author: JOHNSON, Judge.

text:
    620 A.2d 5
    Karen W. HAM, Appellant, v. Katherine O. SULEK, Susan Elizabeth Reese Painter, Pamela Reese Cameron, Frederick D. Reese, Rebecca L. Reese, Timothy H. Reese, George C. Reese, III, William J. Reese, Benjamin T. McGill and Eleanor McGill, his wife, Nancy McGill, Rachel M. Carringer Hauth, Robert M. Carringer, Dorothy J. Carringer, Elliott R. Jones and Ethel C. Jones, his wife Robert B. Gibson and Mary Anne Gibson, his wife, Robert M. Leech, Lorraine R. Leech, Thomas P. Leech and Nancy P. Leech.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1992.
    Filed Jan. 28, 1993.

      William J. Kelly, Erie, for appellant.
    Paul H. Millin, Tionesta, for appellees.
    Before ROWLEY, President Judge, JOHNSON and HESTER, JJ.
   JOHNSON, Judge.

In this appeal from a trial court order sustaining preliminary objections and dismissing the complaint, we are asked to determine whether appellant Karen W. Ham is the real party in interest in this equity action charging that “Taylor Road” is a public road. Finding that she is not the real party in interest and that this action is barred by res judicata, we affirm.

This is the fourth action filed since 1988 concerning a private road known as Taylor Road in Tionesta Township, Forest County. The first two cases resulted in this court’s opinion in Carringer v. Taylor, 402 Pa.Super. 197, 586 A.2d 928 (1990), appeal denied, — Pa. -, 621 A.2d 576 (1992). A third case, Taylor v. Carringer et al., No. 2 of 1989, In Equity, was dismissed by the Court of Common Pleas of Forest County on May 11, 1992.

In 1987, Bruce Taylor purchased property at the southern terminus of this road, a one lane dirt road on the eastern shore of the Allegheny River, south of Tionesta. Prior to Taylor’s purchase, the road had been maintained by the property owners along the roadway. Without obtaining the consent of the other landowners, Taylor began to improve and widen the roadway. In 1988, Carringer, filed a complaint for a preliminary injunction alleging that Taylor was causing immediate and irreparable damage to Carringer’s property by unilaterally widening the roadway. Carringer contended that Taylor had neither an easement nor a right-of-way but was crossing the properties at sufferance. Taylor maintained that the roadway had been a public road which had reverted to a private road and that he had a statutory easement twenty:five feet wide along the roadway as an adjoining landowner. After a decree nisi had been entered in the first action in favor of Carringer, Taylor attempted to amend his answer and to counterclaim, alleging easements both by prescription and implication, as well as by filing a quiet title action. These two cases were appealed following a trial court ruling that the issues raised after the filing of the decree nisi had been waived. Taylor then filed a third action in equity. There, the trial court granted the preliminary objections raised by Car-ringer et al., and stayed the action pending the outcome of the first two cases then on appeal. The trial court also issued an order defining the rights of the parties pending resolution of the appeals. This order prevented Carringer from closing the roadway but allowed him to maintain a gate at the northern terminus of the roadway. When Bruce Taylor and Karen Ham, Taylor’s paramour, refused to close this gate, contending that' the road was a public road, counsel for the Appellees informed Ham that she could no longer use the private road crossing the property of the Appellees.

On September 21, 1991, the present complaint in equity was filed, naming Karen Ham as the plaintiff, requesting the trial court to find that the roadway in question was a public road, over which the Appellees had no right to restrict travel, and to order the removal of the gate. Appellees filed preliminary objections, in the form of a motion to strike off the complaint, alleging that Karen Ham was not the real party in interest. Appellees also filed a demurrer, alleging, that Ham’s complaint failed to state a cause of action, because she failed to assert facts from which the trial court could conclude that the road was a public road. Appellants filed a motion joining the issue of whether Ham was the real party in interest, asking the trial court to determine this factual issue based on deposition testimony. This motion was granted and, based on the subsequent deposition, the trial court sustained the preliminary objections, determining that Karen Ham was the alter-ego of Bruce Taylor. The trial court also ruled that its previous determination, that the roadway was a private road, now affirmed by the Superior Court, was binding upon the parties. This appeal followed.

The trial court, in its excellent opinion dated April 24, 1992, framed the issues as follows:

1. Whether Karen W. Ham is a real party in interest?
2. Whether the Plaintiff has stated a cause of action?
3. Whether the status of the roadway was finally determined by order of court in a previous litigation?

Our review of this record reveals that the opinion of the Honorable Robert L. Wolfe, Presiding Judge of the Court of Common Pleas of Forest County, dated April 24, 1992, has adequately stated the facts and properly addressed the first issue, as follows:

A review of the deposition of Plaintiff on March 3, 1992, can leave no doubt Plaintiff is acting as the servant of Bruce Taylor and is using[,] as a springboard for the complaint[,] her indignation [at] the epistle of Defendant’s counsel admonishing her to properly use the private roadway. Plaintiff acknowledges she is the paramour of Bruce Taylor, is employed by him, and [that] Taylor is financing this action. Plaintiff is eager to describe the impaired state of the road in that it is not drained properly and part of it slides into the Allegheny River, there are no guard rails, it is covered
with ice and she has damaged the tailpipe on her car in traveling it. N.T., 3/3/92, at 28. Moreover, Plaintiff describes a landslide on the Carringer part of the road where people were trapped back at the lodge. [Reference to Taylor’s private property.] This road description is the same allegation of Bruce Taylor at the initial proceeding, which prompted him to grade the road and precipitated the initial action. Id. at 47. We note this here for the reason [that] Plaintiffs identity to Bruce Taylor is shown objectively and graphically.
Rule 2002 of the Rules of Civil Procedure compels all actions to be prosecuted by the real party in interest.... The conclusion is compelling that Plaintiff is not the real party in interest, arid her complaint is a facade for Bruce Taylor’s attempt to circumvent the judgment against him.

Trial Court Opinion, dated 4/24/92 at 5-6. Moreover, while Ham claims to control the prosecution of this action, it is clear that she hears from legal counsel through Bruce Taylor, R.R. 112a-115a, and that she is the purported representative of Bruce Taylor to the Court. N.T., 3/3/92, at 25; 50.

Generally, on appellate review, we defer to the factual findings of the trial court, because the trial court has seen and heard the witnesses. However, where the factual findings of the trial court rest on evidence provided by deposition or affidavit, we may draw our own inferences and arrive at our own reasonable conclusions from the facts as established.

Although a determination of credibility is in the first instance within the prerogative of the trial court even when based upon deposition evidence, this does not foreclose an appellate court from scrutinizing the identical evidence to determine if the ruling entered is supported by the record.

American Express Company v. Burgis, 328 Pa.Super. 167, 172, 476 A.2d 944, 947 (1984). Our review of this record reveals that the factual findings of the Honorable Robert L. Wolfe, are amply supported of record. We find neither error nor abuse of discretion in the trial court dismissal of this action and we conclude that Taylor, not Ham, is the real party in interest.

Pennsylvania Rule of Civil Procedure 2002, which applies to “any civil action or proceeding at law or in equity,” Pa.R.C.P. 2001, provides as follows:

Rule 2002. Prosecution of Actions by Real Parties in Interest. Exceptions.
(a) Except as otherwise provided in clauses (b), (c) and (d) of this rule, all actions shall be prosecuted by and in the name of the real party in interest, ...
(b) A plaintiff may sue in his own name without joining as plaintiff or use-plaintiff any person beneficially interested when such plaintiff
(1) is acting in a fiduciary or representative capacity, which capacity is disclosed in the caption and in the plaintiffs initial pleading; or
(2) is a person with whom or in whose name a contract has been made for the benefit of another.
(c) Clause (a) of this rule shall not apply to actions where a statute or ordinance provides otherwise.
(d) Clause (a) of this rule shall not be mandatory where a subrogee is a real party in interest.

The real party in interest rules were enacted in order to simplify the practice of law by avoiding legal fictions, by abolishing technicalities and “to prevent the real party in interest from hiding behind the legal plaintiff.” Reinsmith v. McCready, 53 Pa.D. & C. 376 (1944); 6 Goodrich Amran (2d) § 2002(a):1, at 8.

Having determined that Bruce Taylor is the real party in interest in this action, hiding, as it were, behind the ostensible plaintiff, Karen Ham, we next address the effect of this determination. Appellees urge that the trial court correctly determined that the holding in Carringer v. Taylor, supra, was binding upon the parties. We agree, finding this action to be barred by res judicata. Where parties have been afforded an opportunity to litigate a claim before a court of competent jurisdiction, and where the court has finally decided the controversy, the interests of the state and of the parties require that the validity of the claim and any issue actually litigated in the action not be litigated again. Williams v. Lumbermen’s Ins. Co., 332 Pa. 1, 1 A.2d 658 (1938).

For the doctrine of res judicata to prevail there must be a concurrence of four conditions: (1) identity of issues; (2) identity of causes of action; (3) identity of persons and parties to the action, and (4) identity of the quality or the capacity of parties suing or sued. ... A final judgment on the merits by a court of competent jurisdiction bars any future suit between the same parties or their privies on the same cause of action.

Fornwalt v. Follmer, 420 Pa.Super. 413, 416, 616 A.2d 1040, 1041 (1992). The doctrine of res judicata bars any future litigation between the parties or their privies on the same cause of action. Stevenson v. Silverman, 417 Pa. 187, 208 A.2d 786 (1965), cert. denied, 382 U.S. 833, 86 S.Ct. 76, 15 L.Ed.2d 76 (1966). We observe that the prior action involved the same issues, an identical cause of action and the same person in the same capacity. In Carringer v. Taylor, supra, 402 Pa.Super. at 203, 586 A.2d at 932, this Court found that Taylor had failed to produce any evidence that the road in question was ever'a public road. We stated that “[i]n fact, the evidence of record indicates that the road has always been a private road.” The same issue we are called upon to determine in the present case.

