author: HOFFMAN, Judge: CIRILLO, Judge, dissenting:

text:
      656 A.2d 491
    Anita L. CAMPANARO, Lois Diggins, Janice M. Durry, Nancy A. Foster, Melissa K. Fultz, Patricia Kay Germann, Mary Ann Grove, Karen A. Hallman, Theresa M. Heane, Kimberlee A. Johnnie, Michelle R. Jones, Rhonda E. Miller, Gloria J. Morgan, Cathy D. Reifsteck, Beverly J. Rosenberry, Kimberly A. Sager, Paula J. Schunk, Robin M. Washington, Patricia A. Wertz, Beverly M. Wilson, Leann B. Wray, Appellants v. PENNSYLVANIA ELECTRIC COMPANY.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Feb. 10, 1995.
    Reargument Denied April 21, 1995.

      Stephen D. Wicks, Altoona, for appellants.
    William J. Payne, Wayne, for appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the March 8, 1994 order granting appellee’s, Pennsylvania Electric Company [“Penelec”], preliminary objections and thereby dismissing appellants’ complaint. Appellants, twenty-one female employees, present the following issue for our review:

I. Whether the lower court erred by concluding that a union is an indispensable party to a claim for sexual discrimination by union members against their employer where the only relief sought is an equalization of pay increases from the employer?

Appellants Brief at 4. For the following reasons, we reverse and remand.

Appellants filed a class action lawsuit against Penelec August 26, 1993, alleging that wage rates negotiated between Penelec and appellants’ union, Utility Workers Union of America, Local Union No. 180, AFL-CIO [“Local 180”], discriminated against appellants because of their sex in violation of the Pennsylvania Human Relations Act [“PHRA”]. 43 P.S. § 955, et seq. Appellants seek: (1) to void the wage rates in question; (2) an award of back pay and benefits; (3) along with damages for mental anguish, emotional distress, and loss of self-esteem caused by the alleged discrimination; (4) costs; (5) expert witness fees; and (6) attorney’s fees.

Penelec filed preliminary objections on October 27, 1993 seeking to dismiss appellants’ complaint because Local 180, an indispensable party, was not joined. The trial court, by its March 8, 1994 order, granted Penelec’s preliminary objections and dismissed the complaint for lack of jurisdiction for failure to join an indispensable party. This timely appeal followed.

Appellants contend that the trial court erred in dismissing their complaint for failure to join an indispensable party. We agree.

The general law regarding joinder of indispensable parties is well established in Pennsylvania. Our Supreme Court explained:

It is true, of course, that unless all indispensable parties are made parties to an action, a court is powerless to grant relief. Thus, the absence of such a party goes absolutely to the court’s jurisdiction. A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.

Sprague v. Casey, 520 Pa. 38, 48, 550 A.2d 184, 189 (1988) (citations omitted). To determine whether a party is indispensable, a court must consider:

1. Do absent parties have a right or interest related to the claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights of absent parties?

Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981).

Here, although Local 180 has an interest in the contract it negotiated with Penelec, Local 180 is not an indispensable party because appellants seek no relief from Local 180. Sprague, 520 Pa. at 49, 550 A.2d at 189 (party against whom no redress is sought need not be joined); Kern v. Duquesne Brewing Co., 17 D. & C.2d 299, 307-308 (1958), affirmed, 396 Pa. 279, 152 A.2d 682 (1959) (union is not an indispensable party where employees, seeking an injunction and damages against employer, failed to join union in suit). We note that the trial court found Local 180 to be indispensable because as a party to the collective bargaining agreement, “it is clear that the Court may be unable to fashion complete relief between the' present parties.” Trial Court Opinion, 3/8/94 at 5-6. However, the applicable standard is “a party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.” Sprague, 520 Pa. at 48, 550 A.2d at 189 (citations omitted) (emphasis added). Here, there is no indication appropriate relief could not be fashioned, if necessary.

In addition, as this issue has not been litigated extensively in our courts, we turn to Title VII cases for guidance. These cases have held that an employee’s discrimination claim against an employer should not be dismissed based upon the employee’s failure to name the union in the administrative proceeding.

In Evans v. Sheraton Park Hotel, 503 F.2d 177 (D.C.Cir. 1974), the court refused to dismiss plaintiffs case even though it found two unions, who had not been named by plaintiff in the administrative action before the EEOC, were indispensable parties. The Court of Appeals for the District of Columbia explained:

We do not believe that the procedures of Title VII [requiring a plaintiff to exhaust administrative remedies] were intended to serve as a stumbling block to the accomplishment of the statutory objective. To expect a complainant at the administrative stage, usually without aid of counsel, to foresee and handle intricate procedural problems which could arise in subsequent litigation, all at the risk of being cast out of court for procedural error, would place a burden on the complainant which Congress neither anticipated nor intended.

Evans, 503 F.2d at 183. See also EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086 (6th Cir.1974) (where union is not alleged to have violated Title VII, “requiring a discriminatee to name a nonviolating union in a charge would serve no purpose”). Similarly here, it would be unfair to dismiss appellants' entire case based upon their failure to join the union at the administrative level. Accordingly, we reverse and remand so that the case may be tried, between the appellants and appellee, on its merits.

Reversed and remanded.

CIRILLO, J., files a dissenting statement.

CIRILLO, Judge, dissenting:

In my view, Local 180 is an indispensable party to the instant action because: (1) Local 180 is a party to the collective bargaining agreement (“CBA”) with Penelec; and (2) the appellants’ PHRA claims against Penelec go to the validity of the CBA itself, the terms and conditions of which were bargained for by Local 180, as the appellants’ exclusive representative.

In light of the above, I find that the trial court correctly considered all of the relevant factors outlined by the Pennsylvania Supreme Court in Mechanicsburg Area Sch. Dist. v. Kline, 494 Pa. 476, 431 A.2d 953 (1981). See also Sprague v. Casey, 520 Pa. 38, 550 A.2d 184 (1988). Local 180’s rights and interests under the CBA are inextricably linked to the appellants’ claims in the underlying lawsuit. Particularly, the challenged wage rates were a product of the collective bargaining process between Local 180 and Penelec. As such, a decision on the PHRA claim in favor of the appellants would have the effect of setting aside and/or modifying the wage provisions of the CBA, without first affording Local 180 an opportunity to exercise its due process rights. I cannot countenance such a result.

It is well settled in this Commonwealth that due to the Pennsylvania Human Relations Commission’s (“PHRC”) particular expertise in handling discrimination cases, a complainant must exhaust all remedies before the PHRC before he or she may turn to the courts. Clay v. Advanced Computer Applications, 522 Pa. 86, 90-91, 559 A.2d 917, 919 (1989); Snyder v. Pennsylvania Ass’n of Sch. Retirees, 389 Pa.Super. 261, 269-270, 566 A.2d 1235, 1239 (1989). It is not disputed that while appellants filed timely administrative claims with the PHRC against Penelec, they failed to do so with respect to

Local 180. As such, appellants are now barred from joining Local 180 as a defendant to this lawsuit.

Because I find that Local 180 is an indispensable party to this action, but one which cannot now be joined as a party defendant, I conclude that the trial court properly dismissed the appellants’ complaint. For these reasons, I respectfully dissent.

      . Although appellants filed timely administrative claims against Penelec, appellants never brought an administrative claim against Local 180. As appellants failed to timely file a discrimination action against Local 180 with the Pennsylvania Human Relations Commission, they are now precluded from asserting a claim against Local 180. Snyder v. Pa. Assoc, of School Retirees, 389 Pa.Super. 261, 566 A.2d 1235 (1989) (failure to present particular claim at administrative stage bars plaintiif from later asserting that claim in lawsuit).

      . Pennsylvania courts may look to Title VII precedents when interpreting the PHRA. Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 111, 626 A.2d 595, 598 (1993), appeal denied, 536 Pa. 643, 639 A.2d 29 (1994).

      . Although Pennsylvania’s joinder rule, Pa.R.Civ.P. 2227 is not a replica of Rule 19(a) of the Federal Rules of Civil Procedure, the case law interpreting both joinder rules address whether complete relief can be afforded and whether the absent party would be prejudiced. Compare Standards Pennsylvania 2d §§ 14:177-179 with Enza Inc. v. We The People, Inc., 838 F.Supp. 975, 978 (E.D.Pa.1993).


source: Caselaw Access Project

author: SAYLOR, Judge: WIEAND, Judge, dissenting:

license: Public Domain

text:
    656 A.2d 494
    Tandra SMITH, Appellee, v. Michael PULCINELLA, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed March 13, 1995.

      Marc F. Ullom, Warrington, for appellant.
    Daniel J. Siegel, Philadelphia, for appellee.
    Before WIEAND, McEWEN and SAYLOR, JJ.
   SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia County entering judgment against Appellant, Michael Pulcinella (Pulcinella), on a jury verdict in favor of Appellee, Tandra Smith (Smith).

