author: CAVANAUGH, Judge:

text:
    512 A.2d 661
    Daniel G. LUCERA, and Anna B. Lucera, his wife, Appellants, v. JOHNS-MANVILLE CORPORATION, Johns-Manville Sales Corp., Raybestos-Manhattan, Inc., Owens-Corning Fiberglas Co., Forty-Eight Insulations, Inc., Nicolet, Inc., Pittsburgh Corning Co., GAF Corporation, Celotex Corporation, Armstrong Cork Co., Unarco, Inc., H.K. Porter Co., Southern Asbestos Co., J.P. Stevens, Inc., Eagle-Picher Industries, Amatex Corp., Delaware Asbestos and Rubber Co., Pacor, Inc., Fibreboard Corp., Keene Corp., Garlock, Inc., Turner-Newall, Ltd., Appellees.
    Superior Court of Pennsylvania.
    Argued Dec. 17, 1985.
    Filed July 2, 1986.

      Martin Greitzer, Philadelphia, for appellants.
    Margaret M. Chaplinsky, Philadelphia, for appellees.

      Before CAVANAUGH, WICKERSHAM and HOFFMAN, JJ.
   CAVANAUGH, Judge:

This is an appeal from an order entered on July 16, 1984 by the Honorable Levan Gordon of the Philadelphia Court of Common Pleas. This action was commenced by summons in February, 1976 (although the complaint was not filed until 1979). Appellee GAF’s motion for summary judgment was dismissed by the Honorable Harry A. Takiff because the motion had not been filed in accordance with the filing deadlines set by the court at status conference. A non-jury trial was then held with the issue of whether the action had been filed within the two year statute of limitations considered first. The lower court dismissed the action because it was untimely. Appellants appealed the non-jury trial verdict and requested a jury trial. (This was permissible because at that time, a special non-jury trial program was in effect which permitted an automatic de novo appeal to a jury trial.) While awaiting a listing for a jury trial, GAF filed another motion for summary judgment based on the statute of limitations. After a hearing, Judge Gordon entered an order granting the motion for summary judgment on behalf of GAF and all other defendants. This appeal followed. Only GAF remains a viable appellee in this action.

Daniel Lucera was employed from 1944 to 1972 as a pipecoverer and insulator at various places, including the Philadelphia Naval Shipyard and the New York Shipbuilding and Drydock Company. Throughout his employment, appellant worked aboard U.S. naval ships both in drydock and on the navigable waters of the United States. Appellant claims that he was first diagnosed as having asbestosis in 1972 but that he did not know his injury was caused by the conduct of another until 1975 or 1976. According to appellant, GAF was and/or is a manufacturer and supplier of asbestos products to the Philadelphia Naval Shipyard and the New York Shipbuilding and Drydock Company.

I.

Appellant first argues that the two year statute of limitations does not apply to the instant action because his claim falls within admiralty jurisdiction and therefore the doctrine of laches applies. We disagree.

The question before us is whether admiralty jurisdiction lies for the claim of a civilian employee who contracts asbestosis in the course of his job at the naval shipyard.

The United States Supreme Court has developed a test to determine whether a tort claim falls within admiralty jurisdiction. A tort action is within admiralty jurisdiction if (1) the injury has a maritime locality and (2) the injury has a significant relationship to traditional maritime activity. Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972). The decision in Executive Jet “seemed to establish that some definite maritime flavor was henceforward to be a prerequisite for all admiralty tort jurisdiction.” G. Gilmore, C.L. Black, The Law of Admiralty, 31, n. 98d (1975).

Pennsylvania has applied the Executive Jet test to asbestosis cases, most notably in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983). In Volpe, appellant, a civilian employee at the Philadelphia Naval Shipyard, claimed he developed asbestosis as a result of his job as a welder at the shipyard. Mr. Volpe had worked on ships both in drydock and on the navigable waters of the United States. He claimed that while at the shipyard the conduct of appellees, who were in the business of mining, manufacturing, selling or distributing asbestos and asbestos products, caused his asbestosis. Appellees moved for summary judgment on the ground that Volpe’s claim was barred by the statute of limitations. Judge Takiff held that admiralty jurisdiction did not apply to Volpe’s action, and so the statute of limitations, not laches, governed the length of time available for Volpe to commence his action. Summary judgment was entered. An appeal followed, wherein this court affirmed, holding that Mr. Volpe’s claim was barred by the statute of limitations. In so holding, the court espoused a well-reasoned discussion of the appellant’s claim that admiralty jurisdiction, (and thus, laches) applied to his tort action.

Utilizing the Executive Jet test, supra, we noted that because Mr. Volpe spent seventy percent of his time on ships in navigable waters at the Navy Yard, his injury had a maritime locality, thus satisfying the first prong of the Executive Jet test.

We held, however, that Mr. Volpe’s injury did not satisfy the second prong of the test — that the injury have a significant relationship to traditional maritime activity. In so holding, our analysis centered around two general considerations: 1) whether the job performed by the injured party was a distinctively maritime role, and 2) whether the perils of the job were created by any hazard of the sea.

As to whether the job performed by the injured person was a distinctively maritime role, we wrote in Volpe: “Welding, even welding necessary to the function of a ship, is not a distinctively maritime role.” Volpe v. Johns-Manville Corp., supra, at 137, 470 A.2d at 168. Moreover, Volpe worked on vessels in a shipyard, not on ships in active service. The work he performed involved major repairs which required special skills and equipment. This evidenced that Mr. Volpe was not performing a traditional seaman’s role when he contracted asbestosis. Id., 323 Pa.Superior Ct. at 138, 470 A.2d at 169.

As to whether the perils of the job were created by any hazard of the sea, we wrote that “the injury he suffered was the same as he would have suffered had he worked on boilers in a factory on dry land.” Id. Therefore, Volpe’s peril was not created by any hazard of the sea. In short, Volpe’s injury lacked that “definitive maritime flavor” which Executive Jet requires.

Subsequent Pennsylvania decisions have followed Volpe’s analysis. In Gravinese v. Johns-Manville Corp., 324 Pa. Super. 432, 471 A.2d 1233 (1984), appellant’s decedent was a pipe coverer and insulator on ships both in drydock and on navigable waters of the United States. The court in Gravi-nese again held that appellant’s claim did not pass the second prong of the Executive Jet test — that the injury must have a significant relationship to traditional maritime activity. We wrote that the work in which appellant’s decedent was engaged “was not the same as that which was traditionally performed by members of a ship’s crew. The dangers he faced as a shipyard worker were not the traditional concerns of admiralty.” Id., 324 Pa.Superior Ct. at 437, 471 A.2d at 1236.

In Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 482 A.2d 1049 (1984), appellant was a navy yard pipefitter who contracted asbestosis. On the basis of Volpe, supra, we declined to apply admiralty jurisdiction (and laches), stating: “In the instant case, appellants have advanced no arguments to distinguish Mr. Cianfrani, as a navy yard pipefitter, from a navy yard welder. Neither worker faced a peril created by any hazard of the sea.” Cianfrani v. Johns-Manville Corp., supra, 334 Pa.Super. at 5, 482 A.2d at 1051. See also Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984) where we also held that a pipefitter’s asbestosis claim did not lie in admiralty jurisdiction. See also Symbula v. Johns-Manville Corp., 343 Pa.Super. 541, 495 A.2d 598 (1985).

Despite our attempts to define the “significant relationship to traditional maritime activity” by reference to the two aforementioned categories, it is really the second (the “peril” aspect) which is the sine qua non of the second prong of the Executive Jet test. The Volpe court opined that a claim by a ship’s cook would fall within admiralty jurisdiction not because cooking is a distinctively maritime role, but rather because the perils faced by a ship’s cook are created by the hazards of the sea.

We note that not all jurisdictions are in accord with .this court’s interpretation of Executive Jet. In fact, the Volpe court expressly declined to follow White v. Johns-Manville Corp., 662 F.2d 234 (4th Cir.1981), cert. denied, 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982) which found that admiralty jurisdiction lies for an insulation installer’s claim. In White, the plaintiffs alleged that they installed asbestos insulation at shipyard and drydock areas as well as aboard vessels on navigable waters. The Fourth Circuit Court of Appeals held that the work done by the shipyards bore a significant relationship to traditional maritime activity. The court held that the installation of insulation was essential to the maritime industry.

In Volpe the court noted that Mr. Volpe was as involved in a traditional maritime activity as the successful plaintiff in White but did not interpret Executive Jet as holding that admiralty jurisdiction should lie in such a case. Volpe instead relied heavily on the analysis in a Ninth Circuit Case, Owens-Illinois, Inc. v. United States District Court, 698 F.2d 967 (9th Cir.1983). This court is not bound by White, supra. “In the absence of a ruling by the United States Supreme Court, the decision of a federal intermediate appellate panel is not binding on Pennsylvania courts.” Cianfrani v. Johns-Manville Corp., 334 Pa.Super. 1, 6, 482 A.2d 1049, 1051 (1984).

Turning to the facts in the instant case, appellant worked around asbestos as a pipecoverer and insulator at various locations aboard U.S. naval ships both in drydock and on the navigable waters of the United States. In Gravinese v. Johns-Manville Corp., 324 Pa.Super. 432, 471 A.2d 1233 (1984) appellant decedent was also a pipe coverer and insulator who worked on ships both in drydock and on navigable waters of the United States. As in the other cases of the Volpe progeny, we held there that admiralty jurisdiction did not lie. Appellant has presented no authority to distinguish the instant case. Appellant’s role as a pipecoverer and insulator was not a distinctively maritime role; nor were the perils of his job created by any hazard of the sea. Therefore, the second prong of the Executive Jet test has not been met: the injury did not bear a significant relationship to traditional maritime activity. Accordingly, admiralty jurisdiction does not lie, and the two year statute of limitations, not laches, governs.

II.