In an appeal from an order sustaining a preliminary objection in the nature of a demurrer, our scope of review is plenary, preliminary objections which result in the dismissal of the suit or the denial of the claim, should be sustained only in cases which are clear and free from doubt. AM/PM Franchise Association v. Atlantic Richfield Co., 373 Pa.Super. 572, 542 A.2d 90 (1988); 5 Standard Pennsylvania Practice 2d § 25.71 at 239-40. Where any doubt exists as to whether a demurrer should be sustained, it must be resolved in favor of overruling the demurrer. Kyle v. McNamara & Criste, 506 Pa. 631, 487 A.2d 814 (1985); Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 500 A.2d 470 (1985). The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Kyle v. McNamara & Criste, 506 Pa. at 634, 487 A.2d at 816. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim upon which relief may be granted. Eckell v. Wilson, 409 Pa.Super. 132, 597 A.2d 696 (1991). A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory of law. Id. Moreover, in reviewing the complaint, we are to regard all well-pleaded facts as true and to give Taylor, the real party in interest, the benefit of all favorable inferences that we could fairly deduce from these facts. See Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Since we are constrained to conclude that res judicata applies, we find that no recovery is possible. Accordingly, we affirm the trial court’s grant of preliminary objections in the form of a demurrer.

Order affirmed.


source: Caselaw Access Project

author: BECK, Judge: CAVANAUGH, Judge,

license: Public Domain

text:
    620 A.2d 9
    COMMONWEALTH of Pennsylvania, v. Daniel CASSIDY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 14, 1992.
    Filed Feb. 3, 1993.

      F. Emmett Fitzpatrick, Jr., Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before CAVANAUGH, BECK and BROSKY, JJ.
   BECK, Judge:

The issue we decide, inter alia, is whether the well-settled rule that inconsistent verdicts are not grounds for reversal of conviction applies where, in a single trial, a defendant is convicted of corrupt organization, yet acquitted on all of the predicate offenses underlying the corrupt organization charge. We hold that the rule is applicable and that the inherent inconsistency of such verdicts does not render them invalid. Consequently, and because we find no merit to appellant’s other contentions, we affirm the judgment of sentence. The facts are as follows. Appellant, Daniel Cassidy, is a former Philadelphia police officer who had been assigned to the police narcotics division. In June, 1988, following a nine-month grand jury investigation, appellant was arrested with six other officers from “One Squad” (appellant’s unit), for illegally keeping money seized in drug raids. The seventy-two page presentment against appellant and his co-officers, many of whom pled guilty, contained charges of corrupt organization, criminal conspiracy, bribery in official and political matters and theft by failure to make required disposition of funds received.

Trial by jury took place between August 22 and 28, 1991, at the conclusion of which appellant was found guilty of corrupt organization only. He was acquitted on all other charges. Post-verdict motions were denied and the trial court sentenced appellant to five years probation; this timely appeal ensued. Appellant challenges the proceedings below based upon four alleged errors.

First, appellant contends that he should be granted a new trial because he was denied the right to a preliminary hearing. The trial court granted Commonwealth’s motion to proceed directly to filing an information against appellant, based upon the grand jury presentment in lieu of a preliminary hearing. In its motion, Commonwealth assured the court that it would voluntarily hand over to appellant the presentment, and all discovery materials from the grand jury proceedings, in exchange for not having to duplicate the lengthy process in a costly and time-consuming preliminary hearing. Commonwealth explained that there were over 31 witnesses who would have to testify, some of whom were in protective placement with federal authorities.

Our supreme court has recognized that “[t]he principal function of a preliminary hearing is to protect the individual against unlawful detention.” Com. v. Ruza, 511 Pa. 59, 64, 511 A.2d 808, 810 (1986) (quoting Com. v. Prado, 481 Pa. 485, 393 A.2d 8 (1978)). Thus, “[t]he prosecution has the burden of establishing at least prima facie that a crime has been committed and the accused is the one who committed it.” Id.

Pursuant to Pa.R.Crim.P. rule 231, however, the court may grant leave to the Commonwealth to file an information with the court without a preliminary hearing when the district attorney certifies that a preliminary hearing cannot be held for good cause shown. In the present case, the trial court found that the Commonwealth had demonstrated good cause in its explanation of the complexity of the case and the expenses that would be incurred for a hearing that would merely reiterate the prima facie case which had been made more than adequately in the presentment. We agree.

In Com. v. Ruza, supra, our supreme court considered whether a conviction should be reversed due to the trial court’s refusal to hold a preliminary hearing. In that case, the court stated in dicta,

[O]ne need not be omniscient to perceive that the Commonwealth did not wish to be put to the great expense of transporting the victim from Florida for a preliminary hearing when the victim would have to be brought back again for trial. Under such circumstances, good cause existed for foregoing the preliminary hearing.

Id. 511 A.2d at 810. Moreover, even if a preliminary hearing should have been held, we would find the error harmless. Appellant was not unlawfully detained, as he was out on bail, and there was sufficient evidence to make a prima facie case as was borne out at trial. See Com. v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980), which provides, “[i]f in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation [at the preliminary hearing] would have been harmless.” Id. at 589-590, 414 A.2d at 1048; see also Ruza, supra; Com. v. Jennings, 405 Pa.Super. 590, 592 A.2d 1370 (1991) (en banc), allocatur denied, 529 Pa. 632, 600 A.2d 952 (1991); Com. v. Lyons, 390 Pa.Super. 464, 568 A.2d 1266 (1989), allocatur denied, 525 Pa. 663, 583 A.2d 792 (1990).

Next, appellant claims that the method by which the jury was selected was improper. Specifically, appellant states that Pa.R.Crim.P. Rule 1106(e)(1), which prescribes the manner in which peremptory challenges are to be exercised, was violated. Appellant fails to explain, however, what system was utilized and in what way, if any, he was harmed by the process. Consequently, we find this argument to be insufficient and therefore waived. See Ibn-Sadiika v. Riester, 380 Pa.Super. 397, 401-02, 551 A.2d 1112, 1114 (1988) (“When an appellant fails to carry forward, or is indecipherably vague in, argumentation upon a certain point in his appellate brief, that point is waived.”).

Appellant’s third claim of error addresses the trial court’s limitation on appellant’s direct examination of one of his reputation witnesses. Our standard of review for this matter is set forth in Com. v. Sweger, 351 Pa.Super. 188, 505 A.2d 331 (1986), allocatur denied, 513 Pa. 634, 520 A.2d 1385 (1987):

[Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a clear abuse of that discretion. Furthermore, not only must a clear abuse of discretion be shown but there must be a showing that actual prejudice has occurred.

Id. 505 A.2d at 334 (citing Lewis v. Pruitt, 337 Pa.Super. 419, 487 A.2d 16 (1985)).

Appellant called over one hundred people to testify to his reputation for being honest. Only the testimony of one of these witnesses was restricted in any way by the trial court upon request of the Commonwealth. Detective William McConnell, a former police officer and current employee of the District Attorney, was not permitted to state his current place of employment. The Commonwealth perceived that the jury might infer from this information that the District Attorney’s office does not support the prosecution, and that the Commonwealth might be unduly prejudiced by such an inference. Appellant’s brief does not provide any case law that suggests an absolute right to question a reputation witness regarding his employment, especially where, as here, the witness was employed elsewhere at the time that was pertinent to his testimony about the appellant.

We find that the trial court did not abuse its discretion in prohibiting the admission of the irrelevant and potentially prejudicial information that McConnell worked for the District Attorney. Moreover, we fail to see how this exclusion could have been even remotely harmful to the appellant’s case, or in any way have had a determinative impact upon the ultimate guilty verdict. Significantly, McConnell was permitted to testify that he was formerly a police officer and knew that appellant had an excellent reputation for honesty.

Finally, appellant asks this Court to grant him a new trial due to the inconsistent nature of the verdicts below. Appellant contends that a defendant cannot in the same trial be convicted of corrupt organization, yet acquitted on all of the predicate offenses, where, as here, there is no evidence offered of any additional racketeering activities other than those for which he was charged and acquitted.

Appellant’s argument is based upon the rationale that the acquittals constitute affirmative findings by the jury that the evidence presented was insufficient to prove beyond a reasonable doubt that appellant committed the predicate crimes charged. Therefore, he contends, that same evidence must have been insufficient to prove the corrupt organization charge, which consists of inter alia the very same elements. In Com. v. Wharton, 406 Pa.Super. 430, 594 A.2d 696 (1991), in a different context, we rejected this rationale, holding that “[a]n acquittal cannot be interpreted as a specific finding in relation to some of the evidence. [The acquittal may be] ... no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity.” Id. 594 A.2d at 699 (quoting Com. v. Parrotto, 189 Pa.Super. 415, 422, 150 A.2d 396, 399 (1959)).

While it is a well-settled rule that inconsistent verdicts are not grounds for reversal, see Com. v. Carter, 444 Pa. 405, 282 A.2d 375 (1971); Com. v. Harris, 239 Pa.Super. 603, 360 A.2d 728 (1976); Com. v. Parrotto, supra, this Court has not heretofore addressed the issue in the context of Pennsylvania’s Corrupt Organization Act. In Com. v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984), this Court held that a defendant need not be charged or convicted of the predicate crimes constituting the pattern of racketeering activity, in order to be found guilty of corrupt organization. In that case, however, the defendant had only been charged with corrupt organization and therefore the inconsistent verdict question was not implicated.