The trial judge, the Honorable Abraham J. Gafni, in a thoughtful and reasoned opinion, set forth the factual and procedural history of this case:

On November 10, 1987, Smith’s car was struck from the rear by a car driven by Pulcinella. After the accident, a police officer drove Smith’s car to the side of the road onto the left shoulder and placed Pulcinella’s car behind it. After the parties exchanged information, they reentered their respective cars about fifteen minutes later. As they sat in their cars, a third car struck Pulcinella’s car in the rear, forcing it into Smith’s car for the second time. The main injury allegedly sustained by Smith was a herniated disc in her lower back.
Smith attempted to sue Pulcinella in the same action as the driver and owner of the third car. However, the defendants named as responsible for the second collision were released from this suit when Smith’s attorney became aware that they were not the drivers of the second striking vehicle. Thus, Pulcinella is the only remaining defendant in this action.
Smith’s treating physician, Dr. Dennis Zaslow, was the only medical expert to testify at trial. He testified that Smith suffered significant injuries to her back. He also testified that he believed, to a reasonable degree of medical certainty, that Smith’s injuries were caused by the November 10, 1987, accidents. However, Dr. Zaslow acknowledged that he could not differentiate between injuries suffered in the first impact, which involved only Smith and Pulcinella, as opposed to those caused by the second impact.
Pulcinella moved for a non-suit at the conclusion of plaintiffs case, and for a directed verdict at the conclusion of the case. Pulcinella argued that as Smith had never asserted that Pulcinella was negligent in the second accident, he was not liable for any resultant injuries. Pulcinella concluded that since there was no evidence from which the jury could conclude that Smith’s injuries were caused by the first impact rather than the second, he could not be liable for any of Smith’s injuries.
This court denied Pulcinella’s motions for nonsuit and his motion for a directed verdict at the close of the evidence.
At trial, the Court determined, as a matter of law that the two impacts could be considered by the jury as a single accident (N.T. p. 317-8, 340), and asked the panel to consider Pulcinella’s liability without apportioning the damages between the two strikings by the automobile. The jury was advised that it could award damages to plaintiff only if it determined that defendant was negligent and that his negligence was a substantial factor contributing to plaintiffs injuries (N.T. p. 312). As a result, Pulcinella was held jointly and severally liable for Smith’s injuries.

Pulcinella filed a motion for a judgment notwithstanding the verdict which was denied by the trial court. This appeal followed.

In reviewing the denial of a judgment notwithstanding the verdict, “[w]e will reverse the lower court when we find an abuse of discretion or an error of law that controlled the outcome of the case.” Jones v. Constantino, 429 Pa.Super. 73, 80-81, 631 A.2d 1289, 1293 (1993), quoting Timbrook v. Foremost Insurance Co., 324 Pa.Super. 384, 471 A.2d 891 (1984). Judgment notwithstanding the verdict is appropriate only

in a clear case where no two reasonable minds could fail to agree that the verdict is improper. “[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.”

Jones, supra, 429 Pa.Super. at 80-81, 631 A.2d at 1293 (citations omitted).

While Pulcinella raises four issues on appeal, in essence Pulcinella contends that the trial court erred by determining as a matter of law that the two impacts could be considered as a single accident and that Pulcinella could be held liable for the entire amount of damages suffered by Smith without apportioning the damages as between the two impacts.

“[W]hether liability for harm to a plaintiff is capable of apportionment is a question of law for the court, not a question of fact for the jury.” Harka v. Nabati, 337 Pa.Super. 617, 622, 487 A.2d 432, 434 (1985) quoting Voyles v. Corwin, 295 Pa.Super. 126, 441 A.2d 381 (1982). In determining whether the harm to a plaintiff is capable of apportionment, that is, whether the defendants are separate or joint tortfeasors, courts consider several factors:

the identity of a cause of action against each of two or more defendants; the existence of a common, or like duty; whether the same evidence will support an action against each; the single, indivisible nature of the injury to the plaintiffs; identity of the facts as to time, place or result; whether the injury is direct and immediate, rather than consequential; responsibility of the defendants for the same injuria as distinguished from the same damnum.

Voyles v. Corwin, 295 Pa.Super. at 130-131, 441 A.2d at 383 (1982) and Harka v. Nabati, 337 Pa.Super. at 622, 487 A.2d at 434 (1985), both citing Prosser, Law of Torts, § 46 n. 2 (4th Ed.1971).

“If two or more causes combine to produce a single harm which is incapable of being divided on any logical, reasonable, or practical basis, and each cause is a substantial factor in bringing about the harm, an arbitrary apportionment should not be made.” Capone v. Donovan, 332 Pa.Super. 185, 189, 480 A.2d 1249, 1251 (1984), citing Restatement (Second) of Torts § 433A Comment i (1977) and Prosser, Law of Torts § 47 (1941). “Most personal injuries are by their very nature incapable of division.” Id.

“If the tortious conduct of two or more persons causes a single harm which cannot be apportioned, the actors are joint tortfeasors even though they may have acted independently.” Capone v. Donovan, 332 Pa.Super. at 189, 480 A.2d at 1251 (1984), citing Restatement (Second) of Torts § 879 (1977). Joint tortfeasors are:

“... two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them.” 12 P.S. § 2082. In Black’s Law Dictionary, to be a joint tortfeasor, “the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.” 4th Ed. (1968) page 1661. A joint tort is defined as “where two or more persons owe to another the same duty and by their common neglect such other is injured ...” Id. at 973.

Lasprogata v. Qualls, 263 Pa.Super. 174, 179 n. 4, 397 A.2d 803, 805 n. 4 (1979).

Lasprogata v. Qualls, Voyles v. Corwin and Harka v. Nabati all involved the relationship between a tortfeasor originally causing an injury and a physician who subsequently aggravated or caused a new injury. In each instance the Superior Court held that the original tortfeasor and the physician were not joint tortfeasors, reasoning that “[t]he acts of the original wrongdoer and the negligent physician are severable as to time, neither having the opportunity to guard against the other’s acts, and each breaching a different duty owed to the injured plaintiff.” ' Lasprogata v. Qualls, 263 Pa.Super. at 179, 397 A.2d at 805. Thus, in each instance, it was also held that to the extent the acts of the original tortfeasor and those of the physician were capable of separation, the damages should be apportioned accordingly.

In a footnote in Lasprogata, the Superior Court cited the case of Shamey v. State Farm Mutual Insurance Company, 229 Pa.Super. 215, 331 A.2d 498 (1974). Shamey was an action for uninsured motorist coverage brought by the insureds, the Shameys, against the insurer, State Farm. The Shamey’s vehicle was stopped near the top of a snowy hill when a car driven by defendant McFarland skidded and struck the Shamey vehicle. Just as the Shamey vehicle came to a stop, it was struck by a third vehicle operated by an uninsured motorist, Osborn. Although Shamey involved the interpretation of a provision in a release signed by the insured following settlement of the uninsured motorist claim with State Farm, State Farm argued in passing that the fact situation indicated that there was only one accident. The Superior Court disagreed and observed that the facts indicated that there were two separate collisions by two allegedly negligent drivers, each of whom would be responsible only for the injuries caused by his negligence, notwithstanding that the apportionment of damages was difficult. The court, however, acknowledged that “the evidence produced at trial may indicate that McFarland’s negligence put the Shameys in a position of peril, whereupon Osborn, foreseeably, collided with them ...” citing Restatement (Second) of Torts § 433A, Comment c & Illustration 2, although it stated that such a determination could not properly be made in the context of a motion for summary judgment.

Instantly, at the close of the evidence the trial court, relying on the principles set forth above, concluded that Pulcinella and the driver of the second vehicle were joint tortfeasors whose actions united in causing a single injury to Smith and that, as a consequence, Pulcinella could be held liable for all of the injuries suffered by Smith without apportioning such injuries between the two impacts. The court reasoned that the drivers of both vehicles owed a common duty to Smith, that they acted negligently in a similar manner at virtually the same time and place, that it was Pulcinella’s vehicle that actually struck Smith’s vehicle twice, and that but for Pulcinella’s negligence, Smith’s vehicle would not have been off the road and in a position of peril.

Viewing the evidence as we must, in the light most favorable to Smith as the verdict winner, we find that the facts support the trial court’s determination that Smith’s injuries were not capable of apportionment as between Pulcinella and the driver of the second vehicle. Here, the duty of care owed by Pulcinella and the second driver to the other motorist, Smith, was identical and both were negligent in an identical fashion and at almost the same time and place in failing to control their cars in the rainy weather conditions. Additionally, the harm caused to Smith as a result of the drivers’ combined negligence was single and indivisible, the plaintiffs medical expert having testified that he was unable to differentiate between the injuries Smith sustained in the first impact and those caused by the second impact. Finally, but for Pulcinella’s negligence, Smith would not have been along the shoulder of the road in a location where she was susceptible to being struck a second time.

Based upon the similarity of duty and negligence of the two drivers, the proximity of time and location, and the indivisibility of the injury, we hold that the trial court did not err by concluding that the two incidents could be considered as one accident and that Pulcinella’s liability should be considered without apportioning damages.

Order affirmed.

WIEAND, J., files a dissenting opinion.

WIEAND, Judge, dissenting:

I respectfully dissent. Because there was no evidence that any of the injuries complained of by the plaintiff-appellee were caused by conduct of the defendant-appellant, I would reverse the judgment entered on the jury’s verdict in favor of the plaintiff-appellee.

On November 10, 1987, a vehicle being operated by the appellee, Tandra Smith, was struck from behind by another vehicle being operated by the appellant, Michael Pulcinella. A police officer who arrived at the scene of the accident removed the Smith car from the roadway and placed it on the shoulder. The officer then directed Pulcinella to park his vehicle behind Smith’s. After approximately fifteen (15) minutes, during which the drivers exchanged insurance information, they returned to their respective automobiles. While they 'were seated in their vehicles, a third vehicle struck the Pulcinella car in the rear and pushed it into Smith’s vehicle, causing injury to Smith.

