author: ROWLEY, Presiding Judge.

text:
    657 A.2d 1314
    George J. MATUKONIS and Michele L. Matukonis, Appellants, v. Michael J. TRAINER, D.C.
    Superior Court of Pennsylvania.
    Argued March 2, 1995.
    Filed May 15, 1995.

      Chester C. Corse, Jr., Pottsville, for appellants.
    James J. Kutz, Harrisburg, for appellee.
    Before ROWLEY, P.J., and GAVANAUGH and McEWEN, JJ.
   ROWLEY, Presiding Judge.

Appellant George Matukonis appeals a trial court order dismissing a claim for damages against appellee Michael J. Trainer, D.C., for failing to obtain appellant’s informed consent prior to performing a chiropractic manipulation of appellant’s neck. We affirm.

Appellant’s complaint, alleging that he sustained personal injuries as a result of the chiropractic manipulation performed by appellee, set forth four counts: professional negligence, breach of contract, lack of informed consent, and loss of consortium. The trial court sustained appellee’s prehminary objections in the nature of a demurrer to the counts of breach of contract and lack of informed consent. Since the trial court’s actions dismissed less than all claims in the suit, appellant filed a timely motion requesting the trial court to certify that immediate appeal of the dismissal of his claim for damages based on a lack of informed consent would facilitate resolution and materially advance the ultimate determination of the case, pursuant to Pa.R.A.P. 341(c). The trial court amended its order dismissing appellant’s claims to include the required certification, and appellant filed a timely notice of appeal to this Court.

We note in passing that prior to the adoption of Rule 341 as amended by our Supreme Court on May 6, 1992, effective July 6, 1992, an order such as this, disposing as it does of less than all claims, would as a general rule have been considered interlocutory and not appealable except by permission. Praisner v. Stocker, 313 Pa.Super. 332, 459 A.2d 1255 (1983) (a final order is usually one which disposes of entire case or ends litigation). Thus, under former Rule 341, this Court was required to determine whether a dismissed count merely stated an alternative theory of recovery, in which case it was considered interlocutory and not appealable except by filing a petition for permission to appeal, or whether the dismissed count stated a separate and distinct cause of action, in which case it was considered final and appealable. Motheral v. Burkhart, 400 Pa.Super. 408, 583 A.2d 1180 (1990). Amended Rule 341 dispenses with this case-by-case analysis, permitting a trial court to enter a final order “as to one or more but less than all of the claims or parties only upon an express determination that an immediate appeal would facilitate resolution of the entire case.” 42 Pa.R.A.P. § 341(c) (emphasis supplied). Concisely stated, our Supreme Court has clarified the interlocutory nature of orders dismissing less than all claims or parties: an appeal may not be taken from such orders. However, by creating an exception to this general rule, the Supreme Court has essentially made interlocutory orders final and appealable, and established the exclusive method by which a party may appeal an order dismissing less than all claims or parties. Womeldorf v. Cooper, 4 Pa.Commonwealth Ct. 2, 654 A.2d 238 (1995).

Appellate review of orders granting preliminary objections in the nature of a demurrer is plenary, and requires admitting as true all material facts set forth in the pleadings, as well as all inferences reasonably deducible from them. We then examine the facts as averred to determine whether recovery under any theory of law is possible. Foflygen v. R. Zemel, M.D. (PC), 420 Pa.Super. 18, 615 A.2d 1345 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993).

Accepting as true all facts as averred, the trial court correctly determined that appellant has no cause of action against appellee for failure to obtain informed consent as a matter of law. Appellant argues that appellee’s allegedly harmful manipulations constituted an unpermitted touching, absent informed consent to undertake the risks involved, and thus a cause of action for battery should lie. However, even were we to assume that appellee did not, in fact, discuss the risks involved in a chiropractic manipulation, or the efficacy of alternative procedures, before touching appellant, appellant would still fail to state a cause of action. Although appellant is correct in defining the cause of action as one sounding technically in the intentional tort of battery, Wu v. Spence, 413 Pa.Super. 352, 605 A.2d 395 (1992), a cause of action for failure to obtain informed consent has been steadfastly limited to “surgical or operative medical procedures,” Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985). Since chiropractors are statutorily proscribed from performing any surgical procedures, 63 P.S. § 625.102, and appellant does not allege that appellee performed a surgical or operative procedure, a cause of action against a chiropractor for failure to obtain informed consent before performing non-surgical procedures will not lie as a matter of law. Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993); see also Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331 (1992) (physician or surgeon who operates without patient’s informed consent is liable for damages, notwithstanding care exercised); Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992) (consent of a patient is a “prerequisite to a surgical operation by his physician,” quoting Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966)). We are not free to expand the application of the doctrine of informed consent beyond the surgical arena when our Supreme Court has declined to do so. Foflygen, 420 Pa.Super. at 34, 615 A.2d at 1353.

Order affirmed.

      . A panel of this Court has cautioned that ‘‘[a] determination that an immediate appeal of a non-final order is appropriate should be made only in the most extraordinary circumstances.” Robert H. McKinney, Jr., Associates, Inc. v. Albright, 429 Pa.Super. 440, 443, 632 A.2d 937, 939 (1993). The mere dismissal of less than all parties or claims "is insufficient reason to classify an order as final.” Id.

      . This Court's decisions in Foflygen, Wu, and Boyer are dispositive of appellant’s alternative claim that a cause of action for lack of informed consent belongs under the rubric of negligence, not the intentional tort of battery. We are well aware that the Commonwealth falls into a decidedly minority position in adhering to the theory of battery for informed consent cases, and there we will stay until such time as our Supreme Court revisits the issue. Foflygen, 420 Pa.Super. at 34, 615 A.2d at 1353; Wu, 413 Pa.Super. at 356, 605 A.2d at 397; Boyer, 345 Pa.Super. at 72, 497 A.2d at 648.


source: Caselaw Access Project

author: CIRILLO, Judge.

license: Public Domain

text:
    657 A.2d 1316
    The HERTZ CORPORATION v. Gray SMITH, Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed May 15, 1995.

      Roxanne D. Galeoto, Philadelphia, for appellant.
    Steven K. Gerber, Philadelphia, for St. Paul Fire & Marine Insurance, appellee.
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   CIRILLO, Judge.

Gray Smith appeals from an order entered in the Court of Common Pleas of Philadelphia County, granting summary judgment in favor of The Hertz Corporation (“Hertz”) and additional defendant St. Paul Fire & Marine Insurance Company (“St. Paul”), and against Smith. We affirm.

On or about December 12,1991, Smith rented an automobile from Hertz. At the execution of the rental agreement, Smith declined the optional loss damage waiver and agreed to be contractually liable for any and all loss or damage to the rental car, regardless of fault. While he was driving the rental car, Smith was involved in a two-car automobile accident.

As a result of the accident, the rental car sustained property damage in the amount of $5,363.74. Hertz demanded that Smith pay for the damage to the car, in accordance with the above-mentioned terms of the rental agreement. Smith refused, and Hertz instituted the underlying action.

Smith submitted both Hertz’ claim and the claim of the other driver to St. Paul. At the time of the accident, Smith maintained a “Package Accounts for Commercial Enterprises” policy of insurance with St. Paul. St. Paul paid $9,079.37 to the driver of the other automobile for the property damage claim resulting from the damage to his vehicle. St. Paul denied coverage to Smith for the property damage to the rented Hertz car, alleging that the damage to the rental car did not fall within the scope of St. Paul’s policy.