In deciding this case of first impression, we are nevertheless guided and persuaded by a similar federal case involving the Federal RICO Act. In United States v. Vastola, 899 F.2d 211 (3d cir.) vacated on otherated grounds, 497 U.S. 1001, 110 S.Ct 3233, 111 L.Ed.2d 744 (1990), the Court deliberated whether or not inconsistent verdicts in RICO cases might be grounds for reversal; it concluded, as we do, that an exception to the well-settled rule is not warranted. In Vastóla, the defendant was convicted of RICO offenses, but was acquitted on 3 out of 4 of the predicate racketeering offenses for which he had been charged. Relying upon the acquittals as proof that the evidence must have been insufficient and that the jury had failed to follow instructions, the district court granted defendant’s post-verdict motion for a judgment of acquittal on the RICO counts. The court of appeals reversed in an opinion that addressed the inconsistent verdict issue. The discussion is directly applicable to the present case, and consistent with our determination of the appeal:

There is no question that the jury verdict was inconsistent. By its plain language, section 1962(c) requires the government to show a “pattern of racketeering activity,” which, under section 1961(5), must be based on proof of “at least two acts of racketeering activity.” The jury’s acquittal or deadlock on the offenses underlying three of the four alleged racketeering acts was incompatible with its conviction on the RICO count. However, as the problem is purely one of inconsistency in the verdict, it is controlled by United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
In Powell, the defendant was acquitted of charges of conspiracy to possess and possession of cocaine with intent to distribute, but was convicted under 21 U.S.C. § 843(b) of using a telephone to facilitate the commission of the conspiracy and possession offenses. The Court of Appeals for the Ninth Circuit upheld the district court’s grant of judgment of acquittal on the section 843(b) conviction, reasoning that an acquittal on the predicate felony, that is, the conspiracy, logically precluded a conviction on the compound felony of using a telephone to facilitate the conspiracy.
In a unanimous decision, the Supreme Court reversed, reaffirming its holding in Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932), that jury verdicts in criminal cases cannot be set aside solely on the ground of inconsistency. As the Court explained, the Dunn rule applied with equal force to the facts in Powell because it was impossible to tell whether the inconsistency favored the defendant or the government: “it is unclear whose ox has been gored.” While it was possible that the jury did not find sufficient evidence to convict on the predicate offenses and misapplied the law on the compound offense, the converse was equally possible, namely that it was the acquittals that were suspect. Given that the defendant’s protection against double jeopardy precluded the government from seeking appellate review of the acquittals, the rule against overturning the conviction because of the inconsistency did “not necessarily ... [create] a windfall to the government at the defendant’s expense.” Conceivably, it was the defendant who enjoyed a windfall due to the jury’s lenity.
The Court specifically rejected the defendant’s argument that inconsistent verdicts in the compound felony context warrant an exception to the Dunn rule. The defendant maintained that an acquittal on the predicate offenses underlying a compound felony conviction necessarily means that there was insufficient evidence to prove the compound felony. According to the Court, the defendant’s argument showed a
misunderstanding of] the nature of the inconsistent verdict problem. Whether presented as an insufficient evidence argument, or as an argument that the acquittal on the predicate offense should collaterally estop the Government on the compound offense, the argument necessarily assumes that the acquittal on the predicate offense was proper—the one the jury ‘really meant.’ This, of course, is not necessarily correct; all we know is that the verdicts are inconsistent.

Vastola, supra, at 222-228 (citations omitted).

In accordance with the foregoing, we refuse to create an exception to the rule that inconsistent verdicts warrant reversal of criminal convictions. We hold that a defendant may in one trial be convicted of corrupt organization pursuant to 18 Pa.C.S.A. § 911, and also be acquitted on all predicate offenses underlying the conviction.

Judgment of sentence affirmed.

CAVANAUGH, J., files a concurring opinion.

CAVANAUGH, Judge,

concurring:

I join the majority opinion on all issues with the exception of appellant’s second claim of error. Contrary to the import of the majority opinion, I would find that the appellant has sufficiently articulated his second claim of error for purpose of review. The appellant asserts in this claim that the trial court, during the peremptory challenge stage of voir dire and in derogation of Rule 1106, required the prosecution and defense to alternate the consideration of jurors, rather than the use of peremptory challenges. This argument has at least technical merit, and is worthy of consideration. However, I would find the error harmless, as the appellant has not provided sufficient demonstration of how this error prejudiced him.

      . Appellant preserved this argument by raising it in an omnibus pretrial motion to quash the information. This motion was denied. He subsequently reiterated his challenge in post-verdict motions that were likewise denied.

      . This finding is dicta because the court went on to state that its decision was based upon the fact that any error would have been harmless because the Commonwealth's prima facie case was subsequently demonstrated in a pre-trial hearing and at trial itself.

      . See Com. v. Moon, 389 Pa. 304, 132 A.2d 224 (1957) cert. dismissed, 355 U.S. 908, 78 S.Ct 335, 2 L.Ed.2d 270 (1957) (“The defendant ... has no standing in an appellate court to complain ... unless the error contributed to the result reached by the jury.”). See also Com. v. Pittman, 320 Pa.Super. 166, 466 A.2d 1370 (1983).

      . We must distinguish this issue from one that is related but which demands a contrary result. Where a defendant is convicted in one trial of both corrupt organization and the predicate offenses, but some of the predicate offenses are subsequently overturned, in that case the corrupt organization charge would have to be re-tried because the verdict might have been premised upon the overturned conviction. See United States v. Guiliani, 644 F.2d 85 (2d Cir.1981).

      . It should be noted, however, that cases interpreting the federal RICO Act are not controlling in prosecutions of the Pa. Corrupt Organization Act. Taraschi, supra, 475 A.2d at 748 n. 2.

      . We note that appellant repeatedly asserts that he is not challenging the verdict on inconsistency grounds, but rather that he is challenging the sufficiency of the evidence. After thorough review, however, we cannot accept this characterization of the issues nor, we note, would such a characterization assist appellant in his appeal as the evidence presented in the case is in our view sufficient to support the verdict. Appellant also attempts to mold the inconsistency issue into a claim that the jury failed to follow the court's instructions. Again, we have looked behind this mischaracterization of the issue. Even so, we do not find the jury’s verdict to be contrary to the trial court’s instructions. The court twice instructed the jury that if it should find that the Commonwealth failed to meet its burden of proof beyond a reasonable doubt, then the jury must find defendant not guilty. Each time, the jury was next advised that if it found that the Commonwealth succeeded in meeting its burden of proof, then the jury should find defendant guilty. Additionally, the court explained that the jury may find defendant guilty on any one count and not on the others.

      . The tenor of our law requires a severe deficiency in advocacy before we will consider a particular issue waived. See, e.g., Commonwealth v. Blassingdale, 398 Pa.Super. 379, 394-5, 581 A.2d 183, 190 (1990); Commonwealth v. Jones, 329 Pa.Super. 20, 22, 477 A.2d 882, 883 (1984); Commonwealth v. Balch, 328 Pa.Super. 71, 75-6, 476 A.2d 458, 461 (1984).

      . Rule 1106 indicates that a trial judge in a non-capitol case “shall” select one of two alternate methods of voir dire. I note that the record indicates that the procedure the Court used more closely resembled the "List System” on challenges set forth in Pa.R.Crim.P. 1106(e)(2) rather than the "Challenge System” of subsection (e)(1). This procedure requires in pertinent part:
      [Pjeremptory challenges then shall be exercised by passing the list between prosecution and defense, with the prosecution first striking the name of a prospective juror, followed by defense, and alternating thereafter until all peremptory challenges have been exhausted.

      Pa.R.Crim.P. 1106(e)(2)(F) (emphasis added).


author: WIEAND, Judge.

text:
    620 A.2d 15
    COMMONWEALTH of Pennsylvania v. Joseph C. SHOUP, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 11, 1992.
    Filed Feb. 8, 1993.

      David J. Rossi, Schuylkill Haven, for appellant.
    Karen Byrnes, Asst. Dist. Atty., Pottsville, for Com., appellee.
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   WIEAND, Judge.

Joseph C. Shoup was tried by jury and was found guilty of homicide by vehicle while driving under the influence of alcohol, driving while under the influence of alcohol, and homicide by vehicle. The trial court, sitting as fact finder, found Shoup guilty also of the summary offense of reckless driving. Post-trial motions were denied, and Shoup was sentenced to serve a term of imprisonment for not less than three and one-half (34A) years nor more than seven (7) years and to pay a fíne in the amount of one thousand ($1,000.00) dollars. On direct appeal from the judgment of sentence, Shoup asserts that the evidence at his trial was insufficient to sustain his convictions. He contends further that the trial court committed reversible error in the following respects: (1) by granting a Commonwealth motion in limine to preclude the admission of evidence that the decedent was not wearing a seat belt at the time of the fatal accident; (2) by refusing to give points for charge requested by the defense on the issue of causation; and (3) by improperly permitting testimony as to the results of blood alcohol testing conducted upon appellant’s blood despite the absence from trial of the person who actually performed such tests. We will consider these several issues seriatim.

In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. See: Commonwealth v. Aulisio, 514 Pa. 84, 91, 522 A.2d 1075, 1079 (1987). See also: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. See: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983). See also: Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975); Commonwealth v. Verdekal, 351 Pa.Super. 412, 419-420, 506 A.2d 415, 419 (1986). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

So viewed, the evidence at appellant’s trial established the following. On November 14, 1989, at or about 8:00 p.m., appellant was operating a brown Chevrolet Chevette automobile on Oak Street, a narrow alleyway located in the Borough of Girardville, Schuylkill County. Riding as passengers in appellant’s vehicle were Michelle Shoup, his common law wife, who was seated in the front-passenger seat, and Jean Moll and John Rush, who were in the back seat. Appellant was observed failing to stop for three consecutive stop signs, and the speed of his vehicle was estimated to be approximately fifty to fifty-five miles per hour. After driving through the intersection of Oak and Williams Streets, without stopping at the stop sign there erected for the control of traffic, appellant’s vehicle collided with a large dump truck which had been parked in the alleyway, near a loading dock at a garment factory. The site of the accident was about thirty to thirty-five feet from the intersection.

Upon being summoned to the scene of the accident, Charles Harris, the Police Chief for the Borough of Girardville, observed that appellant had a strong odor of alcohol about his person and that there were several beer cans on the floor of the vehicle. All of the vehicle’s occupants were initially pinned therein, and they, upon being removed from the vehicle, were transported for medical treatment. Appellant’s common law wife suffered massive traumatic injuries and died shortly after being taken by helicopter to Geisinger Medical Center. Appellant was taken to Ashland State Hospital, where, at 9:30 p.m., blood samples were drawn at the request of Chief Harris for the purpose of determining appellant’s blood alcohol level. Thereafter, two blood tests measured appellant’s blood alcohol content at .176% and .175%.