Smith filed a civil action in which she named as defendants Pulcinella and another person whom she believed to be the operator of the third vehicle. It was later discovered, however, that the individual named as the driver of the third vehicle was incorrect; and, therefore, this person was dismissed from the action. The action continued solely against Pulcinella. At trial, Smith conceded that after the first impact she had told the investigating officer that she was not hurt. Her medical expert testified that Smith had sustained back injuries on November 10, 1987, but he said that he was unable to determine with any degree of medical certainty whether they had been caused by the first impact, the second impact or a combination of both accidents. The trial court treated both incidents as a single event and allowed the jury to award damages for all of Smith’s injuries against Pulcinella.

In my best judgment, this was error. The two accidents were separate incidents. Moreover, the first accident did not create a continuing circumstance upon which the third driver acted. The first accident had come to an end, and the vehicles had been moved, by the intervention and direction of an investigating police officer. He had removed Smith’s vehicle from the travelled portion of the roadway to a place of relative safety on the shoulder and had instructed Pulcinella to do the same. It seems clear, therefore, that Pulcinella’s negligence in causing the initial accident had come to an end before a third person’s negligence caused a second accident. As such, appellant and the third driver cannot be deemed joint tortfeasors.

In Shamey v. State Farm Mutual Automobile Ins. Co., 229 Pa.Super. 215, 331 A.2d 498 (1974), the plaintiffs had been ascending a grade when their vehicle became stuck in snow and ice. A second vehicle, driven by McFarland, descended the hill and struck the plaintiffs’ car, causing it to spin 180 degrees so that it was now facing downhill. Shortly thereafter, a third vehicle, driven by Osborn, descended the hill and also struck the plaintiffs’ car. Because Osborn had no liability insurance, the plaintiffs sued McFarland. As to the potential liability of McFarland, the Court indicated that it would be inappropriate to hold him liable for damages which were not the result of his negligence. The Court said:

There were two separate collisions by two allegedly negligent drivers, and each will only be responsible for the injuries caused by his negligence: McAllister v. Pennsylvania R.R. Co., 324 Pa. 65, 187 A. 415 (1936); Restatement of Torts, Second § 433A and § 433B; Prosser, Law of Torts, § 52 (4th ed. 1971). The mere fact that the two collisions occurred within a brief period of time, and therefore make the apportionment of damages difficult, does not render McFarland liable for the damage caused by Osborn’s negligence. As Professor Prosser has stated: “Mere coincidence in time does not make the two one tort, nor does similarity of design or conduct, without concert. Evidence may be entirely lacking upon which to apportion some elements of the damages, such as medical expenses, or permanent disability, or the plaintiffs pain and suffering; but this never has been regarded as sufficient reason to hold one defendant liable for the damage inflicted by the other.” Prosser, supra at p. 317.

Id. at 223-224, 331 A.2d at 502. See also: Lasprogata v. Qualls, 263 Pa.Super. 174, 179-180, 397 A.2d 803, 805-806 (1979) (where two tortfeasors breach separate duties to plaintiff, damages must be apportioned); Wade v. S.J. Groves & Sons Co., 283 Pa.Super. 464, 475, 424 A.2d 902, 907 (1981) (where tortfeasors are not acting jointly so that the results of conduct of each is separate, damages must be apportioned).

In the case sub judice, the record discloses no evidence that the plaintiff-appellee sustained any injury as a result of the original impact between her vehicle and the vehicle driven by the defendant-appellant. Thus, the plaintiff failed to meet her burden of proving that the original impact had been a substantial factor in causing the injuries of which she complained. Under such circumstances, Section 433A of the Restatement (Second) of Torts can have no application. It has application only where two causes have combined to bring about harm to the plaintiff and each has been a substantial factor in producing the harm. Id. at Comment (a). See also: Restatement (Second) of Torts, § 430 (“In order that a negligent actor shall be liable for another’s harm, it is necessary not only that the actor’s conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other’s harm”). Here, there is no evidence that the defendant’s conduct was a legal cause, i.e., a substantial factor, in causing the plaintiffs injuries. The burden of proving causation was on the plaintiff-appellee. To impose liability on the defendant-appellant without proof that his conduct caused injury is to hold him responsible for damages caused by the negligence of another.

I would reverse the judgment entered on the verdict and cause a judgment n.o.v. to be entered in favor of the appellant.

      . A fourth individual was named in the complaint as having caused the accident which injured Smith. However, when it was discovered that this individual had also been misidentified, he similarly was dismissed as a party.


author: HOFFMAN, Judge: CIRILLO, Judge, dissenting.

text:
    656 A.2d 499
    COMMONWEALTH of Pennsylvania v. Fred W. PATOSKY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed March 16, 1995.

      H. David Rothman, Pittsburgh, for appellant.
    Kemal A. Mericli, Asst. Dist. Atty., Pittsburgh, for Com.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the August 5, 1993 judgment of sentence for indecent assault. Appellant, Fred W. Patosky, presents the following issues for our review:

I. Should the decision of this Honorable Court in Commonwealth v. Kyle be reversed to allow an in camera review of the alleged victim’s psychiatric records?
A. Does the absolute privileged communication between patient and psychiatrist violate appellant’s constitutional rights to effective confrontation, compulsory process, due process and effective assistance of counsel?
B. Did the Court err in denying an evidentiary hearing to determine the necessity of an absolute privilege?
C. Does the absolute privilege violate the doctrine of the separation of powers?
D. Does the absolute privilege constitute an abuse of police power?
II. Did the Court err and deny appellant a fair trial by allowing him to be impeached on a collateral issue?
III. Did the Court err and deny appellant a fair trial because appellant was allowed to be impeached by proof of specific conduct to refute his evidence of good reputation for peacefulness?
IV. Did the Court err and deprive appellant a fair trial because evidence was allowed relative to the alleged victim’s demeanor at the time she registered her complaint almost two months after the alleged offense and because the court failed to instruct on this issue as requested?
V. Did the Court below err in failing to instruct the jury, as requested, to view the testimony of the alleged victim with extreme caution because of her failure to make a prompt complaint of charges of indecent assault?

Appellant’s Brief at 3.

The trial court recited the facts of this case as follows:

Eleanor Paine testified that during the early morning hours of November 19, 1990, she and [appellant] both of whom were employees of United Airlines, were in the break room at the United Airlines air freight dock at Greater Pittsburgh International Airport. Ms. Paine commented that her fingers were stiff and [appellant] started to rub her hand. He then grabbed her hand with both of his hands and began to pull Ms. Paine toward a cot which was in the room. Ms. Paine told the [appellant] to leave her alone. Instead, [appellant] put his arm around her and responded that he was “collecting the pay she owed him.” He then pulled the victim down onto the cot and got on top of her. He put his hands under her knees, pulled her legs up, and pinned her to the cot. [Appellant] then unbuckled her belt and unzipped her pants. Ms. Paine yelled, “Stop it,” several times but [appellant] continued and said repeatedly that he was just trying to make her feel good. When Ms. Paine began to complain that [appellant] was hurting her back, he got off of her and allowed her to stand up, but he then began to rub her breasts and he kissed the crotch area of her pants. Ms. Paine did not report the incident until two months later.

Trial Court Opinion at 3.

On January 17, 1991, a complaint was filed against appellant charging him with indecent assault, simple assault and the summary offense of harassment. Following a jury trial, appellant was convicted of indecent assault and acquitted of simple assault. Post-verdict motions were filed and denied. Appellant was subsequently sentenced to three (3) to six (6) months imprisonment, with a recommendation of alternative housing in a treatment facility. This timely appeal followed.

Appellant first argues that his constitutional rights to effective confrontation, compulsory process, due process and effective assistance of counsel were all violated when the trial court did not allow his attorney to conduct an in camera review of the victim’s psychiatric records. We disagree.

In 1989, the legislature amended 42 Pa.C.S. § 5944 to read as follows:

No psychiatrist or person who has been licensed ... to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S. § 5944. In Commonwealth v. Smith, 414 Pa.Super. 208, 213, 606 A.2d 939, 942 (1992), appeal denied, 533 Pa. 624, 620 A.2d 490 (1993), our Court held that the denial of access to statutorily protected psychiatric records under 42 Pa.C.S. § 5944 did not violate a defendant’s right to confrontation and compulsory process. This case was just one of a long line of recent Pennsylvania decisions which have denied a defendant access to confidential therapeutic records. See also Commonwealth v. Wilson, 529 Pa. 268, 281, 602 A.2d 1290, 1298 (1992) (absolute privilege denying access to victim’s records with her sexual assault counselor did not violate defendant’s constitutional rights to compulsory process and confrontation), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992); Commonwealth v. Kennedy, 413 Pa.Super. 95, 115-16, 604 A.2d 1036, 1047 (1992) (en banc) (defendant’s constitutional rights to compulsory process and confrontation were not violated by denial of access to child victim’s statutorily protected psychotherapeutic records under 42 Pa.C.S. § 5944), alloc. denied, 531 Pa. 688, 611 A.2d 711 (1992); Commonwealth v. Eck, 413 Pa.Super. 538, 544, 605 A.2d 1248, 1251-52 (1992) (“Information which is protected by an absolute statutory privilege is not subject to disclosure and denial of access to a criminal defendant is required”). Therefore, in light of this precedential authority, appellant’s constitutional rights have not been violated by this denial of access. Accordingly, his argument fails.

Appellant also claims that by enacting this statute, the legislature abused its police power. We disagree.

