source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    574 A.2d 1161
    COMMONWEALTH of Pennsylvania v. Gary WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued March 14, 1990.
    Filed May 17, 1990.

      Peter Hall, Asst. Public Defender, Doylestown, for appellant.
    Alan M. Rubenstein, Dist. Atty., Doylestown, for Com., appellee.

      Before ROWLEY, BECK and MONTGOMERY, JJ.
   BECK, Judge:

Gary Williams was tried by a jury and convicted of three offenses: loitering and prowling disorderly conduct, and open lewdness. On appeal from his judgment of sentence, he argues that the evidence adduced at trial was insufficient to sustain the jury’s verdict as to each of these crimes. After careful consideration, we conclude that the evidence is insufficient to support the conviction for open lewdness and for disorderly conduct, but that the evidence is sufficient to support the conviction for loitering and prowling.

Viewed in the light most favorable to the Commonwealth as verdict winner, the essential facts are as follow. On May 1,1988, shortly after midnight, appellant drove into the parking lot surrounding the Century Lane Apartments in Bensalem Township, Bucks County. The parking area was designed for the use of residents of the apartment complex and their guests. Appellant removed his trousers, exited his car, and began pacing nervously through the lot. He was clothed in a T-shirt and in underwear that consisted of elastic tight-fitting briefs. Holly Thoxton, a resident of the complex, looked through her apartment window and saw appellant entering a 1984 Ford Mustang that she knew was owned by her neighbor, Anita Nelson. The Ford Mustang was parked approximately thirty-five feet away from the front door of Thoxton’s apartment.

Thoxton called the police. When the police arrived, they observed appellant crouching down on the passenger side of the Ford Mustang. They contacted Anita Nelson, who said that she did not know the appellant. Nelson also stated that she had locked her car doors. She later examined her car and noticed that the molding around the front windows had been bent out of shape and that the windows could not be closed.

Appellant was arrested and charged with attempted auto theft, as well as open lewdness, disorderly conduct, and loitering and prowling. Following a trial by jury, he was acquitted of attempted auto theft and convicted of the three other charges. Post-trial motions were denied, and on August 7, 1989, he received sentences of four and a half months to one year on each of the three counts. The court specified that each of the sentences were to be served consecutively so that the total period of imprisonment would be thirteen and a half months to three years. From this judgment of sentence, appellant filed a timely appeal.

Appellant challenges the sufficiency of the Commonwealth’s evidence. Our standard of review is well established.

The test for the sufficiency of the evidence in a criminal case is whether the evidence is sufficient to prove every element of the crime beyond a reasonable doubt. See Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder properly could have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980).

Commonwealth v. Hughes, 521 Pa. 423, 430, 555 A.2d 1264, 1267 (1989).

We first consider the sufficiency of the evidence of open lewdness. Section 5901 of the Crimes Code states: “A person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.” For present purposes, we may assume that when appellant walked through the apartment parking lot without his trousers, he knew that he would be likely to be observed by the residents and that the residents would be offended. We must decide if appearing in a public place in one’s underwear is a “lewd act” within the meaning of the statute.

In Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244 (1976), the Pennsylvania Supreme Court provided the following commentary on section 5901.

Open lewdness was an indictable offense at common law. It was defined as an act of gross and open indecency which tends to corrupt the morals of the community. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665 [670], 92 L.Ed. 840, 849 (1948); Commonwealth v. Sharpless, 2 Serg. § R. 91, 100 (1815); IV Blackstone Commentaries 64 n. 38 (W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4 (1948). While the language of the challenged Pennsylvania lewdness statute differs in some respects from the common law definition, there is no difference in meaning. The statute in question is a verbatim adoption of the lewdness provision of the Model Penal Code, ALI, Model Penal Code, Proposed Official Draft 251.1. The comment to that section makes it clear that the drafters intended to codify the pre-existing common law:
“Lewd or indecent behavior is punishable in all jurisdictions. The prohibited conduct amounts to gross flouting of community standards in respect to sexuality or nudity in public.” ALI, Model Penal Code, Tentative Draft No. 13 §§ 213.4 & 251.1 Comment at p. 81.

467 Pa. at 8, 354 A.2d at 247.

In Heinbaugh, a defendant who was charged with masturbating in a public place argued that the open lewdness statute was unconstitutionally vague. . The Court noted in its 1976 opinion that the “broadening of sexual permissiveness which is an undeniable aspect of contemporary American society may have served to shrink the perimeters of community morality____” and that “there might be ... conduct, clearly punishable at the time of Blackstone, which could not today be constitutionally punished under the statute.” Id., 467 Pa. at 9, 354 A.2d at 248. However, the Court found that the defendant’s conduct was clearly indecent even by contemporary standards and that, as applied to the defendant, section 5901 was constitutional.

The Court again considered section 5901 in Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309 (1978). The precise holding of Allsup was that sexual acts performed before a paying audience in an enclosed area are not prohibited by the statute since no one who had paid to see the performance would be likely to be affronted or alarmed. During the course of the opinion, the majority summarized the Pennsylvania case law on open lewdness:

All prosecutions have been based, as the A.L.I.’s Criminal Law Advisory Committee states in its commentary, supra, on a “gross flouting of community standards in respect to sexuality or nudity in public.” See Commonwealth v. Heinbaugh, supra (masturbation in public); Commonwealth v. Davidson, 220 Pa.Super. 451, 289 A.2d 250 (1972) allocatur refused, 221 Pa.Super. xlix (naked motorist stopped young lady to ask directions); Commonwealth v. Falcone, 202 Pa.Super. 474, 198 A.2d 421 (1964) (masturbation in a public cemetery); Commonwealth v. Warner, 51 Pa.D. & C.2d 63 (C.P.Centre Cnty.1971) (defendant disrobed in public, made uninvited visits to private homes, and entered a public pizza parlor); Commonwealth v. Anzulewicz, 42 Pa.D. & C.2d 484 (Q.S.Mont. Cnty.1967) (display of genitalia in private dwellings but in front of window where a neighboring family “in the reasonable use of [their] house” could not help but observe defendant’s activities); Commonwealth v. Helms, 38 Pa.D. & C.2d 496 (Q.S.York Cnty.), aff’d per curiam, 206 Pa.Super. 743, 213 A.2d 389 (1965) (no offense made out where defendant’s nudity was in private trailer and prosecution witness had to observe through small, louvred window); Commonwealth v. Alessi, 29 Erie 172 (Q.S.1947) (masturbation in a private home but before large window facing public street).

481 Pa. at 319, 392 A.2d at 1312 (footnote omitted).

Viewed against the background of these precedents, appellant’s challenge to the sufficiency of the evidence of open lewdness has merit. All of the reported Pennsylvania cases on open lewdness involved public masturbation or public displays of genitalia. Here, the Commonwealth merely established that appellant walked through a parking lot in a T-shirt and underwear. It must be emphasized that section 5901 does not proscribe all conduct that might be described as bizarre, or offensive, or distasteful, or as a breach of proper etiquette. Section 5901 extends only to conduct that: 1) involves public nudity or public sexuality, and 2) represents such a gross departure from accepted community standards as to rise to the level of criminal liability. Appellant’s behavior cannot reasonably be found to fall within the purview of the statute. A person who is wearing a T-shirt and underwear is not appearing in the nude, and walking about in underwear may be a foolish act but is not a sexual act. We hold that the evidence of the crime of open lewdness was insufficient as a matter of law.

We next address the sufficiency of the evidence of disorderly conduct. Disorderly conduct is defined in relevant part as follows:

(a) Offense defined.— A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.

18 Pa.Cons.Stat.Ann. § 5503.

Appellant argues that the evidence at trial was insufficient to prove that he created a “hazardous or physically offensive condition” within the meaning of the statute. We agree.

Initially, we find that appellant did not create a “hazardous condition”. A “hazardous condition” is a condition that involves danger or risk. Commonwealth v. Roth, 366 Pa.Super. 575, 582, 531 A.2d 1133, 1137 (1987). The dangers and risks against which the disorderly conduct statute are directed are the possibility of injuries resulting from public disorders. For example, in the Roth case, a group of between twenty and thirty demonstrators attempted to enter a church during Easter Sunday services and dump scrap iron on the altar. Members of the congregation were frightened for their safety and were determined to prevent the demonstrators from trespassing on church property. After the demonstrators repeatedly refused to disperse, they were arrested and charged with disorderly conduct. On appeal, we found that the demonstrators had created a hazardous condition since “altercations between the demonstrators and Church members could have occurred.” Id., 366 Pa.Superior Ct. at 583, 531 A.2d at 1137.

On the other hand, we cannot conclude on the basis of the record in this case, that appellant created a significant risk or danger of injury to anyone. Appellant walked silently through a residential parking lot after midnight and entered a vacant car. His conduct was neither boisterous nor confrontational. He did not threaten any residents of the apartment house. There is no evidence that he distracted passing motorists or obstructed any exit or thoroughfare. The most serious consequence of appellant’s odd behavior was that a single vehicle in the lot sustained damage to the molding around its windows. Such minor act of vandalism cannot be said to constitute a hazardous condition.

In an effort to sustain the conviction, the Commonwealth contends that a hazardous condition existed because a resident of the apartment complex contacted the police. The Commonwealth reasons that police vehicles speeding to the apartment building could have created traffic hazards on the roadways, and that police officers investigating the incident may not have responded as promptly to other calls. This argument proves too much. Under the Commonwealth’s reasoning, any foolish act that might result in a routine call to the police, no matter how trivial or harmless the act may be, would be grounds for a criminal prosecution. We cannot uphold appellant’s conviction based upon speculation concerning the indirect effects of actions taken by the police in the normal course of their duties.

Additionally, we find that appellant did not create a “physically offensive condition”. Although a precise definition of “physically offensive condition” is elusive, this term encompasses direct assaults on the physical senses of members of the public. A defendant may create such a condition if she sets off a “stink bomb”, strews rotting garbage in public places, or shines blinding lights in the eyes of others. See Model Penal Code and Commentaries § 250.2 commentary at 347 (Official Draft and Revised Comments 1980). Under extreme circumstances, a “physically offensive condition” may also result if a defendant invades the physical privacy of another person. In Commonwealth v. Young, 370 Pa.Super. 42, 535 A.2d 1141 (1988), two male defendants entered a women’s restroom and intentionally confronted the victim while she was seated in a stall performing a private bodily function. In affirming convictions for disorderly conduct, a panel of this court noted that any reasonable person in the victim’s situation would have been offended by the defendants’ actions. Id., 370 Pa.Superior Ct. at 47, 535 A.2d at 1143.