At trial, the defense contended that the legal cause of Michelle Shoup’s death had been the illegal parking of the dump truck with which appellant’s vehicle collided. Police Chief Harris testified that there had been a no parking sign posted at the loading dock where the dump truck was parked. However, according to Chief Harris, this sign had been placed there by the garment factory and not by the Borough. Therefore, he suggested, he was without legal authority to issue tickets for illegal parking at that location. Other testimony established that, despite poor lighting conditions, the dump truck could be seen from the intersection at Oak and Williams Streets. Additionally, both Jean Moll and John Rush described appellant’s driving prior to the accident as erratic.

Causation is an essential element of a charge of criminal homicide, which the Commonwealth must prove beyond a reasonable doubt. Commonwealth v. Webb, 449 Pa. 490, 494, 296 A.2d 734, 737 (1972). See also: Commonwealth v. Kingsley, 480 Pa. 560, 569-570, 391 A.2d 1027, 1032 (1978); Commonwealth v. Cheatham, 419 Pa.Super. 603, 607, 615 A.2d 802, 805 (1992). The tort concept of proximate cause plays no role in a prosecution for criminal homicide. Rather, the Commonwealth must prove a more direct causal relationship between the defendant’s conduct and the victim’s death. Commonwealth v. Barnhart, 345 Pa.Super. 10, 28, 497 A.2d 616, 626 (1985), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 34 (1988). See also: Commonwealth v. Root, 403 Pa. 571, 170 A.2d 310 (1961); Commonwealth v. Lang, 285 Pa.Super. 34, 426 A.2d 691 (1981). However,

it has never been the law of this Commonwealth that criminal responsibility must be confined to a sole or immediate cause of death. Commonwealth v. Stafford, 451 Pa. 95, 301 A.2d 600 (1973); Commonwealth v. Carn, 449 Pa. 228, 296 A.2d 753 (1972); Commonwealth v. Johnson, 445 Pa. 276, 284 A.2d 734 (1971); Commonwealth v. Cheeks, 423 Pa. 67, 223 A.2d 291 (1966); Commonwealth ex rel. Peters v. Maroney, 415 Pa. 553, 204 A.2d 459 (1964). Criminal responsibility is properly assessed against one whose conduct was a direct and substantial factor in producing the death even though other factors combined with that conduct to achieve the result. Commonwealth v. Stafford, supra.

Commonwealth v. Skufca, 457 Pa. 124, 132-133, 321 A.2d 889, 894 (1974), appeal dismissed, 419 U.S. 1028, 95 S.Ct. 510, 42 L.Ed.2d 304 (1974). See also: Commonwealth v. Rementer, 410 Pa.Super. 9, 19-24, 598 A.2d 1300, 1305-1307 (1991); Commonwealth v. Youngkin, 285 Pa.Super. 417, 424-425, 427 A.2d 1356, 1359-1360 (1981); Commonwealth v. Howard, 265 Pa.Super. 535, 539-540, 402 A.2d 674, 676-677 (1979). Thus, “[a] defendant cannot escape the natural consequences of his act merely because of foreseeable complications.” Commonwealth v. Paquette, 451 Pa. 250, 254, 301 A.2d 837, 839 (1973). So long as the defendant’s conduct started the chain of causation which led to the victim’s death, criminal responsibility for the crime of homicide may properly be found. See: Commonwealth v. Hicks, 466 Pa. 499, 505, 353 A.2d 803, 805 (1976). See also: Commonwealth v. Massart, 469 Pa. 572, 577, 366 A.2d 1229, 1232 (1975); Commonwealth v. Stafford, 451 Pa. 95, 100, 301 A.2d 600, 604 (1973); Commonwealth v. Cheeks, 423 Pa. 67, 73, 223 A.2d 291, 294 (1966).

In the instant case, a jury could find that appellant’s conduct was a direct and substantial factor in bringing about the death of Michelle Shoup. The evidence disclosed that, while intoxicated, appellant drove his vehicle down a narrow, dimly lit alleyway, erratically and at a high rate of speed, failing to stop at three consecutive intersections where stop signs had been posted. Moreover, the evidence suggested that had appellant obeyed the stop sign at the intersection of Oak and Williams Streets, he would have been able to observe the dump truck parked in the alleyway. While the fact that the dump truck was parked in the alleyway undoubtedly contributed to the accident, it is abundantly clear that it was appellant’s conduct which started an unbroken chain of causation leading to his wife’s death. That another vehicle may have been parked in a hazardous manner was a foreseeable circumstance which did not relieve appellant from the natural consequences of his conduct. See: Commonwealth v. Skufca, supra; Commonwealth v. Rementer, supra.

Appellant also contends that there was insufficient evidence to establish that, at the time of the accident, the amount of alcohol by weight in his blood was .10% or greater. Specifically, he argues that his blood samples were taken an hour and a half after the accident and the Commonwealth failed to present evidence which related the results of the blood alcohol tests back to the time of the accident. This issue, however, was not raised by appellant in either his post-trial motions or in his statement of matters complained of on appeal, and, as such, has been waived. “It is well settled that only issues raised in post-trial motions are preserved for appellate review.” Commonwealth v. Copeland, 381 Pa.Super. 382, 385, 554 A.2d 54, 55 (1988). See also: Commonwealth v. Gravely, 486 Pa. 194, 198-199, 404 A.2d 1296, 1298 (1979). The Superior Court will not consider an issue that has been raised for the first time on appeal. See: Commonwealth v. Gordon, 364 Pa.Super. 521, 534-537, 528 A.2d 631, 638-639 (1987); Commonwealth v. Bradshaw, 324 Pa.Super. 249, 254-255, 471 A.2d 558, 560-561 (1984).

Appellant next asserts that the trial court erred when it granted a Commonwealth motion in limine precluding the defense from introducing evidence that the decedent was not wearing a seat belt at the time of the fatal accident. It is argued by appellant that the victim’s failure to wear a seat belt was a substantial causative factor leading to her death, in that if she had been wearing a seat belt she may well have survived the accident.

“It is well-settled that ‘an accused has a fundamental right to present defense evidence, so long as such evidence is relevant and not excluded by an established evidentiary rule.’” Commonwealth v. Wells, 396 Pa.Super. 70, 75, 578 A.2d 27, 30 (1990), appeal dismissed, 530 Pa. 35, 606 A.2d 1171 (1992), quoting Commonwealth v. Uhrinek, 518 Pa. 532, 542, 544 A.2d 947, 952 (1988). See also: Commonwealth v. Eubanks, 511 Pa. 201, 209-210, 512 A.2d 619, 624 (1986); Commonwealth v. Greene, 469 Pa. 399, 405, 366 A.2d 234, 237 (1976). Therefore, in prosecutions for homicide by vehicle and homicide by vehicle while driving under the influence, both the Supreme and Superior Courts have held that a defendant should be permitted to introduce evidence which establishes that something other than his violation of the Vehicle Code caused the accident and resulting death. See: Common wealth v. Uhrinek, supra; Commonwealth v. Bartolacci, 409 Pa.Super. 456, 460-462, 598 A.2d 287, 289-290 (1991). However, in the instant case, evidence that the decedent failed to wear a seat belt was barred by a specific statutory provision and was not relevant to establish the cause of the fatal accident. Therefore, such evidence was properly excluded by the trial court.

The Vehicle Code provides at 75 Pa.C.S. § 4581(a)(2) that “each driver and front seat occupant of a passenger car ... shall wear a properly adjusted and fastened safety seat belt system.” However, the legislature, in another subsection of the same statute, provided further as follows:

(f) Criminal proceedings.—The requirements of this subchapter or evidence of a violation of this subchapter are not admissible as evidence in a criminal proceeding except in a proceeding for a violation of this subchapter. No criminal proceeding for the crime of homicide by vehicle shall be brought on the basis of noncompliance with this subchapter.

75 Pa.C.S. § 4581(f). Thus, the legislature has specifically prohibited evidence regarding a person’s failure to wear a seat belt from being introduced in a criminal proceeding except in a proceeding for a violation of 75 Pa.C.S. § 4581. Because no violation of § 4581(a)(2) was charged in the instant case, evidence that the decedent was not wearing a seat belt at the time of the accident was barred by the provisions of 75 Pa.C.S. § 4581(f).

At trial, appellant submitted the following proposed points for charge to the trial court:

2. It is not enough to conclude that the Defendant’s intoxication was the most likely cause of the accident and death; causation must be established beyond a reasonable doubt.
3. Under our law speculation, possibilities, and probabilities cannot sustain a criminal conviction.

When the trial court failed to include the verbatim language of these proposed points for charge in its final jury instructions, appellant objected. He now argues that by failing to include these points for charge, the trial court allowed the jury to speculate as to the cause of the victim’s death, and did not require an informed decision based upon the evidence. We disagree.

“In reviewing jury instructions to determine whether reversible error has been committed by a trial court, we consider the charge as a whole. Error will not be predicated on isolated excerpts. Rather, it is the general effect of the charge that controls.” Commonwealth v. Myers, 376 Pa.Super. 41, 50, 545 A.2d 309, 314 (1988). See also: Commonwealth v. Bowers, 400 Pa.Super, 377, 392, 583 A.2d 1165, 1172 (1990); Commonwealth v. Riggins, 374 Pa.Super. 243, 253, 542 A.2d 1004, 1009 (1988). “A trial court is not required to accept requested instructions verbatim. The key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations.” Commonwealth v. Cimorose, 330 Pa.Super. 1, 10, 478 A.2d 1318, 1323 (1984) (citations omitted). See also: Commonwealth v. Faulkner, 528 Pa. 57, 79, 595 A.2d 28, 40 (1991), cert. denied, — U.S. -, 112 S.Ct. 1680, 118 L.Ed.2d 397 (1992); Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990); Commonwealth v. Ohle, 503 Pa. 566, 582, 470 A.2d 61, 70 (1983), cert. denied, 474 U.S. 1083, 106 S.Ct. 854, 88 L.Ed.2d 894 (1986). Therefore, “ ‘[t]he refusal to give a proper instruction requested by a [defendant] is ground for a new trial only if the substance thereof has not otherwise been covered by the trial court’s general charge.’ ” Commonwealth v. LaMassa, 367 Pa.Super. 54, 58, 532 A.2d 450, 452 (1987), quoting Werner v. Quality Service Oil Co., Inc., 337 Pa.Super. 264, 269, 486 A.2d 1009, 1011 (1984).