Smith answered Hertz’ complaint and joined St. Paul as an additional defendant, alleging that St. Paul failed to provide insurance benefits to Smith. St. Paul answered Smith’s third party complaint and denied any and all liability. Hertz asserted no claims against St. Paul.

The matter was tried before an arbitration panel, after which judgment was entered in favor of Hertz and St. Paul and against Smith. Smith appealed the arbitrators’ decision to the Court of Common Pleas of Philadelphia County.

The parties stipulated to the pertinent facts. Thereafter, Hertz and St. Paul each filed motions for summary judgment against Smith. Smith filed separate responses in opposition thereto. The Honorable Joseph D. O’Keefe entered summary judgment in favor of Hertz and St. Paul and against Smith. Smith filed the instant appeal and asks this court to consider whether the trial court erred or abused its discretion in finding that the damage to the rental car was not covered under the St. Paul policy and, hence, in granting summary judgment in favor of St. Paul and against Smith.

When we review the grant of a motion for summary judgment made under Pa.R.C.P. 1035, the appellate court’s scope of review is well-settled: summary judgment is properly granted where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b). Summary judgment may be granted only where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co., 522 Pa. 367, 369, 562 A.2d 279, 280 (1989). The moving party has the burden of proving that there is no genuine issue of material fact. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party, and any doubt must be resolved against the moving party. Davis v. Pennzoil Co., 438 Pa. 194, 264 A.2d 597 (1970). The trial court will be overturned on the entry of summary judgment only if there has been an error of law or a clear abuse of discretion. Hetrick v. Apollo Gas Co., 415 Pa.Super. 189, 608 A.2d 1074 (1992).

As noted above, the parties stipulated to the essential facts. The trial court’s sole responsibility with respect to the dispute between Smith and St. Paul, therefore, was to apply the stipulated facts to the terms of the St. Paul policy and ascertain whether the damage to the Hertz rental car was covered by the policy.

The standards to be applied in reviewing insurance contracts are well settled. The proper focus regarding issues of coverage under insurance contracts is the reasonable expectation of the insured. Dibble v. Security of America Life Ins. Co., 404 Pa.Super. 205, 210, 590 A.2d 352, 354 (1991). In determining the reasonable expectations of the insured, courts must examine the totality of the insurance transaction involved. Id. However, while reasonable expectations of the insured are the focal points in interpreting the contract language of insurance policies, see Collister v. Nationwide Life Ins. Co., 479 Pa. 579, 388 A.2d 1346 (1978) and Winters v. Erie Ins. Group, 367 Pa.Super. 253, 532 A.2d 885 (1987), an insured may not complain that his or her reasonable expectations were frustrated by policy limitations which are clear and unambiguous. Bateman v. Motorists Mut. Ins. Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991); see also Neil v. Allstate Ins. Co., 379 Pa.Super. 299, 549 A.2d 1304 (1988); St. Paul Mercury Ins. Co. v. Corbett, 428 Pa.Super. 54, 630 A.2d 28 (1993) (en banc). However, where a provision of an insurance policy is ambiguous, the provision is construed in favor of the insured and against the insurer. Bateman, 527 Pa. at 245, 590 A.2d at 283; Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 305, 469 A.2d 563, 566 (1983); Patton v. Patton, 413 Pa. 566, 573, 198 A.2d 578, 582 (1964).

The question of whether a duty to indemnify arises depends upon the type of claim in issue. Creed v. Allstate Ins. Co., 365 Pa.Super. 136, 140, 529 A.2d 10, 12 (1987). Furthermore, an inquiry into whether a loss is within the policy coverage is a question of law and may be decided by a motion for summary judgment. Id. (citing D’Auria v. Zurich Ins. Co., 352 Pa.Super. 231, 507 A.2d 857 (1986); Patterson v. Reliance Ins. Co., 332 Pa.Super. 592, 481 A.2d 947 (1984); Insurance Co. of North Am. v. State Farm Mut. Ins. Co., 266 Pa.Super. 197, 403 A.2d 611 (1979)). See also Bole v. New Hampshire Fire Ins. Co., 159 Pa. 53, 28 A. 205 (1893).

In this case, Smith sought coverage under a commercial general liability protection policy titled Package Accounts for Commercial Enterprises (“PACE”). The “coverage summary” page of the PACE policy shows the limits of standard coverages and the limits of any optional coverages purchased by the insured. In this case, Smith purchased optional coverage for “Liability Protection for Autos You Don’t Own,” including “Non-owned” and “Hired Auto[s].” The limits of coverage under this option was $2,000,000[.00].

Endorsement 44366 to the policy is captioned as “Liability Protection For Autos You Don’t Own,” and provides coverage for “a covered bodily injury or property damage claim resulting from an accident involving the maintenance, use, loading or unloading of a covered auto.” (emphasis added). “Covered auto[s]” are defined by the endorsement as follows:

Which Autos Are Covered
The Coverage Summary shows which autos are covered under this agreement.
Hired autos. If this is shown in the Coverage Summary, we’ll cover autos you hire, rent or borrow. This doesn’t include autos you lease, hire, rent or borrow from any of your employees or members of their households.
Non-owned autos. If this is shown in the Coverage Summary, we’ll cover autos you don’t own, lease, hire or borrow which are used in connection with your business....

(emphasis in original). As mentioned above, the coverage summary page of Smith’s policy provided coverage for both non-owned and hired automobiles. It remains to be determined, however, whether the damage to the rental car is “covered ... property damage” under the terms of the St. Paul policy.

Endorsement 44366 enumerates several exclusions to coverage. Specifically, the endorsement contains a contractual liability exclusion, which provides, in pertinent part:

Contractual Liability. We won’t cover any claim based on liability assumed under a contract or agreement. But this [exclusion] doesn’t apply to liability assumed under a Covered contract, or liability that you would have if no covered contract existed.

The question with respect to this exclusion is whether the rental agreement between Hertz and Smith is a “covered contract” so as to negate the effect of the exclusion. If the rental agreement is a “covered contract,” then the exclusion does not operate to bar recovery of benefits under the St. Paul policy. Conversely, if the rental agreement falls outside of the definition of a “covered contract,” and liability would not otherwise attach absent such a contract, then the exclusion applies and Smith’s claim is not covered under the St. Paul policy. The policy defines “covered contract” in the following manner:

Covered contract means:
******
that part of any other contract or agreement under which you assume the tort liability of another to pay damages for covered bodily injury or property damage to others if such contract or agreement is related to your business, and is made before the bodily injury or property damage happens. Tort Liability means a liability that would be imposed by law without any contract or agreement.
s*: * * í¡: sfc ‡

(emphasis in original).

We find that the rental agreement between Hertz and Smith is not a “covered contract” pursuant to endorsement 44393 of the St. Paul Policy. By entering into the rental agreement with Hertz, Smith agreed to be contractually responsible for any and all damages to the rental automobile. Accordingly, the essence of Hertz’ complaint against Smith is one in breach of contract. The nature of the damages and the nature of the acts alleged both indicate that the underlying action is one based in contract and not in tort. As such, it would be inappropriate to find coverage for the damages to the rental car under the liability policy issued by St. Paul.