In the instant case, appellant did not directly assault the senses of the residents of the apartment house. Appellant did not invade the residents’ physical privacy. All appellant did was enter a car belonging to someone else while dressed in his underwear. Although appellant was inadvertently observed by one of the tenants, we cannot say that she was physically offended by his conduct. For some, the idea of wearing underwear in public may be morally offensive. Yet, the sight of a person in underwear is no more physically offensive that the sight of a person dressed in other eccentric costumes that from time to time come into fashion. In order to affirm appellant’s conviction for disorderly conduct, we would have to stretch the words of the statute beyond all reasonable bounds.

We must bear in mind the limited scope of the law against disorderly conduct. “The cardinal feature of the crime of disorderly conduct is public unruliness which can or does lead to tumult and disorder.” Commonwealth v. Greene, 410 Pa. 111, 115, 189 A.2d 141, 144 (1963). “The crime of disorderly conduct is not intended as a catchall for every act which annoys or disturbs people; it is not to be used as a dragnet for all irritations which breed in the community.” Id., 410 Pa. at 117, 189 A.2d at 145. We hold that the evidence of disorderly conduct in this case is insufficient as a matter of law.

Finally, we must consider the sufficiency of the evidence of loitering and prowling. Crimes Code section 5506 provides: “Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.”

Appellant argues that he did not loiter “around” the apartment building; he emphasizes that his activities took place in the parking lot outside the apartment building and were directed at cars in the parking lot rather than at specific rental units. However, in Commonwealth v. Duncan, 456 Pa. 495, 321 A.2d 917 (1974), the Pennsylvania Supreme Court broadly defined the word “around” as used in section 5506 as meaning “in the vicinity or neighborhood.” Id., 456 Pa. at 499, 321 A.2d at 919. The Court further noted that the purpose of section 5506 was to “alleviate the danger to human life and quiet enjoyment of one’s dwelling which is presented by the nighttime loitering or prowling of malicious-minded individuals.” Id., 456 Pa. at 499, 321 A.2d at 919. Appellant clearly violated both the letter and the spirit of the statute by entering and lurking inside a car owned by a resident of the apartment house that was parked about thirty-five feet away from the apartment house in a lot designed for use by the tenants.

In summary, we conclude that the evidence is sufficient to establish the offense of loitering and prowling. We conclude that the evidence is insufficient to establish the offenses of open lewdness and disorderly conduct.

The judgment of sentence is vacated and the case is remanded for resentencing consistent with this opinion. Jurisdiction is relinquished.

      . 18 Pa.Cons.Stat.Ann. § 5503 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 5506 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 5901 (Purdon 1983).

      . Indeed, it is unclear whether the resident who called the police was even aware that appellant was clad in underwear. In her testimony, Commonwealth witness Holly Thoxton referred to appellant as wearing “shorts”.


author: HOFFMAN, Judge:

text:
    574 A.2d 1165
    COMMONWEALTH of Pennsylvania v. Edwin OCASIO, Appellant.
    Superior Court of Pennsylvania.
    Argued May 3, 1990.
    Filed May 24, 1990.

      J. Michael Farrell, Philadelphia, for appellant.
    Kathy Echternach, Philadelphia, for appellee.
    Before DEL SOLE, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment of sentence for Voluntary Manslaughter, Carrying Firearms on a Public Street or Property, Unlawfully Carrying Firearms Without a License, and Possession of an Instrument of a Crime. Appellant argues that the trial court erred in failing to allow him to question a Commonwealth witness, Jerry Howard, regarding possible bias. For the reasons that follow, we agree, and, accordingly, vacate the judgment of sentence and remand for a new trial.

The events leading to appellant’s conviction are as follows: On May 28, 1988 appellant and his brother Hector, the decedent, had an argument on Mutter and Dauphin Streets in Philadelphia. Appellant then returned home to tell their father, Francisco, what had happened. At approximately 10:30 p.m. appellant and Francisco returned to the area where the argument had occurred. Soon thereafter, Hector also returned. Hector and Francisco then began to argue about the incident, and Francisco struck Hector in the head. Thereafter, Hector ran to a friend’s car and retrieved a baseball bat. What followed next is disputed. Appellant and Francisco offer one version of the facts; Jerry Howard, an eyewitness, offers another.

Appellant and Francisco testified that appellant went into an abandoned building to get a gun for protection, after Hector had attacked him and Francisco with the baseball bat and threatened to kill them both. See N.T. February 17, 1989 at 110 (testimony of appellant); N.T. February 21, 1989 at 19 (Francisco’s testimony). They further stated that when appellant came out of the building with the gun he told Hector to stop beating Francisco or he would shoot him. Appellant testified that Hector not only continued beating Francisco but that Hector also came after him again. According to appellant, Hector hit the hand in which he was holding the gun, and as he fell to the ground it accidentally discharged, killing Hector. N.T. February 17, 1989 at 111.

Howard provided the only evidence at trial that contradicted the above-mentioned account. According to him, Hector went after his brother with the bat. When another brother, Angel, saw that Hector was going to hit appellant, he and Howard restrained him. Hector then dropped the bat, but Howard continued to restrain him. N.T. February 17, 1989 at 17-22. Howard further testified that appellant then disappeared around a corner. Id. at 23. Minutes later, Howard testified, he heard a gunshot and Hector fell to the ground. When he looked in the direction of the shot, he saw appellant standing there, holding something metallic. Id. at 43-46.

At trial, on February 17, 1989, counsel for appellant attempted to show that Howard had an interest in providing helpful testimony to the Commonwealth. Specifically, counsel questioned him regarding his arrest on December 15, 1988 for possession of a kilogram of cocaine, and his admission into the ARD program in connection with those charges. The Commonwealth objected, and the court refused to allow this line of questioning. On February 23, 1989, appellant was convicted of the above-mentioned charges. Post-verdict motions were denied on September 27, 1989, and appellant was sentenced to five-to-ten years incarceration for Voluntary Manslaughter, and a concurrent sentence of one-to-two years for Possession of an Instrument of a Crime. This timely appeal followed.

Appellant’s primary contention is that the trial court erred in failing to allow him to question Howard regarding possible bias. Specifically, he argues that the trial court denied him his right to confront an adverse witness by refusing to allow him to question Howard regarding his admission into ARD in order to show possible bias in favor of the Commonwealth. We agree.

Our Supreme Court has held that:

[Wjhenever a prosecution witness may be biased in favor of the prosecution because of outstanding criminal charges or because of any non-final disposition against him within the same jurisdiction, that possible bias, in fairness, must be made known to the jury____ [T]he witness may hope for favorable treatment from the prosecutor if the witness presently testifies in a way that is helpful to the prosecution. And if that possibility exists, the jury should know about it____
[T]he defendant, under the right guaranteed in the Pennsylvania Constitution to confront witnesses against him, must have the opportunity at least to raise a doubt in the mind of the jury as to whether the prosecution witness is biased. It is not for the court to determine whether the cross-examination for bias would affect the jury’s determination of the case____
Thus ... the right guaranteed by Art. I Section 9 of the Pennsylvania Constitution to confront witnesses against a defendant in a criminal case entails that a criminal defendant must be permitted to challenge a witness’ self-interest by questioning him about possible or actual favored treatment by the prosecuting authority in the case at bar, or in any other non-final matter involving the same prosecuting authority.

Commonwealth v. Evans, 511 Pa. 214, 224-26, 512 A.2d 626, 631-32 (1986). Cf. Commonwealth v. Simmon, 521 Pa. 218, 555 A.2d 860 (1989) (prosecution witness’s juvenile probationary status relevant to show bias); Commonwealth v. Gay, 369 Pa.Super. 340, 535 A.2d 189 (1988) (evidence indicating that Commonwealth witnesses were on juvenile probation at time of altercation relevant to defense theory that witnesses had motive for testifying on behalf of Commonwealth).

Here, the record reveals that Howard was placed in ARD for possession of a kilogram of cocaine. If he had been tried and convicted for this crime, he would have been sentenced to a minimum of four years imprisonment and fined at least $25,000 under the Drug Trafficking Sentencing Guidelines. That ARD would be made available to a person found in possession of such a quantity of cocaine is very unusual, to say the least. In light of this windfall, Howard certainly had an interest in testifying in a fashion that would be helpful to the prosecution. Under Evans, appellant should have had the opportunity to raise this issue for the jury to consider in evaluating Howard’s credibility. We therefore hold that the trial court’s refusal to allow defense counsel to cross-examine Howard regarding his ARD status violated appellant’s constitutionally protected right to confront an adverse witness; accordingly, we vacate the judgment of sentence and remand for a new trial.

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

Judgment of sentence vacated. Case remanded. Jurisdiction relinquished.

      . No sentence was imposed on the other charges.

      . Appellant also argues that the trial court erred in:
      (1) sustaining the Commonwealth’s objection to his questioning Mrs. Barbara Howard regarding whether her son told her what happened at a time other than when he spoke with the Assistant District Attorney or defense counsel; and (2) permitting introduction of certain evidence. Because of our disposition of appellant’s first claim, however, we need not address these arguments.

      . We note that Howard’s participation in the ARD program clearly is a non-final disposition of the charges pending against him. If Howard violates the terms of the agreement by which he was admitted to the ARD program, the charges may be reinstated upon petition by the District Attorney. See Pa.R.Crim.P. 185.

      . 18 Pa.C.S.A. § 7508(a)(3)(iii).

      . We also note that Howard’s testimony was the sole basis upon which the jury could have based a finding of guilt for the charge of Voluntary Manslaughter. Thus, the trial court’s refusal to allow defense counsel to question Howard regarding his possible bias clearly was not harmless.


author: DEL SOLE, Judge:

text:
    575 A.2d 121
    NEW YORK GUARDIAN MORTGAGE COMPANY, Appellee, v. Jerome BROKENBOROUGH and Terry Ann Carroll and Amrit Lal, Intervenor, Appellee. Appeal of Amrit LAL, Intervenor.
    Superior Court of Pennsylvania.
    Argued Jan. 11, 1990.
    Filed April 24, 1990.
    Reargument Denied June 26, 1990.

