author: BROSKY, Judge:

text:
    521 A.2d 33
    Allen L. FEINGOLD, Appellant, v. Louis G. HILL & Ganesh Bala, Joseph M. Hankins & Duane, Morris & Heckscher.
    Superior Court of Pennsylvania.
    Argued Oct. 16, 1986.
    Filed Feb. 11, 1987.

      Allen L. Feingold, Philadelphia, in propria persona.
    David R. Weyl, Ambler, for Hill, appellees.

      Stephen M. Feldman, Philadelphia, for Hankins, appellees.
    Before CAVANAUGH, BROSKY and MONTEMURO, JJ.
   BROSKY, Judge:

This appeal arises from the granting of preliminary objections to a civil complaint. The trial court ordered that appellant’s complaint be dismissed with prejudice for failure to state a cause of action. Appellant, Allen L. Feingold, contends that the trial judge erred when he: (1) dismissed the complaint, as the complaint stated a cause of action pursuant to a number of intentional torts; (2) refused appellant’s request for leave to amend the complaint; and (3) refused to recuse himself from the case. Finding appellant’s arguments to be without merit, we now affirm.

Appellant is an attorney who has been practicing law for approximately twenty years, and continues to so practice in Philadelphia. This action seems to have arisen from a series of encounters with other members of the legal community: namely, the appellees in this matter, who are: (1) the Honorable Louis G. Hill, a trial judge in the Philadelphia Court of Common Pleas; (2) Ganesh Bala, Esquire, Judge Hill’s law clerk; (3) Joseph M. Hankins, Esquire, an attorney practicing in the Philadelphia area; and (4) Duane, Morris & Heckscher, the law firm with which Mr. Hankins practices. Appellant has brought the current suit as the result of three separate lawsuits in which appellant’s cause came before Judge Hill.

In the first case, Markey v. Marino, Philadelphia County, November Term, 1981, Number 212, Judge Hill entered a series of orders which were unfavorable to Mr. Feingold and his client, Markey, pursuant to various motions filed by appellee Hankins in his representation of Marino.

Initially, Mr. Hankins filed a motion for sanctions for failure to answer interrogatories, as well as a separate motion to compel the production of records. Both motions were granted, and counsel fees totalling three hundred dollars ($300.00) were imposed against Mr. Feingold’s client. Mr. Feingold filed two separate petitions for reconsideration, which Judge Hill denied. Mr. Feingold then filed for permission to appeal the discovery orders to the Superior Court; Judge Hill denied that petition as well.

In the months to follow, Mr. Feingold persisted in obstructive behavior which included: (1) the failure to pay the above counsel fees; (2) the retaliatory filing of two frivolous discovery motions, both of which were denied by Judge Hill; and (3) the failure to post security, pursuant to Pennsylvania Rules of Appellate Procedure 1731 and 1735, in a timely fashion, when another appeal to the Superior Court was filed. As a result of the above behavior, an additional six hundred dollars ($600.00) in counsel fees, as well as a fine of two hundred fifty dollars ($250.00), were imposed by Judge Hill, pursuant to Mr. Hankins’ request for further sanctions in two separate hearings.

In the second case, Feingold v. Skipwith, 11 Philadelphia Rep. 20 (1984), Mr. Feingold filed four petitions demanding the permanent recusal of the Honorable Alfred DiBona of the Philadelphia Court of Common Pleas, from hearing civil motions involving either Mr. Feingold or his clients. In support of his petitions, Mr. Feingold cited fifty-one (51) cases in which Mr. Feingold either acted as counsel, or was a party himself, all of which were decided unfavorably to Mr. Feingold at some pre-trial stage by Judge DiBona.

The matter was assigned to Judge Hill for disposition. A hearing was conducted on February 14, 1984. On June 12, 1984, Judge Hill issued a thirty-five (35) page opinion, with an eleven (11) page appendix, thoroughly and conscientiously analyzing all 51 cases cited by Mr. Feingold. Judge Hill failed to find any prejudice on the part of Judge DiBona, and dismissed Mr. Feingold’s petitions.

Mr. Feingold responded by filing a petition for the recusal of Judge Hill in a third case, Tareen v. Cohen, which had been assigned to Judge Hill for trial. The petition alleged that the sanctions imposed in the Markey case, and the opinion in the Skipwith matter, demonstrated that Judge Hill was unduly prejudiced in matters involving Mr. Feingold. Judge Hill refused to recuse himself, and the instant action was filed, along with a writ of prohibition to the Superior Court, further demanding Judge Hill’s recusal in Tareen in light of the instant suit’s likelihood of prejudicing Judge Hill against him. The writ was later withdrawn, but the instant action was maintained.

Following the filing of the instant complaint, preliminary objections were filed by all named defendants. Mr. Feingold then filed a petition, which requested that the motion be transferred to a non-Philadelphia judge for disposition, and the Honorable Melvin G. Levy of the Delaware County Court of Common Pleas was appointed by Chief Justice Nix to hear the motion. Argument upon the preliminary objections was scheduled to be heard before Judge Levy and the Honorable Joseph T. Labrum on October 15, 1985. Mr. Feingold requested a continuance of the argument, alleging a previous commitment in the Delaware County Courthouse. Judge Levy denied the request for continuance. When Mr. Feingold appeared at the October 15 argument, he presented an oral motion for the recusal of Judge Levy for undue prejudice. In support of his motion, Mr. Feingold cited the denial of the request for continuance of argument, as well as an incident in an unrelated lawsuit which had occurred fourteen months (14) prior, in which Judge Levy had held Mr. Feingold in contempt. Judge Levy refused to recuse himself. Argument upon the preliminary objections then proceeded before Judges Levy and Labrum. By order dated October 16, 1985, Judge Levy sustained the preliminary objections, and dismissed the complaint, with prejudice. This timely appeal followed.

The first issue raised concerns the dismissal of the complaint with prejudice for failure to state a cause of action. The complaint alleges that a number of intentional torts were committed against appellant by the various appellees during the course of events related above. Appellant contends that the factual averments of the complaint were sufficient to state a cause of action pursuant to the various alleged torts, and that the complaint, as such, should not have been dismissed. We disagree, and our reasoning is twofold.

Initially, with respect to two of the appellees, Judge Hill and his law clerk, Ganesh Bala, it is our holding that both men are immune from the current lawsuit pursuant to the doctrine of judicial immunity.

With respect to Judge Hill, the law in Pennsylvania is well established that judges are absolutely immune from liability for damages when performing judicial acts, even if their actions are in error or performed with malice, provided there is not a clear absence of all jurisdiction over the subject matter and person. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 1105, 55 L.Ed.2d 331 (1978), reh. denied., 436 U.S. 951, 98 S.Ct. 2862, 56 L.Ed.2d 795 (1978); Praisner v. Stockner, 313 Pa.Super. 332, 344, 459 A.2d 1255, 1261 (1983). This protection is not of recent origin, but has been extended to judicial officers in Pennsylvania since the 1800’s. See Hanna v. Slevin, 8 Pa.Super. 509, 510 (1898). The rationale in support of this protection is obvious: if magistrates are to be free to exercise their discretion and apply their understanding of the law to the facts before them, they must be granted such a measure of independence that they are not compelled to respond in damages for mistakes honestly made, provided they have not acted beyond the pale of their authority. See Petition of Dwyer, 486 Pa. 585, 591, 406 A.2d 1355, 1358 (1979); see also McNair’s Petition, 324 Pa. 48, 55-56,187 A. 498, 502 (1936), quoting Commonwealth v. Cauffiel, 79 Pa.Super. 596, 600-601 (1922).

Clearly, from the factual background given above, the matters which were brought by appellant before Judge Hill were within the jurisdiction of the Philadelphia Court of Common Pleas, and appellant’s arguments do not allege otherwise. As such, we only need to consider appellant’s allegations that Judge Hill’s actions exceeded the boundaries of his judicial authority.

In support of this allegation, the complaint makes repeated references to Judge Hill’s animosity and prejudice towards appellant, and cites, as factual demonstration, Judge Hill’s unfavorable rulings and imposition of sanctions and fines. These actions were clearly within the scope of Judge Hill’s authority; furthermore, as stated previously, malice does not, in and of itself, make judicial behavior actionable. Stump, supra; Praisner, supra.

In fact, the only allegations of the complaint which would take Judge Hill’s actions beyond the realm of his authority, if true, relate to his alleged conspiracy with his law clerk to prevent appellant from representing his clients and practicing law in the Commonwealth of Pennsylvania. His only factual support for this allegation, however, is in the form of an exhibit attached to the complaint, consisting of a series of letters and one memorandum, relating to the Tareen case. Apparently, the matter was continued by Judge Hill, despite appellant’s erroneous understanding that the matter was specially listed. Judge Hill’s law clerk, Mr. Bala, upon hearing that appellant had phoned, returned the call, and attempted to explain the reasons for the continuance. Appellant responded angrily that he had been entitled to earlier notice, and, in followup, wrote a letter of complaint to the President Judge, Edward J. Bradley. Judge Hill sent a reply letter to President Judge Bradley, explaining his position. A review of this exhibit, and the events related therein, do not reveal any action going beyond the normal course of court business, much less action rising to the level of a conspiracy.

As such, appellant has failed to plead any facts which would remove Judge Hill’s cloak of judicial immunity.

With respect to Mr. Bala, Judge Hill’s law clerk, there is no case law in Pennsylvania that directly addresses whether a law clerk receives the benefit of his employer’s judicial immunity. However, law clerks are appointed by judges, within the scope of their constitutional authority, as necessary attendants to the court, to assist judges in the performance of their judicial functions. See 42 Pa.C.S.A. § 2301(a)(1); also see Sweet v. Pennsylvania Labor Relations Board, 457 Pa. 456, 462-463, 322 A.2d 362, 365 (1974). As such, it is appropriate to consider whether law clerks, as court-appointed officials, should enjoy some form of quasi-judicial immunity.

In the past, quasi-judicial immunity has been extended to magistrates, see McNair’s Petition, supra; officials of state agencies, see Dwyer, supra; and district justices, see Praisner, supra. The rationale that has been consistently applied for the extension of such immunity has been stated as thus:

If a judge of an inferior jurisdiction has the power under authority of law to hear and pass on cases, to which the particular offense belongs, the same reason requires that he should be protected from liability for erroneous action, which exempts judges of superior or general jurisdiction from such liability. If judges properly expected to be most learned in the law can plead official exemption for their blunderings in the law, a fortiori those from whom less is to be expected should not be compelled to respond in damages for their mistakes honestly made.

