author:
McEWEN, Judge.
      HOFFMAN, Judge,

text:
    642 A.2d 1108
    Hugh F. CANNON, III and Mary Cannon, H/W, Appellants, v. Marek TABOR, Appellee.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1993.
    Filed June 1, 1994.

      Roger J. Harrington, Philadelphia, for appellants.
    Frank S. Blatcher, Thornton, for appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   McEWEN, Judge.

This appeal has been taken from an order which denied the motion for post-trial relief filed by Hugh F. Cannon, III, and Mary Cannon (hereinafter appellants), as a result of which judgment was entered against them and in favor of Marek Tabor (hereinafter appellee), following a jury verdict in favor of appellee in this personal injury action instituted by appellants to recover damages for injuries sustained in an intersectional automobile accident. We vacate the judgment entered in favor of appellee and remand for a new trial.

The complaint, filed by appellants on January 25, 1989, sought damages for the injuries sustained by appellant Hugh F. Cannon, III, as the result of a motor vehicle collision which occurred on May 25, 1988. The accident occurred at the intersection of Abbottsford Road and Fox Street in Philadelphia, at an intersection controlled by a traffic light, as appellant Hugh Cannon was traveling east on Abbottsford Road and appellee was traveling north on Fox Street.

Appellee testified that, as he approached the intersection of the two roads, the light controlling northbound traffic on Fox Street was red and that he came to a complete stop. Appellee further testified that, seconds after stopping on Fox Street, the traffic light turned green, that he looked left and did not see the car operated by appellant Hugh Cannon, and that he then proceeded into the intersection. Once in the intersection, appellee testified that only then did he see the other ear rapidly approaching and that he unsuccessfully tried to accelerate out of its path but was unable to avoid the collision.

Appellant Hugh Cannon testified that, as he approached the intersection, he saw appellee’s car stopped at the traffic light. Mr. Cannon further testified that he, having the green light, proceeded into the intersection at which point appellee suddenly moved into the intersection against the red light on Fox Street and, although appellant immediately applied his brakes and sounded his horn, he was unable to avoid striking the vehicle driven by appellee.

Following a three-day trial, the jury found that appellee had not been negligent and rendered a verdict in his favor. Appellants filed post-trial motions which requested either the grant of judgment n.o.v. on liability and a new trial limited to the issue of damages or, in the alternative, a new trial. The trial court denied the motions and this appeal timely followed.

The appellants argue that they are entitled to a new trial since the court instructed the jury on the assured clear distance ahead rule. The principles which govern our review of such a claim are well settled:

In reviewing alleged error in jury instructions we apply the standard recited in Sweitzer v. Dempster Systems, 372 Pa.Super. 449, 539 A.2d 880 (1988), as follows:
Where the motion for a new trial is based upon the sufficiency of the jury charge, we must examine the charge in its entirety against the background of the evidence to determine whether error was committed. If an appellate court concludes that the charge was erroneous, a new trial will be granted only if the jury charge might have prejudiced the appellant. A new trial will be granted even though the extent to which the appellant had been prejudiced is unascertainable. Gallo v. Yamaha Motor Corporation USA, 363 Pa.Super. 308, 321-322, 526 A.2d 359, 366 (1987).
Id. at 453, 539 A.2d at 882. See also: Leaphart v. Whiting Corp., 387 Pa.Super. 253, 564 A.2d 165 (1989), allo, denied, 525 Pa. 619, 577 A.2d 890 (1990); Jistarri v. Nappi, 378 Pa.Super. 583, 549 A.2d 210 (1988). An alleged inadequacy in jury instructions constitutes trial error if the jury was probably misled by what the trial judge said or there is an omission in the charge which amounts to fundamental error. Voitasefski v. Pittsburgh Rys. Co., 363 Pa. 220, 226, 69 A.2d 370, 373 (1949). See also: Sweeny v. Bonafiglia, 403 Pa. 217, 221, 169 A.2d 292, 294 (1961); Giorgianni v. DiSanzo, 392 Pa. 350, 140 A.2d 802 (1958); Hajduk v. Fague, 200 Pa.Super. 55, 186 A.2d 869 (1962). As a general rule, refusal to give a requested instruction containing a correct statement of law is ground for a new trial unless the substance thereof has otherwise been covered in the court’s general charge. Butler v. DeLuca, 329 Pa.Super. 383, 390, 478 A.2d 840, 844 (1984); Furey v. Thomas Jefferson University Hosp., 325 Pa.Super. 212, 227, 472 A.2d 1083, 1091 (1984).

Ottavio v. Fibreboard Corp., supra 421 Pa.Super. at 294-95, 617 A.2d at 1301-1302. See also: General Equipment Manufacturers v. Westfield Ins. Co., supra 430 Pa.Super. at 547-548, 635 A.2d at 184; Strickler v. Huffine, supra 421 Pa.Super. at 475, 618 A.2d at 437; Summit Fasteners, Inc. v. Harleysville National Bank & Trust Co., Inc., supra 410 Pa.Super. at 61-63, 599 A.2d at 206; Bailey v. Pennsylvania Elec. Co., 409 Pa.Super. 374, 390-91, 598 A.2d 41, 49 (1991).

The trial judge, quoting Section 3361 of the Motor Vehicle Code, 75 Pa.C.S. § 3361, instructed the jury as follows:

[djriving a vehicle at a safe speed is also a statutory requirement and states as follows: no person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazard that is existing or at a speed greater than will permit a driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad crossing, when approaching or going around curves, or when approaching a hill crest or traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions. So this act essentially dictates the duties of care required by someone in situations related to this case. You must determine whether there was any negligence on the part of either of the parties and whether it was a substantial factor in bringing about the plaintiffs’ injuries resulting from this statutory requirement. The operator of a motor vehicle must at all times exercise reasonable care and prudence under the circumstances and must have his car under such control that it could be stopped before doing injury to any person in any situation reasonably apt to arise from the circumstances.

The primary duty of the trial judge in charging the jury is to clarify the legal principles involved so that the jury may comprehend the questions that it must decide. Sedlitsky v. Pareso, 425 Pa.Super. 327, 332, 625 A.2d 71, 74 (1993); Lee v. Pittsburgh Corning Corp., 420 Pa.Super. 423, 430-31, 616 A.2d 1045, 1049 (1992); Spearing v. Starcher, 367 Pa.Super. 22, 29, 532 A.2d 36, 40 (1987); Brandimarti v. Caterpillar Tractor Co., 364 Pa.Super. 26, 28-29, 527 A.2d 134, 136 (1987), alio, denied, 517 Pa. 629, 539 A.2d 810 (1988). The wide variety of circumstances which may surround any given automobile accident means that the issues presented in each motor vehicle accident case are inherently fact specific. This requires special attention on the part of the trial court to identify the relevant facts and to present to the jury only those legal principles which are relevant to the issues raised by the evidence presented in that particular case. Extended reflection upon the issues presented by this appeal and scrutiny of Pennsylvania case law obliges us to grant appellants a new trial and prompts the notion that it may well be beneficial to reiterate the legal principles applicable to those intersectional accidents in which both parties claim that they had the right-of-way.

The assured clear distance rule, which is based upon Section 3361 of the Vehicle Code, 75 Pa.C.S. § 3361, requires that a driver be capable of bringing his/her vehicle to a stop within the distance that he/she can clearly see. Springer v. Luptowski, 535 Pa. 332, 336, 635 A.2d 134, 136 (1993); Dranzo v. Winterhalter, 395 Pa.Super. 578, 593-94, 577 A.2d 1349, 1357 (1990); Spearing v. Starcher, supra at 25-29, 532 A.2d at 38-39; Mickey v. Ayers, 336 Pa.Super. 512, 516-20, 485 A.2d 1199, 1202-1203 (1984); Elder v. Orluck, 334 Pa.Super. 329, 341-42, 483 A.2d 474, 481 (1984), aff'd, 511 Pa. 402, 515 A.2d 517 (1986); Brown v. Schriver, 254 Pa.Super. 468, 471-74, 386 A.2d 45, 47-48 (1978); Unangst v. Whitehouse, supra at 463, 344 A.2d at 698; Reifel v. Hershey Estates, 222 Pa.Super. 212, 214, 295 A.2d 138, 139 (1972).

“Assured clear distance ahead” means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed.

Fleischman v. City of Reading, 388 Pa. 183, 185-86, 130 A.2d 429, 431 (1957) (emphasis in original).

It is apparent that this distance, the range of a driver’s vision, may vary according to the visibility at the time and other attendant circumstances, Stark v. Fullerton Trucking Co., 318 Pa. 541, 179 A. 84 (1935), and that it may be “long, as on a straight road in bright daylight, or it may be shortened by storm, fog, a curve in the road or other conditions.” Gaber v. Weinberg, 324 Pa. 385, 388, 188 A. 187, 188 (1936). At night, the assured clear distance is the scope of the driver’s headlights____

Unangst v. Whitehouse, supra 235 Pa.Super. at 463, 344 A.2d at 698.

The applicability of the assured clear distance ahead rule is generally a question of fact for the jury. Smith v. Brooks, 394 Pa.Super. 327, 338, 575 A.2d 926, 932 (1990); Fish v. Gosnell, 316 Pa.Super. 565, 579-80, 463 A.2d 1042, 1050 (1983). This question, however, should only be presented to the jury where the facts introduced at trial, either conceded or disputed, conceivably develop a factual scenario which evokes the principles fundamental to the rule. There are a number of factors which may preclude the rule’s applicability. For example, the assured clear distance rule applies only to objects which are static or essentially static, including vehicles moving in the same direction. McKee by McKee v. Evans, 380 Pa.Super. 120, 150 n. 5, 551 A.2d 260, 274 n. 5 (1988), allo, denied, 522 Pa. 600, 562 A.2d 824 (1989); Mickey v. Ayers, supra at 518, 485 A.2d at 1203; Elder v. Orluck, supra at 343, 483 A.2d at 482; Brown v. Schriver, supra at 475, 386 A.2d at 49; Unangst v. Whitehouse, supra at 464-65, 344 A.2d at 699. Furthermore, since the rule applies only to those objects which a reasonable and prudent driver should be able to see, the rule may be inapplicable to cases in which the object ahead, for whatever reason, is indiscernible. See, e.g.: Stano v. Rearick, 441 Pa. 72, 271 A.2d 251 (1970); Colonial Trust v. Elmer C. Breuer, Inc., 363 Pa. 101, 69 A.2d 126 (1949); Farley v. Ventresco, 307 Pa. 441, 161 A. 534 (1932); Heffner by Heffner v. Schad, 330 Pa.Super. 101, 478 A.2d 1372 (1984); Brown v. Schriver, supra.