Appellant argues in the alternative that even if laches does not govern the instant case, he nevertheless commenced the action within the two year statute of limitations.

The lower court entered an order granting summary judgment on the ground that the action was not brought within the statute of limitations.

Pa.R.C.P. 1035(b) provides that summary judgment may be entered: “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” In considering a motion for summary judgment the court must view the evidence in the light most favorable to the non-moving party and enter judgment only if the case is clear and free from doubt. Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984); Acker v. Palena, 260 Pa.Super. 214, 393 A.2d 1230 (1978).

In the recent case of Chandler, et al. v. Johns-Manville Corp., et al., 352 Pa.Super. 326, 507 A.2d 1253, (1986), we wrote:

Applying these rules, we must determine if the court below erred in deciding as a matter of law that the appellant’s claim was barred by the statute of limitations. The applicable statute of limitations in effect at the time that the cause of action arose was set forth in the Act of June 24, 1895, P.L. 236 § 2, 12 P.S. § 34, repealed by Judiciary Act Repealer Act, Act of April 25, 1978, P.L. 202, eff. June 27, 1978, currently codified at 42 Pa.C.S.A. § 5524(2), which provides that “The following actions and proceedings must be commenced within two years: (2) An action to recover damages for injuries to the person or for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another.”
The appellant alleges in his complaint that he suffered from asbestosis, as a result of contact with materials manufactured by the various defendants. The disease of asbestosis has been referred to as a “creeping disease”. See Staiano v. Johns-Manville Corp., 304 Pa.Super. 280, 450 A.2d 681 (1982). Our court sitting en banc in Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 471 A.2d 493 (1984) established the rule for determining when the statute of limitations commences running in such cases and stated at 324 Pa.Super. 136-7, 471 A.2d 500:
We find that the statute of limitations begins to run in “creeping disease” cases when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.
Cathcart modified the more complex test set forth in Volpe v. Johns-Manville Corp., 323 Pa.Super. 130, 470 A.2d 164 (1983) which required that before the statute of limitations commenced running that there must be (1) knowledge of the injury; (2) knowledge of the operative cause of the injury and (3) knowledge of the causal relationship between the injury and the operative conduct. While in Berardi v. Johns-Manville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984) a majority of the panel affirmed the Volpe tri-partite test, we agree with Judge Beck’s statement in Wheeler v. Johns-Manville Corp., 342 Pa. Super. 473, 477, 493 A.2d 120, 122 (1985):
We believe that Cathcart should be followed because it is the most recent holding of the court en banc and Berardi, as a panel decision, cannot overrule the court en banc.
Judge Olszewski in his concurring opinion in Beradi, supra, stated that he would apply the less complicated two part test of Cathcart, supra. The recent cases of Price v. Johns-Manville, 336 Pa.Super. 133, 485 A.2d 466 (1984) and Pastierik v. Duquesne Light Co., 341 Pa.Super. 329, 491 A.2d 841 (1985) followed the rule in the Cathcart case. See also, McGowan v. University of Scranton, 759 F.2d 287 (CA 3, 1985) Kelly v. Johns-Manville Corp, 590 F.Supp. 1089 (E.D.Pa.1984).

Turning to the facts of the instant case, appellants concede that the asbestosis was first diagnosed in 1972, and do not contend that they did not know of the injury then. However, they contend that Mr. Lucera did not learn until 1975 or 1976 that his injury was caused by the conduct of another party. Thus, the question before us centers on the second half of the Cathcart test. We find appellant’s contention to be groundless. The facts indicate that appellant knew by 1972 that his injury was caused by the conduct of a third party. And, if he did not actually know, he reasonably should have known.

In 1972, Mr. Lucera filed a disability claim for his asbestos related injury. At trial, the following testimony was elicited from Mr. Lucera:

Q. Is this the form that you used to make that ... claim for disability? Is that your signature on that page?
A. Yes, it is.
Q. That’s your handwriting under block number twelve, isn’t it?
A. Yes.
Q. What does that say?
A. “I have been exposed to asbestos material which I work with at Philadelphia Naval Shipyard.”
Q. That’s under “Cause of Injury”? Block number twelve is for cause of injury?
A. Yes.

On direct examination, Mr. Lucera testified as follows:

Q. Mr. Lucera, can you tell His Honor when was the first time that you knew that your injury was caused by conduct of another party?
A. About 1972.

Mr. Lucera further testified that he was examined in 1972 by a Dr. Sokolowski. Dr. Sokolowski sent his findings to Mr. Lucera’s physician, Dr. Bernardi. Mr. Lucera went “immediately” to Dr. Bernardi who informed him that he had an asbestos-related injury, and, in Mr. Lucera’s words, “He suggested that I should not continue to work around asbestos fumes, and that sort of environment with — that’s pertaining to the asbestos, because the longer I would have stayed in there the more I would accumulate.” Mr. Lucera retired from the Philadelphia Navy Yard on October 17, 1972.

It is clear from the facts set forth above that Mr. Lucera knew in 1972 that his injury was caused by another party’s conduct. Yet, appellant would have us hold that there is a factual dispute in this case which requires that we reverse the grant of summary judgment. He argues that his testimony at trial was contrary to the facts he gave his attorney during trial preparation. He further alleges that he was confused and that the trial court erred in not allowing him to clarify his answers.

In answering his own attorney’s question as to when he knew his injury was caused by the conduct of another party, appellant answered, “[ajbout 1972”. His attorney then asked:

“And what did you know in 1972?”

Appellant answered:

“That I had the early beginnings of asbestosis.”

Later, his attorney asked:

“When did you first consult an attorney for the condition?”

Appellant answered:

“About in ‘76 when I read it in the newspapers.”

Appellant was not permitted to elaborate on this point. He argues that had he been permitted, he would have testified that he did not know until 1975 or 1976, when he read newspaper articles, that the conduct of another caused his injuries.

Moreover, after the trial, in answering GAF’s motion for summary judgment, appellant attached an affidavit to its answer which contained the following:

“I did not know in 1971 or 1972 that my asbestosis was caused by the conduct of another party.”

The affidavit further stated that he did not learn that the injury was caused by the conduct of another party “until sometime in 1975 or early 1976.”

Concerning this affidavit, the lower court wrote: “The affidavit ... strains the chords of credibility, as it appears to totally contradict his testimony at the non-jury trial.” The lower court did not abuse its discretion in granting a motion for summary judgment even though it disregarded the appellant’s affidavit because it was not wholly credible. In Taylor v. Tukanowicz, 290 Pa.Super. 581, 435 A.2d 181 (1981), this court wrote, “This is not to say that there are not instances where summary judgment may be ordered in malpractice actions based upon a statute of limitations defense. Entry of summary judgment is proper where____the evidence relied upon by the plaintiff is inherently incredible____” (Citation omitted.) While Taylor was a malpractice suit, we do not see any reason why this principle should not apply to a “creeping disease” case.

However, even if we were to concede that appellant in fact did not know that his injury was caused by the conduct of another party in 1972, it is clear to us that he reasonably should have known at that time.

Appellant had worked with asbestos products for some twenty-eight years when he was diagnosed as having asbestosis in 1972. His own physician told him that he should not continue working around asbestos. This would have been sufficient to put a reasonable man on notice that he should investigate the cause. Moreover, he filed a disability claim wherein he alleged that his asbestosis was caused by his work. This suggests that he had some notion, at the very least, of the cause. Something less than a diligent inquiry would have revealed that his injury was caused by another party.

It is of no legal consequence whether appellant was aware in 1972 that he had a legal cause of action. Cathcart does not require such knowledge. Berardi v. Johns-Man- ville Corp., 334 Pa.Super. 36, 482 A.2d 1067 (1984). Moreover, appellant need not have known who the other party was that caused that injury. Cathcart only requires that the injured party know or reasonably should know that his injury was caused by another’s conduct.

We hold that because appellant knew that he had asbestosis in 1972 and reasonably should have known that another caused his injury that same year, his failure to commence the action until 1976, some two years past the time the statute of limitations ran out, bars his recovery in this case.

Order affirmed.


source: Caselaw Access Project

author: CIRILLO, President Judge:

license: Public Domain

text:
    512 A.2d 667
    COMMONWEALTH of Pennsylvania, v. Joel BUTLER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 6, 1986.
    Filed July 3, 1986.

      Sharon L. Steingard, Philadelphia, for appellant.
    Kathleen A. McDonnell, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before CIRILLO, President Judge, and WIEAND and OLSZEWSKI, JJ.
   CIRILLO, President Judge:

This is an appeal from a judgment of sentence entered by the Court of Common Pleas of Philadelphia County. Following a bench trial, appellant Joel Butler was convicted of robbery, aggravated assault, resisting arrest and theft. He was sentenced to three to seven years imprisonment for the robbery conviction, and to a concurrent term of imprisonment of two and one-half to five years for the aggravated assault conviction. We affirm.

At approximately 7:35 p.m., Leonora Colon and Luisa Rivera were standing outside the Colons’ residence. Appellant appeared in front of them, looked at Ms. Rivera and then grabbed four gold chains from Ms. Colon’s neck. In the course of the chain snatch, appellant grabbed Ms. Colon by the dress and knocked her to the ground. The incident occurred in daylight and both women were within arms length of the appellant the entire time, which was approximately five seconds.

Ms. Rivera’s screams for help summoned an unidentified young Hispanic male, who chased after appellant. Moments later, the women saw a police vehicle and waived for it to stop. The vehicle was operated by Sergeant Rudloff. The women did not speak English and Sergeant Rudloff spoke no Spanish; however, he did notice their hysterical state and Ms. Colon’s tattered appearance. An English speaking Hispanic youth appeared on the scene and translated the women’s account of what had happened for Sergeant Rudloff. Approximately 15 to 20 seconds later, the first youth, who had pursued appellant, appeared and told Sergeant Rudloff that the perpetrator was hiding behind a wall about a block away.