Praisner, supra. (Emphasis supplied).

The same reasoning would appear applicable to law clerks as well. Indeed, law clerks, while trained in the law, are not judges, and less is expected from them than their employers. As such, to permit the imposition of civil liability upon law clerks who are merely performing their appointed tasks, while insulating magistrates and district justices, would be incomprehensible, and unduly harsh.

As a further consideration, the law is generally averse to that which interferes in the lawful exercise by judges of their supervisory powers over their appointed employees. See, for example, Eshelman v. Commissioners of County of Berks, 62 Pa.Cmwlth. 310, 436 A.2d 710, 713 (1981) (held award entered in arbitration which interfered with judicial discretion over hiring, supervision, and discharge of court-appointed employees invalid). This is in keeping with the policy of insuring an independent judiciary. Dwyer, supra.

It is axiomatic that law clerks are supervised by their employers in the performance of their duties. If the courts of this Commonwealth were to permit law clerks to be subject to liability for duties honestly performed pursuant to such supervision, we would be permitting an indirect, yet very real, interference in the exercise of discretion by their employers. The cloak of quasijudicial immunity must be extended to law clerks in the performance of their official duties if we are not to entirely emasculate the independence of the judiciary itself.

In light of this holding, we must now examine the allegations against Mr. Bala. As stated previously, Mr. Bala is alleged to have conspired with Judge Hill to prevent appellant’s exercise of his right to practice law. Again, the only factual support for this allegation relates to the Toreen continuance, in which Mr. Bala did no more than return appellant’s phone call, and report the substance of that phone call, through a memorandum, to Judge Hill. Clearly such activity would have fallen within the parameters of Mr. Bala’s duties. As such, Mr. Bala is immune from suit in the instant matter under the protection of quasi-judicial immunity.

Were we to find judicial immunity inapplicable in this case, however, we would nonetheless be compelled to uphold the dismissal of the complaint against Judge Hill and Mr. Bala for the same reason we uphold the dismissal with respect to Mr. Hankin and his law firm — the complaint, simply put, is premised upon a series of legal conclusions, yet is devoid of the slightest factual support for these conclusions.

To be sure, the complaint alleges that a variety of intentional torts were committed by appellees, individually and in concert, against appellant, including fraud, deceit, conspiracy, intentional infliction of emotional distress, interference with a business relationship, and defamation. However, a review of the complaint reveals that the only factual details given by appellant to support his allegations are in the form of a rambling recitation of the background to the Markey, Skipwith, and Tareen matters, accompanied by repeated assertions that the unfavorable outcomes appellant suffered in each instance were the result of unfair treatment and malicious intent on the part of the various appellees. Furthermore, appellant’s brief on appeal, while accurately setting forth the prima facie elements which comprise each of the alleged intentional torts, does not cite any factual examples from the complaint to demonstrate how the prima facie elements of these torts were pled with any specificity.

Blind suspicions and unsupported accusations simply do not state a cause of action pursuant to any theory of tort recovery. Even our present liberalized system of pleading requires that the material facts upon which a cause of action is premised be pled with sufficient specificity so as to set forth the prima facie elements of the tort or torts alleged. Baker v. Rangos, 229 Pa.Super. 333, 347-348, 324 A.2d 498, 505 (1974); Pa.R.C.P. 1019(a). Appellant has failed to call to this Court’s attention any factual averments which may have been overlooked by the trial judge in his assessment of the complaint as legally insufficient. As such, we see no reason to disturb the trial court’s finding on this issue.

Appellant’s second contention on appeal is, in effect, an argument in the alternative. Appellant contends that the complaint, if legally insufficient, should not have been dismissed with prejudice before granting appellant at least one opportunity to amend. We disagree.

The right to amend should be liberally granted, absent an error of law or resulting prejudice to an adverse party. Connor v. Allegheny General Hospital, 501 Pa. 306, 311, 461 A.2d 600, 602 (1983); Pa.R.C.P. 1033. However, the right to amend is not absolute. Where the initial pleading reveals that the complaint’s defects are so substantial that amendment is not likely to cure them, and that the prima facie elements of the claim or claims asserted will not be established, the right to amend is properly withheld. See Spain v. Vicente, 315 Pa.Super. 135, 142-143, 461 A.2d 833, 837 (1983); also see Behrend v. Yellow Cab Company, 441 Pa. 105, 110-111, 271 A.2d 241, 243 (1970). Furthermore, the decision to grant or deny leave to amend is within the sound discretion of the trial court, and will not be reversed absent a clear abuse of discretion. Junk v. East End Fire Dep’t, 262 Pa.Super. 473, 490, 396 A.2d 1269, 1277 (1978).

The instant complaint consists of fifty-two (52) paragraphs, divided into two counts, and ten (10) exhibits. In its entirety, the complaint approaches three hundred fifty (350) pages in length. As stated previously, however, this 350-page document merely reports the series of events from the Markey, Skipwith, and Tareen matters, and alleges various intentional torts sheerly upon the bases of supposed hostility held by appellees toward appellant, and appellant’s losses in each case. Furthermore, appellant’s brief fails to set forth any additional facts which would support a cause of action pursuant to the various torts.

Appellant, as we have noted, is a practitioner with twenty years of trial experience. Yet, despite this voluminous pleading, he has failed to state a cause of action, and has not demonstrated, through his brief, an ability to cure this deficiency. As such, we are compelled to reach but one conclusion: this pleading was appellant’s best effort, and granting him an opportunity to amend would have been fruitless. Hence, we cannot find that the trial court abused its discretion in denying appellant leave to amend, and we uphold its decision to dismiss the complaint with prejudice.

The final issue raised on appeal concerns the trial judge’s refusal to recuse himself from hearing oral argument on the preliminary objections. Appellant contends that the petition for recusal filed the morning of October 15, 1985, immediately prior to oral argument, contained sufficient evidence of undue prejudice on the part of Judge Levy to compel his recusal. Once again, we find appellant’s contention lacking in merit.

Initially, we note that appellant would appear to have waived this issue for purposes of appeal.

As a starting point, the notice of appeal as filed indicates that the only order from which appellant is taking an appeal, is the order of October 16, 1985, granting appellees’ preliminary objections and dismissing the complaint. Appellant’s motion for recusal was denied orally in open court on October 15. More than thirty days have passed since that denial. As such, the time for taking an appeal has passed. Pa.R.A.P. 903(a). Furthermore, the docket entries do not indicate that the October 15 order was ever reduced to writing. An oral order of court is not appealable until it has been reduced to judgment and docketed by praecipe of a party. Pa.R.A.P. 301(c), (d). As this was never done, appellant has failed to take the appropriate procedural action to make the recusal order appealable.

However, setting aside the procedural problems this issue of recusal presents, we would be inclined to uphold the trial court’s decision on the merits anyway. A party petitioning for disqualification of a trial judge bears the burden of producing evidence establishing bias, prejudice, or unfairness necessitating recusal. Hall v. Hall, 333 Pa.Super. 483, 487, 482 A.2d 974, 976 (1984); Commonwealth v. Perry, 468 Pa. 515, 364 A.2d 312 (1976). Should the trial court find that the party seeking recusal has not met this burden, denial of the recusal motion is appropriate, and will not be reversed absent a clear abuse of discretion. Reilly by Reilly v. SEPTA, 507 Pa. 204, 220, 489 A.2d 1291, 1299 (1985). Appellant’s sole factual support for his allegations of prejudice relate to the trial judge’s denial of appellant’s motion to continue the October 15 argument, and a contempt citation issued in a previous unrelated matter. As with appellant’s allegations against Judge Hill, these allegations are mere recitations of unfavorable rulings against appellant, and clearly fail to satisfy the necessary burden.

Order affirmed.

      . Judge DiBona is one of two civil motions judges in the Philadelphia Court of Common Pleas.

      . Mr. Feingold also filed a written motion for recusal, but did not file it until the morning of the argument on the preliminary objections. As such, copies had not been received by either Judge Levy or opposing counsel, and opposing counsel had not been given the opportunity to file a written answer to the motion at the time of argument.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    521 A.2d 40
    COMMONWEALTH of Pennsylvania v. Kenneth SCOFIELD, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 1, 1986.
    Filed Feb. 12, 1987.

      John Packel, Chief, Appeals, Assistant Public Defender, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   TAMILIA, Judge:

This is a consolidated appeal from judgment of sentence entered after the court, sitting without a jury, convicted appellant, Kenneth Scofield, of aggravated assault and recklessly endangering another person, and acquitted him of driving under the influence of alcohol. Appellant was sentenced to twenty-nine (29) to fifty-eight (58) months imprisonment on work release, to be followed by one (1) year of probation. Appellant’s conviction of reckless endangerment merged with the aggravated assault charge for sentencing purposes.

The facts of this case, as accurately set forth by the court below, are as follows:

On February 8, 1985, at approximately 10:00 p.m., Scofield was driving a brown Chevrolet north on the 3900 block of Broad Street in Philadelphia. At that time, George Munroe (“Munroe”), a cab driver, was travelling south on Broad Street in his cab scanning the area for potential fares. Munroe noticed Lamont Skipworth (“Skipworth”) walking on the pavement on the east side of Broad Street. Munroe’s attention was then drawn to Scofield’s vehicle because he noticed sparks that were caused by Scofield’s car scraping up against the left front bumper that was parked on the east side of Broad Street facing north in the parking lane. Scofield’s vehicle traveled another ten feet in this manner before swerving onto the sidewalk and striking a building. At this point Mun-roe lost sight of Skipworth. Munroe then saw Skipworth under the right front fender of Scofield’s vehicle. Mun-roe approached Scofield’s car and told him to “cut the car off.” Scofield said, “Look brother, give me a chance, leave me alone, I am all fucked up.” Munroe attempted to put his hand inside the car in order to turn off the ignition at which point Scofield became belligerent, hitting at Munroe and attempting to bite him. Scofield then reved the engine and tried unsuccussfully to put his car in reverse. His efforts were thwarted by a flat tire which his vehicle sustained during the incident. Scofield was able to move the car away from the building but it then came to rest against a nearby tree.
It was subsequently determined that Skipworth was severely injured as a result of the accident necessitating amputation of one of his legs. He required hospitalization for a period of three months.