An act of assembly will not be deemed unconstitutional unless it clearly, palpably, and plainly violates the constitution. Hayes v. Erie Insurance Exchange, 493 Pa. 150, 155, 425 A.2d 419, 421 (1981). The burden rests on those alleging the unconstitutionality of the enactment. Commonwealth v. Sutley, 474 Pa. 256, 260-61, 378 A.2d 780, 782 (1977).

The doctrine of police power grants the legislature the power to regulate the public health, safety, welfare and morals. Commonwealth v. Bonadio, 490 Pa. 91, 95, 415 A.2d 47, 49 (1980). The legislature through its police power may legislate except where such legislation has been prohibited. Lloyd v. Fishinger, 380 Pa.Super. 507, 512, 552 A.2d 303, 305 (1989), aff'd, 529 Pa. 513, 605 A.2d 1193 (1992).

The courts of this Commonwealth have already recognized that there have been valid exercises of the police power in protecting the public from inadvertent displays of sexual behavior, in preventing people from being forced against their will to submit to sexual contact, and in protecting minors from being sexually used by adults. Bonadio, 490 Pa. at 95, 415 A.2d at 49. See also Commonwealth v. Shoemaker, 359 Pa.Super. 111, 117, 518 A.2d 591, 594 (1986) (state has compelling interest to protect the fundamental right of all individuals to control the integrity of his or her own bodies). The purpose of 42 Pa.C.S. § 5944 is to protect the general public’s right to private communications with their psychiatrists and psychologists. Moreover, appellant has failed to demonstrate that the legislature was not allowed to enact statutes in this area. Consequently, we find that the enactment of this statute was a logical extension of and clearly fell within the legislature’s police power. See Bonadio, supra, 490 Pa. at 91, 415 A.2d 47.

Appellant further argues that the enactment of this statute violates the doctrine of separation of powers. Again, we disagree.

The doctrine of the separation of powers was not intended to absolutely seal off the three branches of government from one another, as it obviously intended that there would be a degree of interdependence and reciprocity between the various branches. Commonwealth v. Sutley, 474 Pa. 256, 262, 378 A.2d 780, 783 (1977). Moreover, one of the most distinguished jurists, Justice Samuel Roberts, explained the interdependence and independence between the judicial and legislative branches as follows:

Legislative infringement on the province of the judiciary, and the concomitant threat to individual liberties, may take one of two forms. First, the Legislature may take action which impairs the independence of the judiciary, either by requiring the performance of non-judicial functions, or by interfering with the power of the judiciary to perform its essential functions.... Second, the Legislature may usurp the power of the judiciary by taking it upon itself to judge individual cases.... Enactment of ... a rule of general application [which does not take on one of these two forms] is a proper legislative function.

Sutley, 474 Pa. at 278-79, 378 A.2d at 791-92 (ROBERTS, J., dissenting) (citations omitted).

As the enactment of 42 Pa.C.S. § 5944 does not impair the independence of the judiciary or usurp the power of the judiciary by taking over the individual cases, this statute is constitutionally valid. Consequently, this argument is without merit.

Appellant next argues that the trial court erred by allowing appellant to be impeached on a collateral issue. Specifically, he asserts that the trial court erroneously admitted at trial the testimony of two witnesses regarding appellant’s prior “off-color” statements to them.

Preliminarily, we note that questions concerning the admissibility of evidence are within the sound discretion of the trial court, and will not be reversed on appeal absent a clear abuse of discretion. Engle v. West Penn Power Co., 409 Pa.Super. 462, 481, 598 A.2d 290, 299 (1991), appeal denied, 529 Pa. 669, 605 A.2d 334 (1992). If a defendant delves into what would have been objectionable testimony on the Commonwealth’s part, then the Commonwealth can probe into this objectionable area. Commonwealth v. Stakley, 243 Pa.Super. 426, 430, 365 A.2d 1298, 1300 (1976). Cf. Commonwealth v. Johnson, 419 Pa.Super. 625, 644, 615 A.2d 1322, 1331 (1992) (although evidence of defendant’s reputation is not admissible in Commonwealth’s case-in-chief, it can be introduced in rebuttal once defendant places reputation at issue and “opens door” to rebuttal), appeal denied, 533 Pa. 657, 625 A.2d 1191 (1993). Moreover, we have stated that:

The common law has long recognized the right of a party to impeach the credibility of an adverse witness by introducing evidence that the witness has made one or more statements inconsistent with his testimony at trial, so long as the inconsistency is not collateral to the issues in the case It is the substance of the statement, i.e., that it conflicts with the testimony of the witness at trial, that determines its admissibility ... [where] the witness does not admit making the inconsistent statement, it may be proved by extrinsic evidence, such as the testimony of the person to whom the statement was made.

Commonwealth v. Brown, 302 Pa.Super. 391, 403, 448 A.2d 1097, 1103 (1982).

In the instant case, appellant testified on direct examination that it was not his practice to tell “off-color” jokes in the presence of the victim. N.T. 2/19/93 at 337. When the prosecutor asked him on cross-examination what he had meant by this statement, appellant stated “I do not, never had, never have or rarely ever have spoke anything like that to women.” N.T. 2/19/93 at 382. These comments “opened the door” to the Commonwealth’s introduction of the testimony of the two women, who contradicted appellant’s statement by testifying that appellant had previously made inappropriate “off-color” statements to them. As appellant was charged with “harassment,” these “off-color” statements were not collateral to the issues in the case, and thus, they were allowed to be proven by extrinsic evidence. Brown, 302 Pa.Super. at 403, 448 A.2d at 1103. Therefore, the trial court did not abuse its discretion in admitting this testimony.

Appellant next contends that he was denied a fair trial because the introduction of his good reputation for peacefulness was erroneously impeached through proof of specific conduct. We disagree.

Commentators of Pennsylvania law have stated that:

It is a well-settled rule that evidence of the accused’s bad character is not admissible in a criminal case unless one of three exceptions applies. First, the accused may elect to introduce evidence of his or her good character.... [One of the consequences] of introducing evidence of good character is that the prosecution may call rebuttal witnesses to testify that the accused’s character is poor. Like the accused’s evidence of good character, the prosecution’s rebuttal testimony is subject to restrictions. The witness may testify only to the accused’s reputation in the community, ... the rebuttal evidence must be restricted to the character traits raised by the accused....

Packel & Poulin, Pennsylvania Evidence (1987), § 404.2 Character Evidence at 141, 149-50.

In the instant case, appellant called several witnesses who testified to his reputation for a peaceful character in the community. Subsequently, the Commonwealth asked their rebuttal witness, Cathy Cavallo, about appellant’s reputation for peacefulness. The following conversation transpired:

Q: Are you familiar with [appellant’s] reputation among the work place as far as peacefulness goes?
A: Yes.
Q: And what, what would that reputation be?
A: Very negative, very poor.

N.T. 2/19/93 at 407. Subsequently, when appellant’s trial counsel attempted to impeach Cavallo’s credibility, Cavallo testified that this reputation testimony evolved from conversations with other individuals at United Airlines. See N.T. 2/19/93 at 409, 415. These individuals discussed several “off-color” remarks appellant had made to other people. See N.T. 2/19/93 at 409, 415. Cavallo’s discussion of these specific conversations was admissible because the purpose of defense counsel’s examination was to test the credibility of the witness in reaching her opinion about appellant’s reputation for peacefulness, not to. prove that appellant was guilty of the instant case. See Commonwealth v. Adams, 426 Pa.Super. 332, 336, 626 A.2d 1231, 1233 (1993) (cross-examination of character witness is allowed where actual purpose of examination is to test whether witness is familiar with reputation concerning which he has testified), appeal denied, 535 Pa. 672, 636 A.2d 631 (1993). Accordingly, the trial court did not abuse its discretion in admitting this testimony. Engle, 409 Pa.Super. at 481, 598 A.2d at 299.

Appellant next contends that testimony regarding the victim’s demeanor when she registered her late complaint should not have been admitted into evidence. Specifically, he claims that such testimony was irrelevant. We disagree.

We have stated that all relevant evidence should be admitted unless a specific rule bars its admission. Id. at 481, 598 A.2d at 299. Evidence is relevant if it tends to establish facts at issue, making the fact at issue more or less probable or intelligible. Id. at 481, 598 A.2d at 300.

In the instant case, a major portion of appellant’s defense strategy was to attack the victim’s credibility based on her failure to file a prompt complaint against appellant. To rebut this argument, the Commonwealth called her supervisor Helen Smalich, who testified that when the victim reported the incident to her, she was “extremely distraught and [s]he appeared to be extremely nervous.” N.T. 2/19/93 at 228. The victim worked with appellant, and saw him daily. See N.T. 2/18/93 at 57. Furthermore, appellant continued to make “off-color” statements to her even after the incident. N.T. 2/18/93 at 74-75. In addition, the victim was the only female working in the air freight division with appellant and was fearful of causing trouble by reporting this incident. See N.T. 2/19/93 at 229. Consequently, as the testimony of the victim’s demeanor merely offers an explanation for the victim’s failure to file a prompt complaint, the trial court did not abuse its discretion in admitting this testimony. Engle, 409 Pa.Super. at 481, 598 A.2d at 299.

Appellant finally contends that the trial court made two errors when charging the jury.

