, and resolving any doubts against entry of judgment, we conclude that Judge Doty properly determined that no genuine issue of material fact remained, and SEPTA was entitled to judgment as a matter of law.

Order affirmed.


author: POPOVICH, Judge:

text:
    558 A.2d 865
    COMMONWEALTH of Pennsylvania, Appellee, v. Thomas L. KRAVONTKA, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 1, 1989.
    Filed May 1, 1989.

      Allen H. Smith, York, for appellant.
    Mark A. Bellavia, Assistant District Attorney, York, for Com., appellee.

      Before WIEAND, POPOVICH and HESTER, JJ.
   POPOVICH, Judge:

This is an appeal from the judgment of sentence entered after appellant’s conviction by a jury on the charge of driving under the influence of alcohol, 75 Pa.C.S.A. §§ 3731(a)(1) and 3731(a)(4). Herein, the appellant, Thomas L. Kravontka, raises an issue which heretofore has not been expressly addressed by the courts of our Commonwealth: Whether admission of blood alcohol test results, pursuant to the business records exception to the hearsay rule, without the presence of the lab technician who performed the blood analysis violated his Sixth Amendment right of confrontation. In addition, he questions: Whether a proper foundation was laid for the admission of the results of his blood alcohol test; and whether the results of his blood alcohol test were properly admitted under the business records exception to the hearsay rule, 42 Pa.C.S.A. § 6108. Finding no error in the lower court’s decision, we affirm.

On March 21, 1987, Officer Jeffrey Foust stopped the appellant after witnessing his vehicle turn left in front of approaching traffic against a steady red light. While asking the appellant for his license and registration, the officer smelled a “strong odor” of alcohol on the appellant’s breath, saw his eyes were “blood shot” and noticed his speech was “mush-mouthed and slurred.” The appellant was then asked to perform a field sobriety test. Unable to perform the heel-to-toe walk without losing his balance, the appellant stated, “You might as well take me to the hospital for a blood test.” The appellant was arrested and taken to Memorial Osteopathic Hospital where, with his consent, a blood test was performed. The blood test revealed the appellant had a .108% blood alcohol content.

At trial, the officer testified about the circumstances surrounding the appellant’s arrest. He also testified that, in his opinion, the appellant was not capable of safe driving. Charlene McGrath, laboratory services manager at Memorial Osteopathic Hospital, also testified as a witness for the Commonwealth. Ms. McGrath testified that she had custody over the hospital’s laboratory records which included the record of the appellant’s blood test. She also testified concerning the contents of the record of the appellant’s blood test, including the result. She noted that Memorial’s laboratory was approved by the Pennsylvania Department of Health as a clinical laboratory to perform blood tests. Upon the Commonwealth’s request, the court took judicial notice of the fact that Memorial’s laboratory was approved to perform blood alcohol analysis. See Pennsylvania Bulletin, Vol. 16, No. 42, October 18, 1986 (semi-annual issue covering the date of appellant’s test).

Based on the evidence, the appellant was found guilty by a jury of driving while “under the influence of alcohol to a degree which renders a person incapable of safe driving” and while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” 75 Pa.C.S.A. §§ 3731(a)(1), 3731(a)(4). Post verdict motions were filed and denied. The appellant was sentenced, and this appeal followed.

We will first address the constitutional issue raised by the appellant. The appellant alleges that the admission of the record of his blood test by way of the business records exception to the hearsay rule without the presence of the blood analyst violated the Confrontation Clause. While this issue has not been expressly addressed by the courts of this Commonwealth, we addressed an almost identical issue in Commonwealth v. Karch, 349 Pa.Super. 227, 502 A.2d 1359 (1986): “May the results of blood testing be admitted into evidence without calling the technician who performed the test as a witness[.]” 502 A.2d at 1360. The majority held that the test results were properly admitted despite the absence of the technician. In so ruling, the court stated:

It is well established that hospital records are admissible to show the facts of hospitalization, treatment prescribed, and symptoms present. (Citations omitted). In Commonwealth v. Seville, [266 Pa.Super. 587, 405 A.2d 1262 (1979) ], a case directly on point with the one sub judice, the Court held that blood-alcohol test results were properly admitted into evidence without the presence of the technician who performed the test. The Court reasoned that the test results were admissible under the hospital records exception to the hearsay rule: since a blood-alcohol test is basic and routine, it is highly reliable and thus rises beyond a mere opinion or conclusion to the level of medical fact. “No such doubts as to reliability and accuracy are entertained when a record is offered merely to prove facts ... or the existence of some readily ascertained substance or chemical within the body.” Id. 266 Pa.Super. at 592, 405 A.2d at 1264. (Emphasis added). Even if the hospital records are hearsay, “... the elements of trustworthiness serv[e] in place of the safeguards ordinarily afforded by confrontation and cross-examination, which justifies admission of the writing or record without the necessity of calling all persons who may have had a hand in preparing it.” Commonwealth v. Seville, 266 Pa.Super. at 592, 405 A.2d at 1265.

Karch, 502 A.2d at 1361. The dissent in Karch, supra, however, believed the Confrontation Clause was violated by the admission into evidence of the test results without the technician’s presence for cross-examination and directly addressed the issue from a constitutional prospective. Karch, 502 A.2d at 1363-1375 (dissenting opinion). The appellant relies almost exclusively upon the dissent to further his argument, an argument which we, like the Karch majority, reject.

The Sixth Amendment’s Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The main and essential purpose of confrontation is to secure for the defendant the opportunity of cross-examination. 5 Wigmore on Evidence § 1395 (Chadbourn rev. 1974). The Supreme Court of the United States has consistently held that the right of confrontation does not require the uniform exclusion of hearsay from evidence. On the other hand, a particular declaration may violate the confrontation clause even though state law provides for its admission as an exception to its evidentiary rule governing hearsay. See generally, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) (plurality opinion); Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

When we review a constitutional objection to admission of evidence pursuant to an exception of the hearsay rule, we must remember that, although the right of confrontation is a fundamental right, it “must occasionally give way to considerations of public policy and the necessities of the case.” Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). As the Supreme Court recognized in Ohio v. Roberts, supra, “Significantly, every jurisdiction has a strong interest in effective law enforcement, and in the development and precise formulation of the rules of evidence applicable in criminal proceedings. See Snyder v. Massachusetts, 291 U.S. 97, 107, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); California v. Green, 399 U.S., at 171-172, 90 S.Ct., at 1941-1942 (concurring opinion)” Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct. at 2538. See also Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973) (noting that denial of confrontation due to the state’s rule of evidence calls into question the “integrity of the fact-finding process,” but may be allowed after close examination of the competing state interest in effective law enforcement). Accordingly, the Supreme Court has not sought to “map out a theory of the Confrontation Clause that would determine the validity of all ... hearsay ‘exceptions’ California v. Green, 399 U.S., at 162, 90 S.Ct., at 1937.” Ohio v. Roberts, 448 U.S. at 65-66, 100 S.Ct. at 2538. Thus, we are free to develop our own rules of evidence which, on their face, may conflict with the confrontation clause, provided we closely examine the rules and determine that the integrity of the factfinding process is not infringed.

The Supreme Court has stated that “[t]he Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay.” Ohio v. Roberts, 448 U.S. at 65, 100 S.Ct at 2538. First, “[i]n the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant. (Citations omitted).” Id., 448 U.S. at 65, 100 S.Ct. at 2538.