Another exception to the assured clear distance rule involves the sudden emergency doctrine which has been defined:

[A]s a defense to a defendant who suddenly and unexpectedly finds himself confronted with a perilous situation that permits no opportunity to assess the danger and respond appropriately. Carpenter v. Penn Central Transportation Co., 269 Pa.Super. 9, 409 A.2d 37 (1979); Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978). The doctrine is successfully applied as a defense where the defendant proves that he did not create the emergency, Westerman v. Stout, 232 Pa.Super. 195, 335 A.2d 741 (1975); Toff v. Rohde, 208 Pa.Super. 411, 222 A.2d 434 (1966), and where he responded in a reasonable fashion. Westerman, supra; Johnson v. Pennsylvania Railroad Company, 399 Pa. 436, 160 A.2d 694 (1960). The party confronting the peril simply is not expected to exercise that same degree of care mandated by normal and foreseeable circumstances. In fact, he is not required to exercise the highest or even an ordinary degree of judgment; therefore, he will not be responsible for any mistake of judgment in extricating himself from the impending dangerous situation.
Chiodo v. Gargloff& Downham Trucking Co., 308 Pa.Super. 498, 500-01, 454 A.2d 645, 646 (1983). Accord: Papandrea v. Hartman, 352 Pa.Super. 163, 507 A.2d 822 (1986); Elder, supra; Sagan v. DeStefano, 329 Pa.Super. 360, 478 A.2d 828 (1984); Carpenter v. Penn Central Transp. Co., 269 Pa.Super. 9, 409 A.2d 37 (1979). The rule arises “where ... because of the shortness of time [withjin which to form judgment in an emergency not created by his own negligence [the actor] fails to act in the most judicious manner. ...” Noll v. Marian, 347 Pa. 213, 215, 32 A.2d 18, 19 (1943). It implies the “failure to perform a duty so suddenly and unexpectedly arising that there was no opportunity to apprehend the situation and to act according to the exigency.” Id., 347 Pa. at 215, 32 A.2d at 19; Moore v. Meyer & Power Co., 347 Pa. 152,154, 31 A.2d 721, 722 (1943); Sagan, supra 329 Pa.Super. at 368, 478 A.2d at 832. Accord McElroy v. Rozzi, 194 Pa.Super. 184, 166 A.2d 331 (1960). “The purpose of the sudden emergency doctrine is to relieve a victim from the sometimes stringent reasonable man standard when he is confronted with an occurrence that permits no opportunity to apprehend the situation and act accordingly.” Carpenter, 269 Pa.Super. at 16, 409 A.2d at 40. It flows from “an occurrence requiring some form of immediate, evasive action.” Id., 269 Pa.Super. at 16, 409 A.2d at 40.
This doctrine has been applied most often in motor vehicle accident cases where the operator was confronted "with a perilous, often life-threatening situation requiring spontaneous response to avoid the impending danger of a collision. Carpenter, supra. One invoking the defense of sudden emergency cannot be responsible for creating that very peril and is ordinarily excused from liability because he lacked the time to react as he would have done under otherwise foreseéable circumstances. Thus, one driving carelessly or recklessly cannot avail himself of the rule’s protection, since, normally, the peril would not have arisen in the first instance. Chadwick v. Popadick, 399 Pa. 88, 159 A.2d 907 (1960); Downey v. Rymorowicz, 397 Pa. 205, 154 A.2d 179 (1959); Levine v. Mervis, 373 Pa. 99, 95 A.2d 368 (1953); Arble v. Murray, 359 Pa. 12, 58 A.2d 143 (1948); Randolph v. Campbell, 360 Pa. 453, 62 A.2d 60 (1948); Nark v. Horton Motor Lines, Inc., 331 Pa. 550, 1 A.2d 655 (1938); Hollern v. Verhovsek, 220 Pa.Super. 343, 287 A.2d 145 (1971).

McKee by McKee v. Evans, supra at 146-48, 551 A.2d at 272-273.

Where a sudden emergency arises inside the range of the previously assured clear distance ahead, the assured clear distance ahead rule is inapplicable, see Dranzo v. Winterhalter, supra 395 Pa.Super. at 593-94, 577 A.2d at 1357; McKee by McKee v. Evans, supra 380 Pa.Super. at 150 n. 5, 551 A.2d at 274 n. 5; Mickey v. Ayers, supra 336 Pa.Super. at 516-20, 485 A.2d at 1202-1203; Elder v. Orluck, supra 334 Pa.Super. at 341-43, 483 A.2d at 481-482; Polumbo v. DeStefano, 329 Pa.Super. 360, 364, 478 A.2d 828, 831 (1984); Brown v. Schriver, supra 254 Pa.Super. at 474, 386 A.2d at 48; Unangst v. Whitehouse, supra 235 Pa.Super. at 463, 344 A.2d at 698; Reifel v. Hershey Estates, supra 222 Pa.Super. at 215, 295 A.2d at 140, since the two doctrines are, as a general rule, mutually exclusive. See: McKee by McKee v. Evans, supra 380 Pa.Super. at 150 n. 5, 551 A.2d at 274 n. 5; Elder v. Orluck, supra 334 Pa.Super. at 341-43, 483 A.2d at 481-482; Brown v. Schriver, supra 254 Pa.Super. at 473-77, 386 A.2d at 48-49.

Generally, in an intersectional accident, “the application of the assured clear distance ahead rule depends on whether the vehicle proceeding into the intersection arrived in the lane at a point outside of or within an approaching motorist’s assured clear distance ahead.” Unangst v. Whitehouse, supra 235 Pa.Super. at 467, 344 A.2d at 700. The facts of the instant case present a breed of intersectional automobile accident familiar to any driver — both drivers almost simultaneously enter the intersection from perpendicularly-situated roads, and both claim they did so because they had the green light. If this specific factual scenario exists, the jury cannot be charged on the assured clear distance ahead rule.

In such a circumstance the driver has already mentally cleared the distance ahead and the sudden interjection of an instrumentality within the range thereof is not within the specific duty imposed by the [assured clear distance ahead] rule.

Unangst v. Whitehouse, supra at 465, 344 A.2d at 699 (emphasis supplied). Thus, it was error to charge the jury on the assured clear distance rule. Given the facts of this case, there exists the possibility that the decision of the trial judge to instruct the jury on the assured clear distance ahead rule confused, rather than clarified, the issues for the jury. Since the erroneous charge may have substantially affected the verdict, we are constrained to reverse and remand for a new trial.

Order vacated. Case remanded for new trial. Jurisdiction relinquished.

HOFFMAN, J., files a concurring statement.

HOFFMAN, Judge,

concurring:

I applaud the majority’s scholarly efforts to clarify the application of the “assured clear distance ahead rule” and to delineate its interrelationship with the “sudden emergency doctrine.” I also agree with the majority that the assured clear distance rale is inapplicable to the instant case and, therefore, I agree with the majority’s grant of a new trial to appellant. However, I write separately to indicate my disagreement with the majority’s characterization of the rale as it applies to intersections and laterally moving vehicles generally.

In footnote four, the majority correctly points out that there has been a tendency, sometimes erroneously, to give a jury instruction concerning assured clear distance ahead simply because a jury instruction is requested regarding sudden emergency. The general rale, as stated by the majority, is that the two doctrines are mutually exclusive. However, in its discussion of Reifel, I believe the majority errs in its suggestion that the assured clear distance ahead rale does not apply to perpendicularly positioned vehicles at intersections. The majority states that the assured clear distance instruction was inappropriate in Reifel, as “[f]irst, the rale applies only to static or essentially static objects, it was inapplicable to this situation in which the vehicles were in motion and were perpendicularly positioned.”

Initially, I note that the statute specifically makes reference to the application of the assured clear distance rule to intersections. 75 Pa.C.S. § 3361 provides: “Consistent with the foregoing, every person shall drive at a safe speed when approaching and crossing an intersection____” Thus, the statute clearly contemplates the application of the rale to intersections, where some vehicles are traveling in a perpendicular direction relative to each other. Moreover, in Unangst, which the majority relies upon, the court clearly stated that the assured clear distance rale can apply to intersections where the vehicles were both in motion and traveling in a perpendicular fashion. Unangst, at 466, 344 A.2d at 699.

The Unangst Court, in its discussion of Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960), explained the reason for the application of the rule to this situation as follows:

The fact that the obstacle was moving in Enfield does not necessarily indicate that “moving” objects are included within the rule. It must be noted that the object in that case, a truck, was moving across the intersection and in the path of an oncoming car. This lateral movement, from the point of view of the calculation of time-distance, is of little moment. The truck in Enfield was essentially a static object because its movement did nothing to reduce the assured clear distance ahead for the the oncoming car.

Id. 235 Pa.Super. at 466, 344 A.2d at 700. This characterization of a vehicle traveling across an intersection as akin to a static object is a sensible legal fiction as regards the assured clear distance ahead rule, because it is consistent with the purpose of the rule. The purpose of the rule is to ensure that “such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.” Mickey v. Ayers, at 517-18, 485 A.2d at 1202 (quoting Unangst at 463, 344 A.2d at 698). An intersection is an inherently more dangerous stretch of road than others because of the possibility that vehicles approaching the intersection may have to stop suddenly when another vehicle fails to yield the right of way. The Pennsylvania Supreme Court has stated in this regard:

While the driver of an automobile on a through highway may properly assume that one approaching that highway on a stop street will perform his legal duty to stop and yield the right of way ..., still the right-of-way on a through highway is a qualified one and the driver of an automobile thereon must take precautions in regard to the control and speed of his car and keeping alert lookout for cars approaching the intersection as a reasonable prudent man solicitous of his own safety.

Enfield 400 Pa. at 12, 161 A.2d at 25. Thus, I believe that the majority’s statement regarding the application of the assured clear distance ahead rule to moving vehicles at intersections, to be unsupported by our caselaw and to fail to adequately address the cogent reasoning of Enfield and Unangst.

      . The argument that appellant is entitled to judgment n.o.v. may be summarily rejected:
      The standard of review of an appellate court when considering an order granting or denying judgment n.o.v. is the same as that used by the trial court: we must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can be reasonably drawn from the evidence and rejecting all unfavorable testimony and inferences. Judgment n.o.v. is appropriate only in a clear case where the facts are such that no two reasonable minds could fail to agree that, as a matter of law, the party has failed to make out his case.