(Slip Op. Temin, J., 8/18/86, pp. 2, 3).

Appellant now contends the evidence was insufficient to support his convictions of aggravated assault and recklessly endangering another person as the requisite mens rea of recklessness was not established. Appellant claims the evidence establishes “no more than his role as the driver of a vehicle that went out of control and struck a pedestrian, resulting in serious injury.” (Appellant’s brief at p. 8). The injuries were so severe as to require the amputation of the victim’s leg and hospitalization for three months.

In evaluating the sufficiency of the evidence, we must view all the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth in order to determine if the evidence was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Hamilton, 339 Pa.Super. 1, 488 A.2d 277 (1985).

Appellant was charged with violation of 18 Pa.C.S.A. § 2702(a)(1) and as such, the Commonwealth must “establish beyond a reasonable doubt that appellant attempted] to cause serious bodily injury to another, or cause[d] such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life.” Commonwealth v. Rohach, 344 Pa.Super. 229, 233, 496 A.2d 768, 770 (1985).

At 18 Pa.C.S.A. § 302(b)(3), the term “reckless” is defined as follows:

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree, that considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation, from the standard of conduct that a reasonable person would observe in the actor’s situation.

Appellant’s claim that his actions were consistent with mere negligent conduct is belied by the evidence produced at trial. As stated by the court below:

The record in this case is replete with evidence that Scofield operated his car in an intentionally reckless manner. Immediately prior to the accident he was observed driving his car so that it scraped up against the side of a parked car hard enough to produce sparks after which he swerved onto the sidewalk and struck a building. Additionally, his actions immediately following the accident demonstrate that he was conscious and aware of what he was doing. Not only did he attempt to prevent Munroe from turning off his ignition, he also attempted to shift his car in reverse and drive away. The manner in which the car was observed being driven prior to the accident was sufficient to establish the element of recklessness and Scofield’s actions following the accident were sufficient to establish that his actions were intentionaly in that he was fully aware of what was going on.

(Slip Op. at 5-6). Evidence that appellant intended to run over Skipworth is not necessary to sustain appellant’s convictions.

As stated in Commonwealth v. Raspa, 138 Pa.Super. 26, 29, 9 A.2d 925, 927 (1939):

In Com. v. Coccodralli, 74 Pa.Super. 324, the evidence was found to be sufficient to warrant a finding that the defendant had driven his truck in a manner which manifestly and necessarily imperiled the lives and limbs of other persons lawfully upon the street, and it was held that these facts raised a legal implication of malice though the defendant was not actuated by express malice and did not consciously intend to injure anyone. From proof that the operator of a car was willfully driving in a manner which involved reckless disregard for the safety of others lawfully using the streets, the necessary intent may be inferred ...

We would go a step further than the trial judge in ascribing intentionally reckless behavior to the appellant. While the court correctly held that the evidence was insufficient to find the appellant guilty of driving under the influence of alcohol or a controlled substance 75 Pa.C.S.A. § 3731, the stipulation on the record established that appellant, upon testing, exhibited both amobarbital and secobarbital in his urine, (T.T 70 1/6-10/86, p. 70), and upon being administered a breathalyzer test, it produced a reading of .004. Considering this evidence and despite testimony from the officer conducting the onsite investigation, that appellant had an odor of alcohol on his breath, spoke with a thick tongue, had a hard time standing and had to be helped away from the vehicle, and in his opinion, the appellant was under the influence of alcohol and/or some other kind of substance, the court refused to find he was driving under the influence. This was proper as 75 Pa.C.S.A. § 1547(d) Presumptions from amount of alcohol, provides that if a breathalyzer or blood test produces a result of 0.05 per cent or less, it shall be presumed that the person was not under the influence of alcohol for purposes of driving under the influence charges. At an earlier time, before routine acceptance of scientific testing to establish a base line for driving under the influence, the observations of the officer and the behavior noted by the eyewitness, as well as the nature of the accident would have been sufficient to establish a case of driving under the influence. Commonwealth v. Mummert, 183 Pa.Super. 638, 133 A.2d 301 (1957). (Although a drunkometer was for the first time accepted as evidence in Pennsylvania, any evidence that a person was under the influence, to the degree that it tended to deprive one of clearness of intellect and control he would otherwise possess, was admissible.) The additional element now incorporated in the charge, “incapable of safe driving,” required a higher degree of proof which could be convincingly established through legislatively approved scientific testing of breath or blood. This did not rule out, however, consideration of other evidence. 75 Pa.C.S.A. 1547(e). Under the present statute, while the higher standard of proof is required to establish driving under the influence, circumstantial evidence is admissible to prove various elements of the charge. Evidence that at 3:30 a.m. defendant’s van was parked with the engine running and transmission in gear and lights on, with defendant who reeked of alcohol asleep at the wheel, was sufficient to go to the jury on whether or not the car was in motion as required by statute. Commonwealth v. Matsinger, 288 Pa.Super. 271, 388, 431 A.2d 1043 (1981). We have held that although breathalyzer evidence should be suppressed, other evidence of intoxication and incapacity for safe driving was admissible and could sustain a conviction. Commonwealth v. Richardson, 307 Pa.Super. 191, 452 A.2d 1379 (1982); Commonwealth v. Slout, 288 Pa.Super. 471, 432 A.2d 609 (1981). Similarly, while evidence was not sufficient to hold the defendant for trial on driving under the influence, the evidence that the underlying traffic offense charged could not be established did not prevent prosecution for homicide by vehicle, when it could be inferred that defendant was driving on the wrong side of the road when the accident occurred. Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980).

Thus while driving under the influence specifically presents special problems of proof, the fact that some degree of intoxication was present is relevant in considering whether the elements of related offenses have been established. We would hold that the observations of the officer and witness on the record and the evidence from the urinalysis and breathalyzer were sufficient to establish that the defendant was suffering from some degree of alcohol/drug intoxication. While evidence of drinking is alone insufficient to establish driving under the influence, Commonwealth v. Griscavage, 512 Pa. 540, 517 A.2d 1256 (1986), it most certainly may be considered in determining whether the appellant was driving while consciously disregarding a substantial and unjustifiable risk of injury to others. More specifically, the causal connection between the ingestion of alcohol with or after the use of drugs, capable of an enhancement effect beyond what either alone might produce, is culpable recklessness. It must be presumed that if appellant was ingesting secobarbital or amobarbital pursuant to a doctor’s prescription, he had been informed of the danger of driving with such drugs in his system or taking alcohol in combination with the drugs. This alone was an act of intentional recklessness, and it is foreseeable by an ordinary person that driving an automobile under such circumstances would imperil the lives of others. The observations of the behavior of the appellant immediately before and after striking the victim supports the effect of substance on his behavior and establishes the nexus between the reckless behavior of ingestion and the subsequent serious injury to the victim.

The facts belie appellant’s claim that he merely “lost control” of his automobile and clearly establish that the defendant, in driving his automobile after ingesting drugs and alcohol and in the manner in which he drove immediately prior to the accident, was driving in an intentionally reckless manner. See Commonwealth v. Setsodi, 303 Pa. Super. 482, 450 A.2d 29 (1982) (where intentional reckless operation of a car results in death, involuntary manslaughter conviction upheld). We find that although this is a case of first impression as it relates to aggravated assault with an automobile, the principles applied in involuntary manslaughter cases, when intentional recklessness is involved, would also apply here.

Judgment of sentence is affirmed.

      . 18 Pa.C.S.A. § 2702.

      . 18 Pa.C.S.A. § 2705.

      . § 1547. Chemical test to determine amount of alcohol
      (e) Other evidence admissible.

      . In that case, the Supreme Court held, in reversing this Court, that the Superior Court erred in not looking at the Commonwealth’s evidence in the aggregate. Instead, they chose to atomize the evidence, considering each piece in isolation without relation to the whole picture. Under Griscavage above, it is likely that appellant would have been found guilty of driving under the influence.


author: HOFFMAN, Judge:

text:
    521 A.2d 44
    COMMONWEALTH of Pennsylvania v. Scott A. WEIK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 24, 1986.
    Filed Feb. 10, 1987.

      Peter D. Maynard, Reading, for appellant.
    Rosamond A. Presby, Assistant District Attorney, Lebanon, for Com., appellee.
    Before TAMILIA, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This is an appeal from the judgment of sentence for maintaining a slot machine for gambling purposes, 18 Pa.C. S.A. § 5513(a)(1). Appellant contends that the lower court erred in refusing to suppress evidence seized by police following a warrantless entry into a building on his property. We agree and, accordingly, vacate the judgment of sentence and remand for a new trial.

Appellant was charged with maintaining a slot machine for gambling purposes, in violation of 18 Pa.C.S.A. § 5513(a)(1). Prior to trial, appellant moved to suppress the slot machine that was seized pursuant to a warrantless entry of a building on his property. The motion was denied, and appellant was later found guilty following a jury trial. Appellant was sentenced to a twenty-three-month term of probation, and this appeal followed.

The scope of our review of the denial of a motion for suppression of evidence is firmly established. The suppression court must make findings of fact and conclusions of law in determining whether evidence was obtained in violation of the defendant’s rights. The burden of proving the admissibility of the evidence lies on the Commonwealth’s shoulders; the standard by which the court determines the legitimacy of the search and seizure, and hence the admissibility of the evidence whose suppression has been moved, is that of the preponderance of the evidence____ On appeal we must determine whether the record supports the factual findings of the suppression court, as well as determine the reasonability of any inferences and legal conclusions drawn from the court’s findings of fact____
In considering whether the record supports the court’s finding [sic] of facts we must restrict ourselves to reviewing the evidence presented by the Commonwealth and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted---- In addition, where the suppression court’s findings are amply supported by the record they may not be disturbed on appeal____

Commonwealth v. Eliff, 300 Pa.Superior Ct. 423, 428-29, 446 A.2d 927, 929-30 (1982) (citations omitted). See also Commonwealth v. Rispo, 338 Pa.Superior Ct. 225, 227-28, 487 A.2d 937, 938 (1985).