A trial court’s charge to the jury must contain a correct statement of the law. See Commonwealth v. Copeland, 381 Pa.Super. 382, 391, 554 A.2d 54, 58 (1988) (defendant denied new trial because correct statement of law in jury charge), appeal denied, 523 Pa. 640, 565 A.2d 1165 (1989). A court is free to use its own form of expression in charging the jury as long as it adequately, accurately and clearly explains the principle of law. Commonwealth v. Whitner, 278 Pa.Super. 175,182, 420 A.2d 486, 490 (1980). In order for a party to be entitled to a new trial, the jury instruction must be fundamentally in error, or have misled or confused the jury. Noyes v. Cooper, 396 Pa.Super. 592, 601, 579 A.2d 407, 411 (1990), appeal denied, 527 Pa. 667, 593 A.2d 842 (1991).

Appellant first asserts that the trial court erred in rejecting his point of charge on the issue of a prompt complaint. We disagree.

Our Supreme Court has stated that “where the actual occurrence of [an] assault is at issue in the case, the trial judge is required to charge the jury as to the relevance of a delay in disclosure and the significance of a prompt complaint.” Commonwealth v. Snoke, 525 Pa. 295, 302, 580 A.2d 295, 298 (1990).

In the instant case, the trial court charged the jury on the issue of prompt complaint as follows:

The evidence of Eleanor Paine’s delay in making a complaint does not necessarily make her testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry which the victim of a crime such as this would ordinarily be expected to make.
Therefore, the delay in making a complaint should be considered in evaluating her testimony and in deciding whether the act occurred at all.
You must not consider Eleanor Paine’s delay in making a complaint as conclusive evidence that the act did not occur for the failure to make a complaint properly and the nature of her explanation for failing to complain promptly are factors which simply bear upon her credibility and on the believability of her testimony, and all of the necessary factors must be considered — must be considered together with all of the evidence that you have to consider in this case.

N.T. 2/22/93 at 532. As the jury charge conveyed the correct statement of the law, the trial court satisfied its obligation. Accordingly, appellant’s argument fails.

Appellant also contends that the trial court erred in rejecting his points for charge regarding the victim’s “res gestae” when she reported the incident to Smalich. Specifically, appellant contends that as the victim’s demeanor at that time was irrelevant and did not fall into any hearsay exception, the trial court erred when they rejected his points of charge, instructing the jury to disregard this testimony, or in the alternative, to view it with caution.

Evidence that is relevant is nonetheless inadmissible when it violates the hearsay rule. Commonwealth v. Rush, 529 Pa. 498, 504, 605 A.2d 792, 795 (1992). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Michaux, 360 Pa.Super. 452, 461, 520 A.2d 1177, 1181 (1987), appeal denied, 517 Pa. 605, 536 A.2d 1329 (1987). A statement is satisfied by nonverbal conduct of a person intended as a communication. Packel & Poulin, Pennsylvania Evidence (1987), § 801 Hearsay at 541.

Here, the victim’s nervous demeanor when reporting the incident to Smalich was not a statement as it was not intended as a communication. Hence, it cannot be considered hearsay. Therefore, as this was not hearsay testimony and as stated previously, entirely relevant, the trial court did not err in refusing to charge the jury on the two points of charge submitted by appellant. Consequently, appellant’s argument has no merit, and judgment of sentence is affirmed.

Affirmed.

CIRILLO, J., files a dissenting statement.

CIRILLO, Judge, dissenting.

I respectfully dissent. I believe that the fundamental right to freedom is greater than the right to have the accuser’s background remain inviolate. My position on this issue has been previously expounded upon, as seen in Commonwealth v. Kennedy:

I cannot agree ... that an accused’s state constitutional rights must bow to the state’s interest in the treatment of victims and the safety and well being of those who report abuse. I am cognizant of the delicate and difficult balancing of significant interests — a defendant’s fundamental right to a fair trial on the one hand, and a victim’s right to privacy following a terrible assault on his or her integrity on the other.... The defendant’s constitutional rights, however, must prevail. The state, by way of its legislature or judiciary, cannot deprive a person of his or her right to constitutional due process.... I would find that the state’s compelling interest in the confidentiality of the counseling relationship must yield to the greater interest in promoting and protecting the defendant’s constitutional rights. See Commonwealth v. Carillion, 380 Pa.Super. 458, 474, 552 A.2d 279, 287 (1988) (Cirillo, P.J., concurring).

Commonwealth v. Kennedy, 413 Pa.Super. 95, 117-19, 604 A.2d 1036, 1048 (1992) (en banc), alloc. denied, 531 Pa. 638, 611 A.2d 711 (1992) (Cirillo, J., concurring).

Consequently, I believe that, in the present case, Patosky’s constitutional rights to effective confrontation, compulsory process, and due process were violated when the trial court did not allow his attorney to conduct an in camera review of the alleged victim’s psychiatric records. See Kennedy and Carillion, supra (Cirillo, J., concurring).

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 2709.

      . In addition, the trial court found appellant guilty of the summary offense of harassment.

      . As appellant’s underlying claim has no merit, his ineffective assistance of counsel claim fails as well. See Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) (in order to show ineffectiveness, defendant must demonstrate underlying claim was of arguable merit, that counsel’s performance was unreasonable and that counsel’s ineffectiveness prejudiced defendant).

      . Consequently, we need not address appellant’s second argument, that the trial court erred in denying an evidentiary hearing to determine the necessity of an absolute privilege.

      . When discussing the passage of this legislation, Representative Weston, the house member who presented the recent amendment to 42 Pa.C.S. § 5944, stated that the amendment was necessary for individuals to feel comfortable discussing the often embarrassing details of sexual assault cases with their psychiatrists. See 1989 Legislative Journal-House at p. 2087.

      . These statements refer to sexually suggestive comments.

      . Harassment is defined in 18 Pa.C.S. § 2709(a)(3) as follows:
      § 2709 Harassment
      A person commits a summary offense when, with intent to harass, annoy or alarm another person:
      (3) he engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

      . The victim reported the incident almost two months after it occurred. See N.T. 2/19/93 at 179.


author: OLSZEWSKI, Judge.

text:
    656 A.2d 507
    Mary T. CERNY, Appellee, v. Frederick F. CERNY, Appellant. Mary T. CERNY, Appellee, v. Frederick F. CERNY, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 1, 1994.
    Filed March 28, 1995.

      William F. Coyle, Philadelphia, for appellant.
    Joseph S. Britton, Langhorne, for appellee.
    Before OLSZEWSKI, DEL SOLE and BECK, JJ.
   OLSZEWSKI, Judge.

After thirty years of marriage, appellant Frederick Cerny (husband) and appellee Mary Cerny (wife) were divorced by order of June 1, 1992. The litigation attending that divorce has already given rise to one opinion in this Court and four in the court below. Husband brings the matter before us once again, advancing four allegations of error in the orders subsequent to our remand.

Husband’s first claim relates to further developments in the matter addressed previously on appeal. On December 3, 1990, husband received a check from his employer for $105,-360.42. This check represented a lump-sum payment of $140,-000.00 less income taxes withheld, and was paid in connection with husband’s termination some months before. The trial court attributed the $105,000.00 payment to husband as income available for support when it calculated husband’s support obligation. The court went on, however, to characterize the same payment as a marital asset subject to equitable distribution. Husband appealed, and we instructed the court on remand to remove the payment from the marital property if it had been credited to husband as income in calculating his support obligation. The trial court determined that the payment had been so credited, and accordingly judged the $105,-000.00 payment to be husband’s separate property and not a marital asset.

Husband and wife had filed a joint tax return for 1990, declaring the lump-sum payment as income for that year. Following a logic- different from that of the court below, the Internal Revenue Service decided that the lump-sum payment did not constitute income and refunded the taxes that had been withheld from it. By order of April 26, 1994, the trial court found the $83,477.96 refund to be a marital asset, and husband appeals.

We find that the refund retains the character of the payment from which it was withheld. The trial court suggests that filing a joint tax return is like depositing money into a joint bank account, and that separate property is thereby transformed into a marital asset. In ruling to the contrary, we note that the act of filing a return is not a financial activity, but merely a reporting of such activity. One does not create or alter property by filing a tax return, as one does in opening or contributing to a bank account or other investment instrument. A tax return is merely a business record, and has no independent capacity to create or preserve wealth. Accord Rev.Rul. 74-611, 1974-2 C.B. 399 (“[A] joint income tax return does not create new property interests for the husband or the wife in each other’s income tax overpayment.”). The original payment has been judged to be husband’s separate property; the refund is therefore his separate property as well.

In support of the decision below, wife argues that husband has waived this issue by failing to appeal an earlier order. Originally, the parties expected to incur a liability for underpayment of taxes on the lump-sum payment; and on June 1,1992, the trial court issued an order which apportioned this debt prospectively, 55% against wife and 45% against husband. Trial court decree and order (June 1, 1992) at 2; see also trial court opinion (Nov. 1, 1993) at 3; trial court decree and order (July 8, 1992) at 2. Wife argues that because husband did not appeal that order, he may not be heard to object now that a refund has been granted instead.

We note that the June 1, 1992, order mentioned only an expected tax liability, and did not purport to address a possible refund. Wife does not argue that the order is defective, and her argument fails to establish a connection between that order and husband’s claim regarding the refund. Waiver therefore does not apply. We find that the refund is the separate property of husband, and reverse that portion of the April 26, 1994, order which deemed it to be a marital asset.

Next, we address husband’s claim that the trial court erred when it changed the scheme of distribution on remand from 50/50 to 55/45 in wife’s favor. Husband argues that the record does not support the court’s finding that husband’s income significantly exceeded wife’s. Our standard of review is limited, and we will not reverse a ruling below absent an error of law, or an abuse of discretion shown by clear and convincing evidence. Naddeo v. Naddeo, 426 Pa.Super. 131, 134, 626 A.2d 608, 610 (1993) (citations omitted).