        Rocker v. Harvey Co., 370 Pa.Super. 32, 36-37, 535 A.2d 1136, 1138 (1988). Accord: Community College, etc. v. Community College, 473 Pa. 576, 375 A.2d 1267 (1977). Since the parties presented contradictory testimony as to the traffic signals, it became the duty of the jury to consider and resolve the conflicting testimony. As for the testimony of appellant husband and the accident investigation officer that appellee had admitted that he had been watching the wrong traffic signal, appellee denied at the trial that he had looked at the wrong traffic signal and advised that, by reason of his limited English language skills, his statements at the scene of the accident were misunderstood. We cannot say that this is a situation where no two reasonable individuals could differ as to whether appellee had been negligent and, therefore, the trial court properly referred the factual dispute to the jury. Thus, appellants fall short of the standard required for the entry of judgment

      . Appellants further argue that the rejection by the trial court of four of the points for charge submitted by appellants constituted reversible error. The trial court refused the points submitted because the substance of the specific instructions requested by appellants were covered by the court's general charge. We agree. See: Strickler v. Huffine, 421 Pa.Super. 463, 475-77, 618 A.2d 430, 437 (1992); Ottavio v. Fibreboard Corp., 421 Pa.Super. 284, 295, 617 A.2d 1296, 1302 (1992); Summit Fasteners, Inc. v. Harleysville National Bank & Trust Co., Inc., 410 Pa.Super. 56, 61-63, 599 A.2d 203, 206 (1991), allo, denied, 530 Pa. 633, 606 A.2d 902 (1992).
      Appellants also challenge the refusal of the court to instruct the juiy that a motorist cannot be heard to say he properly looked in both directions before entering an intersection where the motorist failed to see what would have been obvious had he looked. The trial court correctly reasoned that "[t]his instruction can not be given without taking several facts for granted which were not in evidence or were, in the least, in dispute.” An alleged error in jury instructions must be considered in light of the evidence presented at trial. General Equipment Manufacturers v. Westfield Ins. Co., 430 Pa.Super. 526, 547-548, 635 A.2d 173, 184 (1993); Butler v. Kiwi, S.A., 412 Pa.Super. 591, 594-96, 604 A.2d 270, 272 (1992), allo, denied, 531 Pa. 650, 613 A.2d 556 (1992). Since this instruction would have assumed facts not in evidence, the trial court’s refusal to give such an instruction was not error.

      . Case law suggests that this area has long been one subject to uncertainty. Nearly twenty years ago, in Unangst v. Whitehouse, 235 Pa.Super. 458, 463, 344 A.2d 695, 698 (1975), this Court noted that:
      In order to decide the issues here presented we feel compelled to attempt to consolidate the various rulings into one consistent rule to which the present factual situation may be applied.

      . There are cases which have permitted the jury to be instructed on both the assured clear distance ahead rule and the sudden emergency doctrine. See, e.g.: Papandrea v. Hartman, 352 Pa.Super. 163, 507 A.2d 822 (1986); Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981). Such a coupling of instructions, however, was limited by those cases to situations in which, due to the disputed facts at issue in those cases, the very existence of facts which could support a finding of a sudden emergency was a question for the jury. See: Papandrea v. Hartman, supra at 169, 507 A.2d at 826; Potenburg v. Varner, supra at 22, 424 A.2d at 1372. See also: McKee by McKee v. Evans, supra at 150 n. 5, 551 A.2d at 274 n. 5; Elder v. Orluck, supra at 343, 483 A.2d at 482.
      There are, however, a very limited number of factual scenarios in which both charges can be properly given to the jury and it is the presence of these facts which determine how the jury is charged. A review of all of the relevant case law suggests that this factual distinction has become blurred over time.
      We begin our analysis with the most recent recitation of this position by this Court in Papandrea v. Hartman, supra, in which the court wrote:
      "[Wjhere the evidence leaves some doubt as to whether an emergency existed, there is a question of fact for the jury, and the jury should be instructed on both the assured clear distance ahead and sudden emergency doctrines. The dual instruction assures that the jury has the applicable law for whatever factual scenario they find occurred.” Ernst v. Ace Motor Sales, 550 F.Supp. 1220, 1226 (E.D.Pa.1982), affirmed without opinion, 720 F.2d 661 (3d Cir.1983) (emphasis in original); Potenburg v. Varner, 284 Pa.Super. 19, 424 A.2d 1370 (1981).

        Papandrea v. Hartman, supra at 170, 507 A.2d at 826. The cases upon which the court in Ernst v. Ace Motor Sales relied were Potenburg v. Varner, supra, Stacy v. Thrower Trucking, Inc., infra, and Unangst v. Whitehouse, supra.

      In tracing the citation trail to its origins, it would seem that this line of cases originated in Casey v. Siciliano, 310 Pa. 238, 165 A. 1 (1933), where the plaintiff was a passenger in a street car which was struck by the vehicle driven by the defendant as he attempted to pass the trolley car, causing plaintiff to be injured when she was thrown from her seat. Defendant claimed that, as he started to pass the trolley, a child started to move from the curb in front of his car, creating a "sudden emergency” and that the existence of this sudden emergency relieved him of any liability. Plaintiff argued that defendant’s prior negligent driving in attempting to pass the trolley precluded him from the protection of the sudden emergency doctrine. The Supreme Court concluded that, where a driver claims that his actions were in response to a sudden emergency and the facts do not conclusively establish the existence of such an emergency, that is a question for the jury to decide. A review of the facts underlying Casey and the jury charge that was given reveal obvious distinctions in Casey and some of the cases which have applied its reasoning. Not all of the cases which have cited Casey have recognized that it cannot properly be cited as endorsing an assured clear distance ahead instruction involving on-coming and laterally-moving vehicles. The facts of Casey actually evoke the principles of the assured clear distance ahead rule, most notably, the fact that, at the time the accident occurred, the trolley was a stationary object. The assured clear distance ahead rule applies only to static or essentially static objects. See: McKee by McKee v. Evans, supra 380 Pa.Super. at 150 n. 5, 551 A.2d at 274 n. 5; Mickey v. Ayers, supra 336 Pa.Super. at 518, 485 A.2d at 1203; Elder v. Orluck, supra 334 Pa.Super. at 343, 483 A.2d at 482; Brown v. Schriver, supra 254 Pa.Super. at 475, 386 A.2d at 49; Unangst v. Whitehouse, supra 235 Pa.Super. at 464, 344 A.2d at 699. Secondly, the assured clear distance rule was not even an instruction which was given to the jury in Casey. Rather, the charge given alongside the sudden emergency doctrine was that of a general duty of care and control on the road. See: Casey v. Siciliano, supra 310 Pa. at 239-42, 165 A. at 1-2. The question submitted to the jury was whether or not defendant's actions precluded his reliance on the sudden emergency doctrine.
      The second vital incarnation of this proposition was in Levine v. Mervis, 373 Pa. 99, 95 A.2d 368 (1953), in which the parties were involved in a head-on collision. As in Casey, the defendant sought the protection of the sudden emergency doctrine and the Supreme Court, citing Casey, concluded again that it was proper for the jury to decide if there was any negligence on behalf of the defendant which precluded application of the sudden emergency doctrine. As in Casey, there was no mention of the assured clear distance ahead rule, nor could there have been since the accident involved a head-on collision.
      The anomalous and intricate nature of the issue is first revealed in Reifel v. Hershey Estates, supra, where the appellant was traveling on a road and, when approximately 70 feet from an intersection, noticed that a truck driven by the appellee had stopped at a stop sign which was set back approximately 30 feet from the point where the two roads intersected. The appellant noticed that the appellee had begun to slowly proceed into the intersection but, assuming that appellee would yield the right-of-way, appellant continued on without slowing down and struck appellee’s truck when it did in fact enter the intersection. The trial court charged the jury on both the sudden emergency doctrine, appellant claiming that she was faced with a sudden emergency, and the assured clear distance ahead rule.
      This Court in Reifel, citing Casey and Levine, correctly stated that since reasonable minds may differ as to whether a sudden emergency actually existed, that determination was properly left to the jury. This Court went on, however, to conclude that, since it was debatable as to whether a sudden emergency existed, it was also proper to charge the jury on the assured clear distance ahead in the event that there was no emergency. Reifel v. Hershey Estates, supra 222 Pa.Super. at 215, 295 A.2d at 140. That approval presents a certain difficulty. First, as the rule applies only to static or essentially static objects, it was inapplicable to this situation in which the vehicles were in motion and were perpendicularly positioned. Secondly,

        [i]f the entry was made within the assured clear distance ahead but at a point sufficiently distant to still allow the driver sufficient time in which to stop, the duty imposed is not that of the assured clear distance rule but rather that of the general duty of care and control of the road. See Enfield v. Stout [400 Pa. 6, 161 A.2d 22 (1960)]; see also Reich v. Miller, 260 Iowa 929, 151 N.W.2d 605 (1967); Wells v. Wildin, 224 Iowa 913, 277 N.W. 308 (1938). Cf. Greene v. Morelli Bros., [463 F.2d 725 (3d Cir.1972)]. The assured clear distance ahead rule is thus not applicable where an instrumentality moves into the driver’s path within a distance short of the assured clear distance ahead. Hollerne v. Verhovsek, [220 Pa.Super. 343, 287 A.2d 145 (1971)]; Mihalic v. Texaco, Inc., [377 F.2d 978 (3d Cir.1967)].

        Unangst v. Whitehouse, supra 235 Pa.Super. at 467-68, 344 A.2d at 700 (emphasis supplied). This Court in Reifel concluded that the record did not suggest that an emergency existed, an indication that the court believed that appellant had “sufficient time in which to stop” and, therefore, the general duty of care and control — and not the assured clear distance ahead rule — was applicable.
      The next case in which both instructions were approved was this court’s opinion in Stacy v. Thrower Trucking, Inc., 253 Pa.Super. 150, 384 A.2d 1274 (1978). Though this case was later relied upon by a number of decisions for the proposition that, in certain circumstances, it is proper to charge on both the assured clear distance ahead and the sudden emergency doctrine, see, e.g., Potenburg v. Varner, supra 284 Pa.Super. at 22, 424 A.2d at 1372, the Stacy court, in fact, reached no such conclusion. Rather, the issue addressed was based on appellant’s claim that appellee’s own testimony established that appellee had operated his vehicle in a negligent manner and thus he could not be protected by the sudden emergency doctrine. See: Stacy v. Thrower Trucking, Inc., supra 253 Pa.Super. at 157, 384 A.2d at 1278. The appellant did not challenge the assured clear distance ahead charge and this court did not address the issue although the charge was improperly given, since an over-turned cement mixer truck sliding across four lanes of traffic is hardly “static” or “essentially static”. The complexity of the issue is further revealed in Potenburg v. Varner, supra. While the court in Stacy confined its statement of the law to "this situation”, Stacy v. Thrower Trucking, Inc., supra at 159, 384 A.2d at 1279, this Court in Potenburg, cited the rule as universally applicable:
      Where the facts do not conclusively establish the existence of a sudden emergency, it is proper to charge the jury on both the assured clear distance rule and the sudden emergency doctrine in order that the jury has the applicable law to apply to the facts as they find them. Stacy v. Thrower Trucking, Inc., supra.