Viewed in the light most favorable to the Commonwealth, the facts are as follows:

In the early morning hours of April 28, 1985, two North Lebanon Township police officers saw a bonfire on appellant’s property. Suspecting that the fire was in violation of a local ordinance, the officers returned to the police station, discovered that appellant did not have a permit for such a fire, and determined that he was in violation of the ordinance. The officers therefore returned to appellant’s property, saw that the fire was still burning, and entered onto the property to tell appellant to extinguish it. A house, a detached garage, and a detached shed are located on appellant’s property. As they approached, the officers saw appellant walk away from the fire and enter the shed. There were windows in the shed which were not covered by curtains. Through the uncovered windows, the officers saw three slot machines against a wall, and saw a companion of appellant attempting to cover the machines. Appellant then walked out of the shed and approached the officers. The officers told appellant that they were there to investigate the fire, but that they had also seen the slot machines. The officers then announced that they were going in to take a closer look at the machines and, over appellant’s objection, entered the shed and seized the machines.

Appellant contends that his fourth amendment rights were violated when the police officers entered his building without a warrant and seized his slot machines. “In general, where practical the police are required to obtain a search warrant. Warrantless searches are per se unreasonable, subject only to a few, limited exceptions.” Commonwealth v. Gabrielle, 269 Pa.Superior Ct. 338, 344-45, 409 A.2d 1173, 1177 (1979) (citations omitted). See also Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978); Commonwealth v. Rispo, supra, 338 Pa.Superior Ct. at 230, 487 A.2d at 939; Commonwealth v. Morrison, 275 Pa.Superior Ct. 454, 457, 418 A.2d 1378, 1379 (1980) (en banc). When police officers who are “justifiably at the scene [see] contraband in plain view,” however, the observation “is not a search within the meaning of the Fourth Amendment____[and] no warrant is required.” Commonwealth v. Getz, 236 Pa.Superior Ct. 469, 472, 344 A.2d 686, 687 (1975) (citations omitted).

The Commonwealth argues, and the lower court held, that the warrantless seizure here was lawful because the officers were legitimately on appellant’s property, and then saw the machines in plain view. “Under the plain view doctrine, the cases fall into two distinct categories.” Com monwealth v. Chiesa, 329 Pa.Superior Ct. 401, 405, 478 A.2d 850, 852 (1984). The first line of cases

involves those situations in which the “view” takes place after an intrusion into a constitutionally protected area. Under this line of cases if the original intrusion is justified, such as by consent, hot pursuit, warrant or other, objects sighted in plain view will be admissible, ... so long as the view was inadvertent.

Commonwealth v. Adams, 234 Pa.Superior Ct. 475, 479, 341 A.2d 206, 208 (1975) (emphasis in original) (citations omitted). See also Commonwealth v. Chiesa, supra. The second line of cases

involves situations where the view takes place before any intrusion into a constitutionally protected area. These cases are distinguishable from the first line of cases in two respects. First, because no intrusion into a constitutionally protected area takes place, fourth amendment rights are not involved and the requirement that the view be inadvertent is not applicable. Secondly, the warrant-less seizure of evidence cannot be justified by the plain view alone____
It is generally held that the mere looking at that which is open to view is not a search____ [Thus,] [i]n those situations in which no intrusion into a constitutionally protected area occurs, no search is made____
The second distinction in this line of cases is that the warrantless seizure of evidence cannot be justified by the plain view alone. This was clearly stated in Coolidge v. New Hampshire, [403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ]. “[P]lain view alone is never enough to justify the warrantless seizure of evidence---- [E]ven where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” Id. at 468 (emphasis in original). Thus, in those cases in which the view precedes an intrusion into a constitutionally protected area the ojficer must be able to rely upon exigent circumstances ... or he must obtain a warrant before he seizes the evidence____ This rule is contrary to the rule in the after-intrusion line of cases. In those cases because the justifiable intrusion already has occurred, no further intrusion is occasioned by the seizure of evidence which is in plain view and the seizure is permitted without more____ In the pre-intrusion view cases no intrusion is occasioned by the view and the intrusion necessary to seize evidence must be justified by a warrant or one of the exceptions to the warrant requirement....

Commonwealth v. Adams, supra, 234 Pa.Superior Ct. at 480-82, 341 A.2d at 210-11 (emphasis added) (citations omitted). In applying the above guidelines, we must keep in mind that

the application of Fourth Amendment coverage must often be analyzed separately with respect to the initial observation and subsequent seizure of the same article. Thus, while the visual observation of an article may not violate any reasonable expectation of privacy, and thus obviate the application of the Fourth Amendment, the seizure of the same article may trigger the protection of the Fourth Amendment.

Commonwealth v. Milyak, 508 Pa. 2, 6, 493 A.2d 1346, 1348 (1985) (citations omitted).

In summary, then, analysis of the lawfulness of the seizure in the instant case requires us to determine whether the record supports the suppression court’s findings that (1) the police had legitimate reason to be on appellant’s property when they viewed the machines; (2) their sighting of the machines falls under the plain view doctrine; and (3) the subsequent entry and seizure of the machines was lawful under the plain view doctrine. Here, upon review of the suppression testimony, we agree with the Commonwealth and the lower court that the officers were legitimately on the premises and that, once the officers were on appellant’s property, they saw the machines in plain view. We find, however, that the lower court erred in assuming that the officers’ mere sighting of the machines justified the subsequent warrantless entry into the shed and seizure of the slot machines.

On the night in question, the officers had reason to believe that appellant was in violation of a local ordinance which prohibits the burning of recreational fires at night. N.T. August 6, 1985 at 5-6. They then properly entered upon appellant’s property to enforce the ordinance. Id. at 6. Once the officers were thus legitimately on the premises to enforce the ordinance, they saw, from a distance of about fifty feet, id. at 29, the slot machines, which were plainly visible through the uncurtained window in the shed. Id. at 7. Because the officers were lawfully in position to make this view, the observation was not an “intrusion into a constitutionally protected area,” Commonwealth v. Adams, supra, and thus was not a search within the meaning of the fourth amendment.

Our finding that the initial observation was proper does not end our analysis of the legality of the entry and seizure, however. Commonwealth v. Milyak, supra. Because the officers’ observation of the machines occurred before their intrusion into appellant’s shed, this case falls within the second category of cases outlined in Commonwealth v. Adams, supra. Accordingly, the warrantless seizure cannot be justified by the plain view doctrine alone; rather, the seizure here is justifiable only if exigent circumstances excuse the officers’ failure to get a warrant. Id.

The lower court did not address the question whether exigent circumstances existed to justify the officers’ failure to obtain a search warrant. The Commonwealth argues, however, that exigent circumstances did exist because: (1) the machines were evidence of a crime; (2) they were highly mobile; (3) people on the property attempted to hide the machines; and (4) the “incident had the potential for developing into an ugly scene.” Brief of the Commonwealth at 7. We disagree.

Exigent circumstances arise only “where the need for prompt police action is imperative, either because evidence sought to be preserved is likely to be destroyed or secreted from investigation, or because the officer must protect himself from danger to his person by checking for concealed weapons.” Commonwealth v. Holzer, supra, 480 Pa. at 102, 389 A.2d at 106 (footnote omitted). See also Commonwealth v. Rispo, supra, 338 Pa.Superior Ct. at 230-31, 487 A.2d at 939; Commonwealth v. Hinkson, 315 Pa.Superior Ct. 23, 27, 461 A.2d 616, 618 (1983) (allocatur denied). The burden is on the Commonwealth to “present clear and convincing evidence that the circumstances surrounding the opportunity to search were truly exigent ... and that the exigency was in no way attributable to the decision by the police to forego seeking a warrant.” Commonwealth v. Davis, 270 Pa.Superior Ct. 202, 206, 411 A.2d 250, 252 (1979). See also Commonwealth v. Rispo, supra, 338 Pa.Superior Ct. at 231, 487 A.2d at 940. Moreover, “[a]ll decisions made pursuant to the exigent circumstances exception must be made cautiously, for it is an exception which by its nature can very easily swallow the rule unless applied in only restricted circumstances.” Commonwealth v. Daniels, 280 Pa.Superior Ct. 278, 286, 421 A.2d 721, 725 (1980).

Here, a review of the suppression testimony convinces us that the Commonwealth did not meet its burden of showing that an exigency existed. Two officers entered upon appellant’s property to investigate the bonfire. One of the officers, Kim Wolfe, testified in detail about the entry of the shed. Wolfe testified that, shortly after he saw the machines in the shed, appellant exited the shed and approached the patrol car. N.T. August 6, 1985 at 7. Wolfe met appellant and “told him that the reason we were there was relative to the fire that was burning on his property. However, I then mentioned that I had observed slot machines inside the shed.” Id. Wolfe continued that:

I told [appellant] that I was going to be going into the shed because I had observed them from outside the shed to inspect the machines more closely. At that time, I walked towards the shed to enter through the door and I met with objection from [appellant] at that time.
Although [appellant] objected to my going into the shed, I told him that I would be going into the shed. I entered the shed followed by [appellant] and Patrolman Leahy.

Id. at 8. Once in the building, Wolfe uncovered the machines and “announce[d] ... that I would be confiscating the machines.” Id. at 8-9. On cross-examination, Officer Wolfe admitted that, at the time he seized the machines, he did not know if they were operable, and thus seized them only “because of a possibility that they were being used illegally as gambling devices.” Id. at 23. The officer further admitted that he made no attempt to obtain a search warrant, even though he was aware that a district justice was available to issue one, his car and radio were operable, and another officer was with him and available to remain on the premises until he obtained a search warrant. Id. at 33-34. In addition, the officer admitted that he never requested backup police units to help secure the premises while he obtained a search warrant, even though he was aware that such units were available on the night in question. Id. at 45-47. Finally, the officer admitted that he did not have appellent’s consent to enter the building, d. at 44.