Although husband was unemployed at the time of the hearing on remand, the record supports the trial court’s finding that his income per month at the time of the equitable distribution hearing was $4,014.00, while wife’s was under $2,000.00. Husband fails to demonstrate any error in this finding, and we affirm the court below.

Husband also claims that the trial court abused its discretion by distributing to wife 59% of the interest on a particular annuity. Husband concedes in his brief, however, that the trial court is under no obligation to distribute each individual asset according to the determined formula, so long as the total scheme of the distribution coincides with the court’s decided-upon assessment. Appellant’s brief at 22. Husband’s one-paragraph argument on this issue therefore fails to present any claim of merit.

Lastly, husband contests the portion of the order which charges him with responsibility for part of the costs of maintenance to the marital home. We note that husband’s responsibility is clear, as the duty to maintain the marital premises is a joint obligation, and “equity places a presumption upon the dispossessed spouse of responsibility for expenses to the extent of her/his ownership interest.” Schmidt v. Krug, 425 Pa.Super. 136, 140, 624 A.2d 183, 186 (1993); Trembach v. Trembach, 419 Pa.Super. 80, 87, 615 A.2d 33, 37 (1992). Husband argues that the burden is inequitable in his case, because he has not been credited with any portion of the rental value of the marital home during the time that wife has been in exclusive possession.

While the dispossessed party is generally entitled to a credit for the fair rental value of jointly held marital property, such a credit is not mandatory, being within the sound discretion of the trial court. Trembach, 419 Pa.Super. at 87, 615 A.2d at 37; Butler v. Butler, 423 Pa.Super. 530,. 545, 621 A.2d 659, 668, alloc.granted, 535 Pa. 629, 631 A.2d 1002 (1993). Husband does not claim that he asked for such a credit below and was unfairly denied. Therefore, we will not hear his claim for it now. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A. (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). We find no error or abuse of discretion in the apportionment of maintenance costs.

In closing, we recognize that our ruling regarding the character of the refund payment may alter the economic picture upon which the trial court based its scheme of equitable distribution. We therefore remand for the trial court to decide whether, and how, its order of equitable distribution shall be altered in light of our ruling so as to “effectuate economic justice between the parties” and “insure a fair and just determination and settlement of their property rights.” 23 Pa.C.S.A. § 3102(a)(6).

The order below is reversed in part and affirmed in part. The case is remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . Our review of the record suggests that husband might indeed have agreed, through the actions of his counsel, to share any tax refund equally with wife:
      THE COURT: Is there any dispute that if there’s a liability, they share equally in the liability; if there is money coming back, they share equally in the money coming back?
      [COUNSEL FOR HUSBAND]: Absolutely. No dispute from our side, Your Honor.
      N.T. (Apr. 6, 1992) at 54; cf. Karkaria v. Karkaria, 405 Pa.Super. 176, 188, 592 A.2d 64, 71 (1991) (rejecting husband’s attempt to recover alimony paid, when counsel had signed a consent order on his behalf withdrawing any objections to the award). Wife does not claim that husband agreed to share the refund, however; as noted in the text, she bases her argument instead on the ground of waiver.


author: DEL SOLE, Judge:

text:
    656 A.2d 510
    ROCKWOOD INSURANCE COMPANY, Appellant, v. Raymond E. PIPER, Paul E. Dalton, Robinson Transportation Services, a Division of C.H. Robinson Company, Beverage Transportation, Inc. Margaret Cernik, Rosemary Cernik and Margaret Cernik and Casimar Cernik, Husband and Wife, Butler Color Press, Inc., and Commonwealth of Pennsylvania, Department of Transportation, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1994.
    Filed March 28, 1995.

      Ralph M. Monico, Hollidaysburg, for appellant.
    Robert S. Garrett, Pittsburgh, for Beverage Transp., appellee.
    Before DEL SOLE, FORD ELLIOTT and BROSKY, JJ.
   DEL SOLE, Judge:

This is an appeal from a trial court order refusing a request to strike/open a Judgment of Non Pros. We affirm.

The underlying action was commenced by Rockwood Insurance Company, (Rockwood) seeking a declaratory judgment with respect to its duties with regard to a policy it had issued to its insured, Raymond E. Piper (Piper.) The policy listed as a “covered auto” a tractor which was owned by Piper and leased to Beverage Transportation, (Beverage). Piper and his employee, Paul E. Dalton, (Dalton) had been named as defendants in a previously filed action brought by the Cerniks, who alleged that they had suffered injuries as a result of a collision brought on by the manner in which the tractor was allegedly being driven.

At the time Rockwood brought its declaratory judgment action Piper was in bankruptcy under Chapter 11. Rockwood subsequently filed a Motion For Relief From Stay in federal bankruptcy court. Rockwood’s Motion was granted on March 4, 1991, after which time it was then free to proceed with its declaratory judgment action. Approximately six months later, on August 26, 1991, Rockwood was determined to be insolvent by the Pennsylvania Department of Insurance and an immediate ninety day stay of the proceedings involving Rockwood went into effect. By order of the Commonwealth Court, Rockwood was liquidated. Its liabilities were then assumed by the Pennsylvania Insurance Guaranty Association. (PIGA). Nearly two years later, on August 23, 1993, Beverage filed a Motion for Judgment of Non Pros. In support of its motion Beverage cited to the fact that there had been no docket activity on the declaratory judgment action since February 15, 1991. In considering this motion the court determined that the time'period between February 15, 1991 and March 4, 1991, when the automatic bankruptcy stay against Piper was lifted, as well as the ninety day stay caused by Rockwood’s insolvency, should be excluded from consideration for purposes of determining prejudice. Nevertheless, even after excluding these periods of time, the court found that a delay in excess of two years and two months occurred in this case and that such a delay was to be presumed prejudicial, citing, Penn Piping, Inc. v. Insurance Company of North America, 529 Pa. 350, 603 A.2d 1006 (1992). The court concluded that Rockwood failed to proceed with reasonable promptitude, that there was no compelling reason for the delay and that the length of the delay established a presumption of prejudice. On that basis the court granted a judgment of non pros. Rockwood later filed the Petition at issue and the court ruled that the validity of the judgment and sufficiency of the record were not being challenged therefore it was appropriate to deny a petition to strike. It further held that the three factors necessary to open a judgment were not found in this case and that Rockwood’s petition would be denied. This appeal followed.

The three factors which must be present in order to open a judgment of non pros aré: (1) the petition to open must be promptly filed; (2) the default for delay must be reasonably explained; and (3) facts must be shown to exist which support a cause of action. Narducci v. Manson’s Discount Store, 518 Pa. 94, 541 A.2d 323 (1988). Further, when considering whether to grant either a petition to open a non pros judgment or a request to enter a non pros, a trial court is bound to consider prejudice to the adverse party. Valley Peat & Humus v. Sunnylands, Inc., 398 Pa.Super. 400, 581 A.2d 193 (1990). Prejudice is to be presumed where there is no docket activity for a period of two years or more, and when there is no compelling explanation for this delay. Penn Piping, Inc. v. Insurance Company of North America. An appellate court will reverse an order denying a petition to open a judgment of non pros only where the trial court has committed a manifest abuse of discretion. Walker v. Pugliese, 317 Pa.Super. 595, 464 A.2d 482, 484 (1983).

The trial court in this action found that Rockwood failed to satisfy the three requirements necessary to open the judgment. Rockwood initially argues that there can be no presumed prejudice in this case because there was not a two year delay period for which either Rockwood or PIGA could be held responsible. It reasons that Rockwood could not be held responsible for a period of delay occurring subsequent to its insolvency and liquidation. It further maintains that PIGA could not be responsible for any period of delay because there had been no determination made that the claim was a covered claim and the extent of PIGA’s obligation never determined. Therefore, Rockwood reasons that PIGA could pursue Rock-wood’s action or file it’s own action as long as it did so within statutory limitation period following the expiration of the statutory stay in the proceedings.

When considering these claims in denying Rockwood’s petition to open, the trial court relied on Section 1701.602(a) of the Pennsylvania Insurance Guaranty Association Act. 40 P.S. 1701.101 et seq. That section provides:

All proceedings in which the insolvent insurer is a party or is obligated to defend a party in any court in this Commonwealth shall be stayed for ninety days from the date the insolvency is determined to permit proper defense by the association of all pending causes of action.

The trial court focused on the language which provided that the purpose for the ninety day stay is “to permit proper defense by the association of all pending causes of action.” Id. The court then provided the following sound rationale for its conclusion that this statutory language supported its ruling:

It is obvious from this language that the Legislature did not intend to provide PIGA with a “clean slate.” Rather, the Legislature intended to provide PIGA with valuable time in which to review the insolvent insurer’s pending cases, thereby minimizing the harmful effects of entering during the pendency of the proceedings. This alone indicates that the five and one half (5!£) month period of delay at issue was properly included in the Court’s calculation, however, there is an additional reason for denying Rockwood’s requested relief.
Rockwood’s insolvency did not put PIGA in a “defense” situation. In other words, PIGA was not put to the burden of defending a suit by the mere fact that Rockwood was declared insolvent. Rockwood was the plaintiff in the pending cause of action, therefore, PIGA entered the action as the moving party. Further, PIGA was given the § 1701.602(a) ninety (90) day stay of proceedings to determine the status of the case, and to determine what was needed to move the case to trial. In response, PIGA did absolutely nothing for the next twenty-one and one half (21& ) months. Neither the Act nor this Court provides relief for such behavior.