        Potenburg v. Varner, supra 284 Pa.Super. at 22, 424 A.2d at 1372. Thus it is that we arrive at Papandrea v. Hartman. Though our cases have repeated that the assured clear distance ahead rule and the sudden emergency doctrine are generally mutually exclusive instructions, see McKee by McKee v. Evans, supra 380 Pa.Super. at 150 n. 5, 551 A.2d at 274 n. 5; Elder v. Orluck, supra 334 Pa.Super. at 341 — 45, 483 A.2d at 481-82; Brown v. Schriver, supra 254 Pa.Super. at 473-77, 386 A.2d at 48-49, the two instructions are often included in the same jury charge. Thus, it merits emphasis that the situations are relatively rare in which both charges may properly be given.
      The more effective manner of explanation is, perhaps, to rely upon a hypothetical:

        Two cars are traveling in the same direction on a one-lane highway. The car in front, car A, abruptly stops and is rear-ended by the second car, car B. The driver of car A claims that a deer ran in front of her car creating a sudden emergency to which she reasonably responded under the circumstances. The driver of car B claims that the deer did not come anywhere near A's vehicle and it was driver A’s negligence which caused the accident. Driver A in turn claims that driver B was following too closely and it was this negligent act which caused the accident.
      In this hypothetical, the facts do not conclusively establish the existence of an emergency. The jury would first have to determine if such an emergency existed which would protect driver A by the application of the sudden emergency doctrine. The jury would then have to determine if driver B was in violation of the assured clear distance rule by following too closely to a car traveling in the same direction, an essentially static object.
      The hypothetical, therefore, contains the necessary elements for both instructions to be given: (1) a claim by one driver that she reacted to a sudden emergency where reasonable minds may differ as to whether an emergency actually existed, and (2) the element which inspires this entire discussion, namely, a situation in which it must be determined if one driver should have been capable of stopping within the assured clear distance of a static or essentially static object.

      . In affirming the trial court’s jury instruction of the assured clear distance ahead, the court in Unangst v. Whitehouse emphasized that the record did not undeniably indicate that a sudden emergency existed.

      . The concurring statement quite perceptively voices concern that (1) since the term "intersection” is used in section 3361 of the Vehicle Code, and (2) since ”[a]n intersection is an inherently more dangerous stretch of road than others because of the possibility that vehicles approaching the intersection may have to stop suddenly when another vehicle fails to yield the right of way”, it follows that the assured clear distance ahead rule is applicable to intersections. The concern is expressed in such persuasive fashion that it seems prudent to express the bases for pause in sharing the concern. Firstly, when the text of section 3361 is read in its entirety, it is evident that the requirement that a driver “shall operate at a safe and appropriate speed when approaching and crossing an intersection” is to be in addition to the assured clear distance ahead requirement. See: 75 Pa.C.S. § 3361 ("Consistent with the foregoing...."). Secondly, the notion that the assured clear distance ahead rule applies to all intersections overlooks the distinction between those roads which are regulated by traffic lights and those which are not, a distinction which has caused this Court to observe that the driver’s duty in a traffic light-regulated intersection is not heightened, but limited.
      To hold that there is the same degree of care imposed upon a motorist with a favorable light as one without any right of way would thwart the purpose of traffic lights to facilitate the flow of traffic.

        Escher v. Pittsburgh Railways Co., 194 Pa.Super. 66, 71, 166 A.2d 537, 540 (1960).

      . Appellants voiced their objection to this instruction both before and after it was given.

      . The author acknowledges that his dissenting thoughts in Saylor v. Rose, 319 Pa.Super. 560, 466 A.2d 686 (1983), afford a basis for a charge of inconsistency — but would assert there is insufficient evidence for conviction of such a display.


source: Caselaw Access Project

author: WIEAND, Judge:

license: Public Domain

text:
    642 A.2d 1117
    David and Joyce FENGFISH, Appellees, v. Herbert and Louelle DALLMYER, Appellants.
    Superior Court of Pennsylvania.
    Submitted Feb. 10, 1994.
    Filed June 2, 1994.

      Daniel J. Flaherty, York, for appellants.
    Larry C. Heim, York, for appellees.
    Robert A. Krug, Dove, for Pfléigher, participating party.
    Stephen P. Linebaugh, York, for Schaull, participating party.
    Jack Barton, York, for Chairman of the Board, participating party.
    Before WIEAND, McEWEN and BROSKY, JJ.
   WIEAND, Judge:

The present appeal is by Herbert and Louelle Dallmyer from an order confirming a report of viewers which condemned a private right of way in favor of David and Joyce Fengfish over an éxisting private right of way across land owned by the Dallmyers. They argue specifically that the restriction imposed by section 5 of the Act of June 13, 1836, P.L. 551, 36 P.S. § 1901, that a private road established pursuant to the statute shall not exceed twenty-five (25) feet, prevents a board of viewers from creating private rights in and to a fifty (50) feet wide private easement which is already in place.

David and Joyce Fengfish, alleging that their land in Dover Township, York County, was landlocked, filed a petition for the appointment of a board of view to establish a private access road across the adjoining land of Herbert and Louelle Dallmyer. A board of view was appointed which, after viewing the land and holding hearings, found that the Fengfish tract was landlocked and that the most convenient way to achieve access to a public road was an existing private right of way, fifty (50) feet in width and four hundred fifty-six (456) feet in length. This private easement was located on land owned by the Dallmyers and was subject to an established right of way vested in Randall and Yvonne Shaull, neighbors. The viewers found that the existing private road was the most convenient means of access to the Fengfish property and would cause the least amount of damage. The topography was such, the viewers found, as to make less desirable any other right of way. Therefore, the viewers granted to the petitioners a right to use the existing fifty (50) feet wide private right of way.

The Dallmyers filed exceptions. They contended that a fifty (50) feet wide private right of way was excessive and in derogation of the mandate contained in section two of the statute, 36 P.S. § 1785, that the road laid out by viewers “shall do the least injury to private property.” They also contended that a fifty (50) feet wide right of way was excessive and that the rights of the Fengfishs should be limited to a ten (10) feet wide dirt road that ran through the existing right of way. The trial court dismissed the exceptions and confirmed the report of the viewers. The Dallmyers appealed.

A board of viewers has broad authority under the Act of 1836 to determine whether a private road is necessary. In re Laying and Opening a Private Road, 405 Pa.Super. 298, 304, 592 A.2d 343, 346 (1991). See also: In re Private Road in Greene Township, 343 Pa.Super. 304, 307, 494 A.2d 859, 860 (1985); Mandracchia v. Stoney Creek Real Estate Corp., 133 Pa.Commw. 510, 514, 576 A.2d 1181, 1182 (1990). The duties of a board of view are defined by section two of the Act as follows:

The persons appointed [as viewers], shall view such ground, and if they shall agree that there is occasion for a road, they shall proceed to lay out the same, having respect to the shortest distance, and the best ground for a road, and in such manner as shall do the least injury to private property, and also be, as far as practicable, agreeable to the desire of the petitioners.

The board’s decision is subject to review by the trial court, which may confirm the report or reject it and direct further proceedings. The board’s authority, however, “will not be infringed upon by'a court’s substituting its judgment for that of the viewers.” Driver v. Temple, 374 Pa.Super. 389, 394, 543 A.2d 134, 136-137 (en banc), allocatur denied, 520 Pa. 607, 553 A.2d 969 (1988). “Appellate review of these matters is solely to ascertain the validity of the court’s jurisdiction, the regularity of the proceedings, questions of law, and whether there has been an abuse of discretion.” Id. 374 Pa.Super. at 395, 543 A.2d at 137. See also: In re Laying Out and Opening a Private Road, supra 405 Pa.Super. at 304, 592 A.2d at 346.

Section 5 of the Act of 1836, 36 P.S. § 1901, places a specific limitation on the authority of a board of view. It provides unequivocally that “[t]he breadth of a private road shall not in any case exceed twenty-five feet.” See also: Killbuck Private Road, 77 Pa. 39 (1874). This section of the statute imposes a limitation on the power of viewers to act. As such, it is not waivable. See: Mandracchia v. Stoney Creek Real Estate Corp., supra 133 Pa.Commw. at 516 n. 3, 576 A.2d at 1183 n. 3. The power of a board of view to take private land for the use of another person exists only by virtue of statute, and the board’s exercise of that power is limited strictly according to the terms of the statute creating the power. When a board of viewers acts outside the provisions of the statute, its acts are without authority and void. See: Killbuck Private Road, supra.

In the instant case, we have no doubt that the viewers acted wisely in following the course of the existing private right of way. When the viewers exceeded the authority given them by statute, however, and attempted to grant to the appellee-petitioners a fifty (50) feet right of way, they exceeded their authority. Any right of way in favor of appellees had to be limited to a width of twenty-five (25) feet.

The order of the trial court affirming the report of viewers is reversed, and the case is remanded to the board of viewers for further consideration consistent with the foregoing opinion.

      . Also joined as parties were Richard Pfleiger and Randall and Yvonne Shaull, who owned adjacent lands.

      . Appeals from petitions seeking to lay out and open a private road are eminent domain proceedings which are within the jurisdiction of the Commonwealth Court pursuant to 42 Pa.C.S. § 762(a)(6). In re Laying Out and Opening a Private Road, 405 Pa.Super. 298, 303, 592 A.2d 343, 346 (1991). Accord: Mandracchia v. Stoney Creek Real Estate Corp., 133 Pa.Commw. 510, 515 n. 2, 576 A.2d 1181, 1183 n. 2 (1990),
        modified, on appeal, 148 Pa.Commw. 80, 609 A.2d 871 (1992). However, 42 Pa.C.S. § 704(a) provides that if the appellee fails to file an objection to this Court’s exercise of appellate jurisdiction, it is within this Court’s discretion to either transfer the matter to the Commonwealth Court or retain jurisdiction over the matter. See also: Pa.R.A.P. 741. Accord: In re Laying Out and Opening a Private Road, supra; Mandracchia v. Stoney Creek Real Estate Corp., supra; Lara, Inc. v. Dorney Park Coaster Co., Inc., 369 Pa.Super. 27, 534 A.2d 1062 (1987). In the present case, since no party has filed an objection to the exercise of this Court’s jurisdiction, we will address the merits of the appeal in the interests of judicial economy.