      Amrit Lai, pro se.
    Thomas L. Phelan, Philadelphia, for appellee.
    Before DEL SOLE, TAMILIA and HOFFMAN, JJ.
   DEL SOLE, Judge:

New York Guardian Mortgage Corporation [New York Guardian], commenced an action in mortgage foreclosure against Jerome Brokenborough and Terri Ann Carroll. A sale of the mortgaged premises was scheduled at first for May 20, 1988 and fully advertised, but the sale was extended until July 15, 1988 by order of the court. On July 15, bidding began on the property with a debt (also called damages) listed in the amount of $70,482.62, but when the bidding reached $73,100.00, on a bid offered by Appellant, Dr,. Amrit Lai, the bidder present on behalf of the attorney on the writ, stated that he would withdraw the property on the authority of the attorney on the writ. Dr. Lai, voiced his objections to this procedure and the sheriffs solicitor then stated, “Mr. Lai the attorney on the writ has pulled the sale. It has not been knocked down. The sale is continued to August 19th.”

Appellant then filed a Petition to Intervene and Stay Proceedings, and both these requests were granted. Some months later, Dr. Lai filed a petition to confirm the sale to him of the contested property. The Court of Common Pleas of Chester County, ordered the stay lifted, and denied the petition. Dr. Lai filed an appeal from this order which is now before us.

Dr. Lai first claims that the sheriffs sale was illegally stayed by the attorney on the writ because he did not order the stay in writing. He cites Rule 3183(a)(1), Pa.R.C.P; 42 Pa.C.S. which states, “Execution shall be stayed as to all or any part of the property of the defendant upon written direction of the plaintiff to the sheriff.”

The sheriffs affidavit reveals that he was contacted by the attorney on the writ who stated that his client would lose a substantial amount of money in the event of a third party purchase, and that he wished to stay the sale in the event of bidding in order to reassess damages. In fact, the record of the sheriff’s sale shows that this is exactly what happened. Before the hammer fell at the auction of this property, signifying that the sale was completed, the representative of the plaintiff, New York Guardian, withdrew the property from sale.

Although, we have found no case law in Pennsylvania construing Rule 3183 and the writing requirement for withdrawal of properties from a sheriff’s sale, we find that the transcribed record satisfies this requirement. We believe that a writing is required so that there is documentary evidence that it was the plaintiff who withdrew the property from sale. The plaintiff need not give any reasons for withdrawing the property and staying the sale, while any other party in interest must have legal or equitable grounds, or good cause for staying the execution on the property. See, Rule 3132 and Rule 3183, Pa.R.C.P.; 42 Pa.C.S.

Since no reasons need be given for a plaintiff’s attorney on the writ to withdraw a property from sale, the potential for abuse is great. A party could claim that the sale must be stayed on the authority of the attorney on the writ, and unless there was some documentation requirement this claim would have to be honored. Moreover, any court reviewing this claim would be hard put to prove whether there was or was not authorization. Hence, the need for a writing.

Here, the record made at the sheriff’s sale clearly reveals that the property was withdrawn at the request of the plaintiff’s attorney in order to recalculate damages, and therefore we find that this record satisfies the writing requirement mandated by Rule 3183.

Next, Appellant claims that his bid, the highest bid before the sale was stayed, created a binding contract for the property because it was more than the advertised price. We disagree.

The accepted view in Pennsylvania of a sale by auction is that the bargain is incomplete, and there has been no acceptance of the offer until the hammer falls. Therefore, until that time, the bidder may retract a bid, and the auctioneer may withdraw the property, unless the auction is without reserve. Pennsylvania Co., etc. v. Broad Street Hospital, 354 Pa. 123, 47 A.2d 281 (1946), citing, Williston, Contracts, § 29, vol. 1, p. 68.

Here, the auction was not “without reserve” and therefore, the auctioneer could withdraw the real property until it was “knocked down”. The record shows that the property had not been knocked down at the time the attorney on the writ requested the withdrawal of the property from sale. Therefore, Mr. Lai’s bid did not create a binding contract or bargain.

Finally, we decline to dismiss the case, as urged by New York Guardian, for appellant’s failure to post bond since we have decided the issues on the merits. Therefore, we affirm the trial court’s order lifting the stay on the sale of the premises, and denying Appellant’s petition to confirm the sale to him. Jurisdiction relinquished.


text:
    575 A.2d 122
    Ralph HOFFMAN and Marie Hoffman, Appellants, v. SUN PIPE LINE COMPANY, Tri-State Telecommunications, Inc., Davis Enterprises, Maple Shade Cable, Inc., Newtown Cablevision, Inc., E.A. Designs, Ltd., Pennsylvania Once Call System, Inc., Jan Gouza and Pickering, Corts & Summerson v. Charles T. BOWMAN and Barbara Bowman v. LANDMARK REALTY and Allen J. Davis, Additional Defendants.
    Superior Court of Pennsylvania.
    Argued Jan. 24, 1990.
    Filed May 18, 1990.

      Patricia M. Starrier, Philadelphia, for appellants.
    Albert M. Saltz, Philadelphia, for Sun Pipe Line, appellee.
    Before CIRILLO, President Judge, and HOFFMAN and BROSKY, JJ.
   HOFFMAN, Judge:

This appeal arises from the order dated May 22, 1989, granting appellee’s motion for summary judgment. Appellants contend that the trial court erred in granting the motion for summary judgment because a genuine issue of material fact exists as to whether their injuries were foreseeable to appellee. For the reasons that follow, we agree with the trial court that appellee was entitled to judgment as a matter of law; we therefore affirm the order below.

On November 21, 1982, while installing underground cable, Tri-state Telecommunications, Inc., punctured a gas pipeline owned by appellee Sun Pipe Line Company. The puncture caused approximately 50,000 gallons of gasoline to leak into the ground near appellants’ town house development, Newtown Crossing in Bucks County, Pennsylvania. On April 15, 1985, appellants commenced an action against appellee and others to recover damages they allegedly suffered as a result of the gasoline spill. In their complaint, appellants alleged that, in December of 1982, they signed an agreement of sale and paid a $9,000.00 deposit for property located at 10 Westwood Court in Newtown Crossing. Appellants alleged that neither the sellers nor the realtor informed them that the spill had occurred. It was not until April 1, 1983, approximately a month prior to settlement, that appellants first learned of the gasoline spill and that several homes in the development had been contaminated with gasoline fumes. At that time, they were advised that they could not be released from their agreement of sale without losing their deposit and “other damages.” On April 29, 1983, settlement took place. Appellants alleged further that between April 29, 1983, and the eventual sale of their home in August of 1988, they suffered personal injuries and property damage directly caused by the puncture of the pipeline. Specifically, they alleged that this damage resulted from the negligence or strict liability of appellee. In October of 1988, appellee filed a motion for summary judgment, asserting that appellants could not recover because they were not foreseeable plaintiffs and therefore appellee owed no duty to them. Subsequently, on October 28, 1988, appellants filed an answer to appellee’s motion alleging that genuine issues of fact existed as to whether appellants were foreseeable plaintiffs. On May 22, 1989, after the motions were briefed and argued, the trial court granted appellee’s motion for summary judgment. This timely appeal followed.

Our standard of review from the grant or denial of a motion for summary judgment is well-settled.
A motion for summary judgment may properly be granted when the pleadings, depositions, answers to interrogatones, and admissions on file, together with affidavits, if any, show that there is no genuine issué as to any material fact and that the moving party is entitled to judgment as a matter of law. See Hedlund Mfg. Co. v. Weiser, 517 Pa. 522, 539 A.2d 357 (1988); see also Gabovitz v. State Auto Ins. Ass’n, 362 Pa.Super. 17, 523 A.2d 403 (1987); Pa.R.Civ.P. 1035(b). Summary judgment may be entered only in cases that are clear and free from doubt. Weiss v. Keystone Mack Sales, Inc., 310 Pa.Super. 425, 430, 456 A.2d 1009, 1011 (1983). Additionally, the record must be examined in the light most favorable to the non-moving party, accepting as true all well-pleaded facts in its pleadings and giving that party the benefit of all reasonable inferences drawn therefrom. Hower v. Whitmark Assoc., 371 Pa.Super. 443, 445, 538 A.2d 524, 525 (1988); Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987). Moreover in summary judgment proceedings, the court’s function is not to determine the facts, but only to determine if a material issue of fact exists. French v. United Parcel Service, 377 Pa.Super. 366, 372, 547 A.2d 411, 414 (1988). Thus an order granting a motion for summary judgment will not be reversed unless the court below has committed an error of law or clearly abused its discretion. Ackler v. Raymark Indus. Inc., 380 Pa.Super. 183, 185, 551 A.2d 291, 292 (1988); Jones v. Keystone Ins. Co., 364 Pa.Super. 318, 321, 528 A.2d 177, 179 (1987); Miller v. Federal Kemper Ins. Co., 352 Pa.Super. 581, 585-86, 508 A.2d 1222, 1225 (1986).

Kaller’s Inc. v. Spencer Roofing, 388 Pa.Super. 361, 364, 565 A.2d 794, 795-96 (1989). In granting the motion for summary judgment, the trial court reasoned as follows:

Clearly, [appellants] as subsequent purchasers did not have a claim against [appellee] because they were not foreseeable claimants at the time of the pipeline incident. [Appellants] were not residents of the area. They did not own any property in the affected area. Further, [appellants] did not have a contract to purchase a home in [the] development at the date of the spill.
To conclude, we hold that [appellee’s] liability is limited only to those certified within the class described in Cipriani v. Sun Pipe Line Company, et al., 46 Bucks Co. L.R. 249 (1985). The class was comprised only of those foreseeable claimants, particularly, “all owners and residents of homes in the housing development known as Newtown Crossing, Newtown, Bucks County, Pennsylvania, who either owned or had a contract to purchase a home (and did so purchase), or were residing in the development on November 12, 1982.” 46 Bucks Co. L.R. 249, 261. To hold otherwise, would be to create a never-ending pool of claimants by purchase.

Trial Court Opinion at 3-4.

Appellants contend that the trial court’s conclusion regarding their negligence claim was erroneous because a factual issue exists concerning whether their injuries were foreseeable to appellee, and thus a jury should hear their case. With respect to the duty owed, appellants maintain that appellee could foresee that appellants, as subsequent purchasers of a home in Newtown Crossing, would be injured by the gas spill and therefore appellee had a duty to protect them from that harm. Appellee, on the other hand, contends that it owed no duty to appellants because they did not own their home at the time of the November 12, 1982, spill and, therefore, they were not foreseeable plaintiffs.