There is no evidence on this record that the police officers would have been endangered if they had not entered promptly. The crime that was involved was not a violent one, and, at the time the police entered, there was no indication that appellant or anybody else on the premises was armed or presented any danger to the officers. The instant case is thus distinguishable from prior cases where we have found exigent circumstances based on the existence of some threat or danger to police officers or the public. See, e.g., Commonwealth v. Maxwell, 505 Pa. 152, 163, 477 A.2d 1309, 1315 (1984) (exigent circumstances exist where police have reason to believe that there is a life-threatening emergency); Commonwealth v. Curry 343 Pa. Superior Ct. 400, 408, 494 A.2d 1146, 1150 (1985) (exigent circumstances exist where police investigate dangerous shooting incident which had just occurred, and where police find gun while securing premises after arresting defendant on porch); Commonwealth v. Hinkson, 315 Pa.Superior Ct. 23, 28-29, 461 A.2d 616, 618-19 (1983) (exigent circumstances exist where man is shot in front of appellant’s house, appellant has reputation for using guns, only two of five shots fired are accounted for, other family members present in house, and thus police could conclude that person in house may be hurt, or hostage situation may exist).

There is a similar lack of evidence that there was a likelihood that, if the officers did not seize the machine immediately, it could have been destroyed or secreted from investigation. The Commonwealth’s argument that such a likelihood existed amounts to no more than an assertion that, because the machines were mobile, and because people were on the premises, the evidence could have been removed while the officers obtained a search warrant. This Court has answered the Commonwealth’s argument in Commonwealth v. Anderson, 272 Pa.Superior Ct. 167, 414 A.2d 1060 (1979) where we held both that “[t]he presence of persons in the house other than the defendant, does not of itself justify an inference that evidence will be destroyed or removed,” and that, “[i]f there was a fear that [evidence] would be removed by [someone in the house], then one of the officers could have remained to guard the premises while the [other] obtained a warrant.” Id., 272 Pa.Superior Ct. at 171, 414 A.2d at 1062. See also Commonwealth v. Rispo, supra, 338 Pa.Superior Ct. at 236, 487 A.2d at 942-43 (exigent circumstances do not exist where, even though persons are present on premises, the residence could be watched while police obtained warrant, and there was no evidence that emergency existed whereby evidence might be destroyed while police obtained warrant). Here, two police officers were present and Officer Wolfe admitted that backup units were available should the officers need more help in securing the premises. Thus, we conclude that the police officers could easily have prevented evidence from being destroyed while they obtained a search warrant.

In short, the Commonwealth failed to introduce any evidence that there was a threat of danger to the public or to police if the officers did not act immediately, nor did the Commonwealth show that the slot machines were likely to be destroyed or secreted while the officers obtained a warrant. Accordingly, we hold that the warrantless entry into appellant’s building and seizure of the slot machine was not justified by exigent circumstances. Because the machine was seized in violation of appellant’s constitutional rights, it should have been suppressed by the lower court. See Commonwealth v. Johnson, 474 Pa. 512, 520, 379 A.2d 72, 75 (1977); Commonwealth v. Rispo, supra.

For the foregoing reasons, we vacate appellant’s judgment of sentence and remand for a new trial.

Vacated and remanded. Jurisdiction is relinquished.

      . Appellant also contends that the verdict was contrary to the evidence. Appellant attempted to raise this issue with the following, boilerplate statement: “1. The verdict was contrary to the evidence.” Motion For New Trial Or Arrest Of Judgment at 1. Because the motion does not say why or in what respect the verdict was contrary to the evidence, appellant has not preserved this issue for appellate review. See Commonwealth v. Holmes, 315 Pa.Superior Ct. 256, 267-68, 461 A.2d 1268, 1274 (1983) (post-verdict motion will not preserve issue for appellate review unless it specifies in what respect verdict is contrary to evidence).
      Appellant last contends that he is entitled to a new trial because the verdict resulted from prosecutorial misconduct. Because we have held that appellant is entitled to a new trial because the lower court should have suppressed the evidence seized from his shed, we need not address this contention.


author: CAVANAUGH, Judge: JOHNSON, Judge,

text:
    521 A.2d 49
    Joann ROSIPAL, an Individual, Appellee, v. MONTGOMERY WARD, a Corporation, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 3, 1986.
    Filed Feb. 12, 1987.

      Louis C. Long, Pittsburgh, for appellant.
    Kenneth A. Roos, Philadelphia, for appellee.
    Before CAVANAUGH, WIEAND and JOHNSON, JJ.
   CAVANAUGH, Judge:

In this case, the appellee, Joann Rosipal, was allegedly injured on the job while an employee of the appellant, Montgomery Ward. The appellant filed a notice of compensation payable and initiated wage indemnity payments. Subsequently, the appellant filed a petition for termination of compensation under the Workmen’s Compensation Act. The petition was supported by a physician’s affidavit of recovery. Following several hearings before a workmen’s compensation referee, the referee held that the appellee had sustained a work related injury and her compensation benefits were reinstated.

The appellee then commenced a civil action in Allegheny County alleging economic duress, intentional infliction of emotional distress, procuring a “false, fraudulent and perjured affidavit” and breach of compensation agreement. The appellant filed preliminary objections in the nature of a demurrer which were dismissed by the court below. The court refused to certify the interlocutory order to this court. On March 14, 1986, this Court granted the appellant’s petition for review which permits us to consider the merits of the underlying appeal. Toll v. Toll, 293 Pa.Super. 549, 439 A.2d 712 (1981).

The Pennsylvania Workermens’ Compensation Act, 77 Pa.C.S. § 481, provides that the “liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employees ...” The Act further provides in § 511 that payment of compensation is not required after disability shall cease. It is further provided in § 772:

A referee designated by the department may, at any time, modify, reinstate, suspend, or terminate a notice of compensation payable, an original or supplemental agreement or an award of the department or its referee, upon petition filed by either party with the department, upon proof that the disability of an injured employe has increased, decreased, recurred, or has temporarily or finally ceased, or that the status of any dependent has changed.

The appellant complied with the statute in petitioning to have the compensation terminated. If there were a defense to the petition to terminate, the appellee had the opportunity to raise it in the proceedings before the referee and, in fact, she did prevail.

The Workmens’ Compensation Act covers all injuries and the exclusivity clause in 77 Pa.C.S. § 481 bars all civil actions flowing from work related injuries. Kline v. Arden H. Vemer Co., 503 Pa. 251, 469 A.2d 158 (1983); Christ- man v. Dravo Corp., 319 Pa.Super. 378, 466 A.2d 209 (1983). The court below in overruling the appellant’s demurrer, concluded that the appellee’s claim “did not arise from an employment related accident such as would be covered by the Workmen’s Compensation Act.” We disagree with this analysis as the underlying factor in the present action is the alleged injury suffered by the employee while she was acting as a security guard. In the absence of the injury, there would have been no workmen’s compensation proceedings out of which the instant civil action arose.

We turn our attention to the issue of whether the complaint filed below set forth a cause of action. Preliminary objections in the nature of a demurrer admit as true all well pleaded factual averments and all inferences fairly deducible therefrom, but not conclusions of law. It is in this light that the complaint must be examined to determine whether it sets forth a cause of action which, if proved by the appellee, would entitle her to the relief she seeks. A preliminary objection in the nature of a demurrer is properly sustained where the complaint has failed to set forth a cause of action. Cunningham v. Prudential Property & Casualty Insurance Co., 340 Pa.Super. 130, 489 A.2d 875 (1985).

The Complaint alleged in Count I that the appellant caused her “economic duress” by intentionally and knowingly terminating workmen’s compensation benefits. Count II alleged that the appellant intentionally and knowingly terminated workmen’s compensation benefits to the appellee in order to cause her extreme and severe and emotional distress. Count III alleges that the appellant wilfully and maliciously caused a “false, fraudulent and perjured affidavit” to be taken to the Petition to Review Nature of Compensation Agreement. Finally, Count IV alleged that the appellant breached the compensation agreement. All of these allegations relate to the workmen’s compensation proceedings in which the appellant followed the procedure set forth in the Act. It is not claimed that the appellant failed to comply with the provisions of the Workmen’s Compensation Act, nor that it failed to pay all of the benefits it was required to under the Act. The appellee has failed to state a cause of action in her complaint as all of the allegations have as the ultimate basis an injury compensable under the Workmen’s Compensation Act and her claims must be considered within the framework of the Act. It is the duty of the plaintiff to set forth the material facts on which the cause of action is based and no cognizable cause of action has been set forth in this complaint. See Pa.R.C.P. 1019. It is not the duty of this court to construct a cause of action for the plaintiff.

Order reversed. The appellant’s demurrer is sustained and the complaint is dismissed.

JOHNSON, J., files a dissenting opinion.

Before CAVANAUGH, WIEAND and JOHNSON, JJ.

JOHNSON, Judge,

dissenting:

I cannot agree with the majority opinion. The trial court correctly dismissed the preliminary objections in the nature of a demurrer raised by appellant Montgomery Ward. The exclusive protection provided by the Workman’s Compensation Act to employers from an employee’s suit for injury arising in the course of employment does not exclude suit by the employee for an intentional tort. In Jones v. P.M.A. Insurance Co., 343 Pa.Super. 411, 495 A.2d 203 (1985), we upheld the continuing validity of the holding in Readinger v. Gotschall, 201 Pa.Super. 134, 191 A.2d 694 (1963), which allows such actions. The injury of which appellee Rosipal complains is not to her physical condition but to her legal rights under the Workman’s Compensation Act, 77 P.S. § 1 et seq. An injury to legal rights does not arise out of, and in the course of, employment. It is an independent injury. I agree with the majority of jurisdictions which hold an intentional tort of this nature to give rise to an independent cause of action. See generally; 2A Larson Workman’s Compensation § 68.32(b) and the cases cited therein. Accordingly, I dissent.

Rosipal was injured on her employer’s premises on February 7, 1983. The alleged tortious actions at issue in this litigation first occurred on April 18, 1983. On that date Montgomery Ward and Aetna Insurance Company filed a Petition for Termination of Compensation alleging that Rosipal had filed a fraudulent compensation claim.

The Pennsylvania Workmen’s Compensation statute, as amended in 1972, provides:

[E]very employer shall be liable for compensation for personal injury to, or for the death of each employe, by an injury in the course of his employment, and such compensation shall be paid in all cases by the employer, without regard to negligence ...