A careful review of the trial court’s jury instructions in the instant case makes it abundantly clear that the substance of appellant’s proposed jury instructions was fully and adequately covered by the language chosen by the trial court. The jurors were apprised that, in order to convict appellant of homicide by vehicle while driving under the influence of alcohol, they had to be convinced beyond a reasonable doubt that appellant “recklessly or in a criminally negligent manner ... caused the death of Michelle Shoup as the direct result of his commission of the offense of driving under the influence.” N.T. 209-210. The trial court also explained to the jury the concept of guilt beyond a reasonable doubt and explicitly instructed the jury that it could not find appellant guilty “based on mere suspicion of guilt.” N.T. 198-199. These instructions made clear to the jury that causation had to be established beyond a reasonable doubt and that a conviction could not be based upon speculation or probability. The trial court’s refusal to recite verbatim the requested instructions submitted by appellant is not a basis for a new trial.

The final issue raised by appellant is that the trial court erred by allowing into evidence the results of blood alcohol tests where the technicians who actually performed the tests were not present to testify at trial. The Commonwealth presented the testimony of Doctor Michael Feldman, the Director of Toxicology at the Laboratory where the tests had been performed. According to appellant, the testimony of the laboratory director regarding the results of appellant’s blood tests constituted impermissible hearsay and deprived him of the right to cross-examine the persons who had performed the tests. These same arguments, however, were made and rejected by the Superior Court in Commonwealth v. Kravontka, 384 Pa.Super. 346, 558 A.2d 865 (1989). There, the Court held that blood alcohol test results could properly be admitted into evidence without the presence in court of the person who had performed the test. In so holding, the Kravontka Court determined that the defendant’s right to confrontation was not violated because blood alcohol testing bears sufficient “indicia of reliability” so that “cross-examination of the technician concerning the inherently reliable blood test would have been of little benefit to the [defendant].” Id. at 355, 558 A.2d at 870. The Court further concluded that blood alcohol test results were qualified for admission under the business records exception to the hearsay rule. Id. at 357-358, 558 A.2d at 871.

In concluding that the evidence of appellant’s blood alcohol test results was properly admitted in the instant case, the trial court reasoned as follows:

Doctor Feldman testified about both his academic background and his position as the supervisor of the medical lab in which the test was performed. He testified as to the necessary chain of evidence requirements for proper testing; he identified the defendant’s laboratory records, and he verified that the results were made contemporaneously with the transactions. In addition, the Court took judicial notice of the fact that the laboratory involved, Roche Biomedical Laboratories, was authorized by the Department of Transportation and the Department of Health under the Clinical Laboratory Act to conduct such business as set forth in Pennsylvania Bulletin, Volume 19, Number 27, July 8, 1989. Accordingly, the testimony and records of the laboratory were permissible and properly admitted into evidence under the Business Records as Evidence Act and the Motor Vehicle Code.

Trial Court Opinion at pp. 5-6. The trial court’s reasoning'in this case is consistent with the decision in Commonwealth v. Kravontka, supra. Therefore, the receipt of the evidence of appellant’s blood alcohol test results on the basis of the testimony of Dr. Feldman was not error. See also: Commonwealth v. Garofalo, 386 Pa.Super. 363, 367-370, 563 A.2d 109, 111-112 (1989); Commonwealth v. Karch, 349 Pa.Super. 227, 229-230, 502 A.2d 1359, 1361 (1986); Commonwealth v. Seville, 266 Pa.Super. 587, 405 A.2d 1262 (1979).

Having found no basis to disturb the several verdicts of guilty, the judgment of sentence will be affirmed.

Affirmed.

      . 75 Pa.C.S. § 3735.

      . 75 Pa.C.S. § 3731(a)(1) and (a)(4).

      . 75 Pa.C.S. § 3732.

      . 75 Pa.C.S. § 3714.

      . The convictions for driving while under the influence of alcohol and homicide by vehicle were deemed to merge for purposes of sentencing into the conviction for homicide by vehicle while driving under the influence of alcohol. On the summary conviction for reckless driving, Shoup was additionally sentenced to pay a fine of twenty-five ($25.00) dollars and the sum of thirty ($30.00) dollars into the Catastrophic Loss (CAT) Fund.


text:
    620 A.2d 21
    Florence WALSH, Appellee, v. Robert J. BUCALO and Geraldine Bucalo, his wife, Appellants.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1992.
    Filed Feb. 9, 1993.

      Emil L. Iannelli, Southampton, for appellants.
    Leonard Spear, Philadelphia, for appellee.
    Before WIEAND, FORD ELLIOTT and HOFFMAN, JJ.
   WIEAND, Judge.

In this appeal we are asked to review an order of the trial court which set aside a deed by which the grantor, having created a life estate in herself, conveyed the remainder interest in real estate to her son. After careful review, we conclude that there was an inadequate basis for disturbing the sanctity of the conveyance; and, therefore, we reverse.

Florence Walsh and her first husband, Frank D. Bucalo, owned as tenants by the entireties a residential property at 9654 Clark Street in Philadelphia. Frank Bucalo died February 21, 1986, leaving his widow, Florence, as the sole owner of the real estate. By deed dated October 3, 1986 and duly recorded, she created a life estate in herself and conveyed the remainder interest in the real estate to her son, Robert J. Bucalo. Later, Florence Bucalo met and contemplated marriage with Jim Walsh. Her son disapproved, and, in the summer of 1988, the impending marriage was the source of a serious argument. The mother told her son if he didn’t change his attitude about Walsh, the son would be cut out of his mother’s will. Finally, in June, 1989, the now Mrs. Walsh demanded a reconveyance of the remainder interest which had been conveyed to her son in 1986. When the son refused his mother’s request, she filed an action in equity to set aside the deed. After a trial, the court granted relief and ordered a reconveyance. Post-trial relief was denied, and Bucalo appealed.

“[A] conveyance of real property by way of deed is presumptively valid and will not be set aside unless it is shown by clear and convincing evidence that the transfer was improperly induced by fraud or other misconduct on the part of the transferee.” Wagner v. Wagner, 466 Pa. 532, 541, 353 A.2d 819, 823-824 (1976). Written instruments are not to be set aside except upon convincing testimony that their execution was tainted by either actual or constructive fraud, or that the person executing the instrument lacked sufficient mental capacity. Weir by Gasper v. Estate of Ciao, 521 Pa. 491, 502, 556 A.2d 819, 824 (1989). The burden of proving that the transfer was the product of a lack of mental capacity, undue influence, fraud, or a confidential relation is on the person seeking to set aside the deed. Gracey v. Rutherford, 366 Pa. 196, 199, 77 A.2d 358, 359 (1951). Here, Mrs. Walsh was the party who sought cancellation of the deed; and, therefore, the burden was on her to prove that the deed was the product of improper conduct on the part of her son.

In support of her conclusion that the deed should be set aside, Walsh advanced two separate arguments. First, she contended that a confidential relationship had existed between herself and appellant and that, therefore, the burden shifted to appellant to show that the transaction had been untainted by any impropriety and was the product of appellee’s free, voluntary, and clearly understood action. Second, she contended that equity required the deed to be declared void because of a failure of consideration. We will address each of appellee’s contentions.

In Weir by Gasper v. Estate of Ciao, supra, the Supreme Court defined a confidential relationship, and its attendant ramifications, as follows:

This court has determined that a confidential relationship exists when the circumstances make it certain that the parties do not deal on equal terms; where, on the one side there is an overmastering influence, or on the other, weakness, dependence or trust, justifiably reposed. In both situations an unfair advantage is possible. Leedom v. Palmer, 274 Pa. 22, 25, 117 A. 410, 411 (1922). Such a relation is created between two persons when it is established that one occupies a superior position over the other; intellectually, physically, governmentally, or morally, with the opportunity to use the superiority to the other’s disadvantage. [Union Trust Co. v.] Cwynar, 388 Pa. [644] at 653, 131 A.2d [133] at 137 [1957]. A confidential relationship is not limited to any particular association of parties, but exists wherever one occupies such a position of advisor or counselor as reasonable to inspire confidence that he will act in good faith for the other’s interest. Drob v. Jaffe, 351 Pa. 297, 300, 41 A.2d 407, 408 (1945). Where a confidential relationship exists, the law presumes the transaction voidable unless the party seeking to sustain the validity of the transaction affirmatively demonstrates that it was fair under all of the circumstances and beyond reach of suspicion. Leedom; Ruggieri v. West Forum Corp., 444 Pa. 175, 282 A.2d 304 (1971); Young v. Kaye, 443 Pa. 335, 279 A.2d 759 (1971). However:
where undue influence and incompetency do not appear, and the relation between the parties is not one ordinarily known as confidential in law, the evidence to sustain a confidential relation must be certain; it cannot arise from suspicion or from infrequent or unrelated acts; care must be used not to confound acts springing from natural love and affection with confidential relations, and, while the line of demarcation may in some cases be narrow, nevertheless, to sustain the integrity of gifts based on such affection in family relations, it is necessary the distinction should exist.
Leedom, 274 Pa. at 26, 117 A. at 412.

Id. 521 Pa. at 504-505, 556 A.2d at 825-826.

In the instant case, the fact that the relationship between Walsh and Bucalo was one of parent and child did not, in and by itself, create a confidential relationship. Sendick v. Matvey, 391 Pa. 286, 295, 138 A.2d 92, 96-97 (1957). “[T]he existence of a close family relationship per se does not justify recognition of a confidential relationship.” Truver v. Kennedy, 425 Pa. 294, 306, 229 A.2d 468, 474 (1967). Instead, it is necessary to show that as a result of a relationship between two parties, one depended upon the other, who was able to exercise an overmastering influence over the other.