However, a demonstration of unavailability is not always required. In Dutton v. Evans, supra, for example, the Supreme Court found the utility of trial confrontation so remote that it did not require the prosecution to produce a seemingly available witness. Ohio v. Roberts, 448 U.S. at 66 n. 7, 100 S.Ct. at 2538 n. 7. Further enlightenment on the requirement of unavailability was provided in Justice Harlan’s concurrence in Dutton v. Evans, 400 U.S. at 96-97, 91 S.Ct. at 223:

A rule requiring production of available witnesses would significantly curtail development of the law of evidence to eliminate the necessity for production of declarants where production would be unduly inconvenient and of small utility to a defendant. Examples which come to mind are the Business Records Act, 28 U.S.C. §§ 1732-1733, and the exceptions to the hearsay rule for official statements, learned treatises, and trade reports. See, e.g., Uniform Rules of Evidence 63(15), 63(30), 63(31); Gilstrap v. United States, 389 F.2d 6 (CA5 1968) (business records); Kay v. United States, 255 F.2d 476 (CA4 1958) (laboratory analysis). If the hearsay exception involved a given case is such as to commend itself to reasonable men, production of the declarant is likely to be difficult, unavailing, or pointless. (Footnote added).

The type of exception to the hearsay rule present in the case sub judice is precisely the type which Justice Harlan, in his concurring opinion in Dutton v. Evans, supra, noted would not require the production of the declarant. The courts of this Commonwealth have recognized the inherent “element of trustworthiness ... which justifies admission of the writing or record [of a blood test] without the necessity of calling the persons who may have had a hand in preparing it.” Seville, 405 A.2d at 1265. Thus, the prosecution need not demonstrate the unavailability of the medical technician because the utility of confrontation is extremely remote due to the inherent reliability of blood tests and their recording.

The second aspect of the Confrontation Clause applies once a declarant is shown to be unavailable (or, as is the present case, unnecessary due the remoteness of the utility of confrontation) and limits admission of the hearsay to situations where the declaration is inherently trustworthy. Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2531. As the Supreme Court stated in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972),

The focus of the Court’s concern has been to insure that there “are indicia of reliability which have been widely viewed as determinative of whether a statement may be placed before the jury thought there is no confrontation of the declarant.” Dutton v. Evans, supra, [400 U.S.] at 89, 91 S.Ct. at 220 and to “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement,” California v. Green, supra, 399 U.S. at 161, 90 S.Ct. at 1936. It is clear from these statements, and from numerous prior decisions of this Court, that even though the witness be unavailable his prior testimony must bear some of these “indicia of reliability.”

Mancusi v. Stubbs, 408 U.S. at 213, 92 S.Ct. at 2313. See also Ohio v. Roberts, 448 U.S. at 66-67, 100 S.Ct. at 2539.

In Commonwealth v. Seville, supra, we commented upon the reliability of hospital records and blood tests.

... [T]he manner in which hospital records are maintained carries safeguards “at least as substantial as the guarantees of reliability of the records of business establishments”. McCormick, [Handbook of Law of Evidence], supra, at § 313 [ (2d ed, 1972) ]. The practice of recording facts has been standardized in the modern hospital and “these recorded facts are routinely used to make decisions upon which the health and life of the patient depend”. Id. Current experience teaches the practice of drawing and testing blood for alcohol content is a matter particularly within the ambit of basic and routine hospital procedure. The standardized, precise calculations used in arriving at a final result leave little room for error. “Providing a careful technique is used blood and alcohol tests should not have an error exceeding plus or minus three per cent in alcohol concentrations of 0.1 per cent and over”. MacDonald, Alcoholism as a Medicolegal Problem, 11 Clev.-Mar.L.Rev. 39, 51 (1962). Other courts have held that, because of the simple and precise manner by which the level of intoxication may be determined, and the routine procedures by which hospitals administer and record such events, results of blood alcohol tests may be admitted through the custodian of the records without the presence of the technician who actually performed the test. (Citations omitted).

Seville, 405 A.2d at 1265; followed by Karch, 502 A.2d at 1361.