Appellants cite to no authority, and our research reveals none, that would impose upon a tortfeasor a duty not only to the original owner of a home which has been contaminated as a result of the tortfeasor’s negligence but also to subsequent purchasers of that home. Of course, the novelty of appellants’ theory alone is not sufficient cause to reject their claim; instead, the question whether to impose a duty is essentially one of policy. After careful consideration, we are of the view that it would be inappropriate on the facts of this case, to extend appellee’s duty to encompass subsequent purchasers.

“ ‘[D]uty’ is a question of whether a defendant is under any obligation for the benefit of the particular plaintiff ...,” W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts, § 53, at 356 (5th ed. 1984) [hereinafter Prosser & Keeton], and, unless there is a duty upon the defendant in favor of the plaintiff which has been breached, there can be no cause of action based upon negligence. See Alumni Ass’n v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095 (1987), affirmed, 524 Pa. 356, 572 A.2d 1209 (1990). We should note, however, that to frame the inquiry in terms of “duty” can be misleading, as Prosser and Keeton have recognized:

The statement that there is or is not a duty begs the essential question — whether the plaintiff’s interests are entitled to legal protection against the defendant’s conduct. It is therefore not surprising to find that the problem of duty is as broad as the whole law of negligence, and that no universal test for it ever has been formulated. It is a shorthand statement of a conclusion, rather than an aid in analysis in itself.

Prosser and Keeton, supra § 54, at 357-58 (footnote omitted); see also id. § 54, at 358 (“it should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of ■the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.”). Because questions concerning “duty” arise in ever-changing contexts, courts have employed a variety of analytical approaches. For example, courts have spoken of both “foreseeability” (of a particular plaintiff or a particular harm) and “proximate cause” when attempting to delineate the scope of a defendant’s duty. In Sullivan, supra, we summarized the interplay of these approaches, as follows:

Only when the question of foreseeability is undeniably clear may a court rule as a matter of law that a particular defendant did not have a duty to a particular plaintiff. Migyanko v. Thistlewaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980); also see Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99, 100 (1928). Moreover, the question of foreseeability is not to be confused with the question of legal or proximate causation. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 481 A.2d 1194, 1197 (1984). Even where harm to a particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a “proximate” or “legal” consequences naturally flowing from the wrongdoer’s misconduct. See Mazzagatti v. Everingham by Everingham, 512 Pa. 266, 516 A.2d 672, 675 (1986); see also Palsgraf, supra, 162 N.E. at p. 103. To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiffs harm.

369 Pa.Super. at 601-02, 535 A.2d at 1098. Whether the analysis proceeds in terms of “duty”, “foreseeability”, or “proximate cause”, we must remain mindful of Prosser and Keeton’s admonition that our essential inquiry in these cases is the same:

in all of these proposed rules and formulae the courts and the writers have been groping for something that is difficult, if not impossible, to put into words: some method of limiting liability to those consequences which have some reasonably close connection with the defendant’s conduct and the harm which it originally threatened, and are in themselves not so remarkable and unusual as to lead one to stop short of them.

Prosser & Keeton, supra § 43, at 300.

The bulk of appellants’ brief is devoted to the question of foreseeability. And, of course, we do not seriously question that it is “foreseeable” that the type of damage alleged in this case might have some effect on future purchasers of a contaminated home. However, as the authorities above emphasize, the mere fact that a plaintiff, or a harm, is “foreseeable,” does not resolve our inquiry. And, after carefully reviewing appellants’ complaint, we are of the opinion that the harm allegedly suffered by appellants is not so closely connected to Sun’s original conduct to warrant imposing liability. As alleged in the complaint, the conduct which formed the basis for Sun’s negligence consisted of the installation of the underground cable system, its maintenance and operation of the pipeline; its failure to repair the pipeline promptly after the spill, and its failure to inform the residents of Newtown Crossing of the consequences of the spill.

As a result of appellee’s allegedly careless installation and maintenance, Tri-State punctured the gas line in 1982, thereby causing liquid petroleum to permeate the soil throughout the development and penetrate the air with petroleum fumes. At the time of this spill, appellee reasonably could expect that it might be liable to all persons in the area who suffered either personal injuries or property damage as a result of the spill. Sun also might reasonably have contemplated that the amount of property damage resulting from the spill, at least in some instances, could be extensive enough that a home might be rendered uninhabitable, and therefore it might be liable for the full value of that home. Thus, at the time of the allegedly negligent conduct, appellee reasonably could expect, at the worst, to be liable for physical injuries and for property damage up to the full value of a home.

Under these circumstances, the theory of liability proposed by appellants extends far beyond the original harm threatened and, indeed, could be limitless. Under appellants’ theory, Sun, instead of having its liability for property damage in any one case limited to the full value of a property, could be responsible, to succeeding property owners, for the same exact damage to a home, and to an aggregate amount far exceeding the value of any one home. To subject appellee to a result such as this would be manifestly unreasonable. Thus, we refuse to extend arbitrarily appellee’s duty to encompass the protection of unidentifiable third party home owners who were not present when the spill and resulting consequences occurred.

We are further persuaded that our conclusion is proper because our holding does not leave subsequent purchasers of a home such as appellants’ without a remedy. As a practical matter, if a home has been damaged by such contamination, and a subsequent purchaser is made aware of it, his or her remedy is to factor the diminution in value, or the increased risk, into negotiations with the owner. If, on the other hand, the seller or realtor does not disclose the damage, and a subsequent purchaser is otherwise unaware of it, and the damage is as significant as alleged here, the remedy is to sue the seller or realtor on a contract theory.

In sum, to allow any subsequent purchaser of a home in the development to sue appellee in tort would subject it to unlimited liability for one discrete act. In assessing liability, we must draw a cut-off line based upon policy considerations. Because we find that any harm caused by the spill would be factored into the resale value of a home in Newtown Crossing by the seller who owned the home at the time of the spill and who was compensated for his/her damages, we hold that appellee’s liability to owners of those homes on November 12, 1982, as a matter of public policy, does not encompass liability to a third party who subsequently purchases a home in that development which had been affected previously by the spill.

For the foregoing reasons we conclude that the trial court properly granted appellee’s motion for summary judgment and we affirm the order below.

Order affirmed.

      . We note that, as a result of injuries arising out of the November 12, gasoline accident, a group of plaintiffs consisting of “[a] 11 owners and residents of homes in the housing development known as Newtown Crossing, Newtown, Bucks County, Pennsylvania who either owned or had a contract to purchase (and have since purchased) or were residing in the development on November 12, 1982,” were certified as a class in a suit against Sun Pipe Line. See Cipriani v. Sun Pipe Line Co., 46 Bucks Co. L.R. 249 (1985).

      . Several of the defendants were joined later. The complaints against the additional defendants were based upon contract theories of fraud, misrepresentation, and mistake, in addition to the tort claim filed against Sun Pipe Line.

      . Appellants alleged that appellee was strictly liable (a) because it was engaging in ultrahazardous activity, or the miscarriage of an ultrahazardous activity, namely the activity of operating an underground pipeline for the movement of a liquid petroleum product through a residential neighborhood, and (b) pursuant to the law of the Commonwealth of Pennsylvania, 15 Pa.S.A. § 3351(g). See Complaint at 7-8.

      . In addition, appellee claimed that appellants were estopped as a matter of law because they knowingly came to the nuisance and because their claims were barred by the statute of limitations. At the trial level, the court granted appellee’s motion on the ground that appellants were not foreseeable plaintiffs without specifically ruling on the other issues. Because of our disposition of appellants’ first claim, we need not address these alternative bases for granting the motion.

      . Appellants also responded to appellee’s affirmative defenses.

      . The order below dismissed appellants’ complaint in its entirety. Although their complaint sounded in strict liability as well as negligence, appellants make no argument on appeal concerning their strict liability claims. Therefore, we offer no opinion on whether the dismissal of the strict liability claims was appropriate. We note, however, that in Pier Cipriani v. Sun Pipe Line Co., 45 D & C 3rd 135 (1986), the class action suit against Sun Pipe Line Co., which arose out of the same accident (the class had been certified in Cipriani v. Sun Pipe Line Co., 46 Bucks Co. L.R. 249 (1985)), the Bucks County Court of Common Pleas found Sun Pipe Line Co. strictly liable for injuries resulting from the leakage. Liability was premised both on § 520 of the Restatement (Second) of Torts, for pipeline accidents causing the release of potentially violative and explosive gas, and on 15 Pa.S.A. § 3351(g), for leakage and breaking caused by the negligence of third parties. Sun appealed the decision to this Court, which quashed the appeal. Our Supreme Court granted allocatur, and reversed. Thus, the appeal in Cipriani presently is before the Superior Court.

      . We should note that, in fact, it was this class of persons, i.e., “all owners and residents of homes in the housing development known as Newtown Crossing, Newtown, Bucks County, Pennsylvania, who either owned or had a contract to purchase a home (and did so purchase), or were residing in the development on November 12, 1982,” who comprised the class in the class action suit against Sun. See Cipriani v. Sun Pipe Line Company, et al., 46 Bucks Co. L.R. 249 (1985).

      . At this juncture, we offer no opinion on cases where an act occurs at one time, and is not discovered until the tenure of a subsequent purchaser. Indeed, in this case, it is undisputed that appellants were aware of it prior to settlement, and yet elected to go through with the purchase of their home.


text:
    575 A.2d 127
    Joyce K. WILCOX, Appellant, v. Ralph W. WILCOX.
    Superior Court of Pennsylvania.
    Submitted Jan. 19, 1990.
    Filed May 17, 1990.

      Stuart M. Golant, Towanda, for appellant.
    John S. Hollister, Jr., Troy, for appellee.
    Before ROWLEY, FORD ELLIOTT and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from an order below attaching 50% of appellee-husband’s wages and ordering the attachment to be credited to alimony arrearages. Appellant-wife contends that the trial court erred as a matter of law in (1) refusing to attach greater than 50% of appellee’s wages and (2) crediting the attached wages to alimony arrearages instead of applying part to current alimony and the balance to arrearages. For the reasons that follow, we modify the order in part. As modified, the order is affirmed.