The officer went to the described location and found appellant behind a wall and looking at the gold chain. Sergeant Rudloff cornered the suspect and instructed him not to move. Instead, the suspect punched the officer in the shoulder and attempted to flee. He was apprehended by additional officers who seized the gold chains from the suspect after subduing him.

Appellant was taken directly to a nearby police station. Meanwhile, additional officers were dispatched to pick up the victim and Ms. Rivera. Although the Commonwealth did not explain the reasoning for transporting both the suspect and the witness four city blocks to the station house in separate vehicles, as opposed to simply bringing the suspect one block to the scene of the crime, the trial court inferred that this was done because a Spanish speaking officer was present at the police station.

Appellant arrived at the police station before the victim and Ms. Rivera. Moments after appellant arrived at the police station, Ms. Rivera entered the station, noticed appellant and spontaneously identified him. Ms. Colon was then asked in Spanish if that was the man who robbed her. She replied “yes”. The total amount of time which elapsed between appellant’s arrest and identification was between ten and fifteen minutes.

Appellant raises six issues on appeal, claiming that 1) the warrantless arrest was not supported by probable cause and therefore the physical evidence should be suppressed; 2) his motion for suppression of identification evidence should have been granted because the arrest was not supported by probable cause; he was denied his right to counsel during identification; the identification procedure was unnecessarily suggestive, and the incourt identification of appellant was not based on an independent source and was tainted by the out-of-court identification procedure; 3) the denial of his request for a line-up was an abuse of discretion; 4) the evidence in support of the guilty verdict on the charges of aggravated assault and resisting arrest was insufficient; 5) the trial court erred in sentencing appellant in the aggravated range of the sentencing guidelines; and 6) he was denied his right to due process of law in the sentencing procedure.

We first consider the issue of probable cause. At the outset, it should be noted that the “totality of the circumstances” analysis of Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) has been adopted in the Commonwealth of Pennsylvania. See Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985).

In utilizing the Gates approach as it applies to a warrant-less arrest, a police officer must make a practical common sense decision whether, given all of the circumstances known to him at that time, including hearsay information, there is a fair probability that a crime was committed and that the suspect committed the crime. The duty of this Court is to insure that the police officer had a “substantial basis for concluding that probable cause existed.” See Commonwealth v. Sorrell, 319 Pa.Super. 103, 465 A.2d 1250 (1983). We find that the arresting officer had a substantial basis for concluding that probable cause existed at the time he made his warrantless arrest of appellant.

The veracity of the youth who described appellant’s location has never been questioned; he was only a conscientious bystander trying to help persons in distress. Whether the youth knew that the person he was chasing was in fact appellant, however, is not as clear. Yet, given that the youth appeared on the scene of the crime seconds after the crime had occurred and had given instant chase, it is reasonable to infer that the youth saw the person fleeing from the scene and assumed that individual was the perpetrator. Moreover, the sequence of events which transpired after the youth brought Sergeant Rudloff to appellant gave Sergeant Rudloff sufficient probable cause to arrest. The officer saw a man kneeling and looking at a gold chain such as had been stolen just minutes before and only one block away. When Sergeant Rudloff, an officer in uniform, instructed appellant not to move, appellant struck him and attempted to flee the scene and then physically resisted arrest. It is reasonable to assume from these facts, independent of the first youth’s knowledge, that there was a substantial basis for concluding that appellant was the perpetrator. As such, we find there was sufficient probable cause for the officer to believe that a crime had been committed and that appellant was indeed the perpetrator of that crime. Therefore, appellant’s motion to suppress the physical evidence was properly denied.

Appellant next takes issue with the trial court’s decision to admit the post-arrest identifications. Appellant first argues that since there was no probable cause for the arrest in the first instance, the post-arrest identifications should be suppressed as the “fruits” of the illegal arrest. Since we have found that there was sufficient probable cause for appellant’s arrest, we need not address this contention.

Appellant then argues that the out-of-court identification should be suppressed on the ground that he was denied his right to counsel at the identification procedure. In support of his position, appellant relies on Commonwealth v. Minnis, 312 Pa.Super. 53, 458 A.2d 231 (1983). In Minnis, this Court followed Commonwealth v. Richman, 458 Pa. 167, 320 A.2d 351 (1974), which states that the right to counsel attaches at the time of an individual’s arrest and as such, an individual’s right to counsel exists for identification confrontations.

In Minnis we noted that “on-the-scene” identifications has been extended to identifications in hospitals, see Commonwealth v. Aaron, 255 Pa.Super. 289, 386 A.2d 1006 (1979), and to “on-the-scene” identifications a few blocks away from the scene of the crime with the suspect handcuffed in a police van. See Commonwealth v. Allen, 287 Pa.Super. 88, 429 A.2d 1113 (1981). See also Commonwealth v. Dickerson, 226 Pa.Super. 425, 313 A.2d 337 (1973).

The reasoning for broadening the “on-the-scene” requirement was based on dual considerations, namely, the exigent circumstances existing at the time and the minimal amount of suggestiveness surrounding the identification itself, which reduces the likelihood of misidentification. In Min-nis, we refused to extend the “on-the-scene” identification to police station identifications where the victim and the witness were called down to the police station one-half hour after the incident to identify the alleged assailant. It is clear that in Minnis there were no exigent circumstances present. Moreover, the rational underlying Minnis was the concern of possible suggestive behavior and conduct attendant to the identification procedure. As the Minnis Court indicated, where a suspect is being held at a police station awaiting the victim’s arrival for an identification, there are suggestive influences in that police controlled setting which may not be as prevalent in other situations. We must view the facts of the instant case in light of the underlying rational of Minnis, that is, the exigent circumstances existing at the time of the identification and the amount of suggestiveness existing at the time of identification and its effect upon the likelihood of misidentification.

Our Supreme Court has stated in Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979), that the key in determining the admissability of an out-of-court identification is not simply the suggestiveness of the circumstances surrounding it but rather the likelihood of misidentification.

It is the likelihood of misidentification which violates a defendant’s right to due process and it is this which [is] the basis of the exclusion of the evidence ... Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increase chance of misidentification is gratuitous.

Commonwealth v. Sexton, 485 Pa. at 22, 400 A.2d at 1291, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In Commonwealth v. Minnis, supra, this Court declined to extend the “on-the-scene” requirement to police stations as the facts in that case did not so warrant. However, the facts of this case clearly warrant the admissibility of the out-of-court identification given the attendant exigent circumstances. Additionally, the likelihood of suggestiveness was minimal as was the likelihood of a misidentification. Upon apprehending appellant, the police took him directly to a nearby police station which was located only four city blocks from the scene. Meanwhile, additional officers were dispatched to pick up the victim and the eye witness to transport them to the station house. Such a procedure was necessary, as the trial court inferred, since a Spanish speaking officer was present at the police station to interpret for the victim and the eye witness who did not speak any English.

Appellant arrived at the police station moments before the victim and the eyewitness. As the eyewitness entered the police station, she immediately noticed appellant and spontaneously identified him as the individual who robbed the victim. The total elapsed time between the arrest outdoors and his identification indoors were a mere 10 to 15 minutes. Here, the exigent circumstance which required the police to bring appellant and the witnesses to the station house was the fact that the witness and victim spoke only Spanish and the arresting officer spoke only English. The location nearest to the scene of the crime where a Spanish speaking officer was present was the station house, a mere four blocks from the scene. The usual suggestive atmosphere of a police station was not present in the instant case, due to the spontaneous identification. This differs considerably from the normal identification procedures in police headquarters where a witness views the suspect in a line-up. In that instance, the concerns of this Court as indicated in Commonwealth v. Minnis, supra, are in play. Therefore, the uncontrived meeting between appellant and the witness and the spontaneous identification of appellant by that witness without prompting from a police officer substantially reduced the likelihood of misidentification which is the cornerstone for determining whether an identification should be admissible.

This case is analagous to Commonwealth v. Wilcox, 481 Pa. 284, 290, 392 A.2d 1294 (1978), wherein it was also argued that a spontaneous identification made by a witness was improper. The facts in Wilcox reveal that the witness was in the police station when the defendant walked by him in the custody of police. The witness told police that defendant was the killer. The evidence in Wilcox, as does the evidence in the case at bar, shows that the incident was accidental and not contrived. Under the circumstances, the Pennsylvania Supreme Court found the spontaneous identification to be proper.

Similarly, in Commonwealth v. White, 447 Pa. 331, 290 A.2d 246 (1972), the defendant argued that the police station identification should be suppressed because it was unnecessarily suggestive. In White, after the defendant’s arrest, he and the other suspects were taken to the station house where they were handcuffed and seated on a bench in the waiting room. The victim was telephoned by the police and told that several suspects had been taken into custody and were available for viewing. The victim arrived at the station and upon entering the room where the suspects were seated, spontaneously and without any questioning by the police, identified the defendant as one of the assailants. The Supreme Court found that the identification was not so unnecessarily suggestive and susceptible to irreparable mistaken identification that the defendant was denied due process of law. The Court stated that when the confrontation of an accused and accuser is uncontrived and the ensuing identification does not result from any undue suggestion or other proscribed police practice, there is no due process violation. As in the case at hand, the confrontation between the witness and the suspect in White was not contrived and the spontaneous identification did not result from any undue suggestion or other proscribed police practice. We find that the out-of-court identification of the appellant in the instant matter is admissible.