In Toombs NJ Inc. v. Aetna Cas. & Sur. Co., 404 Pa.Super. 471, 591 A.2d 304 (1991), we applied a contractual liability provision to a claim based upon a breach of contract and opined that:

To allow indemnification under the facts presented here would have the effect of making the insurer a sort of silent business partner subject to great risk in the economic venture without any prospects of sharing in the economic benefit. The expansion of the scope of the insurer’s liability would be enormous without corresponding compensation. There is simply no reason to expect that such a liability would be covered under a comprehensive liability policy which has, as its genesis, the purpose of protecting an individual or entity from liability for essentially accidental injury to another individual, or property damage to another’s possessions, even if, perhaps, the coverage of the policy has been expanded to cover other non-bodily injuries that sound in tort.

Toombs, 404 Pa.Super. at 476, 591 A.2d at 306. See also Giancristoforo v. Mission Gas & Oil Products Inc., 776 F.Supp. 1037, 1042 (E.D.Pa.1991). The purpose of insured contract coverage, therefore, is to provide benefits for tort liability that an insured contractually assumes, not liability that is based on a breach of contract.

Pursuant to the rental agreement, Smith agreed to return the rental car to Hertz in its pre-rental condition. Smith further agreed to be responsible for any damage to the car. Since Smith failed to return the car to Hertz in its pre-rental condition, Smith breached his contract with Hertz. Because Hertz’ claim against Smith is based upon a breach of contract and not upon bodily injury or property damage to a third party, we find that the Hertz agreement is not a “covered contract” and, hence, that the contractual liability exclusion bars coverage. Toombs, supra, 404 Pa.Super. 471, 591 A.2d 304.

In addition to the contractual liability exclusion in the St. Paul policy, the policy contains a “care, custody or control” exclusion (hereinafter referred to as the “CCC exclusion”). The CCC exclusion provides that:

Exclusions — Claims We Won’t Cover
Property in your care. We won’t cover any claim for damage to property owned by, transported by or in the care, custody or control of a protected person.

Endorsement 44366.

This court in Slate Constr. Co. v. Bituminous Casualty Corp., 228 Pa.Super. 1, 323 A.2d 141 (1974) best articulated the purpose for CCC exclusions in liability insurance policies:

With respect to the exclusion from coverage of property damage to property in the “care, custody or control” of the insured, one commentator has noted: “There are several different reasons for such an exclusion in the policy. Fundamentally, were it not for the exclusion there would be a greater moral hazard as far as the insurance company is concerned. It also eliminates the possibility of the insured making the insurance company a guarantor of its workmanship^”]
“The liability policy contemplates payment generally in situations where the ordinary degree of care is the measure of liability. The premium is determined on that basis. Liability for damage to property in charge of or in the care, custody or control of the insured where there is a bailment is controlled by different rules of law, and as a practical result the hazard is greatly increased.[”]
“There is usually some form of insurance available to cover injury to or destruction of the excluded property at a higher premium which is commensurate with the risk. The exclusion is to eliminate securing the same coverage under a liability policy at cheaper rates.”

Slate, 228 Pa.Super. at 6, 323 A.2d at 144 (quoting Cooke, Jr., Care, Custody or Control Exclusions, 1959 Ins.L.J. 7, 9) (emphasis added). See Warner v. Employers’ Liab. Assur. Corp., 390 Pa. 62, 133 A.2d 231 (1957) (holding that insurer had no duty to defend where policy contained a CCC exclusion and the damaged goods were held by the insureds under a storage contract which provided that insureds were to be in charge and control of the stored property); Masters v. Celina Mut. Ins. Co., 209 Pa.Super. 111, 224 A.2d 774 (1966) (holding that contractor/insured was not entitled to recover on policy for loss where policy provided that it did not apply to injury to or destruction of property in care, custody or control of the insured or property over which the insured, for any purpose, exercised physical control); see also Carpenter v. Federal Ins. Co., 432 Pa.Super. 111, 637 A.2d 1008 (1994) (comparing the purposes and effect of the CCC exclusion to the work product exclusion). Cf. International Derrick & Equip. Co. v. Buxbaum, 240 F.2d 536 (3d Cir.1957) (holding that CCC exclusion in liability policy is not applicable where the property damaged is merely incidental to the property upon which work is being performed by the insured); McCreary Roofing Co. v. Northern Ins. Co. of N.Y., 218 Pa.Super. 193, 275 A.2d 388 (1971) (per curiam) (Montgomery, J., concurring) (holding that CCC exclusion in liability policy is not applicable where the insured damaged roof by transporting materials across the roof, but the insured was not actually working on that portion of the roof that was damaged).

In Speier v. Ayling, 158 Pa.Super. 404, 45 A.2d 385 (1946), a case factually similar to this case, a liability policy contained a CCC exclusion which provided that, “This policy does not apply ... to property owned by ... [or] in charge of ... the insured.” This court found that, although the insured did not own the car in which she was driving, she was, as a permissive driver of the car, in sole control of the car at the time of the accident. As such, we held that the CCC exclusion applied to her claim and found that her liability insurance did not cover the damage to the car. Id. at 406, 45 A.2d at 387.

Following our decision in Speier, specifically, and the line of cases concerning the CCC exclusion, generally, we find that Smith was in custody and/or control of the rental car at the time of the accident. Speier, supra, 158 Pa.Super. 404, 45 A.2d 385. The CCC exclusion in the St. Paul policy, therefore, operates to preclude coverage for the damages to the rental automobile.

In conclusion, we find that the contractual liability and CCC exclusions in the St. Paul liability policy are clear and unambiguous, Bateman, supra, 527 Pa. 241, 590 A.2d 281, and that they preclude Smith from recovering for damages to the rental car. We note that Smith neither selected the optional loss damage waiver offered by Hertz, nor opted to purchase separate collision insurance from an automobile carrier. We, therefore, cannot and will not allow Smith to convert his lower risk, lower premium liability policy into one for collision. To hold otherwise would not be reasonable in light of the commercial context of the case. Accordingly, we find that the trial court did not abuse its discretion or commit an error of law in granting summary judgment in favor of St. Paul and against Smith. Hetrick, supra, 415 Pa.Super. 189, 608 A.2d 1074.

Order affirmed.

      . The named insured under the policy was designated as follows: "dba: Gray Smith’s Office, Architecture & Community Development.”


author: TAMILIA, Judge.

text:
    658 A.2d 352
    COMMONWEALTH of Pennsylvania v. Lori RISHEL, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 2, 1995.
    Filed April 13, 1995.

      Joseph K. Cottrell, Williamsport, for appellant.
    Daniel E. Holmes, Asst. Dist. Atty., Williamsport, for Com., appellee.
    Before TAMILIA, HUDOCK and FORD ELLIOTT, JJ.
   TAMILIA, Judge.

Appellant, Lori Rishel, takes this appeal from the judgment of sentence of February 11, 1994 imposing a term of imprisonment of five (5) days to twenty-three (23) months, and a fine of $25. Appellant was found guilty by a jury of two counts of driving under the influence of alcohol, and the trial court adjudicated appellant guilty of the summary offense of failing to drive at a safe speed.