Because of the overwhelming “indicia of reliability” inherent in blood-alcohol tests and the records of those test, the cross-examination of the technician who performed the test would be of insignificant utility to a defendant. Moreover, we see little need to parade before a jury every technician who was associated with a defendant’s blood-alcohol test simply to explain a procedure which, on a daily basis, is proven most reliable. Instantly, testimony at trial established that the technician, the laboratory, the equipment used for blood testing and the procedures used to test the blood were all approved and certified by the Department of Health for performance of blood-alcohol tests. There is no doubt that cross-examination of the technician concerning the inherently reliable blood test would have been of little benefit to the appellant.

Accordingly, we hold that the appellant’s confrontation right was not violated by the admission of the results of his blood alcohol test without the presence of the medical technician.

Having determined that the appellant’s constitutional right to confrontation was not violated, we will address the remaining issues. First, the appellant contends that a proper foundation was not laid for admission of his blood test results. Under 75 Pa.C.S.A. § 1547(c)(2), chemical tests of blood are admissible in evidence as follows:

(c) Test results admissible in evidence. — In any summary or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.
(2) Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), know as “The Clinical Laboratory Act.” [35 P.S. § 2151 et seq.]

Instantly, the lower court took judicial notice that the Memorial laboratory, at the time of the appellant’s test, was an approved laboratory for blood alcohol testing in accordance with the Clinical Laboratory Act. See Pennsylvania Bulletin, Vol. 16, No. 42, October 18, 1986. Ms. McGrath further testified that the laboratory was approved by the Department of Health when appellant’s blood test was performed. Thus, the equipment, personnel and procedures of the Memorial Osteopathic Hospital laboratory are qualified and approved by the Commonwealth. Accordingly, we find that a proper foundation was laid under 75 Pa.C.S.A. § 1547(c)(2) to allow admission of the record.

Second, the appellant contends that the record of his blood test was inadmissible hearsay which did not qualify under the business records exception. The Uniform Business Records as Evidence Act, 42 Pa.C.S.A. § 6108, sets forth the requirements which must be met prior to admission of a business record, including a hospital record of a blood-alcohol test, into evidence.

(b) General Rule. — A record of an act, condition or event shall, insofar as relevant, be competent evidence if the custodian or otherwise qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business at or near the time of the act, condition or event, and if, in the opinion of the tribunal, the sources of information, method and time of preparation were such as to justify its admission.

Instantly, there is no question that the document was properly admitted into evidence pursuant to the business records exception to the hearsay rule. Ms. McGrath was the custodian of the laboratory’s record. She identified the record as the blood test of the appellant. Her testimony revealed the records were made in the regular course of business contemporaneously with the blood test. She also testified concerning the chain of custody of the blood, the time at which the blood was taken and the time at which it was tested, the qualifications of the laboratory technologists involved, the type of equipment used to test the blood and the laboratory’s status as approved by the Department of Health to perform blood tests. Since a witness called for the purpose of qualifying a business record need not have any personal knowledge of the facts which are reported in the particular record, the fact that Ms. McGrath had no personal knowledge of the test is not pertinent. Commonwealth v. Kelly, 245 Pa.Super. 351, 363, 369 A.2d 438, 444 (1976), affirmed 484 Pa. 527, 399 A.2d 1061 (1979). Accordingly, we find that the laboratory record of the appellant’s blood test was properly admitted into evidence. See Karch, supra; Seville, supra; Emerick v. Carson, 325 Pa.Super. 308, 314, 472 A.2d 1133, 1136 (1984) (blood drawn then sent to another hospital for test, test results incorporated into original hospital’s record which was then admitted into evidence).

Having reviewed the appellant’s assertions of error and having found them to be without merit, we affirm his judgment of sentence.

Judgment of sentence affirmed.