However, assuming arguendo that the out-of-court identification was improper and thus inadmissible, we find that there was a sufficient, independent basis for the in-court identification of the appellant. Both witnesses had the opportunity to view appellant at arms length in daylight for approximately five seconds. Ms. Rivera, who was not attacked, watched the robbery undisturbed a few feet away. Ms. Colon not only had the same opportunity to view appellant, but, as a victim of the robbery, also had the impression of his face clearly etched in her mind. In Commonwealth v. Bradford, 305 Pa.Super. 593, 598, 451 A.2d 1035, 1037 (1982), this Court held the victim’s in-court identification admissible when the victim saw the defendant’s facial features at close range for 3 to 4 seconds while chasing him immediately after the robbery. This Court stated that “[w]henever the victim of the crime has an opportunity to observe the criminal, the impression of the face of an assailant is etched upon the prey by the terror of the occasion.” Id. See also Commonwealth v. Woods, 275 Pa.Super. 392, 399, 418 A.2d 1346, 1350 (1980) (en banc), appeal dismissed, 498 Pa. 140, 445 A.2d 106 (1982) (victim’s identification of her assailant found reliable because brief view of the attacker under adequate lighting would have seemed like an eternity). Likewise, in the case before us, both the victim and the witness had 5 seconds to observe the defendant’s face at close range and in the daylight. Therefore, we find that the in-court identification of the appellant was sufficient and had an independent basis.

Appellant next contends that the denial of a lineup constituted an abuse of discretion by the trial court. Appellant argues that this denial constituted an abuse of discretion thus entitling the appellant to a new trial. While he recognizes that there is no constitutional right to a pre-trial lineup, appellant contends that when the issue of identification is legitimately in question, a timely request for a pre-trial lineup should be granted. Commonwealth v. Sexton, 485 Pa. 17, 400 A.2d 1289 (1979). Assuming arguendo that the identification of appellant is a legitimate issue, we find that the denial of the requested lineup was not an abuse of discretion. In Sexton, the only evidence linking the defendant to the crime was his identification by the witness.

In Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1982), a case similar to Sexton, the sole evidence linking the appellant to the robbery was the identification and testimony of two witnesses, both of whom had no knowledge of the appellant prior to the crime. In this case, however, there is more evidence than the in-court identification of appellant which links him to the crime: there was an out-of-court identification made by both the victim and the witness; and when appellant was apprehended by the police, the property which was stolen from the victim was found on his person. While it may be preferable to conduct a lineup in order to ameliorate any suggestiveness necessarily inherent in a court room identification, we do not find the trial court abused its discretion in not allowing the requested lineup in light of the other evidence linking appellant to the crime. Additionally, the factual circumstances reveal that the identification testimony was reliable and that the in-court identification had an independent basis. Therefore, a lineup would have been fruitless. See Commonwealth v. Davis, 293 Pa.Super. 447, 439 A.2d 195 (1981); see also Commonwealth v. Williams, 274 Pa.Super. 464, 418 A.2d 499 (1980).

Appellant next contends that the evidence was insufficient to sustain his convictions for aggravated assault under 18 Pa.C.S.A. § 2702(a)(3) and resisting arrest under 18 Pa.C.S.A. § 5104. His contention is based primarily upon two grounds. First, appellant contends that his arrest which gave rise to the above charges was unlawful as it was executed without probable cause. This argument has been discussed and found to have no merit. Second, appellant contends that the Commonwealth did not prove all elements under the statutes, as his intent was to flee and not to injure the officer. Appellant argues that the arresting officer never explicitly informed him that he was under arrest. In addition, appellant points out that the officer was not injured, which indicates that his intent was not to injure the officer but to flee the scene.

The fact that the arresting officer did not explicitly inform appellant that he was under arrest is of no consequence. An arrest may be effectuated without a formal statement of arrest. Commonwealth v. Benson, 280 Pa.Super. 20, 421 A.2d 383 (1980). It is axiomatic that when a suspect is deprived of his freedom to leave, he is considered under arrest. See, e.g., Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973). Here, the uniformed officer after observing appellant behind a wall looking at a gold chain, cornered him and explicitly instructed him not to move. Under these circumstances, it is reasonable to infer that appellant was under arrest.

The fact that the officer was not injured is of no consequence as neither statute requires that the officer be injured; all that is necessary is proof that the suspect attempted to cause injury, 18 Pa.C.S.A. § 2702(a)(3), or that he created a substantial risk of bodily injury, 18 Pa.C.S.A. § 5104. The testimony of the officer indicates that he was struck by appellant after appellant was cornered and instructed not to move. Furthermore, it took the assistance of other officers to subdue appellant. The trial court had sufficient evidence before it to conclude that the Commonwealth proved appellant’s guilt as to each crime beyond a reasonable doubt.

Appellant’s fifth claim is that the trial court abused its discretion in sentencing appellant in the aggravated range of the Sentencing Guidelines. He argues that the sole reason for sentencing in the aggravated range was the court’s misplaced reliance on his prior record.

We shall affirm a trial court’s sentence within the guidelines unless we determine that the sentence is “clearly unreasonable.” Commonwealth v. Drumgoole, 341 Pa.Super. 468, 491 A.2d 1352 (1985). In making such a determination, 42 Pa.C.S.A. § 9781(d) directs us to examine the record in light of the following:

(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the Commission.

Our review of the record reveals the following: the court not only considered the appellant’s prior record, but considered other pertinent factors as well; the trial court noted the “brash” nature of the offense; and, the court observed that appellant showed no remorse over the crime and failed to respond to rehabilitative services provided as a result of his prior conviction. This leads to the inescapable conclusion that appellant posed a threat to the safety of the community. See, e.g., Commonwealth v. Duffy, 341 Pa.Super. 217, 491 A.2d 230 (1985).

Lastly, appellant makes the bare assertion that he was denied due process of law because the Sentencing Guidelines do not “clearly” specify factors the court is to consider in imposing a sentence. We find this claim to be without merit. In Duffy, we noted that the Pennsylvania Legislature rejected the first draft of the Sentencing Guidelines which included a list of aggravating circumstances. The Court reasoned that:

the legislature ... feared that adherence to an exclusive list of factors would unduly fetter the sentencing judge’s traditional discretion [in sentencing]. The legislature realized that no commission, no matter how competent, could ever anticipate the myriad of sentencing situations that judges face and that, therefore, flexibility must be maintained in any sentencing scheme.

Commonwealth v. Duffy, 341 Pa.Super. 217, 223, 491 A.2d 230, 232 (1985). Clearly, discretion in sentencing must be afforded the trial court. We find no abuse of discretion, and accordingly affirm.

Judgment of sentence affirmed.


author: WICKERSHAM, Judge:

text:
    512 A.2d 674
    COMMONWEALTH of Pennsylvania, v. Brian Francis LITTLE, Appellant.
    Superior Court of Pennsylvania.
    Argued April 22, 1986.
    Filed July 9, 1986.

      Mark D. Frankel, York, for appellant.
    John S. Kennedy, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and WATKINS, JJ.
   WICKERSHAM, Judge:

This is an appeal from the judgment of sentence imposed by the Honorable Joseph E. Erb of the Court of Common Pleas of York County. Appellant, Brian F. Little, was tried and convicted by jury of driving under the influence of alcohol. We affirm the judgment of sentence.

On March 28, 1984, at approximately 6:08 P.M., appellant was operating his 1969 Pontiac Lemans in the Borough of Hanover in York County, Pennsylvania. As appellant approached the intersection of Cherry and Pine Streets, his automobile collided with another vehicle owned by one Robert L. Wherely of Hanover, Pennsylvania.

Being summoned to the scene, Sergeant James A. Baum-gardner of the Hanover Borough Police Department approached appellant’s vehicle as appellant was still seated therein. The officer observed several open cans of beer within the passenger compartment as he stood by the vehicle. Sergeant Baumgardner requested appellant to step from his vehicle, and upon doing so, the officer detected an obvious odor of alcoholic beverages on his person and on his breath. Additionally, appellant was observed having difficulty locating his operator’s license, passing it by in his wallet several times, until the officer pointed out its location.

At this time, Officer Randy S. Whitson, also of the Hanover Borough Police Department, arrived at the accident scene and administered a series of field sobriety tests to appellant. Appellant failed the following field sobriety tests: “finger to nose test,” “alphabet test,” “walking test,” and “horizontal gaze nystagmus test.” Officer Whitson further testified at trial to appellant’s intoxicated mannerisms, including bloodshot eyes, a swayed stance, and the odor of alcohol. Appellant was thereafter placed under arrest and transported to the McSherrystown Police Department in McSherrystown, Pennsylvania. At the McSherrystown station, appellant consented to be tested by breathalyzer to determine the amount of his blood alcohol content. Appellant’s test results indicated a 0.22% blood alcohol content.

Appellant was tried before a jury on charges of driving under the influence of alcohol to a degree which renders the person incapable of safe driving and driving while the amount of alcohol by weight in the blood was .10% or greater. A guilty verdict was returned on both charges. Post-verdict motions being denied, appellant filed this timely appeal. Appellant sets forth four vague issues for our review.

Appellant’s first issue, more properly stated, is whether a photocopy of a certificate of accuracy issued for an Intoximeter Model 3000 is admissible into evidence under the statutory hearsay exception for business and public records found in the Uniform Photographic Copies of Business and Public Records as Evidence Act? We find that the lower court correctly received the evidentiary offer of the photocopy in this case.

In Pennsylvania, the legislature has provided by statute that the amount of alcohol in a person’s blood as shown by a chemical test of that person’s breath, which test was conducted by a qualified person using approved equipment, is sufficiently reliable to be admissible in a criminal proceeding. 75 Pa.C.S. § 1547(c). The statute requires that the tests be conducted by devices approved by the Department of Health and Transportation. 75 Pa.C.S. § 1547(c)(1). A list of approved testing devices is contained in the Pennsylvania Bulletin. The list includes the Intoximeter Model 3000. Section 1547(c)(1) of the Vehicle Code further provides that devices shall be calibrated and tested for accuracy within a statutory time period, and in a manner specified by regulation. A certificate is thereafter issued upon successful testing.

67 Pa.Code § 77.6 requires an accuracy inspection test to be conducted upon each breath testing device at 30-day intervals. Upon completion of the accuracy inspection procedure detailed in this section, the results are recorded, and a certificate of accuracy is signed and dated by the certified breath test operator who performed the accuracy inspection test. 67 Pa.Code § 77.6(c), (d).