On appeal, appellant first argues one of the statutes under which she was found guilty of driving under the influence violates her due process rights, and is therefore unconstitutional. Appellant claims part of the driving under the influence statute, 75 Pa.C.S. § 3731(a)(5)(i), as well as the statutory defense provided, 75 Pa.C.S. § 3731(a.1), impermissibly shifts the burdens of proof and persuasion from the Commonwealth to the defendant. The statute provides as follows:

§ 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: ....
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person’s breath, blood or urine, which sample is:
(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle!.]
(a.l) Defense. — It shall be a defense to a prosecution under subsection (a)(5) if the person proves by a preponderance of evidence that the person consumed alcohol after the last instance in which he drove, operated or was in actual physical control of the vehicle and that the amount of alcohol by weight in his blood would not have exceeded 0.10% at the time of the test but for such consumption.

Id. Appellant claims “[i]nsofar as the Commonwealth must establish the .10% element of the offense, the defense set forth in subsection (a.l) clearly operates to negate an essential element of the offense.” We disagree.

As an initial matter, we note the heavy burden of persuasion upon one who challenges the constitutionality of an Act of Assembly and the strong presumption of constitutionality of that legislative enactment. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Barnes, 427 Pa.Super. 326, 629 A.2d 123 (1993). A statute will not be invalidated unless there is a clear, palpable and plain demonstration that the statute violates a constitutional provision. Commonwealth v. Kohl, 532 Pa. 152, 615 A.2d 308 (1992).

Subsections (a)(5) and (a.1) are the most recent additions to the driving under the influence statute. P.L. 1411, No. 174, § 12, Dec. 18, 1992, effective February 16, 1993. As such, this Court has not been presented with a challenge to the constitutionality of the new enactments. However, we find an analogous situation exists in section (a)(4) of the statute. Section (a)(4) provides that a person “shall not drive, operate or be in actual physical control of the movement of any vehicle ... while the amount of alcohol by weight in the blood of the person is 0.10% or greater....” 75 Pa.C.S. § 3731(a)(4). Soon after its enactment, the validity of section (a)(4) was challenged and it was found to be constitutional. Mikulan, supra.

In upholding the validity of section 3731(a)(4), the Mikulan Court found the statute was not overly broad or vague in setting an arbitrary figure, 0.10%, for the blood alcohol level beyond which motor vehicle operation is prohibited, and further found the per se Motor Vehicle Code violation contained in section 3731(a)(4) rationally and reasonably related to achieving the compelling interest in protecting the health and safety of motorists from drunken drivers. Id. 504 Pa. at 250, 470 A.2d at 1342. Moreover, the Court found “no constitutional, statutory or common law right to the consumption of any quantity of alcohol before driving and there is little doubt that the legislature could, if it so chooses, prohibit driving within a certain reasonable time after drinking any amount of alcohol (so long as the prohibition was rationally related to the legitimate legislative purpose).” Id. at 254, 470 A.2d at 1344. Absent a more specific claim from appellant, we find the holding in Mikulan equally applicable to our analysis of section 3731(a)(5)(i), and we find the statute constitutionally valid.

Appellant does claim specifically, however, that the statutory defense to section 3731(a)(5), codified at 75 Pa.C.S. § 3731(a.1), is unconstitutional because it negates an essential element of the offense of driving under the influence. Again, we disagree.

In order to obtain a conviction under section 3731(a)(4), the Commonwealth must prove two elements: (1) that the defendant was driving, operating or in control of a vehicle, and (2) that the defendant had an amount of alcohol in the blood that was equal to or greater than 0.10% by weight. Commonwealth v. Wanner, 413 Pa.Super. 442, 605 A.2d 805 (1992). Section (a)(5)(i) adds a third element: (3) ... as determined by a chemical test of a sample of the defendant’s breath, blood or urine obtained within 3 hours after the person drove, operated or was in control of the vehicle.

In a prosecution under section 3731(a)(5)(i), the defendant is provided with a statutory defense allowing him to prove, by a preponderance of evidence, that he consumed alcohol after he drove, operated or was in control of a vehicle, and that the amount of alcohol in the blood would not have exceeded 0.10% at the time of the test but for such consumption. 75 Pa.C.S. § 3731(a.1). This defense in no way relieves the Commonwealth of its burden of proving beyond a reasonable doubt each of the above three elements of section 3731(a)(5)(i), and does not negate any of those elements. The Commonwealth has the heavy burden of proving beyond a reasonable doubt that appellant operated/controlled the vehicle, while having a blood alcohol level of .10% by weight, as established within three hours of operating/controlling the vehicle. § 3731(a)(1). In contrast the defendant is permitted to rebut this evidence by only a preponderance of the evidence that he (1) consumed alcohol after driving and controlling the vehicle and (2) his blood alcohol level would not have exceeded .10% at the time of the test but for such consumption.

By its very nature, alcohol ingestion results in a change in the blood alcohol level dependent upon various factors including body weight, food ingestion, length of time between ingestion and testing and number and frequency of drinks depending on their alcoholic content. As stated above, use of alcohol while driving is theoretically capable of zero toleration by the legislature because of its inherently dangerous consequences. At this point in time, regulating the danger and establishing a reasonable and fair standard of proving violation of the law, which has arbitrarily been placed at driving while having a blood alcohol level of .10%, the legislature has bracketed this blood level as falling within three hours of the time it can be established beyond a reasonable doubt that a party was operating or in control of the motor vehicle. This is necessary to give reasonable notice as to the charge, what the Commonwealth must prove and what the defendant can put forth in the way of mitigation or in affirmative defense. Appellant argues that the burden should never shift from the Commonwealth to prove all elements of a charge, beyond a reasonable doubt, however, she contends that addition of section 3731(a)(1) unconstitutionally shifts the burden to the defendant to disprove her guilt. Such is not the case.

It has long been the law that despite apparently overwhelming evidence of various crimes which standing alone would establish proof beyond a reasonable doubt, affirmative defenses in the nature of insanity, intoxication, self-defense automatism, coercion, alibi and duress are available to a defendant. (Black’s Law Dictionary 55 (5th ed. 1979).) Obviously such defenses are not legally sufficient by mere allegation, and the law demands that they be established by at least the minimum level of reliability acceptable which is a preponderance of the evidence. It is noted that defenses in these class of cases are unique in that they deal with states of minds or physical/mental conditions that lie within the particular purview of a defendant’s knowledge and capacity to raise a reasonable doubt. The result of producing such facts is to negate the effect of the Commonwealth’s prima facie showing of guilt beyond a reasonable doubt. The classic example is the case in which a person charged with theft of property carries the burden of showing possession of the property was. without knowledge that it was stolen. Barnes v. U.S., 412 U.S. 837, 846 n. 11, 93 S.Ct. 2357, 2363 n. 11, 37 L.Ed.2d 380, 387 n. 11 (1973). We have long held that the burden of proving an affirmative defense which does not negate an element of an offense may be placed on the defendant. Commonwealth v. Hilbert, 476 Pa. 288, 382 A.2d 724 (1978); Commonwealth v. Shenkin, 337 Pa.Super. 517, 487 A.2d 380 (1985). In this respect, we find section 3731(a.1) analytically similar to other statutory defenses embodied in the Crimes Code. cf. 18 Pa.C.S. §§ 3102, Mistake as to age, 3923, Theft by extortion, (b) Defenses.