      . While we recognize that, as a matter of judicial restraint, a case should not be decided on constitutional grounds if other grounds exist, Commonwealth v. Monumental Properties, Inc., 459 Pa. 450, 329 A.2d 812 (1974), we will however address the present constitutional issue first since it is by far the most significant, and, for the reasons discussed infra, we reject all of the arguments addressed by the appellant.

      . It is unclear whether the appellant bases this argument of the United States Constitution, U.S. Const.Amends. VI and XIV, or the Pennsylvania Constitution, Pa. Const. Art. 1, § 9. However, it is not necessary to distinguish between the two for the resolution of this issue.

      . The Sixth Amendment’s Confrontation Clause was made applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403-405, 85 S.Ct. 1065, 1067-1068, 13 L.Ed.2d 923 (1965).

      . Of special significance is Kay v. United States, 255 F.2d 476 (CA4 1958), cert. denied, 358 U.S. 825, 79 S.Ct. 42, 3 L.Ed.2d 65 (1958). Therein, the Fourth Circuit of the United States Court of Appeals, applying the driving under the influence law of Virginia, held that: "Admission of the certificate [record of blood test results] did not deprive the defendant of his right of confrontation by witnesses____ The alcohol content of the blood, the evidentiary fact sought to be proved by the certificate, may be accurately determined by well recognized chemical procedures. It is an objective fact, not a mere expression of opinion, and its proof by introduction of the certificate [without the presence of the chemical analyst] violates no constitutional right of the defendant.”

      . The following are but a few of the many cases from other jurisdictions which have upheld the admissibility of a laboratory report or similar record in the face of a Sixth Amendment objection: State v. Garlick, 313 Md. 209, 545 A.2d 27 (1988) (hospital record of test results indicating PCP in defendant’s blood was "pathologically germane” to defendant’s treatment so as to be admissible under the business records exception to hearsay rule without presence of technician, and admission did not violate right of confrontation); State v. Russo, 3 Conn.App. 137, 485 A.2d 1335 (1985) (hospital report admitted under the business records exception to hearsay rule without physician who prepared the report was not violative of the defendant’s right to confrontation); State v. Smith, 312 N.C. 361, 323 S.E.2d 316 (1984) (statute permitting use of chemical analyst’s affidavit to prove blood alcohol concentration of accused, in lieu of his live appearance, established a constitutional permissible procedure attuned to scientific advancements ensuring the reliability of the blood test, and thus did not violate the defendant’s right of confrontation); McLean v. State, 482 A.2d 101 (Supreme Court of Delaware, 1984) (state and federal constitutional rights of confrontation were not abridged by admission of hospital record containing result of blood test, without testimony of technician, because of regularity and inherent reliability of such test and hospital record keeping); Howard v. United States, 473 A.2d 835 (D.C.Court of Appeals, 1984) (report of chemical analysis of drugs by the DEA are sufficiently trustworthy to satisfy the purpose of the confrontation clause and are admissible under the business records exception to hearsay rule without the chemists presence, since the identity of a controlled substance is determined by a well recognized chemical procedure, the report contains objective facts rather than opinion, and the chemists who conduct the test do so routinely and generally do not have an interest in outcome of the trial); State v. Kreck, 86 Wash.2d 112, 542 P.2d 782 (1975) (record of blood test was admissible under the business record exception to the hearsay rule without the testimony of the technician, and defendant’s confrontation right was not abridged); People v. Porter, 46 App.Div.2d 307, 362 N.Y.S.2d 249 (1974) (admission of log book record of blood alcohol test without testimony of technician did not violate confrontation clause). See also Kay v. United States, supra; Thomas v. Hogan, 308 F.2d 355 (CA4, 1962); State v. Cosgrove, 181 Conn. 562, 436 A.2d 33 (1980); State v. Malsbury, 186 N.J.Super. 91, 451 A.2d 421 (Law Div.1982); Coulter v. State, 494 S.W.2d 876 (Tex.Ct.App.1973); State v. Larochelle, 112 N.H. 392, 297 A.2d 223 (1972).