At trial, the Commonwealth was permitted to enter into evidence, over objection, a photocopy of a certificate of accuracy for the breathalyzer used to test appellant. No issue has been raised and no suggestion made that the proffered photocopy somehow differed from the original document.

Section 6109 of Title 42, the Uniform Photographic Copies of Business and Public Records as Evidence Act, provides, in pertinent part:

(b) General rule. — If any ... department or agency of government, in the regular course of business or activity, has kept or recorded any memorandum, writing, entry, print, representation, or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced ... which accurately reproduces ... the original ..., [s]uch reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding, whether the original is in existence or not____

42 Pa.C.S. § 6109(b).

The Commonwealth produced the testimony of the certified breath test operator who performed the accuracy inspection test. This witness testified that the machine at issue was tested and calibrated in accordance with statutory procedure. N.T. at 58. The witness further identified the certificate of accuracy photocopy, noting that his signature was present, and that the breathalyzer serial number, the date, and the numerical calibration test results were contained therein. The witness ultimately testified that the photocopy was a true and correct copy of the original, and that the photocopies of the original document were in fact made in his presence.

The document clearly satisfied all of the essential requirements for admissibility of the photocopy pursuant to 42 Pa.C.S. § 6109(b). Appellant’s best evidence arguments are therefore meritless.

Appellant next contends that the Commonwealth did not properly admit evidence pertaining to certification of simulator solution and ampoules utilized in the breath testing process. The lower court reasoned that “since there is no statutory requirement for the solutions which are used to test intoximeters to be certified, the Court also properly admitted the intoximeter results.” Lower ct. op. at 3. To this finding we must agree.

Certification of these items is set forth under 67 Pa.Code § 77.24(d) and (e). “Section 77.24(d) and (e), respectively, clarify that the certifications by the manufacturer of simulator solution and by the manufacturer of ampoules are to be based upon testing by an independent laboratory.” 15 Pa.B. 682 (February 23, 1985).

This regulation requires that the manufacturers of ampoules certify to their users that the ampoules will give the anticipated results when used for alcohol breath tests, accuracy inspection tests or calibrations using breath test equipment, § 77.24(e). Certification of the accuracy of ampoules will insure the integrity of the entire testing procedure____ The Departments believe that the manufacturers of ampoules can most effectively, economically and efficiently analyze their own ampoules and certify their accuracy to their users.

14 Pa.B. 4600-601 (December 22, 1984). We find that the legislature has spoken on this issue and that the Commonwealth does not bear the burden of simulator solution or ampoule certification. The legislature has determined that the manufacturer is in the best position to test and certify its own product through independent testing. Furthermore, we find that the placing of such a product on the market by the manufacturer, after independent testing, to be certification to the user that the product will produce the intended results per statutory requirement. 67 Pa.Code § 77.24(d), (e). Absent some suggestion that the products were in fact defective, the Commonwealth was under no burden to show certification of the manufacturer’s product. We can find no merit to appellant’s arguments regarding this issue.

Appellant next alleges, citing no authority for his position, that the lower court erred in permitting the Commonwealth to reopen its case. “It is within the discretion of the trial judge to permit either side to reopen its case to present additional evidence.... The trial court has the discretion to reopen a case prior to submission to a jury to prevent a failure or a miscarriage of justice.” Commonwealth v. Mathis, 317 Pa.Super. 226, 232, 463 A.2d 1167, 1171 (1983) (citation omitted). Appellant’s contention is therefore void of merit.

Lastly, appellant brings forth a sufficiency of the evidence issue, the foundation of which was laid by “boilerplate” motions before the court below. See Motion For New Trial And/or Arrest of Judgment, Dec. 3, 1984. This practice is contrary to this court’s admonition in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983)(en banc), and its progeny, that our court would no longer consider issues preserved where they were not specifically set forth in writing and consisted of no more than sentences that “the evidence was insufficient to support the verdict” or that “the verdict was against the weight of the evidence.” “[I]t is no longer merely a warning, but the law, that all issues not specifically raised in post-verdict motions are waived on appeal.” Commonwealth v. Cardona, 316 Pa.Super. 381, 386, 463 A.2d 11, 14 (1983). See also Pa.R.Crim.P. 1123(a), (c)(3). Since, counsel for appellant has not complied with the dictates of Holmes, we cannot grant counsel the benefit of our review.

Having found no issues among those presented by appellant which would warrant reversal of the court below, we affirm the judgment of sentence.

Judgment of sentence affirmed.

JUDGMENT

On Consideration Whereof, it is now hereby ordered and adjudged by this Court that the Judgment of Sentence of the Court of Common Pleas, of York County is Affirmed.

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

      . Appellant was requested to stand with his heels together, head tilted slightly back, and his arms outstretched. Next appellant was to bring both arms in front of his chest with his forefingers outstretched. Appellant was instructed to touch the tip of his nose with his right forefinger, return his arm to the outstretched position, and then repeat the procedure with the left finger. Appellant failed to satisfy this test. See N.T. at 19-21.

      . Appellant was requested to simply recite the alphabet. He was unable to do so. See N.T. at 21-22.

      . Appellant was instructed to walk in a straight direction, turn, and walk back to his original starting point. Appellant almost lost his balance and fell. See N.T. at 22-23.

      . Appellant was asked to focus on the officer’s finger, and to follow its movement without moving his head. Appellant was unable to follow the finger without moving his head. See N.T. at 23-24.

      . Appellant requests this court to address the following:
      A. Whether the intoximeter certificate was admissible.
      B. Whether the Commonwealth properly established the certification of the simulator solutions and ampoules.
      C. Whether the lower court erred in allowing the Commonwealth to reopen [its] case.
      D. Whether the verdict was supported by sufficient evidence. Brief for Appellant at 3.

      . DEPARTMENT OF HEALTH
      Equipment to Determine Blood Alcohol Content Under the Vehicle Code
      The Department of Health has approved the following equipment for determining the alcoholic content of the blood by analysis of a person’s breath. This list of approved equipment replaces the previous list which appeared at 14 Pa.B. 3202 (September 1, 1984), and is published under the authority contained in 75 Pa.C.S. § 1547(c)(1), known as the Vehicle Code....
      Equipment approved under this notice may be used by law enforcement officials to obtain test results which will be admissible in evidence in any summary or criminal proceeding in which the defendant is charged with a violation of 75 Pa.C.S. § 3731 (driving under the influence of alcohol), or any other violation of the Vehicle Code arising out of the same action....
      (a) Type-A equipment. The following equipment is approved for determining the alcoholic content of the blood by analysis of a person's breath:
      ******
      (4) Intoximeters, Inc. St. Louis, Missouri ...
      Intoximeter Model 3000....
      16 Pa.B. 1866 (May 24, 1986). We note that pursuant to 75 Pa.C.S. § 6103(a) PennDOT is granted the general authority to promulgate rules and regulations in carrying out specific powers granted it by statute. Section 6103 is only applicable when PennDOT is authorized to act by some other provision of the Code, Scanlon v. Commonwealth, Dep't. of Transp., 502 Pa. 577, 587, 467 A.2d 1108, 1113 (1983), herein 75 Pa.C.S. § 1547(c)(1). Therefore, we find persuasive those regulations cited within the instant opinion.

      . § 77.6. Accuracy inspection tests for Type A equipment.

        ******

      (c) Certificate of accuracy. Upon completion of the accuracy inspection procedure, the test record used to obtain the average deviation shall be recorded on a certificate of accuracy of a type provided or approved by the Department. The certificate of accuracy shall be signed and dated by the certified breath test operator who performed the accuracy inspection test. This certificate of accuracy shall be presumptive evidence of accuracy referred to in 75 Pa.C.S. § 1547 (relating to chemical testing to determine amount of alcohol or controlled substance).
      (d) Transitional provision. One accuracy inspection test shall be or shall have been performed upon each breath test device within 30 days prior to its being used to conduct the first actual alcohol breath test after January 13, 1983. This accuracy inspection test will start the cycle of 30-day inspection intervals____
      67 Pa.Code § 77.6(c), (d).

      . Appellant cites to us Commonwealth v. Cummings, 338 Pa.Super. 149, 487 A.2d 897 (1985), in support of this very brief argument. We find Cummings, which concerned the admissibility of stopwatch accuracy documentation pursuant to 75 Pa.C.S. § 3368(d), clearly distinguishable on the facts of that case.

      . Simulator solution —An aqueous standard ethanol solution which, when equilibrated with air in a breath simulator device, produces an air-alcohol mixture that is designed to give a reading of .100% on breath test equipment and can be used to inspect or verify the accuracy of breath test devices.

      . Section 77.24 of the Code states, in pertinent part:
      ******
      (d) Simulator solution certification. The manufacturer of simulator solution shall certify to the user that its simulator solution is of the proper concentration to produce the intended results when used for accuracy inspection tests or for calibrating breath test devices. This certification shall be based on gas chromatographic analysis.
      (e) Ampoule certification. The manufacturer of ampoules utilized in Type A breath testing devices shall certify to the user that its ampoules will produce the intended results when used for actual alcohol breath tests, accuracy inspection tests or for calibrating breath test devices. The certification shall be based on laboratory testing conducted utilizing generally accepted scientific methods sufficient to ensure that the ampoules conform to manufacturer specification.
      67 Pa.Code § 77.24(d), (e).

        . We note in passing that appellant’s argument is meritless. See Commonwealth v. McGinnis, 336 Pa.Super. 601, 486 A.2d 428 (1984); Commonwealth v. Whiteman, 336 Pa.Super. 120, 485 A.2d 459 (1984); Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984). See also footnotes 2-5 and accompanying text, supra.


author: TAMILIA, Judge:

text:
    512 A.2d 679
    COMMONWEALTH of Pennsylvania, v. Eric MAXWELL, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 20, 1986.
    Filed July 7, 1986.