      . 36 P.S. § 1785.


author: FORD ELLIOTT, Judge: DEL SOLE, Judge,

text:
    642 A.2d 1120
    John J. MATTERNAS and Elaine Matternas, His Wife, Appellants, v. Theodore H. STEHMAN T/A Ted Stehman’s Joinery.
    Superior Court of Pennsylvania.
    Argued Aug. 31, 1993.
    Filed June 2, 1994.

      Edward J. Coyle, Lebanon, for appellants.
    Margaret J. Concannon, Lancaster, for appellee.
    Before DEL SOLE, FORD ELLIOTT, and HOFFMAN, JJ.
   FORD ELLIOTT, Judge:

Appellants come before us challenging the entry of summary judgment in their action in assumpsit. The basis for the granting of appellee’s motion for summary judgment was that the matter complained of in appellants’ assumpsit action had already been decided by judicial determination and was thus barred by res judicata. We do not agree that res judicata applies instantly, nor do we believe that appellants are collaterally estopped from pursuing the issues raised by their lawsuit. Therefore, we shall vacate the order of the trial court and remand for a trial in this matter.

Appellants are property owners who, in late 1988, hired appellee, a building contractor, to convert a barn on their property into a residence. As payments to appellee were not forthcoming, on November 13, 1989, appellee filed a claim under the Mechanics’ Lien Law of 1963. The lien sought was in the amount of $53,567.76 plus interest.

Appellants responded by filing an answer with new matter, as well as a counterclaim, which was treated as a claim for a set-off. The new matter asserted as a defense a breach of contract by appellee and also averred that appellee had already been paid in full. By way of “counterclaim,” appellants alleged a failure to complete in a workmanlike manner and claimed that the reasonable cost of completion was in the sum of $10,000.00.

Eventually, the parties were able to amicably conclude the mechanics’ lien matter by settlement agreement, the terms of which were embodied in a consent order dated November 30, 1990. The terms of this order were as follows:

AND NOW, to wit, November 30,1990, the parties having amicably resolved their differences and expressed a desire to enter into a compromise settlement of the matter heretofore presented, in accordance with that agreement, and in the presence of the parties, the Court orders as follows:
1. The Prothonotary of Lebanon County is directed to enter judgment in favor of the Plaintiff, Theodore H. Stehman, t/a Ted Stehman’s Joinery, and against John J. Matternas and Elaine Matternas, husband and wife, in the amount of $58,512.12 which sum represents the balance of the Plaintiffs claim of $53,696.83 plus agreed upon statutory interest to December 2, 1990. Lien priority shall be established as of November 21, 1988, as provided un [sic] the Mechanics’ Lien Law of 1963, August 24, P.L. § 1175, No. 417, 49 P.S. § 1201(4).
2. The Defendants, in satisfaction of the judgment, agree to pay the following:
A, $40,000 on or before 5 p.m., January 10, 1991, in the offices of counsel of record for the Plaintiff.
B, $5,000 on or before 5 p.m., January 31, 1991, in the offices of counsel of record for the Plaintiff.
3. Upon payment of the sums in a timely fashion as provided for in Paragraph 2 by the Defendants to counsel for the Plaintiff, the Plaintiff shall arrange for the satisfaction of the within matter upon the records of the Prothonotary of Lebanon County.
In the event of a breach either in the amount of payment or the time of payment for either of the two payments referred to in Paragraph 2 herein, the Plaintiff is at liberty to proceed to process the collection upon the judgement referred to in Paragraph 1.

Order, 11/30/90 at 1-2.

Thereafter, appellants failed to make the payments specified under paragraph 2, and appellee was allowed to assert a mechanics’ lien in the amount of $58,512.12.

Appellants subsequently instituted the instant action in assumpsit against appellee. Appellants sought damages for breach of contract for failure to complete, failure to complete in a workmanlike manner, and cost of repairs. These damages allegedly were in the amount of $37,000. Appellee responded with a motion for summary judgment which was granted on the basis of res judicata. The court held that appellants’ claims had previously been litigated in the mechanics’ lien proceedings.

On appeal, appellants raise two issues for our consideration:

A. Where an owner’s claim for defective workmanship is asserted as a set-off in a mechanics’ hen action, whether the owner may assert the same claim for defective workmanship in an independent contract action.
B. Assuming that an owner is barred from asserting both a set-off claim and an independent contract claim for the same items of defective workmanship, whether the owner may assert his defective workmanship claims in an independent contract action to the extent they were not asserted as a set-off.

Preliminary, we note our standard of review in matters of summary judgment:

Summary judgment is only proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.Civ.P. 1035(b), 42 Pa.C.S.A. The movant must demonstrate that no genuine factual issues exist and that he is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 202-06, 412 A.2d 466, 468-69 (1979). An appellate court must examine the record in the light most favorable to the non-moving party, who is entitled to the benefit of all reasonable inferences. Pennsylvania Gas & Water Co. v. Nenna & Frain, Inc., 320 Pa.Super. 291, 297, 467 A.2d 330, 333 (1983). All doubts must be resolved against the movant, as summary judgment is only proper in the clearest case. Thompson Coal, supra [488 Pa.] at 202-06, 412 A.2d at 468-69. Nonetheless, the grant of summary judgment will only be reversed for an error of law or a clear abuse of discretion. Jones v. Keystone Insurance Co., 364 Pa.Super. 318, 322, 528 A.2d 177, 179 (1987), alloc. denied, 518 Pa. 613, 540 A.2d 535 (1988) (citation omitted).

Carns v. Yingling, 406 Pa.Super. 279, 282, 594 A.2d 337, 339 (1991). We may now turn directly to appellants’ concerns.

Appellants’ argument pertains to the application of the doctrines of res judicata and collateral estoppel. These doctrines serve to preclude the litigation, respectively, of claims and issues that have previously been litigated. We must first consider where res judicata applies.

Where there has previously been rendered a final judgment on the merits by a court of competent jurisdiction, the doctrine of res judicata will bar any future suit on the same cause of action between the same parties. See 10 Standard Pennsylvania Practice 2d § 65:32. Invocation of the doctrine of res judicata (claim preclusion) requires that both the former and latter suits possess the following common elements:

1. identity in the thing sued upon;
2. identity in the cause of action;
3. identity of persons and parties to the action; and
4. identity of the capacity of the parties suing or being sued.

Banker v. Valley Forge Insurance Co., 401 Pa.Super. 367, 373-74, 585 A.2d 504, 508 (1991), allocatur denied, 529 Pa. 615, 600 A.2d 532 (1991).

As prelude to their first argument, appellants assert that the doctrine of res judicata does not apply in the situation at bar because the earlier mechanics’ lien proceeding was settled prior to hearing. The argument continues that their set-off claims were, therefore, not actually considered in the first proceeding. Appellants are only partly correct. Certainly, our case law does accord res judicata effect to consent judgments:

Where the four identities are present, a judgment entered by consent or agreement will bind the parties with the same force and effect as if it had been entered after a full hearing on the merits.

A.C. Elfman & Sons, Inc. v. Clime, 355 Pa.Super. 394, 397, 513 A.2d 488, 489 (1986). As will be shown following our discussion of res judicata, the same is not necessarily true of collateral estoppel.

Appellants challenge the application of the doctrine of res judicata by the trial court to the instant case on the basis of a lack of identity in the cause of action. The central theme of appellants’ argument is that identity of cause of action is missing because the former mechanics’ lien proceeding was an action in rem while the latter assumpsit action on the contract was in personam. We agree.

Instantly, we see no identity in either the cause of action or in the thing sued upon. A mechanics’ lien proceeding merely addresses the rights of parties vis-a-vis a parcel of property. It does not address the rights of parties vis-a-vis each other. In the former mechanics’ lien action hereunder, appellants and appellee contested their interest in a certain real property; they did not litigate, for the purpose of res judicata, their contractual rights as against each other. This should be evident from the language of the statutory law, which does not allow an owner to assert a counterclaim as part of a set-off, nor is any money judgment authorized. 49 P.S. § 1701(e). That would inject an in personam claim into what is essentially an in rem proceeding. We are not alone in the conclusion that a prior mechanics’ lien action will not bar a subsequent assumpsit suit:

We are of the opinion that judgment for plaintiffs on the mechanics’ lien action does not preclude them from suing in assumpsit. The Mechanics’ Lien Law of 1963 provides:
‘Nothing in this act shall alter or affect the right of a claimant to proceed in any other manner for the collection of debt.’ Act of August 24, 1963, P.L. 1175, No. 497, art. vii § 702, 49 P.S. § 1702.
Section 1702 merely codified the court decisions supporting plaintiffs’ argument that mechanics’ lien and assumpsit actions are cumulative remedies. It has been held that:
‘[Tjhere may not only be a mechanics’ lien filed against the owner and contractor, and that prosecuted to judgment, but a personal action may be brought on his personal liability on the contract.’ Artman v. Truby, 130 Pa. 619, 632, 18 Atl. 1065, 1066 (1890).
‘A mechanics’ lien is simply a statutory security for enforcing the payment of certain claims which have supposedly added to the value of the property.... It is an additional concurrent and cumulative remedy ... and does not derogate from any other available remedies such as assumpsit.’ Halowich v. Amminiti, 18 D. & C.2d 306, 307 (1958), affirmed per curiam, on the opinion of the lower court, 190 Pa.Super. 314, 154 A.2d 406, 407 (1959).
‘[A] creditor may bring an action in assumpsit and at the same time file a mechanics’ lien and issue a writ of scire facias sur mechanics’ lien thereon. We have no quarrel with the statement that these remedies are concurrent and cumulative.’ Contractors Lumber and Supply Company v. Quinette, 185 Pa.Super. 66, 68, 137 A.2d 841, 842 (1959).
‘It is no doubt true ... that an action of assumpsit for materials sold and a proceeding to enforce the meehancis’ [sic] lien are concurrent and cumulative remedies.’ Hoffman Lumber Company v. Mitchell, 170 Pa.Super. 326, 330, 85 A.2d 664 [ (1952) ]

Moran & Priar Home Improvement v. Khouri, 30 D & C3d 548, 551-52 (1984).

While the above quoted passages pertain to subsequent actions by the contractor, and while the Mechanics’ Lien Law specifically allows the claimant-contractor to so proceed, we believe that an owner is similarly not barred from bringing a contemporary or subsequent suit on the contract. As set out generally in Malin v. Nuss, 234 Pa.Super. 259, 338 A.2d 676 (1975):

We hold that subsection 701(e) [sic] was not intended to bar all affirmative actions on the part of the owner against the contractor. The subsection was intended to prevent a statutory lien claim filed by a contractor from resulting in a judgment for the owner. See, e.g., Dennison v. Dietrich, 3 Pa.D & C.2d 43 (1954).