Even more to the point are the legal principles and supporting case law which hold that logic and the ends of justice require that a defense, particularly where statutorily imposed as an exception, be proved by the defendant. Where the facts relating to an exception incorporated in the enacting clause of a criminal statute are difficult for the state to obtain and are at the same time peculiarly within the knowledge of defendants, the exception is usually considered as a defense or justification and not as part of the description of the offense itself, particularly in determining the burden of proof. 22 C.J.S. Criminal Law, IV. Defenses and Circumstances Barring Prosecution or Conviction Generally, § 46. In General.

Where the subject matter of a negative averment in the indictment, or a fact relied on by accused as a justification or excuse, relates to him personally or otherwise lies peculiarly within his knowledge, and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient, the general rule is that the burden of proof as to such averment or fact is on defendant. However, this burden may not be unduly harsh or unfair.
The prosecution need not adduce positive evidence to support a negative averment, the truth of which is fairly indicated by established circumstances, and which, if untrue, could be readily disproved by evidence probably within accused’s control.

22A C.J.S. Criminal Law, Facts Peculiarly Within Accused’s Knowledge § 686 (footnotes omitted).

Almost 50 years ago, in Commonwealth v. Bitzer, 163 Pa.Super. 386, 62 A.2d 108 (1948), the issue presented here was squarely before this Court on a violation of a criminal statute for rendering service as a public utility without a certificate of public convenience. In Bitzer; as here, the Commonwealth established a prima facie case of the violation, beyond a reasonable doubt, but the defendant could escape culpability by proving by a fair preponderance of the evidence that he came within an excusable exception. There, we stated:

We think there was thus presented for the jury’s consideration a conflict of evidence on the question of whether defendant had brought himself within the statutory exception exempting “ * * * any independent contractor * * * hauling agricultural products or farm supplies exclusively for one or more owners or operators of farms.” The Commonwealth had the burden of establishing a violation of the Act and defendant’s guilt beyond a reasonable doubt, as in all criminal prosecutions. When the Commonwealth presented a prima facie case by showing the rendering of a service as a public utility without a certificate of public convenience, the defendant then had the duty of going forward with the proof and establishing to the satisfaction of the jury, by a fair preponderance of the evidence, that he came within the excusable exception.

Id. at 389, 62 A.2d at 110 (citations omitted).

In Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989), this Court held it was not up to the Commonwealth to prove that defendant lacked authority to operate or did.not have consent to operate a device to intercept communications in order to prove willfully intercepting and disclosing information derived from wiretapping or electronic surveillance. We held that the burden of providing evidence of authority or of consent to conduct interception falls on defendant as a matter of defense.

[I]t is a matter of examining the structure of the statute or each of its sections and the nature of the prohibition in determining the issue of the burdens to be carried[.]” Id. at 170, 557 at 1100. The Saccol court adopted the language of McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 134, 67 L.Ed. 301, — (1922), and stated:

By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the element of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.

Saccol at 172, 557 at 1101.

For these reason, we find appellant’s constitutional claims without merit.

Appellant next claims the evidence was insufficient to sustain her convictions under 75 Pa.C.S. §§ 3731(a)(1) and 3361.

In reviewing a sufficiency of the evidence claim, we view the evidence in the light most favorable to the verdict winner and determine whether there is sufficient evidence to prove every element of the crime beyond a reasonable doubt. The Commonwealth may sustain its burden of proving each element beyond a reasonable doubt using wholly circumstantial evidence.
The crime of operating a vehicle while under the influence of alcohol requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) defendant was driving, operating, or in actual physical control of the automobile, (2) while under the influence of alcohol to a degree which rendered him incapable of safe driving.

Commonwealth v. Byers, 437 Pa.Super. 502, 504-05, 650 A.2d 468, 469 (1994) (citations omitted).

Recently, this Court also analyzed Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986), and Commonwealth v. McGinnis, 511 Pa. 520, 515 A.2d 847 (1986), and stated:

[A] charge under section 3731(a)(1) supported by sufficient evidence that the driver was not in control of himself, such as failing to pass a field sobriety test, could establish the driver was under the influence of alcohol to a degree which rendered him incapable of safe driving, notwithstanding the absence of evidence of erratic or unsafe driving. Viewing McGinnis together with Griscavage, we find a charge of driving under the influence under section 3731(a)(1), alleging the driver incapable of safe driving, is not precluded merely because at the time of arrest the driver was not observed to drive unsafely.

Commonwealth v. Kowalek, 436 Pa.Super. 361, 368, 647 A.2d 948, 952 (1994).

In this case, the arresting officer testified that he came in contact with appellant approximately one hour after she first reported an automobile accident, and at that time appellant had an odor of alcoholic beverage about her and appeared confused and incoherent, although she stated she was not injured. Appellant failed two field sobriety tests and informed the officer that she had drunk two 16-ounce beers in the course of the evening. Appellant further informed the officer she did not drink any alcoholic beverages after her vehicle became disabled. Appellant then was placed under arrest and transported to the hospital for blood testing (N.T., 11/9/93, pp. 87; 90-94). We find this evidence sufficient to establish appellant was under the influence of alcohol to a degree which rendered her incapable of safe driving. Kowalek, supra, 436 Pa.Super. 361, 647 A.2d 948.

As to the trial court’s adjudication of guilt for failing to drive at a safe speed, the Vehicle Code provides:

No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S. § 3361. Appellant contends only that the “evidence submitted concerning Appellant’s operation of her vehicle is not so bizarre or out of the ordinary that a finder of fact can conclude, beyond a reasonable doubt, that Appellant was not driving at a safe speed.” (Appellant’s brief at 22-23.)

Appellant’s contention ignores the fact that the credibility of witnesses and the weight to be accorded the evidence produced are matters within the province of the trier of fact, who is free to believe all, some or none of the evidence. Commonwealth v. Yetsick, 402 Pa.Super. 615, 587 A.2d 788 (1991). In this case, appellant testified that she was unable to maintain control of her vehicle, and the arresting officer testified it was his opinion that she simply had failed to negotiate the turn in the roadway where the accident occurred. The trier of fact was free to believe the Commonwealth evidence that appellant was not driving at a safe speed, as that offense is enumerated in the Vehicle Code, and reject appellant’s testimony to the contrary. Therefore, this sufficiency of the evidence claim is also without merit.

Appellant’s final claim is that the trial court erred in allowing the Commonwealth to proceed on 75 Pa.C.S. § 3731(a)(5)(i), where that charge was not included in the original complaint. Section (a)(5)(i) became effective on February 16, 1993. Appellant was arrested on February 23, 1993 and charged by criminal complaint on March 8, 1993 with driving under the influence, 75 Pa.C.S. §§ 3731(a)(1) and (4). A preliminary hearing was held on April 22, 1993, and on May 1, 1993, the district attorney filed an information charging appellant with violations of sections 3731(a)(1) and (a)(4), as well as (a)(5)(i). Prior to commencement of trial on November 9, 1993, the trial court inquired about the addition of section 3731(a)(5)(i), of which the assistant district attorney and defense counsel both were unaware. Defense counsel objected to the Commonwealth proceeding under section 3731(a)(5)(i), but after determining that appellant had failed to timely raise the objection, the trial court allowed the Commonwealth to proceed under the information as filed.