      Spero T. Lappas, Harrisburg, for appellant.
    William A. Behe, Chief Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before CIRILLO, President Judge, and TAMILIA and HESTER, JJ.
   TAMILIA, Judge:

This is an appeal from judgment of sentence entered after appellant’s conviction by a jury of robbery and criminal conspiracy. Appellant was sentenced to five to ten years imprisonment on each count, to be served at the expiration of a life sentence currently being appealed at No. 703 HBG. 1985.

For a clear understanding of this case, it is necessary that we summarize the facts and procedures as they relate to other cases involving the appellant, which were tried separately.

The charges against appellant stem from the robbery of a local food market in Steelton, Pennsylvania. On March 15, 1984, appellant entered the store, placed a gun at the head of a cashier and obtained two cash drawers. Appellant then left the store with one cash drawer and entered an automobile registered in his name and driven by a codefendant, Victor Lewis Johnson.

After his arrest on other unrelated charges, appellant made a statement to a detective of the Harrisburg Police Department in which he admitted responsibility for the robbery. Appellant further indicated he was solely responsible for the robbery and that Victor Johnson played no role whatsoever in the planning of the crime.

Appellant was also charged in connection with the unrelated robbery and homicide which occurred at another store subsequent to the robbery at issue herein. The robbery and homicide charges were docketed to No. 1517 C.D. 1984 and No. 1517(a) C.D. 1984. The instant action was docketed to No. 1517(b) C.D. 1984. Originally, these cases were to be joined for trial; however, pursuant to appellant’s motion for severance, 1517 and 1517(a) were tried together and separate from the action herein. Included in appellant’s motion to sever was a motion to suppress the aforementioned statement he had made to the detective. The statement included admissions relative to all three docketed cases.

Prior to the trial on Nos. 1517 and 1517(a), a hearing was held before Judge Schaffner on the motion to suppress wherein the statement was found to be made voluntarily by appellant without duress, when he was in command of his faculties and after being apprised of his constitutional rights. The statement was held valid and permissible for use at trial of the cases docketed to 1517 and 1517(a).

When the instant action was subsequently called for trial, before Judge Lipsitt, appellant suggested to the court that there was an outstanding suppression motion to be resolved. The court determined that the earlier disposition by another judge on the same issue was a final Order and thus it could not reach a second decision on the same question of admissibility.

Appellant now contends the lower court should have granted his suppression motion because the Commonwealth failed to sustain its burden of proof at the suppression hearing. Appellant argues the Commonwealth cannot sustain their burden of proof by relying on an earlier decision as to the admissibility of the statement without presenting evidence a second time.

We find that this issue is not properly before us for review. The proper procedure for preserving appeal rights from a second suppression hearing when separate suppression hearings arise from a single arrest, was recently enunciated by the Pennsylvania Supreme Court in Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986). The court held that,

... in those instances where two prosecutions arise out of a single search and/or seizure, a decision by a suppression judge during the first prosecution can, upon the motion of the previous prevailing party, become part of the second prosecution. The party against whom this decision is being offered may offer any new evidence which was previously unavailable. See generally Pa.R.Crim.P. 323(j). Absent such new evidence the suppression judge in the second prosecution must adopt the findings and conclusions of the first judge, and incorporate them into the record. Thereupon, the party against whom the first decision is offered may have the validity of the decision reviewed on appeal. (509 A.2d at 866) (footnote omitted)

Therefore, we remand for the Commonwealth to motion nunc pro tunc for integration of the first suppression hearing record into the record of the second hearing. Further hearings on that motion will be limited to new evidence only. Then, if necessary, post-trial motions could be raised and then considered by the court below. Appellant need not object to the introduction of evidence at trial in order to preserve a suppression issue for appellate review. See Commonwealth v. Burchard, 349 Pa.Super. 456, 503 A.2d 936 (1986). However, he must renew his suppression motion at the post-trial stage.

Those matters appellant attempted to raise at trial and on appeal as to the validity of the lower court’s suppression findings are subject to review in the post-trial proceedings in the same manner as any other allegation of error. Upon consideration of the post-trial motions and findings by the court, the matter will then have been properly preserved for appeal. Burchard, supra. An appeal of such decision to this Court would then be proper.

In the interest of judicial economy, we will address appellant’s two remaining allegations of error which we find meritless. Appellant further argues that the lower court erred in denying his motion to suppress the identification testimony of Constance Williams, the cashier at the market where the robbery occurred. The lower court permitted Ms. Williams to testify at trial and make an in-court identification of appellant. Appellant asserts that Ms. Williams identification is inherently unreliable because she only had a brief opportunity to view the robber and she was hysterical during the ordeal. Additionally, appellant argued that the witness’s in-court identification was further tainted by a preliminary hearing proceeding at which she observed appellant obviously singled out as the suspect for the crime.

There are three threshold requirements which the Commonwealth must meet in order to introduce Ms. Williams identification testimony. First, the victim must be present to testify as to the events that transpired between the victim and the accused and as to identity of the appellant as the actor. Second, the victim must possess knowledge of and an ability to reconstruct the prior criminal episode and to identify the appellant from observations of him at the time of the crime. Third, appellant must be present in the courtroom so that the victim can observe him and compare his appearance to that of the offender. Commonwealth v. W.P., 302 Pa.Super. 66, 448 A.2d 97, 99 (1982), citing United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 1249, 63 L.Ed.2d 537 (1980).

Constance Williams was present at appellant’s trial and testified at length as to the circumstances of the robbery. Ms. Williams was also able to reconstruct the crime and testified that appellant was in the store for about (10) ten minutes (T.T. 1/22/85 p. 13) and that he confronted her face to face. (T.T. 1/22/85 p. 53) She testified that he wore no mask and his face was otherwise unobstructed. (T.T. 1/22/85 p. 12) Ms. Williams was also able to give the police a full description of her assailant after the incident. (T.T. 1/22/85 p. 18) Ms. Williams identified appellant, both at the preliminary hearing and at trial, as the perpetrator of the robbery.

Furthermore, we agree with the lower court’s holding that, relative to appellant’s contention that the prior identification as such tainted the in-court identification, even when an improper pre-trial identification has been made, an in-court identification is admissible if it has a sufficient independent basis. Commonwealth v. Connolly, 478 Pa. 117, 120-121, 385 A.2d 1342, 1344 (1978).

Finally, appellant argues that the lower court erred in denying his demurrer to the charge of conspiracy. Appellant contends that a person who commits a robbery is not guilty of criminal conspiracy as well, simply because he is seen in the company of another person who drives him away from the scene of the crime. It is asserted that there is no evidence of a pre-existing agreement and no evidence that Victor Johnson, as he waited outside, knew appellant intended to rob the market.

In assessing appellant’s claim of insufficient evidence to support a conviction of conspiracy, we must regard all the evidence in the light most favorable to the Commonwealth, accepting as true all evidence upon which the fact finder could have based the verdict and then we must ask whether that evidence, along with all reasonable inferences to be drawn therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Volk, 298 Pa.Super. 294, 300, 444 A.2d 1182, 1184 (1982).

The evidence presented at trial established that appellant and Victor Johnson arrived at the scene together in a vehicle registered to the appellant. Johnson parked the vehicle to the rear of the market and remained at that location while the robbery was in progress. (T.T. 1/22/85 p. 94) After leaving the store, with the fruits of the robbery, appellant went directly to the vehicle in which Johnson was waiting and got inside. (T.T. 1/22/85 p. 93) The vehicle, driven by Johnson, immediately sped away and proceeded the wrong way on a one-way street. (T.T. 1/22/85 p. 70) Additionally, the evidence showed that Johnson shared in the fruits of the robbery. (T.T. 1/22/85 p. 93)

“The crime [of conspiracy], by its very nature, is frequently not susceptible of proof except by circumstantial evidence.” Commonwealth v. Carter, 272 Pa.Super. 411, 414, 416 A.2d 523, 524 (1979). Although presence at the scene of the crime and participation in the object of the conspiracy are not sufficient independently to prove confederation, when they are in conjunction with each other, and in the context in which they occurred, they may be sufficient to furnish a web of evidence linking the accused to the conspiracy. Carter, 272 Pa.Superior Ct. at 414, 416 A.2d at 524.

It seems clear from a review of the evidence that appellant had Victor Johnson accompany him for the express purpose of his getaway from the scene of the crime. The jury in this case concluded that appellant was guilty of criminal conspiracy and our review persuades us there was sufficient evidence to support that finding.

Therefore, we affirm the trial court as to issues two and three. However, as to issue one, remand is necessary for the Commonwealth to motion nunc pro tunc for the record of the suppression hearing held on November 5, 1984 to be incorporated as the suppression hearing in the instant action. Appellant may then file post-trial motions to be considered by the trial court following which an appeal may be taken to this Court.

Case remanded for proceedings consistent with this Opinion, jurisdiction relinquished.

JUDGMENT

ON CONSIDERATION WHEREOF, it is now hereby ordered and adjudged by this Court that the appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County is remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . The instant action is unrelated to appellant’s other appeal before this panel at Commonwealth v. Maxwell, No. 703 Hbg. 1985 (J-32008/86), although the crimes giving rise to the respective appeals occurred on the same date and appellant was sentenced in both cases on the same day.


author: CIRILLO, President Judge: BECK, Judge,

text:
    512 A.2d 683
    Marion PRIESTER and Arietta Priester, Appellants, v. FAYETTE COUNTY CHILDREN AND YOUTH SERVICES.
    Superior Court of Pennsylvania.
    Argued Jan. 28, 1986.
    Filed July 7, 1986.