Here, the evidence was insufficient to establish a confidential relationship between mother and son. The mother was neither dependent upon her son nor weak; and the son did not exert an overmastering influence over his mother. There was no evidence that the son had handled his mother’s affairs or that she had generally looked to him for financial or other advice. The mother had been employed as comptroller for an automobile business for twenty-one (21) years and was quite capable of managing her own affairs. The matter of the mother’s real estate was discussed between mother and son approximately six months after the death of mother’s husband. It was then suggested by the son that it might be possible to transfer title in a manner that would avoid the inheritance tax. He also suggested that his mother might wish to consult a lawyer about- it. When she said she knew of no lawyer, the son suggested the name of a lawyer who previously had handled a real estate transaction for him. However, he did not go to the lawyer’s office with his mother to discuss preparation of a deed. More than seven (7) months after her husband’s death, on October 3, 1986, the appellee-mother executed a deed conveying a remainder interest in the real estate to her son.

At the close of the trial, the trial judge appropriately observed:

Well, the Court is called upon to decide whether a mother who conveyed her property to her son, retaining a life estate in herself, should have the remainder interest conveyed back to her because, as she says, she was confused, emotionally distressed, suffering from anxiety and didn’t understand what she was doing at the time of the conveyance.
The Court has made several suggestions to counsel as to how this matter could be settled, and it seems that the mother objects to anything other than a full conveyance back to her. The mother has failed to convince this Court that she was suffering from any type of depression, anxiety or confusion at the time that she made the conveyance to her son. There is no showing here that there has been any action by the son which would lead this Court to believe that the mother was under any undue influence.

These observations by the trial court are consistent with its failure to find a confidential relationship and with our own review of the record. It seems patently clear, therefore, that the trial court’s decree setting aside the deed cannot be supported on grounds that the deed was the product of undue influence.

The trial court’s action also cannot be supported by the appellee-mother’s contention that there was a want or failure of consideration. The deed recited a consideration of “ONE DOLLAR ($1.00) ... unto her well and truly paid by the said Grantees, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged.” This was sufficient consideration for the conveyance. Barnes v. McCandless Township Sanitary Authority, 8 Pa.Commw. 457, 303 A.2d 228 (1973). See also: Lafayette v. Brinham, 363 Pa. 360, 69 A.2d 130 (1949); Sellers v. Sellers, 316 Pa. 404, 175 A. 401 (1934). The deed, moreover, was under seal. See: Caplan v. Pittsburgh, 375 Pa. 268, 100 A.2d 380 (1953).

“[A]s a general rule a deed which is otherwise valid will not be invalidated because of total or partial failure of consideration.” Yuhas v. Schmidt, 434 Pa. 447, 459, 258 A.2d 616, 622 (1969). The deed in this case was absolute and unconditional. It was not conditioned upon future support of the mother by her son. Moreover and in any event, the evidence showed that when the mother requested assistance, the son advanced money to pay an insurance premium in 1986 and real estate taxes in 1987. There was no evidence of additional needs with respect to which appellant failed to respond.

Appellee’s asserted depression and confusion following her husband’s death do not support a decree setting aside her deed. More likely, the mother’s desire to set aside the deed was generated by her remarriage. Until that time, neither party had any objection to the deed. The differences of opinion regarding the new husband did not furnish an adequate reason for setting aside the prior deed by which the appellee-mother had conveyed a remainder interest in the real estate to her son. As the Supreme Court appropriately observed in Sendick v. Matvey, supra:

Family disputes in the courts are always distressing and melancholy affairs and it is unfortunate that our disposition of this matter cannot serve to reunite the dissident factions among the [ ] family. It nevertheless remains true that this Court has no choice but to afford full sanctity to the decedent’s written deed since the appellee has completely failed to prove that there was any irregularity in its preparation or execution which would preclude us from giving it full force and effect....”

Id. 391 Pa. at 299, 138 A.2d at 98.

Order reversed.

      . Because of the trial judge’s retirement, the case was certified to the Superior Court without a Rule 1925(a) opinion.


author: WIEAND, Judge: CAVANAUGH, Judge,

text:
    620 A.2d 25
    COMMONWEALTH of Pennsylvania v. Todd A. LOEPER, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 12, 1992.
    Filed Feb. 16, 1993.
    Reargument Denied April 22, 1993.

      Lawrence J. Hracho, Reading, for appellant.
    Narcy L. Hughes, Asst. Dist. Atty., Reading, for appellee.
    Before CAVANAUGH, WIEAND and McEWEN, JJ.
   WIEAND, Judge:

Todd A. Loeper was tried by jury and was found guilty of driving while under the influence of alcohol in violation of 75 Pa.C.S. § 3731(a)(4). In the same proceeding, the trial court, sitting as fact-finder, found Loeper guilty of the summary offense of reckless driving. Following the denial of post-trial motions, Loeper was sentenced on his drank driving conviction to serve a term of imprisonment for not less than six (6) days nor more than twelve (12) months, to pay fines and costs of prosecution and treatment in an amount of $1,015.00, and to perform community service for a period of forty (40) hours. Loeper was also sentenced to pay a twenty-five ($25.00) dollar fine for reckless driving. On direct appeal from the judgment of sentence, the principal issue is whether the evidence was sufficient to support the drank driving conviction in view of the fact that appellant’s blood test had been administered approximately two hours after he had been stopped by police.

In reviewing a challenge to the sufficiency of the evidence we must determine “whether, viewing all the evidence admitted at trial, together with all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as the verdict winner, the jury could have found that each and every element of the charged offenses was proved beyond a reasonable doubt.” Commonwealth v. Sanchez, 416 Pa.Super. 160, 166, 610 A.2d 1020, 1023 (1992). See: Commonwealth v. Smith, 523 Pa. 577, 581, 568 A.2d 600, 602 (1989); Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). “[I]t is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The factfinder is free to believe all, part or none of the evidence.” Commonwealth v. Tate, 485 Pa. 180, 182, 401 A.2d 353, 354 (1979). See also: Commonwealth v. Guest, 500 Pa. 393, 396, 456 A.2d 1345, 1347 (1983); Commonwealth v. Rose, 463 Pa. 264, 268, 344 A.2d 824, 826 (1975). The facts and circumstances established by the Commonwealth “need not be absolutely incompatible with [the] defendant’s innocence, but the question of any doubt is for the jury unless the evidence ‘be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.’ ” Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977), quoting Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also: Commonwealth v. Kravitz, 400 Pa. 198, 215, 161 A.2d 861, 869 (1960), cert. denied, 365 U.S. 846, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961).

On September 28, 1990, at or about 12:40 a.m., Officer Ronald Mohl of the Leesport Police Department stopped a tractor trailer on Route 61 in Ontelaunee Township, Berks County. While Mohl was standing along the berm of the road, speaking with the operator of the vehicle which he had stopped, a red Chevrolet pickup truck sped past. A portion of the Chevrolet brushed Officer Mohl’s shoulder. Mohl ran to his patrol car and summoned assistance. Officer Thomas Link, of the Maiden Creek/Ontelaunee Police Department, began pursuit of the red pickup truck. Shortly thereafter, he and Mohl were able to stop the red truck, which was being driven by Todd Loeper, the appellant. Loeper’s speech was very slurred, his eyes were bloodshot and watery, and he emitted an odor of alcohol. When asked to perform field sobriety tests, Loeper refused and demanded that he be given a blood test. Therefore, he was placed under arrest and taken to the Reading Hospital and Medical Center, where a blood sample was drawn at 2:42 a.m., about two hours after he had been stopped by police.

At trial, the Commonwealth called the director of the Department of Pathology at Reading Hospital, Dr. I. Donald Stuard, who testified that a blood serum test performed shortly after Loeper’s blood sample had been taken disclosed a blood alcohol content of .17%. On cross-examination, he conceded that when measured by whole blood, rather than by blood serum, appellant’s blood alcohol content would have been ,141%. Dr. Stuard testified further that the blood test results reflected appellant’s blood alcohol content at the time his blood was drawn and not at the time when he had operated his vehicle two hours earlier. The Commonwealth made no attempt to have Dr. Stuard relate the blood test results back to the time when appellant had been stopped by the police.

After the Commonwealth rested, the defense called, as an expert witness, Dr. John J. Spikes, a forensic toxicologist. Dr. Spikes testified regarding the normal rate at which alcohol is absorbed into the blood stream and the variables which may affect that rate. In response to hypothetical questioning based upon appellant’s testimony regarding his weight and the timing and amount of alcohol and food appellant had consumed on the night of his arrest, Dr. Spikes said with respect to a person having the characteristics of appellant that it would be difficult to predict the blood alcohol level two hours before the test because at that time the blood alcohol level would still have been rising.

In Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), the Supreme Court of Pennsylvania held evidence insufficient to show a violation of 75 Pa.C.S. § 3731(a)(4) where a blood test administered an hour after the defendant had been stopped produced a blood alcohol reading of .114% and it was unknown whether his blood alcohol content had been rising or falling at the time of the test. Without evidence relating the test results to the time of operating a vehicle, the Court concluded, a jury would be permitted “to engage in unbridled speculation as to whether [defendant’s] blood alcohol level was at or above .10% at the critical time.” Id. at 97, 601 A.2d at 1231. Similarly, in Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), where blood had been drawn one hour and fifty minutes following a vehicular accident, a test result of .108% was insufficient to show that the defendant had a blood alcohol content of .10% or greater at the time of the accident. Id. at 106-107, 601 A.2d at 1236.

In Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), the Superior Court had an opportunity to interpret and apply the Jarman and Modaffare holdings to a case in which a blood alcohol reading of .1488% had been obtained as a result of a blood test administered fifty (50) minutes after the defendant had been stopped by police. The Court observed:

The supreme court in both [Jarman and Modaffare] held that a strong inference of guilt due to an illegal BAC while the accused is driving would exist where the BAC test result significantly departed above 0.10 percent and where a blood sample had been obtained a short time after the accused had been stopped by the police. Otherwise, as in Jarman and Modaffare, where the respective BAC test results had minimally exceeded 0.10 percent and where the suspects’ blood samples had been drawn shortly after they were stopped by the authorities, this inference is considerably weakened.
However, the supreme court did not draw a bright numerical line between what it would consider to be a minimal upward departure suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt. In like vein, the supreme court failed to establish a temporal cut-off for the drawing of a suspect’s blood to indicate either a weak or a strong inference of guilt. In our view, and in accordance with the dual standards set by our supreme court in Jar-man and Modaffare, the stronger the inference of guilt, the less significant is the necessity for evidence of relating back. Conversely, the weaker the inference of guilt, the more vital is the necessity for evidence of relating back an accused’s BAC test result to the time of driving.