Rule 225 of the Rules of Criminal Procedure provides, in pertinent part:

(a) In counties in which the indicting grand jury has been abolished, after the defendant has been held for court, the attorney for the Commonwealth ... shall proceed by preparing an information and filing it with the court of common pleas.
(b) The information shall be signed by the attorney for the Commonwealth and shall be valid and sufficient in law if it contains:
.....
(5) a plain and concise statement of the essential elements of the offense substantially the same as or cognate to the offense alleged in the complaint®

Pa.R.Crim.P. 225.

Counsel for appellant concedes he received a copy of the information filed May 1, 1993, but did not challenge the validity of the information for nearly six months. A request to quash an information must ordinarily be made in an omnibus pretrial motion for relief or it is considered waived. Pa.R.Crim.P. 306; Commonwealth v. La, 433 Pa.Super. 432, 640 A.2d 1336 (1994). Consequently, this issue was not preserved for review.

For all of the foregoing reasons, we find appellant’s claims without merit, and we affirm the judgment of sentence.

Judgment of sentence affirmed.

FORD ELLIOTT, J., concurs in the result.

      . 75 Pa.C.S. §§ 3731(a)(1); 3731(a)(5)(i).

      . Id., § 3361.

      . Our Supreme Court has agreed to consider this issue in Commonwealth v. Barud, (64 W.D.App.Dkt.1994). Jurisdiction noted October 31, 1994; Order granting stay of lower court Order entered January 5, 1995.

      . Although driving under the influence is codified in the Vehicle Code, no distinction is made among crimes defined under the Crimes Code and crimes defined under other statutes. Commonwealth v. Cunningham, 248 Pa.Super. 219, 375 A.2d 66 (1977).


author: HUDOCK, Judge:

text:
    658 A.2d 358
    Joyce D. OLSON, Executrix of the Estate of David A. Olson, Appellee, v. NORTH AMERICAN INDUSTRIAL SUPPLY, INC. and Thomas E. Jones, Appellants.
    Superior Court of Pennsylvania.
    Argued March 1, 1995.
    Filed April 25, 1995.

      John R. Fernán, Ridgway, for appellants.
    Carl A. Belin, Jr., Clearfield, for appellee.
    Before TAMILIA, JOHNSON and HUDOCK, JJ.
   HUDOCK, Judge:

This is an appeal from the trial court’s order denying North American Industrial Supply, Inc. (NAIS) and Thomas E. Jones’ (Jones) motion for post-trial relief. We affirm.

The history of this appeal stems from a declaratory judgment action filed by Joyce D. Olson (Olson), as the Executrix of the estate of her husband, David A. Olson (the decedent). In 1972 the decedent and Jones purchased all outstanding shares of the Pennsylvania business corporation NAIS. The decedent and Jones were the sole shareholders, officers and directors of NAIS from 1972 until September 21, 1991, when the decedent died.

In October of 1972, the decedent and Jones executed a stock redemption agreement (the agreement) whereby each party agreed to transfer their NAIS shares back to the corporation upon their death. The agreement provided in pertinent part:

11. That the repurchase by Corporation of any shares which any Shareholder desires to transfer in any way whatsoever be the sole method by which any Shareholder may transfer his interest in Corporation.
12. That upon the death of any Shareholder, such Shareholder’s estate shall participate in Corporation only as a general creditor of Corporation in the amount of the value of such deceased Shareholder’s shares in Corporation as determined by the formula hereinafter set forth.
13. That the purchase price of any shares repurchased by Corporation shall be determined by the following formula:
SHARES TO BE TRANSFERRED TOTAL SHARES OF CORPORATION OUTSTANDING X (BOOK VALUE OF CORPORATION AS OF THE CLOSE OF THE LAST DAY OF THE QUARTER PRECEDING THE DATE OF NOTICE OF DESIRE TO TRANSFER OR DATE OF DEATH + [GOODWILL J.)
14. That [goodwill] shall be valued at $10,000.00 until August, 1973.
15. That the amount to be allocated for [good-will] be redetermined each and every year by a majority of the Board of Directors of Corporation at the annual Directors Meeting beginning in the year 1973, A.D., and the amount so established to be in effect up to the next annual Director’s meeting.

Shareholder’s Redemption Agreement, Paragraphs 11-15 (emphasis added).

Pursuant to the terms of the agreement, Olson tendered 369 shares of common stock and 5 shares of preferred stock to NAIS on July 8, 1992. Olson demanded payment of $253,-100.00, a figure which her accountant calculated in accordance with the terms of paragraph 13 of the agreement. Believing that this number was excessive, NAIS and Jones rejected Olson’s demand and tendered a check in the amount of $126,203.45. This figure was comprised of $121,203.45 for the book value of the common shares, $500.00 for the surrender of the preferred stock, and $4,500.00 for the decedent’s pro-rata share of the goodwill value of the corporation. Jones contended that he and the decedent had met daily “around the coffee pot” to discuss business matters such as the value of goodwill. He explained that he and the decedent had agreed to maintain the original $10,000.00 value for goodwill at these informal meetings.

Olson rejected Jones’ tender arguing that she was entitled to more money since the goodwill value of the corporation had substantially increased since 1973. The parties continued to negotiate the value of the stock but were unable to reach an amicable resolution. Consequently, Olson filed a complaint in equity seeking a declaratory judgment on September 25, 1992. Olson requested the court to determine an appropriate book value and goodwill value for the tendered shares using objective data, or in the alternative, to order rescission of the agreement.

Prior to trial, NAIS and Jones filed a motion in limine seeking a ruling from the court that Jones was permitted to testify at trial despite the provisions of the Dead Man’s Act. Jones wanted to testify at trial that he and the decedent had regularly discussed the value of the corporation’s goodwill and orally agreed to maintain the $10,000.00 value. Jones argued that Olson waived the application of the Dead Man’s Act by requesting financial records of the corporation prior to instituting the equity action. Olson denied that she had waived the Dead Man’s Act since she received all documentary evidence prior to the time when she filed her complaint in equity. Furthermore, Olson claimed that she did not resort to any discovery methods found in the rules of civil procedure since NAIS and Jones voluntarily complied with her request to send financial records. On May 18, 1994, the trial court denied NAIS and Jones’ motion in limine and ruled that Olson did not waive the Dead Man’s Act. Thus, Jones was precluded from testifying at trial that he and the decedent had reached an oral agreement concerning the value of goodwill.

Prior to trial the parties agreed that the court had no authority to apply a substitute valuation for the tendered shares or for corporate goodwill. The sole issue for the court was whether the agreement was enforceable. An evidentiary hearing was held May 25, 1993 to determine this issue. The parties stipulated that no corporate records and minutes existed evidencing that the Board of Directors met annually. At the close of Olson’s presentation of testimony, NAIS and Jones filed a demurrer requesting the court to enter a compulsory nonsuit. The trial court rejected this motion and entered an adjudication and decree nisi declaring the agreement unenforceable. The court ordered NAIS and Jones to return the 369 shares of stock to the decedent’s estate in exchange for the $126,203.45 tendered to Olson.

NAIS and Jones filed a motion for post-trial relief on June 10, 1994. The trial court denied this motion and confirmed the decree nisi. NAIS and Jones then filed this appeal in which they present numerous issues for our review.