Malin v. Nuss at 262, 338 A.2d at 678. Certainly, the effect of res judicata will attach in any subsequent proceeding which attempts to address the rights of the parties in the property that was the subject of the mechanics’ hen. However, the doctrine of res judicata has no effect on subsequent actions on the contract.

The Mechanics’ Lien Law of 1963 was intended to protect the prepayment labor and materials that a contractor invests in another’s property, by allowing the contractor to obtain a lien interest in the property involved. A lien proceeding is not intended to settle the contractual obligations of the parties. We note:

There is no right of lien for damages for breach of contract. The rule has also been stated that a mechanic’s lien cannot be made the basis of a recovery for unliquidated damages for breach of contract. A claim by a contractor will be rejected as being for profits, rather than for labor and materials, where it appears that the owner ordered the contractor to discontinue work and afterward the owner completed the building, and the contractor filed a lien and proved the amount of the claim by deducting from the contract price the amount received by him on account and the value of the labor and materials which he would have furnished to complete the work.

20 Standard Pennsylvania Practice 2d § 105:4, pp. 16-17 (footnotes omitted).

We find support for this interpretation in the Restatement, Second, Judgments § 30:

§ 30. Judgments Based on Jurisdiction to Determine Interests in Things
A valid and final judgment in an action based only on jurisdiction to determine interests in a thing:
(1) Is conclusive as to those interests with regard to all persons, if the judgment purports to have that effect (traditionally described as ‘in rem’), or with regard to the named parties, if the judgment purports to have that effect (traditionally described as ‘quasi in rem’); and
(2) Does not bind anyone with respect to a personal liability; and
(3) Is conclusive between parties, in accordance with the rules of issue preclusion, as to any issues actually litigated by them and determined in the action.

Restatement, Second, Judgments § 30.

Other authorities concur with this analysis:

§ 1074. Merger and bar of cause of action.
It sometimes happens that out of the same transaction there arise rights both in personam and in rem. In such case, a judgment in rem does not merge the action in personam on the original claim, and does not constitute a bar to an action thereon.

47 AmJur2d, Judgments § 1074, p. 136 (footnotes omitted).

Still, while a different subsequent cause of action will not be subject to the application of res judicata, we must yet examine whether collateral estoppel may work to bar appellants from raising the issues contained in their lawsuit. We believe that it does not.

As we noted earlier, the fact that the prior judgment was a consent judgment would not forestall the attachment of res judicata. The same is not necessarily true of collateral estoppel.

Collateral estoppel (issue preclusion) is closely related to res judicata, but bears certain distinctions:

[W]e note that the doctrine of res judicata, subsumes the more modern doctrine of issue preclusion which forecloses re-litigation in a later action, of an issue of fact or law which was actually litigated and which was necessary to the original judgment. Clark v. Troutman, 509 Pa. 336, 340, 502 A.2d 137, 139 (1985). Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment. Philadelphia Marine Trade Association v. International Longshoreman’s Association, 453 Pa. 43, 308 A.2d 98 (1973); See also Mellon Bank v. Rafsky, 369 Pa.Super. 585, 535 A.2d 1090 (1987).

City of Pittsburgh v. Zoning Board of Adjustment, 522 Pa. 44, 55-56, 559 A.2d 896, 901 (1989).

Collateral estoppel does not require identity of causes of action or parties. Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A.2d 341 (1974). However, while res judicata will bar subsequent claims that could have been litigated in the prior action, but which actually were not, collateral estoppel will bar only those issues that actually were litigated in the prior proceeding. Martin v. Poole, 232 Pa.Super. 263, 336 A.2d 363 (1975). Our case law has determined that in a situation involving a consent judgment, there has been no actual litigation of issues. Collateral estoppel does not attach, unless the agreement between the parties was manifestly intended to resolve a particular issue. See Restatement, Second, Judgments, § 27, comment e (1980). See also GPU Industrial Intervenors v. Pennsylvania Public Utilities Commission, 156 Pa.Cmwlth. 626, 628 A.2d 1187 (1993), and In Re Jones & Laughlin Steel Corporation, 328 Pa.Super. 442, 477 A.2d 527 (1984).

Instantly, the only memorialization of the parties’ agreement was the consent order itself. This order is inadequate to enable us to discern exactly which issues the parties were resolving. From the face of that order, it is possible that no issue was intended to be resolved, but that the parties entered the agreement in order to avoid the costs and uncertainty of litigation. In sum, there is no basis for us to regard any issue as having been settled by the prior consent order, nor, therefore, is there any basis for us to attach to it any collateral estoppel effect. Appellants are thus free to broach the issues raised in their instant suit.

Accordingly, the order granting summary judgment is hereby vacated and the matter is remanded for trial. Jurisdiction relinquished.

DEL SOLE, J., files a dissenting statement.

DEL SOLE, Judge,

dissenting.

I conclude that the disposition of the prior mechanics lien action included all items raised by appellants in that case. I agree with the trial court that the issues in this case are precluded from being re-litigated. Therefore, I dissent.

      . 49 P.S. § 1101 et seq.

      . A true counterclaim may not be raised in Mechanics' Lien claim proceedings, pursuant to 49 P.S. § 1701(e), but rather only the right to a set-off may be raised. Additionally, the amount of any set-off is limited to the amount of the lien itself. See Standard Pennsylvania Practice 2d, § 105:215, at 267.

      . $53,696.83 plus interest.

      . We have previously ruled that res judicata may arise from a mechanic's lien action to bar a subsequent action on the contract. See Contractors Lumber and Supply Co. v. Quinette, 185 Pa.Super. 66, 137 A.2d 841 (1958). However, a reading of Quinette reveals that the court was actually applying the doctrine of collateral estoppel. We agree that this doctrine may sometimes, but not always, apply.


author: TAMILIA, Judge:

text:
    642 A.2d 1126
    COMMONWEALTH of Pennsylvania, Appellant, v. Jennifer PETERS.
    Superior Court of Pennsylvania.
    Submitted April 18, 1994.
    Filed June 7, 1994.
    Petition for Allowance of Appeal Denied Oct. 12, 1994.

      Mark S. Smith, Asst. Dist. Atty., Bellefonte, for Com., appellant.
    Kyle W. Rude, Asst. Public Defender, Bellefonte, for appellee.
    Before CAVANAUGH, WIEAND, McEWEN, CIRILLO, BECK, TAMILIA, KELLY, POPOVICH and SAYLOR, JJ.
   TAMILIA, Judge:

The Commonwealth takes this appeal from the Order of October 9, 1992, suppressing certain evidence. We find the suppression court abused its discretion in this matter and, thus, we reverse its ruling.

Initially, we note that when reviewing the Commonwealth’s appeal from the decision of a suppression court, “we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted.” Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992); Commonwealth v. Elliot, 416 Pa.Super. 499, 611 A.2d 727 (1992). When the evidence supports the suppression court’s findings of fact, we may reverse only when the legal conclusions drawn from those facts are erroneous. Elliot, supra.

The facts of this case, viewed in conformity with the foregoing standard, are as follows. On June 25, 1992, Officer Richard Ososkie, of the State College Bureau of Police Services, responded to a call reporting a possible theft of money from a client of In-Home Care Services (“IHCS”). Upon his arrival at the IHCS office, Officer Ososkie was met by Ms. Pilione, supervisor of IHCS, and defendant, Jennifer Peters, an employee of IHCS. Ms. Pilione informed the officer that the client had called to report some lost or stolen money, in the amount of several thousand dollars. The client had been visited earlier in the day by defendant. Officer Ososkie was obtaining some biographical information from defendant when Ms. Pilione motioned him to a back office. In that office, away from defendant, Ms. Pilione informed the officer that when she received the theft report, she became nervous and went outside to check her vehicle, which was the IHCS vehicle defendant had used to visit the client. Checking the vehicle, Ms. Pilione spied several shopping bags from Hills Department Store in the vehicle filled with merchandise. Ms. Pilione confided to the officer that she had a “bad feeling” about the situation because defendant had complained that she had no money and yet she seemed to be able to afford a considerable amount of merchandise. Officer Ososkie then telephoned the victim and the district attorney’s office, and while still on the telephone, Ms. Pilione walked into the back office with defendant and informed the officer that defendant just told her that she had found some money and was willing to show them where it was. Officer Ososkie looked over at defendant, who told him she found some money and it scared her, she didn’t know what to do with it. Defendant also said, “And you can check, I’ll get it for you, I’ll give it to you. You can go up and look in anything I have, look in the car.” (N.T., 9/29/92, p. 7; emphasis added.) Officer Ososkie quickly terminated his telephone call and asked defendant where the money was, and she said it was in the IHCS vehicle in her purse. Once at the car, defendant reached into her purse and pulled out a handful of currency, handing it to Officer Ososkie. Officer Ososkie estimated that he was holding approximately $4,200, the vast majority in $100 denominations. Officer Ososkie asked defendant if that was all there was and defendant said it was. Believing that the amount in his possession did not match the amount reported missing, Officer Ososkie asked again if there was any more and defendant again said no. At that point, Ms. Pilione asked defendant where the merchandise in the Hills bags came from, as defendant did not have enough money to make all those purchases. Officer Ososkie then reached in to the bags and examined the receipts. When the officer informed defendant that $100 bills were tendered for the purchases, defendant put her head down and admitted, “I used Ms money to buy the merchandise.” Officer Ososkie was still under the impression more money was missing, and so he again asked defendant if that was it and she said yes. He asked if she minded if he searched her purse and she said, “Go right ahead.” His search disclosed another $100 bill and a small amount of a green, leafy substance, later determined to be marijuana. Upon finding the $100, the officer asked, “Is this his too?” Defendant said yes and then handed the officer another $40, stating “This is also his.” Defendant was then placed under arrest and taken to the police station and furnished with her Miranda warmngs, after which she provided a statement to the police. Defendant was charged subsequently with theft, receiving stolen property, possession of a controlled substance and possession of a small amount of marijuana.

A suppression hearing was held on September 29, 1992 before the Honorable Charles C. Brown, P.J., of the Court of Common Pleas of Centre County. Officer Ososkie and defendant testified, at the hearing. On October 9, 1992, the suppression court granted defendant’s motion to suppress, ordering that defendant’s statements, “made after Officer Ososkie requested Defendant to accompany him to the vehicle on June 25, 1992, both verbal and written, and the evidence of items found in Defendant’s purse and Hills Department Store bags on June 25, 1992, shall not be admissible during the Commonwealth’s case-in-chief at the trial of this case.” (Emphasis added.) The' suppression court later stated:

In the case sub judice, it is clear that Officer Ososkie’s first meeting with the Defendant at the IHCS building was a ‘mere encounter.’ Officer Ososkie was responding to a call to investigate a possible theft and only asked Defendant biograpMcal type questions. However, it is the opinion of this Court that after Officer Ososkie asked Defendant to accompany him to the vehicle, custodial detention had occurred.