Id. at 128, 606 A.2d at 531. Nevertheless, the Court held that the evidence before it was insufficient to uphold a conviction for violating 75 Pa.C.S. § 3731(a)(4). The Court said, it did not view Osborne’s blood alcohol reading as a “substantial departure” from the permissible limit. Moreover, the time lag, the Court said, was “significant” considering Osborne’s uncontroverted testimony that she had consumed alcohol only forty-five minutes before being stopped. Because the defendant’s blood alcohol may have been rising at the time when she was stopped, the inference of guilt was too weak to base a conviction thereon in the absence of evidence relating the driver’s blood alcohol content back to the time when she was driving a vehicle. As no such evidence had been offered, Osborne’s conviction was reversed. Id. at 128-130, 606 A.2d at 531-532.

In the instant case, appellant’s blood alcohol content was determined to be approximately .141%. However, the blood test was not administered until approximately two hours after appellant had been stopped. Without additional evidence, under the decided cases, the result of the blood test would be insufficient to show a blood alcohol content of 0.10% or greater at the time when appellant was stopped.

In fact, however, there was additional evidence. Both police officers testified that appellant, when stopped, slurred his speech. The expert witness called by appellant testified during cross-examination that people do not generally slur their speech when they have a blood alcohol content of only 0.10%. Most people, he said, do not begin to exhibit visible signs of intoxication until they achieve a level of approximately .15%. From this evidence, a fact-finder could infer (1) that appellant’s blood alcohol content was in excess of 0.10% at the time when he was stopped, and (2) that appellant’s blood alcohol content did not rise between the time he was stopped and the time when his blood was tested.

Under the circumstances of this case, therefore, it cannot be said that the jury’s finding of a violation of 75 Pa.C.S. § 3731(a)(4) was based solely on unbridled speculation. On the contrary, the evidence and the reasonable inferences to be drawn therefrom, when considered in a light most favorable to the Commonwealth, were sufficient to enable the jury to conclude beyond a reasonable doubt that appellant was guilty of drunk driving in violation of 18 Pa.C.S. § 8731(a)(4).

There is no merit in appellant’s several arguments that his convictions violated principles of double jeopardy. As all the cases agree, jeopardy did not attach at the time of the preliminary hearing before the magistrate. See: Liciaga v. Court of Common Pleas of Lehigh County, 523 Pa. 258, 264, 566 A.2d 246, 248-249 (1989); Commonwealth v. Genovese, 493 Pa. 65, 69 n. 7, 425 A.2d 367, 369 n. 7 (1981); Commonwealth v. Flanders, 247 Pa.Super. 41, 43-44, 371 A.2d 1316, 1317 (1977). Therefore, the fact that the magistrate found an absence of prima facie evidence to support prosecutions for disorderly conduct and a violation of 75 Pa.C.S. § 3731(a)(1) did not prevent the same magistrate from returning to court for further proceedings the charges of reckless driving and violating 75 Pa.C.S. § 3731(a)(4). Indeed, there is no inconsistency whatsoever in the magistrate’s decision. All charges were for offenses which involved different elements, so that a determination of insufficient evidence of one did not in any way prevent a guilty finding with respect to the others.

The judgment of sentence is affirmed.

CAVANAUGH, J., files a Dissenting Opinion.

CAVANAUGH, Judge,

dissenting:

I respectfully dissent from the result reached by the majority because it affirms the conviction on a theory which may not have been before the jury. There is nothing in the record which shows that the court charged the jury that it could return a guilty verdict if it found that evidence other than the results of the blood alcohol test would be sufficient to establish that the appellant’s blood alcohol level was 0.10% or greater.

Appellant was originally charged with two drunk driving offenses: 1) driving while under the influence of alcohol to a degree which renders one incapable of safe driving, 75 Pa.C.S. § 3731(a)(1) and (2) driving while the amount of alcohol by weight in the blood is 0.10% or greater, 75 Pa.C.S. § 3731(a)(4). At the preliminary hearing, the § 3731(a)(1) charge was dismissed and the § 3731(a)(4) charge was held for trial. Therefore, at trial it was the burden of the Commonwealth to prove the blood alcohol content of the appellant.

I do not believe it is possible to affirm appellant’s conviction where the record does not indicate whether the jury was properly charged on the legal theory upon which the majority affirms. Unless the trial court instructed the jury that it could conclude that the evidence, independent of the results of the blood alcohol test, could be sufficient to prove that appellant’s blood alcohol level exceeded 0.10%, I believe that the conviction should not be upheld. On this basis, I respectfully dissent and would vacate the judgment of sentence imposed for violation of 75 Pa.C.S. § 3731(a)(4).

      . 75 Pa.C.S. § 3731(a)(4) provides:
      § 3731. Driving under influence of alcohol or controlled substance (a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
      (4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.

      . In Commonwealth v. Bartolacci, 409 Pa.Super. 456, 459-460, 598 A.2d 287, 288 (1991), allocatur denied, 530 Pa. 638, 607 A.2d 249 (1992), the Superior Court held that, where a test is performed on blood serum rather than whole blood, the fact-finder must be provided with evidence converting the test results to reflect a whole blood analysis, and that, absent such a conversion, evidence of test results based solely on blood serum would not suffice to sustain a conviction pursuant to 75 Pa.C.S. § 3731(a)(4). See also: Commonwealth v. Wanner, 413 Pa.Super. 442, 446-450, 605 A.2d 805, 807-809 (1992) (blood test results acquired from blood plasma rather than whole blood not sufficient to sustain conviction under § 3731(a)(4) absent evidence converting test results into amount of alcohol by weight in the whole blood).

      . Appellant has not challenged in this appeal the court’s instructions by which the issue of guilt or innocence was submitted to the jury. The issue which the jury was asked by the court to decide was whether appellant’s blood alcohol was at or in excess of 0.10 percent while he was driving a vehicle. In so doing, the jury was free to consider all the evidence, including appellant’s slurred speech at the time of his arrest and the expert testimony regarding the level of blood alcohol which was necessary to produce such an effect. Therefore, it is difficult to comprehend the position of the dissent that appellant is entitled to have his conviction vacated merely because the trial court, during its charge to the jury, failed to make specific reference to each piece of evidence which the jury could consider in arriving at its verdict.

      . The majority (n. 3), it seems, misconstrues the import of this dissent. The proposition does not relate to the court's duty to "make specific reference to each piece of evidence” but rather to the doctrine that an appellate court may not affirm a conviction of a crime based on a theory of criminal responsibility that was not before the jury.


author: WIEAND, Judge:

text:
    620 A.2d 30
    Kenneth J. BOTSKO, Joseph Botsko, Appellees, v. DONEGAL MUTUAL INSURANCE CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 11, 1992.
    Filed Feb. 16, 1993.

      Rick Long, Wyomissing, for appellant.
    Charles M. Miller, Frackville, for appellees.
    Richard C. Angino, Harrisburg, for PA Trial Lawyers Ass’n, amicus curiae.
    Before ROWLEY, President Judge, and WIEAND and HUDOCK, JJ.
   WIEAND, Judge:

This is an appeal from a summary judgment entered by the trial court in an action for declaratory judgment to interpret coverage provided by a policy of automobile insurance. We are asked to determine whether the trial court correctly held summarily and as a matter of law that Donegal Mutual Insurance Co. had improperly issued a policy having limited underinsured motorist coverage to Kenneth Botsko without his waiver of the requirement of the Pennsylvania Motor Vehicle Financial Responsibility Law that the policy contain uninsured and underinsured motorist coverage in the amount of liability coverage for bodily injury.

At issue is the language of the statute appearing in pertinent part at 75 Pa.C.S. §§ 1731(a), 1734 and 1791 as follows:

§ 1731. Availability, scope and amount of coverage
(a) Mandatory offering.—No motor vehicle liability insurance policy shall be delivered or issued for delivery in this Commonwealth, with respect to any motor vehicle registered or principally garaged in this Commonwealth, unless uninsured motorist and underinsured motorist coverages are offered therein or supplemental thereto in amounts as provided in section 1734 (relating to request for lower limits of coverage)....
§ 1734. Request for lower limits of coverage
A named insured may request in writing the issuance of coverages under section 1731 (relating to availability, scope and amount of coverage) in amounts equal to or less than the limits of liability for bodily injury.
§ 1791. Notice of available benefits and limits
It shall be presumed that the insured has been advised of the benefits and limits available under this chapter provided the following notice in bold print of at least ten-point type is given to the applicant at the time of application for original coverage, and no other notice or rejection shall be required:
IMPORTANT NOTICE
Insurance companies operating in the Commonwealth of Pennsylvania are required by law to make available for purchase the following benefits for you, your spouse or other relatives or minors in your custody or in the custody of your relatives, residing in your household, occupants of your motor vehicle or persons struck by your motor vehicle:
(6) Uninsured, underinsured and bodily injury liability coverage up to at least $100,000 because of injury to one person in any one accident and up to at least $300,000 because of injury to two or more persons in any one accident or, at the option of the insurer, up to at least $300,000 in a single limit for these coverages, except for policies issued under the Assigned Risk Plan----
Additionally, insurers may offer higher benefit levels than those enumerated above as well as additional benefits. However, an insured may elect to purchase lower benefit levels than those enumerated above.
Your signature on this notice or your payment of any renewal premium evidences your actual knowledge and understanding of the availability of these benefits and limits as well as the benefits and limits you have selected.