NAIS and Jones first argue that the trial court erred when it declared the agreement unenforceable. They argue that the decedent and Jones periodically orally agreed to maintain the value of goodwill at $10,000.00. Alternatively, they argue that if the agreement is unenforceable, the court does not have authority to grant rescission and order the parties to return to the status quo.

Our scope of review in equity matters is narrow. We are limited to determining whether the factual findings of the trial judge are supported by competent evidence, whether an error of law has been committed, or whether there has been a manifest abuse of discretion. Osborne v. Carmichaels Mining Machine Repair, Inc., 427 Pa.Super. 159, 163, 628 A.2d 874, 877 (1993). The factual findings of a trial judge sitting as a Chancellor in Equity are entitled to the weight of a jury verdict and will not be upset by an appellate court if supported by adequate evidence. Jennison v. Jennison, 346 Pa.Super. 47, 53, 499 A.2d 302, 305 (1985).

In the adjudication and decree nisi, the trial court concluded that the decedent and Jones, as directors of NAIS, ignored the provision of the agreement which mandated that they redetermine the corporation’s goodwill value each year. Consequently, the trial judge concluded:

The agreement specifically provided] in Paragraph 14 that [goodwill] is valued at $10,000 until August 1978, said $10,000 has no life or meaning, in and of itself, thereafter, and therefore, no determination of said value ever thereafter having been made, said agreement on this issue is therefore declared unenforceable.

Adjudication and Decree Nisi, 6/3/94, at p. 5.

After examining the clear and concise language of the agreement, we agree with the trial judge’s interpretation. “When the words of a contract are clear and unambiguous, the intent of the parties is to be discovered from the express language of the agreement.” Raiken v. Mellon, 399 Pa.Super. 192, 196, 582 A.2d 11, 13 (1990). Moreover, “[i]n interpreting the value of shares pursuant to a stock redemption agreement, our only useful authority is the language of the agreement itself.” Osborne, 427 Pa.Super. 159, 628 A.2d 874, 628 A.2d at 877.

In the instant case, the words of the agreement are clear and subject to one reasonable interpretation. The parties agreed that every year the value of goodwill would be reassessed. The $10,000.00 value only applied until August of 1973. The parties agreed that the court should not employ a substitute method of calculating the goodwill value. Furthermore, neither party offered any competent evidence that would aid the court in determining the goodwill value. Therefore, the only remedy the court could grant was to declare the agreement unenforceable.

This Court granted a similar remedy in Jennison v. Jennison, supra, 346 Pa.Super. 47, 499 A.2d 305. In that case the parties entered a buy-sell agreement in which the plaintiffappellee agreed to sell 300 shares of South Pitt Tool Co., Inc. “for a purchase price to be [later] negotiated and agreed upon by Buyer and Seller.” Jennison, 50, 499 A.2d at 303. When the parties were unable to agree on a purchase price, the plaintiff brought an action for specific performance. The Chancellor ruled that the buy-sell agreement could not be specifically enforced because the court could not supply the missing price term. On appeal, this Court upheld the Chancellor’s ruling and declared:

Appellant presented neither any other evidence from which the court could conclude that the parties had agreed on a price nor any evidence from which the court could supply the missing terms on a “reasonably certain basis,” .... The contract provided that the parties were to agree on a price; their negotiations broke down without their reaching an agreement.... All we have is an “agreement to agree” which is incapable of enforcement. The Chancellor was correct in refusing specific performance.

Id. 346 Pa.Super. 54-55, 499 A.2d at 305-06 (citations omitted).

We find that the facts of Jennison are analogous to this case and the remedy afforded instructive. Consequently, we find that the trial court was correct in declaring the agreement unenforceable.

Next, NAIS and Jones contend that even if the agreement was unenforceable, the trial court granted inappropriate relief. They argue that the court lacked authority to grant rescission of the agreement since Olson was not a party to the agreement. They complain that the court should not have ordered the parties to return the conditional tenders of stock and money. Instead, NAIS and Jones suggest that Olson should keep the $126,203.45 while they keep the 369 shares of redeemed stock.

To understand the relief granted by the trial court, we refer to the adjudication and decree nisi. The court stated:

That portion of said agreement is therefore rescinded and the estate of David A. Olson is ordered to tender to [NAIS] the $126,203.45 that said corporation paid and the said corporation is ordered to return or reissue the shares delivered to [NAIS] by [Olson.]

Adjudication and Decree Nisi, 6/3/94, at p. 6. The trial court further explained the relief granted in its memorandum opinion denying NAIS and Jones’ post-trial motions. The court explained:

That portion of the contract being unenforceable, and tenders of stock and cash being conditional, it was the intent of the decree nisi adjudication order, although perhaps inadvertently improperly stated, that because the agreement was unenforceable in regard to the portion thereof above stated, the tenders of stock and cash were ordered rescinded.... The agreement is not rescinded but the conditional tenders are.

Trial Court Opinion, 7/29/94, at p. 3.

NAIS and Jones’ argument that they are entitled to keep the 369 shares of stock is untenable. The reason why Olson instituted suit was because she was dissatisfied with the conditional tender of $126,203.45. In Olson’s complaint in equity she requested two alternative prayers for relief — one was that the court determine an appropriate value for the book value and goodwill value of NAIS shares. If the court could not grant this relief, which the parties ultimately agreed that it could not, Olson requested the court to declare the agreement unenforceable and order the parties to return their conditional tenders. Once the court declared the contract unenforceable, the parties were required to “rescind” or return to the status quo. If NAIS and Jones were entitled to keep the 369 shares while paying Olson only $126,203.45, this would mean the court ruled in their favor and accepted their value for goodwill. Clearly, this is not what the court found. Therefore, we reject NAIS and Jones’ argument that rescission was an inappropriate remedy.

In their third issue NAIS and Jones claim that the trial court erred by concluding that the decedent and Jones never met to informally revalue the goodwill of the corporation based on the fact that there were no corporate minutes evidencing these meetings. NAIS and Jones argue that these meetings did transpire despite the lack of formal records. They also claim that Olson had the burden of proving that the directors never met to revalue the corporation’s goodwill. NAIS and Jones contend that they should have been permitted to introduce parol evidence to “aid, correct and supplement” the corporate minutes. Montgomery v. Greene County Clay Products Company, 205 Pa.Super. 515, 518, 210 A.2d 911, 913 (1965).

NAIS and Jones contend that a closely held corporation is not bound by the same strict formalities as a large corporation and that the actions of the directors of a closely held corporation may be proven by other means other than the corporate minutes. See Kann v. Keystone Resources, Inc., 575 F.Supp. 1084 (W.D.Pa.1983). We agree with this contention but fail to see how they offered “other means” to prove that the board of directors of NAIS met to redetermine the value of goodwill. The trial court did not preclude NAIS and Jones from offering parol evidence to prove that the decedent and Jones, acting as the Board of Directors, met to redetermine the corporation’s goodwill value. However, the trial court did rule in a motion in limine that Jones was precluded from testifying as to oral communications he allegedly had with the decedent because it violated the Dead Man’s Act. NAIS and Jones claim that this ruling was erroneous. We disagree.

Pennsylvania adopted the Dead Man’s Act at 42 Pa.C.S.A. section 5930. This Act provides, in pertinent part:

[I]n any civil action or proceeding, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased or lunatic party, shall be a competent witness to any matter occurring before the death of said party or the adjudication of his lunacy,....