77 Pa.C.S. § 431. (emphasis added). Furthermore, 77 Pa. C.S. § 411 provides in part that,

§ 411. “Injury,” “personal injury,” and “injury arising in the course of his employment” defined
The term “injury arising in the course of his employment,” ____shall include all other injuries sustained while the employee is actually engaged in the furtherance of the business or affairs of the employer, whether employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employee, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.
(emphasis added)

77 Pa.C.S. § 411.

This action did not arise in the course of Rosipal’s employment. The argument that an employee is actually engaged in the furtherance of the business or affairs of the employer as a result of being the object of an intentional tortious injury contravenes sound reason. “(H)armful conduct is considered more reprehensible if intentional---- Even a dog distinguishes between being stumbled over and being kicked.” O.W. Holmes, the Common Law 3 (1881).

The majority holds that Rosipal’s present litigation is barred by the exclusivity of the Act: Had she not been an employee of Montgomery Ward, she would not have filed this action, i.e., “but for” her previous employment, the present litigation would not have ensued. This is a proximate cause test. Modern authorities reject the application of proximate cause to Worker’s Compensation Law. 1 Larson Workman’s Compensation § 6.60. As a legal concept, proximate cause is founded in causation. The beginning of proximate cause is always an act from which there are consequences. In Workman’s Compensation Law, the beginning point is not an act but a condition, i.e., employment, out of which the event arises; accordingly, the operative criterion is a connection with employment. The injury Rosipal suffered on February 7, 1983 falls within this category. It is an injury for which the Workman’s Compensation Act is the exclusive remedy. Rosipal was no longer an employee of Montgomery Ward on April 11, 1983, the date of the first of the alleged intentional torts. Therefore, she is not barred from pursuing her remedies at common law for the alleged second set of injuries.

The standard of review of an appellate court in passing on the challenge to the sustaining of a preliminary objection in the nature of a demurrer was stated in Kyle v. McNamara and Criste, 506 Pa. 631, 487 A.2d 814 (1985):

All material facts set forth in the Complaint as well as all inferences reasonably deducible therefrom are admitted as true for [the purpose of this review]. The question presented by the demurrer is whether on the facts averred the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

506 Pa. 631, 634, 487 A.2d at 816 (citations omitted).

The only preliminary objection in the nature of a demurrer raised by Montgomery Ward is that Rosipal’s Complaint fails to state a claim upon which relief may be granted. Montgomery Ward contends that the Workman’s Compensation Act is the exclusive statutory remedy for all counts raised in her pleadings. Our supreme court has recently held in LeFlar v. Gulf Creek Industrial Park #2, 511 Pa. 574, 581, 515 A.2d 875, 879 (1986) that the Workman’s Compensation Act deprives the Common Pleas Court of jurisdiction of common law actions in tort for negligence against employers. The Statutory Construction Act, 1 Pa. C.S. § 1928(b)(7), requires strict construction of provisions decreasing the jurisdiction of a court of record, which would include the Court of Common Pleas. See, 42 Pa.C.S. 301, 42 Pa.C.S. 901. Accordingly, the LeFlar holding is limited to negligent torts.

Furthermore, under Pennsylvania Rule of Civil Procedure 1030, immunity from suit is an affirmative defense which must be pled under new matter. See Pa.R.C.P. 1030. It is not properly raised as a matter which is the subject of preliminary objections. Pa.R.C.P. 1017(b)(4). For this reason appellant has raised no valid objection to Rosipal’s complaint which would be properly before this court. Nevertheless, as I view the facts stated in the complaint under the applicable standard of review, appellee has pleaded facts sufficient to allow the action to proceed. Rosipal has met the threshold requirements for a cause of action for wrongful use of civil proceedings under 42 Pa.C.S. § 8351. Accordingly, I dissent.

      . In Higgins v. Clearing Machine Corp., 344 Pa.Super. 325, 496 A.2d 818 (1985) we noted in footnote 5 that the issue as to whether an employer is insulated by the Workmen’s Compensation Act from intentional, wanton and wilful misconduct to be unsettled in this Commonwealth. However, in a decision by the Court of Common Pleas of Allegheny County, Pingieleski v. United Parcel Service, 133 Pittsburgh L.J. 342 (1985) affirmed per curiam, 344 Pa.Super. 325, 508 A.2d 346 (1986) it was held that even if it is alleged that an injury was intentionally caused by the employer, the injury would be compensable solely under the Workmen’s Compensation Act.

      . The court below relied on the case of Reed v. Hartford Accident and Indemnity Co., 367 F.Supp. 134 (E.D.Pa.1973) as being analogous to our case. The Reed case is not applicable as it involved a claim by an employee against his employer’s insurance carrier. The court noted at 367 F.Supp. 135: "This present action is based on Hartford’s alleged independent intentional torts and breach of their agreement, unrelated to Reed’s employment ... [Tjhis is a completely independent cause of action, arising out of the relationship between insured and insurer qua insurer.”

      . Appellee alleged in paragraph 18 of her complaint:
      18. On August 8, 1983, MONTGOMERY WARD AND Aetna filed a petition for Termination of Compensation alleging that the claimant fully recovered from the injury on July 25, 1983. An automatic supersedeas was invoked as a physician’s affidavit of recovery accompanied this Petition.

      . The Workmen’s Compensation Act provides for improper suspension of benefits and provides:
      § 774.1. Improper suspension, etc. of payments; penalty
      Any insurer who suspends, terminates or decreases payments of compensation without submitting an agreement or supplemental agreement therefor as provided in section 408, or a final receipt as provided in section 434, or without filing a petition and either alleging that the employe has returned to work at his prior or increased earnings or where the petition alleges that the employe has fully recovered and is accompanied by an affidavit of a physician on a form prescribed by the department to that effect which is based upon an examination made within fifteen days of the filing of the petition or having requested and been granted a supersedeas as provided in this section, shall be subject to penalty as provided in section 435.


author: POPOVICH, Judge:

text:
    521 A.2d 53
    COMMONWEALTH of Pennsylvania, Appellant, v. Daniel L. LANAGER.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1986.
    Filed Feb. 11, 1987.

      Ernest J. DiSantis, Jr., Assistant District Attorney, Erie, for Commonwealth, appellant.
    John H. Moore, Erie, for appellee.
    Before CIRILLO, President Judge, and ROWLEY and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal by the Commonwealth from the orders of the Court of Common Pleas of Erie County granting the motion in arrest of judgment (at Nos. 1521 and 1651 of 1983) of the defendant/appellee, Daniel L. Lanager. We reverse.

The standard of review in such a case has been re-stated by this Court in Commonwealth v. Robinson, 351 Pa.Super. 309, 311-12, 505 A.2d 997, 998 (1986); viz.:

In reviewing an appeal from a trial court’s granting of motion in arrest of judgment, we must determine whether the evidence offered by the Commonwealth was legally sufficient to support the verdict. Commonwealth v. Froelich, 458 Pa. 104, 326 A.2d 364 (1974). To reach this determination, we accept all of the evidence and all reasonable inferences therefrom, upon which the fact-finder could have based the verdict; we can affirm the granting of a motion in arrest of judgment if, viewed in that manner, the evidence was nonetheless insufficient in law to find guilt beyond a reasonable doubt as to the crimes charged. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973). We must view the evidence in the light most favorable to the Commonwealth. Commonwealth v. Hazlett, 429 Pa. 476, 240 A.2d 555 (1968). Our task is the same whether the finder of fact was a jury or a judge sitting without a jury. Commonwealth v. Meadows, 232 Pa.Super. 292, 331 A.2d 827 (1974) [, aff'd 471 Pa. 201, 369 A.2d 1266 (1977)].

For ease of presentment, and with the preceding in mind, the facts underlying each of the two Informations will be discussed separately.

No. 1521 of 1983

At 3:30 p.m. on the 3rd of February, 1983, undercover narcotic Agents Shoup and Mohn were introduced to the defendant by a confidential informant (Marla). A discussion ensued in which the defendant was asked whether he could obtain some “sets”, which is street jargon for two Tylenol No. IV tablets and one Doriden tablet. The defendant stated he could obtain them and to follow him and Marla into Erie.

With Marla driving, the defendant stopped in front of the “Good Cook’s Bar and Restaurant”. The agents parked directly behind the defendant. As the agents sat in their vehicle, they could see as the defendant hailed a black male, later identified as Hardy Ray “Skeeter” Gowdy, and the two engaged in a conversation through the window on the passenger side where the defendant was seated. Gowdy entered the vehicle and sat directly behind the defendant. Then, the first vehicle pulled forward another one hundred feet with the agents following. Marla, thereafter, got out of the driver’s side, walked back to the agents and asked for thirty dollars to purchase some drugs. Agent Shoup complied and Marla returned to the lead vehicle.

By this time, Gowdy had exited Marla’s vehicle and was standing along the passenger side. Both agents testified to seeing Gowdy pull a plastic pill bottle from his jacket pocket. The bottle was opened and a quantity of white tablets were emptied by Gowdy into his own hand. These pills were observed being given to the defendant through the open passenger window.

The first bottle was closed and returned by Gowdy to his pocket. He then produced a second bottle of pills from his pocket, emptied a portion of its contents (white pills) into his hand and again handed them to the defendant through the open window. After Gowdy walked away, Agent Shoup walked to the driver’s side of Marla’s vehicle and observed a number of white tablets in the defendant’s left hand. When the agent asked, “... did we get them, were we able to get them the defendant said, “Yeah.”

The two vehicles proceeded to an open area to park. The confidential informant alighted from her vehicle and walked to the agents’ vehicle and handed Agent Mohn two “sets”, i.e., four Tylenol No. IV and two Doriden tablets. At this point, Agent Mohn walked up to where the defendant was seated and was advised by the defendant that he had to be very careful because certain individuals from Buffalo, who dealt in large quantities of “sets”, were after him as a result of a previous dealing he had with them. Also, he led the agent to believe that he was in possession of a weapon.

Agent Mohn returned to his vehicle and left the area with Agent Shoup. The pills were analyzed at the Pennsylvania State Police laboratory, and the results confirmed that the pills were controlled substances.