      John S. Cupp, Jr., Connellsville, for appellants.
    Mary W. Terry, Uniontown, for appellee.
    Before CIRILLO, President Judge, and DEL SOLE and BECK, JJ.
   CIRILLO, President Judge:

This is an appeal from a final judgment dismissing appellant’s complaint for custody due to lack of standing. We affirm.

The basic facts of this case are undisputed. Appellants, Marion and Arietta Priester, seek custody of Karen Ann Bowers, a minor child. Appellee, Fayette County Children and Youth Services, initially approved appellants as foster parents and placed the minor child in their home for approximately two years.

Pursuant to a court order, however, appellee removed the minor child from the foster home. Appellee placed the child in another foster home in which the child’s brother resided. Appellants have not had custody of the child since that time. Appellants claim no relation to the child by blood or marriage. The natural mother of the child died before the final judgment was entered by the trial court. The location of the child’s natural father is unknown. Appellee has declined appellants’ request for custody of the child.

The sole issue presented for our review is: Whether appellants, former foster parents who no longer have possession of the child, lack standing to pursue an action for custody? We answer in the affirmative.

Foster care has been defined as a “ ‘child welfare service which provides substitute family care for a planned period for a child when his own family cannot care for him for a temporary or extended period, and when adoption is neither desirable nor possible.’ ” Smith v. Organization of Foster Families, 431 U.S. 816, 823, 97 S.Ct. 2094, 2099, 53 L.Ed.2d 14 (1977), citing Child Welfare League of America, Standards for Foster Family Care Service 5 (1959).

The distinctive features of foster care are first, “ ‘that it is care in a family, it is noninstitutional substitute care,’ ” and second, “ ‘that it is for a planned period — either temporary or extended. This is unlike adoptive placement, which implies a permanent substitution of one home for another.’” 431 U.S. at 824, 97 S.Ct. at 2099, citing A. Kadushin, Child Welfare Services 355 (1967). (Emphasis in original).

In Commonwealth ex rel. Ebel v. King, 162 Pa.Super. 533, 58 A.2d 484 (1948), this Court held that foster parents did not possess standing to bring a habeas corpus proceeding to obtain legal custody of a three year old boy that had been placed in their home for a period of approximately one and one-half years prior to being removed to another foster home. See Annot., 21 A.L.R.4th 535, 555 (1983). More recently, in the case of In Re Adoption of Crystal D.R., 331 Pa.Super. 501, 480 A.2d 1146 (1984), we ruled that foster parents have no standing to filé a petition for termination of parental rights. We interpreted 23 P.C.S. § 2512, which enumerates those who are eligible to petition for involuntary termination of parental rights, to exclude foster parents.

In the case sub judice, however, the foster parents seek custody as opposed to termination of parental rights. We need not address the distinction between these two proceedings. The natural parents play no role in our analysis; the mother is deceased and the location of the father is unknown.

The singular focus of our review is one of standing for foster parents who seek to gain custody of a foster child formerly in their care. By its very nature, the foster parent/foster child relationship “ ‘implies a warning against any deep emotional involvement with the child since under the given insecure circumstances this would be judged as excessive.’” In Re Adoption of Crystal D.R., 331 Pa.Super. 501, 510, 480 A.2d 1146, 1151 (1984), quoting J. Goldstein, A. Freud, and A. Solnit, Beyond the Best Interests of the Child 24 (1973).

This Court has previously ruled that the “overriding goal in any child custody matter is to render a decision encompassing the ‘best interests’ of the child.” Parker v. MacDonald, 344 Pa.Super. 552, 559, 496 A.2d 1244, 1247-48 (1985), citing Gonzalez v. Gonzalez, 337 Pa.Super. 1, 486 A.2d 449 (1984). This term has been defined as including the child’s physical, intellectual, moral and spiritual well-being. Hartman v. Hartman, 328 Pa.Super. 154, 476 A.2d 938 (1984). Preliminarily, however, we must determine whether appellant has a legally recognizable basis upon which to argue these principles.

There is an absence of controlling authority specifically on point. One Pennsylvania court has held that “foster parents have no standing to adopt a child placed in their custody until the absolute, unequivocal, written consent of the children’s legal custodian or other person whose consent was necessary was given.” Annot., 21 A.L.R.4th 535, 547 (1983), citing, In Bolte Adoption, 67 Montg. 106 (1951). In the case subjudice, it seems that appellee has legal custody of the minor child under consideration, as seen in contradistinction to .mere temporary physical possession, 23 P.S. § 1003, which now rests with foster parents who are not involved in this proceeding.

Prior decisions of this Court and the Pennsylvania Supreme Court have noted the preferred scenario that siblings should be raised together. Albright v. Commonwealth ex rel. Fetters, 491 Pa. 320, 421 A.2d 157 (1980); Ferencak v. Moore, 300 Pa.Super. 28, 445 A.2d 1282 (1982). The minor child under consideration now resides in a foster home together with her sibling. We must balance the great need for stability, which is an integral part of healthy human development, with the realization that foster care is, by its very nature, temporary.

The issues that influence a child’s development are among the most important matters that we consider. After a careful review of the equities and circumstances of this case, we find that the best interests of the minor child herein are served by permitting appellee to maintain legal custody. Appellant has no standing to contest this custody determination. The purpose of the appellee organization is to protect the interests of children such as the one whose custody appellant seeks. Whereas everyone involved naturally wants whatever serves the best interests of the child, we conclude that the best interests of the child herein are served by contributing to a stable upbringing.

‘Legal Custody’. The legal right to make major decisions affecting the best interests of a minor child, including, but not limited to, medical, religious and educational decisions.
‘Physical Custody’. The actual physical possession and control of a child.

Accordingly, the judgment of the court of common pleas must be affirmed.

BECK, J., files a concurring opinion

BECK, Judge,

concurring:

While I agree with the majority’s conclusion, I write separately to emphasize the important role of state regulations in this area of the law which grant foster parents the right to appeal the relocation of a foster child.

The Foster Family Care Agency regulations provide, inter alia:

§ 3700.73 Foster parent appeal of child relocation.
(a) Foster parents may appeal the relocation of a child from a foster family home except under the following conditions:
(1) the child has been with the foster family less than six months;
(2) the removal is initiated by the court;
(3) the removal is to return the child to his parents;
(4) the removal is to place the child for adoption; or
(5) an investigation of a report of alleged child abuse indicates the need for protective custody removal to protect the child from further serious physical or mental injury, sexual abuse, or serious physical neglect as defined in Chapter 3490 (relating to child protective services — child abuse).
(b) The FFCA shall inform foster parents in writing that they may appeal the relocation of a child in accordance with subsection (a) at least 15 days prior to the relocation of the child.
(c) Foster parents who wish to appeal the relocation of a child must submit to the FFCA a written appeal to be postmarked no later than 15 days after the date of the notice of their right to appeal the child’s relocation.

55 Pa.Code § 3700.73 (emphasis added).

Although appellants clearly had a right to appeal the relocation of the child, they apparently did not exercise it. Appellants claimed in the court below that appellee Fayette County Children and Youth Services failed to notify them of the planned relocation in accordance with the provisions of Section 3700.73(b). (Record at 16a). Nonetheless, appellants did not raise the issue of compliance with Section 3700.73 for our review and consequently we may not address it. See Pa.R.A.P. 2116(a); Commonwealth v. Gray, 339 Pa.Super. 385, 391 n. 3, 489 A.2d 213, 216 n. 3 (1985).

While consideration of the provisions of Section 3700 does not affect the result reached by the majority, I believe it is important to recognize the authority of the state regulations and the protections they afford foster parents.

      . § 2512. Petition for involuntary termination
      (a) Who may file. — A petition to terminate parental rights with respect to a child under the age of 18 years may be filed by any of the following:
      (1) Either parent when termination is sought with respect to the other parent.
      (2) An agency.

        (3) The individual having custody or standing in loco parentis to the child and who has filed a report of intention to adopt required by section 2531 (relating to report of intention to adopt).
      (b) Contents. — The petition shall set forth specifically those grounds and facts alleged as the basis for terminating parental rights. The petition filed under this section shall also contain an averment that the petitioner will assume custody of the child until such time as the child is adopted. If the petitioner is an agency it shall not be required to aver that an adoption is presently contemplated nor that a person with a present intention to adopt exists.
      (c) Father not identified. — If the petition does not identify the father of the child, it shall state whether a claim of paternity has been filed under section 8303 (relating to claim of paternity).
      1980, Oct. 15, P.L. 934, No. 163, § 1, effective Jan. 1, 1981.

      . § 1003 Definitions


author:
DEL SOLE, Judge:
      TAMILIA, Judge,

text:
    512 A.2d 686
    Harold A. DONALDSON and Laura Donaldson, his wife, Appellants, v. Robert RITENOUR, Connie Ritenour Hensel, Alvin M. Chanin, and Myra Chanin, his wife, Harvey Porter and Anna C. Porter, his wife, and their respective heirs, devises executors, administrators and assigns.
    Superior Court of Pennsylvania.
    Argued Dec. 16, 1985.
    Filed July 9, 1986.

      Joseph E. Ferens, Uniontown, for appellants.
    Daniel G. Reilly, Uniontown, for appellees.
    Before ROWLEY, DEL SOLE and TAMILIA, JJ.
   DEL SOLE, Judge:

This is an appeal from an order granting Appellees preliminary objections and dismissing Appellants’ complaint without leave to amend. The complaint was filed in an action to quiet title regarding certain tax sale property. For the following reasons we transfer this case to the Commonwealth Court.

The property in question was conveyed by Appellees, Alvin M. and Myra Chanin, and Harvey and Anna C. Porter with the following terms: life estate in Robert Ritenour, at his death to his daughter, Connie Ritenour, until she reaches twenty-one, then to the grantors in fee simple absolute. On May 22, 1979 the life tenant who was in possession of the property received notice that the Fayette County Tax Claim Bureau was exposing the subject property to public sale for delinquent and unpaid taxes. Notice was not given to Connie Ritenour or to grantors, Appellees. Shortly thereafter, on June 10 of 1979 Connie Ritenour celebrated her twenty-first birthday. The tax sale was held on September 10, 1979, and in February of 1980 Mr. and Mrs. Romansky acquired title to the premises by deed of the Bureau. In October of 1983 Robert Ritenour died, and the property was subsequently conveyed by the Romanskys to Appellants in January of 1984.