42 Pa.C.S.A. § 5930.

The purpose of this Act is “ ‘to prevent the injustice which might flow from permitting the surviving party to a transaction with a decedent to give testimony thereon favorable to himself and adverse to the decedent, which the latter’s representative would be in no position to refute.’ ” Stathas v. Wade Estate, 251 Pa.Super. 269, 271, 380 A.2d 482, 483 (1977) (citation omitted).

Before a witness is declared incompetent to testify under the Dead Man’s Act, three conditions must exist: (1) the deceased must have had an actual right or interest in the matter at issue; (2) the interest of the witness, not simply the testimony, must be adverse to that of the decedent; and (3) a right of the deceased must have passed to a party of record who represents the deceased’s interest. Commonwealth v. DiCio, 218 Pa.Super. 268, 270, 275 A.2d 868, 870 (1971).

In the present case, these three criteria are clearly met. First, the decedent had a right or interest in the 369 shares of corporate stock which his estate tendered to NAIS and Jones. Second, Jones’ interest as the surviving shareholder, officer and director of NAIS was adverse to the decedent’s interest. “In order to be adverse the interest must be one from which the witness will either gain or lose as the direct legal operation and effect of the judgment.” In Re Estate of Gelb, 425 Pa. 117, 119, 228 A.2d 367, 369 (1967). Jones disagreed with Olson that the value of the 369 shares was greater than the amount already tendered. If Jones prevailed at trial and convinced the trial court that the amount tendered to Olson was sufficient, he would clearly stand to gain additional money. Third, the decedent’s right to- the purchase price of the 369 shares passed to his estate who was the party of record in this case.

NAIS and Jones argue that Olson waived the Dead Man’s Act by requesting financial records of the corporation. While it is true that a party may waive the application of the Dead Man’s Act, we do not find that waiver applies to the facts of this case.

The Dead Man’s Act exists for the protection of the dead man’s estate; however, the representative of the estate may elect to waive the disqualification of the adverse party by taking his deposition or requesting a response to written interrogatories pursuant to the discovery rules found in the Pennsylvania Rules of Civil Procedure. See Pa.R.C.P., Rules 4004, 4005, and 4007.1. Flagship First National Bank of Miami Beach v. Bloom, 288 Pa.Super. 347, 353, 431 A.2d 1082, 1085 (1981); Perlis v. Kuhns, 202 Pa.Super. 80, 82, 195 A.2d 156, 158 (1963) (if decedent’s representative requires the adverse party to submit to a deposition or respond to written interrogatories, this amounts to a waiver of the Dead Man’s Act). Furthermore:

[W]hen a claimant against the estate of a decedent testifies in his own behalf as to facts occurring since the death of the decedent and is cross-examined as to matters occurring during the decedent’s lifetime, the disability imposed by the Act is lifted, and the claimant becomes competent to testify to all relevant and material matters.

Estate of Kofsky, 487 Pa. 473, 476, 409 A.2d 1358, 1359 (1979).

In the present case, the waiver exception does not apply. Olson did not request Jones’ deposition, nor did she request him to respond to any written interrogatories as permitted by Pa.R.C.P. Rule 4005. Furthermore, Olson did not cross-examine Jones as to matters which occurred during the decedent’s lifetime. Olson merely requested Jones to send her documentary evidence related to the corporation’s finances. Olson requested this information, prior to instituting suit, so that she could comply with the terms of the agreement and determine an appropriate value for the 369 shares owned by the decedent. We find that the trial court properly applied the Dead Man’s Act to exclude Jones’ testimony regarding the alleged oral communications he had with the decedent.

Last, NAIS and Jones argue that the equitable doctrines of laches and “unclean hands” apply to defeat Olson’s claims. Specifically, NAIS and Jones argue:

If there should have been a meeting in August, 1973, to redetermine goodwill, and there wasn’t, Decedent should have compelled a meeting or rescission of the agreement within a reasonable time thereafter. However, Decedent took no action whatsoever during his lifetime and Decedent died 18 years after the cause of action, if any, arose. Decedent sat on his rights too long, and this being a derivative action, Olson is bound thereby.

NAIS and Jones’ Brief, at p. 27.

Laches is an equitable defense which provides that when a complaining party in equity fails to exercise due diligence in prosecuting a claim to the other party’s detriment, the complaining party will be precluded from proceeding with his claim. Snyder v. Queen Cutlery Company, 357 Pa.Super. 456, 460, 516 A.2d 71, 74 (1986). The party asserting the defense of laches bears the burden of proving that the other party failed to exercise due diligence and caused a delay which resulted in prejudice. Kehoe v. Gilroy, 320 Pa.Super. 206, 212, 467 A.2d 1, 4 (1983). “Laches will not be imputed where no injury has resulted to the other party by reason of the delay.” Brodt v. Brown, 404 Pa. 391, 394, 172 A.2d 152, 154 (1961) (citation omitted). When determining if laches applies, the court will examine the particular facts of each case. Kehoe, 320 Pa.Super. 212, 467 A.2d at 4.

We agree with the trial court’s determination that NAIS and Jones have failed to prove that laches applies to their case. The agreement executed between the decedent and Jones was not operative until one of the shareholders died. Once a shareholder died, their representative was obligated to adhere to the terms of the agreement and tender their shares back to the corporation. The decedent had no reason to institute suit while he was alive. It was not until his death that the dispute regarding the value of goodwill arose. Therefore, we may not conclude that the decedent or his representative is guilty of failing to exercise due diligence in prosecuting his claim. Furthermore, Jones has not demonstrated how he was prejudiced by the failure of the decedent to institute suit prior to his death.

Likewise, we do not find that the equitable doctrine of “unclean hands” applies to the facts of this case. This broad principal of equity applies “when the court, within its discretion, finds the party seeking affirmative relief is guilty of fraud, unconscionable conduct or bad faith directly related to the matter at issue which injures the other party and affects the balance of equities between the litigants.” Equibank v. Adle, Inc., 407 Pa.Super. 553, 558, 595 A.2d 1284, 1287 (1991).

NAIS and Jones have failed to demonstrate how the decedent was guilty of any wrongdoing or how Olson benefitted from any willful misconduct on the part of the decedent. The fact that the decedent and Jones failed to conduct annual Board of Director’s meetings to redetermine the goodwill value of the corporation does not imply that the decedent is guilty of misconduct such that his estate should forfeit the right to an appropriate value for the 369 shares of stock redeemed by NAIS.

Order affirmed.

      . It appears from the record that an employee of NAIS, Robert Red-man, Jr., was given ten percent of the shares of NAIS prior to the decedent's death. This fact has no relevancy to the issues raised in this appeal. See N.T., 5/25/93, at pp. 9-14.

      . NAIS and Jones argue that they should have been permitted to offer Jones’ testimony regarding the allegedly oral agreements made "around the coffee pot” between the decedent and Jones where they agreed to maintain the goodwill value at $10,000.00. The trial court ruled in a motion in limine that this testimony was inadmissible by virtue of the Dead Man's Act. We will examine if the trial court's ruling was correct infra.

      . If no corporate minutes existed, as the parties stipulated, then NAIS and Jones could not aid, correct or supplement minutes which did not exist.