(Slip Op., Brown, P.J., 10/9/92, p. 5.) We disagree.

To the contrary, our examination of the record indicates that the suppression court’s assertion that Officer Ososkie requested defendant to accompany him to the IHCS vehicle is belied by the uncontradicted testimony that defendant volunteered to the officer that the money was in her purse in the car and that he was free to look in the car and in any of her possessions. Having determined that the court erred in this regard, we must also determine whether the conduct of Officer Ososkie prior to defendant’s arrest necessarily implicated the protections of the fourth amendment.

To determine the lawfulness of the police conduct in the instant case, it is necessary to establish the nature of the contact which occurred between the police and appellee.... The types of contacts which occur between police and citizens were characterized by the Superior Court in Commonwealth v. Brown, 388 Pa.Super. 187, 565 A.2d 177 (1989), in the following manner:
Encounters between the public and the police that do not involve a formal arrest may be categorized as mere encounters, non-custodial detentions, and custodial detentions. Commonwealth v. Ellis, 379 Pa.Super. 337, 353, 549 A.2d 1323, 1331 (1988). The term “mere encounter” refers to certain non-coercive interactions with the police that do not rise to the level of a seizure of the person under the fourth amendment. For example, a “mere encounter” occurs if the police simply approach a person on a public street in order to make inquiries. See Commonwealth v. Hall, 475 Pa. 482, 488, 380 A.2d 1238, 1241 (1977).
On the other hand, both non-custodial detentions and custodial detentions are seizures of the person that trigger fourth amendment protection. See Dunaway v. New York, 442 U.S. 200, 207-211, 99 S.Ct. 2248, 2253-2256, 60 L.Ed.2d 824 (1979); see generally 2 LaFave, Search and Seizure § 5.1 (2d ed.1987) and 3 LaFave, Search and Seizure, §§ 9.1-9.6 (2d ed.1987). A non-custodial detention or “forcible stop” occurs when a police officer temporarily detains an individual by means of physical force or a show of authority for investigative purposes. See Commonwealth v. Williams, 287 Pa.Super. 19, 22, 429 A.2d 698, 700 (1981). In order to justify a forcible stop under the fourth amendment, the police must point to specific and articulable facts that, taken together with the rational inferences from those facts, reasonably indicate that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Custodial detention is a more severe form of government intrusion in which the conditions or duration of the police detention approximate the level of restraint associated with a formal arrest. See Ellis, 379 Pa.Super. at 356, 549 A.2d at 1332. In order to justify custodial detention, the police must have probable cause to believe that an offense has been or is being committed. Dunaway v. New York, 442 U.S. at 216, 99 S.Ct. at 2258.
Id. at 189-190, 565 A.2d at 178-179. See also: Commonwealth v. Lidge, 399 Pa.Super. 360, 366-367, 582 A.2d 383, 386 (1990); Commonwealth v. Douglass, 372 Pa.Super. 227, 238-239, 539 A.2d 412, 417-418 (1988).

Commonwealth v. Bennett, 412 Pa.Super. 603, 612-13, 604 A.2d 276, 280-281 (1992).

Generally, a seizure was thought to have occurred, for purposes of triggering constitutional protection, if the officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen____”. Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The test to determine whether a sufficient restraint of personal liberty has occurred was first formulated in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). To distinguish between a constitutionally significant seizure and an [sic] police-citizen encounter without fourth amendment implications, the Mendenhall court noted the following:
The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.
We conclude that a person has been “seized” within the meaning of the Fourth Amendment only if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
United States v. Mendenhall, 446 U.S. at 553-54, 100 S.Ct. at 1877, 64 L.Ed.2d at 509 (citations omitted) (emphasis supplied).

Commonwealth v. Harper, 416 Pa.Super. 608, 616-17, 611 A.2d 1211, 1215 (1992).

Among the factors the court utilizes in determining, under the totality of the circumstances, whether the detention became so coercive as to constitute the functional equivalent of a formal arrest are: the basis for the detention; the duration; the location; whether the suspect was transferred against his will, how far, and why; whether restraints were used; the show, threat or use of force; and the methods of investigation used to confirm or dispel suspicions. Commonwealth v. Bybel, 399 Pa.Super. 149, 158, 581 A.2d 1380, 1385 (1990); Douglass, supra at 245, 539 A.2d at 421. The fact that a defendant was the focus of the investigation is also a relevant factor in determining whether he was “in custody,” but does not require, per se, Miranda warnings. Bybel, supra; Commonwealth v. Fento, 363 Pa.Super. 488, 526 A.2d 784 (1987).

We find Officer Ososkie’s initial contact with defendant was a “mere encounter,” to which no fourth amendment protection attaches. At the time defendant volunteered to take the officer to the car, show him the money and allow him to search both the car and her possessions, Officer Ososkie had not adopted Ms. Pilione’s “bad feeling” and was attempting to contact the victim by telephone. At no time did the officer demand that defendant take him to her car and/or let him search her purse. The officer’s conduct did not emanate from his own animus but was triggered by defendant’s voluntary acquiescence to search the car and her possessions.

Similarly, we find Officer Ososkie’s subsequent actions until the time of defendant’s arrest did not elevate the contact from a “mere encounter” to a “noncustodial detention” triggering a “seizure” within the meaning of the fourth amendment. We find the officer’s actions constituted a minor governmental intrusion which did not consist of any threatening police presence, display by the officer of his weapon, physical touching of defendant or compelling tone of voice or language. Mendenhall, supra; Harper, supra. The statement by defendant that she “found money,” coupled with her willingness to show the officer the money, fell short of an admission or inference that she had committed a theft. The officer, exercising reasonable caution not to be accusatory without further information, complied with defendant’s offer to examine the car and its contents. Doing only what she offered without duress or threat, defendant cannot now claim she was under police detention.

For the foregoing reasons, we find all of defendant’s statements made prior to her arrest, as well as the. evidence found in her purse and shopping bags, are admissible at trial.

Case reversed and remanded for trial in accordance with this Opinion.

Jurisdiction relinquished.

      . The Commonwealth asserts that the Order in question substantially handicaps and/or terminates its prosecution, and, therefore, Superior Court has jurisdiction to hear this appeal. Commonwealth v. Whitehead, 427 Pa.Super. 362, 629 A.2d 142 (1993).

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . 18 Pa.C.S. § 3921(a).

      . Id., § 3925(a).

      . 35 P.S. § 780-113(a)(16).

      . Id., § 780-113(a)(31).


author: HESTER, Judge.

text:
    642 A.2d 1130
    COMMONWEALTH of Pennsylvania v. Steven Wayne RUDY, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1994.
    Filed June 8, 1994.

      David D. Noon, Sunbury, for appellant.
    Gregory A. Stuck, Asst. Dist. Atty., Sunbury, for Com., appellee.
    Before POPOVICH, JOHNSON and HESTER, JJ.
   HESTER, Judge.

Steven Wayne Rudy appeals from the order entered in the Court of Common Pleas of Northumberland County on June 15, 1993, which terminated him from an ARD program due to a violation of one of its conditions. For the reasons set forth below, we quash.

The procedural history of this case may be summarized as follows. On February 24, 1992, appellant was arrested and charged with careless driving, driving with a blood alcohol content of .10% or greater, driving while under the influence of alcohol to such a degree as to render him incapable of driving safely, and failing to comply with general lighting requirements. He subsequently requested placement in an ARD program. On September 3, 1992, the Commonwealth concurred with this request and moved the trial court to place him on ARD. Appellant then acceded to the various conditions of ARD, including the condition that he obey the law and be of good behavior during his twelve-month participation in the program. Accordingly, the trial court entered an order granting the Commonwealth’s motion.

On February 11, 1993, alleging that appellant had been arrested for several offenses, including driving while under the influence of alcohol, the Commonwealth moved for appellant’s termination from ARD due to his violation of the condition of good behavior. On June 15, 1993, after conducting a hearing on the matter, the trial court concluded that appellant had violated the condition in question and entered the contested order. This timely appeal followed.

It long has been clear that a criminal defendant may not appeal from an order which terminates his participation in an ARD program due to a violation of one of its conditions. See Pa.R.Crim.P. 184(c). Appellant, however, attempts to overcome this prohibition by relying upon a statement taken from Commonwealth v. Feagley, 371 Pa.Super. 593, 538 A.2d 895 (1988), a case in which we considered the effect of a defendant’s challenge to the appropriateness of an ARD condition following his placement in the program. According to appellant, the statement in question, which consists of one full sentence and part of another, indicates that the prohibition against appeals from orders terminating participation in ARD due to a violation of conditions is contrary to due process. We find appellant’s claim devoid of merit.

When examined in their entirety, the two sentences relied upon by appellant state:

Thus, rule 184(c) appears to bar the taking of an appeal from any Order terminating the program, whether the reason is for violation of a condition of the program or because a defendant, like appellant, disagrees with any of the conditions imposed by the hearing court. It does not stand to reason and is abhorrent to due process considerations to disallow an appeal from an Order terminating a defendant whose freedom hangs in substantial jeopardy as a result of violation of his ARD conditions pursuant to Rule 184(c), whereas a defendant, like appellant, who may opt out of the program, is given the unqualified right to ask that we, as an appellate tribunal, pass judgment upon a matter which, we believe, is before us in an unripe posture and for which the ARD rules provide a remedy at the trial court level.

Commonwealth v. Feagley, supra, 371 Pa.Super. at 602, 538 A.2d at 899 (emphasis in original). Contrary to appellant’s argument, this quotation does not support the conclusion that the denial of an immediate right of appeal offends due process principles. Rather, the language merely indicates that it would be unreasonable to disallow an appeal from an order terminating participation in an ARD program for a failure to comply with its conditions and permit a defendant to appeal a condition’s propriety immediately after placement in ARD. Thus, as we find appellant’s reliance upon Feagley misplaced, we are constrained to quash.

We note that our decision to quash does not preclude review of any issue relating to the propriety of the termination order, which effectuated the revival' of criminal proceedings held in abeyance by appellant’s admission into the ARD program. See Commonwealth v. Feagley, supra. Since a criminal defendant may appeal from the imposition of a final judgment of sentence, see Commonwealth v. Getz, 410 Pa.Super. 28, 598 A.2d 1309 (1991), it merely delays such review until the charges are resolved adversely to appellant and the trial court actually imposes sentence.