At the issue in this case is whether the Bureau complied with the notice requirements of the Real Estate Tax Sale Law, Act of July 7, 1947, P.L. 1368. as amended, 72 P.S. § 5860.101 et seq. The Real Estate Tax Sale Law requires that notice of the claim and notice of the impending sale be sent to the “owner”. The trial court found that the tax sale did not divest Appellees’ interest in the property since they failed to receive notice of the sale. Appellants on appeal question the trial court’s determination.

Upon examination, we conclude that this case involving interpretation of the Real Estate Tax Sale Law, must be transferred to the Commonwealth Court.

The Commonwealth Court has jurisdiction over:

(4)(i) ... All actions or proceedings ... where is drawn in question the application, interpretation or enforcement of any: ... (A) statute regulating the affairs of political subdivisions, municipality and other local authorities ... 42 Pa.C.S.A. § 762.

The statute in question provides for creation of a taxing claim bureau in counties of the second through the eighth classes. 72 P.S. § 5860.201. The statute also provides the Bureau with powers to collect taxes, and conduct sales of property. 72 P.S. § 5860.601. Prior to any scheduled sale the Bureau is required by statute to give notice of the sale. 72 P.S. § 5860.602. It is the interpretation of this notice requirement and its relation to the statutory definition of “owner” which are at issue in the instant case. See: 72 P.S. § 5860.102. The Commonwealth Court has repeatedly recognized its jurisdiction over this area of the law, and considered and resolved cases with similar issues. See: Kleinberger v. Tax Claim Bur. of Lehigh County, 64 Pa.Commw.Ct. 30, 438 A.2d 1045 (1982); In re Upset Sale, Tax Claim Bur. of Bucks County, 48 Pa.Commw.Ct. 435, 410 A.2d 376 (1980); Brown v. Barnes Real Estate Co., 44 Pa.Commw.Ct. 439, 404 A.2d 437 (1979); Povlow v. Brown, 12 Pa.Commw.Ct. 303, 315 A.2d 375 (1974).

Although the parties have not objected to this Court’s lack of jurisdiction, we find as we did in Eldred Twp. v. Monroe County, 330 Pa.Super. 74, 478 A.2d 1357 (1984) that:

It is also true here that:

As in Commonwealth v. Sensi, supra, we believe the Commonwealth Court’s greater expertise in the issues raised here make transfer to that court appropriate. Moreover, transfer to this case will prevent unnecessary confusion and lack of coordination, since Commonwealth Court will be the forum for similar cases in this ... area of the law ...
Osser v. City of Philadelphia, 295 Pa.Super. 447 at 449, 441 A.2d 1317 at 1318 (1982); citing Commonwealth v. Sensi, 287 Pa.Super. 452 at 454, 430 A.2d 691 at 692 (1981).

330 Pa.Super. 76, 478 A.2d 1357 at 1358.

In light of the above, this case is transferred to Commonwealth Court.

TAMILIA, J., files a dissenting opinion.

TAMILIA, Judge,

dissenting:

I respectfully dissent to the transfer of this case to the Commonwealth Court because this matter is not within the exclusive jurisdiction of the Commonwealth Court nor is it mandatory for the Superior Court to transfer a case after jurisdiction is perfected and appellee has failed to object to Superior Court jurisdiction. Overstreet v. Borough of Yeadon, 327 Pa.Super. 291, 475 A.2d 803 (1984); Schultz v. City of Philadelphia, 314 Pa.Super. 194, 460 A.2d 833 (1983); Jost v. Phoenixville Area School District, 267 Pa.Super. 461, 406 A.2d 1133 (1979); 42 Pa.C.S.A. § 704; Pa.R.A.P. 741. Judge Del Sole contends this case must be transferred to the Commonwealth Court because it involved an interpretation of the Real Estate Tax Sale Law (72 P.S. § 5860.101 et seq.) and the Commonwealth Court has exclusive jurisdiction under 42 Pa.C.S.A. § 762(a)(4)(i)(A). Despite the failure of either party to object to the exercise of jurisdiction by this Court, the majority would transfer this case in order to take advantage of the greater expertise of the Commonwealth Court on the issues and to provide a uniform body of law. As we discuss below, this expertise and uniformity, which derives from Commonwealth Court exercise of jurisdiction, is not relevant to this case and transfer would simply delay the determination of this matter.

The jurisdictional basis relied upon by the majority reads as follows:

(a) ... [T]he Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in the following cases:
(4) Local government civil and criminal matters.—
(i) All actions or proceedings arising under any municipality, institution district, public school, planning or zoning code or under which a municipality or other political subdivision or municipality authority may be formed or incorporated or where is drawn in question the application, interpretation or enforcement of any:
(A) statute regulating the affairs of political subdivisions, municipality and other local authorities ...;

42 Pa.C.S.A. § 762(a)(4)(i)(A).

This case involves neither a local government civil matter nor a statute regulating the affairs of a political subdivision but constitutes only litigation between private parties over private property rights. By a deed dated July 11, 1975 and recorded in Fayette County, appellees conveyed the property in question under the following terms: life estate in Robert Ritenour, at his death to his daughter, Connie Riten-our, until she reaches twenty-one then to grantors in fee simple. Robert Ritenour, the life tenant in possession, received notice of the tax sale on May 22, 1979. This property was sold at a tax sale in Fayette County on September 10, 1979, appellees never having received prior notice of the sale. On January 3, 1984, appellants acquired title from the purchasers at the tax sale. Appellants filed a complaint in an Action to Quiet Title on March 23, 1984 after which appellees filed a preliminary objection in the nature of a demurrer. The lower court found appellees had a vested interest in the property in question irrespective of whether appellees were owners or entitled to notice under the Real Estate Tax Sale Law (72 P.S. § 5860.101 et seq.). The lower court held that appellants could not prevail in their Action to Quiet Title because the purchasers at the tax sale acquired only a life estate interest which had ended prior to their conveyance to appellants.

In Bethlehem Tp. v. Emrick, 77 Pa.Commw. 327, 465 A.2d 1085 (1983) rev’d on other grounds, 506 Pa. 372, 485 A.2d 736 (1984), a township brought an action to quiet title to land which had been conveyed to it. The Commonwealth Court stated that jurisdiction over the appeal properly lay in the Superior Court since the proceedings were not within the class of cases over which they had appellate jurisdiction pursuant to 42 Pa.C.S.A. § 762, but decided the case since appellee failed to object to their jurisdiction. Id. 465 A.2d at 1086. In Wheatcroft v. Auritt, 226 Pa.Super. 118, 312 A.2d 441 (1973), we construed affairs of a political subdivision to mean its general operations and held that the general operations of a political subdivision were not regulated by the discharge and preservation of liens in a tax sale.

The case at hand does not involve the general operations of a political subdivision but the determination of property interest of private individuals in the nature of an action to quiet title.

Even if this case falls within the exclusive jurisdiction of the Commonwealth Court, it is not mandatory upon this Court to transfer this case because none of the parties have objected to jurisdiction. The failure of an appellee to file an objection to the jurisdiction of an appellate court operates to perfect appellate jurisdiction of such court notwithstanding any provision of the law vesting jurisdiction of such appeal in another appellate court (42 Pa.C.S.A. § 704, Pa.R.A.P. 741). In Graffigna v. City of Philadelphia, 351 Pa.Super. 74, 505 A.2d 271 (1986) Judge Del Sole stated:

We note at this point that § 762 of the Commonwealth Court jurisdictional statute has permitted the interpretation of certain statutes dealing with local government units and agencies, for example, the Public Employee’s Relations Act and the Political Subdivision Tort Claims Act to come before our court or Commonwealth Court. Indeed, some overlapping of appellate jurisdiction was foreseen by the Legislature and thus 42 Pa.C.S.A. § 704 provides that the failure of an appellee to object to jurisdiction of an appellate court operates to perfect jurisdiction of that appellate court notwithstanding any other provisions of the title — including, obviously, the portion of § 762 cited earlier in this opinion. Sections 704 and 705 also provide that the appellate court can transfer an appeal on its own motion,____ (footnotes omitted)

Id., 351 Pa.Superior Ct. at 377-378, 505 A.2d at 272.

The term jurisdiction used in 42 Pa.C.S.A. § 704 is used to denote which appellate court has primary responsibility for a particular matter and permits an appellate court in which a matter is erroneously filed to dispose of the matter in its discretion, absent timely objection. Commonwealth v. Sudler, 496 Pa. 295, 436 A.2d 1376 (1981). When parties have failed to object to jurisdiction, this Court has exercised its discretion to decide the case based on considerations of judicial economy. Overstreet, Schultz, Jost, supra. Based on these considerations, this Court should decide the case at hand.

This case does not require the expertise of the Commonwealth Court. In First Pennsylvania Bank v. Lancaster County Tax Claim Bureau, 504 Pa. 179, 470 A.2d 938 (1983), the Pennsylvania Supreme Court ruled that the notice provisions of the Real Estate Tax Sale Law (72 P.S. § 5860.602), which did not require either personal service or notice by mail to record mortgagees, violated due process. This principle was extended to cover judgment creditors in In re Upset Sale, Tax Claim Bureau of Berks, 505 Pa. 327, 479 A.2d 940 (1984). It would be incongruous to require notice of a tax sale to mortgagees and judgment creditors but not to appellees, whose vested property interest is also a matter of record.

For the foregoing reasons, I dissent to the transfer of this case to the Commonwealth Court and would affirm the Order of the lower court.