The policy issued by Donegal to Kenneth Botsko in the instant case provided liability coverage for up to three hundred thousand ($300,000) dollars. Uninsured and underinsured motorist coverage, however, was limited to thirty-five thousand ($35,000) dollars. This was in violation of the provisions of the Motor Vehicle Financial Responsibility Law unless the insured was first advised of the full coverage available to him and affirmatively waived such protection in favor of lesser coverage.

In fact, the insured had not been given and had not signed the important notice required by 75 Pa.C.S. § 1791 by which he could have waived the statutory requirement and opted for a lesser coverage. As to this fact there is no dispute. What, then, is the effect of such failure?

In Byers v. Amerisure Ins. Co., 745 F.Supp. 1073 (E.D.Pa.1990), affirmed, 935 F.2d 1280 (3rd Cir.1991), the insurer had also failed to give to its insured the notice of available benefits required by 75 Pa.C.S. § 1791. It argued, nevertheless, that its insureds had waived the statutorily required coverage by signing an application for lesser coverage without objection. The court held that an insured’s signature on the required notice will establish a conclusive presumption that he or she has actual knowledge of the coverage available. See: Shipe v. Allstate Ins. Co., 791 F.Supp. 109, 111 (M.D.Pa.1992). If the insured voluntarily signs the waiver, he or she will not thereafter be heard to contend otherwise. Prudential Property and Cas. Ins. Co. v. Pendleton, 858 F.2d 930, 936 (3d Cir.1988). See also: The Cincinnati Ins. Co. v. Herr Signal & Lighting Co., Inc., 757 F.Supp. 490 (M.D.Pa.1991). However,

[i]f the insurer does not follow § 1791 then it must establish waiver under the principles enunciated in Johnson v. Concord Mut. Ins. Co., 450 Pa. 614, 300 A.2d 61 (1973), where the Supreme Court established that a waiver of the statutory right to certain levels of uninsured motorists coverage must be “[a]ffirmatively expressed in writing by the insured,” which must evidence “[a]n express agreement or acquiescence on the part of the insured to delete or relinquish this protection. The statutory mandate may be complied with only by including uninsured motorists coverage or by obtaining an affirmatively expressed rejection in 'writing from the insured. Nothing less will satisfy the statutory obligation.” 450 Pa. at 621, 300 A.2d at 65. Johnson places the burden of proof to establish waiver on the insurer. 450 Pa. at 620, 300 A.2d at 65; accord Pendleton, 858 F.2d at 935.

Byers v. Amerisure Ins. Co., supra at 1076 (footnote omitted). See also: Nationwide Ins. Co. v. Resseguie, 782 F.Supp. 292 (M.D.Pa.1992), affirmed in part, reversed in part, 980 F.2d 226 (3d Cir.1992). Cf. Lambert v. McClure, 407 Pa.Super. 257, 595 A.2d 629 (1991); Boyce v. St. Paul Property and Liability Ins. Co., 421 Pa.Super. 582, 618 A.2d 962 (1992).

In the instant case, Kenneth Botsko purchased automobile insurance from Lawrence Domalakes, fra Frackville Insurance Agency. He was given a copy of the policy which had previously been issued to his father, Joseph Botsko, and apparently took it home with him. When he later signed an application for insurance coverage, he requested the same coverage which had been issued to his father. The father’s policy provided liability coverage of three hundred thousand ($300,000) dollars but uninsured and underinsured motorist benefits of only thirty-five thousand ($35,000) dollars. Domalakes could not recall the specific conversation he had with Kenneth Botsko. When the policy was ordered from and issued by Donegal, however, it provided for the same coverage which had been issued to the father. The policy was renewed annually and the premiums paid until October 13, 1989, when the vehicle which Kenneth Botsko was operating was struck head on by a vehicle being driven by Violet P. Guers. Botsko settled his claim for bodily injury against Guers, with Done-gal’s consent, for fifty thousand ($50,000) dollars, the limits of liability under a policy of insurance which had been issued on the Guers vehicle by Travelers Insurance Co. Thereafter, Kenneth Botsko commenced the present action for a declaratory judgment determining that the maximum coverage for underinsured motorist coverage provided by Donegal policies issued on each of two vehicles owned by the insured was three hundred thousand ($300,000) dollars.

Under the law discussed in Byers v. Amerisure, supra, which we believe to be a sound analysis, the trial court in this case correctly determined that Donegal could not meet its burden of showing that Kenneth Botsko had waived the amount of underinsured motorist coverage required by the statute. There is no evidence that Kenneth Botsko was advised of the coverage mandated by statute and thereafter waived it in favor of lesser coverage.

The insurer contends that the enhanced coverage was waived when the applicant expressly requested uninsured and underinsured coverage for thirty-five thousand ($35,000) dollars and paid the premium therefor. A similar argument was made and rejected in Byers v. Amerisure Ins. Co., supra, where the court said:

Although [the insured] signed the policy application, there is no evidence before this court that he was shown the language mandated by § 1791. Nor is there any other evidence that at the time of application [the insurers] offered the [insureds] an opportunity to purchase uninsured and underinsured coverage equal to the public liability coverage for bodily injury. There certainly is no evidence that the [insureds] made a conscious decision to reject the enhanced coverage which was available to them. Because there is no evidence that the [insureds] made the knowing, unequivocal waiver required by Johnson, I decline to find that the [insureds] waived their rights under the MVFRL.

Id. at 1076.

The apparent absence of waiver is not changed by the fact that the insured paid the same annual premium for several years thereafter. See: Nationwide Ins. Co. v. Resseguie, supra at 294. The amount of coverage is made mandatory by the statute. It can be waived in favor of lesser coverage only after the insured has been made aware of the coverage that is available. Without such information, a knowing and intelligent waiver cannot be made. Here, there is no evidence that the insured was ever made aware of the coverage available to him. In the absence thereof, he could not knowingly and intelligently waive the coverage mandated by statute.

The insurer also contends that the insured is estopped from disputing the amount of his coverage because he had a duty to read the terms of his policy and, if the coverage was unsatisfactory, reject the same and request proper coverage. Although .such a principle was adopted and followed by the Supreme Court in Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983), the Court was there considering general liability insurance, an area of the law less heavily regulated by statute than motor vehicle insurance. Here, as the Court held in Johnson v. Concord Mutual Ins. Co., supra, “[b]ecause uninsured motorist coverage has been legislatively declared to be a matter of public policy, a deletion of coverage is not to be determined by reference to traditional rules of waiver and estoppel.” Id., 450 Pa. at 622, 300 A.2d at 66.

Here, the insurer could not establish that the insured had received the important notice of uninsured and underinsured motorist benefits pursuant to section 1791 of the statute. It also could not show that the insured had elected to reject mandatory coverage with full knowledge of its availability. Without a written request for the lower coverage or an admission by the insured that he had had actual knowledge of the coverage mandated by statute when he applied for lesser coverage and paid premiums therefor, the insurer could not alter the coverage mandated by statute. To lower the limits required by statute, the insurer must have required a written authorization signed by the insured. Nationwide Ins. Co. v. Resseguie, supra.

Appellant’s reliance upon the decision in Groff v. Continental Ins. Co., 741 F.Supp. 541 (E.D.Pa.1990), is misplaced. There, the insureds had initially obtained liability coverage in the amount of one million ($1,000,000) dollars, with underinsured motorist coverage in like amount. Later, however, the husband insured made a written request for underinsured motorist coverage in the amount of thirty-five thousand ($35,-000) dollars. Still later, a portion of the original premium was refunded to and accepted by the insureds. The insureds were also notified in writing via endorsement that their underinsured motorist coverage had been limited to thirty-five thousand ($35,000) dollars. There was also testimony that the husband insured did not generally sign documents without knowing what he was signing. Under these circumstances, the trial court found as fact that the insureds had made a knowing and intelligent decision to purchase and pay for smaller coverage than that mandated by the statute. These facts serve to distinguish Groff from the instant case.

The facts also distinguish the decision in Shipe v. Allstate Ins. Co., supra. There, the factual scenario was described by the trial court as follows:

At his deposition, [the insured] testified that he was “knowledgeable of what insurance [he] was purchasing”. He specifically chose to purchase the coverage requested on the application and was fully aware of the extent of the coverage. He understood that the underinsured motorist coverage was intended to protect him in the event of an accident or claim involving an underinsured motorist. In addition, while he believed that the underinsurance coverage he received was the common coverage that went with his application, he was sure that the agent told him that he was entitled to purchase more underinsurance coverage. Finally, he specifically stated that he applied for insurance “to provide the coverages that [he] wanted that [he] had experienced on the previous insurance policies at a lower premium”.
[The insured] signed the application and reviewed the policy when he received it in the mail. It was also his common practice to review the Declaration sheets renewing his policy to confirm that the coverage was that which he had requested and to determine that the premium was correct.

Id., 791 F.Supp. at 110.

Here, it is clear that the insured was not given the written notice required by 75 Pa.C.S. § 1791. It is equally clear that he did not waive, in writing, the underinsured motorist coverage which the insurer was required to provide by statute. The insured’s depositions are that he was unaware that increased coverage was available and that his application was based on the policy which had been issued to his father, a copy of which had been given to him to examine. The broker’s testimony was that he could not recall that the insured had ever been notified that underinsured coverage was available in the same amount as the liability coverage provided by the policy. Under these circumstances the trial court could conclude that, as a matter of law, the right to coverage as mandated by statute had not been waived. A party’s “lack of memory or knowledge alone is insufficient to create a genuine issue of material fact as to whether [an insured] made a knowing and intelligent election for lower uninsured motorist coverage ... [and therefore the evidence presented by [the insurer] on this issue remains uncontradicted”. Groff v. Continental Ins. Co., supra at 548.

To summarize, Donegal failed to give the notice required by statute regarding the amount of underinsurance available for purchase by the insured. Moreover, the amount of coverage to be provided by the insurer had not been waived in writing by the insured. Finally, the evidence disclosed no basis for a factual finding of waiver under the Supreme Court decision in Johnson v. Concord Mutual Ins. Co., supra. Under these circumstances, the trial court did not err when it entered summary judgment in favor of the named insured for the coverage mandated by statute.

Judgment affirmed.