On November 12, 1982, following a 24-year marriage, the parties were divorced. At that time, the parties signed an agreement specifying the terms by which the marital property would be distributed. The agreement specified that the question of alimony would be submitted to the Bradford County Court of Common Pleas for determination. The trial court approved the agreement and incorporated it in its order granting the divorce. During the next four years, the parties’ agreement was in force, and the matter of alimony was referred to a Master. Following discovery and hearings, the Master made findings of fact and conclusions of law and recommended to the trial court that appellee be ordered to pay appellant alimony. On August 15, 1986, the trial court reviewed the Master’s recommendations and filed an order which stated that:

upon consideration of the Master’s findings of fact and conclusions of law, it is hereby Ordered, decreed and adjudged that Defendant [appellee] shall pay alimony to Plaintiff [appellant] in the amount to $100.00 per week, retroactive to the date of the divorce.

Trial Court Order, August 15, 1986, at 32. Thus, appellee owed appellant approximately four years of alimony arrearages. On May 1, 1987, appellant filed a petition for wage attachment. A Master considered the petition, made findings of fact, and recommended to the trial court that appellee’s wages be attached. On June 12, 1987, the trial court ordered attachment of 50% of appellee’s wages. Exceptions were filed, and after hearings and argument, the trial court entered an order on October 19, 1988 which stated:

the Court directs the Bradford County Domestic Relations Office to attach the wages of Ralph Wilcox [appellee] in the amount of $195[.]94 [equal to 50% of appellee’s disposable income]. All of the sums received under the wage attachment shall be applied to the existing arrearage.

Appellant filed a motion for reconsideration of this order, which was denied, and this appeal followed.

Appellant contends that the trial court erred as a matter of law in (1) refusing to attach greater than 50% of appellee’s wages and (2) crediting the attached wages to alimony arrearages instead of applying part to current alimony and the balance to arrearages. Appellant argues that the court’s decisions in this regard are erroneous under Chapter 43 of the Divorce Code, 23 Pa. S.A. § 101 et seq. The trial court found that Chapter 43 did not apply to alimony orders because the Chapter refers only to “support” and makes no specific reference to “alimony.” See Trial Court Opinion, January 27, 1989 at 1-2. If the trial court was correct in finding that Chapter 43 is inapplicable, we would have to affirm the order below. Accordingly, before turning to the merits of appellant’s claims, we first must determine whether Chapter 43 applies.

Alimony matters generally are governed by Chapter 5 of the Divorce Code, entitled “Alimony and Support.” Under this chapter, the court has the power to order alimony and alimony pendente lite. See 23 Pa. S.A. §§ 501, 502. Enforcement of arrearages is governed by § 503, which provides, inter alia, that the court may order an attachment of up to 50% of a party’s wages to satisfy an alimony order. Id. § 503(3).

In addition to the specific provisions contained in Chapter 5, Chapter 43 of the Code contains general provisions governing support. Appellant submits that these provisions exist in addition to the Chapter 5 provisions. Although our research reveals no caselaw and the parties cite none regarding whether Chapter 43 applies to alimony awards, after reviewing the structure of the Divorce Code we see no reason not to apply Chapter 43 in addition to the other provisions.

The general definition section of the Divorce Code, 23 Pa. S.A. § 104, defines alimony as “[a]n order for support granted by this or any other state to a spouse or former spouse in conjunction with a decree granting a divorce or annulment.” Id. (emphasis added). In addition to the fact that the definitional section contemplates that alimony is a form of support, Chapter 43 itself makes clear that its provisions may supplement other specific provisions:

Actions or proceedings provided by this chapter are in addition to and not in substitution of actions or proceedings provided by unsuspended statutes where there is desertion or failure to perform a duty to support.

Id. § 4301(a) (emphasis added). Moreover, the definitional section within Chapter 43 defines an “Order of Support” as one that:

Includes assistance imposed or imposable by law or by any court order, whether interlocutory or final, whether incidental to a proceeding for divorce, separate maintenance, action for failure to support a child born out of wedlock or otherwise.

Id. § 4302 (emphasis added). Thus, neither the Code as a whole nor Chapter 43 itself limit its provisions to support orders not connected with divorce. Accordingly, it appears that the legislature intended Chapter 43 to be applied to all orders in the nature of support, which would include alimony. The trial court therefore should have considered the relevant sections of the Chapter in fashioning its award. We may now turn to the merits of appellant’s claims.

Initially, appellant contends that the court erred in attaching 50% of appellee’s wages rather than 65%. Appellant’s argument in this regard is somewhat convoluted. The trial court attached 50% of appellee’s wages based on 23 Pa. S.A. § 503. Section 503 states in relevant part:

If at any time a party is in arrears in payment of alimony or alimony pendente lite as provided for in sections 501 and 502 after hearing, the court may, in order to effect payment of arrearages:

(3) Attach no more than 50% of the wages of the party. Id. § 503(3). Appellant notes, however, that under federal law governing the maximum amount of garnishments, a court can attach up to 65% of a party’s disposable income. See 15 U.S.C. § 1673(b)(2)(B). Appellant further notes that Chapter 43 of the Divorce Code specifically refers to the federal statute when setting the maximum amount of attachment that is allowed. See 23 Pa. C.S.A. § 4348(g). Because § 4348(g) refers to federal law, appellant suggests that the Pennsylvania structure allows for a greater attachment of 65%. We disagree.

Although the federal statute indeed sets the maximum attachment at 65% of a party’s disposable income, there áre other sections of the Consumer Credit Protection Act that specifically limit the applicability of § 1673(b)(2)(B). In particular, 15 U.S.C. § 1677 provides that:

This subchapter does not annul, alter, or affect, or exempt any person from complying with, the laws of any State
(1) prohibiting garnishments or providing for more limited garnishments than are allowed under this sub-chapter, ...

Id. at § 1677(1) (emphasis added). Here, the 50% garnishment provided for in 23 Pa. S.A. § 503(3) is more restrictive than the 65% garnishment allowed by 15 U.S.C. § 1673(b)(2)(B). The decision of the Pennsylvania Assembly to provide for more limited garnishment is perfectly in keeping with the federal-state interplay contemplated by the federal act. Accordingly, we see no reason not to enforce the 50% ceiling contained in 23 Pa. S.A. § 503(3), In further support of this conclusion, we note that other courts similarly have held that § 1677 requires that more restrictive state laws on garnishment should apply. See Evans v. Evans, 429 F.Supp. 580, 582 (W.D.Okla., 1976); Crane v. Crane, 417 F.Supp. 38, 40 (E.D.Okla., 1976); First Natl. Bank of Denver v. Columbia Credit Corp., 179 Colo. 242, 499 P.2d 1163 (1972). For example, the Evans court reasoned that:

The federal statutes dealing with garnishment (15 U.S.C. §§ 1671-1677) are not an attempt to create or establish garnishment proceedings but are meant only to pre-empt [sic] state laws which are less restrictive. The federal law is meant to place a maximum for garnishment of that which it defines as disposable earnings, but it does not preempt those state statutes dealing with garnishment that are more restrictive. Hodgson v. Hamilton Municipal Court, 349 F.Supp. 1125 (S.D.Ohio, 1972); and Hodgson v. Cleveland Municipal Court, 326 F.Supp. 419 (N.D.Ohio, 1971). Therefore, in the case at bar, the Court must look to Oklahoma law regarding garnishment if it is more restrictive.

Evans v. Evans, supra at 582. We adopt this reasoning as our own, and hold that 23 Pa. S.A. § 503(3) is not preempted by the less restrictive federal garnishment law. Therefore, the trial court did not err in ordering an attachment of 50% of appellee’s wages.

Appellant next contends that the court erred in the manner in which it ordered the attached payments to be credited. In support of this argument, appellant relies on § 4348 of the Divorce Code, which provides:

If support arrearages exist at the time of the entry of the order, the order shall specify all of the following:
(1) To whom an arrearage is owed and the amount of the arrearage.
(2) The period of time for which the arrearage is calculated.
(3) The amount of periodic support to be applied to current support and the amount to be applied to arrearages.
(4) If support arrearages are owed to more than one obligee, how payments are to be divided and in which priority.
(5) A direction that all payments are to be credited to current support obligations first, with any payment in excess to be applied to arrearages.

Id. at § 4348(d) (emphasis added). In light of this provision, appellant argues that the allocation of payment of the attached money should first be to current support and then any money in excess to arrearages. In its opinion, the trial court stated that:

The foregoing [trial court’s determination that Chapter 43 is not relevant in alimony enforcement proceedings] dictates that the Court hold that the Divorce Code does not prescribe the method by which accrued alimony arrearages must be remitted. The Court is not bound by 23 Pa. C.S.A. Section 4348(d)(5) to apply payments first to a current support obligation, as Plaintiff contends. The Court here has properly exercised its discretion in ordering Defendant’s payments to apply fully to the existing arrearage. The Court rejects Plaintiffs assertion that error has been committed by failing to follow the support arrearage procedure outlined in Section 4348(d)(5).

Trial Court Opinion, January 27, 1988 at 2-3. In light of our initial conclusion that the provisions of Chapter 43 are relevant to the enforcement of alimony orders, we find that the trial court should have considered § 4348(d)(5) in fashioning its attachment order.

CONCLUSION

For the foregoing reasons, we hold that the trial court properly ordered attachment of 50% of appellee’s disposable income, but that 23 Pa. C.S.A. § 4348(d) requires that the attached money first should be applied to current alimony obligations and then to arrearages. Accordingly, we affirm the trial court order to the extent that it orders a $195.94 per week attachment of appellee’s wages; but we modify the order to allocate $100.00 to current obligations and the remainder, $95.94, to alimony arrearages. As modified, the order is affirmed.

Order affirmed as modified.

      . The trial court fashioned its order based upon appellee’s disposable income, not his total wages. The trial court stated that "although the term 'wages’ is not defined by the Divorce Code, the Court holds that equity requires that term to be defined the same as ‘disposable earning’ [sic]”. Trial Court Findings of Fact and Conclusions of Law, October 21, 1988 at 1. Appellant does not challenge this determination.

      . The federal provision is part of the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq.

      . Section 4348 states in relevant part:
      The maximum amount of any attachment under this section shall not exceed the limits set forth in the Consumer Credit Protection Act (Public Law 90-321, 15 U.S.C. § 1601 et seq.).

        Id. § 4348(g).