Because we find the court’s reliance on the provisions of the Act appropriate and because the court’s rationale for its ruling is sound, we perceive no abuse of discretion by the trial court.

We next consider Rockwood’s later arguments which can be readily dismissed. Rockwood notes that it formally declined to provide coverage to Piper premised upon an exclusionary clause contained in the policy and commenced a declaratory judgment action to clarify its obligations to its insured. Because á resolution to the question of coverage was never made due to Rockwood’s insolvency, Rockwood reasons that PIGA can not be made to stand in its stead absent a finding that the Association has an obligation on a covered claim. Rockwood’s argument is clearly circulatory and has no place in this discussion of whether the petition to open a-judgment of non pros was properly denied. The action brought by Rockwood sought a determination of its obligations. Rockwood cannot now argue that because a decision was never reached, PIGA’s obligations were never determined therefore PIGA had no duty to proceed with the action begun by the insolvent insurer to resolve these same precise issues of coverage. Once Rock-wood became insolvent, PIGA could have interceded and pursued Rockwood’s action to have coverage determined under the endorsement. It’s inaction cannot be excused because coverage under the endorsement was never decided.

Roekwood also states that PIGA had no obligation to assume Rockwood’s obligations and duties because the “Cerniks had not exhausted any coverage that may have been available through their own insurer.” While Roekwood makes such a statement in more than one place in its Brief, it does not develop any argument based upon this supposed fact and does not indicate how this fact would impact upon PIGA’s duty to move the insolvent carrier’s case forward.

Finally it is asserted that PIGA could choose to pursue an adjudication regarding its rights or obligations to Rockwood’s insured as long as it acted within the applicable statute of limitations. In response we note that the question of whether PIGA could pursue its own action is no defense to the matter at hand, whether a judgment of non pros should have been opened. The trial court was asked to consider whether a judgment of non pros had been properly entered and whether there was just reason to open that judgment. The trial court found that Roekwood did not satisfy the three criteria necessary to open a judgment. A discussion concerning PIGA’s ability to maintain its own action had no place in the court’s decision. See Gates v. Servicemaster Commercial Service, 428 Pa.Super. 568, 631 A.2d 677 (1993).

Finding no reason to disturb the trial court’s refusal to open the judgment of non pros, we affirm.

Order affirmed.

      . Presented to the court for its consideration was a Petition to Strike. The court ruled that the petition must be denied and then went on to consider it as a “Petition to open arguendo." See Kophazy v. Kophazy, 279 Pa.Super. 373, 421 A.2d 246 (1980). (Different criteria are to be applied when considering a Petition to Strike and a Petition to Open.) In the instant appeal the propriety of the decision to deny the Petition to Strike is not argued. The only questions raised in the instant appeal, and therefore the only matter which we will address, concern the decision to deny a Petition to Open.


author: HUDOCK, Judge:

text:
    656 A.2d 514
    COMMONWEALTH of Pennsylvania, Appellee, v. Quiyama THOMAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 9, 1995.
    Filed March 28, 1995.

      John J. McMahon, Jr., Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

      Before TAMILIA, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence entered after a bench trial wherein Appellant was found guilty of failing to stop and identify, homicide by vehicle, four counts of recklessly endangering another person, three counts of terroristic threats, four counts of aggravated assault, and one count of murder in the third degree. Post-verdict motions were filed and denied by the trial court. Appellant was sentenced to a term of imprisonment of not less than ten years nor more than twenty years for the count of murder in the third degree, to not less than three months nor more than six months for failing to stop and identify, to be served concurrently with the count of murder in the third degree, and to not less than three years nor more than six years for each of the four counts of aggravated assault, each to be served concurrently with the count of murder in the third degree. Ml other counts merged for purposes of sentencing. This direct appeal followed. We affirm.

In his direct appeal, Appellant argues that there was insufficient evidence to support his conviction for murder in the third degree and insufficient evidence to support his four aggravated assault convictions. 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 therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offenses charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984). “Moreover, it 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).

The crucial facts are as follows: On August 3, 1993, five children, ages four to .eight, were playing on a swing set in the back yard of Robert Wright. Wright lived in the end house of a series of row houses in a residential area in the City of Philadelphia, on the corner of Forrest Avenue and Phil-Ellena Street. Wright’s yard was enclosed by a wrought-iron fence. At approximately six o’clock p.m., Appellant, driving in a stolen car, made a left hand turn from Forrest Street onto Phil-Ellena Street. At this point, there is no testimony that indicates that Appellant was speeding. After making the turn, Appellant, in the thirty-six-foot wide street, attempted to make a U-turn. However, Appellant’s car instead jumped the four-inch-high curb, crashed through the wrought-iron fence, ran into the swing set where the children were playing, continued into the neighbor’s yard, and did not come to a stop until Appellant’s car hit another vehicle. As a result, one child, age eight, was killed. The other four children were thrown onto the hood of the automobile and were carried with the car until it stopped. These children were taken to the hospital and released with cuts and bruises. Despite the fact that the windshield had shattered and the small children were on the hood of the automobile, Appellant and the passenger in the car fled from the scene of the accident. They were later caught by neighbors and were returned to the scene of the accident where Appellant was identified as the driver of the car. Officer Peter Stock, an accident reconstructionist, testified that from the markings on the roadway, Appellant accelerated the automobile while making the U-turn and at no time applied his brakes. Only by striking the second automobile was Appellant’s car brought to a stop. Eric Reid and Dominic Stokes testified that they were walking on the sidewalk adjacent to the Wright home at the time of the crash and were only two feet away from the car as it came crashing over the sidewalk. Another witness, Derrick Howell, testified that he heard the car burn rubber while making the U-turn.

With these facts in mind, Appellant claims that the evidence is insufficient to establish the requisite element of malice which is needed to establish murder in the third degree. Specifically, Appellant contends that his actions were at most reckless as he merely lost control of his automobile while attempting to make an “ill-advised” U-turn. Moreover, he points to the fact that there is no evidence that he was intoxicated or that he was speeding, and no evidence that the street was crowded at the time of the accident. Thus, Appellant, who does not deny culpability for the child’s death, claims that, at most, he should have been guilty of only involuntary manslaughter or homicide by vehicle, not murder in the third degree.

Malice is a crucial element in murder since it distinguishes the crime of murder from manslaughter. Commonwealth v. Scales, 437 Pa.Super. 14, 648 A.2d 1205 (1994). “A person may be convicted of third-degree murder where the murder is neither intentional nor committed during the perpetration of a felony, but contains the requisite malice aforethought.” Commonwealth v. Pigg, 391 Pa.Super. 418, 425, 571 A.2d 438, 441 (1990), alloc. den., 525 Pa. 644, 581 A.2d 571. Malice has been defined as a “wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Pigg, 391 Pa.Super. 425, 571 A.2d at 441 (quoting Commonwealth v. Drum, 58 Pa. 9, 15 (1868)). “A finding of malice based on a ‘recklessness of consequences’ requires that a defendant be found to have consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily injury.” Scales, 648 A.2d at 1207. Further, malice may be inferred after considering the totality of the circumstances. Commonwealth v. Commander, 436 Pa. 532, 260 A.2d 773 (1970).

It is rare that a motor vehicle accident gives rise to a conviction of murder in the third degree. However, it is clear that in determining whether a murder in the third degree conviction should be upheld, all facts, including those before, during, and after the event, must be considered in order to determine whether the actor caused the death of another “with a conscious disregard of an unjustified and extremely high risk.” Scales, 437 Pa.Super. 19, 648 A.2d at 1207.

In Commonwealth v. Taylor, 461 Pa. 557, 337 A.2d 545 (1975) (plurality), the defendant was found guilty of murder in the second degree and operating an automobile under the influence of alcohol as a result of the death of a young boy who was riding his bicycle in a park in the City of Philadelphia. The testimony revealed that the defendant, who was intoxicated, was travelling at a high rate of speed through the park on a clear, dry day when he struck two young boys on their bicycles. Upon impact, the boys were thrown close to ninety-nine feet into the air. After the impact, the defendant continued driving until the next intersection before he returned to the scene of the crash. In discussing whether the necessary malice existed so as to distinguish murder in the second degree from involuntary manslaughter, our Supreme Court, citing Commonwealth v. Aurick, 342 Pa. 282, 19 A.2d 920 (1941), stated:

“On the other hand, the proof of negligence to support a charge of involuntary manslaughter need not be proof of acts or omissions exhibiting reckless, wicked and wanton disregard of the safety of others. Negligence of that high degree will support a charge of murder in the second degree, as this court recognized in Commonwealth v. McLaughlin, 293 Pa. 218, 142 A. 213. In Com. v. Mayberry, 290 Pa. 195, 138 A. 686, 688, this court, in an opinion by the present Chief Justice, said: ‘Had the appellant at bar dashed down Highland [Ajvenue and wantonly, recklessly and in disregard of consequences hurled his car against another, or into a crowd or over a person on sidewalk or street, and death resulted, then, considering the kind of instrumentality that an automobile is, we are not prepared to say that he ought not to face the same consequences that would be meted out to him if he had accomplished death by wantonly and wickedly firing a gun. People v. Brown, 58 Cal.App. 664, 200 P. 727.’ ...”