Appeal quashed.

      . We note that the Commonwealth indicates that orders such as the one presently at issue may be challenged directly through an interlocutory appeal by permission. However, we need not consider the correctness of the Commonwealth’s argument since appellant has failed to invoke the procedures necessary for filing such an appeal. See 42 Pa.C.S. § 702; Pa.R.A.P. 1311.


author: HESTER, Judge:

text:
    642 A.2d 1132
    COMMONWEALTH of Pennsylvania v. Douglas A. GIBBS, Appellant.
    Superior Court of Pennsylvania.
    Argued May 10, 1994.
    Filed June 13, 1994.

      Alexander H. Lindsay, Jr., Butler, for appellant.
    William M. Panella, Dist. Atty., New Castle, for Com., appellee (Submitted).
    Before TAMILIA, HUDOCK and HESTER, JJ.
   HESTER, Judge:

Douglas A. Gibbs appeals from the judgment of sentence entered in the Court of Common Pleas of Lawrence County on November 10, 1993, following his conviction by a jury of statutory rape, aggravated indecent assault, and involuntary deviate sexual intercourse. He was sentenced to a term of imprisonment of five to ten years and directed to pay the costs associated with his prosecution. For the reasons set forth below, we reverse the judgment of sentence and remand the case for a new trial.

When viewed in the light most favorable to the Commonwealth, the record reveals the following facts. In mid-April, 1992, shortly after her eleventh birthday, A.H. visited appellant’s New Castle home. During the course of that visit, appellant, a cousin of A.H.’s father, forcibly kissed the girl. In the six months that followed, appellant came into contact with A.H. on numerous occasions, and his conduct escalated to include digital vaginal penetration, fellatio, and intercourse. Throughout the various episodes of abuse, appellant warned A.H. to remain silent regarding their occurrence. Despite that admonition, A.H. confided in appellant’s daughters, and her mother eventually learned of appellant’s activities.

On November 3, 1993, in response to an unspecified abuse report, New Castle Police Officer David Kelty drove to the H. family residence and questioned both A.H. and her mother. Later that day, after the officer interviewed A.H. in the presence of Lisa Matteo, a caseworker for Lawrence County Children and Youth Services, appellant was arrested and charged with rape, statutory rape, aggravated indecent assault, and involuntary deviate sexual intercourse. Several months thereafter, trial on the matter commenced.

On March 19, 1993, a jury acquitted appellant of rape, but convicted him of the three remaining charges. Appellant subsequently filed unsuccessful post-verdict motions, which, among other things, challenged the propriety of a trial court decision to deny him access to documents pertaining to statements made by A.H. to Ms. Matteo. On November 10, 1993, the court imposed the described sentence. This timely appeal followed.

Appellant asserts that the trial court erroneously refused him access to records of Ms. Matteo’s interviews with A.H. on the basis of the privilege relating to confidential communications made to sexual assault counselors. Preliminarily, we note that the sexual assault counselor privilege is set forth in 42 Pa.C.S. § 5945.1. In part, that section provides:

(a) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:
“Rape crisis center.” Any office, institution or center offering assistance to victims of sexual abuse and their families through crisis intervention, medical and legal accompaniment and follow-up counseling.
“Sexual assault counselor.” A person who is engaged in any office, institution or center defined as a rape crisis center under this section, who has undergone 40 hours of sexual assault training and is under the control of a direct services supervisor of a rape crisis center, whose primary . purpose is the rendering of advice, counseling or assistance to victims of sexual assault.
“Victim.” A person who consults a sexual assault counselor for the purpose of securing advice, counseling or assistance concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault. The term shall also include those persons who have a significant relationship with a victim of sexual assault and who seek advice, counseling or assistance from a sexual assault counselor concerning a mental, physical or emotional condition caused or reasonably believed to be caused by a sexual assault of a victim.
“Confidential communication.” All information, oral or written, transmitted between a victim of sexual assault and a sexual assault counselor in the course of their relationship, including, but not limited to, any advice, reports, statical data, memoranda, working papers, records or the like, given or made during that relationship.
(b) Privilege.—
(1) No sexual assault counselor may, without the written consent of the victim, disclose the victim’s confidential oral or written communications to the counselor nor consent to be examined in any court or criminal proceeding.

42 Pa.C.S. § 5945.1.

As a reading of the statutory provision demonstrates, the privilege in question prevents sexual assault counselors from disclosing confidential communications made to them by the victims of sex-related crimes. The privilege, which is the equivalent of one involving private psychotherapeutic treatment, is absolute and applies both to oral communications and to records created during the course of the confidential relationship. See Commonwealth v. Wilson, 529 Pa. 268, 602 A.2d 1290 (1992); see also Commonwealth v. Eck, 413 Pa.Super. 538, 605 A.2d 1248 (1992); Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (1992). Keeping these principles in mind, we turn to appellant’s claims regarding the propriety of its application.

Appellant implies that the privilege could not be utilized to bar his access to the sought-after documents since the record fails to demonstrate that Ms. Matteo fits within the statutory definition of a sexual assault counselor. However, as our review of the record reveals that appellant failed to raise this issue at trial, we find it waived. See Commonwealth v. Sanchez, 416 Pa.Super. 160, 610 A.2d 1020 (1992) (failure to raise issue, argument or objection in timely manner at trial results in waiver). Accordingly, we decline to consider its merits.

Appellant also contends that the trial court’s refusal to grant him access to the documents in question denied him his rights of confrontation and due process under the Pennsylvania Constitution since the Commonwealth utilized Ms. Matteo to testify to statements made by A.H. The Commonwealth, however, responds by asserting that appellant waived this contention, which is one of first impression, by failing to interpose a timely objection to Ms. Matteo’s testimony. We find the Commonwealth’s allegation of waiver unconvincing. Although appellant’s claim is premised upon the assertion that Ms. Matteo breached the privilege by testifying for the Commonwealth, it does not concern the propriety of her testimony’s admission. Rather, the issue raised by appellant relates to whether the admission of Ms. Matteo’s testimony had the effect of entitling him to examine the records in question. Thus, even if we assumed that appellant possessed the necessary standing to assert an objection on the basis of privilege, we would find that his failure to do so has no impact upon the matter presently before us, which was raised and exhaustively discussed at trial. See Notes of Testimony (“N.T.”), at 68-72, 74-76.

We now address the merits. As mentioned previously, the sexual assault counselor privilege is absolute and prevents the disclosure of certain information related by victims of sexual assault. In light of the absolute nature of the privilege, it necessarily precludes the revelation of protected information both to the Commonwealth and to the defense. Moreover, as the statute indicates that no disclosure of confidential information may be made without the written consent of the victim, a victim’s testimony regarding the facts underlying a sexual assault may not effectuate even a limited waiver of the privilege. Utilizing these principles, we turn to the question of whether Ms. Matteo’s testimony amounted to a violation of the privilege.

In the present case, the Commonwealth utilized Ms. Matteo to testify to statements made to her by A.H. regarding appellant’s abusive conduct. In addition, we note that our review of the record demonstrates that Ms. Matteo’s status as a sexual assault counselor was not contested in the trial court. Moreover, the type of information elicited from Ms. Matteo, which concerned A.H.’s descriptions of the abuse suffered at appellant’s hands, clearly falls within the scope of the privilege’s protection. Thus, as the privilege applies irrespective of whether the party seeking disclosure is the Commonwealth or the defense, and there is no claim that either A.H. or her parents provided the necessary written waiver, we find that the Commonwealth instigated a breach of the privilege by utilizing Ms. Matteo as a witness.

Having determined that the privilege was breached by Ms. Matteo’s testimony, we turn to the question of the effect of that breach. Under ordinary circumstances, a criminal defendant’s confrontation and compulsory process rights under the Pennsylvania Constitution must yield to the privilege created by 42 Pa.C.S. § 5945.1. See Commonwealth v. Wilson, supra. The rationale underlying this conclusion is that the legislature, by enacting that provision, has acknowledged the significance of the interest which it addresses and decided to afford that interest protection. Id. The circumstances at issue in the present case, however, are far different from those normally considered. Unlike the ordinary case, which generally involves a simple request for access to information, see id. (request for records of sexual assault counselor), the present case also concerns a breach of the confidentiality interest protected by the statute. In light of that breach, the rationale for affording the confidentiality interest the impregnable protection unquestionably intended by the legislature is diminished substantially. This diminishment removes the confidentiality interest embodied in the statute from its position of absolute primacy, thus rendering the privilege more akin to one extant at common law, which our Supreme Court has held must yield to a defendant’s rights of confrontation and compulsory process. See Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989) (dealing with right of access to psychiatric records under common law privilege). However, recognizing that the confidentiality interest still exists in cases involving common law privileges, the Court has limited access in such situations to in camera review. Id. Accordingly, as we conclude that the trial court denied appellant his rights of confrontation and compulsory process by denying him all access to Ms. Matteo’s records, we are constrained to reverse the judgment of sentence and remand the case for a new trial.

Judgment of sentence reversed. Case remanded for a new trial. Jurisdiction relinquished.

      . Despite the clear language of the statute to the contrary, both the Commonwealth and the trial court apparently assert that a victim’s testimony regarding the facts underlying an assault waives the privilege with respect to all information consistent with that testimony while protecting the confidentiality of any inconsistent facts.

      . This conclusion is consistent with a statement made by Judge Ford Elliott in her concurring opinion in Commonwealth v. Hyatt, 401 Pa.Super. 14, 584 A.2d 956 (1990), rev'd, 533 Pa. 56, 617 A.2d 1271 (1993) (per curiam), a case in which we held that the sexual assault counselor privilege was inapplicable to protect documents from disclosure. Judge Ford Elliott noted that the majority’s conclusion was dictated by prior precedent. However, anticipating the Supreme Court’s decision in Commonwealth v. Wilson, supra, she concluded that it both was absurd and rendered the privilege nugatory. In addition, Judge Ford Elliott foresaw the matter presently at issue and stated, "In the event that a counselor would reveal confidential information to a prosecutor or in any active way use the relationship with the alleged victim to further the aims of the prosecution, then the privilege is breached and the defendant is entitled to take advantage of that breach." Commonwealth v. Hyatt, supra, 401 Pa.Super. at 25 n. 1, 584 A.2d at 962 n. 1.

      . In light of our disposition of this issue, we need not consider appellant’s two remaining claims. These claims concern the impact of a Commonwealth discovery violation and the propriety of the trial court’s decision to exclude evidence allegedly relating to A.H.’s prior sexual conduct.