      . In all candor, we have some difficulty in seeing how the allocation of arrearages prejudiced appellant. Appellant argues that:
      The effect of applying all payments to arrearages is to reduce the balance of Plaintiff s [appellant’s] judgment and reduce the amount of interest to be paid by Ralph Wilcox [appellee], thereby rewarding him for his dilatory behavior.
      Appellant’s brief at 6. We fail to see how an order which discharges arrearages first would reduce the amount of interest, in that, as appellee pays arrearages, he continues to incur a monthly obligation, which itself would generate interest.


author:
      DEL SOLE, Judge:
      CIRILLO, President Judge,

text:
    575 A.2d 131
    COMMONWEALTH of Pennsylvania v. Daniel ALLEN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 2, 1989.
    Filed May 15, 1990.
    Petition for Allowance of Appeal Denied Oct. 10, 1990.

      Dominick Motto, New Castle, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee.
    Before CIRILLO, President Judge, and DEL SOLE and CERCONE, JJ.
   DEL SOLE, Judge:

Daniel Allen, Appellant, was convicted of Driving Under the Influence (DUI), 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Post-verdict motions were denied and Allen was sentenced. On appeal he raises five issues. Because all of the issues are meritless, we affirm the trial court’s judgment of sentence.

Allen’s conviction for DUI was the culmination of a complicated procedural process. Allen was arrested for DUI under 75 Pa.C.S.A. § 3731(a)(1) and (a)(4). Police took him to Ellwood City Hospital where a blood sample was taken. The sample was given to the arresting officer who took it back to the Ellwood City Police Station and placed it in a refrigerator. The following day another officer took the only blood sample in the police station refrigerator to St. Francis Hospital for chemical testing. The hospital reported that the blood alcohol level in the sample was 0.16%.

At a preliminary hearing, the arresting officer attempted to introduce the blood test results into evidence. Allen’s attorney objected, asserting that the officer did not lay a proper foundation to establish that St. Francis was an approved laboratory for chemical testing in DUI cases. The District Justice sustained the objection and the blood test results were not admitted into evidence.

The arresting officer then moved to withdraw the complaint against Allen which was granted. All of the charges against Allen were withdrawn and he was discharged. Notice of the withdrawal was sent to Allen and he was informed that the complaint against him would be re-filed. Three days later a second complaint was filed against Allen and he received service of both the new complaint and a summons. Despite defense counsel objections, a second preliminary hearing was held at which a prima facie case against Allen was established. He was bound over to court.

Allen filed a pre-trial omnibus motion challenging the Commonwealth’s procedures regarding the filing of the second complaint. The trial court ordered the case dismissed. Twenty-two days later the court amended its order, withdrew the dismissal of the case against Allen and dismissed the omnibus motion. Allen filed a petition for a writ of habeas corpus and/or a motion to dismiss and/or strike the order of court, arguing that the court lacked authority to issue the second order withdrawing the dismissal of the case without prior notice to the parties. The basis for this argument was 42 Pa.C.S.A. § 5505. A hearing was held, and although the Commonwealth agreed with Allen’s position, the trial court denied his petition.

At a non-jury trial, Allen argued that no evidence was presented to show that Ellwood City Hospital was an approved laboratory for withdrawing blood samples, the blood withdrawal was not properly supervised, the procedures used for withdrawal and transportation of the blood were improper, the laboratory technician was not supervised or qualified to draw blood and the chain of custody of the blood sample was broken. Despite his arguments, the blood sample was admitted into evidence and Allen was found guilty of both charges of DUI.

The first issue raised by Allen on appeal is whether he was entitled to have the charges against him dismissed because the initial charges against him were withdrawn and the second complaint was filed without a re-arrest. We hold that there was no need for the Commonwealth to re-arrest Allen.

In a court case, the issuing authority may, in its discretion, issue a summons or a warrant of arrest if the offense charged is punishable by a sentence of more than one year and less than five years in prison. Pa.Rules of Crim.Proc., Rule 102(c). Driving under the influence is a misdemeanor of the second degree. It is punishable by a sentence of not more than two years in prison. 18 Pa.C.S.A. § 106(b)(7). Consequently, the service of a summons on Allen was a proper method to reinstitute the charges against him. The fact that this service was enough to make Allen appear at the subsequent preliminary hearing belies the argument that a second arrest was required. There is no authority which requires the Commonwealth to re-arrest a person in order to begin a subsequent prosecution for the charge of DUI.

The second issue is whether the trial court lacked the authority to reinstate the charges and withdraw the court ordered dismissal within thirty days of the initial order, without prior notice to the parties. This issue is also meritless. The statute Allen bases his argument on is 42 Pa.C.S.A. § 5505. This statute reads:

Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within thirty days after its entry, notwithstanding the prior termination of any term of court, if no appeal from such order has been taken or filed.
42 Pa.C.S.A. § 5505

The statute contains no requirement that the court give the parties prior notice before modifying or withdrawing an order. Allen has presented us with no authority which would require such a reading of the statute. According to the statute, a court must notify the parties when it modifies or rescinds an order, but this notice does not have to be prior to the modification.

The third issue raised by Allen is whether the trial court erred in introducing evidence of the blood test at trial because the chain of custody was broken. We say no. The Commonwealth presented testimony which showed who had possession and control of the blood sample from the time it was withdrawn from Allen to the time it was tested and brought to court. There is no need for the Commonwealth to prove beyond a doubt the sanctity of a blood sample after it is withdrawn from a driver. The Commonwealth must simply establish a reasonable inference that the sample was unimpaired until it was brought to court. Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975).

The fourth issue raised by Allen is whether the trial court erred in introducing the blood test results because the blood sample was not withdrawn at an approved clinical laboratory, the blood test was not properly supervised and the test was not administered by a laboratory technician. Again, we hold that the trial court did not err.

Allen was convicted of 75 Pa.C.S.A. § 3731(a)(1), driving or being in the actual physical control of a vehicle while “under the influence of alcohol to a degree which renders the person incapable of safe driving;” and 75 Pa.C.S.A. § 3731(a)(4), driving or being in actual physical control of a vehicle while “the amount of alcohol by weight in the blood of the person is 0.10% or greater.” In order to support a conviction under 3731(a)(4), the Commonwealth may present tests performed on a defendant’s blood or breath if the “tests were conducted by qualified persons using approved equipment____” 75 Pa.C.S.A. § 1547(c). Specifically,

Chemical tests of blood or urine shall be performed by a clinical laboratory licensed and approved by the Department of Health for this purpose using procedures and equipment prescribed by the Department of Health. For purposes of blood and urine testing, qualified person means an individual who is authorized to perform those chemical tests under the act of September 26, 1951 (P.L. 1539, No. 389), known as “The Clinical Laboratory Act.” 75 Pa.C.S.A. § 1547(c)(2).

The trial court wrote that:

[w]hile the Ellwood City Hospital was not proven to be a technical laboratory licensed by the Pennsylvania Department of Health or its staff certified under the Clinical Laboratory Act, 35 P.S. §§ 2151-2165, so as to qualify that hospital and its staff to do blood testing under 75 Pa.C.S.A. § 1547, the Court finds from the testimony presented and by way of judicial notice (P.L.E.Evidence §§ 1-14) that it is an established clinical laboratory whose staff is qualified to take blood samples.
Trial Court opinion at p. 8.

In the past, this court has held that § 1547(c) and its corresponding regulations “focus on the person performing the blood testing and the equipment used, not the technician drawing the blood.” Commonwealth v. Mahaney, 373 Pa.Super. 129, 136, 540 A.2d 556, 559 (1988). If a driver is taken to a hospital for a blood sample in a DUI case, the Commonwealth must show that the blood sample was withdrawn by a hospital employee who was qualified to take blood samples. That employee does not have to meet the requirements of 75 Pa.C.S.A. § 1547(c)(2). The Commonwealth made this showing at trial and the trial judge properly accepted the person who withdrew the blood from Allen as qualified.

The fifth and final issue raised by Allen is whether the verdict was against the weight of the evidence and whether the evidence was insufficient as a matter of law. The trial court reviewed the testimony of the police officers and one other witness:

Officer Yoho testified that when he arrived at the scene of the accident on August 27, 1988, during the early morning hours, he saw Allen’s vehicle and two other vehicles, all of which were damaged to some degree. He also testified that the other two vehicles were resting partly on the sidewalk and partly on the roadway. Officer Yoho further testified that, in observing Allen, he noticed Allen had blood-shot eyes and slurred speech and possibly an injured right hand. After administering a field sobriety test, it was Officer Yoho’s opinion that Allen performed unsatisfactory and did not pass the test. Officer Yoho also testified that Allen at the scene of the accident explained to him (Officer Yoho) that he (Allen) was driving his truck around the bend and lost control of it.
Officer David Mitchell also testified regarding the damaged vehicles. He observed Allen’s truck at rest in the east bound lane of Lawrence Avenue and the other two vehicles pushed onto the curb. When Officer Mitchell arrived at the scene, he observed Allen standing next to his red pickup truck and, after approaching Allen, noticed the odor of alcohol on Allen’s breath. Officer Mitchell also testified of observing Officer Yoho administering a field sobriety test to Allen which, according to Officer Mitchell, Allen “failed.”
Now, as to Henry Allman’s testimony, he stated that, on the day in question, he was watching television and heard a loud crash in front of his house. As he immediately exited his residence, he observed his truck on the side walk and his sister’s car pushed forward in front of his truck. He also testified that a red pickup truck, with Allen seated in it on the driver’s side, was behind his (Allman’s) truck. All three vehicles were damaged according to Henry Allman’s testimony Henry Allman then testified that he went over to Allman and asked if he was injured and invited Allen into his house. Henry Allman testified that he noticed an order (sic) of alcohol about Allen’s person and that Allen was “shook up.”
Trial Court opinion at pp. 15-16.

In order to hold that a verdict was against the weight of the evidence, it must be clear from the record that the verdict shocks this court’s sense of justice. Commonwealth v. Hamilton, 376 Pa.Super. 404, 546 A.2d 90 (1988). This testimony, along with the fact that the blood sample taken from Allen showed that his blood alcohol level was 0.16%, easily supports the conviction of Allen of 75 Pa.C.S.A. § 3731(a)(1) and (4). There was nothing shocking about this verdict. Therefore, we hold that the verdict was not against the weight of the evidence.

When deciding whether the evidence was insufficient to support the verdict, this court must consider the evidence and all the inferences to be drawn from the evidence, in a light most favorable to the verdict winner, in this case the Commonwealth. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983). Given the evidence summarized above, and Allen’s blood alcohol level, we hold that there was sufficient evidence to prove beyond a reasonable doubt that Allen was driving while under the influence of alcohol under 75 Pa.C.S.A. § 3731(a)(1) and (4).

Judgment of sentence affirmed.

CIRILLO, President Judge, files a concurring and dissenting opinion.