Taylor, 461 Pa. 563, 337 A.2d at 547-48 (emphasis in original). Further, the Taylor Court stressed that “[t]he issue is not the nature of the instrument, but the frame of mind of the actor in the deployment of that instrument.” Id. 564 at 548.

Likewise, in Commonwealth v. Davis, 388 Pa.Super. 224, 565 A.2d 458 (1989), alloc. den., 525 Pa. 595, 575 A.2d 561 (1990), there was sufficient evidence to sustain the defendant’s two convictions for third-degree murder. The facts of Davis reveal that the defendant, after snatching a purse from a woman at the Monroeville Mall, left the mall area at a high rate of speed and proceeded up the highway where he, after losing control of the automobile and crossing the center lane of traffic, killed an elderly couple who were riding in an oncoming vehicle, as well as killing one of the passengers in his car. After the accident, the defendant fled the scene of the crime. This Court, in considering these factors, along with the fact that it was a clear, dry day and the defendant knew that the street upon which he was driving was a congested area, determined that the defendant’s conduct exhibited “the wickedness of disposition, the hardness of heart, cruelty and recklessness associated with third degree murder.” Id. 388 Pa.Super. 240, 565 A.2d at 466.

In Commonwealth v. Pigg, supra, 391 Pa.Super. 418, 571 A.2d 438, the defendant, a tractor-trailer driver, killed two people as a result of a head-on collision between his tractor-trailer and their vehicle on a narrow road. Prior to this collision, the defendant, who was intoxicated at the time of the accident, also drove several other vehicles off the road and ignored another driver’s request that he stop driving. This Court, relying on the attendant circumstances of the case, found that the defendant’s conduct easily amounted to the necessary malice needed to support his third-degree murder convictions. Id. 429, 571 A.2d at 443.

In Commonwealth v. Urbanski, 426 Pa.Super. 505, 627 A.2d 789, (1993), alloc. den., 535 Pa. 657, 634 A.2d 221, the appellant, despite pleas from his wife to slow down and to stop driving erratically, caused a car accident which killed his wife. Blood tests revealed that the appellant’s blood alcohol level was .10%. In upholding the appellant’s third-degree murder conviction, this Court stated:

... the properly admitted trial testimony reveals a dangerously high blood alcohol level and a clear road surface combined with erratic driving and repeated refusals to give up the wheel. Appellant was or should have been aware of the danger that could result from driving so fast and so recklessly, especially after having had so much to drink. Even if he was not aware, his wife repeatedly reminded him of the danger and asked many times if she could drive the car. But appellant recklessly disregarded her pleas and the probability of a tragic result. His conduct in the car was the very type of conduct that the definition of malice describes.

Urbanski, 426 Pa.Super. 513, 627 A.2d at 793-94.

Finally, in Commonwealth v. Scales, supra, 437 Pa.Super. 14, 648 A.2d 1205, the defendant was adjudicated guilty of third-degree murder after his car, which had swerved onto a sidewalk in a residential neighborhood, struck a large planter which was pushed into two children, crushing one of them to death. In summarizing the evidence, this Court found:

Here, appellant was driving an older, heavy and high-powered vehicle, at a high rate of speed in a crowded residential neighborhood, and at a time when children play in the streets and on sidewalks in. large numbers. He ignored a stop sign, almost colliding with a vehicle in the intersection. He was told to slow down and responded with “shut up.” After traversing the intersection, apparently without slowing down or braking, he sideswiped another car and swerved onto the curb where he ran into a cement flower container and the children, and without attempting to stop, continued up the street despite calls from bystanders to stop.

Scales, 437 Pa.Super. 20-21, 648 A.2d at 1207-08. Thus, given these facts, malice was inferred and the third-degree murder conviction was upheld.

After a review of the evidence in the present case, we find that Appellant’s conduct gives rise to the necessary malice to sustain a third-degree murder conviction. Appellant, driving a stolen car, on a clear day, in a residential area, made a U-turn while he was accelerating, causing him to crash through a fence and hit a swing set where five children were playing. Moreover, aside from the fact that Appellant did not attempt to brake, the swing set, which was painted bright blue, was clearly visible from Phil-Ellena Street. Also, Appellant barely missed two children who were walking on the sidewalk. Likewise, despite the fact that four injured children were on the hood of Appellant’s car, Appellant fled from the scene of the accident. This clearly is sufficient to show that Appellant acted with a “recklessness of consequences and a mind regardless of social duty.”

To sustain a conviction for homicide by vehicle, the Commonwealth needs to prove: 1) Appellant drove in a manner that violated the vehicle code; 2) Appellant knew or should have known that the conduct violated the law; and 3) death was the probable cause of the vehicle code violation. Commonwealth v. Bowser, 425 Pa.Super. 24, 32, 624 A.2d 125, 129 (1993), alloc. den., 537 Pa. 638, 644 A.2d 161 (1994), cert. den., — U.S. -, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994). For involuntary manslaughter, a conviction will be upheld only where one does “an unlawful act in a reckless or grossly negligent manner.” 18 Pa.C.S.A. § 2504. Clearly, given the attending facts in the present case, Appellant’s conduct rises above the level of both homicide by vehicle and involuntary manslaughter.

Appellant next argues that there was insufficient evidence presented to sustain his four aggravated assault convictions. Specifically, Appellant argues that his convictions cannot be upheld since his convictions were based upon 18 Pa.C.S.A. § 2702(a)(4) and an automobile cannot be classified as a deadly weapon. The Commonwealth urges that this issue is waived since Appellant has failed to raise it in his post-trial motions and, likewise, failed to raise it in his 1925(b) statement. However, given that the verdict in this matter was rendered after January 1, 1994, new Rule of Criminal Procedure 1410 applies. In pertinent part, this rule provides:

B. Optional Post-Sentence Motion.
(1) Generally.
# * * * * *
(c) Issues raised before or during trial shall be deemed preserved for appeal whether or not the defendant elects to file a post-sentence motion on those issues.

Pa.R.Crim.P. 1410, 42 Pa.C.S.A. From the face of the rule, it appears that, despite the fact that Appellant did argue post-verdict motions and failed to present this claim, this matter has been preserved for appellate review. Likewise, Appellant’s failure to include this issue in his 1925(b) statement does not, in and of itself, constitute waiver. It is the discretion of this Court as to whether the issue may be heard on appeal. See Commonwealth v. Forest, 427 Pa.Super. 602, 629 A.2d 1032 (1993), alloc. den., 536 Pa. 642, 639 A.2d 28 (1994).

Appellant’s contention is without merit. The Crimes Code defines “deadly weapon” as follows:

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

18 Pa.C.S.A. § 2301. “A deadly weapon need not be, of course, an inherently lethal instrument or device.” Commonwealth v. MeCullum, 529 Pa. 117, 137, 602 A.2d 313, 323 (1992). A weapon which is not ordinarily considered to be deadly may become deadly when its use results in a killing. Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947). Further, when determining whether a weapon is deadly, the manner in which it is used must be considered.

In the present case, even though an automobile may not be, when used properly, inherently dangerous, it is evident that, in considering the manner in which it was used by Appellant, it became a deadly weapon. We cite with approval this Court’s comment in Scales: “Motor vehicles still outdistance firearms as the most dangerous instrumentality in the hands of irresponsible persons in our society today.” Scales, 648 A.2d at 1209. See Commonwealth v. Battiato, 422 Pa.Super. 285, 619 A.2d 359 (1993), alloc. den., 535 Pa. 652, 634 A.2d 216 (aggravated assault conviction pursuant to 18 Pa.C.S.A. § 2702(a)(4) upheld where the appellant backed his car over the victim causing serious bodily injury). Further, we add that the requisite culpability has been met. 18 Pa.C.S.A. § 302(b)(2) states:

(b) Kinds of culpability defined.—
sj; & í¡: i}; # ‡
(2) A person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

In the present case, it is evident that Appellant continued to drive his vehicle, without hitting the brakes, even after he struck the children on the swing set. Clearly, the continued driving is evidence that Appellant’s actions were “knowing.” See Commonwealth v. Hoke, 381 Pa.Super. 70, 552 A.2d 1099 (1989), alloc. den., 523 Pa. 635, 565 A.2d 444. Thus, because there was sufficient evidence to sustain Appellant’s convictions for the four counts of aggravated assault, we find his claim to be without merit.

Judgment of sentence affirmed.

      . 75 Pa.C.S.A. §§ 3742 and 3732, respectively.

      . 18 Pa.C.S.A. §§ 2705, 2706, 2702, and 2502, respectively.

      . After the change of the Crimes Code, what was murder in the second degree is now considered to be murder in the third degree. See Historical Note to 18 Pa.C.S.A. § 2502.

      . Appellant urges us to apply the Supreme Court’s recent holding in Commonwealth v. O’Hanlon, 539 Pa. 478, 653 A.2d 616 (1995) to reverse his murder in the third degree conviction. O’Hanlon held that mere recklessness is not sufficient to support a conviction for aggravated assault. 539 Pa. 480, 653 A.2d at p. 618. Appellant claims that the mere making of a U-turn is not enough to sustain the recklessness element of murder in the third degree since the mere driving while intoxicated was not sufficient to uphold the aggravated assault conviction in O'Hanlon. This claim is without merit, since, looking at the cumulative facts of the present case, Appellant’s combined actions, not merely making the U-turn, are sufficient to support his conviction.

      . § 2702. Aggravated Assault
      (a) Offense defined. — A person is guilty of aggravated assault if he:
      H: * 4s :}i sts
      (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weaponf]
      18 Pa.C.S.A. § 2702(a)(4).