No. 1651 of 1983

At about 10:45 a.m. on the 11th of February, 1983, Agent Shoup phoned the defendant and inquired about obtaining “an additional quantity of some sets.” The defendant asked the agent to phone back later. The agent did so at 11:09 a.m. and was informed by the defendant that “he would be able to arrange a deal later that morning.” The agent was also asked to go to the defendant’s residence “to conduct the transaction.” The agent did so about 12:00 noon and found the defendant in the company of one Denny McGavits. The agent, as he was seated at the kitchen table, was patted down by the defendant “to make sure that [he] was not the police.” The two then conversed about the possibility of securing some “sets”. The defendant asked how many he wished to purchase. The agent indicated ten “sets” at a price of one hundred dollars. The defendant informed the agent that he was waiting for a girl to arrive (Marla). Once she arrived at 1:00 p.m., the defendant stated, "... we could go to conduct the transaction.”

With Marla driving, the defendant proceeded, again, to “Good Cook’s” bar and parked. The agent followed and had McGavits as a passenger.

From the agent’s vantage point behind the defendant, he saw the defendant exit Marla’s vehicle and speak briefly to a black male, but this individual continued walking. The defendant was then approached by a Curtis Henderson and the two spoke on the corner of the intersection. When the agent tried to get involved in the transaction, the defendant advised him to wait in the vehicle, that “he would handle everything ... take care of things”. The agent did so and could see the defendant and Henderson talking for several minutes. The two proceeded to Marla’s vehicle and Henderson informed the agent to follow the defendant. Henderson rode with the defendant and Marla about fifteen blocks and parked. The defendant and Henderson emerged, and the agent approached the two and was told by Henderson that he would have to wait as Henderson went to get the “sets”. Henderson returned within thirty minutes and everyone sat in Marla’s vehicle. Henderson, who was seated in the left, rear seat, instructed her to drive.

During the drive, Henderson turned to face the agent, who was seated in the right, rear position in the vehicle, and asked whether he still wanted the “sets”. The agent responded affirmatively and Henderson quoted the cost of one hundred dollars. The agent paid the money to Henderson. In turn, Henderson pulled out a small manila envelope from his coat pocket and counted ten tablets. Henderson gave them to McGavits to give to the agent since he was sitting between the two. Henderson pulled out another envelope and counted twenty white tablets, gave them to McGavits who gave them to the agent.

While everyone was still in the vehicle, but after the sale had transpired, the defendant, “... turned around in the front seat, faced [the agent] and requested that [the agent] give him something for arranging the deal.” The defendant indicated that he wanted drugs, e.g., half a “set”, and the agent refused. Instead, the agent gave the defendant ten dollars in “official” funds by placing it “on the car seat”. After the agent had exited the vehicle, the defendant walked up to him and remarked, “... it was a pretty good deal purchasing the ten sets for a hundred dollars— ” The agent did not agree and departed to have the tablets tested. The results showed that they were controlled substances.

At the conclusion of the Commonwealth’s case, the defendant’s motion to dismiss (demurrer) was denied.

The defendant took the stand in his own defense and contradicted the agents’ accounting of what transpired on the days in question, e.g., (as to No. 1521 of 1983), it was Marla who conducted the purchase of pills from Gowdy and the defendant never received anything from Gowdy as he (Gowdy) stood outside the vehicle; (as for No. 1651 of 1983), it was Marla who spoke to Henderson, and the agent and Henderson struck a deal between themselves without the defendant’s help. He also denied ever asking for any drugs or money from Agent Shoup in payment for setting up the sale/purchase.

The trial court, after listening to all the evidence, found the defendant guilty as charged. However, with the filing of a post-verdict motion seeking a new trial or arrest of judgment, the trial court altered its ruling. In an opinion filed on April 9, 1986, the trial court believed it had erred in entering the verdict it did at No. 1521 of 1983 because there were “insufficient facts to establish either that a delivery was made by the defendant or that a conspiracy was consummated between the defendant and Gowdy.” Thus, “upon careful reflection, th[e] Court conclude[d] that all the Commonwealth ha[d] established ... [was] that the defendant possessed a number of white pills.” (Trial Court Opinion at 3)

As for the charges listed at Information No. 1651 of 1983, the trial court, “upon careful reflection and reconsideration of the facts”, concluded that the delivery had been proven, but the conspiracy between the defendant and Henderson was lacking in proof. Id. at 6. As a result, by orders dated April 9, 1986, the defendant’s motion in arrest of judgment with regard to the delivery and conspiracy convictions at No. 1521 of 1983 was granted; whereas, only the conspiracy charge at No. 1651 of 1983 was found wanting and arrested. The delivery conviction was left standing. This appeal followed by the Commonwealth and is properly before us since it raises a question of law in regard to the trial court’s orders arresting judgment. See Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961).

The Commonwealth raises, in essence, a single challenge to the trial court’s grant of the defendant’s motion in arrest of judgment for engaging in a “re-evaluation of the sufficiency of the evidence.” Notwithstanding the trial court’s submission of a supplemental post-verdict opinion arguing to the contrary, we find that the facts and the reasonable inferences to be drawn therefrom were sufficient to sustain the charges lodged against the defendant.

The trial court’s grant of Lanager’s motion in arrest of judgment was based on the ground that “the evidence presented by the Commonwealth at the time of trial was insufficient to establish the elements necessary to sustain the[] verdicts of guilt.” (See Trial Court’s “Additional Opinion” at 2) In assessing that conclusion, we must determine whether:

The case is sufficient for a jury to find guilt “unless the proof relied upon for a conviction is so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances,” Commonwealth v. DePetro, 350 Pa. 567, 578, 39 A.2d 838 (1944). Restated, the test requires, before the granting of a motion in arrest of judgment based on insufficiency of the evidence, that the court make a finding that the evidence supporting the verdict of guilt is so weak and inconclusive that a jury of reasonable men and women could not be satisfied as to the guilt of the defendant beyond a reasonable doubt.

Commonwealth v. Blevins, 453 Pa. 481, 487, 309 A.2d 421, 424-25 (1973).

We find that the evidence establishes, with regard to February 3, 1983, that the defendant was asked and agreed to secure drugs for Agents Shoup and Mohn. His efforts to do so took the form of engaging an individual (Gowdy) in conversation outside of “Good Cook’s” bar. This led to Gowdy entering Marla’s vehicle and, shortly thereafter, Marla asking the agents for money ($30) to make a purchase.

The agents were corroborative in stating that Gowdy proceeded to exit Marla’s vehicle and dispensed a quantity of pills out of two bottles and passed them through the passenger window where the defendant sat. When Gowdy left, Agent Shoup walked to where the defendant was seated in the vehicle and saw him in possession of white tablets and being told by the defendant that he was able to obtain what the agents wanted. The distribution was made by Marla to the agents.

It must be remembered that a conspiracy can be inferentially established by showing the relation, conduct or circumstances of the parties, and the overt acts on the part of the co-conspirators have uniformly been held competent to prove that a corrupt confederation has in fact been formed. Commonwealth v. Horvath, 187 Pa.Super. 206, 211, 144 A.2d 489, 492 (1958).

Instantly, we have direct proof of the defendant (1) agreeing to aid in the procurement of drugs and (2) being in possession of drugs shortly after they were seen being dispensed out of bottles by a dealer to the defendant.

A trier-of-fact, in our mind, would be eminently authorized in making a reasonable inference from the evidence presented that the defendant conspired with one Hardy Ray Gowdy to deliver a controlled substance for currency in violation of The Controlled Substance, Drug, Device and Cosmetic Act. 35 P.S. § 780-101 et seq. See Commonwealth v. Ferguson, 358 Pa.Super. 98, 516 A.2d 1200 (1986).

The defendant was not an innocent bystander caught in the middle of a drug transaction. Rather, he was an active partner in the effectuation of the sale and purchase. Without the defendant’s participation in eliciting Gowdy’s aid in providing the controlled substances, the transaction would never have materialized, let alone been completed. See Commonwealth v. Minnich, 236 Pa.Super. 285, 344 A.2d 525 (1975). Further, the fact that Marla may have been the conduit for the actual “delivery” of the drugs to the agents does not insulate the defendant from accountability, since “delivery” can be actual or constructive to be violative of the Act. 35 P.S. § 780-102. Here, the defendant was seen being handed the drugs and merely had Marla complete the transfer to the agents. His liability is no less extant because of Marla’s involvement. See Commonwealth v. Padilla, 65 Lancaster L.Rev. 167, 168 (1975).

To the same extent, we have no reservation in finding the defendant culpable of conspiring with one Henderson, on February 11, 1983, to deliver controlled substances to Agent Shoup in violation of the Act.

The defendant was again the instrument by which the agent was able to purchase the prohibited drugs. The defendant was informed of the agent’s wishes and consented to be a party to bring those wishes to fruition.

The defendant personally engaged Henderson in a discussion, and when the agent attempted to intervene the defendant advised him that he would handle the entire matter. The result of this exchange between the defendant and Henderson led the latter to acquire the quantity (ten sets) desired by Agent Shoup at a price stated ($100). These two facts were communicated solely to the defendant by the agent earlier that day at his residence. One could reasonably infer from these given facts that there would had to have been an interchange of information between the defendant and Henderson for the dealer to have produced the specific amount sought and for the fixed price known only to the defendant and the agent.

Albeit the money and drugs were exchanged in the back of Marla’s vehicle without passing through the defendant’s hands, he voiced his demand for some form of remuneration for setting up the deal. The agent at first refused, but later conceded and left ten dollars on the front seat of the vehicle where the defendant sat.

Are these the remarks of one, who, by happenstance, was present during the consummation of a drug deal not brought about through his efforts? We think not. Compare Commonwealth v. Derr, 501 Pa. 446, 462 A.2d 208 (1983); Commonwealth v. Evangelista, 8 D. & C.3d 566 (Franklin County 1978). The defendant was the force behind the dealings, and in the second instance he oversaw the actual sale and then sought recompense for his orchestration of the entire affair.

As has been stated so often in this jurisdiction, in the course of a conspiracy each participant is accountable for the acts of the other, provided, of course, that they are in furtherance of the conspiracy. See Commonwealth v. Robinson, 351 Pa.Super. 309, 505 A.2d 997 (1986).

We can find nothing in the facts that would alter our decision that the trial court (despite its statements to the contrary in its “Additional Opinion” to us) engaged in a factual redetermination by converting guilty verdicts into not guilty verdicts; a practice not condoned by this Court. See Commonwealth v. Gaither, 355 Pa.Super. 502, 513 A.2d 1034 (1986); Commonwealth v. Parker, 305 Pa.Super. 516, 451 A.2d 767 (1982).