CIRILLO, President Judge,

concurring and dissenting:

I concur in the majority’s disposition of the “re-arrest” issue but write separately to further define the term “re-arrest.” In addition, I respectfully dissent from the majority’s finding that the Commonwealth’s evidence was sufficient to prove, beyond a reasonable doubt, that Allen drove while his blood alcohol level exceeded .10 percent.

The Pennsylvania Rules of Criminal Procedure do not define the term “re-arrest,” and the majority correctly notes that “[tjhere is no authority which requires the Commonwealth to re-arrest a person to begin a subsequent prosecution for the charge of DUI.” Clearly, filing the complaint was sufficient to re-institute the charges against Allen. See Pa.R.Crim.P. 101 and 130. The term “re-arrest” refers not to the start of a new criminal proceeding, but rather to the process used to ensure Allen’s attendance at his next court date. It is an inexact term which has, in the past, been used without careful distinction. “Re-arrest” describes either of two different procedures: the issuance of an arrest warrant or the issuance of a summons.

There are two methods by which the Commonwealth may institute criminal proceedings; filing a written complaint or executing an arrest. Pa.R.Crim.P. 101. When a complaint is utilized, the Commonwealth insures the defendant’s appearance in court by issuing an arrest warrant or a summons. Pa.R.Crim.P. 102. An arrest warrant allows the police to arrest and incarcerate the defendant until his court date. A summons, on the other hand, allows the defendant to remain at large until the appointed day. The summons, accompanied by a copy of the complaint “command[s] the defendant ... to appear before the issuing authority----” Pa.R.Crim.P. 110. The summons also notifies the defendant of his right to counsel, that bail will be set at his preliminary hearing, and that failure to appear at the preliminary hearing will result in the issuance of a warrant for the defendant’s arrest. Pa.R.Crim.P. 110(1)-(3).

While this process appears unambiguous, it becomes much less clear when the initial proceedings are terminated for some reason and later re-instituted. The case law acknowledges that after a second complaint is filed initiating the second criminal proceeding, the Commonwealth must re-arrest the defendant “within the period prescribed by the statute of limitations for the charges in question,” Commonwealth v. Revtai, 516 Pa. 53, 74, 532 A.2d 1, 11 (1987), but the proper procedures necessary to effectuate a re-arrest have not been enunciated. See e.g. Common wealth ex rel. Fitzpatrick v. Mirarchi, 481 Pa. 385, 390, 392 A.2d 1346, 1348 (1978) (“[t]his court has acknowledged that re-arrest is the appropriate procedure and the Commonwealth’s only recourse where the charges are dismissed and the defendant discharged upon a finding of a lack of a prima facie case ...”); Commonwealth v. Sandly, 371 Pa.Super. 486, 488, 538 A.2d 546, 546 (1988) (“[a]ppellee was then re[-]arrested on the same charge pursuant to a [second] written complaint”); Commonwealth v. Tait, 369 Pa. Super. 315, 318, 535 A.2d 176, 178 (1987) (footnote omitted) (“[according to the record before us, the proceedings against appellee were initiated when the second complaint was filed; thereafter, appellee was ‘re[-]arrested’ ”).

“An arrest occurs ‘with any act that indicates an intention to take a person into custody and subjects him to the actual control and will of the person making the arrest.’ ” Commonwealth v. Lagana, 517 Pa. 371, 377-378, 537 A.2d 1351, 1355 (1987) (citation omitted). Literally, the term “re-arrest” means to arrest again. Thus, it would seem that in order to re-arrest a person, an act is necessary that subjects the person to the actual dominion and control of the arrestor. However, that definition would be antithetical to our Rules of Criminal Procedure which do not require an arrest in every criminal proceeding. See Pa.R.Crim.P. 101 and 102. For example, when the crime charged is driving under the influence, special procedures are available under Rule 130:

¡is sfc !}C * ¡¡C
(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant is released pursuant to paragraph ] (b) ..., a complaint shall be filed against the defendant within five (5) days of the defendant’s release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in [Pennsylvania Rule of Criminal Procedure] 110.

Pa.R.Crim.P. 130(b) and (d) (emphasis added). Under Rule 130, the use of a summons, instead of an arrest warrant, is mandated. See Pa.R.Crim.P. 130; 102, comment (“in all cases in which the defendant has been released pursuant to Rule 130(b) or (c), a summons shall be issued”). Consequently, we cannot interpret the term “re-arrest” literally.

I believe that under our Rules of Criminal Procedure, a re-arrest is accomplished simply by reissuing process upon a defendant. Specifically, after filing the second complaint which commences the second criminal action, the Commonwealth, to effectuate a re-arrest, need only issue a summons or arrest warrant. See Tait, supra (court states that defendant was re-arrested and facts indicate that only a second complaint and summons were issued). The reissuance of process is an element that remains constant in both the terminated first criminal proceeding and the institution of a second proceeding. Accordingly, Allen’s assertion that the Commonwealth is required to “formally arrest” him by subjecting him to the Commonwealth’s dominion and control is without merit. The record reveals that the Commonwealth followed the proper procedures: it re-instituted a criminal action against Allen by filing a complaint and then re-arrested him by issuing a summons.

With respect to Allen’s final issue, I dissent from the majority’s finding that the Commonwealth introduced sufficient evidence to convict Allen of operating his truck while “the amount of alcohol by weight in [his] blood [was] 0.10% or greater.” 75 Pa.C.S. § 3731(a)(4). The Commonwealth did not present expert testimony relating the blood alcohol reading obtained at least one hour after Allen last drove his truck to his blood alcohol level at the time of actual operation. Without such evidence, the court’s verdict was based on speculation and I would not allow it to stand.

It is axiomatic that the Commonwealth had the burden of proving each and every element of section 3731(a)(4) beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975); Commonwealth v. Santiago, 376 Pa.Super. 54, 545 A.2d 316 (1988). The Commonwealth was required to prove “(1) the operation of a vehicle, and (2) the presence of at least .10 [percent] alcohol by weight in [Allen’s] blood during the course of that operation.” Commonwealth v. Boyd, 373 Pa.Super. 298, 300, 541 A.2d 21, 22 (1988) (en banc) (emphasis added). Unlike a violation of section 3731(a)(1), driving under the influence to a degree that renders a motorist incapable of safe driving, a section 3731(a)(4) violation cannot be proven by objective observations concerning a motorist’s appearance, odor, and demeanor. A particular blood alcohol level can only be discerned through empirical tests. If those tests are not performed immediately after the alleged section 3731(a)(4) violation occurred, expert testimony instructing the fact finder on how to interpret and use the test results is imperative. See Commonwealth v. Slingerland, 358 Pa. Super. 531, 536, 518 A.2d 266, 269 (1986) (Cirillo, P.J., dissenting).

Allen claims the Commonwealth presented insufficient evidence to support the court’s conviction. Our standard of review is well settled; we must view all the evidence, and all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth as verdict winner. Boyd, 373 Pa.Super. at 301, 541 A.2d at 22; Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). Utilizing this standard, I find the Commonwealth failed to meet its burden as it offered no direct evidence of Allen’s blood alcohol level at the time he operated his truck. Moreover, my review of the record demonstrates that Allen’s blood alcohol level at the time of operation could not be inferred from the circumstantial evidence presented by the Commonwealth. Inferences are circumstantial evidence and can form the basis for a criminal conviction only when they follow, beyond a reasonable doubt, from proven facts. Commonwealth v. Saccol, 384 Pa.Super. 161, 557 A.2d 1095 (1989); Commonwealth v. Paschall, 333 Pa.Super. 323, 482 A.2d 589 (1984); Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1978), on rehearing, 268 Pa.Super. 488, 408 A.2d 1108 (1979). The inference that Allen’s blood alcohol level exceeded .10 percent when he drove his truck does not follow ineluctably from the facts proven at trial and thus, the Commonwealth’s evidence was insufficient to sustain Allen’s conviction under 75 Pa.C.S. § 3731(a)(4).

Officer Robert Yoho testified for the Commonwealth and stated that when he arrived at the scene of the accident, he observed that Allen “had an odor of alcoholic beverage, he had bloodshot eyes, he had slurred speech, and I believe he was injured.” These facts, when combined with the occurrence of the accident, are sufficient to convict Allen of driving under the influence to a degree that rendered him incapable of safe driving, section 3731(a)(1). See Commonwealth v. Wright, 362 Pa.Super. 464, 524 A.2d 970 (1987); Commonwealth v. Monosky, 360 Pa.Super. 481, 520 A.2d 1192 (1987). Notwithstanding its sufficiency with regard to section 3731(a)(1), each of these facts, when considered alone or in conjunction with each other, easily lead to an inference other than a blood alcohol level greater than .10 percent. In fact, these objective observations do not provide any insight into Allen’s precise blood alcohol level at the time of the accident. Instead, Officer Yoho’s observations lead only to a possible inference that Allen had been drinking at some earlier time. However, the- Commonwealth did not prove that drinking a large quantity of alcoholic beverages caused the odor, bloodshot eyes, and slurred speech. The odor of alcohol could have resulted either from Allen’s consumption of a small amount of alcohol or someone spilling their drink on him. Also, the slurred speech and the bloodshot eyes could simply have been side effects of the injuries sustained by Allen during the accident. Henry Allman’s testimony, presented by the Commonwealth, supports this conclusion. Allman, who lives adjacent to the street where the accident occurred, was the first person to offer assistance to Allen. Allman testified that the windshield on the driver’s side of Allen’s truck was “somewhat shattered” and that immediately after the accident, Allen was “shook up.” As illustrated, none of the officer’s testimony creates any inference as to Allen’s precise blood alcohol content. Also, the evidence is just as consistent with an inference that Allen consumed little or no alcohol as it is with an inference that he drank heavily. Because the inference of a blood alcohol level greater than .10 percent does not flow, beyond a reasonable doubt, from officer Yoho’s testimony, it cannot form the basis of Allen’s conviction under section 3731(a)(4). See Saccol, supra; Paschall, supra; Sojourner, supra.

Officer Yoho also stated that he administered several field sobriety tests and that Allen failed all of them. This indicates that after the accident, Allen’s motor skills were impaired. There are several inferences which can be drawn from this fact. First, if Allen’s motor skills were impaired prior to the accident, the only inference that would arise is that Allen was incapable of safe driving. If the impairment was caused by alcohol consumption, this inference is relevant to section 3731(a)(1). However, a finding of a particular blood alcohol level does not inevitably follow from that inference and therefore adds nothing to a prosecution under section 3731(a)(4). On the other hand, it is possible that the impaired motor skills resulted solely from the injuries suffered during the accident and no inference concerning the cause of the impairment would arise. Regardless, an inference of a blood alcohol level greater than .10 percent does not flow unavoidably from failed sobriety tests and therefore could not form the basis of Allen’s section 3731(a)(4) conviction. See Saccol, supra; Paschall, supra; Sojourner, supra. Since the court could not use any of the aforementioned facts to infer Allen’s blood alcohol level at the time of the accident, its verdict on the section 3731(a)(4) count must have been based entirely on the results of the blood alcohol test.

Officer David Mitchell testified that he was dispatched to the scene of the Allen accident sometime between 3:10 a.m. and 3:20 a.m. The testimony of Laura Falen established that the blood was drawn from Allen at 4:20 a.m., at least one hour after Allen last operated his truck. The test performed on the blood sample yielded a blood alcohol level of .16 percent. To infer, beyond a reasonable doubt, a blood alcohol content of .10 percent or greater at 3:20 a.m., the court would have to extrapolate from the blood alcohol level at 4:20 a.m. This requires knowledge of, inter alia, how alcohol is metabolized. The Commonwealth should not be allowed to presume that any fact finder possesses such knowledge. Consequently, without expert testimony on how to perform such a calculation, the court could only surmise the rate at which Allen’s body absorbed the alcohol he consumed. Because of the guesswork involved, the fact finder, in the absence of expert testimony, could not use the blood alcohol level at 4:20 a.m. to infer, beyond a reasonable doubt, Allen’s blood alcohol content at 3:20 a.m. Paschall, supra (a criminal conviction cannot be based on impermissible speculation); Commonwealth v. Croll, 331 Pa.Super. 107, 480 A.2d 266 (1984) (a criminal conviction cannot be based on mere surmise or conjecture); Commonwealth v. Gordon, 329 Pa.Super. 42, 477 A.2d 1342 (1984) (a guilty verdict cannot be based on suspicion). Since no inference concerning Allen’s blood alcohol level at 3:20 a.m. can be made, the blood test proved only that Allen’s blood alcohol level exceeded .10 percent one hour after he drove. See generally Slingerland, 358 Pa.Super. at 536, 518 A.2d at 269 (1986) (Cirillo, P.J., dissenting); see also State v. Mc Donald, 421 N.W.2d 492, 494 n. 2 (S.D.1988) (although an expert need not perform the extrapolation, “the evidence necessary to enable the court and/or the jury to extrapolate is required in prosecutions [for driving with a blood alcohol level greater than .10 percent] ... to obtain instructions on the presumption [that a driver with a blood alcohol content of .10 percent or greater is intoxicated]”); State v. Dumont, 146 Vt. 252, 254, 499 A.2d 787, 789 (1985) (“relation back testimony [is] necessary to establish the defendant’s blood alcohol content at the time of actual operation”). Accordingly, the Commonwealth has failed to prove the elements of section 3731(a)(4) beyond a reasonable doubt. See Boyd, supra.

The majority is apparently relying on Boyd, supra, to support its finding that the evidence was sufficient to support a conviction under section 3731(a)(4), despite the lack of expert testimony relating the after-the-fact blood test back to the time of operation. Boyd, an en banc decision, essentially affirmed the holding from Speights, supra, that

blood alcohol test results can — by themselves, without explanation by expert testimony — suffice to support a conviction under subsection 3731(a)(4) but that blood alcohol test results do not compel the trier of fact to find a defendant guilty of violating subsection 3731(a)(4) where there is competent evidence of record challenging said test results.

Boyd, 373 Pa.Super. at 298, 541 A.2d at 22 (quoting Speights, 353 Pa.Super. at 265-266, 509 A.2d at 1267). While I recognize that this court is bound by the holding in Boyd, I am of the opinion that Speights’ rationale is flawed, and therefore Boyd’s reliance on it should be reevaluated.

In Speights, the court stated that alcohol is absorbed into the bloodstream 30 to 90 minutes after it is imbibed. Speights, 353 Pa.Super. at 264, 509 A.2d 1266. The court then parlayed this finding into a generalization that if a person stops drinking 30 to 90 minutes before his arrest, his blood alcohol level will probably be falling at the time of testing and therefore be lower than at the time he drove. Id. Thus, a pre-testing delay “generally inures to the benefit of the defendant-driver____” Id. at 264, 509 A.2d at 1267. However, we as an appellate court cannot simply take judicial notice of the rate at which the body absorbs alcohol. See Slingerland, 358 Pa.Super. at 541, 518 A.2d at 271 (1986) (Cirillo, P.J., dissenting); see also Commonwealth v. Brooks, 362 Pa.Super. 236, 241, 523 A.2d 1169, 1172 (1987) (“judicial notice may be taken only of matters of common knowledge, of facts which are so well known that they are incontestable”); Insurance Adjustment Bureau v. Insurance Commissioner for the Commonwealth of Pennsylvania, 86 Pa.Commw. 491, 495, 485 A.2d 858, 860 (1984) (“[¡judicial notice is intended to avoid the formal introduction of evidence in limited circumstances where the fact sought to be proven is so well known that evidence in support thereof is unnecessary ...”). Not only are absorption rates different for each person, but they depend on a myriad of factors, including, but not limited to, a driver’s weight, what was eaten before drinking, the amount of alcohol each drink contained, and whether a non-alcohol based mixer was used. Moreover, Speights’ pronouncements allow the fact finder to relate after-the-fact blood alcohol readings back to an earlier time as a matter of course, without any reservations. This was a departure from éarlier declarations by this court. See Commonwealth v. Griscavage, 336 Pa.Super. 141, 152 n. 5, 485 A.2d 470, 476 n. 5 (1984) rev’d on other grounds, 512 Pa. 540, 517 A.2d 1256 (1986) (“[ajttempts to relate back blood/alcohol levels to a time prior to the admission of the test are regarded with skepticism”); Couts v. Ghion, 281 Pa.Super. 135, 145, 421 A.2d 1184, 1189 (1980) (“[ejvidence ‘relating back’ a blood alcohol test to a time before the test was administered has been viewed with skepticism”); Schwarzbach v. Dunn, 252 Pa.Super. 454, 462, 381 A.2d 1295, 1299 (1977) (plurality opinion) (“[wje regard with skepticism any evidence which attempts to relate back to a blood alcohol level at a time prior to the administering of such a test because such a test is entirely too speculative”). Cf. Acker man v. Delcomico, 366 Pa.Super. 569, 177, 486 A.2d 410, 414 (1984) (“[although the admission of the blood alcohol content has been condoned by this court ..., we remain skeptical as to the value of this evidence to the jury”).

In addition to the Commonwealth’s failure to present expert testimony, they drew only one blood sample from Allen. Lack of a second blood sample, taken after the first, essentially precluded the fact finder from deducing whether, at 4:20 a.m. Allen’s body was still absorbing alcohol or whether it had started to eliminate it, and if in the elimination phase, when the blood alcohol level had peaked. In other words, the court did not know whether, at the time of testing, Allen was entering or leaving a drunken condition. It is “common knowledge that the [percent] of blood alcohol is not static but varies according to the time elapsing after initial ingestion.” Commonwealth v. Kostra, 349 Pa.Super. 89, 99-100, 502 A.2d 1287, 1292 (1985). If a second blood sample was taken and tests performed on it registered a higher blood alcohol level than the first test, a person is still absorbing alcohol into the bloodstream and the blood alcohol content earlier, when driving, must have been lower. Because only one blood sample was taken, no determination of whether Allen was absorbing or eliminating alcohol could be made. Without a second blood test, the fact finder could not possibly make a determination, beyond a reasonable doubt, of the earlier level without simply guessing; extrapolation was impossible. A criminal conviction cannot be based on this type of uneducated guess. See Saccol, supra; Paschall, supra; Sojourner, supra.

Because the Commonwealth proved only that Allen’s blood alcohol content exceeded .10 percent one hour after he operated his motor vehicle, I would find the evidence insufficient to sustain a conviction under 75 Pa.C.S. § 3731(a)(4). Accordingly, I would reverse Allen’s conviction on that charge.

      . Rule 101, entitled “Means of Instituting Proceedings in Court Cases,” states:
      Criminal proceedings in court cases shall be instituted by:
      1. filing written complaint; or
      2. an arrest without a warrant when the offense is a felony or misdemeanor committed in the presence of the police officer making the arrest; or
      3. an arrest without a warrant upon probable cause when the offense is a felony; or
      4. an arrest without a warrant upon probable cause when the offense is a misdemeanor not committed in the presence of the police officer making the arrest, when such arrest without a warrant is specifically authorized by statute.
      Pa.R.Crim.P. 101.

      . Rule 102, entitled “Use of Summons or Warrant of Arrest in Court Cases," states:
      If a complaint charges an offense which is a court case, the issuing authority with whom it is filed shall:
      (a) issue a summons an<) not a warrant of arrest in cases in which the offense charged is punishable by a sentence of imprisonment of not more than one year, except as set forth in paragraph (b).
      (b) issue a warrant of arrest when:
      (1) the offense charged is punishable by a sentence to imprisonment of more than five years; or
      (2) the issuing authority has reasonable grounds for believing that the defendant will not obey a summons: or
      (3) the summons has been returned undelivered; or
      (4) a summons has been served and disobeyed by a defendant; or
      (5) the identity of the defendant is unknown.
      (c) issue a summons or a warrant of arrest, within the issuing authority’s discretion, when the offense charged does not fall within any of the categories specified in paragraphs (a) or (b).
      (d) when a defendant is charged with more than one offense and one of such offenses is punishable by a sentence to imprisonment for more than five years, a warrant of arrest shall be issued.
      Pa.R.Crim.P. 102.

      . The majority opinion incorrectly states that "the service of a summons on Allen was a proper method to reinstitute the charges against him.” (emphasis added). However, as I have just illustrated, filing the complaint reinstituted the charges against Allen while the issuance of the summons re-arrested him.

      . Officer Yoho asked Allen to close his eyes and touch his nose with his index finger, to pick up coins that the officer dropped on the street, to walk in a straight line by placing the heel on the ground first and then rolling forward to the toe, and to complete a 180 degree turn.

      . Because I must view the facts in the light most favorable to the Commonwealth, I will assume that the accident occurred at 3:20 a.m.