This position is buttressed from our review of the entire record, which showed a defendant’s recollection being in stark contrast to the agents’ accounting of what transpired on the days in question. Therefore, credibility determinations were initially made to believe the agents over the defendant. With the reversal of the verdicts, the trial court, of necessity, would have had to re-evaluate the agents’ testimony to favor the defendant, since our review of the facts in a light most favorable to the verdict-winner, the Commonwealth, is supportive of the original decision.

We do not approve of such a reconsideration when the facts warrant an affirmance of the judgment of sentence. Truly, the evidence was not so weak and inconclusive as to justify an arrest of judgment, not to mention a re-assessment of the facts, which was admitted by the trial court at page 6 of its opinion wherein it wrote that it engaged in a “reconsideration of the facts” in reaching its decision.

Generally, in light of our reversal of the trial court’s arrest of judgment, we would remand for a determination of the defendant’s post-verdict motion seeking a new trial. Instantly, however, the reasons assigned therein lack merit, e.g., that the verdict was contrary to the weight of the evidence. As our recitation of the facts discloses, a new trial is not needed for any of the reasons proffered by the accused. See Robinson, supra.

Orders of the trial court arresting judgment are reversed and the case is remanded for the imposition of sentence. Jurisdiction is relinquished.

ROWLEY, J., concurs in the result.

      . The separate orders were issued the same day and were in response to a single motion for a new trial and/or in arrest of judgment by the appellee covering two Informations (at Nos. 1521 and 1651 of 1983) charging delivery of controlled substances and conspiracy to do the same.
      The trial court could have disposed of the motion with a single order since the charges were heard together. Therefore, the appeal of the two orders is countenanced given the circumstances out of which they arose. Compare General Electric Credit Corp. v. Aetna Casualty and Surety Co., 437 Pa. 463, 263 A.2d 448 (1970).

      . We would note that the trial court’s denial of the defendant’s post-verdict motion with respect to the delivery conviction at No. 1651 of 1983 is not questioned by the defendant on appeal. Thus, the sentence imposed with regard thereto is not before us for review.

      . The defendant raised two additional issues which were properly disposed of in the opinion of the trial court dated April 9, 1986.


text:
    521 A.2d 429
    COMMONWEALTH of Pennsylvania v. Alfonse MONGIOVI, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 28, 1986.
    Filed Jan. 8, 1987.
    Reargument Denied Feb. 26, 1987.

      Vicki K. Horne, Greensburg, for appellant.
    Edward M. Clark, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before WICKERSHAM, BROSKY and JOHNSON, JJ.
   BROSKY, Judge:

This is an appeal from the judgment of sentence imposed following a jury trial in which appellant was found guilty of driving a motor vehicle with a blood alcohol count of .10% or greater.

Appellant raises for our consideration but one issue: whether the evidence was insufficient to support the jury verdict and whether the trial court erred in refusing to dismiss the criminal complaint brought pursuant to 75 Pa.C. S.A. § 3731(a)(4) at the close of the Commonwealth’s case, in the absence of evidence proving beyond a reasonable doubt that appellant’s blood alcohol content, at the time he was driving, was .10% or greater.

Upon consideration of the trial court opinion and briefs of counsel, we affirm.

On September 28, 1985, appellant was observed, by a police officer, driving erratically and nearly colliding with another vehicle. When appellant stopped his vehicle the officer noticed an odor of alcohol on appellant’s breath and observed that appellant’s eyes were red and bloodshot and his face was flushed. Field sobriety tests were administered and then appellant was taken to the police station for a breath test. The first breath test was administered 24 minutes after appellant was observed driving. A second test was conducted one minute later. The lower of the two readings, .102, was introduced into evidence. No breath sample was collected and/or preserved by the Commonwealth.

Appellant was charged with violating 75 Pa.C.S.A. § 3731(a)(1), driving under the influence of alcohol to a degree which renders the person incapable of safe driving, and 75 Pa.C.S.A. § 3731(a)(4), driving a motor vehicle with a blood alcohol count of .10% or greater. As to the first count, a mistrial was declared due to a hung jury. Appellant was found guilty as to Count II, and sentenced to a term of imprisonment of not less than 48 hours nor more than 6 months. It is from that judgment of sentence that appellant has filed the instant appeal.

Appellant alleges insufficiency of the evidence due to the fact that the accuracy of the breathalyzer test was found to have a range of .006%. Thus, appellant contends, there was not enough evidence for a finding of guilt “beyond a reasonable doubt.” “The test for evaluating claims based on the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Griscavage, 336 Pa.Super. 141, 145, 485 A.2d 470, 472 (1984).

Appellant was convicted of violating 75 Pa.C.S.A. § 3731(a)(4) which reads as follows:

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.

As the offense in question contains two elements, both must be proven before a conviction can lie. Additionally, as dictated in the statute by the use of the word “while”, both elements must be proven to have occurred simultaneously.

Because the arresting officer observed appellant’s operation of the motor vehicle, the first element is not in dispute. This Court has, in the past, held as admissible, the results of chemical tests to determine the alcoholic content of a defendant’s blood even though the tests were taken at a time which was relatively remote from the time of driving, Commonwealth v. Tylwalk, 258 Pa.Super. 506, 393 A.2d 473 (1978); Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977). The problem arises with proving that appellant’s blood alcohol level was .10% or greater, in view of the alleged .006% range in test accuracy.

One of the arguments appellant makes involves an interpretation of 75 Pa.C.S.A. § 1547(d)(3) which provides:

(d) Presumptions from amount of alcohol. — If chemical testing of a person’s breath, blood or urine shows:
(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731.

By concentrating on the word “may”, appellant contends that the results of the breathalyzer test should have been withheld from the jury as being insufficient to produce a verdict, yet prejudicial to appellant’s case. We disagree. The nature of the charge against appellant requires the admission of technical evidence. We see no other way for a jury to decide whether a defendant has reached a blood alcohol level of .10%.

Appellant claims that the jury had to speculate as to the fact of appellant’s blood alcohol level. In support of this, appellant points to a question asked of the trial judge by a juror. The juror asked how they should consider the evidence of the variance. The trial judge properly responded by explaining that he could not tell the jury what was in evidence, but that, based upon their recollection of the evidence and the facts, and using their personal experience and common sense, they were to make their determination in the case. As this court has previously held, the weight to be accorded test results properly rests with the finder of fact. Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986).

It should be pointed out that the term “variance” could imply a test result which would be to appellant’s detriment as well as his advantage. Because we lack a legal presumption as to how a variance should be considered, its weight must be left with the trier of fact. By virtue of the fact that the variance was called into question by a juror, it is clear that the jury had before it the fact of the variance of the breathalyzer equipment. The jury was then able to consider this element, along with the other evidence, in reaching its verdict.

Furthermore, under 67 Pa.Code § 77.25(a), with regard to inspections for accuracy of breathalyzer equipment, the regulations require an inspection within 30 days prior to using the breath test equipment. The record reveals that such a test was made only four days prior to the incident in question, on September 24, 1985, and again 23 days following the incident, on October 21, 1985. The machine was found to be accurate at those times, according to the testimony of the officer who conducted the test. It must be noted that “accurate” is a relative term with respect to this type of equipment. The equipment is accurate if the average deviation does not exceed .005, 67 Pa.Code § 77.-25(b)(2)(ii).

Both parties, as well as the trial court, make reference to a range of .006. The testimony reveals that the breath test equipment was tested for accuracy and the following five results were obtained: .095, .099, .099, .101 and .101. On the record, counsel for appellant calculates the .006 range by subtracting the lowest number from the highest. While we do not dispute counsel’s calculations, we cannot agree with that formula used by counsel for arriving at the average deviation.

67 Pa.Code § 77.25(b) sets forth the formula from which we calculate the average deviation:

(2) The Type A alcohol breath test equipment does not pass the accuracy inspection test and shall be removed from service if one of the following occurs:
(ii) In the event of a breath test device which can only be read to the third decimal place, one or more of the five tests yields a result less than .090% or greater than .109% or the average deviation, derived by adding the absolute value of the differences between the results of the five tests and a constant value of .100 and dividing the total of these absolute values by 5, exceeds .005.
(3) An example of an average deviation calculation for a breath testing device capable of being read to the third decimal place is as follows:
Constant Value Reading Difference (absolute value)
.100 .099 .001
.100 .104 .004
.100 .098 .002
.100 .101 .001
.100 .102 .002
■ 010: 5 =.002
Average deviation = .002 and .002 does not exceed .005.
Using the test results obtained in the instant case we have the following:
Difference Reading Constant Value (absolute value)
.100 .095 .005
.100 .099 .001
.100 .099 .001
.100 .101 .001
.100 .101 .001
=.009 =.0018

Thus, there is an average deviation of .0018, well within the range of “accuracy.”

Section 77.25 also stipulates that:

[U]pon satisfactory completion of the accuracy inspection procedure, the test records shall be recorded on a certificate of a type provided by the Department____ The certificate of accuracy shall be the presumptive evidence of accuracy referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to determine the amount of alcohol or controlled substance).

67 Pa.Code § 77.25(c). The certificate of accuracy was offered into evidence. Also offered into evidence was a certificate of calibration evidencing compliance with 67 Pa. Code. § 77.26(a) requiring calibration within one year. 75 Pa.C.S.A. § 1547(c)(1) states that “[a] certificate ... showing that a device was calibrated and tested for accuracy and that the device was accurate shall be presumptive evidence of those facts ...”. Thus, a reading of .102% must be considered a reliable test result in the instant case.

The jury had before it all the facts, including the breathalyzer results and the possible variance. Additionally, it was charged as to the necessity of finding appellant guilty “beyond a reasonable doubt.” Taking into consideration the above factors, we cannot say that there was justification for dismissing the complaint against appellant. Nor can we find that the jury’s verdict was contrary to the weight of the evidence so as to “shock one’s sense of justice”. Commonwealth v. Barnhart, 290 Pa.Super. 182, 434 A.2d 191 (1981).

Therefore, we affirm the decision of the trial court.

Judgment of sentence affirmed.